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 48-year-old man (the “Complainant”).

Notification of the SIU

On December 14, 2021, at 5:24 a.m., the Niagara Regional Police Service (NRPS) notified the SIU of the following information.

On December 13, 2021, at 9:30 p.m., the NRPS had attended the intersection of West Main Street and Niagara Street in the City of Welland for a hit and run motor vehicle collision (MVC). The driver of a pickup truck had failed to stop for a red light at the intersection and collided with the front end of a black sedan, causing the front bumper to be sheared off. The pickup truck fled and returned a short time later, at which point the driver got out, picked up the black bumper and placed into the rear bed portion of the truck before fleeing again.

The driver of the pickup truck was suspected to be impaired and identified as the Complainant, who was located shortly thereafter at his residence in Welland. NRPS officers Subject Official (SO) #1 and SO #2 attempted to arrest the Complainant and a struggle ensued, which resulted in a facial injury to the Complainant.

The Complainant was taken via Emergency Medical Services (EMS) to Niagara Health System (NHS) Welland County Hospital, where he was diagnosed with a fractured nose.

The Team

Date and time team dispatched: 12/14/2021 at 8:18 a.m.

Date and time SIU arrived on scene: 12/14/2021 at 9:30 a.m.

The Scene

The scene was an apartment located on Fitch Street, Welland. The dining and living room area were of open concept with the kitchen being separated by walls with two separate entrances.

SIU investigators attended and viewed the scene; however, it had been previously cleaned by the CW and processed by NRPS Scenes of Crime Officers.

There was nothing of evidentiary value to collect or inspect.

Video/Audio/Photographic Evidence [1]

Photographs from the CW

On December 14, 2021, at 10:40 a.m., SIU investigators received three photographic images from the CW. The photographs were taken on December 13, 2021, at 10:00 p.m., immediately after the arrest of the Complainant by NRPS officers. The first image depicted blood on a leather couch within a living room. The second image was of a bloodied towel. The third photograph revealed the Complainant as he sat in the rear of an ambulance - his hands were handcuffed behind his back, and his face and clothing showed blood from a wound to his nose.

Surveillance Footage

On December 15, 2021, at 3:00 p.m., the NRPS provided the SIU with video footage of the intersection located at West Main Street and Niagara Street in Welland. The three camera angles depicted the hit and run MVC and revealed a pickup truck as it travelled against a red traffic signal and struck a black Chevrolet Cruze vehicle travelling on a green traffic signal. The pickup truck did not stop.

The footage revealed that the pickup truck returned a short time later, and the driver took the black bumper and placed it in the rear bed portion of the pickup truck, prior to leaving again.

911 Call and Radio Transmissions

The NRPS provided the SIU with the 911 call and Computer-assisted Dispatch (CAD) reports on December 15, 2021, at 9:00 a.m. These items indicated that on December 13, 2021, at 9:30 p.m., NRPS received a 911 call reporting that a pickup truck had travelled through an intersection against a red traffic light and struck the front section of a black Chevrolet Cruze sedan as it proceeded on a green traffic light. The pickup truck did not stop and kept going.

At 9:33 p.m., the same pickup truck returned to the intersection, and the driver, the Complainant, got out, grabbed the front bumper of the black Chevrolet Cruze, and placed it into the rear bed portion of the pickup truck. He again left the scene.

At 10:00 p.m., SO #1 reported having the Complainant under arrest for ‘impaired driving’. At 10:07 p.m., EMS was summoned to the scene.

At 10:09 p.m., WO #2 and SO #2 advised they were departing the residence and heading to the scene of the hit and run MVC.

At 10:23 p.m., SOCO (Scenes of Crime Officer/s) arrived at the MVC and took photographic evidence.

At 10:26 p.m., SO #1 advised that the Complainant was being taken to NHS Welland County Hospital via EMS and that WO #1 would be accompanying him.

At 10:37 p.m., the pickup truck was towed to a secure compound.

At 3:42 a.m. (December 14, 2021), WO #1 advised that the Complainant was being released via a ‘Form 10’.

Materials Obtained from Police Service

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

• Occurrence Reports;
• Arrest Report;
• NRPS scene photos;
• CAD Report;
• 911 / Communication Recordings;
• Civilian Witness Statement – the CW;
• Narrative of SO #1 and WOs; and
• Notes of SO #2 and WOs.

Materials Obtained from Other Sources

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

• Medical records from NHS Welland County Hospital;
• Photographs of scene and injury to the Complainant, provided by the CW; and
• Video footage of intersection at West Main Street and Niagara Street, Welland.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, one of the two subject officials – SO #1, two other police officers who participated in the Complainant’s arrest, and a civilian eyewitness. As was his legal right, SO #2 chose not to interview with the SIU. He did authorize the release of his notes.

In the evening of December 13, 2021, SO #1 and SO #2 attended at the Complainant’s home on Fitch Street, Welland, to investigate a motor vehicle collision. A pickup truck belonging to the Complainant had failed to stop at a red light at the intersection of West Main Street and Niagara Street, Welland, striking another vehicle in the process. The truck fled the scene, returned a short time later – its driver exiting to collect the front bumper of the other vehicle involved in the collision – and then left again. The truck’s licence plate marker had been ascertained by witnesses at the scene, and it had come back to the Complainant.

The officers approached the apartment, knocked on the door, and were allowed inside by the CW. The CW called the Complainant and he agreed to exit the apartment with the officers to discuss the matter.

The Complainant’s truck was parked not far from his patio. He unlocked the door to the bed of the truck, which the officers suspected would contain the front bumper from the collision site – the bed was empty. The Complainant explained that his wife had earlier that day been involved in a minor accident, but denied that he himself had any involvement. As SO #1 turned to head back to the apartment to check his story with the CW, the Complainant travelled ahead of the officer toward the patio door.

SO #1 grabbed hold of the Complainant as he was entering the apartment from the patio door and told him he was under arrest. The Complainant objected to his arrest and resisted as SO #1, followed shortly by his partner, WO #1, and another pair of officers just arriving at the address – SO #2 and WO #2 – attempted to take him into custody. Following a brief physical altercation, the Complainant was handcuffed and led out of the apartment.

Paramedics attended at the scene and transported the Complainant to hospital, where he was diagnosed with a broken nose.

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 sustained a serious injury in the course of his arrest by NRPS officers on December 13, 2021. Two of the arresting officers – SO #1 and SO #2 – were identified as subject officials in 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 discharge 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 evidence establishes that the officers were within their rights in seeking to arrest the Complainant. They had reasonable grounds to believe that he had fled the scene of an accident and had been driving while impaired by alcohol. Witnesses at the scene of the collision had accurately described the Complainant and his truck, and SO #1 had detected the smell of alcohol from the Complainant and other indicia of impairment as they talked prior to the arrest.

I am further satisfied that the force used by the officers, including SO #1 and SO #2, was legally justified. On the weight of the evidence, this consisted of SO #1 tackling the Complainant onto his living room sofa, and then grappling with him, together with the other officers, to secure his arms and handcuff them behind his back. It is clear that the Complainant struggled against the officers’ efforts to effect his arrest. He had attempted to run back into his apartment to avoid apprehension and, once through the patio door, fought with the officers as they physically engaged him, at one pointing pushing SO #2 backwards. In the circumstances, SO #1’s tackle would not appear to have been a disproportionate response to the situation at hand – with the Complainant on the sofa, the officers could expect to better manage any continuing resistance on his part, which is precisely what happened. No strikes of any kind were delivered by the officers.

There is some evidence that the Complainant was elbowed by one of the officers in the physical altercation that marked his arrest - but it would be unwise and unsafe to rest charges on strength of this evidence. The source appears to have been impaired at the time, detracting from their ability to accurately perceive and recall the events in question. Their evidence was also at odds in material respect with the account of an eyewitness. It is alleged that the Complainant was tackled to the dining room floor as soon as SO #1 entered the apartment. The eyewitness, on the other hand, says the Complainant and SO #1 stood squared-off against each other for a period in the apartment before other officers entered and together forced the Complainant onto the floor. In light of these and other frailties associated with these allegations, this evidence is insufficiently reliable to warrant being put to the test by a trier-of-fact.

In the result, while I accept that the Complainant broke his nose in the course of the skirmish with the officers, there are no reasonable grounds to believe that SO #1 or the other involved officers comported themselves 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: April 13, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit