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SIU Director’s Report - Case # 17-OCI-340

Contents:

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury sustained by a 58-year-old man during his arrest on November 18, 2017.

The Investigation

Notification of the SIU

At approximately 12:50 p.m. on Saturday, November 18, 2017, the Halton Regional Police Service (HRPS) notified the SIU of the Complainant’s serious injury.

According to the HRPS, on Saturday, November 18, 2017, at 9:54 a.m., police were called to the Royal Bank of Canada (RBC) branch, at 360 Pearl Street in the City of Burlington, regarding a man, [now known to be the Complainant] trying to open a fraudulent bank account. The Complainant fled the bank on foot. The Subject Officer (SO) and Witness Officer (WO) #2 arrested the Complainant after a foot pursuit. The SO took the Complainant to the ground during the arrest. The Complainant complained of a sore shoulder and was taken to the hospital and diagnosed with a fractured shoulder at 12:33 p.m. Closed circuit television (CCTV) data at the bank, according to the HRPS, was being secured. Police officers were continuing with their fraud investigation but refrained from interviewing the Complainant.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

SIU Investigators interviewed potential witnesses, conducted a canvass for additional witnesses, and searched for CCTV images relevant to the incident. The SIU FI made a digital photographic and video record of the area where the Complainant was arrested, and a digital photographic record of the Complainant’s soft tissue injuries.

Complainant:

58-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed

Police Employee Witness

PEW #1 Interviewed, notes received and reviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed 

Subject Officers

SO    Declined interview and to provide notes, as is the subject officer’s legal right


Incident Narrative

On Saturday, November 18, 2017, shortly before 10:00 a.m., the Complainant entered the RBC at 360 Pearl Street in the City of Burlington. Using a false name, and providing false identification documents, the Complainant approached personnel with a view to opening an account based upon his false identity.

When bank personnel became suspicious of the Complainant, a call was placed to the HRPS with a request that police officers attend immediately as the Complainant was still inside the bank. The SO and WO #1 attended the bank and tried to direct the Complainant toward an office to discuss the matter, but the Complainant bolted through the front doors and ran a short distance west. The SO chased the Complainant, on foot, and tackled him, taking him to the concrete sidewalk.

The Complainant immediately felt pain in his left shoulder after falling to the pavement. The Complainant was then taken into custody and handcuffed, following which he was transported by ambulance to the hospital.

Nature of Injury/Treatment

The Complainant sustained a minimally displaced, comminuted impacted fracture of the surgical neck of the left proximal humerus (the long bone in the upper arm extending from the shoulder to the elbow). His arm was immobilized with a sling pending further investigation and possible surgical reduction/stabilization.

Evidence

The Scene

The building at this location was a residential condominium complex named, ‘360 on Pearl’. The main entrance to the complex was located on Lakeshore Road in the City of Burlington. 

The building at this location was a residential condominium complex named, ‘360 on Pearl’.  The main entrance to the complex was located on Lakeshore Road in the City of Burlington.

Pearl Street was east of the main doors of the complex and had a north-south bearing north of Lakeshore Road.

There were two video surveillance camera domes on the exterior of the complex’s facade in front of the main doors. The SIU Forensic Investigator made arrangements with the concierge for the SIU to receive the CCTV data relevant to the incident.

The involved RBC branch, and its main doors, was located east of and attached to the condominium complex.

The involved RBC branch, and its main doors, was located east of and attached to the condominium complex.

The involved RBC branch, and its main doors, was located east of and attached to the condominium complex.

Image showing location of arrest.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

CCTV Data

The following is a summary of the CCTV data found and secured by SIU Investigators at the residential condominium building at 360 Pearl Street, Burlington.

The condominium building is adjacent to the west side of the RBC building. The CCTV camera is affixed to the front of the building on Lakeshore Road and is focused in an easterly direction. The camera did not capture the front entrance doors of the RBC bank, as the view is obscured by a pillar outcrop located at the most westerly corner of the bank building.

The footage was date-stamped November 18, 2017. The footage commenced at 9:50:01 a.m. and concluded at 9:53:12 a.m.

  • 9:50:01 a.m. Vehicular traffic was recorded travelling east and westbound on Lakeshore Road;
  • 9:51:43 a.m. A woman walked westbound past the front of the RBC bank;
  • 9:51:46 a.m. A person, [now known to have been PEW #1], came into camera view. Police Employee Witness (PEW) #1, who was wearing a dark coloured coat and light coloured pants, moved quickly from the area of the bank entry doors toward the center of the sidewalk. He bent down and appeared to pick something up [now known to be a police officer’s baton] from the ground;
  • 9:51:47 a.m. As PEW #1 bent down, the Complainant came into camera view running west from the area of the bank doors. The Complainant was running close to the front of the bank building. The SO was running behind and slightly to the south of the Complainant. The SO ran at an angle toward the Complainant and grabbed him in a football-like tackle around his waist. They both fell forward, out of camera view toward the building outcrop pillar, and then bounced back from the building and onto the sidewalk. The Complainant hit the ground on his left side and the SO landed on top of him. The SO’s left arm was under the Complainant’s body when they hit the ground. The top of the Complainant’s head was facing west;
  • 9:51:48 a.m. WO #1 came into camera view running from the direction of the bank entrance doors and knelt down at the Complainant’s right side;
  • 9:51:49 a.m. The SO got off the Complainant but remained on his knees on the ground to the Complainant’s right. The Complainant was then lying on his back and the SO and WO #1 turned him back onto his stomach. The Complainant’s head was then facing south;
  • 9:51:51 a.m. Both the SO and WO #1 appeared to push down on the Complainant’s shoulders as if to control him;
  • 9:51:57 a.m. PEW #1 walked up and stood close to where the Complainant and the police officers were on the ground;
  • 9:52:17 a.m. The SO and WO #1 were no longer ‘hands on’ with the Complainant, who was lying face down on the sidewalk and it appeared his hands were handcuffed behind his back;
  • 9:52:19 a.m. PEW #1 handed the baton to the SO and walked back toward the bank entrance;
  • 9:52:30 a.m. The SO and WO #1 each placed a hand under the Complainant’s chest and stood him up from the ground. WO #1 was on the Complainant’s right side and the SO was on his left side; and
  • 9:52:45 a.m. The Complainant was escorted by the SO and WO #1 back toward the bank entrance and out of camera range.

Communications Recordings

The call to HRPS from the RBC and the police transmission communication recordings were obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HRPS:
  • Arrest Report;
  • Communications audio recordings;
  • Drawing of scene by WO #1;
  • Event Chronology;
  • Google ® map marked by the WO #1 and PEW #1;
  • HRPS Photo of Scene;
  • Incident Details authored by the SO;
  • Medical Injury Report;
  • Notes of WO #1 and PEW #1;
  • Prisoner Custody Record;
  • Procedure: Use of Force;
  • Training Records of the SO; and
  • Witness List with Photo of Scene Attached.

Upon request, the SIU obtained the following materials and documents from other sources:
  • CCTV data from ‘360 on Pearl’; and
  • Medical records, including diagnostic imaging, for the Complainant relating to the incident on November 18, 2017 (obtained with his consent).

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

On November 18, 2017, at approximately 9:48 a.m., an employee of the Royal Bank of Canada (RBC) on Pearl Street in the City of Burlington, contacted the Halton Regional Police Service (HRPS) indicating that a male was in the bank attempting to open a bank account; the bank employee was of the view that the transaction appeared suspicious and that the male might be using fraudulent identification in order to open the account.

As a result of the call, the Subject Officer (SO) and Witness Officer (WO) #1 were dispatched to the bank, arriving at 9:51 a.m. Shortly thereafter, the male person at the bank, the Complainant, was apprehended and arrested. During his arrest, the Complainant was injured and he was transported to hospital where he was assessed and it was discovered that he had sustained a minimally displaced comminuted fracture to the neck of the left proximal humerus (the long bone that runs from the shoulder to the elbow).

During the course of this investigation, in addition to the Complainant, an off duty special constable, who was coincidentally just entering the bank on personal business as the Complainant was exiting, and Civilian Witness (CW) #1, were interviewed, as was the doctor who assessed the Complainant. In addition, SIU Investigators located and reviewed Closed Circuit Television (CCTV) footage which captured the arrest of the Complainant. There is very little dispute as to the facts.

As the SO and WO #1 entered the RBC to investigate the call that had been received as to the suspicious behaviour of the Complainant, the Complainant spotted them and decided to leave the bank. As he attempted to leave, CW #1 stopped him and both officers asked him to accompany them into an office in the bank to have a chat. Despite not specifically advising the Complainant why they wished to speak with him, the Complainant acknowledges that he had a fairly good idea. One of the police officers put a hand on his elbow to guide the Complainant into the office.

As they walked toward the office, CW #1 was slightly behind and the SO slightly ahead, of the Complainant. When the Complainant saw his opportunity, he decided to run and he ran toward the bank exit doors, where, coincidentally, Police employee Witness (PEW) #1, who was off duty at the time and attending the bank for personal business, was just entering. PEW #1, because he was just entering, was blocking the doorway and the Complainant then tried to exit through another door on the right, but it was locked, further delaying the Complainant’s exit, allowing police to close the gap between themselves and the Complainant.

As the Complainant was exiting through the door, he was aware that one of the officers was grabbing for him.

Once out of the bank vestibule, the Complainant turned to the right with both police officers right behind him. After running about 30 feet, the SO reached out and grabbed the Complainant around the waist, in a bear hug type manoeuvre, and they both fell to the pavement, with the SO landing on top of the Complainant. The Complainant believed that he may have put out his left arm to break his fall.

Once on the ground, on his stomach, the SO, who was on the Complainant’s back, grabbed his left arm and pulled it behind his back for handcuffing. The Complainant only first felt pain in his left arm when the SO grabbed his arm, and the Complainant believed that this was the cause of his injury. The medical evidence, however, confirmed that the injury to the Complainant’s left arm was not consistent with the arm having been pulled back by the SO, but would have been caused by the fall or from hitting the humerus on something solid, like the pavement. The doctor emphasized that the injury was definitely not as a result of being beaten or from being torn or twisted, as the fracture pattern would have presented differently, but was caused from blunt force trauma on a hard immoveable surface, like the sidewalk.

On the evidence, then, there can be no dispute that the injury sustained by the Complainant was as result of his striking the pavement with his arm when he was grabbed and taken to the ground by the SO. The only question remaining to be determined then is whether or not the officer’s “tackle” of the Complainant amounted to an excessive use of force on the part of the SO.

Pursuant to s. 25(1) of the Criminal Code, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the SO to qualify for protection from prosecution pursuant to s. 25, it must be established that he was in the execution of a lawful duty, that he was acting on reasonable grounds, and that he used no more force than was necessary.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information provided by the RBC in the telephone call, and later to the police upon their arrival at the bank, that they had reasonable grounds to stop and investigate the Complainant for a suspected fraud in progress. While they lacked sufficient grounds to actually arrest the Complainant based only on the suspicions of the bank employees, they certainly had sufficient grounds to detain and investigate the Complainant. When the Complainant then ran from the police, it would have strengthened those suspicions and given police further reasonable grounds.

As such, the initial actions of police in attempting to investigate the Complainant were lawful and reasonable. After he then ran from police, they had reasonable grounds to pursue and stop the Complainant and to place him under arrest for fraud. Therefore, pursuant to the requirements of s. 25 (1), as the police were in the execution of a lawful duty and they were acting on reasonable grounds, they are exempt from prosecution as long as they used no more force than was necessary to effect that lawful purpose.

There is no dispute, on all of the evidence, and as confirmed by the CCTV footage, that the only force used by the SO to apprehend the Complainant was to grab him around the waist in a bear hug and take him to the ground; there being no other force used once he had been stopped, other than pulling his hands behind his back for handcuffing. It is equally clear that the Complainant left the police officers no other options when he chose to run from them and that it was incumbent upon police, having received a fraud complaint, to stop and investigate the Complainant on that complaint.

Based on these facts, then, despite the unfortunate injury sustained by the Complainant, I cannot find the actions of the SO to be any more than what was necessary and justified in the circumstances. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R v. Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety. On this record, it is clear that the force used by the SO in stopping the Complainant was the only viable option open to him to prevent the Complainant’s escape. Had the Complainant not chosen to attempt to flee in order to evade police, there would have been no need for the SO to forcefully stop him, and he would never have been injured. On these facts, I find that it was the Complainant’s own actions which unfortunately caused him to be injured.

In conclusion, on the facts before me, which are not disputed in any significant way and which are fully confirmed by the CCTV footage, I do not find that the evidence is sufficient to satisfy me, on reasonable grounds, that the SO’s actions were in any way excessive, nor is there any basis for the laying of criminal charges and none shall issue.


Date: October 16, 2018




Tony Loparco
Director
Special Investigations Unit