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SIU Director’s Report - Case # 19-OCI-048

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 serious injuries sustained by a 54-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On March 3, 2019, at 7:15 p.m., the Niagara Regional Police Services (NRPS) reported the following:

On March 3, 2019, at about 2:44 p.m., NRPS received a call to Maple Street in Niagara Falls for a report of a stabbing. The Complainant had stabbed a man inside a residence, then jumped out a window. The Complainant was arrested outside after a violent fight with NRPS police officers. Conducted Energy Weapons (CEW) were deployed and the Complainant tried to disarm police officers.

The Complainant was taken to Greater Niagara General Hospital where he was diagnosed with a fractured nose and also admitted due to an overdose of cocaine, crystal methamphetamine and opiates. 
 

The Team

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

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.
SO #2 Interviewed, and notes received and reviewed
SO #3 Interviewed, and notes received and reviewed


Evidence

The Scene

The Complainant lived in a home on Maple Street, which was a street in a residential area that travelled west and east.

Based on NRPS scene photos, which were taken on March 3, 2019, there was a porch at the front of the home and upon entering onto the porch, there was a front window which had its glass smashed out of it. Shards of glass were found on the front porch and inside the immediate front area of the house.

Photos of blood droplets were taken throughout the living room area and the kitchen area. There was a wooden chair in the living room that appeared to have been broken. A black-coloured handle of a knife was found on the floor. There were bloody handprint stains found on the kitchen counter and walls in the living room area. The house appeared to be in a disheveled state.

Forensic Evidence


CEW Reports Summary


On March 3, 2019, SO #2 was issued a CEW. According to the CEW report, between the timeframe of 2:54:44 p.m. to 2:56:13 p.m., SO #2’s CEW was “triggered” (meaning that the trigger had been depressed) seven times. The duration of those trigger points varied from 3 seconds to 7 seconds. It is undetermined at this point whether the trigger entries on the report meant that the probes from the CEW were deployed or the CEW was used in a drive stun mode or if the trigger was depressed but with no contact.

On March 3, 2019, SO #1 was issued a CEW. According to the CEW report, between the timeframe of 2:59:39 p.m. to 3:00:51 p.m., SO #1’s CEW was “triggered” three times. The duration of those trigger points varied from 5 seconds to one minute and 3 seconds. It is undetermined at this point whether the trigger entries on the report meant that the probes from the CEW were deployed or the CEW was used in a drive stun mode or if the trigger was depressed but with no contact.

Video/Audio/Photographic Evidence


Cell Phone Video Footage Summary


On March 5, 2019, a civilian witness provided video footage of the Complainant’s arrest on Maple Street by NRPS police officers on March 3, 2019. The footage was approximately three minutes and 15 seconds in length and was captured on the civilian’s cell phone. The video footage did not have a date or time on it; however, there was audio.

The following is a summary of what the video footage captured and what each uniformed police officer [now known to be SO #1, SO #2, SO #3 and WO #1] was doing while the Complainant was on the ground with them. The Complainant could be heard continuously making grunting and growling sounds while he was on the ground:

SO #1

  • Shortly after the start of the video, SO #1 could be seen standing up and using his right foot to kick at the Complainant, who was on the ground. It appeared later that the Complainant was on the ground with his head in towards the house and his feet towards the road. SO #1 was standing to the north of where the Complainant was lying;
  • SO #1 was seen bending over in towards the Complainant and then standing back up. He is then seen using his right foot to kick towards the road way;
  • SO #1 is then seen leaning down towards the Complainant and then using his force to pull in a northerly direction while holding onto something;
  • SO #1 was seen using his right hand to punch the Complainant in the face area approximately 13 times before the camera view lowered and SO #1 could not be seen. However, approximately a second later, the camera view captured SO #1 again and SO #1 could be seen punching the Complainant in the face area approximately six more times;
  • While SO #1 was punching at the Complainant, it appeared that the Complainant’s hands were not handcuffed and raised about his head with palms facing up. The Complainant was grabbing at another police officer. The Complainant was on his back and attempting to get up; however, SO #1 was seen trying to hold the Complainant’s left arm down while the Complainant continuously tried to get up. SO #1 used his left hand to try and hold down the Complainant’s head; however, the Complainant continued to try and lift his head up;
  • The Complainant was seen using his right hand to grab at SO #1’s head/face area while SO #1 continued to try and secure the Complainant on the ground. The Complainant’s body was able to swivel in a counter-clockwise direction so his feet faced in towards the house and his head faced towards the roadway. The Complainant’s right leg was seen kicking up in the air;
  • The Complainant was somewhat face down on the ground with his head facing towards the roadway. It appeared that SO #1’s right knee was on the back of the Complainant’s neck area (at 0:56 [1]);
  • Soon after, the Complainant can be seen lifting himself up onto his knees so he is somewhat on both his hands and knees. SO #1 stood over the Complainant’s head area and was leaning down towards the Complainant. SO #1’s back was facing towards the roadway;
  • The clicking sound of a CEW can be heard (at 1:06) and a second later, SO #1 delivered two right knee strikes to the top of the Complainant’s head. The Complainant raised his left hand as if he was trying to shield his head from the strikes. SO #1 used his left foot and stomped it on the ground just below where the Complainant’s head was. It appeared that this stomp made contact with just the ground;
  • SO #1 positioned himself to the right side of the Complainant and grabbed hold of the Complainant’s right arm and attempted to bring it to his back. The Complainant’s head dropped face down on the ground (1:17). SO #1 placed his right knee again on the back of the Complainant’s neck area;
  • A pair of handcuffs could be seen dangling just under SO #1’s left leg which was extended onto the driveway;
  • A person could be heard saying “taser him” and a CEW is deployed by SO #2. The discharge of the CEW could be heard and moaning could be heard (1:56);
  • It appeared that the Complainant is face down on the ground with his face facing in a westerly direction and just under SO #1’s right knee;
  • SO #2 can be seen drive stunning the Complainant to his right side while he was still face down on the ground (2:15). At this time, SO #1 dropped his left knee and placed it possibly on the upper right side of the Complainant. The Complainant is continuously moaning and groaning;
  • SO #1’s knees appeared to remain on top of the Complainant; however, his upper body is up and he appeared to be communicating with other surrounding police officers (2:44);
  • There is blood on the Complainant’s face and on top of his bald head;
  • The police officers are seen standing and paramedics can be seen close by (3:14). A man [now known to be the man who was stabbed by the Complainant prior to the arrival of the police officer] wearing an orange sweat shirt could be seen being helped onto a stretcher by paramedics; and
  • End of video


SO #3

  • SO #3 was seen kneeling down closer to the Complainant’s legs. SO #3 was facing in towards the home;
  • It appeared that SO #3 used his left hand to reach in towards the front side of the Complainant, who was lying on his left side on the ground;
  • SO #3 was holding a rifle; however, he turned it around so the barrel of the rifle was facing up towards the sky. Then SO #3 smashed the stock end of the rifle in towards the Complainant about four times. A “smashing” sound could be heard each time SO #3 brought the rifle in towards the Complainant;
  • Soon after, another police officer [now known to be WO #1] got up from the ground and walked in a westerly direction;
  • SO #3 stood up for a brief moment and then knelt back down in towards the Complainant’s mid-section;
  • It appeared that SO #3 attempted to hold onto the Complainant’s legs; however, a short time later, SO #3 did not have control of the Complainant’s legs and the Complainant’s right leg could be seen raised in the air at almost a 90-degree angle; and;
  • SO #3 could be seen trying to control the Complainant’s legs for the duration of the video (0:51).

WO #1

  • WO #1 was seen getting up from the ground as if he was lying on his back. He was laying on the ground just north of the Complainant so it appeared that the right side of WO #1 was closest to the Complainant. The Complainant appeared to be lying on his right side, in towards the driveway of the house;
  • After SO #3 smashed the stock of his rifle on the ground, WO #1 was seen getting up from the ground and walking in a westerly direction. Traces of snow could be seen on the back of WO #1’s police jacket;
  • While WO #1 walked towards the Complainant’s feet, the holster of his gun could be seen positioned to his right side;
  • WO #1 remained standing by the Complainant’s feet and was not in physical contact with the Complainant. It appeared that WO #1 was holding a set of handcuffs (0:51);
  • WO #1 knelt down and took a hold of the Complainant’s left arm/hand (0:57). The Complainant struggled with the police officers and was on his hands and knees facing down on the ground. WO #1 struggled to maintain control of the Complainant’s arm/ hand;
  • WO #1 was able to bring the Complainant’s left arm behind his back (1:17) while SO #1 was able to bring the Complainant’s right arm behind his back. The Complainant’s head dropped to the ground;
  • WO #1 continued to struggle with the Complainant on the left side; and
  • WO #1 maintained his position on the Complainant’s left side until the video ended at 3:15. Just prior to the video ending, WO #1 could be seen standing.

SO #2

  • SO #2 was seen on the ground closest to the road. It appeared that the Complainant’s back was facing SO #2;
  • It appeared that SO #2 was straddling over the Complainant; however, his foot appeared to slip at one point;
  • A yellow-coloured CEW could be seen to the left side of SO #2. The CEW was holstered;
  • It appeared SO #2 was struggling to keep control of the Complainant and slid off the Complainant’s body;
  • SO #2 knelt down, possibly on the Complainant;
  • At some point, the Complainant attempted to grab at SO #2 and SO #2 grabbed onto the Complainant’s right hand. It appeared at this time that SO #2 was reaching for his CEW with his right hand;
  • At 0:38, SO #2 jumped up onto his feet while the Complainant’s backside was exposed to face the roadway. SO #2 was standing over the Complainant and facing in towards the house and the Complainant’s back;
  • At 0:43, someone could be heard saying something to the effect of “taser him.” SO #2 could be seen holding his CEW over the Complainant, who was now somewhat lying flat on his back and still struggling with SO #1;
  • At 0:44, a paramedic could be seen walking in an easterly direction past the struggle and obscuring the view of SO #2. A “pop” sound could be heard and when SO #2 could be seen again, SO #2 was standing over the Complainant with his CEW aimed at him and there appeared to be a wire coming from the CEW and in towards the Complainant;
  • From 0:44 to 1:07, SO #2 continued to hold his CEW over the Complainant while the other police officers struggled with him on the ground;
  • At 1:07, the sound of the CEW cycling could be heard while SO #1 was delivering two knee strikes to the Complainant’s head area;
  • At 1:13, SO #2 takes out a cartridge from the CEW and throws it onto the ground in front of the Complainant’s head. He then replaces it with another one. SO #2 is seen crouched over the Complainant with his CEW aimed at him;
  • At 1:52, a voice could be heard saying “Fuck it, taser him” and then soon after a pop sound could be heard while SO #2 is bent over the Complainant holding his CEW. The wires of the CEW could be seen coming out of the CEW and in towards the Complainant who is moaning and groaning;
  • At 2:02, a voice could be heard saying “Got his hand?” and
  • At 2:15, SO #2 leaned over to the Complainant’s right side and placed his CEW on him. The CEW could be heard cycling through. The Complainant could still be heard moaning.

Communications Recordings


911 / Radio Communications Recordings


On March 3, 2019, at about 2:43 p.m., a man called 911 and advised that he had been stabbed on Maple Street and that the man [now known to be the Complainant] who had stabbed him was outside of the house. The man indicated that the Complainant had broken into the home and had broken the glass of a front window.

Another dispatcher was heard speaking to the first dispatcher, and she said that the Complainant was on the other phone line complaining that he had been punched and that he was bleeding from his face. The dispatcher was heard advising either the Complainant or the man that police officers and Emergency Medical Services were on their way to Maple Street.

At 2:44 p.m., CW #1 called 911 and advised that the Complainant had ran up to her front door yelling to call the police. CW #1 stated that the Complainant was walking on the street and that he was bleeding.

At 2:45 p.m., the Complainant could be heard saying to the 911 call taker that he had a broken leg and that he had been beaten. The Complainant went on to say, “I tried to defend myself,” and, “I’m not done yet and I have to go back in there [inside the home on Maple Street] and finish dealing with him, he just fucked me up.” The Complainant also stated that “he’s got fucking child pornography.”

At 2:48 p.m., CW #2 called 911; however, the dispatcher advised him that police officers were on scene.

Once police officers arrived at the home on Maple Street, one of the police officers [possibly SO #2] stated to the dispatcher that the first victim was inside a house with a knife stuck inside of him. The police officer also stated that the “guy outside” [now known to be the Complainant] claimed that he had a broken leg, but he was walking.

Just after four minutes of the radio recording, a police officer [now known to be SO #2] could be heard saying, “He’s going for a gun.” [2]

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from NRPS:
  • General Occurrence Report (x2);
  • Notes of the witness officers and subject officers;
  • NRPS Involved Officer List;
  • NRPS statement of the man who was stabbed;
  • 911 and Communication Tape;
  • Officers' CEW Numbers and data downloaded from CEWs; and
  • Police Firearm Acquired – Canadian Firearms Program.

Materials obtained from Other Sources

Upon request, the SIU obtained and reviewed the following materials and documents from third party entities:

  • Cell phone video taken by civilian witness.

Incident Narrative

The material events in question are relatively clear on the weight of the reliable information collected by the SIU, which included a video recording of the arrest captured by a civilian eyewitness’s phone. In the afternoon of March 3, 2019, NRPS officers made their way to a house on Maple Street in response to 911 calls about a stabbing at that location. The Complainant had stabbed another tenant.

More than likely due to drug intoxication, the Complainant was not of sound mind at the time; he had high levels of cocaine, methamphetamine and opiates in his system. Uninvited and unexpected, he had entered a man’s house and tried to take away the computer tablet he was using. When the man demurred, the Complainant produced a knife and stabbed the man, at one point plunging the knife into the man’s lower right side. The blade broke from the handle and remained inside the man. The man attempted to defend himself by swinging a wooden chair at the Complainant, and the Complainant jumped through a window, shattering the glass in the process. With the Complainant out of the house, the man who was stabbed contacted 911 and explained what had just occurred. The Complainant did the same with a cordless phone he had removed from the residence, indicating that he was in fact the victim of an assault.

SO #1, SO #2 and SO #3 together with WO #1, WO #3 and WO #4, arrived at the scene. They met with the Complainant on the driveway of the residence. The Complainant reported that the man had been viewing child pornography on his tablet and had attacked him inside the home. He also said his leg was broken, a dubious claim as far as the officers were concerned as he was seen to walk without any difficulty. While WO #1 and SO #3 waited outside with the Complainant, SO #1, SO #2 and WO #3 went inside to speak with the man who was stabbed. Viewing the knife stuck inside him and hearing his story, the decision was made to arrest the Complainant. Stepping outside the house, SO #2 communicated as much to the officers waiting with the Complainant. There followed a violent struggle between the Complainant and the officers.

Hearing that he was about to be arrested, the Complainant attempted to flee but was quickly grabbed by WO #1 and brought to the ground. The Complainant fought with the officers on the ground, at one point ending up on top of WO #1. Other officers interceded and attempted to subdue the Complainant. Despite the efforts of four officers, the Complainant was able at one point to grab hold of WO #1’s firearm in its holster and pull up as if to retrieve it. WO #1 gave verbal notice of what was happening to his fellow officers and pushed down as hard as he could on his weapon to prevent it being unholstered. At word that the Complainant was attempting to disarm WO #1, SO #1 kicked the Complainant on the ground and delivered a flurry of punches to the Complainant’s head area, numbering about 20 in total. SO #3, who was holding a rifle, reacted by using the butt end of his weapon to strike down on the Complainant’s hand four times. SO #2 punched the Complainant in the head four to five times. The officers were successful in having the Complainant release his grip on the firearm, but he continued to struggle strenuously with the officers. Despite his weight on top of the Complainant’s legs, the Complainant was able to lift SO #3 off the ground. Multiple and prolonged discharges from CEWs carried by SO #1 and SO #2 seemed to have little effect on the Complainant. As the struggle continued over several minutes, the Complainant managed to lift himself off the ground onto his hands and knees. SO #1 delivered a series of knee strikes, as did WO #2, who was also at the scene and joined the fray near its tail end. With the arrival of WO #4, who sat on the Complainant’s right leg to hold him down, the Complainant was eventually subdued and handcuffed with his hands behind his back.

The Complainant remained combative after he was restrained; paramedics summoned to the scene delivered two doses of a sedative before he was sufficiently calm that he could be taken to hospital. At the hospital, the Complainant’s aggression returned and he had to be sedated again.

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.

25 (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservations of any one under that person’s protection from death or grievous bodily harm.

Analysis and Director's Decision

On March 3, 2019, the Complainant suffered a fractured nose diagnosed following his arrest by NRPS officers. Three of those officers – SO #1, SO #2 and SO #3 – were identified as subject officers for purposes of the SIU’s investigation. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that any of the subject officers committed a criminal offence in connection with the Complainant’s arrest and injury.

Though there is a possibility that the Complainant broke his nose in his altercation with a man, or as the result of crashing through the window on his way outside the home on Maple Street, I accept for purposes of these reasons that he received his injury during the confrontation with police officers leading to his arrest. The issue as far as the potential criminal liability of the subject officers is concerned is whether there are grounds to charge one or more of them with an assault-based offence.

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 reasonably necessary in the execution of an act that they are required or authorized to do by law. The Complainant was clearly subject to lawful arrest. Without provocation, he had attacked and almost killed a man with a knife. The real question is whether the officers used excessive force in effecting his arrest.

To be sure, the nature and extent of the force used against the Complainant was significant. Setting aside for the moment the punches struck by SO #1, this included a forceful grounding, multiple CEW discharges, four to five punches, kicks, and knee and rifle strikes. However, consider what the officers were up against. The Complainant’s proclivity for violence was clearly on display, as was his ability to effect his purpose. He had just stabbed a man, a fact the officers would have all appreciated, and was now on the ground attempting to disarm one officer, and possibly another, of their guns. For whatever reason, the Complainant exhibited incredible strength and seemed impervious to pain during the altercation with police officers. Multiple CEWs discharges and forceful strikes did little to quell his fight. It was only with the passage of time and the arrival on scene of other officers that the Complainant was sufficiently controlled and handcuffed. On this record, I am unable to reasonably conclude that the force here in question fell outside the range of what was reasonably necessary in the circumstances to arrest the Complainant.

Less clear is whether SO #1’s level of force was excessive. SO #1 struck the Complainant with a closed fist at least 20 times in the head and these strikes were powerful. This level of force from a police officer will only attract protection under criminal law in the rarest of circumstances, such as the ones, I am reasonably satisfied, are present in this case.

There is no question that the Complainant was extremely dangerous when SO #1 punched him. SO #1 had moments earlier witnessed a man with a knife blade still stuck in his body and knew the Complainant was responsible for the stabbing. After the Complainant was grounded, the dangerousness of the situation escalated when the Complainant reached for and successfully grabbed WO #1’s firearm on his duty belt. WO #1 was only able to avoid being disarmed by pushing down on the Complainant’s hand or hands, in a reverse tug-of-war, to prevent him from drawing the gun. SO #3 resorted to using the butt end of his rifle to smash the Complainant’s hand or hands and break his grip on the firearm. Regrettably, the video of the altercation does not confirm whether the Complainant also reached for SO #2’s firearm after releasing WO #1’s firearm, as reported by both SO #3 and SO #1. [3] However, I have no reason to question whether this occurred and suspect it did, given the Complainant’s seeming intention to disarm a police officer.

In assessing SO #1’s responding force, I am cognizant that section 25(3) of the Criminal Code sets the boundaries for the upper limits of police force, stating that police officers are protected even if they use lethal force provided doing so is necessary to protect themselves or others from a reasonably apprehended threat of grievous bodily harm or death. There can be no doubt that the Complainant’s conduct posed a risk of grievous bodily harm or death to the officers. While some may question whether that risk ever materialized given that the Complainant never actually wielded an officer’s firearm, I am inclined to believe that it very well may have by the time of the punches in question. Only seconds had elapsed since the Complainant released his grip on WO #1’s firearm and the Complainant was still actively fighting the officers, flailing his arms and – if the officers are to be believed – reaching for SO #2’s firearm. The stakes could not have been higher; moments earlier, the Complainant had almost killed a man with a knife and he was now on the verge of controlling a firearm. I have no doubt that SO #1 reasonably perceived the gravity of the situation, including a threat of serious injury or death if the Complainant was not immediately subdued. While it is arguable whether SO #1 ought to have ceased his strikes to reassess if the Complainant could be controlled through less forceful measures, the jurisprudence is clear that an officer in dynamic and violent circumstances is not expected to measure the degree of responsive force to a nicety; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). In the result, in circumstances in which SO #1 might well have been justified in resorting to lethal force, I am satisfied that the less-than-lethal force he used, albeit repeated and severe, was proportional to the threat at hand and necessary in an attempt to control and/or incapacitate the Complainant, who notably never stopped fighting the officers even while being struck by SO #1.

Before closing the file, I note for the record an area of the evidence that the SIU investigation was unable to resolve. The cell phone video of the altercation clearly depicts SO #2 discharging his CEW in a fashion that lines up with the data downloaded from his CEW. The first such discharge, according to the CEW data, began at 2:54:44 p.m., and the last one at 2:56:13 p.m. The video suggests that the Complainant was handcuffed right around the time of the final discharge or shortly thereafter. At no point in the video is SO #1 shown to be using his CEW. And yet, his notes of the incident suggest he discharged his CEW at least once for about one minute. It is conceivable that his CEW discharge or discharges occurred during the struggle with the Complainant before the video recording commenced. That scenario, however, is at odds with the data downloaded from his CEW, which indicates he discharged his CEW three times. The first of these discharges started at 2:59:39 p.m. Assuming the clocks in the CEWs wielded by SO #1 and SO #2 were synchronized, then the first of SO #1’s discharges may have occurred after the Complainant was presumably under control and possibly handcuffed. None of the witness officers, however, indicate that this occurred, nor did the paramedics on scene say they saw any such CEW deployments.

While it would be potentially problematic if SO #1 discharged his weapon after the Complainant was in handcuffs, I am in no position to make a finding to that effect with any degree of confidence given the discrepancies in the evidence and the possibility that SO #2’s and SO #1’s CEW clocks were not in sync. On the other hand, if SO #1 discharged his CEW before SO #2, I would have a difficult time finding this use of force excessive given the Complainant’s continued and strenuous struggle thereafter. In either event, I am satisfied that there remains no basis to proceed with charges against SO #1. [4]


Date: April 6, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Denotes “minutes:seconds” into the video. [Back to text]
  • 2) SO #2 in his interview statement advised that when WO #1 stated that the Complainant had a hold of his gun, SO #2 broadcasted it over the radio. [Back to text]
  • 3) SO #2 stated that he felt a tugging on his duty belt but thought it was caused by the struggle. SO #1 later told him that the Complainant had attempted to grab his firearm. [Back to text]
  • 4) The same analysis holds true with respect to a notation in SO #1’s Use of CEW Report, which seemingly indicates that he also used oleoresin capsicum spray during the incident with the Complainant. [Back to text]