SIU Director’s Report - Case # 19-OCI-072
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.
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.
- 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 50-year-old man (the “Complainant”).
“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 50-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On April 9, 2019, at 7:00 a.m. the Niagara Regional Police Service (NRPS) contacted the SIU and reported the injury of the Complainant.
The NRPS reported that on April 8, 2019, at 5:30 p.m. Witness Officer (WO) #1 was patrolling the downtown area of St. Catharines when he encountered the Complainant in the area of King Street and James Street. The Complainant was smoking a crack pipe and WO #1 called him over to his police cruiser. The Complainant dropped the crack pipe and it smashed on the ground. The Complainant then approached the police cruiser and provided his identification.
WO #1 conducted a CPIC check on the Complainant and learned there were two outstanding warrants for his arrest. When WO #1 went to arrest the Complainant for the warrants the Complainant actively resisted and fought with the police officer.
The Complainant received a facial injury during his arrest and was taken to St. Catharines General Hospital where it was determined he had a fractured nose.
The Team
Number of SIU Investigators assigned: 3 Complainant:
50-year-old male interviewed, medical records obtained and reviewedCivilian Witnesses
CW Interviewed Witness Officers
WO #1 Interviewed WO #2 Interviewed
Subject Officers
SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.Evidence
The Scene
This incident occurred in a small parkette at the Old Court Building on James Street in St. Catharines. The scene was not held as it was not known the Complainant had suffered a serious injury. The scene was examined and photographed by the NRPS scene of crime unit.
James Street was oriented northwest by southeast, and King Street was oriented northeast by southwest. The intersection was situated in downtown St. Catharines and was surrounded by commercial properties. The old Courthouse occupied the west quadrant of the intersection.
There was a small amount of clear shattered glass on the sidewalk running parallel to James Street, east of the building. The glass was believed to be a pipe the Complainant had been smoking from prior to the incident. There was a stone staircase next to the sidewalk. There was a small pool of blood in front of the staircase on the ground level, as well as various small blood stains in the vicinity. There was an area of mulch located immediately west of the stairs and blood which had been disturbed. There were empty blister packets of clonazepam registered in the Complainant's name on the first step of the staircase.
Video/Audio/Photographic Evidence
Closed circuit television (CCTV) footage was secured from St. Catharines downtown city cameras at the intersection of King Street and James Street. At 5:30 p.m., a white marked police cruiser with emergency lights activated drove north on King Street, entered the intersection at James Street and turned left onto westbound James Street. The police cruiser drove slightly into the eastbound side of the road, as if pulling to the south side curb area, where this incident was known to have taken place. On one camera the police cruiser’s lights can be observed in the reflection of the Tim Hortons window on the north side of James Street suggesting the cruiser has stopped on the south side of James Street just out of the camera’s view.Communications Recordings
On April 8, 2019, at 5:29 p.m., WO #1 informed the radio dispatcher that he had the Complainant in custody at the intersection of King Street and James Street and requested assistance.WO #1 shortly afterwards told the dispatcher he required an ambulance as the Complainant had resisted arrest and had an injury to his face.
Materials obtained from Police Service
Upon request the SIU obtained and reviewed the following materials and documents from the NRPS:- Computer Aided Dispatch Detailed Report;
- Communication recordings;
- General Occurrence Hardcopy;
- Copy of warrant for the Complainant (x2);
- Notes of witness officers
- Procedure-Use of Force; and
- Procedure-Powers of Arrest.
Incident Narrative
The following sequence of events emerges from the weight of the evidence collected by the SIU, which included statements from the Complainant, the SO, two other officers who participated in the arrest, and a civilian eyewitness. At about 5:30 p.m. on April 8, 2019, the Complainant was standing by the old courthouse at the intersection of King and James Street smoking an illegal substance. He was also carrying a knife that was visible in a sheath that he wore attached to his belt in front of his pants. WO #1 was on patrol in his cruiser when he noticed what the Complainant was doing and decided to investigate. He pulled up beside the Complainant and asked him for his name. The Complainant identified himself. WO #1 checked the Complainant’s name on his cruiser’s computer and learned there were two outstanding warrants in effect for the Complainant’s arrest. The officer exited his cruiser and informed the Complainant he was under arrest. The Complainant objected to his arrest and walked away. WO #1 quickly caught up with the Complainant and took hold of him. He asked the Complainant to place his hands behind his back, but the Complainant refused. When the Complainant then attempted to strike WO #1, the officer tripped the Complainant and took him to the ground. The Complainant fell onto his back with WO #1 on top of him. The Complainant resisted as WO #1 attempted to turn him over onto his stomach. WO #1 radioed for assistance as he held the Complainant to the ground.
The SO and WO #2 arrived in short order to find WO #1 on top of the Complainant, the latter on his back on the ground and struggling with the officer. All three officers grappled with the Complainant on the ground attempting to roll him over, their task made difficult as the Complainant thrashed about on the ground, flailed his arms and resisted their efforts. At one point, the Complainant made contact with the SO’s sidearm. The officer ordered the Complainant to remove his hand from the weapon, and then punched him several times in the head when he failed to do so. The strikes proved effective and the Complainant’s hand moved away from the firearm. Soon after, the officers were able to wrestle the Complainant onto his front, pry his arms out from underneath his torso and secure him in handcuffs.
Following his arrest, the Complainant was taken to hospital where his nose injury was diagnosed.
The SO and WO #2 arrived in short order to find WO #1 on top of the Complainant, the latter on his back on the ground and struggling with the officer. All three officers grappled with the Complainant on the ground attempting to roll him over, their task made difficult as the Complainant thrashed about on the ground, flailed his arms and resisted their efforts. At one point, the Complainant made contact with the SO’s sidearm. The officer ordered the Complainant to remove his hand from the weapon, and then punched him several times in the head when he failed to do so. The strikes proved effective and the Complainant’s hand moved away from the firearm. Soon after, the officers were able to wrestle the Complainant onto his front, pry his arms out from underneath his torso and secure him in handcuffs.
Following his arrest, the Complainant was taken to hospital where his nose 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
The Complainant was arrested by several NRPS officers in St. Catharines on April 8, 2019 and suffered a fractured nose in the process. The SO was identified as being the officer most likely to have caused 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 the Complainant’s arrest and injury.
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 was reasonably necessary in the execution of an act that they were required or authorized to do by law. The Complainant had warrants out for his arrest and WO #1 was within his rights in seeking to take him into custody.
The Complainant was unwilling to be arrested peacefully. He first walked away from the officer and then attempted to strike him as WO #1 tried to secure him in handcuffs. WO #1 reacted by taking the Complainant to the ground. That decision and its execution, in my view, were reasonable in the circumstances. Confronted with a threatening individual carrying a knife on his person and potentially high on drugs, WO #1 had reason to be concerned for his safety and good cause to want to place the Complainant in a position of disadvantage on the ground. The takedown does not appear to have injured the Complainant in any way, as was evidenced by the struggle he put up while on the ground. That struggle involved WO #1, WO #2 and the SO wrestling with the Complainant to roll him onto his front so he could be handcuffed. I see nothing untoward in the officers meeting the Complainant’s resistance with muscular force of their own as they tried to assert control over the Complainant. Other than the punches delivered by the SO to the Complainant’s head, at no point was the Complainant struck by the officers.
As for the SO’s punches, some two or more as described by the officer, I am satisfied they fell within the range of what was reasonably necessary in the moment. The Complainant had grabbed the butt of the SO’s holstered sidearm and refused to release it when repeatedly told to do so by the officer. In his SIU interview, the SO says that the Complainant’s conduct caused him to fear for his safety, as well as the safety of the other officers and the public in and around the scene of the altercation. I believe him. Given the Complainant’s combative behaviour to that point, a loaded firearm in his possession would have posed a grave and imminent risk of serious bodily harm and death to all involved. In the circumstances, I am satisfied that the punches struck by the SO, intended to free the officer’s firearm from the Complainant’s hold, and which met their purpose, were a proportional and measured response to the threat and hand, and accordingly, legally justified.
In the final analysis, while I accept that the Complainant broke his nose in the altercation that preceded his arrest, whether the result of his thrashing about on the ground or a direct application of force by the officers, I am satisfied on reasonable grounds that the officers acted lawfully at all times. Accordingly, there are no grounds for proceeding with criminal charges in this case and the file is closed.
Date: October 21, 2019
Joseph Martino
Interim Director
Special Investigations Unit
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 was reasonably necessary in the execution of an act that they were required or authorized to do by law. The Complainant had warrants out for his arrest and WO #1 was within his rights in seeking to take him into custody.
The Complainant was unwilling to be arrested peacefully. He first walked away from the officer and then attempted to strike him as WO #1 tried to secure him in handcuffs. WO #1 reacted by taking the Complainant to the ground. That decision and its execution, in my view, were reasonable in the circumstances. Confronted with a threatening individual carrying a knife on his person and potentially high on drugs, WO #1 had reason to be concerned for his safety and good cause to want to place the Complainant in a position of disadvantage on the ground. The takedown does not appear to have injured the Complainant in any way, as was evidenced by the struggle he put up while on the ground. That struggle involved WO #1, WO #2 and the SO wrestling with the Complainant to roll him onto his front so he could be handcuffed. I see nothing untoward in the officers meeting the Complainant’s resistance with muscular force of their own as they tried to assert control over the Complainant. Other than the punches delivered by the SO to the Complainant’s head, at no point was the Complainant struck by the officers.
As for the SO’s punches, some two or more as described by the officer, I am satisfied they fell within the range of what was reasonably necessary in the moment. The Complainant had grabbed the butt of the SO’s holstered sidearm and refused to release it when repeatedly told to do so by the officer. In his SIU interview, the SO says that the Complainant’s conduct caused him to fear for his safety, as well as the safety of the other officers and the public in and around the scene of the altercation. I believe him. Given the Complainant’s combative behaviour to that point, a loaded firearm in his possession would have posed a grave and imminent risk of serious bodily harm and death to all involved. In the circumstances, I am satisfied that the punches struck by the SO, intended to free the officer’s firearm from the Complainant’s hold, and which met their purpose, were a proportional and measured response to the threat and hand, and accordingly, legally justified.
In the final analysis, while I accept that the Complainant broke his nose in the altercation that preceded his arrest, whether the result of his thrashing about on the ground or a direct application of force by the officers, I am satisfied on reasonable grounds that the officers acted lawfully at all times. Accordingly, there are no grounds for proceeding with criminal charges in this case and the file is closed.
Date: October 21, 2019
Joseph Martino
Interim Director
Special Investigations Unit