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 suffered by a 62-year-old man when he was arrested on September 2^nd, 2016 in St. Catharines, for driving under suspension.

Notification of the SIU

On Friday, September 16, 2016, at 3:54 p.m., the Niagara Regional Police Service (NRPS) notified the SIU that it was in receipt of a letter from the Complainant, wherein the Complainant complained that he had suffered a fractured rib on Friday, September 2, 2016, while being arrested by a NRPS officer. Attached to the letter was a copy of the Complainant’s medical report that confirmed his injury.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

Subject Officers

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

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. A high quality video camera installed in an electronics shop situated on Geneva Street captured the entire confrontation between the SO and the Complainant.

The Closed Circuit Television (CCTV) shows the Complainant exiting his vehicle and he and the SO walk back towards the passenger side of the SO’s SUV. A struggle ensues and the SO tries to take the Complainant to the ground. The SO strikes the Complainant lightly on the face with his right hand and then the SO strikes the Complainant in the left chest area with his right hand. The SO then delivers a right knee strike to the Complainant’s left inner thigh and then delivers two strikes to the Complainant’s left chest with his right hand. The SO attempts to ground the Complainant, however he cannot ground him and the SO pins the Complainant against the SUV. It appears that the SO has injured his shoulder as his left arm is seen to hang down and he is not using it any longer. CW #1 appears on the video and appears to chastise the Complainant. A short time later, WO #1 arrives followed by WO #2. The Complainant is finally handcuffed and placed in the rear seat of the SUV.

Communications Recordings

On the NRPS communications recording a dispatcher is heard confirming that a suspension for the Complainant (medical fail to file) is valid.

Materials obtained from Police Service

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

• Detailed Call Summary,
• A Driver’s Licence history for the Complainant:
• Notes of WO #1, WO #2 and WO #3,
• Recording from Master Logger,
• Request for Recording from Master Logger, and
• Unit History-WO #1, WO #2 and WO #3.

On August 14, 2016, the Complainant’s driver’s licence was suspended for medical reasons. That suspension remained in effect until September 9, 2016.

On September 2, 2016, the Complainant was driving his car in St. Catharines. The SO ran the Complainant’s licence plate, and the medical suspension came to light. The SO initiated a traffic stop to confirm the Complainant’s identity. The Complainant provided the SO with his driver’s licence, but refused to accept that his licence was suspended. The SO arrested the Complainant for driving under suspension. The Complainant refused to turn off the car, and then resisted the SO’s efforts to handcuff him. In the course of the Complainant’s resistance, the SO delivered several strikes to the Complainant’s left side and groin to get the Complainant to reveal his hands and be handcuffed. His efforts, however, were not successful and it took two additional officers to handcuff the Complainant.

Once the Complainant was handcuffed, he was issued a Provincial Offence Notice and released from custody after being cautioned not to drive his vehicle.

On September 6, 2016, the Complainant attended a medical clinic regarding pain on his left side. X-rays confirmed that he had sustained a fracture of his tenth left rib.

Section 53(1), Ontario Highway Traffic Act - Driving while driver’s licence suspended

53 (1) Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,

1. for a first offence, to a fine of not less than $1, 000 and not more than $5, 000; and
2. for each subsequent offence, to a fine of not less than $2, 000 and not more than $5, 000,

or to imprisonment for a term of not more than six months, or to both.

Section 217(2), Ontario Highway Traffic Act - Arrest powers – Arrests without warrants

217(2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9 (1), subsection 12 (1), subsection 13 (1), subsection 33 (3), subsection 47 (5), (6), (7) or (8), section 51, 53, subsection 106 (8.2), section 130, 172 or 184, subsection 185 (3), clause 200 (1) (a) or subsection 216 (1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention.

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.

On the evening of September 2, 2016, the Complainant was arrested by a police officer from NRPS for driving while his licence was suspended. During their interaction, the Complainant sustained a fractured rib. For the reasons that follow, I am satisfied that there are no reasonable grounds to believe that the SO committed a criminal offence during their encounter.

At about 6:30 p.m., on September 2, 2016, the SO queried the licence plate number of a vehicle he was following along Geneva Street in St. Catharines. He learned that the owner, the Complainant, was suspended from driving for medical reasons. The SO initiated a traffic stop and confirmed with the driver that he was in fact the Complainant. The Complainant told the SO that he had never been notified of the suspension. The SO asked the Complainant for his driver’s licence, ownership and insurance. The photograph on his licence confirmed his identity. The SO asked the Complainant to remain in his vehicle, while he did further checks.

The SO contacted the dispatcher, who confirmed the suspension was valid and was deemed to have been served. As the SO approached the Complainant’s vehicle again, an agitated Complainant opened his car door and demanded the SO return his documents. The SO told him that he had not finished with them yet and advised that his licence suspension was in effect according to police records. The Complainant demanded to see proof of the suspension, but the SO said that it was not his responsibility to show him that. In his statement to the SIU, the Complainant did not deny receiving a notice from the Ministry of Transportation (MTO) seeking a medical report about the status of his health issues without which his licence would be suspended.

Although the SO was not specifically aware of the nature of the medical suspension, he was concerned that the Complainant’s increasing agitation could trigger a medical event. At the time, the Complainant was sitting behind the wheel of his idling vehicle, and could well have driven off. The SO told the Complainant to turn off his vehicle, but the Complainant refused. The SO repeated his demand but the Complainant did not comply. The SO told the Complainant he was under arrest for driving under suspension and ordered him to step out of his vehicle but he did not listen. To entice the Complainant, the SO told him that if he got out of his car, he would take him back to the police vehicle and show him the suspension order on the computer terminal. The Complainant turned off the engine, put the car keys into his pocket and stepped out of his vehicle. He had both hands in his pockets as he walked with the SO to the police SUV.

The SO told the Complainant again that he was under arrest for driving under suspension, and to take his hands out of his pockets and put them behind his back. The Complainant refused. The SO held the Complainant’s right bicep and continued to escort him to his police SUV. The SO pushed the Complainant’s chest up against the rear passenger door as the Complainant starting to pull away from him. The Complainant had his left hand in front of his body and kept his right hand in his pocket. The SO repeated that he was under arrest and could not drive, but the Complainant did not listen. The Complainant held his hands together in front of him and would not release his hands to the SO, so the SO punched him in his left facial area. This had no effect in obtaining cooperation from the Complainant.

The SO attempted to bend the Complainant’s upper body forward and to pull one of his legs out to ground him. Again, the Complainant successfully resisted and remained erect. They continued to struggle. The SO punched him once on his back left side and kneed him once in the groin, followed by two additional punches to his left back area. These strikes appeared to have no effect, as the Complainant still refused to allow the SO to gain control of his hands. During the skirmish, the SO’s Conducted Energy Weapon (CEW) was dislodged from his belt and fell to the ground. The SO picked it up and held the CEW up to the Complainant’s chest briefly, but did not discharge it. A passerby, CW #1, approached them and cautioned the Complainant to stop resisting the police officer, but the Complainant did not listen.

During the grounding attempt, the SO felt his left shoulder dislocate so he radioed for assistance. WO #1 soon arrived, followed shortly by WO #2. The SO was standing beside his SUV with the Complainant at the time. WO #2 and WO #1 each took hold of one of the Complainant’s arms, turned him to face the police cruiser and with only some resistance were able to handcuff the Complainant with his hands behind his back. He was placed in the back of the SO’s SUV. The SO issued the Complainant a Provincial Offence Notice and released him from custody after cautioning him not to drive his vehicle. WO #1 parked the Complainant’s vehicle in a nearby parking lot.

The facts in this case are not in dispute. Rather, the issues to be determined are whether the SO had reasonable grounds to arrest the Complainant, and furthermore if the amount of force used in the process was justified. The evidence revealed that there was no doubt the SO had the authority to arrest the Complainant. Section 53(1) of the Highway Traffic Act (HTA) prohibits motorists from driving while their licence is suspended. A police officer who, on reasonable and probable grounds, believes that a contravention of this provision has occurred has the grounds to arrest without warrant pursuant to section 217 of the HTA. After determining through the communication centre that his licence was currently suspended, the SO informed the Complainant of such. Unfortunately, the Complainant did not feel this was just, as he indicated he never received a notice of the suspension and wanted confirmation this was in fact the truth. As a result, the Complainant felt it reasonable to resist being arrested. An MTO records history search revealed that his licence was suspended on August 14, 2016 for failing to file a medical report, and this was in effect until September 9, 2016.

The question then becomes whether the amount of force used to effect the arrest was reasonable. In my view, there is no evidentiary basis for a finding of excessive force by the SO. Pursuant to section 25(1) of the Criminal Code, officers are limited in their use of force to that which is reasonably necessary in the execution of their duties. Although in doing so, the common law has recognized that the officers are not expected to measure the degree of their responsive force to a nicety: R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. CA). The CCTV footage obtained from a nearby building captured the entirety of the incident in excellent quality, absent audio. A review of the footage assisted greatly in determining the events in question and the extent of force used by the SO. There was one unidentified witness seen on the video footage, and otherwise CW #1 was the only witness found but unfortunately he was only present for a portion of the interaction.

The SO recalled delivering a light distractionary blow to the Complainant’s facial area and one or two punches to his left side. The video footage clearly showed the Complainant repeatedly resisting the SO’s many efforts to gain control of his hands. Throughout the struggle, the SO was seen delivering one punch to his face, three to his left back and a knee to his groin. None of these strikes appeared to impact with much force based on the Complainant’s lack of reaction to them on the video footage. The SO also held his CEW pointed into the Complainant’s chest briefly, about ten seconds, before re-holstering it. And yet all of these efforts were futile, as none resulted in the Complainant acquiescing and allowing the SO access to his hands to handcuff him. In fact, the video footage depicted the SO showing restraint and professionalism, taking time to speak with the Complainant and even taking care to put his eye glasses out of harm’s way. Despite the Complainant’s unrelenting defiance and the SO’s acute shoulder injury, the SO did not continue to raise the level of force deployed, even though the circumstances may have justified it. Rather, he made a restrained and measured decision to wait for assistance.

In the final analysis, I am satisfied that the SO had the lawful authority to arrest the Complainant and that the force employed to do so was reasonable and necessary given the circumstances, despite the unfortunate injury that resulted. Accordingly, I find that the SO’s actions fell within the limits prescribed by the criminal law and no charges will issue.

Date: September 7, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit