SIU Director’s Report - Case # 20-OCI-299
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Contents:
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 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.
- 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 injuries a 57-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On November 7, 2020, at 11:29 a.m., the Peel Regional Police (PRP) notified the SIU of the Complainant’s injury.PRP reported that on November 6, 2020, at approximately 11:54 p.m., PRP officers responded to a domestic disturbance call at an apartment building in Mississauga.
A male fled the apartment via the balcony and was jumping from balcony to balcony. He returned to the balcony from which he came, where tactical police officers were waiting. A Conducted Energy Weapon (CEW) was deployed and the man was apprehended.
The Emergency Medical Services (EMS) responded and removed the CEW prongs.
The man, the Complainant, was transported to the police station. While at the station, the Complainant complained of abdominal pain. He was taken to the Credit Valley Hospital (CVH) and examined by a doctor.
The Complainant was diagnosed with multiple fractured ribs and a collapsed lung. He was at the CVH at the time of notification and not capable of being interviewed.
PRP advised that the scene had been released after the incident, as the injuries had not been diagnosed.
The Team
Number of SIU Investigators assigned: 4 Number of SIU Forensic Investigators assigned: 1
The SIU Forensic Investigator completed the scene examination, took photographs, and downloaded and analyzed the CEW data.
Complainant:
57-year-old male, interviewed and medical records obtainedCivilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 I nterviewed
Witness Officers (WO)
WO #1 Interviewed, notes obtained and reviewedWO #2 Interviewed, notes obtained and reviewed
WO #3 Interviewed, notes obtained and reviewed
WO #4 Iterviewed, no notebook entries completed
WO #5 Interviewed, notes obtained and reviewed
WO #6 Interviewed, notes obtained and reviewed
Subject Officer (SO)
SO Declined interview and to provide notes, as is the subject officer’s legal rightEvidence
The Scene
The scene was the balcony of CW #1’s fourth floor apartment. As SIU was not able to gain access to CW #1’s apartment, measurements were taken from a comparable neighbouring balcony. The balcony length was 2.92 metres, width 1.94 metres, and wall height 1.05 metres. Scene Diagram
The diagram below is for reference purposes only.
Physical Evidence
Summary of Booking Video
November 7, 2020
12:24:25 a.m. – 12:31:21 a.m. The Complainant is transported to PRP 11 Division. The police cruiser stops in the sally port. The Complainant exits the police cruiser and walks into the booking hall. The Complainant appears to be favouring his left side.
12:31:52 a.m. – 12:36:40 a.m. The Complainant sits on a bench in the booking hall. He appears to have urinated on himself. The Complainant appears to be complaining of his left side. A police officer lifts the Complainant’s shirt and checks his side. The Complainant sits back down on the bench and is holding his left side.
Starting at about 12:40:21 a.m. – The Complainant is escorted to the cell. He is holding his left side. The Complainant strips his clothes off in his cell.
4:44:21 a.m. – 4:44:36 a.m. – The cell door opens, and the Complainant walks out into the booking hall. The Complainant sits on the bench in the booking hall.
4:46:34 a.m. – 4:52:25 a.m. – Paramedics arrive with a stretcher in the booking hall. The Complainant leaves the booking hall on a stretcher with paramedics.
Summary of the CEW Data
On November 6, 2020, at 11:55:31 p.m., [1] according to line 1135 of the downloaded data, the CEW of the SO was armed.
On line 1136 and 1137, at 11:56:02 p.m., cartridge 1 was deployed and active for a period of 10 seconds.
There followed three further discharges, in arc mode, of 8, 3 and 4 seconds, respectively.
On line 1140, at 11:56:24 p.m., the CEW was placed in safe mode. [2]
On November 6, 2020, at 11:52:43 p.m., according line 4881 of the downloaded data, the CEW of WO #1 was armed.
On line 4882, at 11:55:02 p.m., cartridge 1 was deployed and active for a period of 5 seconds.
Shortly thereafter, cartridge 2 was deployed and active for a period of 5 seconds.
On line 4884, at 11:55:15 p.m., the CEW was placed in safe mode. [3]
Video/Audio/Photographic Evidence
The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate video from the following source:- Closed-circuit Television (CCTV) from CW #1’s Apartment Building.
Summary of the CCTV from CW #1’s Apartment Building
At 11:44 p.m., four tactical police officers, WO #5, WO #2, WO #6 and the SO, enter elevator one and take it up to the fourth floor.
At 11:57 p.m., the Complainant enters the elevator with his hands handcuffed behind his back and escorted by police officers. They take the elevator down to the main lobby.
Police Communications Recordings
Summary of 911 Call
911: Do you need police, fire or ambulance?
CW #4: Police.
911: Okay, what’s the address of your emergency?
CW #4: This is the situation, okay, I tried to call before.
911: I need the location before I want to get into that, because I want to know where you are before I can send you help.
CW #4: No, no, I don’t need help right now, it’s my girlfriend that needs help, my friend needs help.
911: Say that again.
CW #4: One of my friends needs help right now.
911: OK, with what.
CW #4: Her ex-boyfriend came through the door right now.
911: Say that one more time, one of your friend’s ex-boyfriends came where.
CW #4: Came to the door right now.
911: Where is the emergency?
CW #4: [Provides intersection location], it’s an apartment building, the guy came in and started smacking her around.
911: That makes more sense, do you know your friend’s phone?
CW #4: Yep, I do.
911: Okay, what is it?
CW #4: [Provides phone number].
911: What’s your friends name?
CW #4: CW #1, yeah, her ex just came in.
911: Okay, I’m going to get a call started, give me a second here. Does she live in a house or apartment?
CW #4: Apartment?
911: Do you know the apartment?
CW #4: I think [provides an incomplete number].
911: Did you get a phone call or a text?
CW #4: I was talking to her on the phone, he just came through the door, he’s not supposed to be there.
911: What’s the boyfriend’s name, do you know?
CW #4: [Provides the Complainant’s first name].
911: I have the call started, I have more questions for you, okay?
CW #4: Okay.
911: Do you know if she got injured, did it get physical?
CW #4: I know last time, three days ago.
911: I’m talking tonight.
CW #4: No, I haven’t seen her yet. A couple of days ago he kicked her head.
911: Okay, do you know if he has any weapons on him today?
CW #4: I have no idea.
911: Is he known to carry weapons?
CW #4: I don’t know. I know she’s got a restraining order against him.
911: I’ve got the address.
CW #4: It’s by the Longo’s, he’s beaten her up a couple of times.
911: So, you were on the phone with her and heard him barge in and she’s like, Oh my God, he’s here, he’s here.
CW #4: Yeah, Yeah.
911: I want you to know, we are well on the way, I had the call put out.
CW #4: She has been beat up a couple of times by him, I’m going to try calling her.
911: Just stay on the phone with me, I don’t want you to call her because that might tip him off that someone has been notified, right.
CW #4: Okay.
911: We are well on the way, lights and sirens.
CW #4: Okay.
911: You definitely did the right call by calling 911 today.
CW #4: He beat her up the other day too, I’m on the other side of town.
911: Did you tell her you were going to contact the police for her?
CW #4: No, last time he kicked her in the face and broke her jaw and arm… Have you guys called her.
911: No, we are flying there lights and siren, do you know if she was alone?
CW #4: Yeah, she has health issues, medical issues, is really fragile. This guy is huge.
911: Just to confirm, you said it’s [Complainant’s first name], right?
CW #4: Yeah.
911: Can I get your name for the report?
CW #4: [Provides name and phone number].
911: Two officers just pulling up now at the address.
CW #4: Okay.
911: I’m going to disconnect with you.
CW #4: Okay, fine.
911: I’ll put in your request to follow up, okay?
CW #4: Thanks.
Summary of the Police Communications
There were 47 separate audio tracks:
Track 1: An officer is dispatched to CW #1’s address for a domestic. The complainant is not present, there was a call from a woman saying her boyfriend was present assaulting her, high risk domestic violence for CW #1, who exhibits aggressor behaviour to police, there’s cockroaches in the unit. The party is charged with assault and breach of probation times three.
Track 2: The complainant is not sure if there are any injuries or weapons, it’s unsure if the man has access to weapons. The complainant is advising he is violent and does have conditions not to attend. The female party CW #1 is charged with Mischief. She does have a record for violence. CW #1 is flagged with undiagnosed mental health issues and alcohol abuse, and is noted as hating police.
Track 3: A second officer is sent as a backup, heading over from the division. Dispatcher asks for a sergeant to attend. A sergeant advises he will monitor the call and asks for the details again.
Track 4: The second officer asks the dispatcher for confirmation of identity of person who assaulted CW #1. Dispatcher replies it’s a man, “[provides name of the Complainant].”
Track 7: We are speaking to CW #1 who says he is not in the residence. She is refusing to open the door. We have dealt with her multiple times. The Complainant is trying to scale the balcony on that domestic. According to the neighbour he is back in the unit with CW #1 but was attempting to climb over to their unit and they asked him to go back. Can we get a unit there to keep eyes on that balcony please?
Track 8: An officer reports that the parties are still refusing to open the door. And given the fact he was trying to scale the balcony do we have any TAC units that could give us a hand with this please. I will search for them.
Track 9: The officer asks can I just confirm the Complainant is breaching.
Track 10: That’s 10-4 he has conditions not to be there or have contact with CW #1. 10-4 she is still refusing to open the door.
Track 13: An officer states, I’m just in neighbour’s unit, it looks like the balcony faces south towards the visitor parking lot at the back.
Track 14: Both the neighbours in the unit next door do have a camera that faces the direction of CW #1’s balcony; however, the quality is not going to capture him coming over. The residents did see him try to scale the balcony.
Track 15: TAC Sergeant Backup. 10-4 If you could make your way to a domestic at CW #1’s address regarding a male party with conditions not to attend this location, was seen scaling the building.
Track 17: We are going to need a couple of units here so you’re going to have to steal from [another number] for it, we need all 4 of the TAC units, officers that are working and I’ll fill in the TAC Sgt when he gets here. TAC Sgt, can you get my medics please.
Track 20: I have eyes on what I believe is the balcony, male party has come out he is just having a cigarette and I just lost sight of him.
Track 23: The woman is still refusing to open the door.
Track 24: I can hear raised voices and banging in CW #1’s apartment.
Track 25: The porch light on CW #1’s apartment went out.
Track 26: The woman just came out on the porch and went back in.
Track 27: There is lots more yelling in the unit.
Track 28: We’ve got a female screaming in the apartment now.
Track 29: The female is yelling in the apartment, still refusing to open the door and I can
hear slapping coming from inside the unit.
Track 30: I’m 10-7 with this call with TAC.
Track 32: I can still hear the woman screaming and yelling.
Track 33: Door is being breached by TAC-10-4.
Track 34: Can we confirm if the Sgt can see this male on the balcony. [Specified officer] had the eye now.
I’m in the balcony next, I can’t see anything as of yet.
He was on the balcony and then moved closer to the unit, I have no visual.
Track 35: The man is in custody, we need a medic for prong removal.
Track 38: Can you advise if this is prong removal or dog bite for ambulance. Only prongs.
Track 39: Can you show me with a male on board bringing him to 11 Division.
Track 44: Can you show me at 11 Division with a man in custody.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:- Communication recordings;
- Notes, WO #1;
- Notes, WO #6;
- Notes, WO #2;
- Notes, WO #3;
- Notes, WO #4;
- Notes, WO #5;
- PRP Event Chronology;
- PRP Occurrence Details;
- PRP Policy-Criminal Investigations;
- PRP Policy-Incident Response;
- PRP Prisoner Details Report;
- PRP Training Record-WO #1;
- PRP Training Record-WO #2; and
- PRP Training Record-the SO.
Materials obtained from Other Sources
The SIU obtained and reviewed the following records from non-police sources:- Ambulance Call Reports (x2) - Peel EMS;
- CTV footage- CW #1’s apartment building;
- Floor plans from CW #1’s apartment building; and
- Medical record - Trillium Health Partners.
Incident Narrative
The following scenario emerges on the weight of the reliable evidence collected by the SIU, which included interviews with the Complainant, a number of civilians who witnessed the incident in parts, and several witness officers, including WO #2 and WO #1, participants in the Complainant’s arrest.
In the evening of November 6, 2020, the SO was a member of a PRP Tactical and Rescue Unit (TRU) team that were dispatched to CW #1’s apartment to assist uniform officers in gaining entry to the unit. Having breached the door to the residence, the officers located the Complainant hiding on the balcony. The Complainant resisted his arrest and was met with several CEW discharges and a knee strike by the SO, following which he was secured in handcuffs and taken into custody.
The Complainant was at the time bound by conditions that he have no contact with CW #1, the tenant of the apartment and present at the time. The Complainant had earlier arrived at the apartment and the two started to argue, in the course of which it seems the Complainant assaulted CW #1. That is the way it appeared to CW #4, at one point on the phone with CW #1. Concerned for CW #1’s safety, CW #4 contacted police at about 10:30 p.m.
Two of the officers dispatched were among the initial officers to arrive at the scene. They knocked on the door, announced their status as police, explained why they were there, and repeatedly asked that CW #1 let them in so they could check on her well-being. CW #1 steadfastly refused and denied that the Complainant was there or that anything was wrong. Convinced that they could not simply leave, and unable to reach the building superintendent for a master key, a TRU team was requested by the officers to force entry.
At about 11:50 p.m., the TRU team forced open the door of CW #1’s apartment and entered the unit. CW #1 was escorted outside and placed in the custody of uniform police officers in the hallway. She continued to proclaim that the Complainant was not present in her home. Having searched the interior with negative results, WO #2 entered onto the balcony and located the Complainant; he was hiding in one of the corners behind a piece of furniture.
The officers ordered the Complainant to show his hands. The Complainant failed to do so and the SO fired his CEW. At about this time, WO #1, positioned on the adjacent balcony of a neighbour’s apartment, discharged his CEW twice at the Complainant. The second deployment caused the Complainant to lock-up, prompting the SO and WO #2 to move in to take physical hold of the Complainant.
The Complainant, his body now prone of the balcony floor and arms tucked underneath his torso, refused to release his arms to be handcuffed. The SO, positioned on the Complainant’s left side, delivered a knee strike to the torso, after which he was able to take control of the Complainant’s arms and handcuff them behind his body.
Following his arrest, the Complainant was transferred into the custody of the uniform officers and eventually taken to the station, where he was lodged in a cell. He began to complain of pain to his ribs and was taken to hospital, where he was diagnosed with several left-sided rib fractures and a partial pneumothorax.
Relevant Legislation
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,
Analysis and Director's Decision
On November 6, 2020, the Complainant sustained serious injuries in the course of his arrest by PRP officers. The SO was one of 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 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 authorized or required to do by law. The Complainant’s arrest was in order. He was at the time prohibited by legal edict from associating with CW #1, a condition he had clearly breached. There were also grounds, based on the 911 call and the sounds of a physical altercation coming from within the apartment, to believe that the Complainant was inside the unit and subject to arrest for assault. Finally, on the authority of the Supreme Court of Canada decision in R. v. Godoy, [1999] 1 SCR 311, the officers were within their rights in forcing entry into the apartment to ensure CW #1’s well-being. The issue turns to the propriety of the force used by the SO in arresting the Complainant.
In my view, there is insufficient evidence to reasonably conclude that anything more than reasonably necessary force was involved in the Complainant’s arrest. As the SO and WO #2 entered onto the fourth floor balcony, they found themselves in the dark and a confined space at some height from the ground. They had cause to be concerned for their safety; the Complainant had given every indication of seeking to escape police apprehension. Indeed, moments earlier, they had learned that the Complainant had even tried to scale balconies over to a neighbouring apartment but had been rebuffed by the tenants. In the circumstances, there was also reason to fear for the Complainant’s safety should he decide to resist his arrest. On this record, confronted by an individual refusing to show his hands when directed by the police, it would appear that the SO’s resort to his CEW was a reasonable option as it would allow the officers to quickly immobilize the Complainant at a distance. For the same reasons, I am unable to find fault with WO #1’s decision to fire his CEW twice at the Complainant when the SO’s deployment had been ineffective. The SO discharged his CEW three additional times, apparently in drive-stun mode, but it remains unclear on the evidence whether these deployments had an impact on the Complainant. What is clear on the reliable evidence is that the Complainant continued to resist as the SO engaged him physically, refusing to release his hands from underneath his torso, and was only subdued and handcuffed following a knee to the left side by the officer. No further force was used. Considered in context, the knee strike and further CEW discharges would appear a justifiable use of force by an officer reasonably concerned to take the Complainant into custody as soon as possible to avoid any of the perils associated with a protracted struggle on a fourth-floor balcony.
In the final analysis, while I accept that the Complainant’s injuries were inflicted by the SO, the result of the knee strike to his side, I am also of the view that there are no reasonable grounds to believe that the force used by the officer was disproportionate to the exigencies at hand. Accordingly, there is no basis to proceed with criminal charges against the SO.
Date: March 22, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The referenced times are derived from the weapon’s internal timeclock, and are not necessarily synchronized with other weapons and actual time. [Back to text]
- 2) There was a time difference of 2 minutes and 24 seconds between the CEW and the Forensic Investigator’s laptop computer during synchronization. [Back to text]
- 3) There was a time difference of 1 minute and 26 seconds between the CEW and the Forensic Investigator’s laptop computer during synchronization. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.