Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the discharge of a firearm at a 40-year-old man (the “Complainant”).

Notification of the SIU

On April 16, 2021, the Niagara Regional Police Service (NRPS) notified the SIU of a police-firearm discharge at a person incident in Niagara Falls.

The NRPS reported that on April 16, 2021, the NRPS Emergency Task Unit (ETU) responded to a neighbour dispute call, in which the Complainant had barricaded himself in his apartment. The NRPS obtained a Feeney warrant [1] and, on April 16, 2021, at 10:44 a.m., entered the Complainant’s apartment. An Anti-riot Weapon ENfield (ARWEN) was discharged twice and one projectile struck the Complainant, who was subsequently arrested.

The Team

Date and time team dispatched: 04/19/2021 at 11:07 a.m.

Date and time SIU arrived on scene: 04/20/2021 at 9:39 a.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

40-year-old male interviewed, medical records received and reviewed

The Complainant was interviewed on April 20, 2021.

Subject Officials

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

The subject official was interviewed on April 30, 2021.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed

The witness officials were interviewed on April 22, 2021.

The Scene

This incident occurred at the rear of a building on River Road in Niagara Falls. The scene was not examined or photographed.

Physical Evidence

Figure 1 - The SO's ARWEN.

Video/Audio/Photographic Evidence [2]

Police Radio Communications

At 12:38:42 a.m. on April 16, 2021, the communications centre dispatched two police officers to a property damage call at an address on River Road in Niagara Falls. A man had said the Complainant slashed his car tires again. He was [a positive hit] for robbery, threats, prohibited firearms possession, prohibited weapon, and not to possess any firearms. The man was going to be waiting in his vehicle in the driveway because he could not drive away as the tires were slashed. The suspect was inside the address.

An officer reported that the male was inside his apartment and the officers were locked out. The officer asked whether the male was flagged for anything, such a mental health issues. The communications centre responded, “Negative, [violent] on CPIC and no hazards, one previous Mental Health Act call back in January.” An officer indicated that two officers were standing in the hallway, and CIB [Criminal Investigation Branch] was working on an entry warrant.

At 8:32 a.m., the communications centre broadcast that there were two officers staying in the hallway, and CIB was working on an entry warrant.

An officer radioed a request for the attendance of EMS to the address on River Road that ETU was at for a conducted energy weapon (CEW) deployment. The officer asked that the cells be notified that they were coming in with a male from River Road who was extremely agitated, and had probes that were still in. The officer asked that EMS be contacted and directed to the cells at headquarters.

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the NRPS:

• Notes of WOs;
• Computer-assisted Dispatch Summary;
• Copy of Feeney warrant;
• Training Summary-the SO;
• Versadex Report;
• NRPS Policy – Use of Force; and
• NRPS Communications Recordings.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:

• Niagara EMS – Ambulance Call Report.

The material events in question are clear on the evidence gathered by the SIU, which included interviews with the Complainant and the SO, and may be briefly summarized.

At about 12:20 a.m. of April 16, 2021, a man called police to report that the Complainant had slashed his tires and threatened him with death.

Uniform officers responded to the scene. They sought to arrest the Complainant but were unable to do so. The Complainant had locked himself in a room and was refusing to come out. It was decided that officers would remain by the Complainant’s doorway, containing the scene, while the police sought a Feeney warrant. [3]

At about 8:00 a.m., a tactical team of officers, led by the SO, were enlisted to execute the Feeney warrant, which had been obtained by that time. In addition to the SO, the team consisted of WO #1, WO #2 and WO #3. The officers arrived at a staging area in the vicinity of the scene at about 9:30 a.m. They were briefed on the morning’s events, reviewed the warrant, and developed a plan for entry into the Complainant’s room. WO #1 was to be the first officer in a stack formation outside the unit charged with breaching the door, if necessary. Behind him were WO #2, the SO and WO #3 armed with a CEW, ARWEN and firearm, respectively, at the ready.

The team arrived at the building shortly after 10:30 a.m. and made their way to the second floor. Just prior to entry, WO #4 tried calling the Complainant inside the unit to arrange a peaceful surrender, but was unable to reach him. Finding the door locked, WO #1 struck it with the ram, loudly announcing the presence of the police as he did so. The door opened partially - a piece of furniture behind the door prevented it opening all the way. The time was about 10:45 a.m.

The Complainant was woken from his sleep at the sound of the door being forced open. He rose to his feet, rushed to the door, and slammed it shut again. The door was struck again with the ram and, this time, opened more fully. The Complainant retreated a distance into the room and adopted a fighting stance at the officers as they yelled at him to get to the floor. The Complainant hurled profanity at the officers, told them they were not welcome in his home, and said that what they were doing was racist.

When the Complainant failed to get to the floor as directed, the SO fired his ARWEN once. The round struck the Complainant’s upper body. At about the same time, WO #2 discharged his CEW, temporarily immobilizing the Complainant. The Complainant went to the floor. However, once the CEW cycle ended, he started swinging his arms in the direction of the officers. This prompted the discharge of a further ARWEN round by the SO, which may or may not have struck the Complainant, and another CEW deployment by WO #2.

Following the second ARWEN and CEW discharges, the officers moved in to physically engage with the Complainant and he was handcuffed in short order without incident.

Aside from bruising, the Complainant was not seriously injured in the incident.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

The Complainant was struck by an ARWEN discharge in the course of his arrest on April 16, 2021 in Niagara Falls. The officer who discharged the weapon – the SO – was identified as the subject official for purposes of the ensuing SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the use of the ARWEN in the Complainant’s arrest.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. I am satisfied that the tactical team, including the SO, were proceeding to lawfully arrest the Complainant when the ARWEN was used. In effect at the time was a warrant authorizing their forcible entry into the unit to take the Complainant into custody.

I am further satisfied that the decision to deploy a tactical team, and the conduct of that team, were reasonable in the circumstances. Given the information at their disposal to the effect that the Complainant had slashed a neighbour’s tires and threatened to kill him, there prevailed a legitimate concern that the Complainant might have access to weapons inside his apartment, and a willingness and ability to use them. Tactical officers train specifically for incidents involving weapons. Once at the Complainant’s apartment door, the officers endeavoured to have the Complainant surrender peacefully but were unable to reach him inside the apartment. Thereafter, having forced open the door, the Complainant reacted angrily to the officers’ presence and adopted an aggressive posture toward them. In the circumstances, still concerned that the Complainant was armed, I am unable to fault either of the SO and WO #2 when they deployed their less lethal weapons attempting to neutralize him at a distance. This followed requests made that the Complainant drop to the floor, and the Complainant’s failure to do so. As the Complainant was only temporarily immobilized by the initial ARWEN and CEW discharges, and continued to lash out at the officers, I am unable to reasonably conclude that a further discharge of their weapons by each officer was excessive. The officers were operating in a confined space in a dynamic situation involving a violent person whom they legitimately feared could be armed. On this record, and mindful of the common law principle that officers embroiled in dangerous situation are not expected to measure their responsive force with precision – what is required is a reasonable response, not necessarily an exacting one, I am satisfied that the force used by the officers did not run afoul of the law.

For the foregoing reasons, there are no reasonable grounds to believe that the SO conducted himself other than lawfully throughout his engagement with the Complainant. Accordingly, there is no basis for proceeding with charges in this case.


Date: August 13, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit