Cruiser and motorbikeCruiser accidentRunners
thick blue gradient line

SIU Director’s Report - Case # 20-OCI-145

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 the injury that a 51-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On June 21, 2020, at 11:35 a.m., the Niagara Regional Police Service (NRPS) contacted the SIU and reported that on June 21, 2020, at 4:04 a.m., police officers with the NRPS responded to a break and enter in progress at an address on Summit Avenue, Welland. The suspect of the break and enter, the Complainant, attempted to break into his ex-girlfriend’s residence. When police were called, the Complainant fled the scene on foot. NRPS police officers set up a perimeter for the next three hours. Eventually, the Complainant was spotted going into a residence, which was being renovated, at an address on Raymond Street, Welland. Subject Officer (SO) #1 went into the residence and located the Complainant on the second floor of the residence. A fight ensued and the Complainant was injured during the arrest.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW Not interviewed - refused

Witness Officers

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


Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right.




Evidence

The Scene

The scene was located on the second floor of an unsecured residence under construction at an address on Raymond Street, Welland.

Video/Audio/Photographic Evidence


Police Booking Video


The SIU acquired 171 clips of video, which detailed the arrival, movement and release of the Complainant at the NRPS station. The Complainant arrived in the sally port at 11:44 a.m., June 21, 2020. He was observed to walk unaided without any evidence of being unsteady on his feet. He was booked at 11:47 a.m. The Complainant’s injuries were photographed by an SIU forensic investigator. He was released at 3:19 p.m., June 22, 2020.

Police Communications Recordings


Summary of Police Communications


At 4:06:23 a.m., June 21, 2020, a woman called the NRPS and advised that a man had broken into her residence at an address on Summit Avenue, Welland. She advised that the man, whom she refused to identify [now known to be the Complainant], was armed with a hammer. At 4:09:23 a.m., the woman told the call-taker that the Complainant had been in possession of a shotgun two weeks prior.

A further transmission indicated that there were grounds to arrest the Complainant for assault and mischief.

At 4:29:34 a.m., the K9 police officer [now known to be WO #4] started a track. The Complainant was sighted on numerous occasions in different backyards. At 6:31 a.m., it was broadcast that a photograph of the Complainant had been uploaded to the computer system and, at 7:05 a.m., after a sighting of the Complainant, a description was broadcast of him being shirtless and wearing cargo shorts.

At 7:30 a.m., WO #4 broadcast that the Complainant had been located in a house [now known to be at an address on Raymond Street, Welland]. At 7:31 a.m., WO #4 broadcast that everything was okay.

At 7:53 a.m., SO #1 broadcast that he was going to drop the Complainant off at the hospital and then clean himself up because he had blood on his arms.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Communications recordings;
  • Detailed Call Summary;
  • Duty Roster-3 District A Platoon;
  • List of Involved Officers;
  • Narrative Text-Prosecution Summary;
  • Narrative Text-Initial Report;
  • Notes-all WOs;
  • NRPS Cell Video;
  • NRPS Scenes of Crime Officer (SOCO) Photographs;
  • Procedure – Use of Force;
  • Two Radio Call Logs;
  • Witness Statement-an identified civilian; and
  • Witness Statement-the CW.

Materials obtained from Other Sources

In addition to the materials received from the NRPS, the SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records from the Welland County General hospital; and
  • Photographs of the Complainant’s injuries, which the Complainant had arranged to have taken, from the Complainant.

Incident Narrative

Though the nature and extent of the force that was used by the subject officers to take the Complainant into custody is in dispute, the following scenario emerges from the weight of the evidence gathered by the SIU, which included interviews with the Complainant, one of the subject officers – SO #1 – and a witness officer who participated in the arrest. As was his legal right, SO #2 declined to interview with the SIU.

Shortly after 4:00 a.m. on June 21, 2020, police received a 911 call from an address on Summit Avenue, Welland. The caller reported that her mother’s estranged partner – the Complainant – had been to the house where he had caused damage to property and personal injury. Reportedly, the Complainant was in the possession of a hammer and had a couple of weeks prior been seen with a firearm. Officers were dispatched to the address.

The Complainant had indeed been to the home of his former girlfriend – the CW. He became violent when the CW insisted that he leave. The Complainant eventually did so, but not before damaging the CW’s potted plants in the yard and assaulting the CW. The Complainant fled from the CW’s property on foot.

Multiple officers responded to the area and a perimeter was established to contain the Complainant. A police canine unit, consisting of WO #4 and his dog, were deployed to assist in tracking the Complainant.

SO #1 was among the officers who joined in the search for the Complainant. Over the course of the next two and a half hours, the Complainant was spotted by police on several occasions scaling fences and traversing property lots. He eventually made it to an address on Raymond Street (a home under construction), entered it, and hid behind a balcony door on the second floor. SO #1 had observed movement coming from the house and entered it a short time after the Complainant. As to what happened next, there is disagreement in the evidence.

According to some evidence, the Complainant rose to meet SO #1 upon being located and was quickly held in the neck area by SO #1 with the use of a baton or flashlight before being thrown to the floor. With the Complainant on the floor and not resisting, SO #1 punched him in the face and then slammed his head into the floor. It was at this time, according to this evidence, that a second officer – SO #2 – entered the room and jumped on the Complainant’s back, breaking his ribs. Additional punches to the face and kicks to the body were delivered by one or both of the officers before his hands were handcuffed behind his back. Following his arrest, the Complainant was taken to hospital and treated for multiple facial lacerations and several rib fractures.

In the version of events proffered by the officers, the Complainant immediately resisted his arrest upon being located and confronted by SO #1. He yanked his right arm free from SO #1, who had taken hold of him, and then travelled toward the stairs to make his way to the main floor. According to SO #1, before the Complainant reached the stairway, he grabbed hold of his left arm and used his right leg to trip him to the floor. The Complainant landed face and front first, and immediately started rolling on the floor to get away from SO #1. SO #1 delivered a right-handed strike to the left side of the Complainant’s face, which he followed with a left-handed strike to the right side of the Complainant’s face when he continued to resist by flailing on the floor to keep the officer at bay. About a minute into the struggle, SO #1 was joined by SO #2 and then WO #2, who assisted in subduing the Complainant. Following a knee strike by SO #1 into the Complainant’s chest as the latter was prone on the floor and still struggling, the officers were able to wrest control of the Complainant’s arms and handcuff them.

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 June 21, 2020, the Complainant was arrested by NRPS officers, suffering serious injuries in the process. Among the arresting officers, SO #1 and SO #2 were identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s arrest and injuries.

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 provides such force was reasonably necessary in the execution of an act that they were authorized or required to do by law. In light of the information conveyed to the police officers at dispatch, to the effect that the Complainant had struck the CW and damaged her property, and what they learned upon arriving at the CW’s residence, there were clear grounds to arrest the Complainant for assault and mischief. The real issue is with the propriety of the force used by the subject officers in effecting the Complainant’s arrest.

If the incriminatory evidence is to be believed, the Complainant was the victim of an unlawful assault on the part of SO #1 and SO #2. Despite surrendering peacefully upon being discovered, and offering no resistance to his arrest, the Complainant, according to this evidence, was needlessly grounded and then pummeled with multiple punches and kicks as he lay on the floor. His broken ribs, according to this evidence, occurred when the second officer – SO #2 – joined the fray and jumped on his back.

In my view, it would be unsafe and unwise to rest criminal charges on the incriminatory evidence of what happened in the face of the countervailing evidence proffered by SO #1 and SO #2. The Complainant’s alleged passivity in the course of his arrest, according to the incriminatory evidence, is at odds with the truculent and violent disposition he displayed a short time earlier when he accosted the CW in her home. It is also incongruous with the Complainant’s dogged flight from the police, in which he proved himself willing to trespass over private property and break into a home to evade capture. Of particular concern was the incriminatory evidence’s minimization of the Complainant’s behaviour toward the CW, which had prompted the call to police. Whereas multiple lines of evidence indicate that the Complainant intentionally struck her in the face with a pot, the incriminatory evidence supports the understanding that the CW was accidentally and inadvertently hit by a pot that he had kicked in frustration. On this record, I am not satisfied that the incriminatory evidence’s suggestions about the force used against the Complainant are sufficiently trustworthy to warrant being put to the test by a court.

On my review of what remains of the evidence, I am unable to reasonably conclude that the Complainant was subjected to unlawful force. If one starts with the takedown of the Complainant by SO #1, it seems in my view to have been a reasonable tactic. The Complainant had given every indication in the course of his flight from police that he was determined to evade arrest. Once located on the second floor of the home under construction on Raymond Street, he did not surrender willingly. Rather, he waited to be discovered behind a door, yanked his arm away from SO #1 when SO #1 initially attempted to take him into custody, and then walked toward the staircase as if to leave the premise. In the circumstances, SO #1 was entitled to neutralize the Complainant’s continuing resistance by taking him to the ground.

While on the floor, the Complainant’s resistance persisted as he refused to release his arms to be handcuffed and used his limbs to keep the subject officers back. SO #1 reacted by delivering two punches to the Complainant’s face which he hoped would distract him and afford the officers an opportunity to complete the arrest. When the punches failed, SO #1 delivered a knee strike to the Complainant’s torso, following which the officers were able to take control of the Complainant’s arms and handcuff them behind his back. Here too I am satisfied that the SO’s force was commensurate and proportional to the challenges at hand. The strikes were not delivered indiscriminately; rather, one followed the other deliberately after a period in which it was clear that the Complainant’s struggle had not abated. As for SO #2’s conduct during the arrest, much is unclear as SO #2 did not provide a statement to the SIU, SO #1 and WO #2 were not focused on his actions, and the incriminatory evidence is unreliable.

In the final analysis, while I accept that one or more of the Complainant’s injuries were inflicted by the force used by SO #1 and SO #2 in taking him into custody, I am not satisfied on reasonable grounds that those injuries were the result of unlawful force on the part of the officers. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: October 13, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit