SIU Director’s Report - Case # 17-OCI-281
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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 50-year-old man during his arrest on September 29th, 2017.
Notification of the SIUAt approximately 8:45 pm on September 29, 2017, the Niagara Regional Police Service (NRPS) notified the SIU of the Complainant’s custody injury.
The NRPS reported that on September 29, 2017, at approximately 2:45 pm, members of the Provincial Joint Forces Repeat Offender Parole Enforcement (ROPE) unit attended at a residence in the City of Niagara Falls looking to arrest the Complainant for parole violations and domestic related charges.
The Complainant was located in the apartment and struggled with police officers during his arrest. The Complainant was subsequently taken to the hospital and diagnosed with a displaced rib fracture.
The TeamNumber of SIU Investigators assigned: 4
Complainant:50-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 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 Notes received and reviewed, interview deemed not necessary.
(WO #4 was not interviewed as he was not present during the arrest of the Complainant).
Subject OfficersSO #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
The police officers learned where the Complainant resided and at 4:00 a.m. they attended at his home. There was no answer at the address and the Complainant’s motorcycle was not in the parking lot. The NRPS Domestic Violence Unit (DVU) were advised of the domestic incident and continued the investigation.
The DVU established that the Complainant was on parole. His parole was due to expire in June of 2018. As a result, the DVU sought and was granted a warrant for the arrest of the Complainant for breaching his parole (as per the Memorandum of Understanding of the ROPE initiative).
The matter was referred to the ROPE unit which was tasked with arresting the Complainant. The police officers attached to the ROPE unit consisted of police officers seconded from the Ontario Provincial Police (OPP), the NRPS, the Halton Regional Police Service (HRPS), the Waterloo Regional Police Service (WRPS), and the Toronto Police Service (TPS).
Shortly after 9:00 am on September 29, 2017, the ROPE unit went to the Complainant’s address with the intention of arresting him for the parole violation and the domestic assault. There was no reply at the Complainant’s home and the ROPE unit set up surveillance in the area hoping to arrest the Complainant upon his return. During the course of the surveillance, the Complainant’s motorcycle was found parked in the driveway of a nearby residence. Enquiries at that residence were unable to reveal the Complainant’s whereabouts.
Further investigation lead the ROPE unit to attend at another apartment in the Complainant’s building, the tenant of which was known to be in hospital at the time.
The ROPE unit sought, and received, permission to search that apartment for the Complainant, and they entered the apartment and started to search. When the ROPE unit attempted to search one of the bedrooms in the apartment, they were met with resistance as they tried to open the door, as a result of which the door broke off its hinges.
The ROPE unit members then succeeded in forcing open the door and located the Complainant hiding there. A struggle ensued between the Complainant and the ROPE unit members and the Complainant was taken to the floor. As the Complainant went to the floor, SO #2 also fell landing to the right side of the Complainant’s back.
The Complainant refused to give up his hands to the arresting police officers to be handcuffed; he was also observed to have a black coloured object in one hand. The ROPE unit members then delivered a number of distractionary strikes to the Complainant to get him to comply and to give up his hands and the object in them. The Complainant was subsequently arrested and handcuffed. When the Complainant was lifted from the floor, a black steak knife and a cell phone were found on the floor near/under his body.
The Complainant then indicated he had a pain in his side and he was transported to the hospital.
Nature of Injuries/TreatmentThe Complainant was assessed at hospital and treated for non-displaced fractures to the posterior of the 11th and 12th ribs on his right side. The fractures were approximately 2 cms from the Complainant’s spine.
The SceneThe scene was located in a rear bedroom of the apartment at the residence. The scene was photographed by an SIU Forensic Investigator (FI).
Forensic Evidence No submissions were made to the Centre of Forensic Sciences.
Video/Audio/Photographic Evidence As the interaction occurred within a private residence, no audio/video recordings could be located.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the HRPS, the NRPS, the WRPS, the TPS, and the OPP:
- Initial Report;
- Memorandum of Understanding of the ROPE Initiative;
- Notes of WO #s 1-4;
- Surveillance/Tactical Training Records of SO #s 1 and 2 and WO #3;
- Use of Force Training Records of SO #2;
- NRPS Procedure: Use of Force;
- TPS Procedure: Use of Force;
- Prosecution Summaries (x2); and
- Supplementary Report re Warrant Request.
Additionally, the SIU obtained and reviewed the following materials from other sources:
- Medical records of the Complainant related to this incident.
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 135(1), Corrections and Conditional Release Act -- Suspension of parole or statutory release
(a) suspend the parole or statutory release;(b) authorize the apprehension of the offender; and(c) authorize the recommitment of the offender to custody until the suspension is cancelled, the parole or statutory release is terminated or revoked or the sentence of the offender has expired according to law.
Analysis and Director's Decision
On September 29, 2017, members of the squad were made aware that the Complainant, who was out of custody on parole, was wanted on charges of domestic assault and parole violations related thereto, and they set about to locate and arrest him for these violations and offences.
Following his arrest, the Complainant was transported to hospital where he was assessed and it was determined that he had sustained two non-displaced fractures to the posterior of the 11th and 12th ribs on his right side. These fractures were located approximately 2 cms from his spine. While a CT scan performed on the Complainant revealed indications of two old fractures to the posterior of the Complainant’s 9th and 11th ribs, the two fractures to the posterior 11th and 12th ribs were found to have no new growth or evidence of healing, causing the medical experts to opine that the fractures occurred within a time frame of just prior to the images being taken, up to several weeks prior to the Complainant’s interaction with police on September the 29.
It is alleged that the two rib fractures sustained by the Complainant were caused by resort to an excessive use of force by the police officers arresting him.
During the course of this investigation, in addition to the Complainant, one civilian witness was interviewed. While this witness did not observe the actual arrest of the Complainant, he was able to provide some evidence with respect to the events leading up to the Complainant’s arrest. Additionally, four witness police officers and one of the subject officers, SO #1, were interviewed, with the second subject officer, SO #2, declining to be interviewed as is his legal right. Unfortunately, there was no physical evidence located, in the form of audio or video recordings, which would be capable of confirming exactly what occurred during the Complainant’s arrest.
With the exception of the actions of police during the actual arrest of the Complainant, there appears to be little disagreement as to the facts which lead up to that arrest, the facts of which follow.
On September 29, 2017, SO #1 was made aware that the Complainant was wanted for assaulting a former girlfriend and thereby breaching the provisions of his parole release.
SO #1 was familiar with the Complainant through a prior interaction, wherein the Complainant had tried to escape from police by running out of the back of a residence.
Having been advised of the outstanding warrants for the arrest of the Complainant, the ROPE squad made efforts to attempt to locate the Complainant, including engaging the assistance of his cell phone provider to try and track his location through the use of his cell phone.
Police were provided with the Complainant’s address, and attended that address in order to carry out surveillance in the hopes of locating and apprehending the Complainant. The cell phone provider confirmed the location of the Complainant’s cell phone as being in the area of his residence at that time. Police attended outside of the Complainant’s residence at approximately 9:00 am, where they first checked the Complainant’s apartment; when he could not be located, they contained the area awaiting his return.
Through further investigation, police learned that the Complainant had earlier that morning made a telephone call from the landline associated with an apartment unit in an adjacent building to his own. Consultation with the landlord, CW #1, revealed that the unit belonged to CW #1’s mother, who was in hospital at that time. CW #1 escorted the police to his mother’s apartment, unlocked the door for them, and gave them permission to enter and search for the Complainant.
The Complainant, in his statement to investigators, readily conceded that he had observed the police officers in the area and that he had surmised that they were looking for him, and that he actively hid from them.
The Complainant heard footsteps outside of the apartment where he had concealed himself, and then heard a key being used to unlock the door, followed by voices. The Complainant moved to a rear bedroom and hid behind the bedroom door.
While the Complainant indicated that the police officers did not announce themselves when they entered the apartment, nor did they call out his name, the police officers involved indicated that as soon as they entered, SO #1 called out, “(First name of the Complainant), it’s the ROPE squad, come out, you are under arrest,” which he called out several times without receiving any response.
The police evidence, in this regard, is at least partially confirmed by the evidence of CW #1, who was standing outside of the apartment at the time and heard police officers calling, “Come out with your hands up!” As such, based on the evidence of CW #1, I accept that police made some type of announcement upon entry, although little turns on it, as the Complainant openly conceded that he knew the men were police officers and that they were there to arrest him.
The Complainant alleges that while he was hiding behind the slightly ajar bedroom door in the rear bedroom, with his back to the wall behind the partially open door, the door was kicked inwards, causing it to come off its hinges and striking him in the left shoulder. The force of the door hitting the Complainant caused him to spin around, at which point he was grabbed by his right wrist and he felt something hit him on the head, over his left eye. This evidence is at least partially confirmed by the observations of the police officers that the Complainant, when he was later removed from the bedroom, had a small cut above his left eye.
The Complainant indicated that he believed that the injury over his left eye was caused when he was taken to the floor, but he could not see which police officer or officers was involved in taking him down. The Complainant indicated that he was unable to breathe and he was screaming. He could not recall how he landed on the floor because, he indicated, he had blacked out. The Complainant further alleges that once on the floor, he was beaten by police officers, although he could not identify which officer was involved or whether he was punched or kicked.
The Complainant indicated that he could not recall how many police officers were in the room and he could not describe any of them. The Complainant did not recall ever being told why he was being arrested or why the police were looking for him and could neither recall being handcuffed nor being assisted up off of the floor. The Complainant indicated that at no time did he resist the police officers.
CW #1, who was located outside of the apartment, was only able to assist in that he advised that he thought he heard the sound of a door being pushed in, but he never heard any sounds of fighting within the apartment.
SO #1, SO #2, WO #2 and WO #1, after having searched the remainder of the apartment without results, then made their way down the hall to the bedroom. SO #1 was in the lead, followed by SO #2, WO #2, and finally WO #1. SO #1 pushed the door open and started to step forward, at which point the door was pushed back hard from inside the room. SO #1 stated that he reacted by pushing the door hard, in order to force it open, while yelling “Police, you are under arrest”. SO #1 described the Complainant as hiding, with his back to the wall, behind the door trying to keep the door closed. This evidence appears consistent with, and confirmed by, the evidence of the Complainant himself.
According to SO #1, SO #2 managed to then enter the room just ahead of SO #1 and he grabbed hold of the Complainant by the right side, while the Complainant continued to push against the door. SO #1 then reached for the Complainant’s left shoulder while yelling at him, telling him he was under arrest and to get on the floor. The Complainant was described as resisting and clenching up his body, following which SO #1 and SO #2 pulled him forward and forced him down onto the floor.
WO #1 indicated that he lagged behind the other three police officers as they went down the hallway, as he had stopped to speak with CW #1. When he approached the bedroom door, he stated that he immediately heard struggling after having heard the three other police officers yell, and he observed that the door was open. As he reached the threshold, he noted SO #2, SO #1, and WO #2 struggling with the Complainant and the Complainant immediately being taken to the floor, with SO #2 falling with him.
SO #1 described the forward momentum of pulling the Complainant out from behind the door and down to the floor as causing SO #2 to also lose his balance and fall on top of the Complainant, landing on the Complainant’s back, on the right side. This evidence appears
consistent with the injuries sustained by the Complainant, which were described in the Diagnostic Imaging Report as “new nondisplaced fractures at the head of posterior right 11th and 12th ribs”, which would appear to be consistent with someone landing on top of the Complainant’s back on the right side, as was described of SO #2.
At that point, SO #1 was near the Complainant’s head, SO #2 went to his right side, and WO #2, who had at that point entered the bedroom, then went to the Complainant’s left side. WO #1 observed the Complainant to be holding a dark coloured object in his left hand as he went to the floor, and then use his left hand to tuck the object under his body. WO #1 then yelled out a warning that the Complainant had something concealed in his left hand.
While efforts by WO #2 to get the Complainant to release his left hand and give it up for handcuffing were unsuccessful, SO #2 was observed to deliver a couple of closed fisted strikes to the right side of the Complainant’s body, which SO #1 described as being ineffective, as the Complainant still refused to bring his left arm out from under his body. As a consequence, SO #1 then also delivered closed fisted punches, this time three to four, to the left shoulder area of the Complainant. SO #1 stated that he used no other use of force options, nor did he strike the Complainant anywhere other than in the left shoulder area.
WO #1 described all four of the police officers as yelling at the Complainant to stop fighting, while WO #1 held onto the Complainant’s legs as the Complainant was trying to get onto his knees to lift himself from the floor.
WO #2, in his statement, indicated that he too delivered three or four closed fisted punches to the left side of the Complainant when the Complainant refused to give up his arm, and because WO #2 was concerned that the Complainant might have some type of weapon in his left hand. WO #2 described his punches as landing in the kidney area and he believed that it was these punches which ultimately caused the Complainant to release his left arm, following which he was handcuffed.
SO #2 then managed to apply a handcuff to the Complainant’s right hand, while SO #1 and WO #2 grabbed the Complainant’s left arm and managed to pull it free from under his body and it was handcuffed as well.
The Complainant was then rolled over and it was observed that he had lost his glasses and that he had a small cut above his left eye. The Complainant was then heard to complain that his ribs were sore. When the Complainant was assisted to his feet, a cellular phone and a black-handled steak knife were found on the floor in the area of where his body had been lying, although no police officer actually saw the Complainant holding the knife.
The Complainant alleges that he was beaten by police and the four police officers have openly conceded that the following blows were delivered to the Complainant while he was down on the floor:
- SO #2 was described by SO #1 as delivering two closed fisted punches to the Complainant’s right side, while WO #1 was of the view that SO #2 delivered one to two closed fisted punches to the Complainant’s left side;
- SO #1 conceded that he delivered three to four closed fisted punches to the Complainant’s left shoulder area; and
- WO #2 agreed that he also delivered three to four closed fisted punches landing in the Complainant’s left side kidney area.
On the basis of these concessions, it is clear that in their efforts to get the Complainant to give up his hands and to handcuff him, police delivered at least eight to ten punches to the Complainant’s body, from which the Complainant could legitimately have believed that the police were ‘beating’ him.
Although the version of events as between police and the Complainant only varies in minor degrees, based on the evidence of CW #1 as to his observations, I do not accept that the Complainant was screaming and could not breathe while he was on the floor, as no screams were ever heard by CW #1, who was just outside the apartment, and because it is obvious that if one cannot breathe, one cannot scream.
Furthermore, while the Complainant believed that he was struck by something to the head as he was being taken to the floor, which caused the cut just above his left eye, I accept that it is most likely, due to the nature of the injury, that it was the door that struck the Complainant and it was either the door or a combination of the door and his dislodged glasses which likely caused what was described in his medical records as an “abrasion to his left eyelid”, as no other use of force options were observed as having been resorted to by any police officer, nor was any object observed by the Complainant himself.
Finally, I have some difficulty with the Complainant’s version of events in that he was unable to distinguish between being kicked or punched by the police officers, while I would have thought it would be fairly easy to distinguish between a fist and a boot. Also, while the Complainant told investigators that his memory was foggy due to a head injury and that he had lost consciousness during his interaction with police, the medical records indicate that the Complainant did not lose consciousness at any time.
On an assessment of the reliable evidence, then, I accept that the Complainant likely received the abrasion to his left eyelid when he was struck by the door that he was hiding behind. I further conclude that when the Complainant refused to voluntarily emerge from behind the bedroom door where he had secreted himself, that he was forcibly pulled out and that the momentum caused SO #2 to fall with, and on top of, the Complainant, likely causing the injury to his right posterior ribs near the spine, as none of the punches delivered appear to be consistent with the location of his injuries. Finally, I find that while police were attempting to restrain and handcuff the Complainant, they delivered between eight to 10 punches to the Complainant, as described above.
The question to be addressed, then, is whether or not these actions amounted to an excessive use of force in these circumstances.
Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the police officers to qualify for protection from prosecution pursuant to s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary.
Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information provided to SO #1, which was based on the information provided by the Complainant’s former girlfriend as to his assault upon her, and the fact that the Complainant could only be at large as long as he acted in accordance with his parole conditions, that each of the members of the ROPE squad who attended to arrest the Complainant were acting lawfully and pursuant to their duties. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.
An assessment of the use of force resorted to by each of the police officers then requires an assessment of whether the following actions were excessive in these circumstances:
- The pushing of the door against the Complainant, while he was hiding behind the door and pushing it back against the police officers;
- SO #2’s taking the Complainant to the floor and landing on top of him;
- SO #2 delivering one to two punches to the Complainant’s torso;
- SO #1 delivering three to four punches to the Complainant’s left shoulder area; and,
- WO #2 delivering three to four punches to the Complainant’s left side kidney area.
I have no hesitation in finding that the forceful opening of the door, when the Complainant was resisting the door being opened, and his subsequently being struck by the door or striking something as he fell to the floor, was not an excessive use of force in these circumstances.
It is clear that the Complainant was aware that police were present to arrest him and he was actively first hiding from them, and then resisting their entry into the bedroom to effect his arrest. I accept that these actions by SO #1 and SO #2, in these circumstances, were completely reasonable and carried out in the course of their lawful duties, and these actions would be exempt from prosecution pursuant to s. 25 (1) of the Criminal Code.
Equally, I find the actions of SO #2 in then forcing the Complainant to the floor in order to gain control over him, to be equally reasonable and justified and exempt from prosecution. It appears likely that the combined momentum of the Complainant resisting being removed from behind the door, coupled with SO #2’s pulling him clear of the door, is likely what caused SO #2 to fall on top of the Complainant, thereby causing the Complainant’s injuries. While it is clear on all of the evidence that police were present in order to lawfully arrest and detain the Complainant, he could not be allowed to thwart that lawful endeavour by either hiding or forcibly resisting his arrest.
Once the Complainant was on the floor, having been observed by WO #2 to have something black clutched in his left hand, to which WO #2 alerted the other officers, police had to act quickly and with some determination to ensure that they were not at risk from a possible weapon. In order to do so, it was incumbent upon police to disarm and handcuff the Complainant as soon as possible to eliminate the risk that he continued to pose until that was achieved. The presence of the black handled knife in the immediate area where the Complainant had been lying on the floor while engaging with police certainly appears to confirm, in hindsight, the legitimacy of the concerns of the involved police officers.
While I accept that the Complainant may have believed that he was being beaten by police, and while he was of the view that he was not actively resisting, I fully accept that his refusal to give up his hands was a form of active resistance and that police were entitled to use necessary force to subdue the Complainant, as long as it was no more than was justified in these circumstances.
On these facts, where the initial strikes to the Complainant appeared to have been ineffective and did not gain compliance, and where no further strikes were delivered after the Complainant gave up his hands and was handcuffed, I find that the actions of the police officers were both measured and proportionate to the degree of resistance being put up by the Complainant and did not amount to an excessive use of force in this factual situation.
In making this finding, I have considered the direction from the Supreme Court of Canada as set out 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]
I have also 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.
In conclusion, upon a thorough analysis of all of the available and reliable evidence, I find that the evidence does not satisfy me that there are reasonable grounds to believe that any police officer involved in the arrest of the Complainant resorted to an excessive use of force. I further find that had the Complainant voluntarily given himself up, rather than hiding and
then later resisting, when he was fully aware that police were there to arrest him, police
would not have had to resort to any force whatsoever. As such, I find that I am without the necessary grounds upon which to lay criminal charges and none shall issue.
Date: July 12, 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.