Director's Report Details

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.

Freedom of Information and Protection of 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.

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 injuries a 24-year-old man (the “Complainant”) suffered.

Notification of the SIU

On November 24, 2020, at 7:35 p.m., the PRP contacted the SIU and reported that on November 22, 2020, at about 3:04 a.m., the Complainant was operating a vehicle in the area of Van Kirk Drive and Sandalwood Parkway West, Brampton, when he was stopped by a PRP police officer. The Complainant was given a roadside breath demand which he apparently refused. He was processed at the scene and released on an appearance notice.

On November 24, 2020, the Complainant and his mother attended the front desk at 22 Division and reported that he had received two fractured ribs during the interaction with the police officer. The Complainant had been diagnosed at Brampton Civic Hospital.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0

Complainant:

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



Civilian Witness (CW)
CW Not interviewed (witness declined)

Witness Officers (WO)

WO #1 Interviewed
WO #2 Interviewed

Subject Officers (SO)

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Interviewed, and notes received and reviewed

The Scene

The scene was the roadside on Van Kirk Drive, south of Sandalwood Parkway West, Brampton.

Police Communications Recordings

Communication Recordings

There were no time stamps assigned to the radio transmissions relevant to this call, nor were the transmissions significant.

WO #1 advised he had a vehicle stopped at Van Kirk Drive, south of Sandalwood Parkway West, before he asked if there was a police officer with an approved screening device in the area who could assist him. The dispatch centre assigned a police officer to attend for that purpose but SO #1 broadcast he was closer and would attend. SO #2 and WO #2 broadcast their arrival to the area, and WO #1 broadcast he had someone under arrest for refusing to provide a breath sample and requested a contract tow-truck.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:

• Criminal Investigations Policy (Arrest);
• Incident Response Policy (Use of Force);
• Notes – WO #1;
• Notes – SO #2;
• Notes – WO #2;
• Person Details – the Complainant;
• Computer-assisted Dispatch Incident History;
• Occurrence Report;
• Communication Recordings;
• Training Summary – SO #1; and
• Training Summary – SO #2.

Materials obtained from Other Sources

The SIU obtained and reviewed the following records from non-police sources:

• Medical Records – the Complainant.

The following scenario emerges on the weight of the evidence collected by the SIU, which included interviews with the Complainant, SO #2 and two additional officers that took part in the Complainant ‘s arrest. As was his legal right, SO #1 declined to interview with the SIU or authorize the release of his notes.

At about 3:00 a.m. of November 22, 2020, the Complainant was pulled over in his vehicle in the area of Van Kirk Drive and Sandalwood Parkway, Brampton. Suspecting the Complainant was impaired, WO #1 had activated his emergency lights to signal the Complainant to stop. The officer exited his cruiser, approached the driver’s door of the Complainant’s vehicle and, after a period reviewing the Complainant’s licence and registration back in his cruiser, issued a formal roadside screening device demand through the open driver’s window.

The Complainant asked why he had been stopped and objected when asked to provide a breath sample. He told WO #1 that he was aware of his rights and did not have to blow into the device.

The Complainant was forcibly removed from his vehicle. An altercation ensued on the ground between him and a number of officers in the course of which the Complainant was struck multiple times in the torso.

The Complainant was handcuffed, lifted to his feet and placed in the backseat of an officer’s vehicle. He was subsequently released at the scene into the custody of his father.

Two days after the incident, the Complainant attended hospital with pain to the left side. He was diagnosed with two left-sided rib fractures.

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

(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,

In the early morning hours of November 22, 2020, the Complainant was arrested by PRP officers for failing to provide a breath sample, and released at the scene. The Complainant subsequently attended hospital and was diagnosed with left-sided rib fractures. SO #1 and SO #2, present at the time of the Complainant’s arrest, were identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that SO #1 and SO #2 committed a criminal offence in connection with the Complainant’s arrest and injuries.

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. I am unable to reasonably conclude on the record that WO #1 was without a lawful basis when he stopped the Complainant and, thereafter, directed a breath sample and arrested the Complainant when he failed to provide one. WO #1 indicates that he had observed the Complainant cross over the centre line of Sandalwood Parkway while making a left turn onto southbound Van Kirk Drive, raising suspicion in the officer’s mind that the Complainant was driving while impaired. He says further that he smelled alcohol coming from the vehicle and the Complainant’s breath. On the totality of the evidence, I am not satisfied on reasonable grounds that the vehicle stop, breath sample demand and arrest were out of order.

As to what happened after the stop, there is conflict in the evidence. In their accounts of what transpired, the officers say that the Complainant resisted the officers’ lawful directions and was met with only reasonable force as they attempted to effect their purpose. The Complainant was, in fact, forcibly removed from the vehicle and taken to the ground by WO #1, but this only happened when the Complainant repeatedly refused to exit his vehicle so that a breath test could be administered. Thereafter, according to the officers, the Complainant, after being assisted to his feet, was taken to the ground in a controlled fashion when he refused to give up his hands to be handcuffed after the decision had been made to take him into custody for refusing to provide a breath sample. While on the ground, the Complainant was kneed to the left side by an officer, namely, SO #2. However, the strikes, three in total, were delivered in an attempt to have the Complainant surrender his left arm, which he had tucked underneath him on the ground. Following the knee strikes, the officers were able to wrest control of the Complainant’s arms and secure them in handcuffs.

There is another body of evidence which, if true, would give rise to assault-based charges based on excessive use of force by the police. However, this evidence is marred by its contention that the Complainant had not been drinking prior to driving and being stopped by WO #1. That claim is undermined by the evidence of the officers, who smelled alcohol in the Complainant’s vehicle and on his breath. [1] There are other frailties associated with the Complainant’s evidence. In the result, it would be unwise and unsafe to rest charges on the Complainant’s evidence.

What remains of the evidence is not similarly compromised. It suggests that the Complainant physically resisted the officers’ lawful direction that he provide a breath sample and then their lawful attempts to arrest him for having failed to do so. With respect to SO #2’s knee strikes, these were delivered in deliberate fashion, one following the other only after it was clear that the Complainant had not released his left arm. No further force was used after the Complainant’s arms were controlled and placed in handcuffs. In the circumstances, I am satisfied that the force used by the officers was commensurate and proportional to the Complainant’s resistance.

In the result, while I accept that SO #2’s knee strikes were the likely cause of the Complainant’s rib fractures, I am not satisfied on reasonable grounds that either he or SO
 
#1 acted other than lawfully throughout the course of their engagement. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: May 3, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit