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SIU Director’s Report - Case # 18-OCI-085

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 58-year-old man during his arrest on March 19, 2018.

The Investigation

Notification of the SIU

At approximately 6:00 p.m. on March 21, 2018, the Niagara Regional Police Service (NRPS) notified the SIU of the Complainant’s custody injury.

The NRPS reported that on March 19, 2018, at approximately 11:50 p.m., the Complainant was arrested outside his residence in the City of Niagara Falls, for the offence of take auto without the owner’s consent. After a brief struggle, the Complainant was taken into custody and transported to the police station where he was held until 6:36 a.m. on March 20, at which time he was released.

Upon his release, the Complainant indicated that he was having pain in his rib area and Emergency Medical Services (EMS) attended, but the Complainant refused medical attention and instead left the police station.

On Wednesday, March 21, 2018, at 5:30 p.m., the Complainant contacted the NRPS and advised he was suffering from fractured ribs as a result of his arrest.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed


Police Employee Witnesses

PEW #1 Interviewed, notes received and reviewed
PEW #2 Interviewed, notes received and reviewed


Subject Officers

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


Incident Narrative

At approximately 10:17p.m. on March 19, 2018, a 911 call was received by the NRPS reporting that the Complainant, after consuming both alcohol and morphine, threatened the caller and subsequently left the residence in a Pontiac G6 which belonged to the Complainant’s sister, CW #1.

In response to the call, WO #2 was dispatched to the residence where he spoke to CW #1 and CW #2, who confirmed that the Complainant had taken CW #1’s vehicle without her consent and that they believed him to be driving while impaired. WO #2 told CW #1 and CW #2 to contact police if the Complainant returned; he then left the residence and searched for the Complainant at local drinking establishments, without success.

At roughly the same time, the SO was notified by the dispatcher of a report from another 911 caller of a possible impaired driver on Mountain Road, who had struck a cement median. The SO attended the area to attempt to locate the vehicle, but was unable to do so.

At 11:35 p.m., WO #2, WO #3, and WO #1 were dispatched to an ‘unwanted person’ call at the residence of CW #1 and CW #2, who had called in reporting that the Complainant had returned to the residence and CW #1 and CW #2 wanted him immediately removed, as he was violently drunk and they feared for their safety.

Upon arrival at the residence, the three responding police officers located the Complainant seated on a couch inside a porch enclosure and they engaged him in conversation for a period of time, until the SO arrived on scene. The SO then placed the Complainant under arrest and escorted him out of the residence. A brief struggle ensued while attempting to handcuff the Complainant and he was subsequently taken to the ground in the driveway. He was then transported to the police station and placed into the cells.

The following day, PEW #2 removed the Complainant from the cells, at which time the Complainant indicated that his ribs were broken and that police had caused the injury. An ambulance was called for, but the Complainant then refused treatment and left the police station.

On March 21, 2018, the Complainant attended the hospital on his own and was diagnosed with a mildly displaced fracture of the sixth right rib. Thereafter, the Complainant attended a walk-in clinic for a second opinion and he was diagnosed with fractured fifth and sixth right ribs.

Nature of Injuries / Treatment

The Complainant’s hospital medical records confirmed that he had sustained an acute fracture to the right sixth rib.

Health records obtained from the walk-in clinic indicated a mildly displaced fracture of the sixth and possibly the fifth right rib. The records indicated that the Complainant returned to the clinic on March 31, 2018, insisting on repeating x-rays as he was unsatisfied with the results and that he needed the doctor to say his sternum was broken, to increase his civil lawsuit against the police. A definite sternum fracture could not be confirmed.

Evidence

The Scene

The scene was located in front of a trailer in a trailer park in the City of Niagara Falls. A wooden deck with a wheelchair ramp leading to the cement driveway was located outside of the front entrance of the trailer; there were waist height railings that ran adjacent to the deck, and a small garden-like space between the trailer and the wheelchair ramp.

Video/Audio/Photographic Evidence

Booking Hall Recordings:

The SIU received and reviewed booking hall recordings of the Complainant being processed into the NRPS station on March 19, 2018. Due to a technical issue, however, the audio was not functioning. The video depicted the following:

  • The Complainant arrived in the sally port and was taken from an NRPS fully marked SUV police cruiser;
  • The involved police officers are identified as WO #1 and WO #3;
  • The Complainant was led into the booking area with his hands handcuffed in front of his body; he was stooped over as if in discomfort;
  • The Complainant was led to the booking desk where a Sergeant, WO #5, appeared to be taking details from the Complainant;
  • Also present was a PEW;
  • Initially, the Complainant was taken in front of the desk, where he stood and appeared to be arguing with all of the police officers present;
  • At 1:14 a.m., the Complainant dropped to his knees, from which position he appeared to continue yelling or arguing with police officers, especially WO #1;
  • The Complainant was then moved across the hall to another area to be searched;
  • The search was conducted by PEW #1, who used a wand, while the Complainant leaned forward with his hands on the wall;
  • The Complainant again appeared to drop to his knees, as he continued to argue;
  • At 1:24:28 a.m., PEW #1 pulled the Complainant to his feet, turned him, and thrust him back against the wall in order to finish the search procedure, which involved removing the Complainant’s socks;
  • At 1:26 a.m., the Complainant was placed into a cell; while in the cell, the Complainant tried to sleep on the bunk, but he appeared restless for much of the time, with occasional visits to the toilet or sink within the cell; and
  • At 6:20 a.m., the Complainant was removed from the cell and taken back to the booking hall, where his property was returned to him prior to his release; the Complainant was then seated in a wheelchair and pushed from the corridor toward the exit, and out of view.

Communications Recordings

The SIU received and reviewed a number of communication recordings from March 19, 2018; a summary of those recordings follows:


Audio Recording of 911 call received at 10:17 p.m.

  • A man who identified himself as CW #2 called 911 and reported that the Complainant was intoxicated;
  • The caller advised that he needed police presence at an address he provided;
  • A man and a woman could be heard screaming in the background of the recording;
  • The caller advised that the Complainant resided in the porch area of the residence where you need to go inside to use the washroom;
  • The Complainant had come home drunk and banged on the window;
  • The Complainant was on approximately 200 to 800 milligrams of Morphine;
  • The Complainant came inside and flung the door at CW #1 and, as a result, her hand sustained a bump;
  • The Complainant had denied he was drunk;
  • The Complainant took the car keys and CW #2 asked for the keys back, to which the Complainant responded, “fuck you”;
  • The caller advised that the Complainant threatened to kill him;
  • The caller advised that the Complainant left in a light blue-grey four door Pontiac G6 and provided a licence plate number, but he said one letter might be wrong;
  • The caller, a female and a second male voice (CW #1 and her husband) can all be heard in the background telling the 911 operator that they do not want the Complainant back at the residence and that the Complainant does not have a driver’s licence;
  • CW #1 is heard in the background saying, “He needs to go to jail for the night”;
  • The caller advised that the Complainant was an alcoholic and named a couple of bars that he frequented;
  • The caller gave a physical description of the Complainant;
  • When the 911 operator asked the caller why he believed that the Complainant was impaired, the caller responded that the Complainant was half in the bag, stumbled a couple of times, and said things that he would have never said if he had been sober;
  • The caller advised that the Complainant left the trailer parker and drove towards the roundabout on Mountain Road;
  • The caller requested that police officers be sent to the residence when the Complainant returned; and
  • The caller indicated that CW #1 was the owner of the vehicle and that the Complainant did not have permission to drive the vehicle. The call ended with the 911 operator agreeing to send a police officer to the residence.


Radio transmission from 10:22 to 10:53 p.m.

  • Dispatch sent a broadcast to WO #2, advising of an impaired driving call in the area of the address provided by the caller. Dispatch advised that the man had banged on a window, hit a female with a door, started arguing, left the address in a light blue Pontiac G6, and that the caller had provided a plate number and indicated that the vehicle was registered to CW #1;
  • Dispatch advised that the man was drinking, on a lot of morphine, and did not have a driver’s license;
  • Dispatch advised that the man had gone toward the roundabout and provided the names of the bars that he frequented, as well as a description of the Complainant; and
  • WO #2 stated that he would notify the OPP, given the proximity to the highway.


Audio Recording of 911 call received at 11:30 p.m.

  • A 911 caller advised that he had been driving in the area of Mountain Road and Mewburn Road in Niagara Falls when he saw a vehicle driving at a high rate of speed and cross the median;
  • The caller indicated that the driver might be drunk, that he was headed toward the highway, and that he had sped past the caller ‘like a bat out of hell’ toward Mewburn Road; and
  • The caller provided a description of the vehicle as being a four-door silver car, but could not provide a description of the driver.


Radio transmission from 11:33 to 11:38 p.m.

  • Dispatch sent out a broadcast for an impaired driver on Mountain Road near Mewburn Road, who had driven across the median into oncoming traffic and was headed toward the highway;
  • The SO stated that they would attend; and
  • Dispatch advised WO #2, WO #3, and WO #1 that the call may be related to an earlier call from CW #1, wherein the man complained of had returned in a motor vehicle and was impaired.


Audio Recording of 911 Call received at 11:32 p.m.

  • The 911 caller, who identified himself as CW #2, claimed that they were fearful because the Complainant had returned to the residence drunk and that CW #1 had changed her mind and wanted the Complainant charged with assault, as he had pushed a door at her;
  • The caller went on to say that they were fearful for their lives and wanted police to attend immediately to take the Complainant away, but that an ambulance was not required; and
  • The caller advised the 911 operator that the Complainant was violently drunk and could be located in an enclosed porch, which was the first room as you entered the trailer; he also provided the Complainant’s name and physical description, as well as that of the car that he had been driving, which was now parked in the driveway.


Radio transmissions from 11:35 p.m. to 1:06 a.m.

  • Dispatch requested that WO #3 and WO #1 provide back up for WO #2, in regards to a drunk male who had returned to the residence and was violently drunk; the address of the residence was provided;
  • Dispatch advised WO #2 that the callers had changed their minds and wanted the man charged with assault;
  • Dispatch advised units that the impaired driver call may be related to the call at the residence;
  • WO #1 and WO #3 advised dispatch they were on the call and were going to be 10-19 (back at the station); during the transmission, a man was heard crying or yelling in the background;
  • Dispatch asked WO #1 and WO #3 if they were 10-4 (all in order) to which they responded that they were;
  • WO #3 and WO #1 advised dispatch that the cells were not going to take the Complainant and they advised they would try to find him a hotel. During the transmission, a man was heard yelling in the background about being arrested;
  • Dispatch advised the SO that the pastor did not want the man present; and
  • WO #3 and WO #1 advised dispatch that they were back at the cells.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:

  • Record of Arrest;
  • Computer Aided Dispatch (CAD) Report;
  • Detailed Call Summary;
  • General Occurrence Report;
  • Notes of WO #s 1-4 and PEW #s 1 and 2;
  • Procedure: Use of Force;
  • NRPS Scene Photographs;
  • Prosecution Summary;
  • NICE Inform Radio Transmission Tables (x3);
  • Recording from Master Logger (x3); and
  • 911 communication and radio recordings (x3).

The SIU obtained and reviewed the following materials and documents from other sources:
  • Medical records of the Complainant related to this incident, obtained with his consent; and
  • Photos of the Complainant’s injuries provided by the Complainant.

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

At approximately 10:17 p.m., on March 19, 2018, a 911 call was received by the NRPS from CW #2 reporting that the Complainant, who was intoxicated and had ingested morphine, had taken CW #1’s car without her consent and was operating the vehicle while intoxicated. The vehicle was described as a Pontiac G6, light blue-grey in colour. The caller described the Complainant, and the motor vehicle, as leaving their residence and heading in the direction of Mewburn Road and Mountain Road in the City of Niagara Falls. WO #2 of the NRPS was dispatched on the call.

At 10:30 p.m., on March 19, 2018, a 911 call was received by the NRPS reporting that he was in the area of Mewburn Road and Mountain Road in the City of Niagara Falls and had seen a four-door silver motor vehicle, possibly being driven by a drunk driver, driving at a high rate of speed and crossing the median, before speeding off toward Mewburn Road. The SO advised that he would take the call and investigate.

At 11:32 p.m., on March 19, 2018, CW #2 again called 911 and reported that the Complainant had now returned to the residence and that CW #2 and CW #1 feared for their lives, as the Complainant was violently drunk, and they wanted him immediately removed from the residence. WO #2, WO #3, and WO #1 were dispatched to the call at the residence. When the dispatcher broadcasted that the call regarding the drunk male at the residence and the possible drunk driver might be one and the same, the SO also headed to the residence.

Once at the residence, the Complainant was arrested for failing to leave the premises when directed to do so by the lawful occupant (s.2 of the TPA), and take motor vehicle without consent (s.335 of the Criminal Code) [1], and transported to the NRPS station, where he was held in custody overnight. The following morning, the Complainant was released. On March 21, 2018, the Complainant took himself to hospital where he was assessed as having sustained a fractured rib. The Complainant alleges that the police officers who arrested him resorted to excessive force, thereby causing his injury.

During the course of this investigation, in addition to the Complainant, two civilian and six police witnesses, as well as the subject officer, were interviewed; the police witnesses also provided their memorandum book notes to SIU investigators for review. Additionally, SIU investigators obtained and reviewed the various 911 call recordings, recordings of the police radio transmissions, the video recordings of the Complainant being processed and booked into the NRPS and his subsequent release the following day, and the Complainant’s medical records in relation to this incident, along with photographs of his injuries. The following is a summary of that evidence.

After WO #2 was dispatched to the residence in response to the initial 911 call from CW #2, he searched area drinking establishments looking for the Complainant, without success.

The SO, who was dispatched to the report of a possible drunk driver, searched the area of Mewburn and Mountain Roads, but was also unsuccessful in locating the involved motor vehicle.

When the second 911 call was received from CW #2, reporting that the Complainant had now returned home and was intoxicated, and that CW #2 and CW #1 wanted the Complainant criminally charged, the dispatcher connected the dots and advised officers that the male who had left the residence in an intoxicated condition driving a light silver-grey Pontiac G6, might well be the same possibly drunk driver who was seen driving a four-door silver motor vehicle which had been seen crossing the centre median in the area of Mewburn and Mountain Roads, and the SO’s investigation then also led him to the Complainant’s residence.

The Complainant’s hospital records have recorded that he attended at hospital at 11:17 a.m. on March 21, 2018, complaining of back and rib pain. The records reveal that the Complainant advised medical staff that, “police grabbed him. Threw him to the floor.” Later on in the records, the notes read as follows:

Pt (patient) states police beat him up 2 nights ago. Pain to chest/ribs/back. Pain increases on palpation. No significant bruising noted on trunk. Scabbed abrasion to face and base of neck. … Pt c/o (complains of) of chronic back injury/pain exacerbated by event 2 days ago.

A subsequent X-ray revealed that the Complainant had sustained an ‘acute right sixth rib fracture’.

On March 29, 2018, ten days after his interaction with police, the Complainant attended a walk-in clinic. Those medical records indicate that he advised medical staff as follows:

58-year-old gentleman. He states the he was involved in an altercation with the police March 20. He states that he was thrown to the ground. Someone jumped on his back. Compression injury to his chest and rib area. He was seen in the emergency department the following day. Right rib fractures noted. He is taking Advil/Tylenol for the pain. He is complaining of sternal pain. He feels there is some movement with deep inspiration.

The Complainant was then X-rayed again, at the clinic, with the following results:

Chest and Sternum 
There is a mildly displaced fracture of the sixth rib and possibly of the fifth ribs (sic) on the right side. … The sternum appears normal.

Impression
Right rib fractures. No evidence of active pulmonary disease. The sternum appears normal.

On March 30, 2018, the Complainant returned to the clinic; his records from this visit read:

58 year-old-gentleman who was seen here a few days ago was involved in accident altercation sorry with the police on March 20 says he was thrown on the ground and jumped on his back. Had compressive injury to his chest. Rib areas. X-rays were ordered in the hospital once he was not satisfied came back for repeat x-rays here he thinks his car (sic) sternal fracture. On the x-ray here did not show any sternal fracture right ribs are fractured …

Patient feels that his sternum is broken and he is emphatic about it and is also asking Cossette tablets.

On examination colour is normal he is angry and agitated man.
Assessment
Rib fracture, anger, wants oxycodone

Plan
Told the patient about the x-ray result he is not convinced the right (sic)
Suggest he should get a repeat x-ray which requisition was given
I refused to give him oxycodone

On March 31, 2018, the records indicate:

Patient comes in for follow-up on his x-rays
He is quite adamant that his sternum is broken
He states that the police brutalized him. Attacking him and beating on him
He states he was innocently doing nothing
He was seen previously in fact yesterday was seen and was told she (sic) had rib fractures, he was unsatisfied and insisted on repeating the x-rays
X-ray report today shows rib fractures no obvious sternal fracture

He went on and on about the fact that he is suing the police, and that he needs us to say that it is broken to increase his law suit.
He is asking if a CAT scan would reveal it.
He then asked for Percocet.

The records further indicate that the Complainant returned to the clinic again on April 11, 2018, reiterating that he was suing the police, and requesting that the doctor prepare an application for him to go on disability due to his chronic back pain. Again, the records indicate, “Assessment: Rib fracture and chronic pain from back.”

In his interview with SIU investigators, the Complainant indicated that on March 19, 2018, he left CW #1’s residence when he was picked up by a friend who drove him in her SUV for the evening. Later in a subsequent phone call, however, after some questioning, the Complainant conceded that this was untrue [2], and that he had in fact only met his friend at the bar. The Complainant further admitted to having consumed seven ‘Caesars’ while at the bar, and that he had earlier taken a dose of morphine sulfate; on a scale of one to ten for sobriety, with 10 being falling down drunk, the Complainant placed himself at a seven or an eight, when he left the bar.

The Complainant indicated that after he returned to his residence, he got into an argument with CW #2, as a result of which police were called. The Complainant professed to having little recall of his interaction with police, but did recall that two uniformed police officers [3] arrived at the residence and asked him to step outside and, when he did so, the officers grabbed him and slammed him to the ground on a pile of rocks and smashed his head up and down on the rocks which were located in a small garden at the front of the trailer. The Complainant described one police officer as grabbing him by the throat, while the other pounded his knees in his back; he was unable to distinguish between these two police officers.

The Complainant described yelling at the police officers to stop, as they were hurting him, but they continued, despite his telling them that he had a back injury. During the altercation, the Complainant stated that he tried to raise his head several times to plead with the officers to stop, but they yelled at him to stay down and continued to smash his head into the rocks; he estimated that his head was smashed into the rocks by the police officers for between 60 and 75 seconds, while he at no time resisted.

The Complainant described CW #1 as coming out of the residence at one point and asking what the police were doing and telling them to leave her brother, the Complainant, alone. [4] Eventually, the Complainant recalled, he was handcuffed with his hands behind his back and indicated that he was advised that he was under arrest for taking a motor vehicle without consent. At no time was he advised of his right to counsel. He was then brought to his feet and placed into the rear of the police cruiser, during which his head was hit on the top of the door.

Once at the police station, the Complainant was placed into a cell and complained of the way he had been treated. The Complainant again reiterated that he had little recall, but indicated that he may have been belligerent with the staff at the police station.

The Complainant recalled being released the following morning, on March 20, 2018, and that at no time was he offered the opportunity to use an ambulance. The Complainant stated that he went to hospital on March 21, 2018, where, despite what his medical records indicate, he claims that the doctor told him that he had sustained broken ribs and may also have a hairline fracture to his sternum.

While CW #2 did not see the interaction between the Complainant and the police on March 20, 2018, I note that in his statement to SIU investigators, he recounted the Complainant telling him that a police officer had jumped on his back and used his knee, which caused a bruise to his back.

Like the Complainant, CW #1, in her statement to SIU investigators, had many memory lapses with details which she could not explain or recall. She advised that after the initial visit by WO #2, as a result of the first 911 call, the Complainant returned to the residence with the motor vehicle, which appeared to have been damaged with both of the driver side tires being flat. She described four police officers attending her residence, thereafter, but she was unable to recall why they had done so and she could not remember if either she or CW #2 had contacted police again after the Complainant returned home. [5] CW #1 recalled that one police officer entered and spoke with the Complainant in the ‘add-on room’ [6], while the other three remained outside. She recalled the Complainant going outside at some point, but she was unsure if he went out with a police officer. CW #1 described the Complainant as being angry and upset about what had happened to the car and she could hear a lot of yelling and screaming.

Initially, CW #1 indicated that she observed three police officers throw the Complainant to the ground outside of the trailer; she later amended this statement, however, when she recalled that she did not in fact see how the Complainant got to the ground, as her first sight of him outside was when he was already down on the ground and three police officers were twisting his neck from side to side and putting his face against the gravel in a white rock style garden, which was located in front of the trailer. CW #1 described one police officer as being on the Complainant’s back, while the other two were on each side of him, but she was unable to recall if the Complainant fought or resisted the police. CW #1 told SIU investigators that the police, “beat the living shit right outta him,” but she provided no details as to how that was done, other than this blanket statement.

CW #1 could also not recall whether or not the Complainant was handcuffed when he was taken away by police. CW #1 conceded that prior to giving her statement to SIU investigators, she and the Complainant had discussed the actions of police, leaving me with some suspicions as to whether CW #1 actually has any independent recollection, or if she was simply repeating what the Complainant had told her.

Looking at the totality of the evidence, I find that I have significant concerns about the accounts provided by the Complainant and CW #1. The reliability of their evidence is in question, either because of the level of intoxication of one or more of the parties, their inability to fully observe the incident, or because of some other underlying motivation which is referred to several times in the medical records from the walk-in clinic, that being the Complainant’s desire to exaggerate his injuries in order to improve his law suit and the potential reward from the lawsuit, and his apparent desire for narcotics, which he requested on more than one occasion, and which included requests for both oxycodone and Percocet, which requests were repeatedly denied by doctors because he was already self-medicating with morphine.

Of specific concern is the fact that each of the Complainant and CW #1 initially provided a version of events with respect to some of the details, which they later admitted was blatantly false, and each stated that they had very little recall of the incident. On this basis, I find that I have to question the credibility and reliability of these two witnesses with respect to their entire statements, and not just those portions which they clearly distorted; the third civilian witness, CW #2, indicated that he was not witness to the Complainant’s arrest, and was only able to provide evidence as to what the Complainant had told him.

The Complainant’s allegations in his statement to SIU investigators that he was physically abused by police is as follows:

  • Two uniformed police officers grabbed him and slammed him to the ground on a pile of rocks and smashed his head up and down on the rocks;
  • One police officer grabbed him by the throat, while the other pounded his knees in his back;
  • His head was smashed into the rocks by the police officers for between 60 and 75 seconds, while he at no time resisted; and
  • His head was hit on the top of the cruiser door when he was placed inside the police vehicle;

I note, however, that the Complainant originally told CW #2 that his only complaint was that a police officer had jumped on his back and used his knee, which caused a bruise to his back. I also note that this was his original complaint, as reported to medical staff at the hospital where he was originally seen two days after the incident, where he is noted as stating that police grabbed him and threw him to the floor, although he does later make a blanket statement of having been ‘beaten’ by police, and in his medical notes from his subsequent visit on March 29, 2018, to the walk-in clinic, where he is again noted as describing the source of his injuries as being, “he was thrown to the ground. Someone jumped on his back.” It is only during his subsequent visits to the clinic, when the medical records note, “He went on and on about the fact that he is suing the police, and that he needs us to say that it (his sternum) is broken to increase his law suit,” that the records first indicate that he was alleging something more than being taken to the ground and a knee in the back, but rather that, “He states that the police brutalized him. Attacking him and beating on him.”

Based on the following misstatements and inconsistencies in the evidence, (which list is not exclusive), I find that the allegations made by the Complainant and CW #1 do not rise to the level necessary where I can be satisfied, with any confidence, that there are reasonable grounds to believe that any police officer resorted to the force as described by the Complainant in his statement to investigators:
  • The Complainant’s original assertion [which he admitted was untrue] that he was not driving a car on the night in question, but that he had been picked up and driven around by his friend;
  • His assertion to medical staff that he had been “innocently doing nothing,” when arrested by police, when he had clearly been operating a motor vehicle while impaired, by his own admission, and he had been in a collision, as evidenced by the fact that the motor vehicle that he had been driving had two damaged tires and wheels when he returned to the residence;
  • The serious inconsistencies between the Complainant’s initial statements to doctors and CW #1, wherein his only complaint was that police had taken him to the ground and put a knee in his back, causing a bruise to his back, and his later assertions to the SIU of a serious beating that he took at the hands of police;
  • The Complainant’s insistence that doctors say that his sternum was broken, when the x-rays indicated that it was not, in order to, “increase his law suit,” as well as his assertion again to SIU investigators, despite the medical records, that he had a possible hairline fracture to his sternum, which he appears to have self-diagnosed;
  • The fact that the Complainant only recalled two uniformed police officers being present, when in fact there were initially three, followed by a fourth;
  • The Complainant’s belief that the same two officers who put him to the ground also placed him into the police cruiser and were responsible for hitting his head on the cruiser [the officers who took him to the cruiser were not involved in his grounding];
  • The Complainant’s assertion that CW #1 came out and told the officers to stop, while CW #1, on the contrary, indicated that she never came outside, but only looked out of the living room window for one minute;
  • The assertion by the Complainant that he at no time resisted police, when he was, in fact, described by CW #1 as angry and upset about what had happened to the car and that she could hear a lot of yelling and screaming when he was with the police officers, and by CW #2, who described the Complainant as coming home drunk and aggressive and wanting to fight, combined with the 911 call recording wherein CW #2 described the Complainant as being violently drunk and that he and CW #1 feared for their lives, while CW #1, in the background, is heard to state that the Complainant needed a night in jail;
  • The observations made by CW #1 as to what the police officers were doing to the Complainant are not consistent with the allegations made by the Complainant, with CW #1 indicating that three police officers were twisting the Complainant’s neck from side to side while pushing his face into the gravel, while the Complainant maintained that there were only two police officers, with one grabbing him by the throat, while the second pounded his knees into the Complainant’s back, while both slammed his head into the rocks for 60 to 75 seconds;
  • The indication in the medical records that the rib injury was a compression fracture with no bruising on his trunk area, appears more consistent with his being injured from the seatbelt when he was involved in a collision in the car, than with being beaten by police, which I would have expected would have at least left some bruising to his torso [7];
  • The Complainant’s assertion that at no time was he given his right to counsel is inconsistent with the evidence of the booking sergeant, who recalled providing him with a list of lawyers’ phone numbers; and
  • The Complainant’s assertion that he was not offered the assistance of EMS, is inconsistent with the evidence of PEW #2, who specifically recalled that an ambulance was summoned by the booking sergeant, following which PEW #2 sat the Complainant in a wheelchair, which he then wheeled to the lobby area so that the Complainant could be examined by paramedics. According to PEW #2, it was the Complainant who refused to be seen by paramedics, insisting instead that he wanted to leave, which he then did. I find that the evidence of PEW #2, in this respect, is confirmed by the booking hall video recording, wherein the Complainant is clearly seen seated in a wheelchair, which is then pushed out of camera view.

I find that all of these inconsistencies and inaccuracies, unfortunately, combined with the Complainant’s own admission to having consumed seven “Caesars”, the assessment by all witnesses that the Complainant’s level of intoxication was a seven or eight on a scale of one to ten, [8] and his admission that he had little recall of his interaction with police on the evening of March 19 and into March 20, 2018, leave me without any confidence that the allegations as made by the Complainant are capable of providing me with reasonable grounds to believe that any police officer acted as alleged by the Complainant.

Even were I to accept, as originally alleged by the Complainant to CW #2, and then to the doctors at the hospital, that a police officer threw him to the ground and then put his knee into his back, causing a bruise to his back, which I do not, I note that I am left without reasonable grounds, on the evidence of the Complainant, as to the identity of these two police officers, as the Complainant was unable to distinguish between these two officers or the other two police officers who were present, but who he apparently did not notice.

Having found, however, that I am unable to rely upon the evidence of either the Complainant or CW #1, I must still assess whether or not the evidence, as provided by the police officers, provides me with reasonable grounds to believe that any of the police officers present caused the Complainant’s injury, and whether in doing so, they resorted to an excessive use of force.

With respect to how the Complainant came to be taken to the ground in front of the residence, the only evidence I have in that regard is that of the SO himself. In his statement to investigators, the SO indicated that upon his arrival at the residence, he observed the Pontiac G6 in the driveway with heavily damaged steel rims and tires, which, from his experience, he opined was the result of a sudden hard impact. This is also consistent with the evidence of CW #1 and the photos later taken of the motor vehicle by the SOCO officers.

When the SO then entered the residence, he observed WO #1 ordering the Complainant to give him the car keys, while the Complainant was screaming and yelling so loudly that the SO could not make out what he was saying. I find corroboration for this evidence in the statements of both CW #1 and CW #2.

When WO #3 then began to escort the Complainant to the door, and the Complainant resisted, the SO grabbed him by the shirt around his right shoulder, while opening the door with his other hand, and escorted the Complainant outside, while advising him that he was under arrest. The SO, according to his statement, then walked the Complainant down the ramp and over to a Jeep, where he placed the Complainant over the hood. The Complainant then turned around, which the SO perceived as a threat, following which the SO proceeded to use his right hand to grab the Complainant by the elbow area and pull him first toward himself, and then using his wrist and forearm, he pushed the Complainant’s shoulder down to the ground onto the driveway.

The SO indicated that once on the ground, he was positioned beside the Complainant’s hip area, while the Complainant put both of his hands underneath his body. WO #2 then told the Complainant to stop resisting, but the Complainant was belligerent and continued yelling. This evidence is again consistent with, and corroborated by, CW #1 and CW #2; it is also consistent as between the various police officers.

When specifically asked, the SO denied ever being on the Complainant’s back, nor did he hit the Complainant’s head off any rocks; this evidence again is consistent as between all of the police officers, all of whom agreed that they neither struck, punched, hit, or kneeled on the Complainant, nor did they ever slam the Complainant’s head into any rocks or resort to any use of force equipment.

The SO then stood the Complainant up, and it was WO #3 and WO #2, and not the SO, who then placed him into the police vehicle, making it seemingly incredible that the Complainant was not aware that there were more than two police officers present. While the SO was not present when the Complainant was placed into the police vehicle, the evidence of the officers present was that at no time did the Complainant’s head ever strike the police cruiser due to the conduct of any police officer. I also note that at no time did the Complainant ever make any such allegation to either the booking sergeant or to medical staff, as noted in his records, and there was no observation by medical staff of any injury consistent with this type of action having occurred.

I have further taken specific note of the fact that at no time did the Complainant, when he was being questioned by the booking sergeant, make any complaint either of mistreatment by police or of an injury, only making his first complaint when he was released in the morning, when he indicated that his ribs had been injured by police during his arrest. On this basis, I can only assume that because of his level of inebriation, the Complainant was anaesthetized to the pain of his injuries until he sobered up, making it as likely that he had received the injury when he was involved in the collision, as it is that he was injured when he was arrested, and he simply was unaware of the pain until the following day, when he tried to piece events together in his mind, despite his obvious lack of recall.

If, as the Complainant originally alleged, the SO put him to the ground, which is not in dispute, and he was injured at that time, or when the SO or another police officer may have placed his knee on the Complainant’s back, which I find is not supported by any of the credible or reliable evidence, I cannot find that these actions, when dealing with an inebriated, violent, and resistant male, would amount to an excessive use of force in these 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.

In conclusion, while the evidence of the Complainant does not leave me with reasonable grounds to believe that the allegations he has made against police actually occurred, and while I am unable, on the reliable evidence before me, to find reasonable grounds to believe either that the Complainant’s injury was caused by a police officer, or, even if it was, which police officer was responsible, I am left without reasonable grounds to believe that any police officer involved in the arrest of the Complainant acted outside of the limits of the criminal law. As such, since I lack the necessary grounds for the laying of criminal charges, none shall issue.


Date: February 14, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) The 911 calls and the conversations the officers had with CW #2 and CW #1 at the residence demonstrate clearly that the officers who attended the trailer park were acting within the scope of their duties when coming to the home to investigate possible criminal offences including impaired driving, assault, take auto without consent and threatening. As a result, when they arrived at the residence and observed the Complainant in an obviously intoxicated and belligerent state, in the vicinity of the persons who he had allegedly threatened, the police officers were acting within their duties in attempting to convince him to give up the car keys and leave the area; when the Complainant refused, the officers were further, pursuant to s.25(1) of the Criminal Code, justified in arresting the Complainant, as long as they only used reasonably necessary force. [Back to text]
  • 2) When SIU investigators asked for the friend’s contact information to confirm the Complainant’s account about how he got to the bar, he admitted that he had only met his ‘friend’ that night and that she was much younger than him and that she had engaged him in a conversation. SIU investigators attempted to contact this party by accessing the database/directory for the Niagara area. The only person with the name provided by the Complainant that investigators were able to locate was spoken to, but she denied ever having met the Complainant. [Back to text]
  • 3) In fact, there were four NRPS constables who attended the residence: the SO; WO #1, WO #2, and WO #3. [Back to text]
  • 4) In fact, CW #1 indicated that she never went outside of the trailer. She stated that at her first sighting, when looking from the doorway, the Complainant was already on the ground and face down on the white rock garden. In her statement, CW #1 also told SIU investigators that she did not witness whether or not the Complainant fought with, or resisted, the police officers, but stated that the Complainant may have been abrupt with the police officers. [Back to text]
  • 5) The second 911 call was made by CW #2 at 11:32 p.m. and lasted until 11:36 p.m. [Back to text]
  • 6) The porch enclosure to the trailer. [Back to text]
  • 7) The SO, in his statement to SIU investigators, had a similar opinion. He noted upon arrival at the residence that the Pontiac G6 had heavily damaged steel rims and tires, which he opined were caused by a sudden hard impact. When asked to provide an opinion as to how the Complainant might have sustained his broken ribs, the SO opined that the Complainant may have gotten the injuries from his seat belt during the collision earlier that evening. Given the condition of the vehicle, the SO opined that the Complainant had been wearing a seat belt because, given the impact, he believed that if the Complainant had not been wearing a seat belt, he would have had other visible injuries. [Back to text]
  • 8) WO #2 indicated that the Complainant was clearly intoxicated as his eyes were glazed, his speech was slurred, and he was wobbling around as he sat on the couch. On a scale of one to ten, WO #2 estimated that the Complainant would have scored a seven. Using the same scale, WO #1 estimated the level of intoxication at an eight or eight point five. Using the same scale, the SO, who had previously been a Breathalyzer technician, estimated that the Complainant was between a seven and a nine, and he further opined that the Complainant may have mixed other substances with alcohol. [Back to text]