SIU Director’s Report - Case # 21-OCI-428
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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 55-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 55-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On December 17, 2021, at 10:43 a.m., the Complainant notified the SIU of an injury via an online email. On December 20, 2021, at 1:15 p.m., the Complainant was contacted by the SIU. The Complainant advised that on April 17, 2020, between 2:00 and 3:00 a.m., Niagara Regional Police Service (NRPS) police officers beat him about his head causing a concussion. He had since attended Niagara Health-St. Catharines numerous times and had undergone several Computerized Tomography scans.The Team
Date and time team dispatched: 12/29/2021 at 9:53 a.m.Date and time SIU arrived on scene: 12/29/2021 at 10:20 a.m.
Number of SIU Investigators assigned: 3
Affected Person (aka “Complainant”):
Interviewed; medical records obtained and reviewedThe Complainant was interviewed on December 29, 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on January 6, 2022.
Evidence
The Scene
The incident occurred in a basement apartment in the area of St. David’s Road and Regional Road 56 in Thorold. The apartment was approximately three metres by three metres, and two-and-a-half metres in height. There was a small bed to the left of the entrance door, a recliner, and a night table with a laptop. Video/Audio/Photographic Evidence [1]
The SIU obtained audio records of relevance, as set out below.
911 Calls
On January 10, 2022, the NRPS provided communications recordings of three 911 contacts from a woman regarding an ongoing neighbour dispute with the Complainant.The first 911 call - received on April 16, 2020, at 9:40 p.m., and concluded at 9:45 p.m.
The caller reported she had been experiencing an ongoing dispute with her roommate, the Complainant. She felt threatened.
The second 911 call - received on April 16, 2020, at 10:06 p.m. and concluded at 10:10 p.m.
The 911 call-taker called the woman back to check on her well-being. The woman said the incident was ongoing. The Complainant had gotten in her face and wanted to fight. She was concerned for her safety. She told the Complainant she had called the police, and he replied that he did not care. The woman continued to say she feared for her safety.
The third 911 call - received on April 17, 2020, at 12:34 a.m., and concluded at 12:44 a.m.
The initial 911 caller called and begged for police assistance. She had tried to avoid the Complainant and retreated to her bedroom. The Complainant continued to bang on her closed apartment door. The banging on the door was heard by the 911 call-taker.
Police Radio Transmissions
On January 12, 2022, the SIU received the dispatched call transmissions involving WO #1 and WO #2.At 12:38 a.m. on April 17, 2020, the dispatcher requested that WO #1 clear and respond to a disturbance call. The caller’s roommate, the Complainant, had come into her face, scared her and slammed doors. The call-taker could hear the Complainant through the phone line yelling and causing a disturbance. The caller locked herself in her bedroom and considered arming herself with a knife.
WO #1 acknowledged the call and WO #2 agreed to back him up.
The dispatcher indicated that the caller was fearful. The dispatcher also confirmed that the Complainant was a prohibited driver with no outstanding charges or conditions. The dispatcher asked both police officers to attend at the back door.
WO #1 and WO #2 acknowledged they were at the back door. The dispatcher requested a status check.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the NRPS:- Email from NRPS regarding height of the Witness Officials;
- Communications recordings;
- Notes of Witness Officials; and
- Versadex report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Medical records from Niagara Health; and
- Complaint from the Office of the Independent Police Review Director.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, WO #1 and WO #2.
In the early morning hours of April 17, 2020, WO #1 and WO #2 arrived at the Complainant’s apartment in Thorold. They were there following calls to police by a tenant of a basement apartment at the address. The tenant had called to report that another tenant in a separate basement apartment at the same address was threatening and harassing her, and that she was concerned for her personal safety. The other tenant was the Complainant.
The officers entered the basement, spoke with the caller, and knocked on the Complainant’s bedroom door intending to speak with him. The knocks went unanswered and the officers entered the bedroom through the unlocked door. The Complainant was lying in his bed with his eyes closed and breathing. WO #1 took hold of one of the Complainant’s ears to rouse him, and the Complainant woke up. The officers confronted him with the caller’s complaints. The Complainant denied that he had done anything wrong.
Deciding there were no grounds for an arrest, WO #1 and WO #2 exited the bedroom, speaking with the caller before they left about alternate housing arrangements for the night and reminding her to contact police immediately if she felt her safety at risk.
It is alleged that the Complainant was assaulted by one or both officers before they took his leave of his bedroom. Specifically, while returning to sleep after denying any impropriety, it is alleged that the Complainant was punched repeatedly to the head and blacked out. He did not wake again until April 20, 2020, at which time he was in a great deal of pain. The pain did not subside and the Complainant went to hospital on April 21, 2020, where he was diagnosed with a concussion. He had since returned to hospital several times with concussion-like symptoms.
WO #1 and WO #2 deny that either of them struck the Complainant at any time.
In the early morning hours of April 17, 2020, WO #1 and WO #2 arrived at the Complainant’s apartment in Thorold. They were there following calls to police by a tenant of a basement apartment at the address. The tenant had called to report that another tenant in a separate basement apartment at the same address was threatening and harassing her, and that she was concerned for her personal safety. The other tenant was the Complainant.
The officers entered the basement, spoke with the caller, and knocked on the Complainant’s bedroom door intending to speak with him. The knocks went unanswered and the officers entered the bedroom through the unlocked door. The Complainant was lying in his bed with his eyes closed and breathing. WO #1 took hold of one of the Complainant’s ears to rouse him, and the Complainant woke up. The officers confronted him with the caller’s complaints. The Complainant denied that he had done anything wrong.
Deciding there were no grounds for an arrest, WO #1 and WO #2 exited the bedroom, speaking with the caller before they left about alternate housing arrangements for the night and reminding her to contact police immediately if she felt her safety at risk.
It is alleged that the Complainant was assaulted by one or both officers before they took his leave of his bedroom. Specifically, while returning to sleep after denying any impropriety, it is alleged that the Complainant was punched repeatedly to the head and blacked out. He did not wake again until April 20, 2020, at which time he was in a great deal of pain. The pain did not subside and the Complainant went to hospital on April 21, 2020, where he was diagnosed with a concussion. He had since returned to hospital several times with concussion-like symptoms.
WO #1 and WO #2 deny that either of them struck the Complainant at any time.
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 contacted the SIU in December 2021 and reported that he had been assaulted by two NRPS officers on April 17, 2020, resulting in a concussion. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any officer committed a criminal offence in connection with the Complainant’s allegations.
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 allegation, if true, amounts to a criminal assault. While alone in his bed, not under arrest and no threat to anyone at the time, it is alleged the Complainant was punched several times to the head by one or both of the officers.
This evidence, however, is not cogent enough to give rise to charges. The account of what happened suffers from very real issues of credibility. For example, it denied the Complainant was banging on another tenant’s bedroom door prior to the officers’ arrival. The recordings of the 911 calls tell a different story. Clearly heard on the recordings is someone banging on the tenant’s door in the background. It is also apparent that the source of this evidence was inebriated at the time, which would have detracted from their ability to accurately perceive and recall the events in question. Lastly, the source was unable to identify with any confidence which of the officers struck the Complainant or if they were both responsible. On this record, I am unable to reasonably conclude that this evidence is sufficiently reliable to warrant being put to the test by a court.
For the foregoing reasons, there are no reasonable grounds to believe that any identifiable officer comported themselves unlawfully in their dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: April 19, 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 required or authorized to do by law.
The allegation, if true, amounts to a criminal assault. While alone in his bed, not under arrest and no threat to anyone at the time, it is alleged the Complainant was punched several times to the head by one or both of the officers.
This evidence, however, is not cogent enough to give rise to charges. The account of what happened suffers from very real issues of credibility. For example, it denied the Complainant was banging on another tenant’s bedroom door prior to the officers’ arrival. The recordings of the 911 calls tell a different story. Clearly heard on the recordings is someone banging on the tenant’s door in the background. It is also apparent that the source of this evidence was inebriated at the time, which would have detracted from their ability to accurately perceive and recall the events in question. Lastly, the source was unable to identify with any confidence which of the officers struck the Complainant or if they were both responsible. On this record, I am unable to reasonably conclude that this evidence is sufficiently reliable to warrant being put to the test by a court.
For the foregoing reasons, there are no reasonable grounds to believe that any identifiable officer comported themselves unlawfully in their dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case.
Date: April 19, 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.