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SIU Director’s Report - Case # 19-OCI-039

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 serious injuries sustained by a 64-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On February 18, 2019, the Niagara Regional Police Service (NRPS) notified the SIU of an injury suffered by the 64-year-old Complainant.

According to the NRPS, at 12:14 p.m., NRPS officers responded to a domestic dispute call on Niagara Street in Welland. At 12:26 p.m., the police officers arrested the Complainant for assault and while doing so they grounded him. The Complainant was taken to St. Catharines General Hospital and at 5:05 p.m., he was diagnosed as having suffered two fractured ribs and a collapsed lung.

The Team

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

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Not interviewed (Did not witness arrest)

Witness Officers

WO #1 Not interviewed, but notes received and reviewed
WO #2 Not interviewed, but notes received and reviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The building on Niagara Street is a large house that has been divided into several individual residential units. CW #2 and her husband, CW #1, reside on the second floor. The Complainant resides on the first floor.

Outside the entrance door to the Complainant’s apartment there is small wooden deck.

Communications Recordings

The dispatcher asked for a Welland unit to respond to the building on Niagara Street regarding a person who was being assaulted by her brother, who was going crazy. The dispatcher stated she could hear the person being assaulted. The dispatcher advised the brother lived at the back of the residence and was “MHA” (i.e. suffered from mental health issues). The dispatcher reported the Crisis Outreach and Support Team had responded to the address the previous Wednesday (February 13, 2019) but police did not respond.

The SO reported he was on scene and the dispatcher informed him the subject was at the back of the house. The SO then reported he had the man grounded and he wanted additional units to come to the rear apartment.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Computer Aided Dispatch (CAD) record;
  • List of NRPS Reports related to the Complainant;
  • A copy of the related communications recordings; and
  • The duty notes of the designated witness officers.

Incident Narrative

The events in question are apparent on the weight of the evidence gathered by the SIU in its investigation, which included statements from the Complainant and the SO. Shortly after noon of February 18, 2019, the Complainant became involved in a violent domestic dispute involving CW #1 and CW #2. CW #2 called 911 to report the incident.

The SO was the first to arrive at the address, a two-story home located on Niagara Street in Welland. The officer exited his cruiser and immediately confronted the Complainant, who had exited the home and was standing by a pickup truck in the yard of the address. The Complainant fled toward a doorway at the southeast corner of the home. The door led to the Complainant’s first-floor apartment. The SO gave chase and used a foot to prevent the Complainant from closing the door on him. The officer opened the door and was confronted by the Complainant who immediately adopted a fighting posture and started swinging with closed fists at the SO. Grabbing the Complainant by the collar, the SO forced him to the ground and attempted to secure him in handcuffs. When the Complainant refused to surrender his arms, the SO decided to pull him outside through the doorway but was prevented from doing so when the Complainant splayed his arms and legs. Rather than continuing to struggle with the Complainant, the SO, who was tired, decided to keep him pinned on the ground in the area of the doorway while he waited for other officers to arrive. With his knees on the Complainant and his hands around his collar, the SO felt something on his right hand and realized the Complainant was attempting to bite him. The officer reacted by delivering two elbow strikes to the Complainant’s head.

WO #3 was the next officer to arrive on scene, followed shortly thereafter by WO #4. Despite some more resistance on the part of the Complainant, the officers were able to wrestle control of his arms and place them in handcuffs without further incident.

The Complainant was taken from the scene to hospital and diagnosed with multiple fractures and a collapsed lung.

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 529 (3), Criminal Code - Authority to enter dwelling without warrant

529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant. 

Section 495(1), Criminal Code - Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Analysis and Director's Decision

The Complainant was arrested by the SO on February 18, 2019. The Complainant was subsequently taken to hospital that day and diagnosed with fractures and a collapsed lung. 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 the Complainant’s arrest and injuries.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force is no more than is reasonably necessary in the execution of an act that they are required or authorized to do by law. When the SO forcibly entered the Complainant’s residence, he believed he was entitled to do so to arrest the Complainant for the violence inflicted on CW #1 and CW #2 and to prevent the possible continuation of the assault. According to the SO, not having had an opportunity to investigate the circumstances of the assault that had been reported to police, he could not exclude the possibility that one or another potential victim was present in the apartment to which the Complainant had fled. Based on the information at his disposal and the speed with which events unfolded, I accept that the SO was in the lawful execution of his duty when he entered the SO’s residence and proceeded to arrest him. In my view, he had reasonable grounds to believe that the Complainant had committed an assault and was justifiably fearful that he continued to pose an imminent risk of harm to persons who might be present in the apartment: see sections 495 and 529.3 of the Criminal Code.

With respect to the force used by the SO, I am further satisfied on reasonable grounds that it fell within the range of what was necessary in the circumstances to take the Complainant into custody. The Complainant had reportedly just attacked his sister and brother-in-law, and was fleeing from police when the SO caught up with him at the door to his apartment. When inside the door the Complainant turned to fight the SO, the officer was within his rights in taking steps to protect himself as he endeavoured to arrest the Complainant. On this record, it seems to me that the Complainant’s grounding was a tactic reasonably open to the officer. From that position, the officer stood a greater chance of taking the Complainant, who was belligerent, safely into custody.

Of greater concern are the two elbow strikes to the Complainant’s head delivered by the SO. While one such strike may legitimately be considered a justifiable response to the Complainant’s attempted bite of the officer’s hand, I am less convinced in the propriety of the second blow, particularly as it seems implausible to believe the officer remained at risk of being bitten at the time. That said, I am prepared to give the SO the benefit of the doubt in light of the leeway the law accords police officers who resort to force in violent and dynamic circumstances; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.). Though perhaps ill-advised, I am unable to reasonably conclude that the second elbow strike ran afoul of the latitude prescribed by the criminal law.

In the result, as I am satisfied that the force used by the SO was legally justified in aid of a lawful arrest, there are no grounds for proceeding with charges in this case notwithstanding the injuries that the Complainant may have suffered at the hands of the officer. [1] This file is closed.


Date: October 7, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) There is a possibility raised in the evidence that one or more of the Complainant’s injuries were caused in his physical altercation with a civilian witness ahead of the officers’ arrival. [Back to text]