SIU Director’s Report - Case # 22-OCI-300
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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 the serious injuries of a 26-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 the serious injuries of a 26-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On November 22, 2022, at 8:48 p.m., the York Regional Police (YRP) notified the SIU of an injury to the Complainant.According to the YRP, on November 22, 2022, at 3:50 p.m., police officers of the YRP Property Crime Unit observed a drug buy at a plaza on Cundles Road East, Barrie. Once the transaction was completed, police officers arrested a man alleged to be selling the drugs – the Complainant. The Complainant was pulled from the driver’s seat of a truck and grounded, in the process of which he suffered injuries. The Complainant was transported to the Cortellucci Vaughan Hospital (CVH) where he was diagnosed with a fractured jaw and nose. He was released back to the custody of YRP, transported to 4 District in Vaughan, and held for a bail hearing.
The Team
Date and time team dispatched: 11/22/2022 at 9:29 p.m.Date and time SIU arrived on scene: 11/23/2022 at 9:00 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
26-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on November 23, 2022.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal right.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Not interviewed; notes received and reviewed
The witness officials were interviewed on December 7 and December 8, 2022.
Evidence
The Scene
The events in question occurred in and around a pick-up truck that was, at the material times, parked in the parking lot of a plaza on Cundles Road East, Barrie. Video/Audio/Photographic Evidence [2]
Computer-assisted Dispatch (CAD)
The following is a summary of the pertinent information captured by the CAD report.WO #1 reported that YRP officers would be engaged in a warrant execution in Barrie. The Barrie Police Service had been made aware of the operation and would be assisting.
At 12:33 p.m., the YRP police officers - the SO, WO #1, WO #2, WO #3 and four additional constables were dispatched.
At 1:40 p.m., police officers arrived at an address on Cundles Road.
At 3:51 p.m., Officer #1 conducted a Records Management System check of the Complainant.
At 4:31 p.m., Officer #1 informed the dispatcher that he was taking the Complainant to CVH.
At 4:31 p.m., Officer #2 was dispatched to meet Officer #1 at CVH.
Officer #1 transferred the Complainant’s custody to Officer #2.
At 8:15 p.m., Officer #2 reported that the Complainant had been discharged at 7:55 p.m.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the YRP between November 23 and December 15, 2022:- CAD report;
- Involved Officers List;
- Notes – WO #2;
- Notes –WO #1;
- Notes – WO #3;
- Out of Region Deployment Procedure;
- Operations Procedure;
- Use of Force Procedure;
- In-car camera footage; and
- Communications recordings.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- The Complainant’s medical records from CVH.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and several officers who participated in his arrest, gives rise to the following scenario. As was his legal right, the SO declined an interview with the SIU and to authorize the release of his notes.
In the afternoon of November 22, 2022, a team of YRP officers, including the SO, convened at the parking lot of a plaza on Cundles Road East, Barrie. They were there for drug enforcement purposes.
The Complainant arrived at the plaza in a van in the company of his associates. They parked several parking spots away from a pick-up truck, after which the Complainant exited the vehicle. The Complainant entered the truck, sat in the front passenger seat, and provided the occupant the contents of a bag in exchange for a sum of money.
At the completion of the transaction, multiple officers rushed the truck to arrest its occupants. The officers opened the front passenger door, advised the Complainant that he was under arrest, and moved in to take him into custody. The Complainant physically resisted as the officers attempted to pull him out of the truck. Following one or two punches delivered by the SO, the officers were able to extricate the Complainant from the vehicle, whereupon he and a number of officers tumbled to the ground.
After a brief further period of struggle on the ground, the Complainant was handcuffed behind the back.
The Complainant was taken from the scene in a police vehicle to hospital, where he was diagnosed with a fractured nose and left zygomatic arch.
In the afternoon of November 22, 2022, a team of YRP officers, including the SO, convened at the parking lot of a plaza on Cundles Road East, Barrie. They were there for drug enforcement purposes.
The Complainant arrived at the plaza in a van in the company of his associates. They parked several parking spots away from a pick-up truck, after which the Complainant exited the vehicle. The Complainant entered the truck, sat in the front passenger seat, and provided the occupant the contents of a bag in exchange for a sum of money.
At the completion of the transaction, multiple officers rushed the truck to arrest its occupants. The officers opened the front passenger door, advised the Complainant that he was under arrest, and moved in to take him into custody. The Complainant physically resisted as the officers attempted to pull him out of the truck. Following one or two punches delivered by the SO, the officers were able to extricate the Complainant from the vehicle, whereupon he and a number of officers tumbled to the ground.
After a brief further period of struggle on the ground, the Complainant was handcuffed behind the back.
The Complainant was taken from the scene in a police vehicle to hospital, where he was diagnosed with a fractured nose and left zygomatic arch.
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 YRP officers in Barrie on November 22, 2022. In the ensuing SIU investigation of the incident, one of the officers – the SO – was identified as the subject official. 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.
The weight of the evidence indicates that the Complainant entered the pick-up truck and engaged in a drug transaction. On this record, the Complainant was subject to arrest for drug trafficking.
With respect to the force brought to bear against the Complainant, namely, one or two punches delivered by the SO in the course of a physical altercation between the arresting officers and the Complainant, I am unable to conclude that it was excessive. The evidence establishes that the officers had cause to be concerned that the Complainant was in possession of a weapon, possibly, a firearm. In the circumstances, when he resisted arrest inside the pick-up truck, by leaning away from the officers towards the centre of the vehicle and struggling against their efforts to remove him from the truck, the officers were within their rights in resorting to a measure of force to immediately distract and subdue the Complainant. Up to two punches delivered in quick succession to the Complainant’s face would not appear a disproportionate or unnecessary use of force in the moment, particularly as it appears the Complainant continued to offer a measure of resistance after the strikes.
There is some evidence the Complainant never resisted the officers’ efforts to arrest him but it would be unwise and unsafe to rest charges on the strength of this evidence alone. It is contradicted by the countervailing evidence of the officers interviewed by the SIU who assisted in his arrest. And its reliability suffers from the fact that the source refused to acknowledge what seemed apparent on the evidence, namely, that the Complainant was involved in an illicit drug transaction.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his engagement with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: March 22, 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 weight of the evidence indicates that the Complainant entered the pick-up truck and engaged in a drug transaction. On this record, the Complainant was subject to arrest for drug trafficking.
With respect to the force brought to bear against the Complainant, namely, one or two punches delivered by the SO in the course of a physical altercation between the arresting officers and the Complainant, I am unable to conclude that it was excessive. The evidence establishes that the officers had cause to be concerned that the Complainant was in possession of a weapon, possibly, a firearm. In the circumstances, when he resisted arrest inside the pick-up truck, by leaning away from the officers towards the centre of the vehicle and struggling against their efforts to remove him from the truck, the officers were within their rights in resorting to a measure of force to immediately distract and subdue the Complainant. Up to two punches delivered in quick succession to the Complainant’s face would not appear a disproportionate or unnecessary use of force in the moment, particularly as it appears the Complainant continued to offer a measure of resistance after the strikes.
There is some evidence the Complainant never resisted the officers’ efforts to arrest him but it would be unwise and unsafe to rest charges on the strength of this evidence alone. It is contradicted by the countervailing evidence of the officers interviewed by the SIU who assisted in his arrest. And its reliability suffers from the fact that the source refused to acknowledge what seemed apparent on the evidence, namely, that the Complainant was involved in an illicit drug transaction.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his engagement with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: March 22, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [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.