SIU Director’s Report - Case # 21-OCI-421
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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 the serious injury a 32-year-old man (the “Complainant”) suffered.
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 the serious injury a 32-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On December 18, 2021, at 2:22 a.m., the Peel Regional Police (PRP) notified the SIU that the Complainant had suffered a fractured nose during his arrest on December 17, 2021.According to PRP, on December 17, 2021, at 7:30 p.m., the Subject Official (SO) was conducting street enforcement at the Cooksville GO Transit lot located at 3210 Hurontario Street in Mississauga. The SO observed a drug transaction take place and engaged the involved individuals. During the arrest a struggle ensued, and the SO was “pepper sprayed”. The SO deployed his conducted energy weapon (CEW) and effected the arrest.
The Complainant was transported to the Trillium Hospital, where he was diagnosed with a fractured nose. CEW probes were removed from him at the hospital.
The Team
Date and time team dispatched: 12/18/2021 at 2:43 a.m.Date and time SIU arrived on scene: 12/18/2021 at 4:14 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
32-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on February 10, 2022. [1]
Civilian Witness (CW)
CW InterviewedThe civilian witness was interviewed on March 3, 2022.
Subject Official (SO)
SO Interviewed, and notes received and reviewedThe subject official was interviewed on April 11, 2022.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on December 22, 2021.
Investigative Delay
There was a delay in interviewing the Complainant, given that he remained in custody and the correctional facility in which he was housed was busy with matters resulting from the COVID-19 pandemic. Despite investigators’ efforts, it was also difficult to contact and arrange an interview of the CW. On February 23, 2022, the SIU was advised that the SO was willing to provide a statement to the SIU. The earliest opportunity the SO was able to present for an interview was April 11, 2022.
Evidence
The Scene
Parking Lot 2 at the Cooksville GO Transit station is on the southeast corner of the GO Transit property, which is on the west side of Hurontario Street, north of Hillcrest Avenue. North of the parking lot is the transit station. South of the parking lot there are several restaurants and other businesses. South of those businesses is Hillcrest Avenue.The arrest of the Complainant occurred in the middle of Parking Lot 2. The parking lot was vacant at the time of the Complainant’s arrest. It had rained by the time the SIU arrived to investigate the scene, but the parking lot was dry at the time of his arrest.
Figure 1 – Cooksville GO Station
Figure 2 – Parking lot P2
Figure 3 – Area of the arrest in the P2 parking lot
Physical Evidence
The SIU collected the following items from the scene:- A black toque;
- CEW wires;
- Two CEW probes;
- Four CEW cartridge blast doors; and
- CEW anti-felon identification disks (AFIDs).
At the police station, the SO’s CEW and uniform shirt were collected by the SIU. The CEW internal operational data were downloaded, and the device was returned to the PRP. The spent CEW cartridges were collected by the SIU.
The internal deployment data from the SO’s CEW indicated Cartridge 1 was deployed on December 17, 2021, at 7:42:32 p.m., for nine seconds. Cartridge 2 was deployed at 7:42:43 for 12 seconds.
The SO’s shirt was retrieved from a locker and the SIU forensic investigator noted the shirt had a pungent odour of what was believed to be pepper spray. The shirt was not submitted for expert examination.
Figure 4 - The SO’s CEW
Figure 5 – CEW barb
Video/Audio/Photographic Evidence [2]
Communications Recordings/Computer-assisted Dispatch Report
On December 17, 2021, at 7:40 p.m., the SO asked the dispatcher to mark him being out with three people at the Cooksville GO station, just off Hillcrest Avenue. The SO then reported he was in a foot pursuit eastbound through the parking lot. At 7:41 p.m., the SO reported he had one person in custody and there were two outstanding parties who had fled southeast.The SO then radioed, “10-33, [3] he’s pepper sprayed me.” The dispatcher alerted other police officers to the SO’s request for assistance. The SO soon reported he had deployed his CEW, the party was handcuffed, and all was okay. He reported he could not see out of one eye, and he requested an ambulance. He advised responding officers they could slow down.
At 7:47 p.m., police officers reported they had a second individual [the CW] in custody.
Further radio transmissions related to the response of additional police officers, and discussions as to whether a perimeter needed to be established to locate any outstanding individuals.
Video Recordings from Metrolinx [4]
A camera with a view of Parking Lot 1 (south of Parking Lot 2) recorded four people entering the parking lot. One individual continued through the parking lot, while the three other people started milling around a fence. The three individuals appeared to be two men and a woman. The two men sat along the fence. One of the people sitting along the fence then started to walk away. A police officer walking along the grass appeared and the police officer then started running towards the man who had started to walk away. The man (the Complainant) and the police officer (the SO) ran out of the image. The SO was carrying his notebook in his left hand as he ran.
A camera with a view of Parking Lot 2 recorded the SO running after the Complainant along the south side of the parking lot. A camera from the north side of the parking lot captured an object in the SO’s right hand that was projecting a white light, which might have been the flashlight on the SO’s CEW, or an illuminated portion of his radio. Just prior to being tackled, the Complainant appeared to flex backward, perhaps reacting to a CEW deployment, or an effort to shed his backpack. The SO then tackled the Complainant and appeared to kneel on top of him. The Complainant was initially motionless, but he then appeared to struggle against the SO.
At 05:35 minutes of elapsed time, the SO turned the Complainant, and then picked the Complainant up and pushed him back onto the asphalt, while pulling on his arms. The Complainant appeared to strike the asphalt on his right side.
At 05:52 elapsed time, the Complainant turned onto his left and appeared to raise his right hand. The SO reacted and appeared to deliver a left-handed strike or a push. The struggle continued.
At 06:05 elapsed time, the SO delivered a series of punches towards the Complainant’s head, and he then turned the Complainant prone on the asphalt.
At 08:00 elapsed time, additional police cruisers started to arrive in the area.
At 09:27 elapsed time, a pedestrian carrying a bag and walking eastbound along the sidewalk on the north side of the parking lot entered the parking lot and approached the SO, who then pointed something with a white light (believed to be his CEW) at the man. The man (the CW) backed away.
At 9:55 elapsed time, police officers drove over the boulevard and entered the parking lot. Police officers exited their vehicles and the SO pointed towards the CW. Three of the arriving police officers grabbed the CW and threw him to the ground.
One of the newly arrived police officers walked over to the Complainant, and the SO walked away. The SO appeared to be spitting on the ground. The SO walked over to one of the police cruisers and leaned forward, thereafter appearing to blow out each of his nostrils.
The fifth arriving police officer (WO #1) assisted the SO. WO #1 escorted the SO southbound, but they then returned to the area of the Complainant, where WO #1 appeared to pick up something from the ground. He then escorted the SO southbound towards the SO’s vehicle.
At 43:10 elapsed time, as the Complainant remained on the ground, a police officer brought him a blanket.
An ambulance arrived at 51:56 elapsed time. The Complainant was lifted and escorted over to the paramedics’ stretcher.
Body-worn Camera (BWC) recordings
WO #1 - BWCWO #1 arrived at the scene at 7:46 p.m. Three police officers were wrestling a male (the CW) to the ground and one other police officer was tending to the Complainant, who was prone on the ground. The Complainant was wearing a red backpack. The police officer tending to the Complainant pointed towards the SO and told WO #1 that the SO had been pepper sprayed.
The SO was standing, and he had his eyes almost completely closed. The SO was wearing a black jacket equipped with PRP shoulder flashes. Underneath his jacket he was wearing a protective vest with ‘POLICE’ written across the front of it. The SO picked up a notebook from the hood of a police vehicle and asked WO #1 to walk with him back to his vehicle because he had lost something.
WO #1 asked the SO for his name and call sign. The SO provided his name and call sign. WO #1 reported over the police radio that he was with the SO, and they were walking back to the SO’s vehicle.
The SO pointed to a black object on a nearby sidewalk. WO #1 used his flashlight and identified the object to be a (surgical style) mask.
The SO and WO #1 then walked back towards the Complainant and WO #1 noticed a cannister of oleoresin capsicum spray on the ground. He attempted to pick up the cannister, but someone told him to stop, as they intended to seize the item.
The SO and WO #1 then walked to the SO’s unmarked sedan, which was parked on Go Access (the street running northbound from Hillcrest Avenue to access the GO Transit station). WO #1 cautioned the SO that his body-worn camera was recording.
The SO was moaning in pain, and he expressed concern that he was missing a pistol magazine. The SO, while standing near his vehicle, was spitting and blowing out (clearing) his nostrils. A plainclothes officer approached and, when the SO said they needed to find his magazine, the plainclothes officer informed the SO they had found it.
A sergeant approached and somebody asked the SO how many people were involved. The SO reported there were four people, three of whom ran. He stated the male who had been fighting with the other police officers (the CW) had been with the group but had not run. The SO stated, “I’m pretty sure it’s the same fucking guy.”
An ambulance arrived and paramedics treated the SO.
The sergeant walked over to the plainclothes officer and started to whisper to him, and WO #1 muted his body-worn camera, explaining, “I’m gonna mute, discussing investigative techniques.”
WO #3 - BWC
WO #3 arrived, and he took over control of the Complainant. As the SO walked away he asked WO #3 to search the Complainant. WO #3 asked where the Complainant’s pepper spray was and the SO pointed it out beside the Complainant. A cannister was visible on the ground beside the Complainant. The Complainant, crying, said the pepper spray was for dogs. WO #3 responded, “Yah, for dogs, not officers.” The Complainant stated he did not know the other person (the SO) was a police officer. WO #3 then asked the Complainant if he had been pepper sprayed or “just tasered”. The Complainant responded he was both pepper sprayed and subjected to a CEW.
At 7:49 p.m., as police officers prepared to cut a backpack off the Complainant to search him, they turned him onto his side and one of the police officers picked up a pistol magazine that had been under the Complainant. The Complainant begged the officers not to cut the backpack, but the backpack was cut from him and one of the police officers said, “Don’t pepper spray cops buddy.” Again the Complainant cried that he did not know the man was a police officer. He stated he had been knocked out.
As the Complainant was turned over, he cried out in pain and reported something was causing pain in his belly. A police officer told the Complainant, “Because you have a taser prong in your belly.”
The Complainant began to vomit and one of the police officers reported he was suffering a seizure.
In the background, the CW explained to the police officers, “The man dropped his bag, and I was bringing it back to him.”
The Complainant admitted to the police that he had consumed fentanyl that day. A female plainclothes police officer had arrived, and she responded that was what happens to someone who pepper sprays a police officer. The Complainant replied he had been knocked out before he sprayed the officer.
Later, while WO #3 attempted to read the Complainant his ‘Right to Counsel’, the Complainant stated the SO could have flashed his [vehicle] lights to let the Complainant know he was a police officer.
At 8:27 p.m., an ambulance arrived to tend to the Complainant. The Complainant was lifted to his feet and two CEW probes could be seen imbedded in his rear right pants pocket. Another CEW probe was imbedded into the right side of his abdomen. The Complainant was loaded onto the paramedics’ stretcher and his eyebrows appeared to be swollen.
WO #3 entered the ambulance. Once inside the ambulance, the attending paramedic asked the Complainant what happened. She asked him how long he had been carrying pepper spray. The Complainant stated the spray was dog repellent that he carried for coyotes, which he often saw around the Metro grocery store at Central Parkway and Cliff Road. The paramedic applied a dressing to the Complainant’s left eyebrow.
The Complainant told the paramedic he was knocked out after the police officer’s forehead hit him in the eye area. He stated he was knocked out on the first hit. He stated he awoke on his stomach and the man [the SO] was going through his pockets, so he sprayed the man.
WO #2 - BWC
WO #2 arrived, and he was initially involved in the apprehension of the CW. He was then involved in tending to the Complainant. His involvement in the situation was documented adequately by WO #3’s BWC recording and there was nothing gleaned from WO #2’s recording that added to the understanding of the events.
Materials Obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials from PRP between December 18, 2021, and April 11, 2022:- BWC recordings;
- Communications recordings;
- Event Chronology;
- Notes of WO #1, WO #2 and WO #3;
- Notes of the SO;
- Occurrence Report;
- Identification History Report;
- Mugshot of the Complainant; and
- BWC Policy.
Materials Obtained from Other Sources
The SIU received the following records from other sources between December 29, 2021, and January 19, 2022:- Metrolinx security camera recordings from the Cooksville GO Station; and
- The Complainant’s medical records from the Mississauga General (Trillium) Hospital.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and the SO. The investigation was also assisted by video footage from surveillance cameras that captured the incident in parts.
In the evening of December 17, 2021, the Complainant, while reportedly waiting for a bus at the Cooksville GO Station, spotted some people he knew and joined them in a parking lot. The parking lot formed part of the property owned by GO. In time, his group was approached by an officer– the SO. The Complainant fled eastward from the officer.
The SO was on patrol with the PRP Strategic Targeted Enforcement Program (STEP). STEP was an effort on the part of the police to proactively enforce the Liquor Licence Act, Trespass to Property Act and Controlled Drugs and Substances Act in high crime areas. Hurontario Street and Dundas Street, Mississauga, had been identified as one such area. In particular, the police had reason to believe that the recently constructed multi-level GO parking lot that serviced the Cooksville station was being used by persons to consume drugs. The officer had spotted the Complainant and his group from a distance and watched what he believed was a hand-to-hand drug transaction. At this point, the SO decided he had cause to investigate the group for drug offences and trespass. He drove up to the group in an unmarked police vehicle, exited and approached. Sensing the Complainant was getting ready to flee, the SO warned him not to run and then chased after him on foot when he did so.
The SO caught up with the Complainant in the middle of the parking lot – Parking Lot 2 – near its eastern boundary, and tackled him to the ground. The officer proceeded to position the Complainant onto his front and was straddled over his backside attempting to secure his arms when the Complainant retrieved a can of pepper spray from a pocket and discharged it at the SO. There followed a struggle on the ground as the Complainant attempted to buck the officer off of him and lift himself. The SO threw a series of left and right-handed punches to the head and deployed his CEW twice. Following the strikes and CEW discharges, the officer placed the Complainant in a prone position and handcuffed his hands behind his back.
Paramedics attended the scene and dislodged the CEW probes from the Complainant’s body. He had been struck by the probes in the right hamstring and abdomen.
The Complainant was taken to hospital and diagnosed with a fractured nose.
In the evening of December 17, 2021, the Complainant, while reportedly waiting for a bus at the Cooksville GO Station, spotted some people he knew and joined them in a parking lot. The parking lot formed part of the property owned by GO. In time, his group was approached by an officer– the SO. The Complainant fled eastward from the officer.
The SO was on patrol with the PRP Strategic Targeted Enforcement Program (STEP). STEP was an effort on the part of the police to proactively enforce the Liquor Licence Act, Trespass to Property Act and Controlled Drugs and Substances Act in high crime areas. Hurontario Street and Dundas Street, Mississauga, had been identified as one such area. In particular, the police had reason to believe that the recently constructed multi-level GO parking lot that serviced the Cooksville station was being used by persons to consume drugs. The officer had spotted the Complainant and his group from a distance and watched what he believed was a hand-to-hand drug transaction. At this point, the SO decided he had cause to investigate the group for drug offences and trespass. He drove up to the group in an unmarked police vehicle, exited and approached. Sensing the Complainant was getting ready to flee, the SO warned him not to run and then chased after him on foot when he did so.
The SO caught up with the Complainant in the middle of the parking lot – Parking Lot 2 – near its eastern boundary, and tackled him to the ground. The officer proceeded to position the Complainant onto his front and was straddled over his backside attempting to secure his arms when the Complainant retrieved a can of pepper spray from a pocket and discharged it at the SO. There followed a struggle on the ground as the Complainant attempted to buck the officer off of him and lift himself. The SO threw a series of left and right-handed punches to the head and deployed his CEW twice. Following the strikes and CEW discharges, the officer placed the Complainant in a prone position and handcuffed his hands behind his back.
Paramedics attended the scene and dislodged the CEW probes from the Complainant’s body. He had been struck by the probes in the right hamstring and abdomen.
The Complainant was taken to hospital and diagnosed with a fractured nose.
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 seriously injured in the course of his arrest by a PRP officer on December 17, 2021. The arresting officer – 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.
The evidence establishes that the SO used no more than reasonably necessary force in taking the Complainant into custody. The tackle from behind is understandable given the Complainant was running away from the officer and seemingly had no intention of stopping. Thereafter, the punches and CEW discharges, I am satisfied, were proportionate responses in the context of a physical altercation with a man who had sprayed the officer with pepper spray and was vigorously attempting to break free of the SO’s hold. The officer’s eyesight was deteriorating at the time, and it was imperative that he do what he could to quickly take the Complainant into custody.
The SO asserted that his intention in pursuing the Complainant was to arrest him for drug possession and trespass under the Controlled Drugs and Substances Act and the Trespass to Property Act, respectively. With respect to the former, I am not satisfied that the officer had the grounds to effect a lawful arrest. The time of day, his understanding that the GO station was closed, his knowledge of the area as being high in drug crime and what he believed he observed to be a hand-to-hand transaction of some sort - considerations the SO referenced to justify his decision - would seem to fall short of establishing reasonable and probable grounds for an arrest. In particular, the exchange the officer had witnessed among members of the group was made from a significant distance and described in terms sufficiently vague to undermine its probative value.
I am also not entirely convinced that the SO had compelling grounds to justify an intervention based in trespass, but here at least it would appear the officer had an arguable case. Section 2 of the Trespass to Property Act provides, in part, that it is an offence to enter onto premises without the express permission of the occupier where such entry is prohibited. Entry is “prohibited” under the Act where the premises are “enclosed in a manner that indicates the occupier’s intention to keep persons off the premises”: see subsection 3(1)(b). In the instant case, it is clear that the Complainant had entered onto a parking lot of the GO station, the parking lot was fenced on some if not all of its borders, it was completely vacant, and the vehicle entrance/exit was blocked by a rope rail of sorts. Whether or not this series of factors would satisfy a court that the Complainant was, in fact, trespassing, I am satisfied that it provided the officer a reasonable basis for concluding he had the requisite grounds to make a lawful arrest.
In the result, while I accept that the Complainant’s injury was the result of the force used against him by the SO, there are no reasonable grounds to believe that it was attributable to unlawful conduct on the part of the officer. Accordingly, there is no basis for proceeding with charges in this case. The file is closed.
Date: July 5, 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.
The evidence establishes that the SO used no more than reasonably necessary force in taking the Complainant into custody. The tackle from behind is understandable given the Complainant was running away from the officer and seemingly had no intention of stopping. Thereafter, the punches and CEW discharges, I am satisfied, were proportionate responses in the context of a physical altercation with a man who had sprayed the officer with pepper spray and was vigorously attempting to break free of the SO’s hold. The officer’s eyesight was deteriorating at the time, and it was imperative that he do what he could to quickly take the Complainant into custody.
The SO asserted that his intention in pursuing the Complainant was to arrest him for drug possession and trespass under the Controlled Drugs and Substances Act and the Trespass to Property Act, respectively. With respect to the former, I am not satisfied that the officer had the grounds to effect a lawful arrest. The time of day, his understanding that the GO station was closed, his knowledge of the area as being high in drug crime and what he believed he observed to be a hand-to-hand transaction of some sort - considerations the SO referenced to justify his decision - would seem to fall short of establishing reasonable and probable grounds for an arrest. In particular, the exchange the officer had witnessed among members of the group was made from a significant distance and described in terms sufficiently vague to undermine its probative value.
I am also not entirely convinced that the SO had compelling grounds to justify an intervention based in trespass, but here at least it would appear the officer had an arguable case. Section 2 of the Trespass to Property Act provides, in part, that it is an offence to enter onto premises without the express permission of the occupier where such entry is prohibited. Entry is “prohibited” under the Act where the premises are “enclosed in a manner that indicates the occupier’s intention to keep persons off the premises”: see subsection 3(1)(b). In the instant case, it is clear that the Complainant had entered onto a parking lot of the GO station, the parking lot was fenced on some if not all of its borders, it was completely vacant, and the vehicle entrance/exit was blocked by a rope rail of sorts. Whether or not this series of factors would satisfy a court that the Complainant was, in fact, trespassing, I am satisfied that it provided the officer a reasonable basis for concluding he had the requisite grounds to make a lawful arrest.
In the result, while I accept that the Complainant’s injury was the result of the force used against him by the SO, there are no reasonable grounds to believe that it was attributable to unlawful conduct on the part of the officer. Accordingly, there is no basis for proceeding with charges in this case. The file is closed.
Date: July 5, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) On December 18, 2021, SIU investigators attended the Trillium Hospital and attempted to interview the Complainant, but he was unfit to provide a statement at the time due to drug intoxication. [Back to text]
- 2) 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]
- 3) Denotes ‘police officer in need of emergency assistance’. [Back to text]
- 4) The video recordings did not have a time stamp. Times mentioned are the elapsed times of the video recordings. [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.