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SIU Director’s Report - Case # 20-PCI-134

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 injury that a 30-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On June 11, 2020, the Ontario Provincial Police (OPP) reported an injury to the Complainant. The OPP advised that the Complainant was arrested for impaired driving on June 2, 2020, at 9:02 p.m. The arrest took place at the ONroute on Highway 400 northbound at King City Plaza. The Complainant resisted arrest and was grounded, which caused him a bloody nose. The Complainant complained about a sore foot that was swollen. The Complainant was taken to the Mackenzie Health Centre Richmond Hill (MHCRH), where he was treated by a physician. Medical staff and the Complainant refused to provide a diagnosis to the OPP.

On June 10, 2020, at 7:45 p.m., the Complainant contacted the OPP and during the conversation indicated that he had suffered a spinal injury that required surgery.

The Team

Number of SIU Investigators assigned: 3

Complainant:

30-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

Witness Officers

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


Subject Officers

SO Interviewed, and notes received and reviewed.


Evidence

The Scene

The incident occurred in the parking lot of the ONroute Service Centre on Highway 400 northbound, King City.

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

The start time of the recording was on June 2, 2020, 9:12:13 p.m. At 9:12:35 p.m., the SO requested the registration information on the Complainant’s licence plate. The dispatcher advised the SO of the registration information for the licence plate, but no driver’s licence information was available.

At 1:08 minutes into the recording, the SO was heard to say, “Don’t worry! Don’t do it!” The communications centre asked the SO if everything was okay. The SO asked if there was anyone close by to assist. At 1:14 minutes into the recording, a police unit advised that they were southbound at Mapleview Avenue. A police unit asked for the SO’s location and the communications centre advised that the SO’s location was the ONroute Service Centre on Highway 400 northbound. Other police units reported their locations and that they were en route. At 1:44 minutes into the recording, the SO told the Complainant to put his hands behind his back and that he was under arrest. The communications centre asked for the SO’s location and units responded. At 1:59 minutes into the recording, the SO told the communications centre that everything was okay, and he requested an ambulance. The Complainant was in custody and in his (the officer’s) vehicle, and there was no emergency but that he needed the ambulance for the Complainant. The communications centre advised that the ambulance was on its way, and a police unit advised that they were going to continue to attend at the SO’s location.

At 2:16 minutes into the recording, the SO was heard to ask the Complainant, “Your right arm is fine? No, it’s not fine? Okay, stay inside the car.” The communications centre advised the SO which units were responding to assist him, and told them to slow down because there was no huge emergency. The SO advised everything was still okay at his location, and the Complainant could be heard in the background.

At 3:23 minutes into the recording, a police unit advised that everything was okay. The Complainant was still extremely upset, and the injuries were minor with just a small cut on his nose. Communications acknowledged. At 3:43 minutes into the recording, communications to a police unit advised that the YRP had just received a call from the Complainant’s wife; she was on the phone and on her way to the ONroute. One police unit was requested to assist with a search of the vehicle and to take statements from witnesses. At 5:16 minutes into the recording, a request was made to YRP to send an Intoxilyzer technician to MHCRH and communications acknowledged. At 6:12 minutes into the recording, a police unit advised communications that the Complainant’s wife had arrived at the ONroute and was going to the hospital. At 6:24 minutes into the recording, a unit advised he was returning to the OPP Aurora Detachment to take a statement from the reporter in the OPP occurrence.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP and YRP:
  • Alcohol Influence Report-the Complainant;
  • Arrest Booking Report-the Complainant;
  • Arrest Report-the Complainant;
  • Breath Test Record Receipts-the Complainant;
  • Communications Audio;
  • Event Details;
  • Notes-all WOs;
  • Notes-the SO;
  • OPP Photo brief of the Complainant’s Injuries;
  • Witness Statement-CW #1;
  • Witness Statement-CW #2; and
  • Witness Statement-CW #3.

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 from the MHCRH and Royal Victoria Regional Health Centre (RVRHC).

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, the SO, and a couple of civilian eyewitnesses who observed portions of the arrest in question. At about 9:00 p.m. on June 2, 2020, the SO was stationary in his police cruiser at the ONroute Service Centre along Highway 400 north of Major Mackenzie Drive when he was approached by CW #1. CW #1 identified a white pickup truck in the parking lot. The truck, according to CW #1, had been traveling erratically.

The SO decided to investigate the driver of the truck, whom he had been led to believe was in the service centre, for driving while impaired. He repositioned his cruiser to get a better look at the truck and waited for the driver to return. When after 20 minutes or so the driver had not yet returned, the SO approached the vehicle to have a look inside. The SO saw a male – the Complainant – sleeping in the driver’s seat, which was in a reclined position. The smell of alcohol was emanating from the Complainant’s breath.

Unable to verbally rouse the Complainant, the SO returned to his cruiser and maneuvered it directly behind the truck. The SO activated his emergency lights for a period in the hopes of waking the Complainant before again returning to the driver’s side door. Following some further prodding by the SO, the Complainant woke. What followed next is the subject of controversy in the evidence.

According to an incriminatory account, the SO immediately accused the Complainant of having a gun, reached inside the truck for the vehicle’s keys, and said that he was fighting a police officer. While the Complainant was on the phone, the SO punched him in the throat. Thereafter, according to the incriminatory account, the Complainant was subjected to a protracted beating at the hands of the SO.

The SO tells quite a different story. Upon being woken, the Complainant was immediately belligerent. He told the SO to “fuck off” and accused the SO of harassing him because he – the Complainant - was black and the SO was white. The SO explained that a citizen had complained about his driving and that he was concerned the Complainant might be impaired. The Complainant objected and argued that he was not driving the vehicle before attempting to fully close the driver’s side window, inadvertently unlocking the door in the process. The SO seized the opportunity to open it despite the Complainant’s efforts to keep it closed.

Following a further period in which the SO attempted to prevail on the Complainant to exit the vehicle, the Complainant was able to place the truck in reverse gear. The SO reached in with his left arm and disengaged the ignition before the Complainant grabbed his arm and brought it toward his mouth. Fearful that the Complainant was about to bite him, the SO pulled his arm back out of the vehicle and advised the Complainant that he was under arrest for impaired driving.

At the SO’s direction, says the SO, the Complainant stepped out of the truck but refused to cooperate by placing his arms behind his back. Instead, the Complainant pushed the SO as the SO held his left arm, and then placed his right hand inside a back pocket. The SO proceeded to ground the Complainant face down on the ground whereupon the Complainant eventually complied by withdrawing his right hand from his pocket and was handcuffed. At no time were strikes of any description delivered.

Following his arrest, an ambulance was summoned to the scene when the Complainant complained of back pain. Seized from the pickup truck was a cup containing liquid that smelled of alcohol.

The Complainant was transported to MHCRH where medical imaging failed to turn up any fractures. A breath test administered by police at the hospital about four hours after the Complainant’s apprehension found alcohol in his blood at a concentration about ten percent shy of the legal limit.

The Complainant subsequently attended at the RVRHC where further medical imaging diagnosed a slightly herniated disk.

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

In the evening of June 2, 2020, the Complainant was arrested by the SO of the OPP. He subsequently attended hospital and was diagnosed with a herniated disk. The SO was 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.

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 required or authorized to do by law. In light of the information the SO had been provided and his personal observations of the Complainant at the scene, I accept that there were grounds to arrest the Complainant for impaired operation of a motor vehicle. The issue turns to the propriety of the force used to take the Complainant into custody.

On the incriminatory version of events, the Complainant was needlessly harassed by the SO as he sat in his vehicle because he was a black man, and was thereafter beaten by the SO without provocation. Certainly, if true, the incriminatory evidence would support an assault-based charge against the SO. However, there are too many frailties associated with the incriminatory account to justify it being put to the test before a trier-of-fact.

At times in the incriminatory account of what occurred, evidence was provided that the Complainant’s partner was present in the service centre at the time of the events in question. However, this was quite clearly not the case; in fact, she was at home and speaking with the Complainant on the phone as the confrontation between him and the SO developed. Why the incriminatory account was at times mistaken on this aspect of the evidence is unclear, as elsewhere the account accurately portrayed the Complainant as being without his partner during the incident. Be that as it may, the discrepancy suggests the possibility of a witness unable or unwilling to be entirely truthful.

I am also unable to discount the fact that the source of the incriminatory account had a significant amount of alcohol in his system at the time of the incident, which would have detracted from his ability to accurately perceive or recall the events in question.

There were also unexplained holes in the incriminatory account. For example, it was unable to recount with any detail how precisely the Complainant was beaten by the SO aside from a single punch which the SO allegedly delivered to his throat early in the encounter. Most significantly, the incriminatory account failed to mention, at a time when its source was reportedly awake and lucid, that the Complainant’s truck had been temporarily placed in reverse gear. That was not only the evidence of the SO, it was the evidence of an identified civilian witness who happened upon the confrontation and observed portions of it.

Proceeding therefore on the basis of the SO’s evidence, which stands largely unimpeached, I am unable to reasonably conclude that the SO used excessive force or that his behaviour was motivated by racial animus towards the Complainant. More specifically, having tried and failed to pacify the Complainant’s belligerence, and then confronted by the Complainant pushing him outside the truck and refusing to place both his hands behind his back to be handcuffed, the SO’s takedown of the Complainant seems a reasonable tactic to have adopted in the circumstances. With the Complainant on the ground, the SO would be in a better position to manage any further physical aggression by the Complainant. The grounding, according to the SO, was not overly forceful. And the handcuffing that followed was largely uneventful.

In the final analysis, as I am without sufficient evidence to reasonably conclude that the SO conducted himself other than lawfully in his dealings with the Complainant, there are no grounds to proceed with charges in this case, and the file is closed.


Date: October 13, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit