SIU Director’s Report - Case # 22-OCI-038
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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 29-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 29-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On February 9, 2022, at 1:50 p.m., the Niagara Regional Police Service (NRPS) notified the SIU of an injury to the Complainant. The NRPS indicated the parents of the Complainant had contacted police requesting assistance as they were having assault-related and behavioural issues with their son. Officers arrived and attempted to arrest the Complainant when a scuffle ensued resulting in the Complainant and the officers falling to the ground.Both the Complainant and an officer were taken to hospital. Medical examination confirmed that the Complainant had sustained a broken nose, and, the officer, a broken hand from the fall.
The Team
Date and time team dispatched: 02/09/2022 at 2:51 p.m.Date and time SIU arrived on scene: 02/10/2022 at 3:10 p.m.
Number of SIU Investigators assigned: 2
Affected Person (aka “Complainant”):
29-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on February 10, 2022.
Civilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
The civilian witnesses were interviewed between February 9, 2022, and February 11, 2022.
Subject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on March 21, 2022.
Witness Officials
WO #1 Interviewed WO #2 Not interviewed, but notes received and reviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Interviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Not interviewed, but notes received and reviewed
WO #8 Interviewed
WO #1 was interviewed on February 15, 2022, and WO #5 and WO #8 were interviewed on February 25, 2022.
Evidence
The Scene
On February 10, 2022, SIU investigators arrived at a residence in the area of Thorold Stone Road and Queen Elizabeth Way, Niagara Falls, to inspect the scene of the incident.The residence was a detached home with a one-and-a-half-car-wide garage. The garage had an entry door into the residence at the centre rear of the garage, which led to the kitchen. The entry door was metal with a glass panel insert at the top.
The garage had fridges and chairs to the right of the door, and miscellaneous work tools and saws on the floor to the left.
Physical Evidence
On February 10, 2022, SIU investigators accompanied by SIU forensic identification investigators attended to speak to the Complainant at the scene of the incident. At that time, it was observed that the Complainant had the following injuries: bruising on nose, bruising on left temple and left cheek, bruising on upper cheek, and bruising on lower back.
The Complainant mentioned painful spots on his head, which were felt by a SIU forensic identification investigator. The investigator could not feel any swelling or observe any bruising.
Video/Audio/Photographic Evidence [1]
Communications Recordings
At 9:47:25 a.m., the call-taker noted the caller advising that their son was back inside from the garage, they were yelling, and that he was saying he was coming to attack him. At 9:48:05 a.m., the caller said the individual was the Complainant.
At 9:49:03 a.m., the call-taker was told that the son was in the basement, and that she and her husband [now known to be CW #2] were holding the door shut.
At 9:49:31 a.m., the caller was not cooperating and not answering the call-taker.
At 9:51:11 a.m., the caller was uncooperative and hung up on the call-taker.
At 10:00:44 a.m., the SO indicated that the Complainant was going somewhere in Niagara Falls and requested a Niagara Falls taxi, which was said to be en route in five to ten minutes.
At 10:15:51 a.m., the SO advised that he had a male under arrest [now known to be the Complainant].
At 10:23:23 a.m., WO #7 noted the male had been handcuffed and was in the cruiser.
At 10:51:31 a.m., WO #7 transported the arrested male, the Complainant, to Greater Niagara General Hospital (GNGH) with WO #3 in the rear of ambulance.
Photographic Evidence
The SIU conducted a canvass and were able to locate several residents of the neighbourhood who had photographic records of relevance taken on their cellular devices. CW #4’s Cellphone Pictures
Image (a) depicted the SO, WO #1 and WO #7 standing above an unknown officer on top of the Complainant at the side of WO #1’s patrol vehicle.
Image (b) depicted the SO, WO #1, WO #2, WO #4, WO #5, WO #7 and WO #8 standing after the Complainant had been returned to WO #1’s patrol vehicle.
Image (c) depicted five NRPS police vehicles parked at the curb.
CW #3 Cellphone Pictures
Image (a) depicted the SO, WO #1, WO #2, WO #4, WO #5, WO #7 and WO #8 standing at left rear of WO #1’s patrol vehicle as the Complainant was being put back into the left rear seat of the vehicle.
Image (b) depicted an unknown officer standing to the left of three NRPS vehicles.
Image (c) depicted a NRPS supervisor vehicle and patrol vehicle parked at the curb.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the NRPS:- Prosecution Summary;
- Detailed Call Summary;
- Communications records;
- General Order – Use of Force;
- Narrative of WO #1;
- Notes of WO #1 – WO #7;
- NRPS Witness Statement - CW #1; and
- Scenes of Crime Officer photographs.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Niagara Emergency Medical Services Ambulance Call Report for the Complainant;
- GNGH medical records pertaining to the Complainant;
- Photographs made at scene by CW #4; and
- Photographs made at scene by CW #3.
Incident Narrative
The following scenario emerges from the weight of the reliable evidence collected by the SIU, which included interviews with the Complainant, the SO, several civilians who witnessed the incident in parts, and another officer who participated in the Complainant’s arrest – WO #1.
In the morning of February 9, 2022, the Complainant quarreled with his parents. When the argument became physical between the Complainant and his father, CW #1, the Complainant’s mother, called police.
The SO and WO #1 were dispatched to the scene at the family’s residence in the area of Thorold Stone Road and Queen Elizabeth Way, Niagara Falls. They spoke with the Complainant’s parents and confirmed that they wanted him removed from the home. The Complainant agreed to leave voluntarily on condition that his mother return to him a sum of money and he be allowed to collect some personal items. The officers agreed and arrangements were made for a cab to attend and escort the Complainant from the address.
The Complainant’s frustration was aggravated when the cab that arrived at the residence was a sedan. He had asked for a van to be able to load his large screen TV. Angry, the Complainant attempted to re-enter the home from the garage via a pedestrian doorway. The SO, standing in front of the door, prevented him from doing so, extending an arm towards the Complainant. The Complainant disregarded the officer’s direction and pushed the officer, at which point the SO told him he was under arrest.
There ensued a struggle between the officers and the Complainant as the SO and WO #1 attempted to secure him in handcuffs. The Complainant was taken to the ground, struck by the SO, and eventually handcuffed to the front.
Following his arrest, the Complainant was escorted to WO #1’s cruiser parked nearby and lodged in the rear driver’s side seat. He lashed out inside the car kicking at the Plexiglas partition and the doors. With the arrival of other officers, the Complainant was removed from the vehicle, pinned to the ground, and re-handcuffed to the back. He was subsequently searched and returned to the cruiser.
The Complainant complained of chest pain and advised the officers he had an enlarged heart. An ambulance was called to the scene and transported the Complainant to hospital. The Complainant was diagnosed with a broken nose, a cut lip, and swelling and scrapes to the left side of his face.
In the morning of February 9, 2022, the Complainant quarreled with his parents. When the argument became physical between the Complainant and his father, CW #1, the Complainant’s mother, called police.
The SO and WO #1 were dispatched to the scene at the family’s residence in the area of Thorold Stone Road and Queen Elizabeth Way, Niagara Falls. They spoke with the Complainant’s parents and confirmed that they wanted him removed from the home. The Complainant agreed to leave voluntarily on condition that his mother return to him a sum of money and he be allowed to collect some personal items. The officers agreed and arrangements were made for a cab to attend and escort the Complainant from the address.
The Complainant’s frustration was aggravated when the cab that arrived at the residence was a sedan. He had asked for a van to be able to load his large screen TV. Angry, the Complainant attempted to re-enter the home from the garage via a pedestrian doorway. The SO, standing in front of the door, prevented him from doing so, extending an arm towards the Complainant. The Complainant disregarded the officer’s direction and pushed the officer, at which point the SO told him he was under arrest.
There ensued a struggle between the officers and the Complainant as the SO and WO #1 attempted to secure him in handcuffs. The Complainant was taken to the ground, struck by the SO, and eventually handcuffed to the front.
Following his arrest, the Complainant was escorted to WO #1’s cruiser parked nearby and lodged in the rear driver’s side seat. He lashed out inside the car kicking at the Plexiglas partition and the doors. With the arrival of other officers, the Complainant was removed from the vehicle, pinned to the ground, and re-handcuffed to the back. He was subsequently searched and returned to the cruiser.
The Complainant complained of chest pain and advised the officers he had an enlarged heart. An ambulance was called to the scene and transported the Complainant to hospital. The Complainant was diagnosed with a broken nose, a cut lip, and swelling and scrapes to the left side of his face.
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 and around the time of his arrest by NRPS officers on February 9, 2022. One of the arresting officers – the SO – was identified as the subject official in the course of the ensuing SIU investigation. The investigation is now concluded. 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 SO had been called to the address to deal with a domestic disturbance and was within his rights in preventing the Complainant from re-entering the house. The Complainant’s parents had made it clear that they wished the Complainant removed from the residence, and the Complainant had already been given reasonable opportunity to collect his things. It follows that the officer had cause to believe that he had been assaulted when the Complainant pushed him, and that he was entitled at that point to effect an arrest.
The evidence, including that from the SO, establishes that the officer used significant force in the struggle with the Complainant in the garage. This included a takedown, three knee strikes to the Complainant’s torso and, on some estimates in the evidence, upwards of 30 rapid-fire punches to the back of the head and torso. The SO also assisted in pinning the Complainant to the ground once he was removed from WO #1’s cruiser and as he was being re-handcuffed to the back.
Given the nature and extent of his resistance, however, I am unable to reasonably conclude that the SO, or any of the involved officers, used more force than was necessary in their dealings with the Complainant. The Complainant was in a bad mood that morning, and was triggered into violence against the officers when the SO put his hand up to keep him from re-entering the house. Though advised he was under arrest, the Complainant chose not to peacefully surrender. Rather, he managed to keep the SO and WO #1 at bay inside the garage, pulling and pushing them away, as they attempted to establish control over his person. A takedown in these circumstances makes sense. Once on the ground, the officers could more effectively manage any continuing resistance on the Complainant’s part. Indeed, the Complainant did continue to struggle against the officers’ efforts on the ground prompting the SO to respond with multiple punches and knee strikes. Without wishing to diminish the gravity of the force used by the officer, the blows struck by the SO to the back of the Complainant’s head would not appear to have been delivered at full-force. Had they been, one would have expected to see more serious injury done to the Complainant in that area. There was also a need to subdue the Complainant as quickly as possible given the location of tools nearby and the potential for their use as weapons. It is further instructive to note that the SO suffered a broken hand in the melee, apparently the result of losing his balance and landing on his right hand. The injury is some evidence of the character of the struggle that unfolded. No strikes of any kind were delivered after the Complainant was handcuffed. With respect to the takedown of the Complainant upon his removal from WO #1’s cruiser, the tactic would appear to have been a reasonable one. The evidence indicates that the Complainant was kicking out at the time, and the officers would have wanted to immediately place him in a position of disadvantage in order to re-position his handcuffs as safely as possible. Thereafter, aside from using their greater numbers to wrestle control of the Complainant on the ground, the evidence fails to establish that the Complainant was subjected to any more blows. On this record, it would not appear that the quantum of force used by the officers was excessive in light of the Complainant’s combativeness and the exigencies of the situation.
There is some evidence the Complainant was the victim of unnecessary force, but it would be unwise and unsafe to rest charges on the strength of this evidence given the overriding weight of the countervailing evidence. Claims that the Complainant was passive in the garage and by the side of WO #1’s cruiser, for example, simply cannot stand against the accounts of third-party civilian witnesses. This body of evidence establishes that he physically resisted the officers on both occasions.
In the result, while I accept that the Complainant broke his nose in his altercation with NRPS officers on the day of his arrest, more than likely in the course of the second of the two takedowns, there are no reasonable grounds to believe that the officers, including the SO, comported themselves other than lawfully in their engagement. Accordingly, the file is closed.
Date: June 9, 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 SO had been called to the address to deal with a domestic disturbance and was within his rights in preventing the Complainant from re-entering the house. The Complainant’s parents had made it clear that they wished the Complainant removed from the residence, and the Complainant had already been given reasonable opportunity to collect his things. It follows that the officer had cause to believe that he had been assaulted when the Complainant pushed him, and that he was entitled at that point to effect an arrest.
The evidence, including that from the SO, establishes that the officer used significant force in the struggle with the Complainant in the garage. This included a takedown, three knee strikes to the Complainant’s torso and, on some estimates in the evidence, upwards of 30 rapid-fire punches to the back of the head and torso. The SO also assisted in pinning the Complainant to the ground once he was removed from WO #1’s cruiser and as he was being re-handcuffed to the back.
Given the nature and extent of his resistance, however, I am unable to reasonably conclude that the SO, or any of the involved officers, used more force than was necessary in their dealings with the Complainant. The Complainant was in a bad mood that morning, and was triggered into violence against the officers when the SO put his hand up to keep him from re-entering the house. Though advised he was under arrest, the Complainant chose not to peacefully surrender. Rather, he managed to keep the SO and WO #1 at bay inside the garage, pulling and pushing them away, as they attempted to establish control over his person. A takedown in these circumstances makes sense. Once on the ground, the officers could more effectively manage any continuing resistance on the Complainant’s part. Indeed, the Complainant did continue to struggle against the officers’ efforts on the ground prompting the SO to respond with multiple punches and knee strikes. Without wishing to diminish the gravity of the force used by the officer, the blows struck by the SO to the back of the Complainant’s head would not appear to have been delivered at full-force. Had they been, one would have expected to see more serious injury done to the Complainant in that area. There was also a need to subdue the Complainant as quickly as possible given the location of tools nearby and the potential for their use as weapons. It is further instructive to note that the SO suffered a broken hand in the melee, apparently the result of losing his balance and landing on his right hand. The injury is some evidence of the character of the struggle that unfolded. No strikes of any kind were delivered after the Complainant was handcuffed. With respect to the takedown of the Complainant upon his removal from WO #1’s cruiser, the tactic would appear to have been a reasonable one. The evidence indicates that the Complainant was kicking out at the time, and the officers would have wanted to immediately place him in a position of disadvantage in order to re-position his handcuffs as safely as possible. Thereafter, aside from using their greater numbers to wrestle control of the Complainant on the ground, the evidence fails to establish that the Complainant was subjected to any more blows. On this record, it would not appear that the quantum of force used by the officers was excessive in light of the Complainant’s combativeness and the exigencies of the situation.
There is some evidence the Complainant was the victim of unnecessary force, but it would be unwise and unsafe to rest charges on the strength of this evidence given the overriding weight of the countervailing evidence. Claims that the Complainant was passive in the garage and by the side of WO #1’s cruiser, for example, simply cannot stand against the accounts of third-party civilian witnesses. This body of evidence establishes that he physically resisted the officers on both occasions.
In the result, while I accept that the Complainant broke his nose in his altercation with NRPS officers on the day of his arrest, more than likely in the course of the second of the two takedowns, there are no reasonable grounds to believe that the officers, including the SO, comported themselves other than lawfully in their engagement. Accordingly, the file is closed.
Date: June 9, 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.