SIU Director’s Report - Case # 21-OCI-406
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Contents:
Mandate of the SIU
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.
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.
Information Restrictions
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:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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.Mandate Engaged
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 56-year-old man (the “Complainant”).
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 56-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On November 29, 2021, at 6:20 p.m., the Niagara Regional Police Service (NRPS) notified the SIU of an injury to the Complainant. Reportedly, on November 29, 2021, NRPS police officers had responded to a disturbance call at an address on Palmer Avenue, Niagara Falls. The Complainant had left the residence by the time police officers arrived.
At 12:57 p.m., three officers located the Complainant around Victoria Avenue and Highway 420. A struggle ensued and two of the police officers deployed their Conducted Energy Weapons (CEWs).
At 12:58 p.m., an ambulance was called. Paramedics removed the probes from the Complainant and left the scene.
The Complainant subsequently complained of a sore jaw and police officers transported him to the Greater Niagara General Hospital (GNGH). The Complainant was diagnosed with a fractured jawbone.
The scene was being held and the CEWs had been secured.
The Team
Date and time team dispatched: 11/29/2021 at 6:55 p.m. Date and time SIU arrived on scene: 11/29/2021 at 8:58 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
56-year-old male; unable to locateSubject Officials
SO #1 Declined interview, as is the subject official’s legal right. Notes received and reviewedSO #2 Declined interview and to provide notes, as is the subject official’s legal right
Witness Officials
WO Interviewed The witness official was interviewed on December 7, 2021.
Evidence
The Scene
On November 29, 2021, at 8:58 p.m., a SIU forensic investigator attended the scene. The scene was examined, documented, and photographed.
Physical evidence related to the deployment of CEWs was located and seized.
SIU investigators attended the scene, canvassed, and located closed-circuit television (CCTV) footage from the area.
The scene, located in the area of Victoria Avenue and Highway 420, was primarily a commercial area with the on-ramp roadways to enter Highway 420.
Physical Evidence
At 8:58 p.m., a SIU forensic investigator arrived at Victoria Avenue and Highway 420 entrance ramp, and met with a NRPS police officer assigned to guard the scene. The scene had been properly secured and guarded. The entrance ramp off Victoria Avenue travelled primarily in an easterly direction from Victoria Avenue and curved to the right on a descending grade. At the south side of the ramp were a series of footwear impressions in the snow that began near the top of the ramp and continued east along the grassy median covered in snow. At the start of the area where the footwear impressions began was evidence of CEW deployment that included blast doors and Anti-Felon Identification Disks (AFIDs). Approximately 12 metres where the footwear impressions ended was an area where many footwear impressions were condensed, and the snow disturbed, suggesting high activity. To the left of this area was an impression in the snow in the shape suggestive of a cane. A single CEW probe was also located embedded in the wooden retaining wall nearby.
Figure 1 - Impressions in the snow suggestive of footwear and a cane.
Figure 2 - A CEW probe lodged in the nearby wooden retaining wall.
Photographs of the scene were completed, and the following exhibits collected.
1 - CEW blast doors X4
2 - CEW AFIDs in area X3
3 - CEW probe.
Figure 3 - Evidence markers indicating the location of an AFID tag and CEW blast door.
At NRPS headquarters, access to the police vehicle used to transport the Complainant from the scene was provided. A 2020 Ford Explorer displaying graphics adopted by the NRPS was examined. Photographs were taken of the rear driver’s side passenger seat area showing a cane and a property bag containing personal effects. The vehicle was released to NRPS.
Figure 4 - A cane located in the rear passenger-side of the NRPS Ford Explorer.
SIU received the following CEWs and related equipment from the police service.
- CEW issued to SO #1
- CEW issued to SO #2
- CEW issued to the WO
Figure 5 - One of the CEWs collected.
On December 2, 2021, a SIU forensic investigator examined and processed all evidence collected. During examination it was noted that the AFIDs collected from the scene matched serial numbers of two of the cartridges collected.
Forensic Evidence
CEW Data
On December 7, 2021, a report was submitted to interpret offline reports of three CEWs involved in this incident on November 29, 2021, at about 12:57 p.m.
Offline Report of CEW issued to SO #1
|
12:57:31 p.m. 12:57:33 p.m. 12:57:35 p.m. 12:57:40 p.m. 12:57:43 p.m. 12:58:47 p.m. |
Event Armed Trigger Safe Armed Trigger Safe |
Duration 2 seconds
9 seconds |
|
Time 12:47:57 p.m. 12:57:44 p.m. 12:57:46 p.m. 12:57:51 p.m. 12:57:57 p.m. 12:58:14 p.m. |
Event Armed Safe Armed Trigger Trigger Safe |
Duration
5 seconds 5 seconds |
The offline report for this weapon indicated no activity during this event.
Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained audio, video and/or photographic records of relevance, as set out below.CCTV Footage
On November 30, 2021, the SIU obtained security camera video footage from a property located at an address on Victoria Avenue, Niagara Falls. The data obtained from a CCTV camera facing east depicted the intersection of Victoria Avenue and Highway 420.At 12:56:22 p.m., three marked police vehicles travelling south on Victoria Avenue stopped to box-in a man [now known to be the Complainant], who was walking south on the sidewalk on the east side of Victoria Avenue. The Complainant was confronted by SO #1. The Complainant ran away from the officer and began running eastbound on the Highway 420 on-ramp.
At 12:56:49 p.m., SO #1 caught up to the Complainant just east of the first light post on the southbound Highway 420 ramp. SO #1 grabbed the Complainant on the left side. The Complainant was holding a cane. The Complainant tripped on the southside curb falling to the ground. The Complainant, while on his knees, swung his cane at SO #1. The Complainant stood up and brandished his cane at SO #1. SO #2 and the WO ran to the area.
At 12:57:01 p.m., SO #1 fired his CEW at the Complainant. The CEW had little effect and the Complainant started walking east down the on-ramp. SO #2 discharged his CEW striking the Complainant with no effect. The Complainant continued walking east holding his cane in his right hand out of the camera field of view. SO #2 followed. The WO spoke on his radio.
At 12:59:27 p.m., the footage picked up SO #1 and SO #2 walking the Complainant to SO #1’s police vehicle. The Complainant was handcuffed behind his back. The WO walked behind with the Complainant’s cane. The Complainant was searched beside the passenger rear door of SO #1’s police vehicle and then placed inside the back passenger seat.
SO #1 drove away southbound on Victoria Avenue.
911 Call
NRPS received a 911 call from a residence located at an address on Palmer Avenue. There was no response and only a dial tone was heard. NRPS communications staff called the number back. The caller answered, stating they had a person, indicating the Complainant’s first name, threatening people. He had a cane in his hand, and people were keeping their distance from him. The caller provided the name of the Complainant and described him as around 65 years of age, Caucasian, 150 centimetres tall, wearing a jacket and jeans. The Complainant might have left the property.Radio Communications
SO #1 and SO #2 were dispatched to the residence on Palmer Avenue for the Complainant, who was on probation and trying to hit people. The WO advised that he would also attend.Dispatch advised the police officers that the Complainant hated police, carried weapons and was unpredictable. The Complainant also had a criminal record for assault with a weapon and was bound by conditions related to multiple criminal convictions.
SO #1 advised dispatch that the Complainant had taken off on foot and he had reasonable and probable grounds for an uttering threats charge. An unknown police officer advised dispatch that the Complainant was on Victoria Avenue. SO #1 advised dispatch he was with the Complainant. The WO advised dispatch that the Complainant was with SO #1. The WO stated, “Male swinging a cane, had to be tasered.”
The WO advised dispatch that he required an ambulance to remove the CEW prongs only, and that the Complainant was in custody. SO #1 requested that a sergeant attend. He then advised dispatch he was taking the Complainant to the hospital.
The WO advised that an ambulance had attended, and the scene would need to be held. A sergeant advised dispatch that she would attend the scene.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the NRPS:- Event Details Report;
- General Occurrence Hardcopy;
- Involved Officer List;
- Communications Recordings; and
- Notes of the WO and SO #1.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Medical Records of the Complainant – Niagara Health Greater Niagara General; and
- Video footage from Victoria Avenue.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included an interview with an officer who was present at the time of the events in question and a video recording from a security camera that captured the incident in part. As was their legal right, neither subject official chose to interview with the SIU. SO #1 did authorize the release of his notes.
In the afternoon of November 29, 2021, police were dispatched to an address on Palmer Avenue, Niagara Falls, following a 911 call from the location. The caller indicated that a resident of the building - the Complainant - had threatened other people.
SO #1 arrived at the address, and spoke with women who described the Complainant’s behaviour and expressed concern for their personal safety. The officer decided to arrest the Complainant for threatening, went to his room to take him into custody, and learned that he had left the property when police were called.
The WO heard of SO #1’s intention to arrest the Complainant over the radio and, as he was in the vicinity, decided to search the area to see if he could find him. The officer located the Complainant walking south on the east side of Victoria Avenue in the area of Highway 420. He broadcasted what he had seen and waited for SO #1 to arrive.
Approaching south on Victoria Avenue, SO #1 maneuvered his cruiser across the northbound lane just north of the eastbound on-ramp to the highway, the front of his vehicle on the east sidewalk blocking the Complainant’s path. The Complainant approached the cruiser. He was carrying a metal cane in his right hand. SO #1 exited his cruiser and advised the Complainant he was under arrest. The Complainant objected to his arrest, swore at the officer and ran southward around the rear of the police vehicle towards the on-ramp. By this time, the WO and SO #2, the latter having positioned his cruiser just north of the Complainant’s location shortly after SO #1 had arrived, had also exited their vehicles.
SO #1 ran after the Complainant and grabbed him from behind a few metres down the on-ramp on its south side. The Complainant fell but quickly rose to his knees and then to his feet, wielding the cane in the officer’s direction. From a distance of two to three metres, SO #1 discharged his CEW at the Complainant. SO #2, at about the same distance and while standing to SO #1’s right, also discharged his CEW. Neither deployment was effective. The Complainant walked eastward down the ramp, the cane still in his right hand in a raised position, as the officers tracked him on foot.
Within seconds, SO #1 and SO #2 each discharged their CEWs again at the Complainant. This time, the Complainant was incapacitated and fell to the ground around the snowy southern embankment of the on-ramp. The officers engaged the Complainant physically on the ground and tried to take control of his arms. The Complainant resisted and refused to release his arms. Following a punch to the right side of the face by SO #1, the officers were able to overpower the Complainant, take hold of his arms, and handcuff them behind his back.
The Complainant was taken from the scene in ambulance to hospital, and diagnosed with a fractured right jaw.
In the afternoon of November 29, 2021, police were dispatched to an address on Palmer Avenue, Niagara Falls, following a 911 call from the location. The caller indicated that a resident of the building - the Complainant - had threatened other people.
SO #1 arrived at the address, and spoke with women who described the Complainant’s behaviour and expressed concern for their personal safety. The officer decided to arrest the Complainant for threatening, went to his room to take him into custody, and learned that he had left the property when police were called.
The WO heard of SO #1’s intention to arrest the Complainant over the radio and, as he was in the vicinity, decided to search the area to see if he could find him. The officer located the Complainant walking south on the east side of Victoria Avenue in the area of Highway 420. He broadcasted what he had seen and waited for SO #1 to arrive.
Approaching south on Victoria Avenue, SO #1 maneuvered his cruiser across the northbound lane just north of the eastbound on-ramp to the highway, the front of his vehicle on the east sidewalk blocking the Complainant’s path. The Complainant approached the cruiser. He was carrying a metal cane in his right hand. SO #1 exited his cruiser and advised the Complainant he was under arrest. The Complainant objected to his arrest, swore at the officer and ran southward around the rear of the police vehicle towards the on-ramp. By this time, the WO and SO #2, the latter having positioned his cruiser just north of the Complainant’s location shortly after SO #1 had arrived, had also exited their vehicles.
SO #1 ran after the Complainant and grabbed him from behind a few metres down the on-ramp on its south side. The Complainant fell but quickly rose to his knees and then to his feet, wielding the cane in the officer’s direction. From a distance of two to three metres, SO #1 discharged his CEW at the Complainant. SO #2, at about the same distance and while standing to SO #1’s right, also discharged his CEW. Neither deployment was effective. The Complainant walked eastward down the ramp, the cane still in his right hand in a raised position, as the officers tracked him on foot.
Within seconds, SO #1 and SO #2 each discharged their CEWs again at the Complainant. This time, the Complainant was incapacitated and fell to the ground around the snowy southern embankment of the on-ramp. The officers engaged the Complainant physically on the ground and tried to take control of his arms. The Complainant resisted and refused to release his arms. Following a punch to the right side of the face by SO #1, the officers were able to overpower the Complainant, take hold of his arms, and handcuff them behind his back.
The Complainant was taken from the scene in ambulance to hospital, and diagnosed with a fractured right jaw.
Relevant Legislation
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.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by NRPS officers on November 29, 2021. The arresting officers – SO #1 and SO #2 – were identified as subject officials for purposes of the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official 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 authorized or required to do by law.
The decision to take the Complainant into custody was a lawful one. SO #1 had spoken to two women who recounted the threats that had been made against them by the Complainant.
The force used by SO #1 and SO #2 constituted reasonably necessary force. The grab from behind by SO #1, resulting in the Complainant’s fall to the ground, would appear a sensible act. The Complainant was running away from the officer onto a highway on-ramp and had made it clear he had no intention of complying with verbal commands that he stop. The CEW discharges at the top of the on-ramp were also commensurate to the situation at hand. The Complainant was brandishing a metal cane in the officers’ direction, clearly threatening them with a weapon and justifying a resort to a measure of force from a distance. The second series of CEW discharges were also reasonable. By this time, it had become even more imperative that the Complainant - still in possession of the cane - be taken into custody lest he reach live lanes of highway traffic. The Complainant physically resisted the officers’ efforts on the ground to take him into custody and was met by a single punch from SO #1. That punch, which worked to subdue the Complainant and facilitate his handcuffing, may be fairly characterized as a measured use of force in the circumstances.
For the foregoing reasons, though it may well be the case that the Complainant’s fractured jaw was incurred in the physical altercation that marked his arrest, there are no reasonable grounds to believe that it is attributable to any unlawful conduct on the part of the subject officials. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: March 23, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 authorized or required to do by law.
The decision to take the Complainant into custody was a lawful one. SO #1 had spoken to two women who recounted the threats that had been made against them by the Complainant.
The force used by SO #1 and SO #2 constituted reasonably necessary force. The grab from behind by SO #1, resulting in the Complainant’s fall to the ground, would appear a sensible act. The Complainant was running away from the officer onto a highway on-ramp and had made it clear he had no intention of complying with verbal commands that he stop. The CEW discharges at the top of the on-ramp were also commensurate to the situation at hand. The Complainant was brandishing a metal cane in the officers’ direction, clearly threatening them with a weapon and justifying a resort to a measure of force from a distance. The second series of CEW discharges were also reasonable. By this time, it had become even more imperative that the Complainant - still in possession of the cane - be taken into custody lest he reach live lanes of highway traffic. The Complainant physically resisted the officers’ efforts on the ground to take him into custody and was met by a single punch from SO #1. That punch, which worked to subdue the Complainant and facilitate his handcuffing, may be fairly characterized as a measured use of force in the circumstances.
For the foregoing reasons, though it may well be the case that the Complainant’s fractured jaw was incurred in the physical altercation that marked his arrest, there are no reasonable grounds to believe that it is attributable to any unlawful conduct on the part of the subject officials. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: March 23, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.