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 a serious injury sustained by a 25-year-old woman (the “Complainant”).

Notification of the SIU

On May 13, 2021, at 10:10 p.m., the Niagara Regional Police Service (NRPS) reported the following.

On May 8, 2021, at 11:45 p.m., NRPS officers responded to a residence in Niagara Falls regarding an assault. At 12:04 a.m. on May 9, 2021, they arrested the Complainant for assault. The Complainant was transported to the police station and, en route, banged her head on the cruiser partition. When they arrived at the station, the Complainant was uncooperative and fought with police officers as they put her into a cell. She was subsequently released on charges of assault, and assault with intent to resist arrest.

In the evening of May 13, 2021, the Complainant’s father called the duty staff sergeant to report that his daughter suffered a perforated eardrum and a concussion as a result of being arrested.

The Team

Date and time team dispatched: 05/14/2021 at 7:17 a.m.

Date and time SIU arrived on scene: 05/17/2021 at 12:25 p.m.

Number of SIU Investigators assigned: 4

Affected Person (aka “Complainant”):

25-year-old female interviewed, medical records obtained and reviewed

The Complainant was interviewed on May 17, 2021.

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

The civilian witnesses were interviewed between May 18, 2021 and June 1, 2021.

Subject Officials

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

The subject official was interviewed on June 9, 2021.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed

The witness officials were interviewed on May 31, 2021.

The Scene

The incident under investigation occurred in the sally port of the NRPS 2 District police station.

Video/Audio/Photographic Evidence [1]

The SIU obtained audio, video and photographic records of relevance, as set out below.

Police Communication Recordings

On June 1, 2021, the NRPS provided communication recordings for the period of May 8, 2021, 11:47 p.m. until May 9, 2021, 12:20 a.m. The following is a summary of the information contained in the recordings.

The NRPS Communication Centre dispatched officers to assist an ambulance at a residence in Niagara Falls, which was there for a female who had been assaulted by her granddaughter, and had facial trauma and bite marks to the right hand. The Complainant’s details were provided.

WO #2 indicated he had a person in custody who was violent towards police and smashing against the wall in the back of the police cruiser.

Police Custody Video

On May 25, 2021, the NRPS provided video of the Complainant’s arrival and stay at the police station. The video was date and time stamped May 9, 2021 commencing at 12:45 a.m. The sally port at NRPS 2 District had four cameras mounted on the ceiling (one in each corner) and pointed down. There was no audio recorded. The camera angle that best captured the interaction between the Complainant and the officers was the South West camera. What follows is a summary of what was captured on video.

12:45 a.m. – 12:47 a.m., WO #1 arrived in the sally port area. The SO and SEW #1 walked out of the vestibule area and to the police vehicle. The SO partially opened the passenger side rear door of WO #1’s police vehicle. SEW #1 stood a metre or so to the left of the SO, near the rear of the police vehicle. WO #1 stood further back. The SO kept his hand on the exterior door handle as he talked to the Complainant. The SO closed the door and spoke with SEW #1 and WO #1.

12:48 a.m., the SO opened the same vehicle door, slightly, and talked to the Complainant again. The SO then slowly opened the vehicle door a little wider.

12:48:53 a.m., the SO quickly swung the door fully open, reached inside the vehicle (there had been no physical contact with the Complainant prior to this point) and swiftly pulled the Complainant out of the vehicle. The SO had a grasp of the Complainant’s right arm. He used his right hand to grasp near the Complainant’s wrist and his left hand near or just above her right elbow. The Complainant went to her knees, and then face down onto the ground with the SO still holding her right arm. The SO kneeled to the right of the Complainant with his left knee on the Complainant’s lower back. SEW #1 approached the Complainant’s left side. He knelt and immediately delivered one right knee strike to the Complainant’s left torso area. WO #1 approached the Complainant’s legs and feet, and kneeled on them, pinning the Complainant’s feet and legs using her own body weight.

12:50 a.m., the SO and SEW #1 handcuffed the Complainant with her hands behind her back. The Complainant was still for about 30 seconds and then started to squirm. SEW #1 put a face mask on the Complainant. The SO remained kneeling with his hands on the Complainant’s back.

12:51 a.m. - 12:52 a.m., the Complainant attempted to move her legs, but WO #1 seemed to have enough pressure on the Complainant’s legs to control them. SEW #2 came out into the sally port, approached, and stood by without getting involved physically.

SEW #1 got up and went to the vestibule. The Complainant rolled onto her right side and brought her knees up closer to her chest. The SO and WO #1 rolled the Complainant back onto her stomach. SEW #1 returned and he and SEW #2 cut off the string from the Complainant’s clothing near her head. A few seconds later, the Complainant squirmed and rolled to her right side. Her legs broke free of WO #1.

12:52:52 a.m., the Complainant kicked out with her left leg at SEW #1, either making contact or coming very close to his ankles.

12:52:54 a.m., the Complainant, lying on her right side, kicked backwards several times at WO #1.

12:52:55 a.m., from a standing position, SEW #1 delivered one kick with his right foot to the Complainant’s stomach area. At the same time, the SO, as he attempted to hold onto the Complainant’s hands behind her back with his left hand, appeared to deliver one right hand strike to the left side of the Complainant’s head. The strike did not look forceful. WO #1 regained control of the Complainant’s legs. The Complainant squirmed.

12:53:20 a.m., SEW #1 delivered three closed-handed strikes with his right hand to the Complainant’s torso. It was difficult to detect, but at the same time the SO appeared to have delivered a second hand strike to the area of the Complainant’s head. Again, the strike was not forceful. The police officers rolled the Complainant onto her stomach. The SO moved to the Complainant’s left side and SEW #1 moved around to her right side and appeared to search the Complainant.

12:55 a.m., WO #1 stood up off the Complainant’s legs, and the SO stood up and stepped back. SEW #1 picked up the Complainant by her right arm and SEW #2 picked up the Complainant by her left arm, and they walked the Complainant to the vestibule area, through the booking area and directly to cell # 41. The SO and WO #1 followed.

12:56 a.m., the Complainant was unhandcuffed and left in the cell. She paced around, banged on the glass, and cried.

Photographs of the Complainant

On May 18, 2021, the Complainant provided the SIU photographs of her injuries.

Materials Obtained from Police Service

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

• Call Details;
• Communication recordings;
• Custody video;
• Notes of WOs and SEWs;
• NRPS Cell Records for the Complainant;
• NRPS General Occurrence;
• NRPS Policy-Use of Force;
• NRPS Policy-Powers of Arrest;
• NRPS Scene of Crime Officer Photos-Victim and Cruiser;
• NRPS Training Records-Use of Force Recertification; and
• Unit history.

Materials Obtained from Other Sources

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

• Complainant Police Incident Notes;
• Text Message from Complainant regarding doctor;
• Photos of Injury from the Complainant;
• Medical Records; and
• Niagara EMS-Incident Reports.

The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant and the SO, as well as interviews with several other officers and civilians who witnessed the incident in parts. The investigation was also assisted by video recordings of the Complainant’s time in custody once at the police station.

At about 11:45 p.m. of May 8, 2021, NRPS dispatched officers to attend a residence in Niagara Falls to assist paramedics at the location regarding an assault on CW #2.

WO #1 and WO #2 arrived at the residence at about midnight. They spoke to CW #2, took stock of her injuries and the damage done to the home, and decided to arrest the Complainant for assault. They found the Complainant in her bedroom and handcuffed her without incident.

The Complainant’s combativeness returned, however, as she was being escorted down the stairs of the home to the main floor. She lunged at the walls, attempted to hurl herself downward, and sat on the floor refusing to get up. Once outside and by WO #1’s cruiser, the Complainant kicked the officer in the left knee. In time, the officers managed to place the Complainant in the rear passenger side seat of the cruiser and close the door, after which she began to bang her head on the partitions that separated the two rear seats and the front from the back, and the door window. Her behaviour inside the vehicle was conveyed to the police communications centre by WO #2.

WO #1 left the scene with the Complainant at about 12:33 a.m. and arrived at the police station sally port at approximately 12:40 a.m.

Pursuant to COVID-19 protocols in effect, the SO made his way to the sally port to screen the Complainant. He was in the company of SEW #1. Having received prior notice from the communications centre of the Complainant’s behaviour at the scene, the SO only partially opened the rear passenger side door to speak with the prisoner. The Complainant refused to calm and answer his questions. She repeatedly swore at him and failed to comply with his directions. As the Complainant had managed to remove her left hand from the handcuffs, the SO explained that they would have to be refastened before she would be allowed to exit the cruiser. The Complainant chose not to extend her arms in his direction so that the handcuffs could be reapplied.

After a period, the SO advised WO #1 and SEW #1, standing in the vicinity, that he was going to quickly pull the Complainant out of the cruiser and onto the ground, where they would restrain her and reapply the handcuffs. When the Complainant again refused to cooperate with the SO, the officer grabbed hold of her right arm and pulled her out of the vehicle, positioning her on the floor beside the rear passenger door of the cruiser.

With the Complainant in a prone position, WO #1 quickly placed her bodyweight on her legs to keep them from kicking. SEW #1 and the SO, on the Complainant’s left and right sides, respectively, were able to properly handcuff her arms behind her back. The Complainant continued to struggle against the officers’ efforts. At one point, she managed to free her legs from WO #1’s control and kicked out in her direction several times. The SO, who was still on the Complainant’s right side by her head, reacted by striking the left side of her face twice in quick succession. The Complainant was subdued but only for a brief time. She managed to once more lash out with her legs in WO #1’s direction while attempting to bite SEW #1. Again, the SO responded by striking the left side of the Complainant’s face, this time – once. At about the same time, SEW #1 delivered three punches to the Complainant’s upper thigh area.

Following the last of SEW #1’s blows, the Complainant was assisted to her feet and escorted directly to a cell, where she was lodged. Owing to her erratic behaviour, the SO decided to skip the usual booking procedure that preceded entry into the cells. The Complainant was released in the afternoon of May 9, 2021.

The Complainant sought medical treatment on May 10, 11 and 12, 2021, and was diagnosed with a perforated left eardrum with an associated deficit in her aural acuity.

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 suffered a serious injury in and around the time of her arrest by NRPS officers on May 8, 2021. The officer in charge of the cells in which the Complainant was lodged after being taken into custody – the SO – was identified as a subject official for purposes of the 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 Complainant’s injury.

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 accept that the Complainant was lawfully in police custody at all times. WO #1 and WO #2 had ample grounds to reasonably conclude that she had assaulted CW #2. Once under lawful arrest, the officers were entitled to ensure that she was duly restrained and did not present a risk of harm to herself or others.

I am also satisfied that the force used by the SO did not exceed the range of what was reasonably necessary in the circumstances to maintain safe custody over the Complainant. The SO had received prior word of the Complainant’s belligerence and hostility at the scene of the arrest. That picture of defiance would only have been reaffirmed as he dealt with her personally at the station. Once on the sally port ground, the SO was satisfied to meet the Complainant’s exertions against what the officers were doing with his own countervailing manpower. It was only when the Complainant freed her legs and kicked out at WO #1, striking the officer, that the SO responded with strikes of his own – two open-handed impacts to the head. As the officer was not in a position to deal directly with her legs at the time, I am satisfied that the strikes he delivered were reasonably intended to, and in fact succeeded in, quickly deterring any further aggression by the Complainant in that moment. The same, I am satisfied, may be said of the third strike delivered by the SO when following a brief period of control the Complainant was again able to lash out with her legs. In both cases, as the video confirms, the blows struck by the SO were delivered at far less than full power. No further force was used by the officer.

In the result, while I accept that the Complainant’s injury might well have been inflicted by one or more of the SO’s strikes, [2] I am unable to reasonably conclude on the aforementioned-record that the officer’s force fell afoul of the latitude prescribed by the criminal law. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed. [3]


Date: September 8, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit