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 Notification of the SIU’s investigation into an incident that took place at the Pen Centre Shopping Mall in St. Catharines on March 17, 2016 shortly after 9:00 p.m. involving Niagara Regional Police Service (NRPS) officers and the complainant. On March 19, 2016, the complainant attended the hospital and was diagnosed with a concussion.

Notification of the SIU

The SIU was notified of the incident by NRPS on March 21, 2016 after it became aware of Facebook posts authored by the complainant’s mother describing spending the night at the hospital and the complainant suffering a concussion as a result of his arrest.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant

16-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 Interviewed

CW #6 Interviewed

CW #7 Interviewed, provided a medical opinion

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

Subject officer

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

The scene

The incident occurred in the food court at the Pen Centre Shopping Mall (PCSM), located at 221 Glendale Avenue, St. Catharines.

Video/audio/photographic evidence

The SIU collected video recordings which showed the complainant in the food court and in the nearby hallways of PCSM.

Materials obtained from Niagara Regional Police Service

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

• call hardcopy-16-21161
• disclosure log
• WO notes, and
• NRPS document describing the video footage

On the evening of March 17, 2016, the complainant and CW #6 were at the PCSM. Both were intoxicated. While there, a dispute occurred between the complainant and CW #5. As a result, mall security was notified. CW #2 arrived and advised the complainant and CW #6 to leave the premises but they did not. NRPS was notified and the SO responded to the food court. The complainant and CW #6 verbally identified themselves to the SO and confirmed they were 16 years old. WO #1, WO #2 and WO #3 attended shortly after, and a verbal confrontation started between the complainant and WO #1. Given the complainant’s and CW #6’s age and level of intoxication, the SO decided to take the complainant and CW #6 to the security office where their parents would be contacted to take them home.

The SO placed his right hand on the complainant’s back to lead him to the security office but the complainant pulled away. The SO then grabbed the complainant’s left arm to arrest him for trespassing. The complainant tried to pull away again so WO #1 grabbed the complainant’s right arm and he and the SO pushed the complainant to the ground. The SO placed a knee on the side of the complainant’s neck/head to control him. The SO then handcuffed the complainant’s hands behind his back, the SO and WO #1 brought him to his feet and he was walked towards the security office.

The complainant continued to resist as he walked down the corridor with the SO. At one point, the complainant threw his right shoulder against an advertising sign on the wall. The right side of the complainant’s body and possibly his head struck the sign. The SO put his arm around the complainant’s neck area, delivered a knee strike to the back of his legs, and pulled him backwards and down into a seated position. After the complainant calmed down, he was lifted to his feet and walked to the security office. His mother was called. Multiple bottles of alcohol were found in his backpack. The complainant was charged with trespassing and possessing liquor under the age of 19 years.

On March 19, 2016, the complainant attended the hospital and was diagnosed with a concussion.

Section 2, Trespass to Property Act (TPA)

Trespass an offence

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

2. Every person who is not acting under a right or authority conferred by law and who,
   1. without the express permission of the occupier, the proof of which rests on the defendant,
      1. enters on premises when entry is prohibited under this Act, or
      2. engages in an activity on premises when the activity is prohibited under this Act; or
   2. does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

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.

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 17, 2016.

On the evening of March 17, 2016, the complainant and his friend, CW #6, were at the PCSM. They were both 16-years-old at the time. They were also both intoxicated. A confrontation occurred between the complainant and CW #5, and security was called. When security arrived, the complainant and CW #5 were told to leave the mall, but they ignored the request. NRPS was notified and the SO, who was in the mall on an unrelated matter, responded to the food court about a minute later. He was advised by CW #2 that both the complainant and CW #6 would not leave the mall as he directed. WO #1, WO #2 and WO #3 soon arrived to assist.

The complainant and CW #6 verbally identified themselves to the SO and confirmed they were 16-years-old. The SO formed the opinion that both young men were intoxicated by alcohol. Eventually, after almost ten minutes of discussion and a verbal confrontation between the complainant and WO #1, the SO decided that the complainant and CW #6 should be taken to the security office where he would contact their parents to take them home. The complainant started to get verbally aggressive with the SO. WO #2 directed CW #6 to walk ahead with her, which he did. The SO put his arm around the complainant’s back but the complainant backed away, and tried to knock the SO’s arm aside. The SO told the complainant that he was under arrest for trespassing. The SO grabbed the complainant’s left arm, WO #1 grabbed his other arm and they took the complainant down to the ground in a controlled manner. Video from the PCSM confirmed that the complainant was able to bring his left hand forward and used it to brace his landing, and his head did not strike the ground. The SO then re-grabbed the complainant’s left arm, pulled it behind his back and put his knee on the side of the complainant’s neck/head area to control him. WO #1 and the SO handcuffed him with his hands behind his back, stood him up and walked him to the security office.

As the complainant was led down a corridor by the SO, the complainant threw his right shoulder against an advertising sign on the wall. Immediately, the SO put his arm around the complainant’s neck area, delivered a knee strike to the back of the complainant’s legs, and pulled him backwards and down into a seated position. The SO then removed his left arm from the complainant’s neck. After a short time, the complainant was lifted to his feet and walked to the security office. His mother was called. Subsequently, multiple bottles of alcohol were found in his backpack, and he was charged with trespassing and possessing liquor under the age of 19 years.

Inherent in the role of mall security is the responsibility for monitoring activities carried out at the site and the authority to control access to the premises. Pursuant to Section 2 of the Trespass to Property Act, it is an offence to fail to leave premises immediately after being directed to do so by the occupier of the premises or a person authorized by the occupier. As a result, CW #2 had the authority to direct the complainant and CW #6 to leave the mall forthwith, which he did. Both young men refused to leave.

When the SO arrived, CW #2 informed him of the preceding events and that the complainant and CW #6 had refused to leave the mall at his request. Section 9(1) of the Trespass to Property Act allows for a police officer to arrest without warrant anyone who is believed on reasonable grounds to be on the premises in contravention of s. 2 of the Trespass to Property Act, when they have been directed to leave by someone who is responsible for the control of the premises. As a result, the SO had the lawful authority to arrest the complainant.

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. The CCTV footage from the mall was of significant value in corroborating various accounts of the incident in question and whether the force used by the SO was reasonable in the circumstances. Although lacking audio, the CCTV footage visually captured both the food court and corridor leading to the security office.

The SO initially intended to escort the complainant and CW #6 to the security office to call their parents to pick them up, which was in fact the outcome for CW #6, who complied with WO #2’s direction and was not grounded or handcuffed. The complainant, on the other hand, stepped backwards when the SO directed him to walk forward and then subsequently the officers struggled to gain control of his arms. As a result, he was taken down to the ground by WO #1 and the SO, and handcuffed. During this process, the SO put his knee on the back of the complainant’s neck/head area while on the ground, which he justified as a means of controlling the complainant. The SO stated that he did not apply any pressure. This is somewhat inconsistent with the CCTV footage which depicted the SO pushing his knee into the complainant’s head/neck area as he was handcuffed, which appeared to control his head movement.

The video further depicted the complainant later driving his shoulder and possibly his head into an advertising sign on the corridor wall. The SO responded by putting his arm around the complainant’s neck area and pulling him backwards onto the ground. This technique enabled the SO to take him down to the ground in a controlled manner, landing with minimal force on his buttocks on the ground. When the SO removed his arm from the complainant’s neck area, the complainant showed no visible signs of distress. The amount of force used appeared to be reasoned and a controlled technique that safely moved the complainant into a seated position, to allow him to calm down following his sudden outburst. There was no evidence found to indicate that the complainant struck his head during his encounter with NRPS and therefore no basis upon which to believe that he received a concussion during this incident.

Nevertheless, given the two scenarios which can be observed on the video which had the potential to cause injury to the complainant’s head, namely the complainant possibly hitting his head on the advertising sign and the SO pressing on the back of the complainant’s neck/head with his knee, CW #7 explained that running into a sign with force was the likely cause of concussion because the pressure applied to the head in the manner depicted in the video could not have caused the complainant’s concussion.

In conclusion, based on the totality of the evidence, I am satisfied on reasonable grounds that the amount of force used to effect the complainant’s arrest by the SO fell within the limits prescribed by law and as a result, no charges will issue.

Date: July 24, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit