SIU Director’s Report - Case # 21-OCI-368
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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 19-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 19-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On October 30, 2021, the York Regional Police (YRP) notified the SIU of an injury to the Complainant.The YRP reported that on October 29, 2021, at about 8:00 p.m., YRP police officers arrested the Complainant at an address on Intermodal Drive, Brampton, as part of an auto theft investigation. He was taken to the Cortellucci Vaughan Hospital, where he was diagnosed with an orbital bone fracture.
The Team
Date and time team dispatched: 10/30/2021 at 10:23 a.m.Date and time SIU responded: 11/01/2021 at 7:25 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
19-year-old male, declined interviewSubject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right. The subject official was interviewed on November 12, 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on November 4, 2021.
Evidence
The Scene
The parking lot of a business address on Intermodal Drive, Brampton.Video/Audio/Photographic Evidence [1]
Video Footage from Business at Intermodal Drive, Brampton
The footage was recorded by an exterior stationary camera facing north and captured images from October 29, 2021, between 7:59:40 p.m. and 8:12:00 p.m. At 7:59:49 p.m., WO #2 parked an unmarked black pickup truck directly in front of the main entrance to the business. At 8:04:50 p.m., a person wearing a dark-hooded sweatshirt with the hood up [now known to have been the Complainant] walked through the parking lot past the rear of WO #2’s truck in a southwesterly direction and out of the camera view. At 8:05:10 p.m., WO #2 exited his vehicle and ran in a southwesterly direction out of the camera view.
At 8:09:12 p.m., the Complainant, whose hands were handcuffed behind his back, was escorted to the back of WO #2’s truck by WO #2 and another police officer.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the YRP:- General Occurrences;
- Arrest Policy;
- Use of Force Policy; and
- WOs' Notes.
Materials Obtained from Other Sources
The SIU also received and reviewed video footage from a business at Intermodal Drive, Brampton.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the SO and the other officers who participated in the Complainant’s arrest – WO #1 and WO #2. The investigation was also assisted by video footage that captured events just prior to the Complainant’s arrest. The Complainant refused to provide the SIU a statement or authorize the release of his medical records.
In the morning of October 29, 2021, a citizen contacted the YRP to report that her vehicle had been stolen overnight from her driveway. As the vehicle was equipped with a GPS tracking system, the citizen indicated that it was presently stationary in the area of the intersection of Dixon Road and Kipling Avenue, Toronto. The SO, WO #1 and WO #2 were part of a surveillance team deployed to locate the vehicle and arrest persons associated with its theft.
The team located the vehicle and maintained it under observation until evening, at which time the Complainant was seen being dropped off in the vicinity by another motorist and entering the vehicle. The Complainant travelled to Brampton, followed by surveillance team officers, and parked the vehicle north and east of a parking lot at Intermodal Drive. The SO, WO #1 and WO #2 positioned their unmarked vehicles in dedicated spaces in the same parking lot.
The Complainant exited the vehicle and walked in a southwesterly direction behind the police vehicles, unaware that he had been followed to the location. As he passed the SO’s vehicle – the middle of the three police vehicles – the officer exited, approached the Complainant, and told him he was under arrest.
The Complainant started yelling and attempted to free himself as the SO held him by the shoulders. The SO punched the Complainant twice, the first impacting the left side of the Complainant’s face. The second appears to have also struck the Complainant in the head, and was delivered as WO #1 and WO #2 were arriving to intervene in the altercation. The Complainant was forced to the ground following the second punch where, after a further period of struggle, the officers handcuffed his hands behind his back.
At hospital following his arrest, the Complainant was said to have suffered a fractured left orbital bone. [2]
In the morning of October 29, 2021, a citizen contacted the YRP to report that her vehicle had been stolen overnight from her driveway. As the vehicle was equipped with a GPS tracking system, the citizen indicated that it was presently stationary in the area of the intersection of Dixon Road and Kipling Avenue, Toronto. The SO, WO #1 and WO #2 were part of a surveillance team deployed to locate the vehicle and arrest persons associated with its theft.
The team located the vehicle and maintained it under observation until evening, at which time the Complainant was seen being dropped off in the vicinity by another motorist and entering the vehicle. The Complainant travelled to Brampton, followed by surveillance team officers, and parked the vehicle north and east of a parking lot at Intermodal Drive. The SO, WO #1 and WO #2 positioned their unmarked vehicles in dedicated spaces in the same parking lot.
The Complainant exited the vehicle and walked in a southwesterly direction behind the police vehicles, unaware that he had been followed to the location. As he passed the SO’s vehicle – the middle of the three police vehicles – the officer exited, approached the Complainant, and told him he was under arrest.
The Complainant started yelling and attempted to free himself as the SO held him by the shoulders. The SO punched the Complainant twice, the first impacting the left side of the Complainant’s face. The second appears to have also struck the Complainant in the head, and was delivered as WO #1 and WO #2 were arriving to intervene in the altercation. The Complainant was forced to the ground following the second punch where, after a further period of struggle, the officers handcuffed his hands behind his back.
At hospital following his arrest, the Complainant was said to have suffered a fractured left orbital bone. [2]
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 was reportedly diagnosed with a serious injury following his arrest on October 29, 2021. One of the arresting officers – the SO – was identified as the subject official for purposes of the ensuing SIU investigation. The investigation is now concluded. 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.
On the evidence collected by the SIU, there is no suggestion that the Complainant’s arrest in connection with a stolen vehicle was unlawful. He had been seen entering and operating a vehicle recently reported stolen by its owner.
With respect to the force used by the SO, namely, two punches, I am unable to reasonably conclude that they were unlawful. The Complainant strenuously resisted his arrest on his feet. He grabbed the SO and pushed and pulled violently attempting to free himself from the officer’s grasp. In the circumstances, it would appear that a punch designed to deter any further aggression fell within the realm of justifiable force, as did a second one when the Complainant continued to resist. Aside from forcing the Complainant to the ground, which the evidence indicates was accomplished without undue force following the second punch, and wrestling control of his arms, no further strikes were delivered by any of the officers.
In the result, while I accept that the Complainant’s reported facial fracture was likely the result of one or both of the SO’s punches, there are no reasonable grounds to believe it is attributable to unlawful conduct on the part of the subject official. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: February 25, 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.
On the evidence collected by the SIU, there is no suggestion that the Complainant’s arrest in connection with a stolen vehicle was unlawful. He had been seen entering and operating a vehicle recently reported stolen by its owner.
With respect to the force used by the SO, namely, two punches, I am unable to reasonably conclude that they were unlawful. The Complainant strenuously resisted his arrest on his feet. He grabbed the SO and pushed and pulled violently attempting to free himself from the officer’s grasp. In the circumstances, it would appear that a punch designed to deter any further aggression fell within the realm of justifiable force, as did a second one when the Complainant continued to resist. Aside from forcing the Complainant to the ground, which the evidence indicates was accomplished without undue force following the second punch, and wrestling control of his arms, no further strikes were delivered by any of the officers.
In the result, while I accept that the Complainant’s reported facial fracture was likely the result of one or both of the SO’s punches, there are no reasonable grounds to believe it is attributable to unlawful conduct on the part of the subject official. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: February 25, 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]
- 2) As the Complainant did not authorize the release of his medical records, the nature and extent of his injuries could not be confirmed. [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.