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SIU Director’s Report - Case # 19-OCI-311

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 a serious injury sustained by a 32-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 29, 2019, at 3:21 p.m., the Niagara Regional Police Service (NRPS) contacted the SIU and reported an injury to the Complainant.

The NRPS reported that on December 29, 2019, at approximately 11:05 a.m., the NRPS were called to the Tim Hortons located at 212 Welland Avenue in St. Catharines. The Complainant was involved with another patron and spat in his face. NRPS police officers responded and arrested the Complainant for assault. They could not locate a victim and were in the process of releasing the Complainant when he assaulted one of the police officers. As a result, the Complainant was arrested for assault police and grounded. He was taken to the NRPS Niagara Falls Station and, while being booked, he complained about pain to his leg. At 2:30 p.m., the Complainant was taken to Greater Niagara Falls General Hospital (GNFGH) where he was diagnosed with a nonspecific fracture. After treatment, he was released back into the custody of the NRPS

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned:
 
The SIU investigators travelled to Niagara Falls and St. Catharines to locate and speak with the Complainant. The Complainant declined to provide a statement. He did sign an Authorization for the Release of Medical Information form and undertook to contact investigators if his position changed. 
 
Investigators travelled to the Tim Hortons on Welland Avenue and viewed closed-ircuit television (CCTV) footage for the relevant date. While the CCTV footage did not contain evidence of the interaction between the Complainant and the police, footage relevant to the investigation was secured.

The Authorization for the Release of Medical Information form was delivered to GNFGH.

On December 31, 2019, the Complainant indicated he wished to provide a statement. On January 2, 2020, investigators travelled to Niagara Falls and conducted an interview with the Complainant. Investigators also interviewed the Complainant’s mother, the Civilian Witness (CW), as a result of information received during the Complainant’s interview.

Investigators identified an area of interest and sought the services of an SIU Forensic Investigator to photograph the scene.

Investigators travelled to the NRPS HQ and met with the Liaison Officer. As a result, one subject officer and two witness officers were designated.

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

As a result of investigations and interviews conducted, investigators are satisfied that the interaction between the Complainant and the police took place in the vicinity of the east side vehicle entrance of the Tim Hortons at 212 Welland Avenue, St. Catharines (as depicted below).

The ground was found to be in poor repair and in need of resurfacing. Of note was the area around a sewer cover which was in the immediate area of the interaction.

Figure 1 - The Tim Hortons where the incident occurred.
Figure 1 - The Tim Hortons where the incident occurred.

Video/Audio/Photographic Evidence


CCTV Footage from Tim Hortons


At 10:47 a.m., the back of a NRPS SUV police cruiser was visible moving along the west side of the building, in the drive-thru lane. A white Nissan SUV [known to have been operated by the CW] pulled into the last parking spot to the east, facing the front of the building. The Complainant exited the front door, on the west side of the building, and walked toward the Nissan. The Complainant approached and opened the front passenger door. He reached into the vehicle with his right arm and was handed several items by the CW. He backed up from the passenger door and appeared to be having a discussion with the CW. He took off a red sweater and put it in the car before removing a dark-coloured jacket and attempting to remove the tags from the jacket. He became frustrated and threw the jacket at the Nissan and onto the ground. The Complainant picked the jacket up and threw it into the Nissan; he appeared to be very animated and aggressive in his conversations with the CW.

A black pickup truck entered the parking lot and a woman passenger exited and went into the Tim Hortons. The Complainant retrieved his items from the vehicle again and then walked toward the back of the vehicle, leaving the passenger door open. The CW reached across the vehicle and closed the passenger side door as the Complainant approached the driver’s side of the Nissan. The Complainant spat on and punched the driver’s side front window before leaving, walking eastbound through the parking lot. The woman occupant of the black pickup truck exited the Tim Hortons with coffees and stopped to watch the Complainant. This woman then walked towards the black pickup truck, which was stopped on the driveway behind the CW’s car. (It is believed the occupants of the black pickup truck reported the incident of the Complainant spitting to WO #1). The CW reversed her vehicle out and drove away. The marked NRPS SUV police cruiser drove around the southeast corner of the building, toward the drive-thru window. The single occupant [now known to have been WO #1] got a coffee and drove out.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Notes of the WOs and SO;
  • NRPS General Order-Use of Force; and
  • NRPS General Order-Powers of Arrest.


Materials obtained from Other Sources

Investigators also obtained and reviewed the following materials from other sources:
  • CCTV footage from Tim Hortons, 212 Welland Avenue; and
  • Medical Records from the GNFGH.

Incident Narrative

The material events in question are largely uncontested on the evidence collected by the SIU, which included statements from the Complainant, the SO and two police eyewitnesses. Shortly after 11:00 a.m. of the day in question, the Complainant found himself under arrest for assault by WO #1 at the corner of Welland Avenue and Niagara Street. The officer had been alerted to the Complainant’s presence by a motorist, who reported having seen the Complainant spit on someone at the Tim Hortons just west of their location. In fact, the Complainant had been at the Tim Hortons moments prior where he had met his mother – the CW – in the parking lot. The Complainant had become angry with his mother and punched and spit at her driver’s door window, with her inside the vehicle, before leaving the area on foot.

With the Complainant in the backseat of his cruiser, WO #1, joined by the SO, who had responded to Welland Avenue and Niagara Street to render assistance, returned to the Tim Hortons to further investigate the alleged assault. The CW having left the area, and there being no witnesses who had observed the incident, the officers decided to release the Complainant unconditionally.

Once removed from the backseat of WO #1’s cruiser, the Complainant became angry and accused the officers of stealing his property. As WO #1 walked past him to retrieve his wallet from the cruiser, the Complainant dipped his shoulder and checked the officer. WO #1 stumbled, regained his footing and pushed the Complainant away from him with his hands. At about the same time, the SO delivered a single punch to the Complainant’s face and then spun him down to the ground, whereupon the Complainant was re-handcuffed without further incident.

Following his arrest at the Tim Hortons, the Complainant was taken to the police station and then, when he complained of pain, to the 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 morning of December 29, 2019, the Complainant was arrested by NRPS officers in St. Catharines and subsequently taken to hospital, where he was diagnosed with a broken ankle. The SO was among the arresting officers and identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, 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 authorized or required to do by law. There is no question around the lawfulness of the Complainant’s apprehension at the Tim Hortons. By all accounts, he had shoulder checked WO #1 and was subject to arrest for assault.

Nor do I believe there is much of a question around the propriety of the force used by WO #1 and the SO in effecting the Complainant’s arrest. Despite being released from police custody, the Complainant grew increasingly belligerent in his exchanges with the police and delivered a shoulder check to WO #1. In the circumstances, the officers were entitled to defend themselves with a measure of force of their own. WO #1 pushed the Complainant back to create some further distance between them while the SO punched the Complainant in the face and took him to the ground to deter any further aggression, none of which were unreasonable reactions in my estimation given the Complainant’s unprovoked act of violence.

While it is possible that the Complainant fractured his ankle in the course of his confrontation with the SO and WO #1, there is a possibility raised in the evidence that he was injured prior to his encounter with the police. Be that as it may, as I am satisfied that the officers acted lawfully throughout their dealings with the Complainant, there is no basis for proceeding with charges in this case and the file is closed.


Date: June 8, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit