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 serious injury a 14-year-old male (the “Complainant”) suffered.

Notification of the SIU

On April 15, 2021, at 1:24 p.m., the Niagara Regional Police Service (NRPS) notified the SIU of the Complainant’s injury. According to the NRPS, on April 5, 2021, at about 2:40 p.m., the Complainant was detained and released by two NRPS officers. The Complainant felt a sharp pain in his right hand at the time, but took no action to get his hand examined.

On April 15, 2021, at 7:30 a.m., the Complainant went to the Greater Niagara Hospital and was diagnosed with fractured fingers. The Complainant and his mother then went to the police station to make a complaint.

Police involvement with the injury was unclear at the time of notification.

The Team

Date and time team dispatched: 04/15/2021 at 2:33 p.m.

Date and time SIU arrived on scene: 04/15/2021 at 5:00 p.m.

Number of SIU Investigators assigned: 4

The Scene

The incident is reported to have occurred in and around the A.J. McKinley Park, Niagara Falls.

Video/Audio/Photographic Evidence [1]

NRPS Communications Audio Recordings

The recordings consisted of two 911 calls with the first being made from a store by a man calling on behalf of an agitated CW #3, who had just experienced acts of mischief by the Complainant and his friend. He did not witness the event; he merely called the police on behalf of CW #3, asking them to attend.

The second 911 call was from CW #2 alerting the police that his store had been robbed by two people. He then said that some property including his computer was damaged. CW #2 reported that CW #3 knew the Complainant and his friend, and that they had left.

The remainder of the audio recording was limited to the police dispatcher dispatching the SO to the store.

Closed-circuit Television (CCTV) Footage from the Store

The date and time were displayed on the video monitor as April 5, 2021 at 12:59 p.m.

Two persons approached the store. The first male [now known to be the Complainant] was wearing a dark top, with the hood up and around his head, and a face mask. He was carrying a water bottle in his right hand.

The second male [now known to be the Complainant’s friend] was also wearing a top with the hood up and over his head. He was carrying what was consistent with a Coke bottle in his right hand.

Neither the Complainant’s nor his friend’s face was visible.

The Complainant opened the door and stepped just inside the store. CW #3 was standing behind the cashier’s desk. The Complainant’s friend stepped inside, behind, and to the right of the Complainant. The Complainant forcefully threw the water bottle across the store toward the cash area. The water bottle struck two monitors sitting on the counter to the right of CW #3, knocking one into the other, which fell to the floor and knocked a calculator onto a lower counter. The Complainant then grabbed a display stand directly in front of the door and pulled the stand over onto the floor.

The Complainant’s friend then threw the Coke bottle, although less forcefully than the Complainant had thrown his bottle. The Coke bottle struck something (perhaps another monitor) just above the camera behind CW #3 over her shoulder.

The Complainant and his friend both stepped out of the store and fled quickly on foot and out of the focal range of the camera. They had been inside the store for four or five seconds. CW #3 picked up the telephone.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from NRPS between April 22, 2021 and August 12, 2021:

• Notes - SO;
• Notes - WO#1;
• Notes - WO #2;
• Notes - WO #3;
• Computer-aided Dispatch (CAD) Report;
• CAD Summary;
• Communication recordings;
• Crown Brief;
• General Occurrence including scenes of crime officer photographs;
• Policy- Use of Force (Handcuffing);
• Policy- Young Persons; and
• Policy- Powers of Arrest.

Materials Obtained from Other Sources

The SIU received the following records from other sources:

• Medical records of the Complainant;
• Photographs of the Complainant made by CW #1;
• CCTV from the store;
• Photographs from the store;
• Photograph of the Complainant’s hands dated April 5, 2021; and
• Photograph of the Complainant dated April 15, 2021.

 

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and the SO.

In the early afternoon of April 5, 2021, the SO located the Complainant playing basketball at the A.J. McKinley Park and placed him under arrest. The officer had moments earlier been at the premises of a store, a short distance from the park, investigating an alleged assault and mischief. An employee of the store behind the counter had bottles of water and Coke thrown in her direction by two young males. The Complainant was one of those males.

The SO handcuffed the Complainant, placed him and his friend (the other male from the incident in the store) in his cruiser, and drove them to the Complainant’s residence. Greeted by the Complainant’s mother – CW #1 - at the doorway, the SO explained what had occurred, and released the Complainant into her custody. No charges were laid.

Following his release, the Complainant told his mother that his right hand had been injured by the police officer when he applied the handcuffs.

On April 15, 2021, the Complainant attended hospital with his mother and was diagnosed with a fractured right hand.

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,

On April 15, 2021, the Complainant was diagnosed with a serious injury. That same day, in the company of his mother, the Complainant attended at the police station and reported that the injury was incurred in the course of the Complainant’s arrest by a NRPS officer on April 5, 2021. The SIU initiated an investigation and identified the arresting officer – the SO – as the subject official. 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 arrest and 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. The Complainant was caught on camera forcefully throwing a water bottle in the direction of the store cashier, damaging property in the process. He was clearly subject to arrest for assault and mischief.

While the evidence is discrepant as to the nature and extent of the force used by the SO in arresting the Complainant, it does not reasonably establish that the officer used excessive force. At its highest, or most incriminating, there is a version of events proffered in the evidence that the SO grabbed the Complainant’s hands behind his back and placed them in handcuffs in an “aggressive manner”. In my view, this evidence does not rise, in and of itself, to the level of a criminal assault on the part of the officer.

As for the SO, the officer says that the arrest and handcuffing of the Complainant was uneventful; no force was brought to bear other than what would have been necessary to take hold of the Complainant’s arms and hands, and affix them in handcuffs. He denies being heavy-handed or aggressive in his treatment of the Complainant.

For the foregoing reasons, whether the Complainant’s right hand was somehow fractured by the SO in the course of the Complainant’s arrest, there are no reasonable grounds to believe that the officer conducted himself other than lawfully throughout their engagement. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: November 8, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit