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SIU Director’s Report - Case # 20-OCI-094

Contents:

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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 injury that a 29-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On April 24, 2020, at 2:52 a.m., the York Regional Police (YRP) notified the SIU of the Complainant’s injury.

The YRP reported that on April 23, 2020, at 8:30 p.m., members of the Organized Crime Enforcement Bureau (OCEB) were assigned to conduct surveillance of the Complainant’s residence in Hamilton. The surveillance team followed the Complainant in a motor vehicle from his residence to the area of Steeles Avenue East and Kennedy Road, Markham, where he was arrested for numerous trafficking offences.

YRP officers transported the Complainant to YRP 5 District where he reported facial injuries to Witness Officer (WO) #6. An ambulance was notified, and paramedics treated the Complainant’s facial injuries by applying a bandage on his nose. It was shortly after that YRP officers transported the Complainant to the Markham Stouffville Hospital where he was treated for a fractured nose. He was subsequently released from the hospital and returned to police custody where he was scheduled for a teleconference bail hearing the following morning.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 29-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Declined to be Interviewed
CW #2 Declined to be Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Designated for notes only
WO #5 Designated for notes only
WO #6 Interviewed
WO #7 Interviewed
WO #8 Designated for notes only
WO #9 Interviewed


Subject Officers

SO #1 Interviewed but declined to submit notes, as is the subject officer’s legal right.
SO #2 Interviewed and notes reviewed.


Evidence

The Scene

The incident took place in the area of the intersection of Steeles Avenue East and Kennedy Road, Markham.

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.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the Ontario Provincial Police (OPP) and YRP:
  • Computer-Assisted Dispatch call history;
  • Email from YRP-Call Signs and Vehicles;
  • Email from YRP-List of Involved Officers;
  • General Occurrence;
  • Notes-All WOs;
  • Notes-SO #2;
  • Training Record (OPP)-SO #2- Student Transcript;
  • Training Record (OPP)-WO #9- Student Transcript;
  • Training Records-SO #1-Annual Requalification 2019;
  • Training Records-SO #1-Use of Force-2004-2015;
  • Training Records-SO #1-Use of Force-2016-2017;
  • Training Records-SO #1-Annual Requalification 2018;
  • Use of Force Report-WO #7;
  • YRP Email-Surveillance Training dates;
  • YRP Policy-Arrest Procedure;
  • YRP Policy-Use of Force; and
  • YRP Surveillance Report.

Materials obtained from Other Sources

In addition to the materials received from the OPP and the YRP, the SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, both subject officers, and several police witness officers. On April 23, 2020, the YRP OCEB received information that the Complainant was in possession of a large quantity of controlled substances and a possible firearm. An operation was devised whereby the members of an OCEB team, led by SO #1 and consisting of YRP and OPP officers, would covertly surveil the Complainant to a location where the team had reason to believe a significant drug transaction would happen.

Working in plainclothes and in unmarked vehicles, the seven-member team picked up the Complainant traveling in a Toyota Corolla from a residence in Hamilton. He was in the company of a male, driving the vehicle, and a female, seated in the front passenger seat. The Complainant was positioned in the rear passenger side seat. The convoy of vehicles made their way into Markham where the Toyota came to a stop next to another vehicle parked on Worthing Avenue. The Complainant exited the Toyota, entered the other vehicle and returned to the Toyota with a shopping bag in hand.

Believing that the Complainant had just been involved in an illegal drug transaction, SO #1 instructed his team members to arrest the vehicle’s occupants when the opportunity presented itself. Specifically, it was agreed that the officers, using their vehicles, would surround the Toyota when it next came to a stop at a red light and order the persons inside to surrender themselves at gunpoint.

The team followed the Toyota west on Worthing Avenue, south on Brimley Road and then west again on Steeles Avenue East. Arriving at a red light on Kennedy Road, at about 8:40 p.m., the OCEB team members used their vehicles to box-in the stationary Toyota. The driver and front seat passenger were removed from the vehicle and arrested without incident. As for the circumstances in which the Complainant came to be arrested, the evidence is contested.

Some evidence suggests that the Complainant, realizing that the individuals surrounding the Toyota were police officers, exited the backseat with his hands in the air. The Complainant then followed police commands to lie down on the ground with his hands behind his back. Despite this cooperation, an officer struck the back of the Complainant’s head four or five times causing his face to hit the roadway and resulting in a broken nose and loss of consciousness. The Complainant came to some five to ten minutes later, at which time he was seated on the north curb of the roadway with his hands handcuffed behind his back.

The officers tell a different story. According to the version of events proffered by SO #1 and SO #2 and WO #2, who had the most involvement in the Complainant’s arrest, while the Complainant did exit the Toyota of his own volition, he did not comply with demands that he get to the ground. Instead, the Complainant slowly walked toward the front of the Toyota, causing the officers to fear that he was contemplating an attempted escape. SO #2 and SO #1 grabbed the Complainant from behind and forcibly took him to the ground. Thereafter, the Complainant refused to release his arms and the officers, primarily SO #1, wrestled with him to control and then handcuff his arms behind the Complainant’s back. The officers acknowledge that the Complainant likely sustained his injury when his face struck the ground during the takedown but deny that the Complainant was struck or lost consciousness at any time.

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.

Analysis and Director's Decision

The Complainant suffered a broken nose in the course of his arrest in Markham on April 23, 2020. SO #2 of the OPP and SO #1 of the YRP, working together with the YRP OCEB, were the primary arresting officers and identified as the subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s arrest and injury.

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. Based on the information in their possession and what they had observed of the Complainant’s behaviour in the moments before the takedown, I am satisfied that the OCEB team was proceeding to lawfully arrest the Complainant for drug offences. The issue turns to the propriety of the force used by the officers and, in particular, SO #1 and SO #2.

Evidence exists that, if accepted as revealing the true course of events, suggests the Complainant was the victim of an unlawful assault. However, in the face of the officers’ countervailing evidence, I am not satisfied that this incriminating evidence is sufficiently cogent to warrant criminal charges. For example, this incriminating evidence does not deal in any way with discreditable conduct – namely, what on the weight of more credible evidence appears to have been a drug transaction in the time just before the takedown that the evidence should be expected to reflect in some way. There are other weaknesses associated with the incriminating evidence.

With respect to the force described by the officers – principally, a forceful takedown of the Complainant by SO #2 and SO #1 – I am unable to reasonably conclude that it crossed the line into excessive and, therefore, unlawful force. The officers had good cause to believe that the Complainant could be in possession of a firearm. The Complainant was flagged for violence and potential firearm possession on police records and was being investigated for a significant drug transaction. In the circumstances, when the Complainant did not voluntarily drop to the ground as directed and, instead, looked as if he was thinking about an escape, the officers were entitled to take immediate and resolute action to force him down. In that position, the officers would be better positioned to manage any potential weapon on the Complainant’s person. The fact that the Complainant did not have a firearm (the Complainant did have a folding knife) does not detract from what in my view was a reasonable apprehension on the part of the officers.

In the final analysis, while it is unfortunate that the Complainant suffered a broken nose in the course of his arrest, there are no reasonable grounds in the evidence to believe that SO #2 and SO #1 acted unlawfully in seeking to arrest the Complainant and in using the force they did to do so. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: July 14, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit