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SIU Director’s Report - Case # 19-OCI-272

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 35-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 17, 2019, at 5:24 p.m., the Niagara Regional Police Service (NRPS) notified the SIU of an injury to the Complainant. The NRPS advised that at 12:52 p.m., on November 17, 2019, NRPS police officers arrested the Complainant at the Walmart store at 420 Vansickle Road in St. Catharines, regarding an unwanted person call. The Complainant’s father, the Civilian Witness (CW), attended to assist with his son who had a rented U-Haul truck with him. The Complainant attempted to take a vehicle at the scene and police officers arrested him. He resisted and was grounded at the back of a NRPS vehicle. He may have struck the trailer hitch attached to the NRPS vehicle with his head. The Complainant was taken to the St. Catharines Site of the Niagara Health System (STCH), where he was diagnosed with facial fractures; he was also found to be under the influence of crystal methamphetamine. The NRPS vehicle was held for examination.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

This incident occurred in the busy parking lot of the plaza, which contained a lot of business premises including the Walmart store, at 420 Vansickle Road in St. Catharines.

Video/Audio/Photographic Evidence


Closed-Circuit Television (CCTV) Footage from Best Buy


At 11:17 a.m., the Complainant walked up to the Geek Squad counter in Best Buy. He walked away and approached a salesperson who was attending to a customer. He reached out and shook the salesperson’s hand. He remained close to, and watched, the salesperson and customer who walked further away in the aisle. The Complainant was holding a bottle in his left hand with clear liquid inside. The Complainant stood at the end of the aisle looking at the salesperson and customer and then moved to the end display. An employee came out of the Geek Squad counter, walked up to the Complainant, and appeared to speak to him. He did not engage with the employee. He moved down the aisle where the salesperson and customer were and stood looking at them.

The Complainant walked over to the counter area, leaned against the end of the counter, and spoke with an employee. Staff walked through the area coming and going to the office area. The Complainant remained in the same position and did not engage with them. The Complainant was handed a waste basket from an employee. He took the waste basket and leaned over it. He handed back the waste basket and then continued to stand at the end of the counter. At 11:24:50 a.m., the Complainant walked out of camera view.


CCTV Footage from the LCBO


On November 17, at 11:28:30 a.m., the Complainant was recorded inside the LCBO store. He walked up to the cashier and paid for two bottles of vodka with a credit or debit card. He left the store carrying both items in a paper bag.

Police Communications Recordings


911 Calls to NRPS


The first call was received November 17, 2019 at 11:24 a.m. A man called and stated he needed an ambulance to the Best Buy store at 420 Vansickle Road for a customer [now known to have been the Complainant] in the store that appeared to be intoxicated and not doing so well. The person was talking weird to the manager. The call-taker asked the caller to tell her about the speech. The caller said that it was a little bit slurry, that he was talking to himself and shaking, and that he smelled intoxicated. The caller advised that the Complainant was walking out of the store and had keys with him. He was alert and had told the caller not to call 911. The Complainant left the store and went to the LCBO store.

The second 911 call received was at 11:48 a.m. and was from a person at Walmart indicating that a man just left Walmart and was watching child pornography on his phone; he left in a truck or car. It was hard to understand the caller who did not answer questions asked by the call-taker. The caller hung up (a trace was placed on the cell phone used in this 911 call and it came back registered to the Complainant).


Call to the NRPS from District #1 Station Public Access Phone


At 12:27 p.m., a phone call was placed by the CW to the NRPS from the police station in St. Catharines. The CW stated he was in the lobby of the police station. He advised his son had rented a U-Haul truck and he had assisted him in moving the contents of his place of residence to a storage facility. They went to his home in St. Catharines and the CW had sensed there was something wrong with his son. He had suggested to his son that he would drive the truck back to the rental company, but his son told him that, without the paperwork, he could not drive it. They arranged to meet at the rental lot. The truck was supposed to be back at 9:00 a.m. that morning. The CW was at the rental facility at 9:10 a.m., but his son did not show up. He believed his son was agitated and distraught. The CW advised his son was not answering his phone. He provided his son’s name, and advised his son had some struggles recently and the police had previously taken him to the Niagara Health system. The CW suggested that the police approach his son with caution as he usually carried a sabre knife with him; he had seen the knife and had asked his son to give it to him, but he had refused. The knife was a hunting knife with a six-inch blade. The dispatcher then advised the CW that the police had located his son, with the U-Haul truck, at the Walmart on Vansickle Road. The CW said he would attend at the Walmart.


NRPS Radio Communications Recording


At 11:33 a.m., the WO was dispatched to the Best Buy store for an unwanted man [now known to have been the Complainant]. The WO attended, checked the area, and advised he could not locate the Complainant.

At 12:14 a.m., the WO went over the air to have an unwanted person call generated for the Walmart store. He indicated he would be inside the store trying to find the man, the Complainant, and take him out of the store. He again went over the air and requested another unit as he was probably going to have to drag the Complainant out. The WO then advised he was in the parking lot by a U-Haul truck.

The WO saw a call on his Mobile Data Terminal that the Complainant’s father, the CW, was at the police station in St. Catharines making a report about his son. He asked the dispatcher to have the CW attend at the Walmart, as his son had some mental health issues going on. The dispatcher advised that the Complainant’s father would attend. At 12:52 p.m., the WO advised that the Complainant was in custody and was bleeding under his right eye.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Detailed Call Summary (x3);
  • NRPS General Order - Use of Force Policy;
  • NRPS General Order - Powers of Arrest;
  • Recording of 911 call from the Best Buy Store;
  • Recording of 911 call from the Complainant;
  • Recording of telephone call made by the CW from the public access telephone at NRPS District #1 Station;
  • NRPS Scenes of Crime Officer (SOCO) photograph of Police Cruiser;
  • NRPS SOCO photographs of injuries to the Complainant;
  • Photo of scene marked by the WO; and
  • Notes of the SO and the WO.

Materials obtained from Other Sources

Investigators also secured and reviewed the following materials from other sources:
  • Medical Records from STCH;
  • Ambulance Call Report;
  • CCTV footage from Walmart; [1]
  • CCTV footage from Best Buy; and
  • CCTV footage from the LCBO.

Incident Narrative

On November 17, 2019, the Complainant was arrested outside of a Walmart store in St. Catharines by the SO and WO. Police had been notified, and attended, as a result of a complaint from a Walmart store employee indicating that the Complainant was behaving strangely, and that store management wished to have him removed from the property.

Upon the WO’s arrival at the store, he and the Complainant moved outside to the parking lot together. The WO believed that the Complainant was either under the influence of a narcotic, in a mental health crisis, or both, and he called for assistance, with the SO attending shortly thereafter.

While outside in the parking lot, at one point, the Complainant entered his father’s (the CW) motor vehicle, sat in the driver’s seat, and motioned as if to drive away. Believing the Complainant was impaired by drugs and/or alcohol, the WO and SO arrested the Complainant, took him out of the car and attempted to place him in handcuffs. Once the Complainant was handcuffed, it was discovered that he had a cut under his right eye which was bleeding heavily.

The Complainant was transported to hospital, where he was assessed as having a fracture to the orbital bone of his right eye.

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 SIU’s investigation into the circumstances surrounding the Complainant’s injury consisted of interviews with the Complainant and his father, the CW, the SO and the WO. On a review of this evidence, and for the reasons that follow, I am unable to find that the force used against the Complainant was excessive and therefore have no reasonable grounds to believe that either police officer involved in the Complainant’s arrest committed a criminal offence in relation to his injuries.

Once outside in the parking lot, the WO became aware that the Complainant’s father, the CW, was at the police station filing a missing person’s report on his son. The WO advised the dispatcher to notify the CW of his son’s location and ask him to attend. While awaiting the arrival of the CW, the WO moved his police vehicle behind the U-Haul truck that the Complainant had driven into the lot, effectively blocking it in and preventing the Complainant from leaving. At that time, the WO found the Complainant passed out in the driver’s seat, but there were no keys in the ignition.

Upon his father’s arrival, the Complainant immediately jumped out of the U-Haul truck, approached his father, and became aggressive, shouting obscenities at his father. The Complainant then walked away in the parking lot, while the CW spoke to the police officers. Upon the Complainant’s return, he got into the driver’s seat of his father’s car and reached for the gear shift as if to put the vehicle in motion. Believing that the Complainant was impaired and therefore could not legally be in care or control of a motor vehicle, the officers immediately removed him and told him that he was under arrest. The Complainant became aggressive and grabbed onto his father’s jacket and refused to let go, while the officers attempted to effect the arrest. The Complainant was exhibiting extreme strength and his father was unable to get him to release his hold. The SO and WO also tried to get the Complainant to let go of his father; when they were unable to do so, the WO delivered two distractionary punches to the left side of the Complainant’s face, which appeared to have no effect on the Complainant. The Complainant still refused to release his hold on his father, and actively continued to resist the officers’ attempts to place him under arrest. The SO bent down and wrapped his arms around the Complainant’s legs, sweeping them out from under him, which was effective in causing the Complainant to go to the ground. As the Complainant fell, he pulled his father down with him. The Complainant turned slightly to his right, as he was falling, striking his face on the rear bumper of the police vehicle when he went down to the ground. It was immediately observed that the Complainant was bleeding from his facial area. The police officers then knelt to either side of the Complainant and handcuffed him, while the Complainant continued to resist.

Pursuant to section 25(1) of the Criminal Code, a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. Both the WO and SO were in the execution of their duties in arresting the Complainant for being in the care or control of a motor vehicle while impaired by drugs and/or alcohol. When the Complainant violently resisted his arrest and refused to release his hold on his father, the WO delivered two distractionary blows to the Complainant’s left facial area. Based on the evidence, it is clear that the Complainant was violently resisting the efforts of the police officers to place him under arrest and into handcuffs. Even after the WO delivered the distractionary blows, the Complainant refused to release his grip on his father and continued to fight against the police officers who were trying to subdue him and place him in handcuffs. In order to overcome the Complainant’s resistance, the officers took him to the ground. Because of his active and violent resistance, he took his father down with him and, in doing so, he struck his face on the rear bumper of the police vehicle, causing his injury. Even then, the Complainant continued to resist and it took additional effort by both police officers to finally get him into handcuffs.

While it is clear that the Complainant sustained his injury when he was taken to the ground by the SO and WO, I am satisfied that this level of force was reasonably necessary in the circumstances to gain control over the Complainant and to place him in handcuffs. I note the Complainant was described as being extremely strong, with the WO describing him as having “crazy strength.” Additionally, I note that the two distractionary blows delivered by the WO had absolutely no effect on the Complainant, and he showed no reaction to the strikes, nor did it appear to deter or lessen his resistance in any way. As such, it appears clear that in order to gain control over the Complainant, it was necessary for the officers to take further action and they opted to take him to the ground. This level of force falls within the scope of that permitted by law. Accordingly, I am unable to form reasonable grounds to believe that either of the SO or the WO committed a criminal offence in connection with the Complainant’s injury. As such, no charges will issue, and this file is closed.


Date: May 11, 2020


Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) Investigators requested CCTV footage from the Walmart store for the period in question. When the CCTV footage was received, however, it was found to be of no evidential value as the incorrect time period had been copied. Several subsequent attempts to secure the relevant footage were unsuccessful. [Back to text]