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SIU Director’s Report - Case # 20-OCI-115

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 49-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On May 21, 2020, at 6:40 a.m., the Niagara Regional Police Service (NRPS) notified the SIU of the Complainant’s injury. The NRPS reported that on May 20, 2020, at 11:09 p.m., the NRPS received a 911 call from Civilian Witness (“CW”) #6, the motel manager of a motel on Lundy's Lane in Niagara Falls. CW #6 reported that a tenant of the motel, the Complainant, was damaging motel property and had chased him.

The Subject Officer (“SO”) and the Witness Officer (“WO”) were dispatched to the motel where they located the Complainant. When they tried to arrest the Complainant, a struggle ensued. Once the Complainant was in police custody, the WO and the SO walked the Complainant toward a police vehicle where the Complainant fell and fractured his ankle.

The Complainant was transported to the Greater Niagara General Hospital (GNGH) where he was diagnosed with a fractured ankle.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators (FIs) assigned: 1

Complainants

Complainant: 49-year-old male refused to be interviewed


Civilian Witnesses

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

Witness Officers

WO Interviewed


Subject Officers

SO Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The motel was located on Lundy’s Lane, Niagara Falls. The Complainant’s unit was photographed and measurements were taken by the SIU FI. The Complainant’s unit was a small, one bedroom with an adjacent bathroom and closet. There was one double-sized bed in the room that was up against the south wall of the room. This room was very cluttered and unclean. There were no signs of an altercation and no signs of damage to the walls or doors to indicate that they were kicked. On the south wall of the room to the left of the entranceway, marks of possible footwear impressions were located. However, these footwear impressions were measured at 1.3 metres from the floor and did not cause any structural damage to the wall. The adjacent closet walls showed the same markings also measuring high up from the floor.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following:
  • The motel’s Closed-circuit Television (CCTV) footage

The Motel’s CCTV footage

The motel was equipped with four CCTV camera systems that recorded events relevant to this investigation.

The video footage begins at 10:13:03 p.m. [1] on May 20, 2020 when camera 4 captured CW #6 and the Complainant walking in an easterly direction from the northwest corner of the motel. The Complainant is holding a beer can in his hand. CW #6 is seen making a call on his mobile phone. The Complainant is seen trying to grab CW #6’s phone. The video evidence suggests the Complainant was extremely intoxicated as images captured him unsteady on his feet while reaching for CW #6’s phone. CW #6 walks away from the Complainant. The Complainant follows CW #6 as he waves a finger at CW #6’s face. Shortly after, the Complainant chases CW #6 in the motel parking lot and they both move out of view of camera 4.

Both men return into the view of camera 3 where images captured them near playground equipment located on the south side of the motel parking lot. The Complainant is seen chasing CW #6 around the playground equipment. It is at this juncture video images captured CW #3, CW #5 and CW #2, exiting a unit in the motel and intervening between the Complainant and CW #6.

Further video images captured from camera 4 show CW #6 walking backwards away from the Complainant as the Complainant follows him. Images captured CW #2 and CW #3 standing in between the two men. Shortly after, images captured CW #5 walking in between CW #3 and the Complainant. CW #2 is seen leading CW #6 away from the Complainant as they move toward the northwest corner of the motel. The Complainant walks toward the northwest corner of the motel where he leaves the view of the camera.

At 10:23 p.m., video images captured from camera 1 show the SO and the WO arriving at the motel and, shortly after, capture them speaking with CW #6 inside the motel office. At 10:25 p.m., video images captured from camera 1 show the SO and the WO leaving the office with CW #6 as they walk northbound along the motel property.

At 10:25 p.m., video footage captured from camera 3 show images of the SO and the WO walking northbound on the east side of the parking lot of the motel with CW #6. They meet with CW #3 and he motions with his hand signaling them to the location of the Complainant, which was behind the motel (believed to be the firepit location).

At 10:25:50 p.m., images from camera 4 captured the SO, the WO and CW #6 walking west to the northwest corner of the motel where they stop to speak with a person, believed to be the Complainant. They escort him to his motel room.

At 10:44 p.m., images captured from cameras 3 and 4 depict two marked NRPS SUVs travelling north of the motel parking lot where the SO exits the first police vehicle as the WO exits the second police vehicle. CW #5 approaches and speaks with the SO, soon joined by CW #6. The SO, the WO and CW #6 walk toward the Complainant’s motel unit, where images capture the Complainant opening the door to his unit. It appears the Complainant is yelling at the officers as they approach his motel unit. Video images capture the Complainant pointing his hand at CW #6 as CW #6 backs away from the Complainant. The SO and the WO start to move toward the Complainant.

At 10:53 p.m., video images captured from camera 3 show the WO situated to the left of the doorway of the Complainant’s motel unit as he reaches for the Complainant. Images are captured of the SO and the WO effecting the arrest of the Complainant. The SO is situated to the right of the doorway as she reaches for the Complainant’s left arm, and both officers are pulled into the Complainant’s unit. The SO appears to lose her hold on the Complainant’s arm as the WO starts to be pulled into the Complainant’s room. As the WO is being pulled into the room, the officer raises his right arm to strike the Complainant. The SO follows behind the Complainant into the motel room.

At 10:56 p.m., the video evidence captured from camera 3 shows the SO backing out of the motel room with her left hand holding onto the Complainant’s right arm as the WO holds onto the Complainant’s left arm. The Complainant is handcuffed with his hands behind his back. The Complainant walks about five steps near a pool with a slide, which partially blocks the view of camera 3. The video images captured at this juncture suggest the Complainant had stumbled or fallen onto the ground landing on his backside.

As the Complainant falls, the SO and the WO support him by his arms and then assist him by lifting him to his feet. There is no video evidence to suggest that either of the involved officers strike or kick the Complainant in this segment of the video. This video evidence suggests the probability that the Complainant sustained his injury at this location. The SO and the WO lift the Complainant to his feet whereupon he begins to hop on his left foot, while his right foot appears injured. The officers seem to be struggling trying to support the Complainant’s weight as they walk him to a police vehicle.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Detailed Call Summary;
  • Notes-three police officers who did not witness the incident;
  • Notes-the WO;
  • Use of Force Policy
  • Incident History; and
  • Prosecution Summary-Narrative Text Hardcopy.

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 motel’s CCTV recordings.

Incident Narrative

The material events in question are relatively clear on the weight of the evidence gathered by the SIU, which included interviews with the WO – one of the arresting officers with the SO – and several witnesses to various aspects of the interaction between the officers and the Complainant. Neither the Complainant nor the SO interviewed with the SIU, as was their right. The investigation also benefitted from a review of CCTV video recordings captured by various cameras situated at the scene.

At about 11:09 p.m. on May 20, 2020, a 911 call was received by NRPS complaining about the behaviour of the Complainant. The inebriated Complainant – a resident in one of the units at the motel on Lundy’s Lane – had been hurling profanities and shouting racist slurs. Much of his ire had been directed at the inn manager – CW #6, whom he chased and threatened to assault. Officers were dispatched to investigate the disturbance.

The SO and the WO arrived at the inn at about 11:20 p.m. They spoke with CW #6 and then approached the Complainant, convincing him to return to his room and retire for the evening.

As the officers were leaving the property in their respective vehicles, they were stopped by other inn residents reporting that the Complainant had again exited his room and resumed his threatening antics toward CW #6. The officers left their vehicles and approached the Complainant, who was standing at the threshold of the doorway to his unit. They advised the Complainant that he was under arrest for causing a disturbance and proceeded to take hold of him.

The Complainant resisted his arrest and a struggle ensued. Upon being grabbed by the officers, the Complainant pulled back. As the officers were being pulled into the unit, the WO delivered a right-handed punch to the Complainant’s head, following which the Complainant was taken to the floor. The WO delivered an additional two punches to the Complainant – one to the head and the other to the body – before the Complainant was placed in handcuffs and secured in custody.

Following the Complainant’s arrest, he was helped to his feet and walked out of his unit by the officers. A few steps from his doorway, the Complainant fell to the ground and complained that his foot was broken. The officers examined the Complainant’s right foot and then brought him to his feet again, whereupon they assisted in escorting the hobbling Complainant to the SO’s cruiser.

With the help of other arriving officers, the Complainant was subsequently placed into another cruiser. He was ultimately taken to hospital where it appears he was diagnosed with a fractured ankle.

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

On May 20, 2020, the Complainant was arrested by NRPS officers. He was subsequently transported to hospital and reportedly diagnosed with a fractured ankle. One of the two arresting officers – the SO - 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 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. By all accounts, the Complainant’s obnoxious and hostile behaviour had disrupted the lives of several persons at the inn, not least of whom was CW #6 – the target of the Complainant’s unfiltered profanity and assaultive behaviour. He was clearly subject to arrest for causing a disturbance. The issue turns to the propriety of the force used by the officers in effecting the Complainant’s arrest. [2]

It is uncontested that the Complainant objected to his arrest and struggled against the officers’ efforts to take him into custody. In the circumstances, the SO and the WO were entitled to respond with a measure of force of their own. The WO did so by delivering a series of three punches – two to the head and one to the body – and forcing the Complainant to the ground. At the time he did so, I am satisfied that the Complainant was strenuously resisting the officers’ efforts to take him into custody. In the circumstances, I am unable to reasonably conclude that the takedown and punches exceeded what was lawful in the circumstances. The former would place the officers in a better position to safely manage any further resistance on the Complainant’s part; the latter were designed to counteract and deter the Complainant’s aggression. As for the SO’s participation in the struggle inside the Complainant’s unit, there is little to no evidence as to what, if anything, she did, and certainly no suggestion that she used excessive force.

It remains unclear when and how the Complainant suffered his foot injury. There is a distinct possibility raised in the evidence that it might have been self-inflicted, the result of his violently kicking objects in his room in a fit of rage. Be that as it may, as I am satisfied that there are no reasonable grounds to believe that either the WO or the SO acted other than lawfully in their encounter with the Complainant, there is no basis for proceeding with charges in this case and the file is closed.


Date: August 17, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) All times denoted on video recording were one hour behind actual time. [Back to text]
  • 2) There is an issue with respect to whether the Complainant was in a “dwelling-house” at the time of his arrest. If so, pursuant to the law set out in R. v. Feeney, [1997] 2 SCR 13, and section 529 of the Criminal Code, it may be the officers ought to have secured judicial pre-authorization prior to making the arrest. On my review of the evidence, however, I am unable to conclude with any confidence that the arrest took place inside the Complainant’s “dwelling-house”; the video recording appears to depict the Complainant at the threshold of his doorway with his arms through the opening when the officers, standing in front of the doorway, first took hold of the Complainant’s arms. [Back to text]