SIU Director’s Report - Case # 17-OCI-369
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Mandate of the SIU
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.
Freedom of Information and Protection of 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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 serious injury reportedly sustained by a 39-year-old man during his arrest on December 19, 2017.
Notification of the SIUAt approximately 9:09 p.m. on December 19, 2017, the Niagara Regional Police Service (NRPS) notified the SIU of a custody injury sustained by the Complainant earlier that date at approximately 3:09 p.m.
The NRPS reported that the police received a call regarding a suspicious person in the City of Welland. The Street Crime Unit (SCU) responded and took up observation of the Complainant. The Complainant was subsequently arrested following a foot chase and placed in the rear of a cruiser at 3:09 p.m. At 3:13 p.m, the Complainant was smashing his face against the partition in the cruiser. He was transported to the Central Lockup in Niagara Falls and re-directed by the booking sergeant to the hospital. He was diagnosed with facial fractures but the doctor would not provide any more information about the extent of the injury.
The TeamNumber of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Complainant:39-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
Witness OfficersWO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
Subject OfficersSO #1 Declined interview and to provide notes, as is the subject officer’s legal right
At 2:22 p.m., CW #1 reported to the NRPS that he had observed a man going from house to house on Classic Avenue and knocking on doors.
WO #1 was familiar with the Complainant from previous dealings in which he had charged the Complainant with breaking and entering. WO #1 detailed the SO to attend Classic Avenue with the intention of performing surveillance of the Complainant.
The SO attended the area and set up surveillance. He observed the Complainant go into the backyard between two houses. Fifteen minutes elapsed without the Complainant being sighted and WO #1 was of the opinion that the Complainant was committing a residential break and enter, so he detailed uniformed police officers to move into the location. WO #2, who had set up surveillance at the rear of a residence on Classic Avenue, broadcast that the Complainant was running eastbound, from the rear of that residence, into the backyards on the east side of Classic Avenue. WO #1 and the SO moved into the area.
CW #6 pointed out that the Complainant was at the rear of her residence. The SO then entered the backyard of CW #6’s residence, where he located the Complainant. The SO chased and tackled the Complainant onto a grassy surface. The Complainant was then placed into the rear of an NRPS uniformed SUV police vehicle, where residents witnessed the Complainant banging his head numerous times against the Plexiglas/metal partition.
The Complainant was taken to the hospital and assessed.
Nature of Injury/Treatment. Upon assessment, the Complainant was found to have a mildly displaced fracture extending through the floor of the right orbit (eye socket) as well as the anterior and lateral walls of the right maxillary antrum (sinus). Maximal displacement was measured at a few millimetres.
The SceneThe scene of the arrest was located on a grassy surface at the west side of a private residence on Classic Avenue in the City of Welland.
The Complainant was then arrested and placed into the rear seat of an NRPS vehicle, a Ford Explorer SUV. The SUV was equipped with a Plexiglas security partition located between the front and back seats of the vehicle. The vehicle was secured at the NRPS headquarters in Niagara Falls following the arrest.
On Wednesday, December 20, 2017, the SIU forensic investigator photographed and examined the vehicle. There were dirt smears on the rear Plexiglas barrier behind the driver’s seat, but nothing was found on the barrier that appeared to be blood.
Forensic Evidence No submissions were made to the Centre of Forensic Sciences.
Video/Audio/Photographic Evidence As the arrest took place at the rear of a private residence, no video could be located. The NRPS vehicle was not equipped with an in-car camera system.
Communications RecordingsThe 911 calls and the police transmissions communications recordings were obtained and reviewed; they revealed the following:
At 2:22 p.m. on December 20, 2017, CW #1 telephoned the police and related that a suspicious male was knocking on doors and going up driveways on Classic Avenue. A similar call had been received at 1:36 p.m. from CW #3, who reported that a suspicious male, who he identified as the Complainant, was acting suspiciously and was knocking on doors.
SCU police officers set up surveillance on Classic Avenue and the Complainant was observed at the rear of a residence on Classic Avenue. At 3:08 p.m., WO #1 advised that the Complainant was in custody. At 3:13 p.m., WO #4 broadcast that the Complainant was banging his head off the Plexiglas partition in his cruiser. The faint sound of a bang is heard in the background during the transmission.
Materials obtained from Police Service
- Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:
- Computer Aided Dispatch (CAD) report;
- 911 call recordings;
- Detailed Call Summary (x2);
- Arrest Report (x2);
- General Occurrence Report;
- NRPS Disclosure Log;
- Prosecution Summary R. v. the Complainant;
- Training Record for the SO;
- Recording from Master Logger;
- Medical Prisoner Transfer Report;
- Police Transmissions Communications Recordings;
- NRPS General Order: Use of Force;
- NRPS General Order: Powers of Arrest; and
- Notes of WO #s 1-5.
The SIU obtained and reviewed the following materials and documents from other sources:
- Medical Records of the Complainant relating to this incident, obtained with his consent.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(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,
Section 267, Criminal Code -- Assault with a weapon or causing bodily harm
(a) carries, uses or threatens to use a weapon or an imitation thereof, or(b) causes bodily harm to the complainant,
Section 348(1), Criminal Code - Breaking and entering with intent, committing offence or breaking out
(a) breaks and enters a place with intent to commit an indictable offence therein,(b) breaks and enters a place and commits an indictable offence therein, or(c) breaks out of a place after
is guilty(i) committing an indictable offence therein, or(ii) entering the place with intent to commit an indictable offence therein,
(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.
Analysis and Director's Decision
At 2:19:48 p.m., a second 911 call was received, this time from CW #1, who reported that he had seen a suspicious male going from house to house on Classic Avenue checking doors and that the male had been seen going to the back door of a house where an elderly woman lived.
At 2:22:22 p.m., officers were dispatched to the area. WO #1, who was familiar with the Complainant from a prior arrest for breaking and entering, heard the radio call and advised dispatch to hold the uniformed officers out of the area, in order that his unit could go in and observe, and possibly arrest, the Complainant in the act of breaking and entering. WO #1 then dispatched the SO, who was in plainclothes, to the area to carry out some surveillance on the Complainant.
Shortly thereafter, the Complainant was arrested for breaking and entering and was transported to hospital, where he was assessed and diagnosed as having sustained a mildly displaced fracture extending through the floor of the right orbit (eye socket) and the anterior and lateral walls of the right maxillary antrum (sinus).
The Complainant alleged that on December 19, 2017, he was going to visit a friend on Empress Avenue in the City of Welland. Empress Avenue and Classic Avenue are two adjacent streets. When the Complainant arrived, however, his friend was not at home and he walked down the street where he found two large American gold coins on the front lawn of a house on either Empress or Classic Avenues. The Complainant advised that he picked up the coins and then called at the house to see if they belonged to the occupants. Since there was no one home at the house, he began to walk away, when he was approached by CW #3. CW #3 asked him if he knew the homeowners, since the Complainant had just knocked on their door, and the Complainant told him about the gold coins, which he then showed to CW #3. CW #3 told him that he did not need to see the coins and left.
The Complainant then walked down an alleyway between two fenced back yards where he heard voices. The Complainant alleged that the next thing he recalled was being punched twice, in the right side of his face from behind, and falling onto the ground. He claimed that the person who punched him was a police officer. There were also two other police officers present, one of whom told him to stop resisting, to let go, and to give up his hands. The Complainant advised that he was “out of it” and could not recall what he was doing, but he did not believe that he resisted.
The Complainant attributed his poor memory to possibly having suffered a concussion in the week prior to his arrest, as he had passed out on several occasions and had subsequently attended hospital.
After having fallen, the Complainant described the officers as being rough with him and pushing down on him, but they did not punch him once he was on the ground.
The Complainant was told that he was under arrest for breaking and entering and possession of stolen property, but he did not know to which house or what property they were referring. He was then lifted up from the ground and walked by three police officers to a police vehicle.
The Complainant further alleged that when he was being placed into the rear of the cruiser, he was pushed from behind on the back of his head and smashed into the police vehicle. The Complainant could not recall which part of his body struck the police vehicle, but he did recall that he had not resisted. The Complainant conceded, however, that he may have been a little wobbly and that the smashing against the car may have been accidental.
The Complainant indicated that once he was inside the cruiser, he at no time banged his face off of the interior of the police cruiser nor did he ever kick at the window.
The Complainant was then taken to hospital, but had no memory of being triaged, although he did recall a doctor telling him that he had fractures to the bones in his cheek under his right eye.
During the course of this investigation, in addition to the Complainant, seven civilian and five police witnesses were interviewed, none of whom corroborated the Complainant’s version of events, and most of whom directly contradicted his allegations. The following is a summary of the events based on the reliable evidence obtained.
WO #1 received a report from the SO that he had observed the Complainant attempt to open patio doors on properties on Classic Avenue. WO #1 then sent WO #2 to the area to assist the SO. The SO then further reported that he had observed the Complainant walk in between two houses on Classic Avenue and that he had not come out for approximately 15 minutes.
WO #1 then decided to send uniformed officers into the area to attempt to flush out the Complainant.
WO #1 arrived in the area himself at 3:04 p.m. and heard WO #2 announce over the radio that he had observed the Complainant run in an easterly direction from a residence on Classic Avenue. WO #1 returned to his vehicle and drove to Classic Avenue, where he saw WO #2 pointing in the direction in which the Complainant had run, that being between a number of houses that backed onto an open space. WO #1 then went into the backyard area and saw a number of people who told WO #1 that the Complainant had run in a northeasterly direction through the backyards.
WO #1 then drove along Classic Avenue where he saw the Complainant run around the corner from the backyard of a house. WO #1 stopped and exited his vehicle and ran after the Complainant, who was about 35 feet ahead of him. He shouted loudly at the Complainant not to move. Immediately thereafter, the SO ran around the corner of the house and also chased after the Complainant. The SO wrapped both of his arms around the Complainant and tackled him from behind, in a football-style tackle, and then both fell to the ground. The SO was not observed to strike the Complainant before he tackled him. WO #1 was unable to see which part of the Complainant’s body hit the ground first.
The Complainant lay face down on the ground with the SO on his right trying to gain control of the Complainant’s right arm. There was no fight and no punches were thrown. Within three to four seconds, WO #1 took control of the Complainant’s left arm and he was handcuffed with his hands behind his back at 3:08 p.m.
The Complainant denied to the police officers that he was in possession of any stolen property or that he had done anything wrong.
Four civilian witnesses observed the Complainant down on the ground with his hands handcuffed behind his back, although unfortunately, none saw him taken to the ground.
CW #6 first saw the Complainant walking along the side of one of the houses and then saw him at the bedroom/bathroom window of that house. CW #6 ran to the home of CW #4, where she saw a plainclothes police officer exit an unmarked vehicle, and she told him that the Complainant was in the backyard. CW #6 then saw two more plainclothes police officers and a marked cruiser arrive and all of the officers ran into the backyard. She heard the police officers yelling out, “Freeze, freeze, get down on the ground!”
CW #6 then joined CW #4 and they both saw the Complainant lying on his stomach on the ground, with two or three plainclothes police officers and a uniformed police officer standing around him. Two of the plainclothes officers were seen to crouch down beside the Complainant for a few seconds, and then they helped him to his feet. None of the police officers were observed to deliver any strikes or do anything inappropriate to the Complainant. The Complainant was then walked by the two plainclothes police officers to the marked police vehicle. Neither of CW #6 or CW #4 observed any injuries to the Complainant.
CW #7 also saw the Complainant lying face down on the grass, with his hands handcuffed behind his back, and two plainclothes police officers, with one each on either side of him. CW #7 indicated that there was no struggle between the police and the Complainant.
CW #7 advised that after about five to ten minutes, a fully marked police SUV arrived and stopped close to where the Complainant was lying on the ground and the Complainant was led to the rear of the SUV and placed into the rear seat.
Similarly, CW #5 saw two men kneeling on the grassy area between two homes, with one man on each side of the Complainant. She described the two men, who she immediately recognized as being plainclothes police officers, as holding the Complainant down and that there was no struggle. CW #5 at no time observed any police officer strike or do anything inappropriate to the Complainant, who was handcuffed with his hands behind his back. CW #5 also advised that there was no struggle as the two officers lifted the Complainant to his feet and walked him over and placed him into the rear of a marked police SUV, but it appeared to her that the Complainant was reluctant to get inside.
CW #5 advised that she had a clear and unobstructed view of the Complainant being placed into the SUV and at no time did she observe any police officer slam the Complainant into the body of the motor vehicle.
After the Complainant was in the police vehicle, however, CW #5 heard banging sounds coming from the SUV and she saw it swaying from side to side. CW #5 advised that this banging went on for some five to seven seconds and she believed that the Complainant was either banging his feet or slamming his shoulder inside the vehicle.
CW #7 indicated that he also had a clear view of the Complainant being placed into the police SUV and he confirmed that the Complainant’s head was not slammed against either the roof or the top of the door as he was placed into the SUV. Thereafter, CW #7 observed that the Complainant was alone in the vehicle when he heard four or five loud thumps and saw the SUV rocking on its suspension. CW #7 saw the Complainant’s head bounce about inside the vehicle and he assumed that the Complainant must have thrown himself around and banged into the caged area in the back of the cruiser. It also appeared to CW #7 that the Complainant was kicking at something inside of the vehicle. CW #7 then saw a uniformed police officer open the door and briefly speak with the Complainant, but the officer did not enter the vehicle at that time. The officer then closed the door and the banging stopped. At no time did CW #7 see any police officer strike the Complainant.
WO #1 stated that when the Complainant was taken up from the ground and placed on his feet, he observed a small speck of blood under his right nostril.
WO #4, the uniformed officer at the scene, indicated that he had heard over the radio that the Complainant was in custody and he attended and observed the Complainant face down on the ground at the side of a residence on Classic Avenue, with WO #1 and the SO. He described the Complainant as being uncooperative as WO #1 tried to apply the handcuffs, but not violently resisting, and WO #4 leaned in and assisted with handcuffing the Complainant. He did not observe either WO #1 or the SO deliver any strikes to the Complainant.
WO #4 then brought his cruiser around to the area where the Complainant was located and he took control of the Complainant and placed him into the rear seat without any issue. WO #4 saw no injury to the Complainant as he placed him inside the vehicle. However, once the Complainant was inside the vehicle, he almost immediately started to bang his head on the Plexiglas partition and the side windows, following which he lay across the seat and attempted to kick out the side door window.
WO #4 stated that he then radioed in to report what the Complainant had done, as it was normal practice to alert the lock-up staff that a violent prisoner was en route. This is confirmed by the police transmissions recording, wherein a police officer is first heard to report, “Male’s hitting his head off the partition,” followed by WO #4, at 3:35:25 p.m., reporting that “A male is cracking his head off the partition, can you send (a car with a half cage) … and now he’s trying to kick out my windows.”
WO #4 opened the rear door and told the Complainant to calm down and relax, which the Complainant then did. WO #4 noted that the Complainant had a little bit of dried blood on his nose, and he saw a light scratch and dried blood on the left orbital area of his face, but he had no other marks or abrasions.
WO #2 observed the SO search the Complainant while they were still in the backyard, while the Complainant was lying on the ground. The SO handed the items located in the Complainant’s pockets over to WO #2, as they were located, including a charm bracelet and a wallet.
WO #2 also observed that the Complainant had a little bit of blood on his nostril. When the Complainant was placed into the police vehicle, WO #2 indicated that he did not observe the Complainant bang any part of his body off of the vehicle as he was being placed inside, but that once inside, the Complainant immediately banged his head on the interior Plexiglas partition and then leaned back in the rear seat and kicked at the passenger window.
WO #2 then returned to the residence, where he saw that one of the basement windows was open and he located a pillow case stuffed with items beside the open window. The home owner of that residence, CW #2, was then contacted and returned to his home; he identified the wallet and charm bracelet found on the Complainant’s person, as well as the property in the pillow case, as having been stolen from his home.
During the Complainant’s assessment at hospital, the following notes were made on his chart:
In the triage notes:
Pt (patient) states was being arrested for a breaking and entering and possession of stolen property and was “taken down” by being repeatedly punched in the face.
An entry by the nursing staff reads:
Pt was assaulted, states was hit by another person to face x1 today.
And a third note in the nursing notes reads:
Pt states he does not remember what happened to him.
On all of the evidence, I find that the Complainant is not a reliable historian as to what occurred on December 19, 2017, when he was arrested. Based on the blatant contradictions between his evidence and that of the civilian witnesses alone, in addition to the physical evidence, I find that the Complainant’s credibility has been severely damaged. These contradictions include the following (which is not an exhaustive list):
- The Complainant’s explanation as to what he was doing in the area, which is directly contradicted not only by the observations of CW #3 and CW #1, but by the property found on his person which was later identified by CW #2 as having been stolen from his home on that date;
- The Complainant’s assertion that he never struck his head on the Plexiglas partition or attempted to kick out the rear window of the police vehicle, which is directly contradicted by both CW #7 and CW #5, as well as by WO #2 and WO #4, and the police transmissions communication recording; and
- The Complainant’s allegation that his head was smashed into the cruiser as he entered, which is again directly contradicted by WO #2 and WO #4, as well as by CW #7 and CW #5, who both indicated that they had a clear and unobstructed view of the Complainant as he was being placed in the vehicle.
On the basis of these proven misstatements in the evidence of the Complainant, I find that I am unable to accept any of his evidence other than that which is directly confirmed by other witnesses and/or physical evidence.
As such, while there was only one witness to the SO taking the Complainant to the ground, that being WO #1, I have no difficulty in rejecting the evidence of the Complainant, who I find has little or no credibility, in favour of the evidence of WO #1, and I reject that the Complainant was taken to the ground by being punched in the face once (as recorded by the nursing staff in his medical records), twice (as per his statement to SIU investigators) or repeatedly (as indicated in his triage notes), in favour of his last statement in his medical records, that he simply does not know what happened.
I find further support in this conclusion in the fact that the Complainant, in his interview, described himself as being “out of it” and having a poor recollection of events, due to his possibly having sustained a concussion the week prior to his arrest.
While not conclusive, I also find that it is improbable that the SO could have punched the Complainant in the right side of his face, while the Complainant was faced away from the SO as he was running.
On these facts, however, while I reject the allegation that the Complainant was punched in the face by the SO as being unreliable, the fact still remains that at some point the Complainant was injured. Based on the reliable evidence before me, that occurred either when the Complainant was tackled to the ground and his face may have struck the ground, or alternatively, when he smashed his face into the Plexiglas partition.
There is no question that the Complainant, despite his assertion to the contrary, did smash his head into the Plexiglas partition, as observed by two independent civilian witnesses, CW #7 and CW #5, to such a degree that CW #5 heard the thuds from inside her house and CW #7 observed the police SUV to be rocking on its suspension. As such, with the degree of force that would have been required to cause these loud bangs and rock the SUV, it is very likely that the Complainant was injured through his own actions and at his own hand, and that the police played no part in his injury whatsoever.
However, in the far less likely event that the Complainant was injured when the SO tackled him to the ground, and thereby caused his facial area to strike the grass, which I expect would have been a far lesser trauma than would be involved in smashing one’s face into the Plexiglas, the evidence does not satisfy me that this action would have amounted to an excessive use of force in these circumstances. It is clear on all of the evidence that the Complainant was behaving suspiciously, that he had been observed by several witnesses attempting to gain entry to other persons’ homes, that he was very likely in the process of carrying out a residential break and enter, and that he was now attempting to flee from police, making it incumbent upon the SO to stop, detain, and investigate the Complainant. As such, I accept that his action in tackling the Complainant to the ground, in order to prevent his escape, was both necessary and justified, and involved the minimal amount of force required to achieve that purpose.
In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak  1 S.C.R. 206, as follows:
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):
In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]
Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety. On these facts, where police had already called out to the Complainant to stop, and he was ignoring them with the clear intent of fleeing, I have no hesitation in finding that the actions of the SO were both necessary and justified in these circumstances. Clearly, had the Complainant not chosen to flee police after they called on him to stop, there would have been no need to tackle him.
In conclusion, I find that the evidence does not satisfy me that there are reasonable grounds to believe that the actions of the SO, or any police officer involved in the apprehension of the fleeing Complainant, amounted to an excessive use of force or fell outside of the limits of the criminal law. Therefore, since I lack the necessary grounds for the laying of criminal charges, none shall issue.
Date: November 5, 2018
Original signed by
Special Investigations Unit
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.