SIU Director’s Report - Case # 22-TCI-244
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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 section 14 (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 20-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 20-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 17, 2022, at 10:58 a.m., the Toronto Police Service (TPS) contacted the SIU with the following information.On September 17, 2022, at 4:49 a.m., police officers stopped a silver BMW at Victoria Park and Sheppard Avenues for a Highway Traffic Act offence. The Complainant and an unknown man were inside the BMW. The police officer attempted to arrest the men after a firearm was observed inside the BMW. A struggle ensued and a conducted energy weapon (CEW) was discharged at the Complainant. The Complainant was apprehended and taken to the Scarborough Grace Hospital, where he was diagnosed with a fractured nasal bone.
The Team
Date and time team dispatched: 09/17/2022 at 11:15 a.m.Date and time SIU arrived on scene: 09/17/2022 at 12:20 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
20-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 17, 2022.
Civilian Witnesses
CW Interviewed The CW was interviewed on September 17, 2022.
Subject Officials
SO Interviewed, and notes received and reviewed The SO was interviewed on October 24, 2022.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on September 18, 2022.
Evidence
The Scene
The scene was the southeast corner of the traffic light-controlled intersection of Victoria Park Avenue and Sheppard Avenue East.Physical Evidence
Figure 2 - Photograph of CEW
Forensic Evidence
CEW Data – WO #1
The following is a summary of the data downloaded from the CEW used in the course of the events in question. At 5:12:13 a.m., [1] the “Arc” button on the weapon was depressed for a one second duration.
Video/Audio/Photographic Evidence [2]
Radio Communications
On September 27, 2022, the TPS provided the SIU a copy of all radio communications related to the incident on September 17, 2022. The following is a summary of the transmissions.Starting at about 4:43:50 a.m., the SO and WO #1 were at Victoria Park Avenue and Sheppard Avenue East with a BMW vehicle with an unattached licence plate and two occupants. A request was made for another police unit to attend.
Starting at about 4:44:19 a.m., WO #2 and WO #3 volunteered to attend and assist.
Between about 4:58:13 a.m. and 4:58:32 a.m., an officer broadcast, “He is running southbound on Victoria Park. He has a gun!”
Starting at about 4:58:49 a.m., the following broadcast was made: “WO #2 come back, he’s got a gun!”
Starting at about 4:59:46 a.m., the SO and WO #1 were said to have one person in custody.
Body-worn Camera (BWC) Footage
On September 19, 2022, the TPS provided the BWC footage pertinent to the incident. The following is a summary of the footage:WO #1
Between about 4:43:45 a.m. and 4:43:57 a.m., WO #1 asked the Complainant if he had identification. The reason for the traffic stop was explained by WO #1 to the occupants, namely, ‘unattached / unregistered plates’.
Starting at about 4:44:05 a.m., the Complainant explained he just bought the car and did not have time to register the plates but did have insurance. He handed the ownership over to WO #1.
Starting at about 4:45:37 a.m., the SO returned to his police vehicle.
Starting at about 4:48:05 a.m., WO #2 and WO #3 arrived and parked directly behind the BMW.
Starting at about 4:48:16 a.m., WO #1 explained to WO #2 and WO #3 the reason for the traffic stop.
Starting at about 4:50:07 a.m., the SO reattended at the driver’s side of the BMW and reminded the occupants they were still being audio and video recorded.
Between about 4:50:12 a.m. and 4:50:21 a.m., the SO shone his light in the BMW asking if there was marihuana in the vehicle because he smelled “weed”. The Complainant handed over a package containing marihuana. The SO explained how that made the marihuana accessible to the driver.
Starting at about 4:52:23 a.m., the Complainant and the CW were told to exit the vehicle, that they were not under arrest, and that the officers had search authority over them and the vehicle.
Between about 4:52:39 a.m. and 4:53:10 a.m., the Complainant exited the vehicle and placed his hands on the car as requested. The SO searched the Complainant advising he was looking for more marihuana at that point.
Starting at about 4:53:29 a.m., the Complainant remembered he did have more marihuana in his back seat.
Starting at about 4:57:15 a.m., the SO asked, “How do you pop the trunk?” The Complainant questioned his authority and asked if he needed a warrant to search the trunk.
Starting at about 4:57:32 a.m., WO #1 and the SO, and the Complainant at the rear of the BMW, looked at the trunk as it popped open.
Between about 4:57:38 a.m. and 4:57:52 a.m., the SO asked what was in the trunk. The Complainant said, “Nothing.” The Complainant pointed out there was nothing in the trunk. A spare tire lid was lifted by the SO.
Between about 4:57:57 a.m. and 4:58:04 a.m., the SO pulled out a small dark bag and asked the Complainant if it was a gun. The Complainant said, “No sir.” As the SO turned off his flashlight, the Complainant reached into the trunk for the black bag.
Between about 4:58:13 a.m. and 4:58:25 a.m., a struggle ensued and the Complainant yelled, “Why are you punching me?” A police officer yelled, “Show me your hands, get off the gun. I’m going to taser you.”
Starting at about 4:58:27 a.m., a CEW was deployed.
Starting at about 4:58:37 a.m., the SO punched the Complainant with a closed right fist, as WO #1 stated he had his hands.
Starting at about 4:58:42 a.m., the bag was pulled out from under the Complainant by the SO and tossed a couple of feet away.
Between about 4:58:48 a.m. and 4:58:57 a.m., an officer was heard saying, “WO #2, come back, he’s got a gun.” The Complainant repeatedly asked, “Why are you punching me?” The Complainant was handcuffed with his hands behind his back.
The SO
Starting at about 4:43:05 a.m., the SO radioed in the traffic stop, their location and requested that another unit attend.
Starting at about 4:44:52 a.m., the SO obtained documents from the Complainant and looked at his cellphone for the updated insurance information.
Starting at about 4:45:56 a.m., the SO was back in the police vehicle using the computer and printing out documents.
Starting at about 4:49:47 a.m., the SO and WO #1 discussed the fresh smell of marihuana coming from the BMW.
Starting at about 4:50:17 a.m., the SO asked the Complainant, “Is that marihuana?” and said, “I smell weed.” The Complainant replied, “No, no, that’s just a bag.”
Starting at about 4:50:21 a.m., the SO stated, “It’s readily available, right.”
Starting at about 4:52:11 a.m., the SO explained to the occupants of the BMW that having the marihuana readily available was a searchable offence and that he would be searching both persons and the car.
Starting at about 4:52:44 a.m., the Complainant exited the BMW and placed his hands on the car.
Starting at about 4:52:47 a.m., the SO searched the Complainant.
Starting at about 4:53:30 a.m., the Complainant advised he just remembered he had more marihuana with him in the back seat of the car.
Starting at about 4:53:44 a.m., the car’s interior was searched by the SO and WO #3. A satchel was removed from the back seat containing more marihuana.
Starting at about 4:57:14 a.m., the SO asked how to open the trunk. The Complainant asked whether a warrant was required for the trunk.
Starting at about 4:57:33 a.m., the trunk was opened.
Starting at about 4:57:38 a.m., the SO asked what was in the trunk and the Complainant replied, “Nothing.”
Starting at 4:57:52 a.m., the SO lifted the spare tire compartment lid with the latch and spotted a small dark satchel. He removed it and asked the Complainant if it was a gun. The Complainant replied, “No, sir.”
Starting at about 4:58:04 a.m., the Complainant lunged forward and grabbed the satchel in the trunk as the SO was turning off his flashlight. The SO shouted, “He is going for the gun!”
Starting at 4:58:15 a.m., the camera captured a view of the SO’s head (his BWC had fallen to the ground). His right arm was swinging in a punching motion and the Complainant was asking, “Why are you punching me?”
Starting at 4:58:16 a.m., five right-hand punches were delivered by the SO.
Starting at about 4:58:20 a.m., three more right-hand punches were delivered by the SO as he told WO #1 to get his ‘taser’.
Starting at about 4:58:24 a.m., the SO said, “Get off the gun,” as he delivered three more right-hand punches.
Starting at about 4:58:30 a.m., four more right-hand punches were delivered in succession by the SO as he said, “He has a gun, tase him.”
Starting at about 4:58:37 a.m., two more punches were delivered as the Complainant continued to ask, “Why are you punching me?”
Starting at about 4:58:45 a.m., the Complainant was handcuffed. The SO sat back and then picked up his camera from the ground, replacing it into his chest holder.
Starting at about 5:00:04 a.m., the Complainant was rolled onto his buttocks, stood up and walked to the police vehicle.
Starting at about 5:01:50 a.m., the SO explained to the Complainant, “You went for the gun, your hands were on the gun, you wouldn’t let go, we told you to let go of the gun and that is why I was punching you.”
Video Footage – City of Toronto
On September 19, 2022, the City of Toronto provided still photos from the city’s cameras in the vicinity of the incident. The images were of no investigative value.Video Footage – Toronto Transit Commission (TTC)
On September 28, 2022, the TTC provided a bus’s in-car camera’s footage. The images were of no investigative value.Materials Obtained from Police Service
The SIU obtained the following records from the TPS between September 17, 2022, and September 23, 2022:- General Occurrence Report;
- Notes-WO #1;
- Notes-the SO;
- Notes-WO #2;
- Notes-WO #3;
- CEW data;
- Policy - Arrest;
- Policy - Incident Response;
- Policy - Conducted Energy Weapons;
- Communications recordings;
- BWC footage; and
- Photographs.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Ambulance Call Report from Emergency Medical Services (EMS);
- Incident Summary Report from EMS;
- Incident Report from EMS;
- Medical records - Birchmount Hospital;
- Video footage stills of Victoria Park and Sheppard (City of Toronto); and
- Video footage - TTC.
Incident Narrative
The evidence gathered by the SIU, including interviews with the Complainant and the SO, and BWC footage that captured the incident in parts, gives rise to the following scenario.
In the early morning of September 17, 2022, the Complainant was stopped by the SO and his partner, WO #1. He was driving a newly purchased BMW northbound on Victoria Park Avenue, and was pulled over in the curb lane just before the Sheppard Avenue East intersection. With him in the car was an acquaintance – the CW.
The officers had been travelling south on Victoria Park Avenue in a marked cruiser when they observed a vehicle – the Complainant’s BMW – seemingly speeding northward. The SO – the driver of the cruiser – made a U-turn after the BMW passed them, closed the distance with the vehicle, activated his emergency equipment, and positioned his cruiser across the front of the Complainant’s car after it came to stop.
WO #1 spoke with the Complainant through the open driver’s door window and noticed a quantity of cannabis protruding from the front left pocket of his sweater. He informed the SO, who proceeded to advise the Complainant that he and his vehicle would be searched for cannabis pursuant to the Cannabis Control Act. The Complainant exited his vehicle and was searched by the SO. He told the officer that there was another quantity of the substance in the rear compartment of the vehicle. The SO searched the rear passenger seats and seized the drug. The CW was also asked to exit the BMW and was searched, after which he was asked to sit on the sidewalk curb.
After he and the interior passenger compartment of his vehicle were searched, the Complainant objected to the search of his vehicle’s trunk without a warrant. The SO explained that the search was authorized and that he did not need a warrant. The trunk of the vehicle was opened and the Complainant stood by as the SO began to search it. The Complainant denied that there were any drugs in the trunk area. The SO opened the lid to the spare tire compartment in the trunk. There was no tire in the compartment, but a small satchel. The officer felt the satchel and asked the Complainant if it was a gun inside. The Complainant denied it was a firearm. The SO proceeded to place the satchel on the floor of the trunk. Within seconds of doing so, the Complainant, from the driver’s side rear of the vehicle, reached into the trunk and grabbed the satchel.
WO #1 and the SO took hold of the Complainant as soon as he grabbed the satchel and forced him to the ground. There followed a struggle on the ground in which the SO, positioned by the Complainant’s upper body, delivered multiple right-handed punches to the head. WO #1, by the Complainant’s midsection, delivered a drive-stun to the back with his CEW. Following the CEW discharge, the officers controlled the Complainant’s arms behind the back and handcuffed them.
The satchel contained a loaded Glock handgun.
The Complainant was transported to hospital after his arrest and diagnosed with a broken nose.
In the early morning of September 17, 2022, the Complainant was stopped by the SO and his partner, WO #1. He was driving a newly purchased BMW northbound on Victoria Park Avenue, and was pulled over in the curb lane just before the Sheppard Avenue East intersection. With him in the car was an acquaintance – the CW.
The officers had been travelling south on Victoria Park Avenue in a marked cruiser when they observed a vehicle – the Complainant’s BMW – seemingly speeding northward. The SO – the driver of the cruiser – made a U-turn after the BMW passed them, closed the distance with the vehicle, activated his emergency equipment, and positioned his cruiser across the front of the Complainant’s car after it came to stop.
WO #1 spoke with the Complainant through the open driver’s door window and noticed a quantity of cannabis protruding from the front left pocket of his sweater. He informed the SO, who proceeded to advise the Complainant that he and his vehicle would be searched for cannabis pursuant to the Cannabis Control Act. The Complainant exited his vehicle and was searched by the SO. He told the officer that there was another quantity of the substance in the rear compartment of the vehicle. The SO searched the rear passenger seats and seized the drug. The CW was also asked to exit the BMW and was searched, after which he was asked to sit on the sidewalk curb.
After he and the interior passenger compartment of his vehicle were searched, the Complainant objected to the search of his vehicle’s trunk without a warrant. The SO explained that the search was authorized and that he did not need a warrant. The trunk of the vehicle was opened and the Complainant stood by as the SO began to search it. The Complainant denied that there were any drugs in the trunk area. The SO opened the lid to the spare tire compartment in the trunk. There was no tire in the compartment, but a small satchel. The officer felt the satchel and asked the Complainant if it was a gun inside. The Complainant denied it was a firearm. The SO proceeded to place the satchel on the floor of the trunk. Within seconds of doing so, the Complainant, from the driver’s side rear of the vehicle, reached into the trunk and grabbed the satchel.
WO #1 and the SO took hold of the Complainant as soon as he grabbed the satchel and forced him to the ground. There followed a struggle on the ground in which the SO, positioned by the Complainant’s upper body, delivered multiple right-handed punches to the head. WO #1, by the Complainant’s midsection, delivered a drive-stun to the back with his CEW. Following the CEW discharge, the officers controlled the Complainant’s arms behind the back and handcuffed them.
The satchel contained a loaded Glock handgun.
The Complainant was transported to hospital after his arrest and diagnosed with a broken nose.
Relevant Legislation
Section 12(3), Cannabis Control Act – Authority to Search Vehicle
12 (1) No person shall drive or have the care or control of a vehicle or boat, whether or not it is in motion, while any cannabis is contained in the vehicle or boat.
(3) A police officer who has reasonable grounds to believe that cannabis is being contained in a vehicle or boat in contravention of subsection (1) may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.
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.
Section 139, Criminal Code – Obstructing Justice
139 (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,
(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,is guilty of(c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or(d) an offence punishable on summary conviction.
(2) Every person who intentionally attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or(b) an offence punishable on summary conviction.
Section 86, Criminal Code – Careless Use of a Firearm
86 (1) Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.
(2) Every person commits an offence who contravenes a regulation made under paragraph 117(h) of the Firearms Act respecting the storage, handling, transportation, shipping, display, advertising and mail-order sales of firearms and restricted weapons.
(3) Every person who commits an offence under subsection (1) or (2)
(a) is guilty of an indictable offence and liable to imprisonment(i) in the case of a first offence, for a term not exceeding two years, and(ii) in the case of a second or subsequent offence, for a term not exceeding five years; or(b) is guilty of an offence punishable on summary conviction.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by TPS officers on September 17, 2022. One of the arresting officers – the SO – was identified as a subject official in the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable ground 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 search of the Complainant and his vehicle were legally authorized under section 12(3) of the Cannabis Control Act. In light of the cannabis that the officers had observed on the Complainant’s person during the initial stages of the traffic stop – in a container that was ripped at the top – there were reasonable grounds to believe that additional cannabis would be found in the vehicle in contravention of the Act.
When the Complainant grabbed the satchel and attempted to flee with it, he was also subject to arrest for criminal offences, including ‘obstructing justice’ and “careless use of a firearm’ contrary to sections 139 and 86 of the Criminal Code, respectively.
With respect to the force that was used in aid of the Complainant’s arrest, namely, a takedown followed by multiple punches by the SO to the left side of the head and a CEW discharge by WO #1 to the back, I am unable to reasonably conclude that it was not legally justified. The takedown was a legitimate tactic. The officers had cause to believe that the Complainant was attempting to flee the area with a firearm – a clear and pressing public safety risk. In the circumstances, they were entitled to quicky and decisively thwart the Complainant’s intentions by taking him to the ground. The number of punches delivered by the SO was significant – about 17 strikes to the head while the Complainant was prone on the roadway. The officer indicated that he was concerned that the Complainant was attempting to access the gun inside the satchel, and that his blows were aimed at preventing that contingency from materializing. In the BWC footage of the altercation, the Complainant could be heard repeatedly asking why he was being punched and protesting that he was not holding “anything”. In his SIU interview, however, the Complainant suggests that he was, in fact, struggling to some extent with the officers when he says that he “gave up” after he was shocked by the CEW. On this record, the evidence falls short of reasonably establishing that the SO’s concerns were ill-founded. That being the case, the nature and extent of the force he used fell within the range of what was reasonable at the time to ensure that a lethal weapon was not brought to bear. The same may be said with respect to WO #1’s CEW drive-stun. In fact, it was shortly after that discharge of his weapon that the Complainant released his left arm out from under him, and he was handcuffed behind the back.
In the result, while I accept that the Complainant’s nose was broken by one or more of the SO’s punches, I am satisfied that the officer comported himself within the limits of the criminal law throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 13, 2023
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 search of the Complainant and his vehicle were legally authorized under section 12(3) of the Cannabis Control Act. In light of the cannabis that the officers had observed on the Complainant’s person during the initial stages of the traffic stop – in a container that was ripped at the top – there were reasonable grounds to believe that additional cannabis would be found in the vehicle in contravention of the Act.
When the Complainant grabbed the satchel and attempted to flee with it, he was also subject to arrest for criminal offences, including ‘obstructing justice’ and “careless use of a firearm’ contrary to sections 139 and 86 of the Criminal Code, respectively.
With respect to the force that was used in aid of the Complainant’s arrest, namely, a takedown followed by multiple punches by the SO to the left side of the head and a CEW discharge by WO #1 to the back, I am unable to reasonably conclude that it was not legally justified. The takedown was a legitimate tactic. The officers had cause to believe that the Complainant was attempting to flee the area with a firearm – a clear and pressing public safety risk. In the circumstances, they were entitled to quicky and decisively thwart the Complainant’s intentions by taking him to the ground. The number of punches delivered by the SO was significant – about 17 strikes to the head while the Complainant was prone on the roadway. The officer indicated that he was concerned that the Complainant was attempting to access the gun inside the satchel, and that his blows were aimed at preventing that contingency from materializing. In the BWC footage of the altercation, the Complainant could be heard repeatedly asking why he was being punched and protesting that he was not holding “anything”. In his SIU interview, however, the Complainant suggests that he was, in fact, struggling to some extent with the officers when he says that he “gave up” after he was shocked by the CEW. On this record, the evidence falls short of reasonably establishing that the SO’s concerns were ill-founded. That being the case, the nature and extent of the force he used fell within the range of what was reasonable at the time to ensure that a lethal weapon was not brought to bear. The same may be said with respect to WO #1’s CEW drive-stun. In fact, it was shortly after that discharge of his weapon that the Complainant released his left arm out from under him, and he was handcuffed behind the back.
In the result, while I accept that the Complainant’s nose was broken by one or more of the SO’s punches, I am satisfied that the officer comported himself within the limits of the criminal law throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 13, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The time is derived from the internal clock of the weapon, and is not necessarily synchronous with actual time. [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]
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.