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SIU Director’s Report - Case # 18-OCI-006

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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 a serious injury sustained by a 34-year-old male on January 10, 2018.

The Investigation

Notification of the SIU

On January 10, 2018, at 12:40 p.m., the Niagara Regional Police Service (NRPS) reported a custody injury sustained by the Complainant at 9:16 a.m. on January 10, 2018, at a residence in St. Catharines.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Not interviewed, but notes received and reviewed
WO #2 Interviewed
WO #3 Interviewed

Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Incident Narrative

On January 10, 2018, Civilian Witness (CW) #1 texted her friend to tell her that she was being beaten by the Complainant and to ask for help. CW #1’s friend called 911 and two NRPS officers, the Subject Officer (SO) and Witness Officer (WO) #2, attended CW #1’s residence in St. Catharines.

The officers found the Complainant in a bedroom on the second floor of the residence and arrested him for breach of recognizance because the Complainant was bound by bail conditions not to have any contact with CW #1. The Complainant resisted arrest and the two officers struggled to handcuff him in the small bedroom. During the struggle, it is alleged that the SO stomped on the Complainant’s foot for distractionary purposes – causing a serious injury to his foot.
The Complainant escaped the grasp of the officers and jumped down the stairs, falling several feet. The officers chased him and successfully handcuffed him in the downstairs kitchen.

Evidence

The Scene

The scene was located in a second floor bedroom in a residence in St. Catharines. A 13-step, steep, straight staircase connected the first floor to the second floor of the residence. A solid, three foot high wall separated the second floor hallway from the open staircase. SIU FI photographed the staircase and the second floor bedroom where the Complainant was located.

Communications Recordings

On Wednesday, January 10, 2018, at 9:16 a.m., a telephone call was received at the NRPS communications branch from CW #1’s friend who related that she had received a text message from CW #1. CW #1 had text messaged that she had been assaulted by the Complainant and that he was still in her residence in St. Catharines. The Complainant had forcibly confined CW #1 to the residence with her two young children.

At 9:20 a.m., WO #2 and the SO were dispatched. The dispatcher broadcast a description of the Complainant and the fact that he was violent and had a propensity to possess weapons. The dispatcher also related that the Complainant was on conditions to stay away from CW #1. At 9:29 a.m., the SO broadcasted, “Male is running.” At 9:30 a.m., CW #1’s friend telephoned the communications branch a second time and related that CW #1 was getting assaulted and that the police should get inside as soon as possible. At 9:34 a.m., a police officer broadcast that all was okay and the Complainant was in the cruiser.

Video/Audio/Photographic Evidence

Custody Video Follow-up

At 10:00 a.m., January 10, 2018, the Complainant, who wore only a red pair of shorts, exited a marked Sport Utility Vehicle (SUV) cruiser, in the sally port at NRPS #2 District. The cruiser was driven by WO #2. The Complainant hopped on his left foot and entered the booking room. WO #3 was seated behind the counter and WO #1 stood behind the counter. The Complainant was verbally aggressive and before he was asked any questions, he told WO #3 that the police had stepped on his right foot and broken it. WO #2 told WO #3 that the Complainant had jumped over a balcony and down a staircase. WO #1 directed WO #2 to take the Complainant to the Greater Niagara General Hospital.

At 12:29 p.m., January 10, 2018, the Complainant was wheeled back into the booking area in a wheelchair. He complained again that police had stepped on his foot and broken it. WO #1 told the Complainant that he had now changed his story as the first time he was brought in WO #1 was under the impression that the Complainant had told WO #3 that he jumped over the balcony. On viewing the video it was apparent that WO #1 was mistaken.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Arrest Booking Documents;
  • CAD Detailed Call Summary;
  • General Occurrence Report;
  • NICE Inform Reconstruction Results Table - Radio Transmissions;
  • Notes of WO #1, WO #2, and WO #3;
  • NRPS Recording from Master Logger;
  • NRPS Witness List;
  • Procedure – Use of Force;
  • Procedure – Powers of Arrest; and
  • Radio communications.

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 267, Criminal Code -- Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant, 
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Analysis and Director's Decision

On January 10, 2018, Civilian Witness (CW) #1 text messaged her friend that she was being beaten by the Complainant and needed help. Her friend called 911 and the Subject Officer (SO) and Witness Officer (WO) #2 of the NRPS responded. The officers found the Complainant in an upstairs bedroom of CW #1’s residence and he resisted arrest. During the struggle to arrest him, the SO allegedly stomped or stepped on the Complainant’s foot, causing a serious injury. The Complainant also fell down a steep flight of stairs while attempting to escape. Neither officer admitted to stomping on the Complainant’s foot although the SO stated that the struggle occurred in a small space and the Complainant’s foot was possibly stepped on by accident. For the following reasons, I am unable to form reasonable grounds to believe that the SO committed a criminal offence in relation to the Complainant’s injury.

The SIU’s investigation consisted of interviews with the Complainant, two CWs, the SO and two WOs. A 911 call and radio communications were also reviewed. Based on a review of this evidence, the factual circumstances of the incident are predominately clear.

On January 10, 2018, at 9:20 a.m., the SO and WO #2 were dispatched to CW #1’s residence. The dispatcher informed the officers that CW #1 had text messaged someone saying she was being beaten by the Complainant. The officers were also told that the Complainant had a history with weapons, and was bound by a bail condition to not be in the vicinity of or have any contact with CW #1 without her revocable consent.

At around 9:25 a.m., the officers arrived at CW #1’s residence. CW #1 answered the door and appeared extremely frightened. She had yellow bruising on her face, quivered and quietly told the officers that the Complainant was upstairs on the second floor of the house. The officers entered the home with CW #1’s permission and observed two young children in the living room on the first floor. A steep flight of 13 stairs was directly in front of the front door, and a three foot high wall separated the stairs and a second-floor hallway.

The officers went up the stairs and found the Complainant in a bedroom, lying in bed with sheets pulled over his head. WO #2 entered the bedroom followed by the SO. WO #2 told the Complainant he was under arrest for breach of recognizance and the Complainant repeatedly asked why he was under arrest. The Complainant got out of the bed and turned toward the officers. The SO took out his conducted energy weapon (CEW) but did not deploy it. The Complainant told the SO to use the CEW on him. The Complainant was not obeying commands but was not initially assaultive and the SO put his CEW away. The SO and WO #2 each took hold of the Complainant’s arms and struggled to handcuff him. The Complainant was muscular and strong, and kept moving his arms and shoving the officers. It is alleged that during this struggle the SO stomped once on the Complainant’s bare foot in order to distract him, but neither the SO nor WO #2 remembered either officer intentionally or accidentally stepping on the Complainant’s foot.

The Complainant escaped the officers’ grasp when he and the SO tripped over the bed, falling onto the floor. The Complainant landed on top of the SO and WO #2 was forced back onto the bed. The Complainant quickly got up and ran out of the bedroom toward the stairs and WO #2 saw the Complainant vault feet first over the wall separating the hallway and the stairs. WO #2 estimated that the Complainant fell approximately 15 to 20 feet. The Complainant alleged that he did not jump but fell down at least ten the stairs because his foot gave out after his foot had been stepped on.

The SO and WO #2 followed the Complainant down the stairs, grabbed him and took him to the kitchen to be out of view of the Complainant’s children. He continued to struggle but was eventually handcuffed. The officers placed the Complainant in their police cruiser and he was eventually taken to GNGH where he was diagnosed with a serious injury.

In this case the officers, in attempting to arrest the Complainant, were acting within the scope of their duties as they were responding to a 911 call relating to a domestic assault. They were also aware of a breach of probation and bail by the Complainant. Further, they were let into the house by the alleged victim of the assault, CW #1, who looked extremely scared when she answered the door and quietly told them where the alleged perpetrator of the assault was located.

Pursuant to s. 25 of the Criminal Code police officers are permitted to use force in the execution of their lawful duties as long as they are acting on reasonable grounds and used no more force than is necessary. As already indicated, the arrest was clearly lawful as the officers were legally in the home, on the invitation of CW #1, and the Complainant was at minimum actively breaching his recognizance. The only question then becomes did the officers use excessive force during the course of the Complainant’s arrest?

I will begin by considering whether the injury was caused by an officer stomping on the Complainant’s foot. There is some evidence supporting this assertion, including the allegation, the nature of the Complainant’s injury and its proximity to his arrest. The only potential charge that applies to these circumstances is one of assault causing bodily harm contrary to s. 267(b) of the Criminal Code. Assault causing bodily harm is made out where a person intentionally applies force to another person, without the consent of that person, and that force causes bodily harm.

My analysis begins by assuming that the injury was caused by the Complainant’s barefoot being stepped on. That being said, having reviewed the evidence, I am doubtful that if his foot were stomped or stepped on that that action was intentional. According to the arresting officers, the Complainant never complained of any pain or injury during the struggle in the bedroom. While I accept that not all persons will complain immediately, the Complainant does not strike me as the type of individual to keep silent or downplay police involvement in his injuries. The Complainant was argumentative and clearly unafraid to voice his displeasure during the arrest. When getting to the first floor ahead of the officers he loudly yelled at CW #1 “why did you call the cops”. [1] At another point he even invited the SO to use his CEW on him. Given his apparent fearlessness, it is strange that the Complainant would not also immediately voice complaints over his injury if the SO had really stomped on his foot as he now alleges. Moreover, the officers’ accounts of the incident appear truthful. Everyone agrees that the Complainant and the officers were struggling in a small space of three or four feet and while both officers indicated that they had not stepped on the Complainant’s foot intentionally the SO indicated that given the small space it is possible that the Complainant was stepped on by one or the other of the officers during the struggle. Although WO #2 stated that he never stepped on the Complainant’s foot either accidently or intentionally (nor did he see the SO do so) he described the struggle that occurred while the Complainant was trying to escape as a “dance” that led to everyone falling over in the confined space. Further, WO #2 indicated to SIU investigators that the Complainant had complained to him on the drive to the station about his foot hurting and stated that it had been stepped on during the struggle in the bedroom before he jumped over the wall onto the steps. In my opinion if the injury occurred during the struggle in the bedroom I am inclined to believe that it occurred accidently by someone stepping on the Complainant’s foot due to the difficulty in controlling a very strong man which ultimately led to all of the men falling in the small confined bedroom space.

However, were I to accept that an officer intentionally stomped on the Complainant’s foot (which I do not) I would still have no reasonable grounds to believe the SO committed an offence in this circumstance. The level of force alleged is not particularly significant. Even the Complainant concedes that he thought the “stomp” was delivered for distractionary purposes to get the Complainant to accept being arrested and handcuffed during their struggle and the Complainant admitted he was not otherwise struck by either officer in any other way at any point. While an officer stomping on a barefooted suspect’s foot would raise some concerns, I am mindful of the jurisprudence which clearly states that police officers are not held to the standard of perfection in the execution of their duties (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are they expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.).

If a stepping or stomping on the foot was not the mechanism of injury and the injury was caused by the complainant jumping or falling down the stairs, [2] I would be in an even weaker position to form reasonable grounds to believe that either officer committed a criminal offence. If landing on his foot after a jump and/or fall is how the injury occurred in my view the officers could not bear criminal responsibility for an injury which would have been caused because of the Complainant’s reckless attempt to escape custody.

In sum, on the evidence before me, I am unable to form grounds to believe that the SO unlawfully assaulted the Complainant because I do not believe the force, if applied, was intentional. However, even if the force was intentional, in the circumstances I would still lack grounds to believe that the SO committed an offence because the use of alleged force falls within the level of force permitted of officers in the execution of their duties. Thus, no charges will issue.



Date: November 16, 2018




Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) In fact other than the Complainant yelling at her the only thing heard by CW #1 was a loud bang followed by an officer stating “why did you jump down the stairs” and the Complainant responding “why did you push me” (which the Complainant never alleged during his SIU interview). [Back to text]
  • 2) Which the medical expert consulted opined was the less likely mechanism of injury. He believes the injury looked like an injury caused by stepping or stomping on a foot. [Back to text]