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 alleged custody injury sustained by a 61-year-old male on January 12, 2016, during an interaction with officers from Sault Ste. Marie Police Service (SSMPS).

Notification of the SIU

On February 17, 2016, at 3:57 p.m., SSMPS reported the serious injury sustained by the Complainant.

According to SSMPS, the Complainant contacted SSMPS on February 17, 2016, and notified that when he was arrested on January 12, 2016, at 7:00 p.m., he sustained three broken ribs after he fell down the porch steps.

The Complainant told SSMPS he had been back to the hospital several times since his arrest and has now been diagnosed with three broken ribs. SSMPS confirmed the Complainant was arrested on January 12, 2016, after a member of his household called police. When police arrived, they found the Complainant to be intoxicated and had blood on his hands. The Complainant was argumentative and combative with police when arrested. As police struggled with the Complainant while removing him from the kitchen to the back porch, the Complainant fell down the porch steps. Following his arrest, the Complainant was transported to the SSMPS cell area. The booking staff sergeant noticed the Complainant’s cut hands, and he complained his side hurt. As a result, the Complainant was taken to hospital for treatment. According to police, the Complainant was medically cleared with no injuries at 1:30 a.m., and taken to the Sault Ste. Marie men’s alcohol treatment centre.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

CW #4  Interviewed

CW #5  Not interviewedCW #5, who declined to be interviewed by the SIU, stated that she had nothing to add to the investigation.

CW #6  Not interviewedCW #6 declined to be interviewed by investigators.

CW #7  Interviewed

CW #8  Not interviewedCW #8 initially declined an interview with the SIU. Numerous attempts to contact CW #8 were unsuccessful and accordingly no interview was conducted.

Witness Officers

WO #1  Not interviewed, but notes received and reviewed, interview deemed not necessary.

WO #2  Not interviewed, but notes received and reviewed, interview deemed not necessary.

WO #3  Interviewed

WO #4  InterviewedWO #4 was unable to provide the SIU with a copy of his notebook entries relevant to the incident as his notebook was missing at the time of the interview and the preparation of the investigation report.

Subject Officers

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

The Scene

There was no scene to examine as the incident occurred 37 days prior to the SIU being notified.

The area of the incident involved a set of four straight wooden exterior steps with wooden railings that were attached to the rear of a two-storey residence in Sault Ste. Marie, ending on a bare, flat rectangular concrete pad approximately 1.49 square metres in dimension. The edge of the pad on which the Complainant’s right shoulder blade allegedly landed when he descended the steps was slightly elevated in relation to the other three edges.

Video/Audio/Photographic Evidence

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

Materials obtained from Police Service

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

• Arrest Report with Crown Brief Synopsis,
• Arrest Report-Typed,
• Background Event Chronology,
• Detention Log-Property-Jan 12, 16,
• Disclosure Letter-Mar 8, 16,
• Event Details,
• Notes of WO #1, WO #2, and WO #3,
• Occurrence Report,
• Occurrence Summaries of the Complainant,
• Occurrence Summary,
• Occurrences dated 2014 – 2016 of the Complainant, and
• Station booking video.

Upon request the SIU also obtained and reviewed the following additional materials and documents:

• Sault Area Emergency Medical Service (SAEMS) Ambulance Call Reports

On January 12, 2016, the Complainant was at the residence he shared with CW #3 in the City of Sault Ste. Marie. The Complainant was drinking beer with CW #3, CW #4 and CW #8. CW #4 and the Complainant got into an altercation and CW #3 called 911 requesting SSMPS officers attend his home to remove the Complainant. Both the Complainant and CW #4 were injured in the altercation.

The SO and WO #4 arrived on scene and told the Complainant that he had to leave the house and would be transported to the men’s alcohol detoxification centre. The Complainant began threatening and continuously yelling obscenities at both police officers, and attempted to reach for a tin on the kitchen counter top that contained knives and forks. At that point, the SO and WO #4 grabbed the Complainant and escorted him outside. While descending the steps at the rear of the residence, the Complainant fell, landing on the concrete pad at the bottom of the steps.

The Complainant was arrested for breaching the peace under section 31 of the Criminal Code, handcuffed and transported to the station. Because of the Complainant’s injuries sustained in the earlier altercation, and his complaints at the station that the officers had thrown him down the stairs and injured his ribs, the Complainant was transported to the hospital and medically cleared.

On January 16, 2016, however, the Complainant re-attended the hospital on his own accord and was diagnosed with three contiguous postero-lateral fractures of his right fifth, six and seventh ribs.

Section 31, Criminal Code – Breach of peace

31(1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.

31(2) Every peace officer is justified in receiving into custody any person who is given into his charge as having been a party to a breach of the peace by one who has, or who on reasonable grounds the peace officer believes has, witnessed the breach of the peace.

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 Friday, February 17, 2016 at 3:57 p.m., SSMPS reported to the SIU that the Complainant indicated that on January 12, 2016, he was arrested for breaching the peace pursuant to section 31 of the Criminal Code, by the SO and WO #4 at 7:00 p.m., in the City of Sault Ste. Marie, at the home of CW #3. The Complainant informed SSMPS that in the process of being removed from the residence by the SO and WO #4, while descending the steps at the rear of the residence, he fell, landing on the concrete pad at the bottom of the steps. The Complainant sustained three contiguous postero-lateral fractures of his fifth, six and seventh ribs that were diagnosed by a doctor at the hospital four days later on January 16, 2016.

At the outset it is important to acknowledge that there are conflicting explanations of precisely what caused the Complainant to fall on the steps. Accordingly, an accurate determination of the facts will ultimately depend on the credibility and/or reliability of the witnesses.

At 6:42 p.m., CW #3 called 911 requesting SSMPS officers to attend his home to remove the Complainant. The call was less than a minute. The Complainant was intoxicated and a fight occurred between CW #4 and the Complainant. The SO and WO #4 arrived on scene and as a result of prior contacts with the Complainant, both police officers knew to enter the house via the rear door directly into the kitchen area. WO #4 noted that the Complainant had his hand wrapped in a paper towel; that there was blood on the kitchen floor; and that CW #3 stated that the Complainant still wanted to fight everyone in the house. The SO and WO #4 told the Complainant that he had to leave the house and be transported to the men’s alcohol detoxification centre. For the next ten minutes, the Complainant was threatening, belligerent, continuously yelling obscenities at both officers, and attempted to reach for a tin on the kitchen counter top that contained knives and forks. At that point, the SO and WO #4 grabbed the winter jacket of the Complainant and escorted him to the kitchen door at the rear of the house. The SO indicated that he was behind the Complainant near his left side and that WO #3 followed behind them onto the small wooden porch leading to four straight steps with a wooden railing that ended on a flat rectangular concrete pad approximately 1.49 square metres in dimension. The SO indicated that both he and the Complainant were facing toward the descending steps.

The evidence of both the SO and WO #4 significantly contradicted the evidence of the Complainant. While exiting the kitchen at the door leading onto to the wooden landing, the SO was holding onto the right arm of the Complainant. Both the Complainant and WO #4 were slightly behind the SO on the landing. The SO indicated that the four or five stairs were not wide enough for two people to be standing side by side. While on the wooden porch, near the first step, the SO slipped, but did not fall, on the snow and grabbed the railing with his right hand in what was an unsuccessful attempt to prevent both himself and the Complainant from falling down the stairs. At that point, the SO released his hold on the Complainant, who continued in a forward motion. On either the first or second step, the SO observed that the Complainant had lost his balance; had no contact with the remaining steps; and landed with his hands and arms by his chest on the concrete pad at the bottom on the steps.Focussing specifically on the fall of the Complainant down the stairs, overall the evidence of WO #4 corroborates that of the SO. The SO noted that there was snow on the steps as well as on the concrete pad and estimated that the Complainant fell from a distance of about 60 centimetres off the ground and about 1.5 metres outward. WO #4 noted that the Complainant indicated it was his belief that both the SO and WO #4 had pushed him down the stairs.

When paraded before WO #3, the Complainant complained of being in a lot of pain caused by the actions of the SO and WO #4 hurting his ribs and cutting his face. WO #3 observed that the Complainant was very intoxicated, confrontational, yelling, swearing, and at times verbally incomprehensible. WO #3 ordered an ambulance to transport the Complainant to the hospital. Both the SO and WO #4 attended the hospital.WO #3 was subsequently informed that the Complainant had possibly bruised but not broken ribs and that his finger had been bandaged. WO #3 was informed that the Complainant was given essentially a clean bill of health after returning from the hospital. Accordingly, WO #3 concluded that any concerns about notifying the SIU were unfounded.

At 7:50 p.m. on January 12, 2016, the Complainant was examined by CW #1 at the hospital. CW #1 noted that the Complainant displayed tenderness and a reaction to pain with any range of motion, specifically in the area of his mid-back upon palpitation. CW #1 further noted that apart from a slight odour of alcohol on his breath, the physical condition of the Complainant was normal.CW #1 ordered a Computed Tomography (CT) examination of the head of the Complainant. The results were normal and unremarkable. CW #1 informed the Complainant that his side would be bruised.However, it was the medical opinion of CW #1 that the tender part of the Complainant’s body on January 12, 2016 was in an area unrelated to the three rib fractures on the right side of his body. At this point, the Complainant was laughing and accusing both the SO and WO #4 of throwing him down the steps. The Complainant was not charged with any criminal offence and was transported by the SO and WO #4 to the detoxification centre. On January 13, 2016, the Complainant left the detoxification centre.

On January 16, 2016, at approximately 2:15 p.m., the Complainant again attended the hospital, and presented with symptoms that CW #2 diagnosed as pleuritic pain and pain on his right ribs under the right shoulder blade. On examination, CW #2 noted that the Complainant was not in acute distress. When CW #2 pressed on the Complainant’s ribs both laterally and antero-postero-laterally, he experienced no pain. CW #2 noted a large bruise on the left bicep as well as bruising on the left side of the chest of the Complainant. Radiological exam as well as a CT scan revealed that the Complainant had three rib fractures on his right side. The Complainant was discharged at 3:31 p.m.

CW #7 was consulted to provide the SIU with an independent expert opinion of the cause of the rib fractures sustained by the Complainant. CW #7 reviewed the hospital records and diagnostic images; confirmed the rib fractures on the right side - specifically ribs five, six and seven - in the postero-lateral chest wall of the Complainant; and further confirmed some upward displacement of the proximal part of the ribs. It appears from CW #7’s opinion that the displacement could have occurred either from the movement of the rib muscles or from the Complainant falling and landing on a hard, partially raised, unrelenting surface on his right shoulder blade, and that the blunt force trauma injuries occurred from either force being applied directly to his body either by an object or from an individual or, and more likely, that the force applied to the ribs was caused by a hard surface such as the corner of a desk. If the complainant’s injury occurred when he came off of the porch, CW #7’s opinion indicated that the injury would be consistent with the version of events described by the Complainant and inconsistent with the version as described by the SO and WO #4. However, given the medical opinion of CW #1, which seems to suggest that on January 12 the complainant did not have any indication of rib injury or pain, it is quite possible that in the interim between January 12 and 16, 2016, the Complainant may have sustained further injuries.

In the final analysis, this being said and in reviewing carefully the totality of the evidence, I am satisfied that the evidence fails to give rise to a reasonable belief that the SO committed a criminal offence. Pursuant to section 25 (1) of the Criminal Code police officers are entitled to use force in the execution of their lawful duties as long as the force in question is reasonably necessary in the circumstances.

In my opinion, the force resorted to by the SO and WO #4 to apprehend the Complainant was reasonable in all of the circumstances. 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:

It is beyond dispute that on the evidence there are two conflicting explanations for the cause of the Complainant falling down the stairs. It is clear that the mass and momentum of the Complainant coming off of the stairs would be contributing factors associated with his rib injuries, assuming they were sustained in his interaction with the SO and WO #4. It is noteworthy that the Complainant had been involved in a violent fight which at minimum resulted in the Complainant’s face and finger being cut and CW #3’s tooth being knocked out. Significantly, this fight had occurred moments before the SO and WO #4 arrived. The expert opinion of CW #7 addresses the most likely scenario, given the facts known to us, to have caused the injuries to the Complainant from a medical perspective. It is equally important to note the possibility that in the interim between January 12 and 16, 2016, the Complainant may have sustained further injuries. Given the volatility of the lifestyle of the Complainant, this caveat is highly relevant, particularly so since on the night in question the Complainant presented to CW #1 as having a sore mid back upon palpitation and made no complaint about rib injuries. In addition, CW #1 indicated that the Complainant’s breathing was fine. If his ribs had been injured on January 12^th, it is unlikely that his breathing would have been unaffected. However, on the assumption that the Complainant suffered his rib injury during his contact with the policeAnd accepting CW #7’s posited opinion as the most likely mechanism for the complainant’s injury., the central question still remains exactly what caused the Complainant to lose his balance and fall down the stairs onto the concrete pad.

In my opinion the Complainant, CW #3 and CW #4 were vague, inconsistent, un-cooperative, and unreliable historians. Any precise recollection by the Complainant with respect to the events of January 12, 2016, would have been severely compromised by his intoxication, agitation, and by the passage of 37 intervening days prior to the incident being reported to the SIU. While in the kitchen arresting the Complainant, the only force applied by both the SO and WO #4 was to grab hold of each arm of the winter jacket that the Complainant was wearing as a result of their fear that the Complainant was reaching for, and might use, utensils in an aggressive manner against them. The Complainant, at that point, was not handcuffed with his hands behind his back. The Complainant had no independent memory of how and under what circumstances he fell down the steps. The only knowledge that the Complainant had of what caused his fall on the steps was relayed to him by CW #8. Unfortunately, CW #8 did not provide a statement to the SIU investigators, despite having received numerous phone follow-ups by SIU investigators which raises significant reliability/credibility issues with respect to the quality of any information that he provided the Complainant.

A review of the evidentiary record of the Complainant provided a number of scenarios on the precise issue of how he actually fell down the stairs all of which were inconsistent and unreliable. However, the evidence of both the SO and WO #4 overall was consistent on what caused the Complainant to fall down the stairs. The Complainant, while descending the stairs after the SO had slipped on the first step, at that point, fell forward down the remaining stairs and landed on the concrete pad. In my opinion, by falling forward, the Complainant was not in a position to witness what reactions, if any, the SO and WO #4 were taking at that instant. It is my opinion that the SO and WO #4 were attempting to safely escort the Complainant down the stairs as he was significantly intoxicated, agitated and uncooperative in being removed from his home. From my perspective, the fact that the SO slipped on the steps, with the resultant loss of control of the Complainant, was an accident, and not an attempt to physically throw the Complainant down the stairs.

With respect to the issue of snow on the steps and on the concrete pad, in his memo book notations prepared on January 12, 2016 and in his interview with SIU investigators, the SO indicated that there was snow on the concrete pad at the bottom of the steps. WO #4 corroborated the evidence of the SO by recalling that both the wooden porch and the concrete pad were snow covered.

During his interview with the SIU, WO #4 indicated that it is his practice to make detailed memo book notations; however, despite his contention that he followed the protocol of SSMPS with respect to the safe storage for duty notebooks which are stored either in the officer’s personal locker or outside the staff sergeant’s office in a mail slot, his memo book was missing and at the time of writing, the memo book of WO #4 has not been located. Thus, timely, potentially corroborating evidence has been lost in this case. This is not only unfortunate, but could in some circumstances affect the SIU’s ability to confirm or probe the accuracy of the WO’s statement, particularly where notification of a possible injury has been delayed. I will forward a letter to SSMPS Chief of Police to address setting up a more stringent protocol to prevent a similar situation in the future.

Despite this concern, in the final analysis, I am satisfied for the foregoing reasons that the arrest of the Complainant and the manner in which it was carried out were lawful notwithstanding the injury which he suffered. In the circumstances of this case, I come to this conclusion even were I to find that the officers caused the injury, which I am not inclined to do. I am, therefore, satisfied on reasonable grounds that the actions exercised by the both the SO and WO #4 fell within the limits prescribed by the criminal law. Accordingly, with respect to the SO, I can find no grounds for proceeding with charges in this case.

Date: September 5, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit