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SIU Director’s Report - Case # 20-OCI-010

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 the injury that a 38-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On January 19, 2020, at 12:50 a.m., the Niagara Regional Police Service (NRPS) contacted the SIU and reported an injury to the Complainant.

On January 18, 2020, at about 8:56 p.m., NRPS police officers responded to an address on Second Street in Welland in relation to a well-being call. Upon their arrival, they spoke to the occupants and decided to arrest the Complainant for the offence of threatening. The Complainant was grounded and taken into custody. During the grounding, he sustained a cut above his eye and was subsequently taken to the Welland General Hospital (WGH) where he complained of rib pain and stated the police had injured him. X-rays later confirmed an injury, but it was undetermined whether it was a new injury or an old injury healing.

The Team

Number of SIU Investigators assigned: 4

Complainants

Complainant: 38-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

Witness Officers

WO Interviewed


Subject Officers

SO #1 Interviewed and notes reviewed


Evidence

The Scene

The Complainant was arrested in the hallway of a house located on Second Street in Welland. The police interaction with him began in the hallway of the property and ended up in a small dining room adjacent to the kitchen. The dining room contained a dining table, chairs, and other household items. There was a clear view of the entrance to the dining room, through the kitchen, from the living room. CW #1 was sitting in a chair in the living room when the police arrested the Complainant and she saw him, and the two police officers, fall from the hallway into the dining room.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:
  • General Occurrence reports related to this incident;
  • NRPS Scenes of Crime Officer (SOCO) photographs-Text Messages;
  • NRPS General Order-Use of Force;
  • NRPS General Order-Powers of Arrest;
  • Notes-the SO;
  • Notes-the WO; and
  • Statements from civilian witnesses.

Materials obtained from Other Sources

In addition to the materials received from the NRPS, SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records from WGH and St. Catharines General Hospital.

Incident Narrative

The following scenario emerges from the weight of the reliable evidence collected by the SIU. At about 8:30 p.m. on January 18, 2020, the SO and the WO were dispatched to a house on Second Street in Welland to check on the well-being of CW #1. CW #1 lived at the house with her husband and son, the Complainant. Concerned for her mother, CW #1’s daughter had called the police as the Complainant had sent threatening text messages to her and her mother and she had not heard from her mother all day.

The officers were invited into the home and spoke with CW #1. She confirmed that the Complainant, who was in the basement, had threatened to do her and her daughter harm, showing them the text messages in question. The SO contacted CW #1’s daughter by phone and she indicated she would support charges against her brother. As the officer was on the phone, the Complainant emerged from the basement and went to the kitchen. He ignored the SO’s pronouncement that he was under arrest and continued to the door to return to the basement. The SO grabbed hold of the Complainant’s arm and he yanked it back, adopting a fighting posture in the process, whereupon the officers pushed him up against the hallway wall.

There ensued a struggle between the parties as the officers attempted to take the Complainant into custody. The Complainant resisted arrest and was grounded by the officers, the parties landing onto the dining room floor. The Complainant refused to release his arms and was threatened by the SO with the use of his Conducted Energy Weapon (CEW). The SO thought better of it, holstered his weapon and instead delivered two punches and two knee-strikes or kicks to the Complainant’s left side and leg. At about the same time, the WO used her knee to strike the Complainant’s right thigh twice. After a further brief period of struggle, the officers were able to wrestle control of the Complainant’s arms and handcuff them behind his back.

Following his arrest inside the home, the Complainant was escorted outside, lodged in the backseat of the SO’s cruiser, and taken to hospital, where his head 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 evening of January 18, 2020, the Complainant was arrested inside his home by NRPS officers. He was subsequently taken to WGH where he was diagnosed with a concussion and an old fracture. The SO was one of the two arresting officers and most likely to have caused the Complainant’s injury; accordingly, he was 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 concussion.

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. There is no question around the lawfulness of the Complainant’s arrest. Having personally spoken to CW #1 and her daughter, and reviewed the texts the Complainant had sent them, the officers were within their rights in seeking to apprehend the Complainant for uttering threats contrary to section 264.1 of the Criminal Code. The question turns to the propriety of the force used by the officers.

When the Complainant resisted his arrest by pulling away from the SO and taking a combative stance, the SO and the WO were entitled to resort to a measure of force and, I am satisfied, they did so within the confines of the law. Aside from the blows struck by the SO and the WO, the officers attempted to wrestle the Complainant into submission in a fashion that was commensurate with the Complainant’s recalcitrance. Unable to overcome the Complainant on their feet, the SO and the WO decided to ground him. In my view, the tactic was a reasonable one in the circumstances; with the Complainant on the floor, the officers stood a better chance of managing his aggression.

The real issue lies with the strikes delivered by the SO and the WO. It is important to note that these blows only occurred after repeated verbal exhortations, a period of grappling, a forceful takedown and the threatened use of a CEW had failed to deter the Complainant. On this record, I am unable to reasonably conclude that the strikes amounted to an excessive use of force.

I am cognizant of the fact that some evidence suggests that the SO kneed the Complainant in the head as he stood by the side of the cruiser, handcuffed, prior to being placed in the vehicle. However, I am unable to place any credence in this claim. Two independent civilian witnesses indicate that no such force was used; rather, according to this evidence, the Complainant was led to the cruiser and lodged in the vehicle without incident.

In the result, while I accept that the Complainant might well have suffered a concussion in the course of the physical confrontation that marked his arrest, I am satisfied that the SO and the WO conducted themselves lawfully throughout the encounter. Accordingly, there is no basis for criminal charges against the officers, and the file is closed.


Date: August 12, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit