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SIU Director’s Report - Case # 19-OCI-030

Contents:

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Mandate of the SIU

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

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

Information Restrictions

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

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

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

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

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

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

This report relates to the SIU’s investigation into a serious injury sustained by a 28-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On February 7, 2019, at 5:40 a.m., the Niagara Regional Police Service (NRPS) notified the SIU of an injury to the Complainant. The NRPS reported that during the execution of a Controlled Drug and Substances Act warrant at a residence located on Niagara Street, St. Catharines, the Complainant was arrested and detained on a number of criminal charges. After the arrest of the Complainant, he complained of soreness to his ribs and had difficulty breathing. The Complainant was transported to Greater Niagara General Hospital (GNGH) and diagnosed with a fractured 9th rib. 

The Team

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

On the morning of February 7, 2019, two SIU investigators initiated an investigation in Niagara Falls. The investigators attended the headquarters building of NRPS in order to meet with the Complainant, and Civilian Witness (CW) #1. Audio recorded statements were obtained from the Complainant and CW #1.

Following the interviews, the lead investigator and a forensic investigator attended the scene and photographed the apartment that had been occupied by the Complainant and CW #1. The apartment consisted of a bedroom and closet with no washroom or kitchen facilities.

Interviews were then conducted with the three witness officers on February 21, 2019. During the course of the interviews the witness officers were asked to draw diagrams of the room with relevant parties and objects located. Two of the officers were also shown the photographs taken by the forensic investigator and by the NRPS Scenes of Crime Officers (SOCO). 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

[Note : A witness officer is a police officer who, in the opinion of the SIU Director, is involved in the incident under investigation but is not a subject officer.

Upon request by the SIU, witness officers have a duty under Ontario Regulation 267/10 of the Police Services Act, to submit to interviews with SIU investigators and answer all their questions. The SIU is also entitled to a copy of their notes from the police service.]

Subject Officers

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


Evidence

The Scene

The scene was visited by the lead investigator and forensic investigator and found to be a single residence with multiple tenants occupying rooms within and sharing kitchen and bathroom facilities.

The bedroom occupied by the Complainant and CW #1 had no bathroom or kitchen facilities and was estimated at being approximately 16 feet wide by 12 feet deep with a closet.

The entry door to the room had no apparent new damage to the door or frame in the opinion of the forensic investigator. The scene was photographed at this time, but was subsequent to a search carried out by NRPS officers following their entry to the residence.

Photographs of the room taken by the NRPS SOCO show the room shortly after the removal of the Complainant and CW #1. These images show that some items were moved prior to the arrival of SIU personnel. Of note in both sets of photographs was a silver metal box that can be seen on the floor between the bed and the sets of drawers on the east side of the room. The distance between these two items was described as being approximately two to three feet.

In one NRPS photo, the metal box is seen to be sitting flat on the floor with the top still on the box and appearing partially crushed on the one corner. In one photo taken by the SIU forensic investigator, the box is on end and again there appears to be crushing type damage to one side. From the photograph, writing and symbols can be seen on the side that indicates that the box was a Swiss Army knife display box. Glass was also found on the floor of the room and one of the bedroom windows was broken, which is consistent with the use of a distraction device as described in the witness officer statements.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Narrative Text-Prosecution Summary;
  • Notes of all witness officers;
  • Policy-Use of Force;
  • Policy-Search and Seizure;
  • Search Warrant re Niagara Street, St. Catharines; and
  • Copies of photographs taken by NRPS SOCO during the execution of the warrant.

Materials obtained from Other Sources

The SIU obtained the Complainant’s medical reports from the GNGH and Niagara EMS.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU in its investigation, which included statements from the Complainant and his girlfriend, CW #1, who was present when the Complainant was arrested, as well as witness officers who took part in the Complainant’s apprehension. Together with his colleagues on the NRPS Emergency Task Unit (ETU), the SO convened outside the building on Niagara Street just before 6:00 p.m. on February 6, 2019. The building was a rooming house and the ETU had been mobilized to enter the structure and deal with any safety issues ahead of a search team entering to execute a warrant to search for drugs. Distraction devices producing bright flashes of light and loud sounds were set off ahead of the officers’ entry into the building, following which ETU officers entered the building to secure it.

WO #1 and WO #2 were the first officers to enter the Complainant’s room. WO #1 dealt with CW #1 and took her into custody without incident. WO #2 concerned himself with the Complainant and then left the room when the SO entered and took hold of the Complainant. As the Complainant lay prone between the bed and a dresser, the SO secured his arms behind his back in zip ties.

Following his arrest, the Complainant complained of difficulty breathing and was taken by paramedics to hospital where his injury was diagnosed.

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

In the evening of February 6, 2019, the Complainant was arrested by NRPS officers while in his residence located at Niagara Street in St. Catharines. He was subsequently taken to hospital and diagnosed with a fractured right rib. The SO was among the officers who played a role in the Complainant’s detention and the likeliest to have caused or contributed to the Complainant’s injury. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with this incident.

There is some evidence the Complainant was kneed or kicked by an officer as he lay on the floor while he was not resisting the officers. However, this evidence is contradicted by WO #1 who says that he did not see the SO, the only officer who was dealing with the Complainant on the floor, deliver a knee or a kick. Rather, he heard the Complainant complain that he was lying on something hard before his hands were zip tied.

If charges were to be laid in this case, they would depend on sources incriminating the SO. However, while I am cognizant of the need for a charging authority to limit its assessment of competing evidence to threshold considerations so as not to usurp the role of the court as the ultimate arbiters of fact, I am satisfied that it would be unwise and unsafe to proceed with charges on this basis. For example, the sources of incriminating evidence were inconsistent with each other on material points regarding the Complainant’s behaviour in the room. While the Complainant’s injury might in other circumstances have bolstered the incriminating evidence, it is incapable of doing so in the case at hand given evidence that he was lying on a hard metal object at the time and the distinct possibility that it, as much as anything else, might have been responsible for his rib fracture.

Section 25(1) of the Criminal Code provides that police officers are immune from criminal liability for force used in the course of their duties provided such force was no more than was reasonably necessary in the execution of an act that they were required or authorized to do by law. The ETU officers entered the residence having announced their presence and on the strength of a facially valid search warrant. They did so by way of a dynamic entry whereby officers storm the subject location with an overwhelming show of force intended to neutralize potential threats before they materialize. While not always appropriate, it was a reasonable tactic for police to have adopted in this case given their information that the residents of the building, including the Complainant, had access to weapons, such as a firearm and conducted energy weapon. In the circumstances, I am satisfied that the detention in which the Complainant found himself when he was injured was a lawful incident of what was otherwise a lawful police operation.

The question turns to whether the SO, in detaining the Complainant, used excessive force. As I am unable to rely on the evidence that would suggest it was, I am left with a narrative suggesting that the SO used a minimal level of manpower to control the Complainant on the floor and secure his arms in zip ties. There is no indication on this account that the Complainant was struck in any manner or that said force was anything more than marginal in nature. On this record, I am unable to reasonably conclude that the force used by the SO in aid of a what was at the time a lawful detention fell outside the range of what was reasonably necessary in the circumstances.

In the result, as I am unable to rely with any confidence on the evidence indicating excessive force was used, and the remaining evidence suggests the Complainant’s injury was the result of reasonably necessary force, I have no reasonable grounds to proceed with charges in this matter and the file is closed.


Date: October 7, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit