Francique family lawyer Knia Singh says there are a number of “glaring deficiencies” in the SIU’s investigation into the 28-year-old's death
The province’s Special Investigations Unit has cleared a Peel Regional police officer of wrongdoing in the shooting death of Jamal Francique. But what Francique family lawyer Knia Singh describes as “glaring deficiencies” in the SIU’s report has raised more questions, he says.
The 28-year-old Mississauga man died in hospital on January 9, 2020, two days after he was shot in the side of the head during an attempted arrest by six Peel police drug squad officers just outside the townhouse complex where he lived with his parents.
The SIU, which is charged with investigating police incidents involving serious injury or death, released its report into the shooting on January 20, more than a year after Francique’s death.
Despite “legitimate questions regarding the nature of the police conduct leading up to the shooting,” SIU director Joseph Martino determined there were no grounds to proceed with criminal charges.
It’s become a familiar refrain for the SIU, which cleared some 95 per cent of officers it investigated in 2019.
Its annual report for 2020 has yet to be published, but a review of press releases issued by the SIU last year reveals that officers were charged in only a handful of cases investigated by the unit.
Singh says the numbers point to an inherent bias on the part of the SIU that’s “heavily in favour of police” when it comes to determining criminal liability. Singh says that “accountability has not been objectively demonstrated by the SIU.”
On that front, the opposition NDP has weighed in on Francique’s shooting, saying the SIU’s findings demonstrate “a deeply entrenched and ongoing pattern.”
The NDP is calling for an overhaul of the SIU and police oversight in the province, which the party says “does not meet even the bare minimum of accountability, transparency and independence that would be required for it to be remotely effective.”
Francique’s death is one of five high-profile shootings involving Peel police since late 2019. Others include the shooting deaths of Ejaz Ahmed Choudry and D’Andre Campbell, both of whom were reportedly living with mental health issues.
In October, Peel police chief Nishan Duraiappah and the Peel police services board took the unprecedented step of signing a “memorandum of understanding” with the Ontario Human Rights Commission “to develop legally binding remedies to eliminate racial discrimination” in the force.
The memorandum commits Peel police “to identify and eliminate systemic racism in policing, promote transparency and accountability, and enhance Black, other racialized and Indigenous communities’ trust in policing throughout Peel Region.”
But the jury is still out on that. The names of the officers involved in the Francique shooting, for example, have not been made public.
Under the Police Services Act, subject officers in cases being investigated by the SIU cannot be compelled to submit to an interview or turn over their notes. The officer involved in the Francique shooting agreed to an interview, but that didn’t take place until more than two months after the shooting incident. He did not turn over his notes to the SIU.
Meanwhile, the officers declared witness officers by the SIU in the case did submit to interviews as well as turn over their notes of the incident as required by law.
Last month, Jamal Francique’s father, Derek Francique, was charged along with three others with mischief following their participation in demonstrations outside Peel police Division 11 and Peel police headquarters.
A rally was also held outside the offices of the SIU last summer as the family continued to wait for answers on the circumstances surrounding Francique’s death.
A timeline of the investigation released by the SIU raises more questions. It reveals Martino received the report of the lead investigator handling the case in July. The chronology also reveals a post-mortem examination wasn’t received from the Coroner’s Office until November (although it’s dated May 19, 2020).
Martino signed off on the lead investigator’s report on December 30, reporting to the Attorney General that there are “no reasonable grounds to believe that an officer committed a criminal offence.”
Singh, however, notes a number of “inaccuracies” in the SIU’s report. That includes when Peel notified the SIU as to when the incident took place, and where a gun allegedly belonging to Francique was found by police.
“If the report is littered with inaccuracies, what about the entire investigation?”
According to the SIU report, six undercover police officers in six unmarked vehicles took part in an attempt to arrest Francique for alleged violations of his bail conditions – namely, visiting his girlfriend’s house while he was under house arrest on “firearms and drug-related charges” – on January 7, 2020.
The SIU report says “the officers had been unable to confirm that Mr. Francique was dealing drugs or in possession of a gun,” but that they had “observed him travelling to various locations in breach of his bail conditions.”
The plan was to wait for Francique to get into his Acura and block the car with a police vehicle before he could pull out of the parking lot of his townhouse complex off Winston Churchill Boulevard in Mississauga. But the officer tasked with blocking him in was late arriving at the designated spot, according to the SIU report, and found himself in his car facing Francique’s vehicle.
According to the SIU version of events, it was at that moment that Francique accelerated his vehicle “in an arc” around the police vehicle in front of him as two other officers were converging on the scene on foot. One of the officers was close enough to Francique’s vehicle that she had to “jump out of the way,” according to the SIU report. At about the same time, the SIU report says, the other officer fired four times “in the direction of the driver’s seat” of Francique’s vehicle.
Only “an accurate trajectory reconstruction of the shots to the Acura could not be conducted” by the Centre of Forensic Sciences. SIU spokesperson Monica Hudon tells NOW that’s “due to the vehicle being in motion.”
The SIU’s report says that “observations based on certain assumptions” by CFS suggest holes in the roof and windshield of the vehicle indicates two of the bullets fired by police “entered the vehicle from the driver side of the vehicle towards the passenger side.” The third bullet impact on the right side of the windshield indicates “the shot entered the vehicle at a slight passenger side to driver side direction.” The CFS does not offer a theory into the trajectory of the bullet that struck Francique in the SIU’s report.
The SIU says Francique was struck in the side of the head, but elsewhere in its report the SIU quotes police as saying Francique was “shot in the face.”
Martino indicates in his report that “The location of the bullet holes… coupled with the rapidity of the shots fired… suggest that the vehicle was moving forward in the [officer’s] general direction throughout the gunfire.”
The bullet retrieved from Francique was examined during the post-mortem to determine “if glass [from the windshield] was present and, if so, to determine if broken glass from the vehicle could be eliminated as a possible source. The results indicated that no glass was identified on the bullet.”
Francique’s vehicle came to a stop some 30 metres from where the shots were fired, striking a pillar of a townhouse. The SIU reports says that another officer “quickly approached in his vehicle and positioned it directly behind Mr. Francique’s car, its front end up against the Acura’s rear.”
A number of other officers then surrounded the Acura, yelling for Francique to exit the vehicle. The SIU report says that “While it quickly became apparent that the gunshots that had been discharged were fired by police, the officers were concerned that Mr. Francique might be armed with a weapon. Accordingly, rather than approach any closer to the Acura, arrangements were made to dispatch PRP (Peel Regional Police) tactical officers.”
Two members of the tactical team arrived on the scene at 8:05 pm, according to the SIU’s report. That would put their arrival at more than two hours after a call had gone out on Peel police radio at 5:45 pm “to the effect that shots had been fired, a vehicle had gone into a house, and tactical officers were being requested,” according to the SIU.
But here too there’s a discrepancy. The SIU says the first notification it received from Peel police at 8:50 pm indicated the incident took place at 7:44 pm. Singh says that’s his information.
The SIU report describes that tactical officers who eventually arrived on the scene knocking out the rear windows of the Francique’s vehicle before observing Francique “in the driver’s seat in obvious and acute medical distress” with a gunshot wound to the left side of the head.
Francique was removed from the vehicle and “provided emergency first aid by paramedics on the scene” and then transported to St. Michael’s Hospital in Toronto with life-threatening injuries, the SIU says. He would die two days later.
It’s unclear to Singh why tactical officers knocked out the windows of the vehicle. Or why Francique wasn’t taken to a hospital closer by instead of transported to downtown Toronto. He also notes a discrepancy in the report over the police’s discovery of a gun allegedly belonging to Francique and found on the scene.
The SIU report says a semi-automatic pistol was found in a satchel “removed from Mr. Francique’s person when he was extracted from the vehicle.” But elsewhere in its report, the SIU quotes Peel police saying the gun was found “in the waistband of his [Francique’s] pants.”
The SIU’s report says a swab of the gun indicated DNA from four people, including one female and “a male present at the time of the incident.” But that Francique “could not be excluded as a contributor to the DNA profile.”
Martino’s report concluded that there was no negligence on the part of the officer who fired at Francique.
He said he was “unable to reasonably conclude that the [officer’s] resort to lethal force fell outside the limits of legal justification. The constellation of circumstances that prevailed at the time of the shooting establish that the [officer’s] mindset and his resulting conduct fell within the range of what was reasonable at the time. The Acura was accelerating forward in his general direction, nearing to within a few metres.”
Martino also dealt with the issue of whether “withdrawal [from the scene] may have been an option. The risk to other motorists or pedestrians in the area was slight; there were none as far as the evidence suggests.” Police had also placed a tire deflation device under Francique’s vehicle while it was parked, presumably to prevent it from getting too far away.
Martino writes that “It is conceivable that conduct [by police] that is legally justifiable under the Criminal Code can also be part and parcel of a course of action that is criminally negligent.
“There are legitimate questions regarding the nature of the police conduct leading up to the shooting,” Martino says, but he found that “confronted by a vehicle that the [officer] had reason to believe was intentionally being driven in his direction, the officer’s decision to disable its operating mind by shooting in the direction of the driver was not devoid of logic.”