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 the complainant during his arrest for causing disturbance on March 26, 2016.

Notification of the SIU

The SIU was notified of the incident by the Niagara Regional Police Service (NRPS) on March 27, 2016 at 2:15 a.m. after they had been advised by hospital staff that the complainant had been diagnosed following his arrest and transport to hospital with a severe brain bleed. The NRPS reported that they had earlier responded to a disturbance call in Welland where the complainant was located. A police officer located the complainant in the building and apprehended him using a conducted energy weapon (CEW).

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Complainant

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right

Materials obtained from NRPS

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

• 4 Detailed Call Summaries,
• Notes for WO #1, WO #2 and WO #3, and
• Platoon Schedule.

On Saturday, March 26, 2016, around 10:30 p.m., NRPS were called to an apartment building in Welland for a man who was out of control and smashing things. Police were advised that the man had fallen down some stairs and had been knocked out by another resident in the building.

The SO and WO #2 arrived on scene at approximately 10:40 p.m. As the officers entered the building, WO #2 noticed a broken window to the side of the front door. One of the persons at the front door advised that the complainant had broken the window, and that he was in an apartment on the second floor. That person also indicated that the complainant had a health issue of concern to the police. The SO and WO #2 went up one flight of stairs and was met by CW #1 and CW #2 at the door to their apartment. As they entered the apartment, CW #2 told WO #2 that the complainant had been out of control in the hallway and had smashed something. When CW #2 had looked out to see what was going on, the complainant came at CW #2 and tried to force his way into the apartment. CW #2 punched the complainant once in the face and knocked him out.

The SO and WO #2 entered the apartment. The complainant was lying on the kitchen floor and appeared to be resting or unconscious. The complainant’s head was near a fridge in the corner of the kitchen and he was bleeding from his facial area. There was also a lot of blood on the floor. The complainant was breathing heavily and sweating and had swelling to the left side of his face. WO #1 arrived in the apartment, and noticed an indentation in the wall near to where the complainant’s head was positioned, as well as a fair amount of blood on the floor in the kitchen area, and blood on the complainant’s lips, nose area and arms.

WO #2 told the complainant that an ambulance would be coming to take care of him. The complainant started to regain consciousness and it was apparent to WO #2 that the complainant was intoxicated. The complainant stated, "Where is he?" and then added, "I am going to get him." He was agitated, upset and angry and he started to get up on one knee. WO #2 told the complainant to calm down and stay down on the ground. The complainant continued to try to stand up and behaved aggressively. The SO was explaining to the complainant that he was under arrest for mischief and the ambulance was coming. The SO told the complainant to listen or he would administer his CEW.

The complainant started to move towards the front door. The SO shouted, "Taser, Taser, Taser." At that point, the SO deployed his CEW and both darts entered the left side of the complainant with the probes very close together. The complainant went slowly down onto his knees and back onto his side. He did not strike his head on the ground.

The complainant again tried to get up, repeating, "Where’s the guy that hit me, I want to fuck him up." The SO placed his foot on the right arm or shoulder area of the complainant, telling him to settle down and that an ambulance was on its way. The complainant had his fists clenched as he tried to get up, saying again that he wanted to go after the person who hit him. The SO redeployed the CEW, causing the complainant to remain lying on the ground. Fire department personnel and paramedics arrived.

The complainant was taken to hospital, where it was determined that he had suffered a brain bleed.

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

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) 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.

In my view, there are no reasonable grounds to believe that the SO committed a criminal offence in the course of his interactions with the complainant on March 26, 2016.

At 10:37 p.m., residents of an apartment building in Welland called police to report a disturbance. At 10:43 p.m., the SO and WO #2 arrived. They were warned by an unknown witness on their way into the building that the complainant had a health issue of concern to the police. CW #1 and CW #2 explained to the officers what had transpired prior to their arrival. The SO and WO #2 found the complainant unconscious in the kitchen of CW #2’s apartment with blood on his face and on the floor around him. WO #2 remarked that the complainant was sweating, breathing heavily and the left side of his face was swollen.

The complainant began to rouse. He started to make threats and tried to stand up. WO #2 and the SO told him to calm down and stay on the ground, but he did not comply. The SO warned him that he would be "tazed" if he did not listen. As the complainant continued to move, the SO deployed his CEW, causing him to sink to the ground. WO #1 and WO #3 also arrived on scene.

According to WO #1, the complainant tried to get up again with clenched fists, and continued to state that he wanted to go after the person that punched him. The SO deployed his CEW a second time, which resulted in the complainant calming down and remaining on the ground until the paramedics arrived to assess him. WO #3 reported that the SO told him he deployed his CEW because he did not want to get in a fight with the complainant as he was bleeding profusely and had reportedly a health issue of concern to the police. The complainant was not handcuffed.

The complainant was transported by ambulance to hospital and diagnosed with a brain bleed. On March 27, 2016, the NRPS contacted the SIU to report that the complainant was diagnosed with a serious injury after being released from custody. As a result, the SIU’s mandate was triggered and an investigation ensued.

I am satisfied that the SO had the authority to use force to control the complainant in order to preserve the peace and prevent a threatened assault. It was only after the complainant ignored his verbal commands to remain seated and continued to make threats towards CW #2, that the SO discharged his CEW. The CEW download supported the witness accounts that the SO’s CEW was deployed twice, both of which were five seconds in length and about three minutes apart. I find the SO’s decision to select his CEW as his use of force option reasonable given the circumstances, specifically given the complainant’s noncompliant aggressive behaviour, the amount of blood in the vicinity, and the prior warning the SO received that the complainant had a health issue of concern to the police.

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. The only force employed by the SO was the two deployments of his CEW. Faced with an intoxicated, angry and aggressive complainant, who had been involved in very recent violent altercations, was not following direction and continued to make threats, I am satisfied that the force used by the SO was reasonable to prevent further harm by the complainant. It is highly probable that the complainant received the brain bleed on the evening in question, most likely from either falling down the stairs or his physical confrontation with CW #2, but in any event, there was no evidence to suggest this injury was caused at the hands of the involved police officers.

The totality of the evidence leads me to the conclusion that the SO was justified in using his CEW to subdue the complainant, and that he did so in a manner that was reasoned and restrained. Accordingly, I cannot form reasonable grounds to believe that a criminal offence was committed and therefore, no charges will issue.

Date: July 24, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit