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SIU Director’s Report - Case # 18-OCI-024

Contents:

News Releases for this Case:

French:

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 24-year-old man (the Complainant), during his arrest on January 31, 2018.

The Investigation

Notification of the SIU

At approximately 10:50 p.m. on January 31, 2018, the Niagara Regional Police Service (NRPS) notified the SIU of the Complainant’s custody injury.

According to the NRPS, at 8:00 a.m. on that date, NRPS police officers responded to an impaired driving call with respect to a motor vehicle that had been involved in a collision at the intersection of Niagara Street and Oxford Road in the City of St. Catharines, following which the driver of the vehicle had driven away from the scene.

The driver of the vehicle (the Complainant) then parked the vehicle in the south end of St. Catharines and fled on foot. The Complainant then entered a residence, stealing a bicycle and golf clubs, following which he was observed by citizens near the Meridian Centre. Police officers located the Complainant in the area of St. Paul and William Streets and he was arrested. The Complainant was believed to be under the influence of drugs and was therefore taken to the hospital, where he was diagnosed with a fracture to his nose. There was no scene preserved by the NRPS. The Complainant was lodged at the central holding cells of the NRPS.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Could not be located by the SIU to be interviewed; the written statement previously taken by the NRPS was obtained and reviewed

Regarding the civilian witness statement of CW #8, which had been obtained by the NRPS on January 31, 2018 prior to the Complainant’s serious injury being made known, CW #8 did not mention that the Complainant had sustained any injury when the vehicle he was operating collided with the second vehicle. CW #8 could not be located thereafter in order that SIU investigators could interview her to ascertain whether or not the Complainant may have struck his nose against the interior of the motor vehicle when it was involved in the collision.

Witness Officers

WO #1 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right


Incident Narrative

At approximately 8:00 a.m. on January 31, 2018, the Complainant was operating a motor vehicle owned by his girlfriend, Civilian Witness (CW) #8. CW #8 was riding in the front passenger seat when the vehicle was involved in a collision. Both the Complainant and CW #8 failed to remain at the scene of the collision and drove away in the damaged vehicle.

A short time later, the vehicle became stuck in a snowbank on Glenridge Avenue in the City of St. Catharines and then ran out of gasoline. The Complainant exited the vehicle and spoke with several home owners on Glenridge Avenue, soliciting them for money and gasoline.

At that time, the Complainant abandoned both the vehicle and CW #8 and attended nearby homes, at one of which he stole personal property including a bicycle, following which he fled the area. The Complainant was located by police on St. Paul Street in the alcove of an abandoned store front and was arrested by Subject Officer (SO) #1 and SO #2, during which he was taken to the ground. The Complainant displayed a confused state of mind at the time of his arrest as a result of which paramedics were called and he was transported by ambulance to the hospital, where he was diagnosed with a nasal fracture.

During the SIU investigation, it was learned that the Complainant had been involved in a fight in the Detention Centre on January 9, 2018.

Nature of Injuries / Treatment

The Complainant sustained a minimally displaced, depressed nasal bone fracture, with no complications. No injury-specific treatment was indicated or provided.

Evidence

The Scene

The arrest took place on a concrete sidewalk in front of an alcove/doorway at 34 St. Paul Street in the City of St. Catharines, which was an unoccupied business premises. Nothing of any probative value was located by investigators at the scene.

Alcove in abandoned store front where the Complainant was located by police.

Alcove in abandoned store front where the Complainant was located by police.

Item in possession of Complainant described by some witnesses as a long gun case.
Item in possession of Complainant described by some witnesses as a long gun case.

Item in possession of Complainant described by some witnesses as a long gun case.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Information Obtained from the Niagara Regional Detention Centre (NRDC)

The NRDC verbally confirmed that the Complainant had been involved in a fight at the detention centre during the early morning of January 9, 2018. The SIU was advised that the Complainant did not request or receive any medical attention, however, a Local Investigation Report was prepared by a ministry investigator as the fight was of a physical nature.

Video/Audio/Photographic Evidence

CCTV Data from Vape Cove, 1 St. Paul Street, St Catharines:

Vape Cove, a commercial premises located at 1 St. Paul Street, had an exterior CCTV camera which recorded data on St. Paul Street in the direction of 34 St. Paul Street on the opposite side of the street. The video was obtained and reviewed but could not be magnified to any significant extent to show details/features of the subject police officers or their precise interaction with the Complainant.

Communications Recordings

The Police Transmissions Communications Recording was obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Arrest Records;
  • Computer Aided Dispatch (CAD) Call Records (x2);
  • Police Transmissions Communications Recording;
  • Injury Report;
  • Motor Vehicle Collision Report (MVCR);
  • Notes of WO #1;
  • NRPS Media Release;
  • NRPS Witness Statements from CW #8 and four other undesignated civilian witnesses (related primarily to motor vehicle collision);
  • NRPS scene photos;
  • Procedure: Use of Force;
  • Prosecution Summary;
  • Seized Property;
  • SIU Disclosure Form 2;
  • Supplemental Reports; and
  • Training Records of SO #1 and SO #2.


The SIU obtained and reviewed the following materials and documents from other sources:
  • Medical records of the Complainant related to this incident; 
  • Ambulance Call Report; and
  • CCTV data from Vape Cove.

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.

Section 252, Criminal Code – Failure to stop at scene of accident

252 (1)  Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with 

(a) another person,
(b) a vehicle, vessel or aircraft, or
(c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

Section 253(1), Criminal Code -- Operation while impaired

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
 
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

Analysis and Director's Decision

The events in question leading to the apprehension and arrest of the Complainant are clear on the evidence collected by the SIU, which included statements from the Complainant, the Subject Officers, SO #1 and SO #2, seven independent civilian witnesses (CWs) and one police witness, recordings of the 911 calls and the police transmissions communications, as well as written statements taken by five civilian witnesses relating to the motor vehicle collision and the actions of the Complainant leading up to his arrest.

At 8:00:44 a.m. on January 31, 2018, the first of several 911 calls was received by the NRPS 911 call centre. The initial caller reported a possible impaired driver who had almost struck three other motor vehicles, before striking a red Pontiac Vibe, and then leaving the scene. The caller described the fleeing motor vehicle as a silver Chrysler with damage on the front passenger side and indicated it was last observed passing the Laura Secord School in the City of St. Catharines.

The police were immediately dispatched to the location of the motor vehicle collision and began to search for the Chrysler. A direction was broadcast over the radio that if located, the vehicle was not to be pursued.

A second caller reported that the Chrysler as now having entered the Garden City Co-op located at 397 Niagara Street.

At approximately 8:30 a.m., a resident of Glenridge Avenue in St. Catharines observed the silver Chrysler stuck in a snow bank and the driver, the Complainant, out of the vehicle attempting to reattach the front licence plate. The Complainant was described as appearing to be impaired by drugs. The Complainant was observed to walk away from the car and slip on the concrete sidewalk, landing face down in an icy snowbank. The Complainant was then observed knocking on doors and asking for money and gasoline. On one occasion, after leaving a residence, the Complainant was observed weaving as he walked and falling face forward, on more than one occasion, into an icy snow bank in front of a witness’ home.

At approximately 9:01 a.m., the Chrysler was located by police with the front seat passenger, CW #8, still seated in the vehicle. CW #8 was detained while the police continued to search for the Complainant. During the course of searching for the Complainant, police located a bicycle, a bag of beer, and a set of golf clubs which had apparently been taken from a residence in the area of where the Chrysler had been abandoned.

At 10:13:58 a.m., a 911 caller reported seeing a male person stumbling down St. Paul Street with what appeared to be a hunting rifle in a case. A radio call went out that police officers were now searching for a white male carrying a long-gun case, last seen walking on St. Paul Street, near the Meridian Centre, in downtown St. Catharines. Additional police officers were dispatched to the area.

None of the witnesses who reported seeing the Complainant, following the collision with the Pontiac Vibe, observed any bleeding or injury to the Complainant, although many described him as being possibly high on drugs or impaired.

At approximately 10:31 a.m., the Complainant was located by SO #1, SO #2, and Witness Officer (WO) #1, in the alcove of an abandoned store front on St. Paul Street. SO #1, who was the first out of the police vehicle, approached the Complainant and shouted, “Let me see your hands!” and, “Don’t move!” SO #2 and SO #1 then both approached the Complainant, with SO #2 to his right and SO #1 to his left. The Complainant then raised his arms up, with his hands open and his palms toward the police officers. SO #1 took control of the Complainant’s left arm above the elbow, while SO #2 did the same with his right arm. Due to the presence of a possible firearm in direct proximity of the Complainant, it was decided that the best and safest course of action would be to take the Complainant to the ground, with each officer holding onto one arm and guiding him down. The Complainant was described as not actively resisting and he landed on his stomach/chest area. At no time did the Complainant’s face impact with the ground.

WO #1, a member of the Emergency Tactical Unit (ETU) who had arrived with SO #1 and SO #2, immediately recognized the carrying case which was behind the Complainant as being a fishing rod case. WO #1 described the grounding of the Complainant by SO #1 and SO #2 as with purpose, but not forceful, with one officer holding onto each of the Complainant’s arms and the Complainant landing on the ground chest first; at no time did WO #1 observe the Complainant’s head hit the ground. Since the Complainant continued to move around, once on the ground, WO #1 placed his foot against the left side of the Complainant’s head for approximately three seconds, until SO #1 and SO #2 were able to pull the Complainant’s hands behind his back, and he was handcuffed.

WO #1 described the arrest of the Complainant as a “vanilla” arrest, or one requiring the least amount of force possible, with the Complainant’s face at no time striking the ground and no blows being delivered by any police officer present. Furthermore, the Complainant made no complaint about his arrest, nor was any blood observed either on the Complainant or on the ground where he had been arrested. While an ambulance was requested by police as there was a concern that the Complainant, due to his unresponsive behaviour, was either under the influence of drugs or possibly suffering from hypothermia, the Complainant was not observed to have any injury to his face either by the police officers present or by the paramedics who assessed him. Specifically, the paramedics described the Complainant as having no obvious facial or nasal injury and no signs of fresh or dry blood on his face or nostrils, but appeared sluggish and somewhat lethargic, not alert, and somewhat drowsy. He was also described as having slurred speech and not being forthcoming with paramedics during their assessment. One of the paramedics opined that he would have expected to see some evidence of bleeding in the nasal area secondary to a fresh nasal fracture, had he just suffered such a fracture. Additionally, the Complainant at no time made any physical complaints to paramedics, nor did he complain of having sustained any injury, or of mistreatment by the police, his only complaint being that he was cold.

Upon arrival at the hospital, due to the Complainant’s unusual and lethargic behaviour, he was sent for a CT scan of his head, during which he was discovered to have a minimally displaced fracture of the nasal bone with overlying soft tissue swelling. The doctor who assessed the Complainant described the nasal bone fracture as being acute or sub-acute. According to the website of www.cindyprocterrmt.com, the acute or inflammatory stage of an injury refers to that which occurs immediately after an injury is sustained, while the sub-acute stage refers to the stage wherein some healing is already taking place, including bruising turning yellow, green, or brown, and inflammation decreasing. On this basis, it is impossible to determine if the Complainant’s injury occurred on January 31, 2018, or sometime prior (or if he perhaps re-aggravated a recent injury).

While the Complainant, in his interview with SIU investigators, indicated that he was approached at approximately 12:00 p.m. on January 31, 2018, in the area of St. Paul Street in downtown St. Catharines, by six police officers, and was thrown to the ground, he had no information as to why they approached him and could provide no information as to what had occurred prior to his arrest. The Complainant did confirm, however, that he was on his abdomen on the sidewalk and that he was later taken to the hospital for his nasal bone injury.

The Complainant opined that his nose was broken when the police officers crushed his face into the concrete, and indicated that his nose was bleeding at the time, following which he was picked up and thrown into a police car. While the evidence of both paramedics is consistent with that of the three police witnesses, that there was absolutely no evidence that the Complainant’s nose had been bleeding subsequent to his arrest, combined with the very little detail that the Complainant could recall of the incident itself, I find that I am unable to place any reliance on the evidence of the Complainant, which appears to be more along the lines of his attempting to piece together what had occurred, rather than an actual accurate recollection.

Pursuant to s. 25(1) of the Criminal Code, police officers are immune from criminal liability when they use force if they are acting in furtherance of their lawful duties, and if they use only as much force as is reasonably necessary to effect their lawful purpose. On this record, I have no hesitation in finding that both SO #1 and SO #2 were carrying out their lawful duties in apprehending a male for whom they were in possession of information which provided them with reasonable grounds to believe that he had been involved in a motor vehicle collision, that he had failed to remain at the scene of the collision, and that he had been seen walking down the street with what was broadcast as a long gun in his possession. As such, the actions of SO #1 and SO #2 in arresting the Complainant were lawful, based on reasonable grounds, and in accordance with their duties.

I further have no hesitation in finding that while the Complainant was in a confined space, being the store alcove, and in close proximity to what had been described to police as a gun case containing a long gun, that the police officers dealing with the Complainant would have been under some considerable pressure to deal with the Complainant as quickly as possible in removing him from the alcove, where he was in close proximity to the perceived gun case.

I am also of the view that the grounding resorted to by SO #1 and SO #2 was a reasonable option available to the police officers to apprehend a suspect who had already fled the scene of a motor vehicle collision, was very likely involved in breaking and entering into at least one residence, from which he obtained the bicycle and the property in his possession, and was now in close proximity to what appeared to be a firearm case. In these circumstances, I cannot find that SO #1 and SO #2, who were described by a witness officer as taking the Complainant to the ground in a controlled fashion, with each officer holding onto one arm and lowering him to the ground, and with the Complainant’s head or face at no time striking the ground, that either of SO #1 or SO #2 resorted to any more than the minimal force required and no more than was reasonably necessary to achieve their lawful purpose.

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]

I further find that the evidence does not satisfy me that there are reasonable grounds to believe that the Complainant’s injury was caused by the police officers who apprehended and arrested him.

It is clear on all of the evidence that at no time, as would have been expected had the Complainant’s nose just been fractured, was there any sign that the Complainant had sustained an injury to his nose or face, as there was an absolute absence of any bleeding, redness, or bruising. While it is very possible that the Complainant injured his nose when he fell several times on the concrete sidewalk and into an icy snow bank, landing face down, when he was leaving his motor vehicle and thereafter as he was going door to door, as observed by a number of independent witnesses, the lack of any sign of injury whatsoever to the Complainant’s face, and the observation by the attending physician that the Complainant’s injury could have been either in the acute or sub-acute phase, I find it more likely that this injury was pre-existing and the Complainant, due to the minimal displacement, was simply unaware that his nose had been fractured. I find support in this conclusion in the fact that at no time following his arrest did the Complainant make any complaint, either to the police, paramedics, or medical staff, as noted in his medical records, of any injury to his face or nose, or any rough treatment, or mistreatment, by the police.

Even had the Complainant ’s nose been fractured, however, when he was taken to the ground by the police in what was described as both a controlled manner and the safest method by which to constrain and arrest the Complainant, which I find highly unlikely as there is no evidence that his face, head, or nose ever struck the ground, I am still of the opinion that this evidence is not capable of providing me with reasonable grounds to believe that the actions of the police amounted to an excessive or unjustified use of force on these facts.

In conclusion, on this record, I find that the evidence does not satisfy me either that any police officer dealing with the Complainant on January 31, 2018 resorted to an excessive use of force, or that the Complainant’s injury was sustained at the hands of the police, or even that it was sustained on the date of this incident. As I therefore lack the bases for the laying of criminal charges, none shall issue.

Date: November 21, 2018



Tony Loparco
Director
Special Investigations Unit