SIU Director’s Report - Case # 21-OCI-320
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into a serious injury sustained by a 55-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into a serious injury sustained by a 55-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 25, 2021, at 9:01 a.m., the York Regional Police (YRP) contacted the SIU and reported the following.On September 25, 2021, at approximately 1:12 a.m., the Ontario Provincial Police (OPP) received a call from a motorist about a suspected impaired driver in the area of Highway 404 and Steeles Avenue. The information was shared with the Toronto Police Service and the YRP. The registered owner of the vehicle lived at an address near Kennedy Road and Helen Avenue in Markham. YRP officers drove to that location and observed the suspect vehicle travel onto the driveway. They had a conversation with the driver and formed the opinion that he was impaired by alcohol. When they attempted to arrest the driver, the Complainant, he resisted. The Complainant was grounded, handcuffed, and taken to the police station for breath tests.
While in custody, the Complainant complained of chest pain and was taken to the Markham Stouffville Hospital (MSH). There, a doctor diagnosed a fractured rib.
The Complainant was released from hospital back to the custody of the YRP. The Complainant was subsequently released on a Promise to Appear by the YRP at 7:15 a.m.
The YRP advised that there was a language barrier and an interpreter would be required.
The Team
Date and time team dispatched: 09/25/2021 at 10:06 a.m.Date and time SIU responded: 09/25/2021 at 10:19 a.m.
Number of SIU Investigators assigned: 4
Affected Person (aka “Complainant”):
55-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 27, 2021.
Subject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right. The subject official was interviewed on October 23, 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Not interviewed, but notes received and reviewed.
The witness officials were interviewed between October 4, 2021, and October 14, 2021.
Evidence
The Scene
The incident occurred on the roadway in front of an address in the area of Kennedy Road and Helen Avenue, Markham. The arrest took place at the bottom of the paved driveway of the address.Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained audio, video, and photographic records of relevance, as set out below. Photographs
On September 25, 2021, the Complainant’s friend provided photographs taken at the MSH.Video Footage
On September 27, 2021, the Complainant’s friend provided investigators a USB containing video footage of the incident, recorded from two cameras located on the outside of the Complainant’s residence (no audio capacity). The positioning of the cameras did not allow for coverage of the entire front of the property. Camera One: A southeast view of the front of the property, as well as a view of the street at the end of the driveway
Between 12:39:00 a.m. and 12:39:09 a.m., a fully marked police SUV with its emergency lights not activated stopped in front of the address. All the emergency lights of the police vehicle were then activated. A police officer exited the police vehicle and walked westbound out of camera view.
Between 12:40:47 a.m. and 12:41:09 a.m., two figures [known to be the Complainant and the SO] entered camera view and stopped in front of the police vehicle, one held onto the other. The Complainant bent forward at the waist and the SO straightened the Complainant.
Between 12:41:10 a.m. and 12:41:29 a.m., the Complainant and the SO were standing when the SO attempted to move the Complainant forward by the arm, and he pulled back to a standing position.
Between 12:41:34 a.m. and 12:41:52 a.m., the SO attempted to move the Complainant forward by the arm, pulling him. The Complainant backed into the camera view; his hands were at his side.
At 12:42:35 a.m., the Complainant’s hands moved in front of him - the lights from the police car made it hard to see what he was doing.
Between 12:45:25 a.m. and 12:45:33 a.m., the Complainant fell to the ground, out of the view of the camera. The shadows of two figures were cast against the police vehicle - it appeared they were in a struggle with someone below them.
Between 12:45:38 a.m. and 12:45:52 a.m., a third shadow was cast against the police vehicle and the three struggled with someone below them.
Camera Two: A southeast view of the driveway pointing towards the street
Between 12:39:06 a.m. and 12:39:16 a.m., police emergency lights could be seen. The Complainant exited his vehicle parked in the driveway and walked around his vehicle out of the view of the camera.
At 12:40:07 a.m., two sets of feet enter the camera view from behind the Complainant’s vehicle.
At 12:45:38 a.m., a vehicle stopped in front of the driveway, the driver exited the vehicle, and their feet moved quickly in an easterly direction out of the camera view.
In-Car Camera System (ICCS) Footage
On October 6, 2021, the YRP provided the SIU with ICCS footage.WO #4’s ICCS Footage
At 1:23:57 a.m., the police vehicle’s emergency lights and sirens were activated.
At 1:24:54 a.m., the police cruiser entered the Highway 407 on-ramp with two police cruisers leading.
At 1:26:31 a.m., the police vehicle stopped in the westbound lane in front of the Complainant’s address. The SO and WO #1 were over the Complainant who was lying on his back with his knees bent. The SO and WO #1 were holding the Complainant on opposite sides.
Between 1:26:35 a.m. and 1:26:40 a.m., WO #4 hurried to them, rounding WO #1. They were crowded around the Complainant and appeared to be struggling with him.
Between 1:26:41 a.m. and 1:26:43 a.m., WO #6, carrying a firearm, arrived. The SO, WO #1 and WO #4 lifted the Complainant and attempted to force him forward onto his stomach. The Complainant resisted and tried to push backward against the police officers. WO #6 dropped his weapon on the ground and joined the other police officers in attempting to put the Complainant on his stomach. WO #5 arrived.
At 1:26:48 a.m., WO #6 kneed the Complainant with his right leg, and WO #5 stomped downward on the Complainant and kicked him twice in the head or shoulder area.
Between 1:26:51 a.m. and 1:27:04 a.m., WO #6 punched the Complainant once and someone yelled, “Stop resisting!” WO #5 punched the Complainant and someone yelled, “Stop resisting.”
At 1:27:18 a.m., WO #6 stood up and rounded the group while WO #5 punched the Complainant three times in the face. A police officer yelled, “Stop resisting, you’re under arrest!”
Between 1:27:37 a.m. and 1:27:50 a.m., WO #7 and WO #2 arrived.
Between 1:28:01 a.m. and 1:28:51 a.m., the group dispersed. The Complainant was on the ground with handcuffs on behind his back. The Complainant was helped to his feet by two police officers. He was escorted to the SO’s police vehicle and placed into the back seat. The Complainant was then removed from the SO’s police vehicle.
Interior Camera
Between 1:29:03 a.m. and 1:31:30 a.m., the door of WO #4’s police vehicle opened and the Complainant was placed into the back seat. WO #4 entered his police vehicle and asked the Complainant, “Do you speak English? What’s your language?” and the Complainant indicated the language he spoke.
At 1:35:46 a.m., the Complainant was asked by WO #1 and WO #2 what language he spoke.
Between 1:36:00 a.m. and 1:36:45 a.m., the Complainant spoke to WO #2. WO #2 told WO #4 the Complainant said, “Why cops beat me up?”
At 1:39:09 a.m., the Complainant was removed from WO #4’s police vehicle.
WO #2’s ICCS Footage
Between 1:39:06 a.m. and 1:39:43 a.m., the Complainant was placed into the back seat. WO #2 spoke to the Complainant.
At 1:48:40 a.m., WO #2 alerted a dispatcher of transport.
Between 1:54:48 a.m. and 1:55:20 a.m., WO #2 arrived at the police station. The Complainant was removed from WO #2’s police vehicle.
WO #7’s ICCS Footage
Between 1:22:47 a.m. and 1:27:30 a.m., WO #7 stopped in the eastbound lane of the street. There were four fully marked police SUVs with their emergency lights activated and sirens on.
Between 1:27:42 a.m. and 1:46:15 a.m., a police officer ran towards the other police vehicles. A white SUV entered the right frame with the intention of turning left from the side street onto the street, completed a three-point turn, and exited the right frame. A police officer walked to the police vehicle directly in front of the recording police vehicle, opened the driver’s door, and the police vehicle made a left.
At 1:48:13 a.m., WO #2 walked southbound across the street to the police vehicle directly in front of WO #7’s police vehicle.
At 1:49:03 a.m., WO #2 reversed onto the side street and turned left.
Audio Recordings
On September 28, 2021, the YRP provided the SIU with one recording of radio transmissions. There were no times listed. The following is a summary.“I’m at the residence.”
“I smell alcohol, is my second units nearby?”
A dispatcher said, “Nope they’re coming from two district, they’re coming from Steeles and 404 area.”
“He’s resisting.”
The dispatcher confirmed and made a broadcast requesting that police officers make their way to the officer’s location. An officer indicated he would make his way there.
The dispatcher said, “[An officer] is en route to the location as well. Address is [redacted].”
An officer reported the Complainant was under control and all police officers could slow down.
The dispatcher asked if the officer was okay.
It was reported the officers were okay.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the YRP:- Command Directive-Impaired Operations;
- Command Directive-Processing the Offender-Arrest;
- Command Directive-Use of Force;
- Detailed Call Summary;
- Communication recordings;
- Email Thread regarding Original Call from TPS;
- General Occurrence Hardcopy;
- Intoxilyzer Report-Certificate of a qualified technician;
- Notes of WOs;
- ICCS footage; and
- Training Records for the SO, WO #1, WO #2, and WO #3.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Medical Record-York Emergency Medical Services (Ambulance Call Report);
- Medical Record-MSH;
- Photographs of the Complainant’s injuries from a friend of the Complainant; and
- Video footage from the Complainant’s residence.
Incident Narrative
The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant and the SO, as well as the other officers involved in the Complainant’s arrest. The investigation was also assisted by a video recording from the ICCS of an officer’s cruiser that largely captured the incident.
In the early morning hours of September 25, 2021, the Complainant returned to his home in the area of Kennedy Road and Helen Avenue, Markham, operating his SUV. He was inebriated at the time. He parked his vehicle in the driveway and exited. Waiting for him was an officer.
The officer was the SO. He had been dispatched to the address following a call to police reporting that the driver of the SUV was possibly impaired. The SO had parked his cruiser facing east in front of the home, and exited the vehicle to confront the Complainant. He told the Complainant that he was under arrest for impaired driving, and escorted him down the driveway toward his cruiser. At the cruiser, the SO had secured his handcuffs to the Complainant’s right wrist when the Complainant pulled away and turned to face the officer. The SO radioed for assistance.
WO #1 heard the call for help and travelled to the address. On his arrival, the SO was holding the Complainant up against his police cruiser – the two were on their feet. In WO #1’s presence, the SO grounded the Complainant. The Complainant refused to release his arms from underneath his torso to be handcuffed.
WO #4, WO #5, and WO #6, in that order, were the next on scene, arriving within seconds of each other. The Complainant was on his back at this point still struggling with WO #1 and the SO. The officers flipped the Complainant into a prone position. There ensued a wrestling match on the ground punctuated by a series of strikes delivered by the officers. Specifically, the SO punched the Complainant twice to the lower right back; WO #4 struck the Complainant’s bicep multiple times; WO #6 delivered two to three knee strikes to the upper right side of the Complainant’s torso; and, WO #5 delivered a series of kicks and punches to the Complainant’s head and torso. The officers were eventually able to wrest control of the Complainant’s arms and handcuff him behind his back.
Following his arrest, the Complainant was taken from the scene to hospital in ambulance. He was diagnosed with non-displaced right ninth and tenth rib fractures.
In the early morning hours of September 25, 2021, the Complainant returned to his home in the area of Kennedy Road and Helen Avenue, Markham, operating his SUV. He was inebriated at the time. He parked his vehicle in the driveway and exited. Waiting for him was an officer.
The officer was the SO. He had been dispatched to the address following a call to police reporting that the driver of the SUV was possibly impaired. The SO had parked his cruiser facing east in front of the home, and exited the vehicle to confront the Complainant. He told the Complainant that he was under arrest for impaired driving, and escorted him down the driveway toward his cruiser. At the cruiser, the SO had secured his handcuffs to the Complainant’s right wrist when the Complainant pulled away and turned to face the officer. The SO radioed for assistance.
WO #1 heard the call for help and travelled to the address. On his arrival, the SO was holding the Complainant up against his police cruiser – the two were on their feet. In WO #1’s presence, the SO grounded the Complainant. The Complainant refused to release his arms from underneath his torso to be handcuffed.
WO #4, WO #5, and WO #6, in that order, were the next on scene, arriving within seconds of each other. The Complainant was on his back at this point still struggling with WO #1 and the SO. The officers flipped the Complainant into a prone position. There ensued a wrestling match on the ground punctuated by a series of strikes delivered by the officers. Specifically, the SO punched the Complainant twice to the lower right back; WO #4 struck the Complainant’s bicep multiple times; WO #6 delivered two to three knee strikes to the upper right side of the Complainant’s torso; and, WO #5 delivered a series of kicks and punches to the Complainant’s head and torso. The officers were eventually able to wrest control of the Complainant’s arms and handcuff him behind his back.
Following his arrest, the Complainant was taken from the scene to hospital in ambulance. He was diagnosed with non-displaced right ninth and tenth rib fractures.
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
On September 25, 2021, the Complainant suffered serious injuries while being arrested by YRP officers in Markham. Of those officers, the SO was identified as the subject official 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 required or authorized to do by law. Based on information conveyed to the SO on dispatch, and what the officer was able to discern of the Complainant’s condition when he first encountered him on the driveway, I am satisfied the officer had lawful grounds to arrest the Complainant for impaired operation of a motor vehicle.
I am further satisfied that the force used against the Complainant was legally justified. As the ICCS video makes clear, the Complainant had demonstrated a dogged determination to resist arrest, and had been able to hold at bay the combined efforts of the SO and WO #1. It was only with the arrival and intervention of three additional officers – WO #4, WO #5, and WO #6 – that the Complainant was restrained and taken into custody. The quantum of force used against the Complainant was significant – multiple punches, kicks, and knee strikes – but this was not simply five officers attempting to arrest a single man. One of the officers – WO #6 – had rushed to the scene with a C8 rifle in hand – a rifle which he dropped in the vicinity of the struggle, within arm’s reach of the Complainant, as he inserted himself physically into the melee. It was imperative that the Complainant be brought under control as soon as possible lest the firearm be inadvertently discharged in the fray. In the circumstances, I am unable to reasonably conclude that the force used by the officers was more than was reasonably necessary to overcome the Complainant’s resistance and mitigate the risk of a firearm discharge.
There is some evidence that the SO punched and kicked the Complainant for no reason as he offered no resistance in return. It would be unwise and unsafe, however, to lend much if any credence on this evidence because there is reason to question its reliability. The ICCS video, for example, showed the Complainant resisting arrest.
In the result, while I accept that the Complainant’s rib fractures were incurred in the physical altercation that marked his arrest, there are no reasonable grounds to believe that the SO or any of the involved officers comported themselves other than lawfully. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: January 21, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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. Based on information conveyed to the SO on dispatch, and what the officer was able to discern of the Complainant’s condition when he first encountered him on the driveway, I am satisfied the officer had lawful grounds to arrest the Complainant for impaired operation of a motor vehicle.
I am further satisfied that the force used against the Complainant was legally justified. As the ICCS video makes clear, the Complainant had demonstrated a dogged determination to resist arrest, and had been able to hold at bay the combined efforts of the SO and WO #1. It was only with the arrival and intervention of three additional officers – WO #4, WO #5, and WO #6 – that the Complainant was restrained and taken into custody. The quantum of force used against the Complainant was significant – multiple punches, kicks, and knee strikes – but this was not simply five officers attempting to arrest a single man. One of the officers – WO #6 – had rushed to the scene with a C8 rifle in hand – a rifle which he dropped in the vicinity of the struggle, within arm’s reach of the Complainant, as he inserted himself physically into the melee. It was imperative that the Complainant be brought under control as soon as possible lest the firearm be inadvertently discharged in the fray. In the circumstances, I am unable to reasonably conclude that the force used by the officers was more than was reasonably necessary to overcome the Complainant’s resistance and mitigate the risk of a firearm discharge.
There is some evidence that the SO punched and kicked the Complainant for no reason as he offered no resistance in return. It would be unwise and unsafe, however, to lend much if any credence on this evidence because there is reason to question its reliability. The ICCS video, for example, showed the Complainant resisting arrest.
In the result, while I accept that the Complainant’s rib fractures were incurred in the physical altercation that marked his arrest, there are no reasonable grounds to believe that the SO or any of the involved officers comported themselves other than lawfully. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: January 21, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [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.