Director's Report Details

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.

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.

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 serious injury sustained by a 23-year-old man during his arrest on October 7, 2017.

Notification of the SIU

At approximately 10:25 a.m. on October 12, 2017, the Niagara Regional Police Service (NRPS) notified the SIU of the Complainant’s custody injury.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

Subject Officers

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

On October 7, 2017, at about 12:58 a.m., the Complainant and his friends left the ‘Fluid Room,’ a local bar on James Street in the City of St. Catharines. They made their way down the block and ended up in front of another bar called Level 3. At this point, the Complainant and a male friend became involved in an altercation. At some stage during the altercation, the Complainant was held back by a second friend, Civilian Witness (CW) #1, at which point he and CW #1 came to the attention of the police.

The Subject Officer (SO) was the first police officer on scene and arrested the Complainant for public intoxication. The Complainant was subsequently driven home and released unconditionally to his father.

Sometime later, the Complainant alleged that the police had pushed his face into a police cruiser and had caused an injury to his right eye. The Complainant and his mother then attended the hospital where the Complainant was assessed.

Nature of Injuries / Treatment

On October 8, 2017, at 2:56 p.m., the Complainant went to the hospital where he was diagnosed with having suffered a “comminuted blowout fracture of the roof of the right bony orbit (right eye-socket) with a trapdoor configuration.”

The Scene

The Complainant was arrested near the intersection of St. Paul Street and James Street in the City of St. Catharines. The roadway was paved and bordered by sidewalks and exclusively commercial. The scene was not held for SIU purposes.

Video/Audio/Photographic Evidence

No video or audio recordings, or photographic evidence, were located.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:

• Arrest Details
• Detailed Call Summary
• General Occurrence Report
• Notes of Witness Officers (WO) #s 1 and 2
• Procedure: Powers of Arrest
• Procedure: Use of Force
• Scene Photos, and
• Unit History of WO #s 1 and 2 and the SO

The SIU obtained and reviewed the following materials and documents from other sources:

• Medical records of the Complainant related to this incident

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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 31(4), Liquor Licence Act – Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,

1. In a place to which the general public is invited or permitted access; or
2. In any part of a residence that is used in common by persons occupying more than one dwelling in the residence

On October 7, 2017, the Complainant and his friends, Civilian Witness (CW) #1 and a male party, attended a bar called the “Fluid Room” on St. Paul Street, in the City of St. Catharines, after having already consumed some alcohol at the residence of CW #1. Once at the bar, the Complainant consumed a considerable amount of alcohol and, according to all who observed him, was intoxicated, as was his male friend.

According to the Complainant, he then became involved in an altercation with the bouncer from the “Fluid Room,” CW #2, who struck him in the head with an open hand causing the Complainant to stumble, but not fall. The Complainant then left the bar and met up with his friends, when he observed an NRPS cruiser arrive. The Complainant recalled a total of three police officers attending.

The Complainant described the first police officer to arrive as being a white man in his late 30’s, 5’6” in height and bald, with a medium build and a moustache, wearing an NRPS uniform. This is the police officer that the Complainant alleges assaulted him and caused his injury.

This description, unfortunately, does not appear to match any of the police officers present, although might be an amalgamation of the descriptions of several officers[1] with the age and uniform matching the description of the Subject Officer (SO) and the bald head matching the description of WO #1; both officers, however, being substantially taller than 5’6”, with the SO being 6’2”. WO #2 was a black male, and therefore clearly not the officer described. Both the SO and WO #1 were white males.

According to the Complainant, the police officer described above had his Conducted Energy Weapon (CEW) drawn, but did not use it on him. The officer grabbed the Complainant from behind, by one arm, and threw him to the ground, with his lower body striking the ground first, which was concrete, followed by his face. The Complainant was then stood up, handcuffed behind his back, and taken over to a police SUV, where he was thrown face first onto the hood of the vehicle, with the right side of his face striking the hood. The Complainant described the officer who did this as being the bald headed police officer.

The Complainant was subsequently placed into the back seat of the police cruiser and was transported to his residence by the bald-headed officer.

The following day, the Complainant went to the hospital where he was assessed as having sustained a light fracture behind his right eye.

During the course of this investigation, in addition to the Complainant, two civilian and three police witnesses, including the SO, were interviewed, and both police witnesses provided their memorandum book notes for review. Other than the statements of the various witnesses, there was no other evidence of note located.

There were as many different versions of events related by witnesses in this matter, as there were witnesses, with the only common ground amongst all six witnesses being that the Complainant, and his male friend, were both extremely intoxicated.

CW #2, the bouncer from the “Fluid Room,” described the Complainant not only as intoxicated, but as confrontational, causing damage on the street, and attempting to provoke a fight with CW #2. CW #2 observed that after the Complainant had left the Fluid Room, he went down the street to the Level 3 bar, where he began to fight with his friends.

When the SO arrived and tried to arrest the Complainant, CW #2 felt obligated to assist.

CW #2 stated that the Complainant pulled away from the SO and then began to run, whereupon CW #2 put his arms out and blocked the Complainant’s escape, placing his arms on the Complainant’s chest and forcing him to the ground. According to CW #2, the Complainant landed on his butt first, and CW #2 then rolled him over onto his stomach.

CW #2 then observed the SO bring the Complainant to his feet and escort him to a police cruiser, while the Complainant continued to resist. Once at the cruiser, the SO then took the Complainant down to the ground a second time, following which he was again assisted to his feet.

CW #2 described the actions of the police officers present as calm and professional and he observed no police officer either punch or kick the Complainant, nor did they slam his body into any of the police vehicles, and he observed nothing out of the ordinary occur. CW #2 opined that the Complainant received his injury, which he described as a small cut above his eye, when he was thrashing around on the ground.

CW #1 stated that once at the bar, the Complainant became drunk, but she described herself, after having consumed two mixed drinks as sober, and the only one of her group that was so. She described the Complainant as leaving the bar and then, when he tried to re-enter, being prevented from doing so by the bouncer. When CW #1 exited the bar to see the Complainant, she observed that he had blood on his face and the Complainant told her that the bouncer had backhanded him in the face.

CW #1 described CW #2, the bouncer, as a white male, balding, and wearing a dark sweater, with an estimated weight of approximately 200 pounds.

Once the group of friends moved down the street, CW #1 observed the Complainant get into a fight with his male friend and she observed a uniformed police officer nearby watching the goings on.

CW #1 stated that in trying to stop the fight between the Complainant and his male friend, she placed the Complainant in a choke hold and took him down to the ground with him on top of her. At that point, the police officer exited his cruiser and walked over to where she and the Complainant were lying on the ground and pointed his CEW at them, while she and the Complainant continued to wrestle. CW #1 was then pulled out from under the Complainant by her friends, while a police officer dealt with the Complainant.

CW #1 stated that she then turned around and saw three police officers on top of the Complainant, placing him in plastic handcuffs, with one police officer holding the Complainant’s legs, while the other two held his arms with their knees in his back. The Complainant was then brought to his feet and escorted to the police cruiser.

The SO, in his interview, indicated that he observed two men in a scuffle and shouting, and he stopped his cruiser and told them to go home; the two men, the Complainant and his male friend, got up and walked away. The SO then circled the block and returned to the area, whereupon he observed CW #1 and the Complainant, now on the ground with CW #1 holding the Complainant in a reverse choke hold, while he was lying on top of her.

The SO approached the Complainant and CW #1, telling CW #1 to release the Complainant and the Complainant to get up. When the Complainant got to his feet, he began to swear and the SO placed him under arrest for being intoxicated in a public place. The SO took out his plastic handcuffs, but when he tried to place them on the Complainant’s wrists, the Complainant became agitated and pulled away. The SO stated that as a result of the Complainant’s excited behaviour, he pulled out his CEW and held it at his side, as he feared a physical confrontation. The SO then directed the Complainant a second time to put his hands behind his back and, when he did so, he re-holstered his CEW.

As the SO moved to apply the handcuffs to the Complainant, CW #2 suddenly grabbed the Complainant by the neck and placed him in a choke hold, spinning him around with both men falling to the ground backwards, on the sidewalk, landing on their left sides.

The SO saw that WO #1 had arrived at that point, and he told CW #2 to release the Complainant and to move back. The SO then handcuffed the Complainant.

As the SO attempted to conduct a pat-down search of the Complainant, before placing him into the police cruiser, the Complainant began to move back and forth aggressively and used his chest to push himself off of the police cruiser and began to thrash about violently.

Fearing that the Complainant was getting too violent with his movements, and that both he and WO #1 were at risk of being head-butted, the SO grabbed the Complainant’s collar with one hand, and his belt with the other, and spun him off the police cruiser, taking him to the ground. The SO stated that he had his hands on the Complainant the entire time and he lowered the Complainant to the ground in a controlled fashion the best that he could. The Complainant, however, as he was going down, continued to thrash about and his chest touched the ground first, followed by his head, which bounced off the pavement with what the SO described as a noticeable impact.

Once the Complainant was down, the SO put his knee on the Complainant’s shoulder blades and completed his search, after which he assisted in getting the Complainant back to his feet and he was placed into the back seat of WO #1’s police cruiser. It was only at this point that WO #2 arrived.

When the Complainant was brought to his feet, the SO observed him to have an abrasion above his left eye consisting of a small cut and a tiny amount of blood on his forehead. WO #1 then drove the Complainant to his residence.

WO #1 stated that upon his arrival, he observed the SO trying to restrain the Complainant, who was on the ground, by holding him by one arm, while CW #2 held the other. WO #1 then assisted the SO and CW #2 to roll the Complainant onto his stomach, whereupon the Complainant clenched his fists and began to kick. WO #1 then assisted the Complainant to his feet. Despite the Complainant being handcuffed behind his back, he continued to resist the officers.

The Complainant was then escorted to WO #1’s police cruiser and, when WO #1 tried to open the back door, the Complainant became resistant and WO #1 and the SO swung the Complainant around and away from the cruiser and placed him onto the roadway, in order to control him. The Complainant was then again lifted to his feet and placed into the police cruiser.

WO #1 observed at that point that the Complainant had a bleeding cut above his left eye.

WO #1 transported the Complainant to his residence in his police cruiser.

From these extremely confusing and varied versions of events, I have been able to extricate what I believe to be the facts, as consistent between at least two or more witnesses:

• The Complainant was extremely intoxicated and has little reliable recall of the incidents of the night in question
• The SO was the officer who unholstered his CEW
• WO #1 is the bald-headed officer and he drove the Complainant home
• The Complainant may have been injured in any one of the following ways:
  • When he was backhanded in the face by CW #2, following which CW #1 advised that she had already observed the Complainant’s face to be bleeding
  • When the Complainant was physically fighting on the ground with his male friend
  • When CW #1 put the Complainant into a choke hold and took him to the ground
  • When CW #2 grabbed the Complainant, either in a choke hold (as witnessed by the SO) or by placing his arms on the Complainant’s chest (as indicated by CW #2) and took him to the ground; or
  • When the Complainant was at the police cruiser and was thrashing about and was taken to the ground either by the SO alone (as indicated by the SO and CW #2) or in conjunction with WO #1 (as indicated by WO #1)

I reject the evidence of the Complainant that his head was smashed against the hood of the cruiser by the police officers, as the arrest and placing of the Complainant into the police cruiser was observed by both CW #2 and CW #1, neither of whom observed any such thing to occur.

On a careful assessment of all of the evidence, while there were many physical confrontations in which the Complainant was involved in which he could have sustained his injury, I find it most likely that the Complainant was injured when he began to violently thrash about at the police cruiser, causing the SO, and possibly WO #1, to take the Complainant to the ground. While the SO and WO #1 both made every effort to control the Complainant’s going to the ground, it was his own violent thrashing about which ultimately caused him to strike his head on the pavement with what the SO described as a ‘noticeable impact’, likely causing his injury.

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 involved in the Complainant’s arrest 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.

I have no hesitation in finding, on the evidence before me and as agreed by all parties,[2] that the Complainant was extremely intoxicated on the night in question and that he was causing quite a disturbance both by fighting with various parties, and by swearing. As such, I find that the arrest of the Complainant was legally justified in the circumstances and that both the SO and WO #1 were acting reasonably and in the execution of their lawful duties during their dealings with the Complainant. Therefore, as long as they did not resort to an unjustified use of force, their actions would be exempt from prosecution pursuant to s. 25 (1) of the Criminal Code.

With respect to the amount of force used to arrest the Complainant, I find that the only actions these two officers resorted to in attempting to arrest and subdue the Complainant was when they took him to the ground in a controlled fashion after he began to aggressively and violently move his body about, causing the SO to fear that either he or WO #1 were at risk of being head-butted by the Complainant.

I accept that both of these officers tried to take the Complainant to the ground in as controlled a movement as possible in order that he not be injured, but that their intentions were thwarted by the Complainant himself, who continued to violently thrash about and ultimately struck his head on the pavement with considerable force. This evidence, as provided by both of the SO and WO #1, is consistent and confirmed by the evidence of CW #2 and, to a lesser extent, CW #1. As indicated earlier, I do not accept that either or both officers smashed the Complainant’s head against the cruiser, as their involvement at the cruiser with the Complainant was fully observed by both CW #2 and CW #1, who were apparently both quite sober, and neither witness observed this ever to occur.

On this basis, despite the fact that the Complainant may have been injured when he was taken to the ground by the SO and WO #1, I find that had he not been exuberantly resisting and thrashing about, he would not have been injured, and the consequences to him were more as a result of his own actions than those of the police officers trying to restrain him.

In coming to my conclusion that these police officers did not resort to an excessive use of force, I have considered the direction from the Supreme Court of Canada as set out in R v Nasogaluak [2010] 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.

In conclusion, I find on the reliable evidence before me that there is no evidence that any excessive use of force was resorted to by any police officer in apprehending and arresting the Complainant, and that the force used was both reasonable and proportionate given the Complainant’s aggressive resistance to the arrest. As such, I find that these facts do not leave me with reasonable grounds to believe that a criminal offence occurred here and no charges will issue.

Date: September 12, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] And perhaps also of CW #2 who was assisting the officers with the arrest. CW #2 was bald. [Back to text]
• 2) [2] Including the Complainant himself who indicated that on a scale of one to ten, with ten being completely intoxicated, he believed he was a nine or ten. [Back to text]