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 reportedly sustained by a 36-year-old man during his arrest on August 22^nd, 2017.

Notification of the SIU

At approximately 5:55 a.m. on August 22^nd, 2017, the Niagara Regional Police Service (NRPS) notified the SIU of the custody injury sustained by the Complainant.

The NRPS advised that on Tuesday, August 22^nd, 2017, at about 2:43 a.m., the Complainant was seen and spoken to by police officers in the Niagara Street area of St. Catharines. A computer check revealed that the Complainant was wanted on an outstanding arrest warrant. He was arrested and handcuffed, but broke away from police officers and attempted to flee on foot. As he ran, the Complainant’s shorts fell down and he lost his sandals causing him to trip. The Complainant received an injury and was taken to hospital. After examination it was incorrectly reported to the police that the Complainant had sustained a fractured kneecap. It was later determined that this information was inaccurate, but the Complainant had suffered a mildly displaced nasal bone fracture.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Refused to be interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

Subject Officers

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

During the early hours of August 22^nd, 2017, the Complainant was arrested at the rear of 43 Niagara Street in the City of St. Catharines. When questioned by police as to what he was doing in a secluded parking lot in an area frequented by drug users and prostitutes, the Complainant initially provided false information regarding his true identity. It was quickly established who he really was and it was discovered that there was an outstanding warrant for his arrest.

The Complainant was taken into custody at the scene and was handcuffed with his hands behind his back. Due to the hot and humid weather conditions, the Complainant was only wearing a shirt, baggy shorts, and a pair of flip-flops for footwear.

As the Complainant was being led to a police cruiser by the Subject Officer (SO), the Complainant tried to flee and ran across an asphalt parking lot with his hands still secured behind his back. The SO gave chase and, as he ran, the SO observed that the Complainant was losing his shorts and footwear. As the SO caught up with the Complainant, the SO reached out to grab a hold of the Complainant, who was in the process of falling forward due to being hampered by his shorts which were falling down. The result was that the Complainant ‘face-planted’ himself on the ground striking the asphalt surface.

Nature of Injuries / Treatment

The Complainant suffered a nasal bone fracture. At the hospital, it was initially believed by some medical staff that the Complainant may have fractured his kneecap and this opinion was passed on to the NRPS who then provided the same information regarding the nature of the injury to the SIU.

During the course of his interview with SIU investigators, the Complainant made it clear that he had no knee or leg injury and this fact was later confirmed upon review of the medical records. Those records did confirm a nasal bone fracture, which is the subject injury of this investigation.

The scene

The scene was an office parking lot situated at the rear of commercial premises located on Niagara Street in St. Catharines. It is an area frequented by prostitutes and drug dealers in the evenings when all the commercial units are closed for business. The ground in this area, and leading back to North Street, is made up of an asphalt surface. In the evenings, this area is very poorly lit.

Forensic evidence

No submissions were made to the Centre of Forensic Sciences.

Video/audio/photographic evidence

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

Communications recordings

The communications recordings of the police transmissions and the associated log were obtained and reviewed.

Materials obtained from Police Service

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

• Arrest Warrant (endorsed)
• Computer-Aided Dispatch Summary
• Police Transmission Communication Recordings
• Notes of WO #s 1-3, and
• Subject Profile of the Complainant

The SIU also obtained the Complainant’s medical records.

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 129, Criminal Code - Offences relating to public or peace officer

129 Every one who

1. resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer
2. omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
3. resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure

is guilty of

4. an indictable offence and is liable to imprisonment for a term not exceeding two years, or
5. an offence punishable on summary conviction

On August 22^nd, 2017, Witness Officer (WO) #2 of the NRPS was investigating a motor vehicle stopped in the parking lot of a closed commercial premises. The motor vehicle had three occupants and was parked in an area known to be frequented by prostitutes and drug users. The SO and WO #1 attended to assist WO #2. WO #2 requested that the three occupants of the motor vehicle identify themselves, and the backseat passenger, the Complainant, misidentified himself using the name of his brother. Once the name was checked on the police computer, it was determined not only that the passenger was not the brother, but also that he, the Complainant, was wanted by police on outstanding arrest warrants, and he was placed under arrest, handcuffed to the rear, and searched. Following the search, he was turned over to the SO, who then escorted him to his police cruiser for transport to the police station.

As the SO was opening the door of the cruiser, the Complainant decided to take the opportunity and flee from police, despite being handcuffed behind his back. The SO immediately yelled at the Complainant to stop, as he was under arrest, and pursued him on foot. During the foot pursuit, the Complainant went to the ground and was subsequently transported to the hospital where he was diagnosed with a nasal bone fracture.

During the course of this investigation, two civilian witnesses, including the Complainant, and four police witnesses, including the subject officer, were interviewed; the third passenger of the motor vehicle refused to provide a statement. Although there is a dispute as to whether the Complainant went to the ground as a result of his tripping and falling while attempting to flee, or if he was tackled to the ground by the SO, also while he was attempting to flee, the evidence of all of the witnesses is consistent with respect to the facts leading up to the Complainant’s going to the ground and there is no allegation that any officer struck or kicked the Complainant in any way, or that any use of force option was employed.

The Complainant was of the view that as he was running away, he was tackled to the ground by a police officer and banged the front of his face on the asphalt surface as he went down, causing his injury. The SO, in his statement, advised that as the Complainant was running, with his hands cuffed behind his back, the SO reached out to grab hold of the Complainant, just as the Complainant started to fall due to his shorts falling down around his knees and his footwear coming off. The SO further indicated that he had a hold of the right side of the Complainant as both of them went to the ground, with the SO falling to the left of the Complainant and the Complainant falling face first onto the asphalt, because the Complainant was unable to break his fall due to his hands being cuffed behind his back.

On the whole, I see very little distinction between the evidence of the Complainant and the SO; the differences being more due to perspective and the ability to fully comprehend what was happening in a fast moving situation, especially where the Complainant was moving forward and likely could not see exactly what the SO was doing behind him.

Regardless, whether the actions of the SO can be described as a tackle or not, I see little relevance to the distinction, since in either scenario the actions of the SO would have been fully justified in the circumstances as the Complainant was attempting to flee from police after having been arrested and handcuffed and it was incumbent upon the SO to apprehend him.

On all of the evidence, I have no difficulty in accepting that in all likelihood the actual events fall somewhere between the perceptions of the Complainant and the SO. I accept that the Complainant, due to his attempts to run while dressed in loose clothing with unstable footwear, and his hands cuffed behind his back, either started to fall just before or while the SO was reaching out to grab him, and he fell hard to the ground face first because he was unable to break his fall due to his hands being handcuffed behind his back.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s pursuit and apprehension, it is clear on the evidence that WO #2 was carrying out his duties when he decided to investigate a motor vehicle with three occupants parked on the premises of a closed commercial building in an area known for its drug and prostitution activity. While the Complainant, as the passenger of the motor vehicle, had no obligation to identify himself to WO #2 when requested, having opted to provide a false identity, the Complainant was then actively obstructing a police investigation contrary to s.129 of the Criminal Code.

Furthermore, once it was determined that the Complainant had outstanding warrants for his arrest, police were fully justified in executing those warrants and placing the Complainant under arrest. When the Complainant opted to flee from police following his having been lawfully placed under arrest, it was of course incumbent upon police to apprehend him not only because he was escaping but also because he was doing so in the possession of the police issued handcuffs. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in apprehending the Complainant, who had been arrested and was actively attempting to escape from police, whether the Complainant fell of his own accord, or the SO reached out and grabbed him as he was falling and they both fell together, or if the SO tackled the Complainant by grabbing him and purposely taking him to the ground, I cannot find that the actions of the SO amount to an excessive use of force. While other witnesses were too far away and it was too dark for them to differentiate as to the exact manner by which the Complainant and the SO came to fall to the ground, the evidence is consistent from all persons who provided statements that the SO never punched, kicked, or struck the Complainant, and that other than grabbing him and falling to the ground, there was no use of force whatsoever.

On the basis of practical common sense, I accept that maintaining one’s balance while running in ill-fitting shorts and flip-flops would have been difficult at best, but when then combined with the loss of balance associated from being handcuffed behind your back while running in unfamiliar territory in the dark, I have no difficulty accepting that when the SO reached out and grabbed the Complainant, the Complainant completely lost his balance and they both fell to the ground. I find further support for this version of events on the basis that the SO fell beside the Complainant, rather than on top of him, which I would have expected had the SO tackled the Complainant. However, even if I were to accept that the SO intentionally tackled the Complainant in an effort to prevent him fleeing, I would not find that to be an excessive use of force, despite the injury suffered by the Complainant.

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 [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 all of the circumstances, the option resorted to by the SO to apprehend the Complainant was more than reasonable in the circumstances and, other than allowing the Complainant to escape and run off with the police handcuffs, was really the only option available to the SO at the time. On this record, it is clear that the force used by the SO in chasing down and grabbing onto the Complainant, who was attempting to flee from police after having been lawfully arrested, fell within the range of what was reasonably necessary in the circumstances to affect his lawful detention.

In conclusion, I find that the Complainant, in opting to flee from police after having been placed into handcuffs behind his back, was to a large degree the author of his own misfortune resulting in the injury that he sustained, and that the SO had no other options available to him at the time and he used no more force than what was required to apprehend the Complainant. On these facts, I am unable to find any reasonable grounds to believe that the SO exercised an excessive use of force, despite the unfortunate injury suffered by the Complainant, and there is no basis here for the laying of criminal charges.

Date: March 22, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit