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SIU Director’s Report - Case # 19-OCI-294

Contents:

News Releases for this Case:

French:

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury that a 38-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On December 4, 2019, at 11:25 a.m., the Peel Regional Police (PRP) reported the following. PRP police officers tried to stop a vehicle at 100 Wilkinson Road, Brampton, at 3:30 a.m. The driver rammed a police cruiser, then fled. A rolling block was set up. The vehicle was eventually stopped on Advance Boulevard, between Dixie Road and Wilkinson Road. The driver rammed several police cruisers before he was arrested. He was taken to Brampton Civic Hospital (BCH) and diagnosed with a fractured nose. The driver was identified as the Complainant. He was eventually taken to PRP 21 Division. The scene was being held.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators (FIs) assigned: 2

Complainants

Complainant: 38-year-old male interviewed, medical records obtained and reviewed


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed


Subject Officers

SO Declined to be interviewed, as is the subject officer’s legal right, but submitted notes for review.


Evidence

The Scene

There were two scenes involved in this incident. Scene number one was in front of 215 Advance Boulevard, which travelled in an east/west direction and was a multi-lane roadway. There were light standards in the area suggesting proper street lighting. Several vehicles located within the confines of the secured area were photographed. Blood located on the roadway, next to a Ford F150, was swabbed.

The second scene was on Wilkinson Road in Brampton.

Forensic Evidence


Conducted Energy Weapon (CEW) Download


A SIU FI attended PRP Division 21, 10 Peel Centre Drive, Brampton, to obtain data downloaded from the CEW that was discharged in the incident.

“Taser” Model X2

There were two cartridges attached to this weapon. The cartridge in the right bay had been deployed; the left bay’s cartridge was intact. The cartridge from the right bay of the weapon was collected. The CEW download indicated that there were two trigger pulls of the weapon around the time of the Complainant’s arrest: the first occurred at 3:50:29 a.m. and was associated with a seven second charge; the second occurred at 3:50:37 a.m., for a charge of one second.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Police Communications Recordings


Communications Summary


On December 4, 2019, at 3:30 a.m., an employee of a men’s shelter called the PRP and reported a suspicious black pickup truck with a certain licence plate number. The employee reported that every time the truck came into the area, one of the residents had an overdose from fentanyl. The employee believed the driver of the truck [now known to be a Ford F150] dealt drugs. A check of the licence plate revealed that the registered owner was the Complainant and that he had warrants outstanding by Caledon OPP for criminal harassment.

At 3:30:46 a.m., WO #1 and WO #6 were dispatched to the men’s shelter. At 3:42 a.m., WO #2 broadcast that he had located the Ford F150 in a truck yard on Wilkinson Road. At 3:42:58 a.m., WO #2 broadcast that the Ford F150 had smashed into his cruiser. At 3:43:19 a.m., WO #2 broadcast that the Ford F150 had taken off southbound on Wilkinson Road. At 3:43:31 a.m., WO #6 advised he was northbound on Wilkinson Road. At 3:44:18 a.m., WO #5 advised that the Ford F150 had travelled westbound on Westcreek Boulevard, towards the dead-end. The Ford F150 turned around and travelled eastbound and, at 3:44:39 a.m., WO #1 advised he had set up stop-sticks and they were successful. The SO broadcast that the Ford F150 had run the red light eastbound at Tomken Road. At 3:47:59 a.m., the SO broadcast that they had the Ford F150 blocked-in on Advance Boulevard. At 3:49:23 a.m., WO #6 broadcast that a CEW had been deployed. At 3:49:41 a.m., WO #1 broadcast that the driver had been OC sprayed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:
  • Audio Copy Report-Phone;
  • Audio Copy Report-Radio;
  • CEW Device Data Download;
  • Communications audio;
  • Event Chronology;
  • Involved Officers list and involvements;
  • Notes-all WOs;
  • Notes-SO;
  • Occurrence Details for this incident;
  • Procedure: Criminal Investigations;
  • Procedure: Incident Response;
  • Procedure: Suspect Apprehension Pursuit; and
  • Use of Force Report for this incident.

Materials obtained from Other Sources

The SIU also obtained the following records from other sources:
  • Ambulance Call Report from the paramedic service; and
  • The Complainant’s Medical Record- William Osler Health Centre.

Incident Narrative

The material events are clear on the weight of the evidence collected by the SIU, which included statements from the Complainant and six police witness officers. While the SO, as was his right, declined to interview with the SIU, he did authorize the release of his notes, which were obtained and reviewed. At about 3:30 a.m. on December 4, 2019, officers were dispatched following a call to police reporting a suspicious pickup truck in the area of a shelter on Wilkinson Road, Brampton. The caller believed that the driver of the truck – the Complainant – was dealing drugs to occupants of the shelter and provided the licence plate number for the vehicle. Checks run on the licence plate indicated that the Complainant was wanted by the OPP on an arrest warrant for criminal harassment.

WO #2 and WO #1, in separate cruisers, located the pickup truck on a lot on Wilkinson Road, a short distance from the shelter. It was faced toward a snow bank. The officers positioned their cruisers behind and to the driver’s side of the truck and exited to speak with the driver. Upon seeing the police, the Complainant reversed his truck, slamming into the front of WO #2’s cruiser and rendering it inoperable. He then drove forward and back again, this time striking WO #1’s cruiser and pushing it a distance, before driving out of the lot southbound on Wilkinson Road.

WO #1 followed in pursuit. He was soon joined by several other officers in their cruisers. From Wilkinson Road, the Complainant proceeded west on Advance Boulevard, which became Westcreek Boulevard at Tomken Road. Realizing that Westcreek Boulevard was a dead-end, two of the officers – WO #1 and WO #6 – stopped their vehicles and deployed their stop-sticks across the road anticipating the return of the Complainant’s truck in their direction. A short time later, as expected, the Complainant approached their location eastward on Westcreek Boulevard and drove over the stop-sticks.

Though his tires were deflating, the Complainant continued east and drove through a red light at Tomken Road. Soon thereafter, the Complainant’s vehicle, which had decelerated significantly, was surrounded by police vehicles and forced to a stop on Advance Boulevard before Dixie Road. After colliding with the cruiser in front of him, operated by WO #1, the Complainant revved his engine and attempted to move rearward. His tires deflated, and, spinning over slippery road conditions, the Complainant was unable to get much traction and was prevented from driving back by cruisers positioned behind him.

Officers emerged from their cruisers, some with firearms drawn, and confronted the Complainant. After a minute or so of ignoring their repeated commands, the Complainant emerged from the driver’s door of the truck into a small space between his truck and WO #5’s cruiser, located at the driver’s side of the Ford F150. WO #1 approached and deployed his CEW, which struck and immobilized the Complainant. He was taken to the ground by officers and began to struggle with them as they attempted to secure him in handcuffs. In the course of the struggle on the ground, WO #4 delivered one or two knee strikes to the Complainant’s right side and WO #6 deployed his OC spray, following which the officers were able to take the Complainant into custody.

Following his arrest, the Complainant was taken to hospital and diagnosed with a fractured nose.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Section 320.13 (1), Criminal Code – Dangerous operation 

320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.



Analysis and Director's Decision

In the early morning of December 4, 2019, the Complainant was arrested by PRP officers and suffered a broken nose in the process. The SO was among the arresting officers and identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

There are two questions that arise for consideration in connection with this incident as far as the officers’ potential criminal liability is concerned. The first is whether there are grounds to believe that any one or more of the officers committed the offence of dangerous driving, contrary to section 320.13(1), in the course of the pursuit that preceded the Complainant’s arrest. The offence is one of penal negligence and is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised. There was a warrant out for the Complainant, and he was clearly subject to arrest when first approached by WO #1 and WO #2. Thereafter, when he struck the officers’ vehicles and sped off southbound on Wilkinson Road, there were further grounds for arrest based on assault and dangerous driving. In the circumstances, the police were within their rights in initiating a pursuit of the pickup truck. That pursuit, I am satisfied, was conducted with due care and regard for the safety of the public, including the Complainant. By all accounts, it occurred at relatively slower speeds and a time when there would have been little if any traffic in the vicinity. The use of the stop-sticks, in my view, was appropriate and effective, as was the rolling-stop performed by the officers to bring the Complainant’s vehicle to a stop. Given that the Complainant’s truck was severely hobbled by the time the officers maneuvered their cruisers around it, I am satisfied that the tactic was a reasonable option in the circumstances. On this record, I am unable to reasonably conclude that the officers who pursued and then stopped the Complainant’s truck transgressed the limits of care prescribed by the criminal law in so doing.

The second question asks whether the officers, including the SO, used excessive force in effecting the Complainant’s arrest. Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were authorized or required to do by law. To reiterate, I am satisfied that the Complainant was subject to lawful arrest based on the outstanding warrant and the reckless and violent manner in which he had fled from WO #1 and WO #2 when first confronted by the police. By the time the officers had stopped his vehicle on Advance Boulevard, they would have known that the Complainant had crashed into WO #2’s cruiser to escape from apprehension. As the Complainant continued to rev his engine and strike the cruisers in front of, and behind, his truck despite officers approaching in his direction with firearms drawn, they must have realized that he was not inclined to surrender peacefully. In the circumstances, I am unable to fault the SO for firing his CEW at the Complainant and then grounding him as he stepped out from the pickup truck. With the Complainant immobilized at a distance and on the ground, the officers would be better positioned to manage any further hostility on his part. Indeed, the Complainant continued to resist on the ground, flailing his body and refusing to release his arms to the officers. The officers responded with up to two knee strikes to the Complainant’s torso and the deployment of OC spray, following which they were able to wrestle control of his arms and secure them in handcuffs. While I have little difficulty with the knee strikes delivered by WO #4, who was physically engaged in the struggle with the Complainant on the ground, I question whether WO #6’s use of OC spray was strictly necessary given the number of officers around the Complainant. In the final analysis, I am prepared to give the officer the benefit of the doubt in this case given the volatility of the situation and the violence with which the Complainant had pursued his purpose to that point.

In the result, whether the Complainant’s nose was broken in the physical altercation with police that marked his arrest or in one or more of the collisions he caused with police vehicles, I am satisfied that the SO and the other officers acted lawfully throughout their dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: June 1, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit