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 49-year-old man during his arrest for impaired driving on February 6, 2017.

Notification of the SIU

On February 6, 2017, at 4:47 a.m., the Niagara Regional Police Service (NRPS) notified the SIU that the Complainant suffered a serious injury during an interaction with members of the NRPS.

NRPS reported that on February 6, 2017, at 1:30 a.m., NRPS responded to a man sleeping at the wheel of a vehicle at a residence in Thorold. The Subject Officer (SO) and Witness Officer (WO) #1 responded. They arrested the Complainant for impaired driving and he resisted the arrest. The Complainant was grounded, drive-stunned, and kneed during the arrest before he was handcuffed. The Complainant was taken to the hospital and was diagnosed with a fractured left hip.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Not interviewed, but notes received and reviewed

WO #3 Not interviewed, but notes received and reviewed

WO #4 Not interviewed, but notes received and reviewed

WO #5 Not interviewed, but notes received and reviewed

WO #6 Interviewed

Subject officers

SO Interviewed, and notes received and reviewed

During the early morning hours of February 6, 2017, CW #1 called 911 to report that the Complainant was asleep in the driver’s seat of his vehicle with the music playing loudly. An ambulance as well as the SO and WO #1 responded to the call.

When WO #1 and the SO arrived, they found the Complainant in the driver’s seat, with the keys in the ignition and a strong odour of alcohol coming from the inside of the vehicle. The Complainant was advised that he was under arrest for having care and control of a motor vehicle while impaired, and asked to step out of the car, but he refused.

Concerned about a physical confrontation, the SO removed his Conducted Energy Weapon (CEW) from its holster and illuminated the red-dot-laser-sight on the Complainant’s chest. The Complainant got out of his car with his fists clenched and hands raised up to chest height. The SO grabbed the Complainant’s left arm and WO #1 grabbed his right arm. The Complainant resisted, pulled back and began to struggle with the officers. The Complainant was grounded, but the Complainant still had his fists clenched, stretched out above his head and tried to push himself off the ground. The SO engaged his CEW and administered a drive stun to the Complainant’s mid-lower back. The Complainant became more agitated and continued his attempts to get up. The SO then delivered several knee-strikes to the left rib/armpit area of the Complainant’s body while WO #1 kneed the Complainant several times in the right thigh. The officers were finally able to handcuff the Complainant and bring him to his feet.

The Complainant was transported to the station, where he complained of pain to his hip. He was taken to the hospital where he was diagnosed with a fractured left hip.

The scene

The scene was not held, examined or forensically investigated.

Forensic evidence

On Monday, February 6, 2017, at 2:45 p.m., the SIU Forensic Investigator attended the NRPS Grimsby sub-station, and met with a representative of the NRPS Professional Standards Branch. The representative produced the CEW issued to the SO.

The deployment data from the CEW showed that it had been discharged for five seconds at 1:30:19 a.m. on February 6, 2017.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but did not locate any.

NRPS provided the station videos recording the Complainant’s time while in custody at the station. The sally port and parade room video recordings of the Complainant’s time on camera in NRPS custody were analyzed and captured on a follow-up report.

Sally port video

Each of the four cameras in the sally port lacks an audio component. The view from the southwest camera best captures the Complainant as he exits WO #1’s police cruiser.

After the police cruiser entered the sally port, WO #1 opened the rear door on the driver’s side as a Special Constable who was not designated by the SIU approached. The Complainant had trouble getting out of the back seat of the vehicle but eventually sat on the edge of the seat, with his feet out of the vehicle on the floor. The Complainant appeared to be in pain. The Complainant attempted to stand and the Special Constable held him under his left armpit. The Complainant could not stand and he lay down on his right side across the back seat. The Complainant was eventually assisted from the police cruiser but was in obvious pain and could not walk, so the police officers carried him into the parade room, with the Complainant dragging his feet.

Parade room video

There were three camera views in the parade room, with excellent audio. The Complainant was brought into the parade room and WO #2 and the Special Constable held him up the entire time. It was apparent the Complainant could not stand. The Booking Sergeant was behind the booking desk and WO #1 stood back. The Complainant immediately said, “My leg is fucking killing me. I want to see a doctor right now.” WO #2 asked the Complainant what was wrong with his leg and he replied, “It fucking hurts. Why do you think I am crying like a little bitch? Let me see a doctor, it feels like my hip is dislocated. None of you give a shit.” The Booking Sergeant asked the Complainant to be identified on camera and WO #1 identified him and verbalized the charges against the Complainant. The Booking Sergeant told the Complainant he could speak to a lawyer and the Complainant told her he wanted to see a doctor, his hip was killing him. The Complainant was asked about his alcohol consumption and he said he had a couple of beer. He was asked about injuries and he told the Booking Sergeant that the police officers kicked him, used a CEW on him and would not let him up. WO #2 questioned him about his hip and the Complainant said, “One of your officers leaned into me and gave me three knee strikes.” WO #2 told the Complainant that they would take him to the hospital.

Communications recordings

The communication recordings from Monday, February 6, 2017, starting at 1:05 a.m., were detailed in a follow-up report. They started with CW #1’s call to police reporting a man slumped over the steering wheel of a car from which loud music was playing. The relevant information ended at 1:33 a.m., approximately three minutes after the SO’s CEW data captured its discharge, with the SO notifying the dispatch centre all was in order and no other police officers were required to help.

Materials obtained from Police Service

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

• Communications recordings
• Station videos
• Computer Aided Dispatch - Call Incident
• General Occurrence
• Notes of WO #1, WO #2, WO #3, WO #4 and WO #5
• Procedure – Use of Force
• Procedure – Powers of Arrest
• NRPS Request for Recording from the Communications Unit Master Logger, and
• Recording from Master Logger

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 253(1), Criminal Code - Operation while impaired

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

1. while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
2. having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

Section 254(5), Criminal Code - Failure or refusal to comply with demand

254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

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.

In the early morning on February 6, 2017, the Complainant was arrested by members of the NRPS in Thorold. During the encounter, the Complainant suffered a fractured hip. Following a review of the evidence, in my view there are no reasonable grounds to believe that the SO committed a criminal offence in relation to the injuries sustained by the Complainant.

At the time, CW #1 heard loud music and saw the Complainant’s vehicle pull into a driveway. The driver subsequently reversed and parked by the residence next door. The Complainant then hunched over the steering wheel. CW #1 called 911. Although the loud music was still on, the car was not running and the lights were off.

Shortly afterwards, an ambulance arrived with CW #3 and CW #4. An NRPS cruiser arrived at the same time driven by WO #1. CW #4 advised WO #1 that the Complainant must be alive as he had given them the middle finger. A second police vehicle arrived driven by the SO. WO #1 opened the driver’s door and tapped the Complainant on the shoulder to make sure he was okay, informing him that he was a police officer. He and the SO saw car keys in the ignition and smelled a strong odour of alcohol coming from inside the vehicle. His speech was slurred and he was belligerent. The Complainant swore at WO #1 and told him to “fuck off” as he threw his car keys across the dashboard. CW #3 and CW #4, however, had a different recall regarding the removal of the car keys from the ignition.

WO #1 told the Complainant he was under arrest for having care and control of a motor vehicle while impaired and asked him to step out of the vehicle. The Complainant responded by cursing and claiming that he was only in the car to sleep. Concerned about a physical confrontation, the SO removed his CEW from its holster and illuminated the red-dot-laser-sight on the Complainant’s chest but did not discharge the weapon. WO #1 reached inside the vehicle and grabbed the Complainant’s jacket in an attempt to arrest him, but the Complainant pulled away from him. With the assistance of the SO, WO #1 was able to pull the Complainant out of the vehicle. The SO described the Complainant start to get out of the vehicle with his fists clenched and hands raised to his chest as they grabbed his arms. The Complainant struggled with the officers and fell to the ground, landing on the pavement on his front side with both hands underneath him.

WO #1 was on the Complainant’s right side and the SO was on his left side as they attempted to handcuff him. The Complainant continued to struggle and would not provide his hands. This was witnessed by two of the civilian witnesses. WO #1 kneed him in the right thigh three times, which had no effect. The Complainant tried to push his body up off the ground to stand up. The SO used his CEW and administered a drive stun to the Complainant’s lower bare back. There was a five second burst of electricity from the CEW, but given the Complainant’s body movement, the CEW lost contact with his skin[1]. The CEW appeared to be causing the Complainant to become even more agitated and was not working effectively, so the SO decided to put it aside.

The Complainant continued to struggle with the officers and was still not handcuffed. WO #1 administered two more knee strikes to the Complainant’s right thigh. The SO delivered two knee strikes to the Complainant’s left rib and armpit area, but to no effect. The Complainant tried to get up again. The SO delivered a third knee strike to the Complainant’s left ribs, which caused the Complainant to shout out that this strike had broken his rib. The Complainant stopped resisting and the officers were then able to handcuff his hands behind his back.

The civilian witnesses who were watching the arrest recounted the Complainant’s continued resistance by not providing his arms as the officers attempted to handcuff him. Two of the civilian witnesses saw each officer deliver at least two knee strikes to the Complainant’s body. The Complainant does not dispute that he was resisting the police officers’ attempts to take hold of him. The Complainant denies, however, that he continued to resist once they told him they were police. This assertion was not consistent with the other witness accounts.

As the Complainant lay on the ground in handcuffs, he rolled from his front side onto his back and exclaimed that his hip hurt. He continued to aggressively swear at the officers. WO #1 and the SO stood the Complainant up. CW #3 assessed the Complainant’s hip area and advised that he showed no signs of pain. WO #6 arrived. A male approached the SO and advised that he had seen the Complainant move his vehicle from one parking spot to another prior to their arrival. The Complainant refused further medical treatment, so CW #3 and CW #4 left and the officers transported him to the station. The Complainant was charged with resisting arrest, operation of a motor vehicle while impaired and subsequently refusing a breathalyzer test.

At the station, the Complainant had trouble getting out of the police vehicle and difficulty walking into the station because he was in pain from his hip, which was apparent on the custody video. He advised the Booking Sergeant that he believed his hip was dislocated and that he was kicked, kneed and a CEW was deployed by the officers during his arrest. None of the other witnesses saw him ever being kicked. The Complainant suggested to the Booking Sergeant that his hip was injured when an officer gave him three knee strikes. The Complainant was transported to the hospital where he was diagnosed with a fractured left hip. According to NRPS records, officers made two attempts to obtain a breath sample from the Complainant but he repeatedly refused.

During the course of the investigation, the SIU interviewed four civilian witnesses and two witness officers. Notes were obtained from five witness officers. The SO voluntarily provided an interview and a copy of his notes. The NRPS event reports, CEW download, custody area video and communication recordings, were reviewed. Medical records from the hospital and Emergency Medical Services (EMS) were obtained and examined.

I am satisfied that the involved officers had the authority to arrest the Complainant in the circumstances of this case. Section 253(1)(a) of the Criminal Code prohibits the operation of a motor vehicle, whether in motion or not, while the person’s ability is impaired by alcohol. The courts have often asserted that being seated in the driver’s seat in an intoxicated state with the keys in the ignition while sleeping can amount to being in care and control of the vehicle and therefore be a violation of this section (R. v. Pelletier (2000), 6 M.V.R. (4^th) 152 (Ont. C.A.); R. v. Smits (2012), 36 M.V.R. (6^th) 217 (Ont. C.A.)). The Supreme Court of Canada confirmed in R. v. Boudreault, [2012] 3 S.C.R. 157, that the existence of a realistic risk of danger to persons or property was an essential element of "care or control" under s. 253(1) of Criminal Code. The Complainant does not dispute that he consumed a significant amount of alcohol and that he was seated in the driver’s seat of his vehicle sleeping when approached by the police officers. Two civilian witnesses and both responding police officers indicated that the keys were in the ignition at the time. A civilian witness also observed the Complainant operating his motor vehicle prior to police arrival. Moreover, by all accounts, the Complainant was acting belligerently and not following the direction of the officers.

Furthermore, the Complainant acknowledged struggling with the police officers but attributed his resistance to a lack of awareness that the SO and WO #1 were police officers. This is difficult to understand given both officers were working in uniform on the night of the incident, accompanied by uniformed paramedics, and driving marked police vehicles. The lighting in the area where the Complainant was parked was described as good. Additionally, the officers reported advising him that they were police officers when they first opened his vehicle door. The Complainant’s claim that he stopped resisting once he realized he was being confronted by police officers is also contrary to the statements of all other witnesses. For the preceding reasons, I find that the involved officers had the lawful authority to arrest the Complainant for being in care and control of his vehicle while intoxicated and for subsequently resisting arrest.

The question then becomes whether the force used to arrest the Complainant was reasonable. Section 25(1) of the Criminal Code limits the force an officer may use to that which is reasonably necessary in the circumstances in the execution of their lawful duties. In my view, there is no evidentiary basis for a finding of excessive force by either the SO or WO #1. Faced with the risk of danger posed by an intoxicated person seated in the driver’s seat of a vehicle with keys in the ignition who was belligerent and not following direction, the involved officers not only had the authority but duty to act to protect the public and the Complainant from potential harm. The Complainant admitted to resisting their efforts to gain control of him initially. It was only after the Complainant continued to ignore the officers’ verbal commands and their physical grappling attempts were unsuccessful, that the officers resorted to knee strikes and a CEW deployment. These did not work and the Complainant continued to struggle with them. It was not until an additional knee strike by the SO to the Complainant’s left rib area that he capitulated and allowed the officers to handcuff him. The jurisprudence has clearly stated that the standard to which officers are to be held is not perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are they expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)). It appears highly probable that the Complainant received his hip fracture during his interaction with the police officers on the evening in question, but the precise timing and mechanism are unclear, quite possibly the result of a knee strike or the impact of his fall. Nonetheless, the SO and WO #1 had the authority to arrest the Complainant and it is clear, based on this record, that in order to do so they used an amount of force that was measured and reasonable in the circumstances.

The totality of the evidence leads me to the conclusion that both the SO and WO #1 were justified in the amount of force they applied to subdue the Complainant, given his resistance and their lawful authority to arrest him. I have significant concerns with the reliability of the Complainant’s statement and find that there was nothing in the conduct of the SO that would attract criminal liability. Accordingly, I cannot form reasonable grounds to believe that a criminal offence was committed in this case and therefore, no charges will issue.

Date: June 8, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The CEW download report revealed that at 1:30 a.m., the device was deployed for five seconds. There were no other deployments on this date during the time period in which the officers interacted with the Complainant. [Back to text]