SIU Director’s Report - Case # 21-OCI-151

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Information Restrictions

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 
  • The name of, and any information identifying, a subject official, witness official, civilian witness or affected person. 
  • Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault. 
  • Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person. 
  • Information that discloses investigative techniques or procedures.  
  • Information, the release of which is prohibited or restricted by law.  
  • Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published. 

Freedom of Information and Protection of Privacy Act

Pursuant to section14 (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 that 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 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 
  •  The names of persons, including civilian witnesses, and subject and witness officials; 
  • 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

Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may also have 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

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the serious injuries a 52-year-old man (the “Complainant”) suffered during an interaction with the police.

The Investigation

Notification of the SIU

On May 13, 2021, at 11:10 a.m., the Niagara Regional Police Service (NRPS) reported the following.

NRPS had received a complaint from the Complainant alleging he was injured when arrested by NRPS police officers on August 18, 2020. The Complainant stated he was struck in the face by a NRPS police officer, and suffered a broken orbital bone and broken nose.

NRPS advised that NRPS police officers responded to the Complainant’s residence on Hazel Street, St. Catharines, on August 18, 2020, at 9:10 p.m., for a report of a family disturbance in which two brothers were fighting. The officers spoke to the Complainant and his brother, then left the residence. They returned shortly after when it was reported that the fight was on again. The Complainant reportedly approached the officers with an unknown object in his hand and was grounded. The Complainant was taken to the police station where he reportedly had a seizure. He was then taken to the Greater Niagara General Hospital (GNGH) and released on a Promise to Appear at 11:38 p.m. on charges of threatening and resist arrest.

The involved officers were the Subject Official (SO), Witness Official (WO) #1, WO #2 and WO #3.

The Complainant’s brothers were said to be witnesses to the event: Civilian Witness (CW) #1 and CW #2.

The Team

Date and time team dispatched: 05/14/2021 at 7:02 a.m.

Date and time SIU arrived on scene: 05/14/2021 at 2:00 p.m.

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

Male interviewed, medical records obtained and reviewed

The Complainant was interviewed on May 17, 2021.


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

The civilian witnesses were interviewed on May 19, 2021.

Subject Official

SO Declined interview, as is the subject official’s legal right. Notes received and reviewed.



Witness Officials

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

The witness officials were interviewed between June 11 and 16, 2021.


Evidence

The Scene

The incident occurred at the rear of an address on Hazel Street, St. Catharines.

Video/Audio/Photographic Evidence

Central Holding Cell Block Video

The videos received from NRPS on May 25, 2021 were date and time stamped.

When the Complainant entered the cell area, he had visible facial injuries. The SO was also viewed on the video and he identified himself as the arresting police officer. The Complainant looked at the SO, and clearly stated he was sucker punched by the SO.

Booking Desk Video - Corridor One - Camera Five

At 9:43:30 p.m., the Complainant was walked into the custody area by two special constables. He was handcuffed with his hands behind his back. A uniformed officer [now known to be the SO] walked behind the special constables and the Complainant.

The Complainant stood at the custody counter and asked for medical attention. He appeared intoxicated. A uniformed female sergeant was behind the custody counter and attempted to ask a series of questions. The Complainant was argumentative and interrupted the sergeant. The Complainant had facial cuts above his right eye and on the right cheek. He had swelling below the left eye. The Complainant stated the SO caused the injuries to his face. The Complainant complained about having past seizures.

The SO identified himself as the arresting officer.

Booking Desk Video - Corridor One - Camera Seven

This camera showed a close-up of the Complainant as he was booked. His facial injuries were more visible. The SO was visible and stood to the right side of the Complainant. The Complainant was walked to an adjacent wall and searched by the special constables. After the search, he was walked off camera.

Cell Camera mounted at ceiling level

The Complainant was escorted to a cell by special constables. The SO followed behind. The Complainant was walked into his cell and his handcuffs were removed. After the cell door was closed, he immediately started to violently punch and kick at his Plexiglas door. He also threw a few elbow strikes at the door. He then laid down on the bench, face towards the bench, and started to body twitch. His face hit the solid bench. He sat up and his nose was bleeding. Blood was now on the bench. He stopped twitching and started talking to himself, possibly to custody staff outside the door. Two special constables opened the cell door and stood in the doorway. The Complainant remained in his cell and they had a conversation. At 10:07:18 p.m., the Complainant was handcuffed with his hands to the front of his body and he walked out of his cell.

Camera mounted on ceiling outside cell

The Complainant was walked to a cell. He was handcuffed with his hands behind his back and escorted by two special constables followed by the SO. He entered his cell without incident. The special constables removed the handcuffs and exited the cell without incident. The Complainant was observed to punch and kick at the door of his cell. Special constables made frequent visual and voice checks of the Complainant, as he remained in his cell. The uniformed female sergeant attended the cell and checked on the Complainant. Paramedics arrived outside his cell. They had a gurney and carried their medical equipment. At 10:08:15 p.m., the Complainant was walked out of his cell and out of camera view.

Police Communications Recordings

The audio recordings were received from NRPS on June 1, 2021 and segmented into six groups, as listed below. The individual segments were not date or time stamped.

The initial 911 call
• A male caller, identified himself as CW #2, called from an address on Hazel Street in St. Catharines;
CW #2 sounded impaired by alcohol or drugs;
CW #2 stated he had been attacked twice by his brother, the Complainant;
• The Complainant threatened to cut the throat of CW #2;
CW #2 told the call-taker the problem started as a result of the Complainant viewing pornography on the internet, which caused an argument;
• The Complainant was heard in the background;
• The Complainant sounded impaired by alcohol or drugs;
• The Complainant stated if the police came to their house, they would have to shoot or taser him;
• The call-taker asked if weapons were involved, and CW #2 stated, “No”;
CW #2 stated he dragged his brother to the ground, twice;
• The brothers argued during the telephone call;
CW #2 stated the Complainant was in the kitchen and there were all kinds of knives there;
CW #2 stated a third brother, CW #1, was also at the residence;
CW #2 stated the Complainant had a history of this behaviour;
• He described the clothing the Complainant was wearing;
• The Complainant had consumed alcohol and his medications, and he smoked marihuana;
• No one required an ambulance;
• The dispatcher asked CW #2 to stay in the house and remain on the line until the police officers arrived;
• The brothers continued to argue in the background;
• The Complainant was heard to say in the background, “Get out in the driveway and I’ll beat your head off”;
CW #2 promised to stay in the house;
CW #2 stated the Complainant overdosed twice this year;
• The call-taker confirmed patrol units were on route;
CW #2 stated he had an injury on his right bicep. It was a scratch from the scuffle with the Complainant;
• The Complainant was downstairs in the living room;
CW #2 was advised the police were outside, and asked to take the phone outside when he saw the police officers; and
CW #2 told the call-taker the Complainant was now outside, mouthing-off with the police officers.

First dispatched call to an address on Hazel Street
• The dispatcher requested that units attend for a family disturbance call involving two brothers at a residence on Hazel Street;
• The caller was CW #2;
• The SO acknowledged the call, along with another unit;
• The dispatcher advised the responding units that CW #2 stated the Complainant threatened to cut his throat with a knife;
• The dispatcher advised the Complainant was flagged as violent, prohibited firearms, prohibited driving, and aggressive;
• The Complainant stated to his brother, CW #2, he would not leave the residence. He would have to be tasered or shot by police;
• Two units asked their call to be put on hold and indicated they would attend;
• A sergeant acknowledged the call;
• The SO was on scene; and
• Another unit advised everything was calm and other units could disregard.


Second 911 call for a residence on Hazel Street
CW #2 requested police units attend again;
• He stated his brother the Complainant threatened to cut him from sternum to throat;
CW #2 stated the Complainant came upstairs;
CW #2 locked himself in his room, with a baseball bat;
CW #2 sounded intoxicated;
• The Complainant was heard to be argumentative with police;
• The Complainant refused to leave the residence with the police;
• The dispatcher asked CW #2 to remain in his room;
CW #2 stated his other brother, CW #1, was present and could verify everything;
CW #2 repeated the Complainant had a history of mental illness;
• The 911 call-taker advised police officers were on route;
CW #2 stated the Complainant could have a weapon, possibly a butcher knife;
• The Complainant started arguing right after the police left;
CW #2 was told several police officers were on route;
• The 911 operator asked CW #2 to go outside;
CW #2 stated the Complainant was now outside;
CW #2 advised the police were now outside; and
CW #2 was asked to go outside and speak to the police officers.

Second dispatcher call to a residence on Hazel Street
• The SO was asked to head back to the family violence at an address on Hazel Street;
• He requested additional units because the Complainant had to go and would fight;
WO #1 and WO #2 acknowledged as backup, along with two other units;
• The dispatcher advised the Complainant might have the butcher knife in his hand;
WO #1 and WO #2 asked the dispatcher to have CW #2 come outside, if it was safe to do so;
• Unknown unit stated he was on scene;
• At 9:07 p.m., the same unknown unit requested a Code Five;
• At 9:10 p.m., the same unknown unit stated one was in custody, and Code Five could be lifted;
• An officer asked the SO to mark in the call the person in custody was smacking his head off the cage in the front of the cruiser;
• The dispatcher acknowledged this information and asked if everything was “10-4” and if an ambulance was required; and
• The unknown unit stated, “Absolutely not.”

Call for ambulance from the custody area
• Unknown custody staff member called the Communications Branch and requested that an ambulance attend the custody area for someone having a seizure;
• The call-taker stated he could put him through to ambulance and the custody staff member agreed; and
• The custody staff member stated the prisoner was the one the SO had brought in.

Patrol unit advised he was on route to hospital from the custody area
• The SO advised he was on board the ambulance, on route to GNGH; and
• A Niagara Falls unit was to meet him there.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from the NRPS between May 25, 2021 and June 22, 2021:
• Communication Recordings;
• Cell Video;
• Booking Record;
• Computer-assisted Dispatch Log;
SIU Disclosure List;
• General Occurrence;
• General Order-Use of Force;
• Notes (typed)-WO #3;
• Notes-WO #3;
• Notes-the SO;
• Notes-WO #1;
• Notes-WO #2;
• Detailed Call Summary; and
• Radio Results Table.

Materials Obtained from Other Sources

The following record was received from other sources on June 1, 2021:
• Medical Records – GNGH.

Incident Narrative

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and his two brothers (each of whom was present at the time of the arrest), as well as two officers who participated in the Complainant’s arrest. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

In the evening of the day in question, the NRPS received two 911 calls from a unit on Hazel Street. The caller was CW #2. In his first call, CW #2 indicated that he had been attacked twice by his brother (the Complainant), who had threatened to cut his throat. The Complainant could be heard in the background indicating police would have to shoot or taser him if they attended at the home.

Officers, including the SO, were dispatched to the residence. Upon arrival, they spoke to the parties and deduced that the feud was fueled by alcohol consumption. The brothers agreed to ignore each other for the remainder of the night, and, with that, the police departed.

Moments later, CW #2 contacted police again. He said that his brother had renewed hostilities with him the moment the police left. According to CW #2, the Complainant had again threatened to stab him with a knife. Officers were again dispatched to the home.

In the company of WO #1 and WO #2, neither of whom was involved in the first call for service, the SO returned to the residence. With the SO in the lead, the officers walked toward the Complainant’s unit, located at the rear of the lot. The Complainant was waiting for them outside. He was intoxicated and angry. The Complainant yelled at the officers as they approached in his direction while he too walked toward them. The SO advised the Complainant that he was under arrest for uttering threats. When the SO and the Complainant were within an arm’s reach of each other, the officer punched him to the left side of the face. The Complainant was felled by the punch and was soon handcuffed by the officers while on the ground. The time was about 9:10 p.m.

Following his arrest, the Complainant was taken to the police station and lodged in cells. He was subsequently taken to hospital from the station, where he was diagnosed with a broken nose and fractured left orbital bone.

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.

Section 264.1, Criminal Code -- Uttering threats

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
 
(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person.

Analysis and Director's Decision

On August 18, 2020, the Complainant was seriously injured in the course of his arrest by NRPS officers in St. Catharines. One of the arresting officers – the SO – was identified as a subject official 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. The SO had been to the Complainant’s residence twice on the evening in question, each time in relation to threats by the Complainant to harm or kill CW #2. In the circumstances, I am satisfied that there were grounds to arrest the Complainant for uttering threats under section 264.1 of the Criminal Code.

With respect to the force used by the SO, namely, a single punch to the Complainant’s face, I am unable to reasonably conclude that it was unnecessary. There is evidence to confirm that the Complainant had advanced on the SO when he was punched by the officer. The two witness officials, WO #2 and WO #1, indicate that the Complainant was about to assault the SO when the officer struck him in the face. Oddly enough, the most incriminating version of events seems to derive from the SO’s notes, in which the officer writes that he delivered the punch as the Complainant, having been told he was under arrest, swore at the officer and began to walk away. I am, however, reluctant to rely on the bare bones of an officer’s notations that have not been subject to clarification and amplification via the interview process. On this record, I am unable to discount with any degree of confidence the situation in which the SO acted preemptively to thwart a reasonably apprehended assault on the part of the Complainant. A single punch delivered in these circumstances, it seems to me, falls within the latitude of justifiable force recognized by the criminal law.

In the result, as there are no reasonable grounds to believe that the SO conducted himself unlawfully in the course of his engagement with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: September 9, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Note:

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.