Director's Report Details

SIU Director’s Report - Case # 22-OFD-059

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This page contains graphic content that can shock, offend and upset.

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.

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. 
Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 
  • 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 the death of a 49-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On February 28, 2022, at 2:56 p.m., the Niagara Parks Police Service (NPPS) notified the SIU of the firearm-related death of the Complainant.

According to the NPPS, at about 2:00 p.m., the Rainbow Bridge Commission Authority requested the attendance of the NPPS in the area of 5920 River Road in Niagara Falls (under the Rainbow Bridge) in response to a disturbance involving a man [now determined to be the Complainant]. The Subject Official (SO) and Witness Official (WO) #1 responded to the area and a confrontation ensued in which the Complainant was alleged to have discharged a chemical irritant (similar to pepper spray) at the NPPS officers while armed with a knife. It was at that time that one of the NPPS officers discharged their firearm at the Complainant.

Niagara Regional Police Service (NRPS) responded to assist in addition to paramedics. The Complainant was pronounced dead at the scene.

Both involved NPPS officers had been transported to the Greater Niagara General Hospital.

Both NPPS officers were dog handlers and, at the time of the incident, there was no indication the dogs were involved in the altercation.

All use of force equipment had been seized and secured by NRPS WO #2.

The Team

Date and time team dispatched: 02/28/2022 at 4:32 p.m.

Date and time SIU arrived on scene: 02/28/2021 at 5:07 p.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2

Affected Person (aka “Complainant”):

49-year-old male; deceased

Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed

The civilian witnesses were interviewed between March 1 and 3, 2022.

Subject Official

SO Declined interview, as is the subject official’s legal right; notes received and reviewed

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed

The witness officials were interviewed between March 2 and 9, 2022.

Evidence

The Scene

On February 28, 2022, at 5:00 p.m., SIU forensic investigators attended the scene. The scene was situated underneath the Rainbow Bridge. A sidewalk on the east side of River Road travelled primarily in a north and south direction and passed under the bridge. West of the sidewalk under the bridge was an elevated area of concrete. This area consisted of an angled grade of about 45 degrees rising approximately two metres. At the top was a levelled portion with arched alcoves spanning the western edge abutting River Road. A railing at the sidewalk level separated the sidewalk from the concrete area.

Near one of these alcoves closer to the south end of the bridge was the deceased, the Complainant. The Complainant was covered in a yellow ground sheet. Upon removal of the sheet, the Complainant was found lying on his back with his head orientated in a northerly direction. The Complainant was clad in layers of clothing. The upper body clothing had been pulled back to accommodate paramedic intervention. A projectile was located near the feet of the Complainant on the concrete.

Close by were personal effects including a backpack and other items. In clear view on the concrete upper level were the following: a knife and sheath (separated), a black spray canister, and an expanded ASP baton.

At the sidewalk level, south of the Complainant, were four cartridge cases.


Figure 1 – View underneath the Rainbow Bridge looking south towards the scene near the south end of the bridge

Scene Diagram

Physical Evidence

The following evidence was collected from the scene:
1 – a knife;
2 – a sheath;
3 – a black canister;
4 – an ASP baton;
5 – a projectile;
6 – a cartridge case;
7 – a cartridge case;
8 – a cartridge case; and
9 – a cartridge case.


Figure 2 – Knife and sheath


Figure 3 – Black spray canister


Figure 4 – ASP baton

On February 28, 2022, at 7:46 p.m., a SIU forensic investigator met with the NRPS to receive police equipment implicated in this incident. The following was examined.


Equipment of the SO

          • duty belt containing Use of Force options;
          • ASP baton missing from belt;
          • spare pistol magazines found loaded with 14 cartridges each;
          • a Glock 22 Gen4 pistol;
          • one cartridge removed from breech of the above pistol; and
          • ten cartridges removed from the magazine of the above noted pistol. 
          At 8:00 p.m., the SIU forensic investigator collected the firearm, magazine and cartridges. All other equipment was returned to the NRPS.


          Figure 5 – The SO’s firearm and magazine

          Equipment of WO #1

          • duty belt containing Use of Force options, ASP baton and oleoresin capsicum spray;
          • spare pistol magazines found loaded with 14 cartridges each;
          • a Glock 22 Gen4 pistol;
          • one cartridge removed from breech of the above pistol; and
          • 14 cartridges removed from magazine.
          This firearm was deemed to be unfired, and all equipment was returned to the NRPS.

          The NRPS advised a ballistic vest was also present for examination but warned it had been heavily exposed to an irritant. A decision was made at the time for NRPS to turn over this item to NRPS Forensic Identification Services where it could be examined in a better suited environment.

          On March 1, 2022, at 1:25 p.m., SIU forensic investigators attended NRPS Headquarters, 5700 Valley Way, Niagara Falls, to examine the following further police equipment of the involved officers.

          Equipment of the SO

          • ballistic vest;
          • handcuffs;
          • flashlight;
          • portable radio; and
          • shirt and pants.

          Equipment of WO #1

          • ballistic vest;
          • handcuffs;
          • toque; and
          • shirt and pants.
          At 2:25 p.m., SIU forensic investigators collected the following:
          • “Police” identifier patch from ballistic vest of the SO;
          • Swab of oily substance from the ballistic vest of WO #1; and
          • Swab of oily substance from the face of the SO.

          Forensic Evidence

          Chemistry Report

          On May 10, 2022, the SIU received a Chemistry Report from the Centre of Forensic Sciences (CFS). The report concluded that a black canister obtained at the scene of the incident was operational and contained capsaicin (CAP) and dihydrocapsaicin (DHC). CAP and DHC are the major components of pepper spray.

          Also examined was a swab taken from the face of the SO. The swab contained CAP and DHC.

          Furthermore, a swab taken from the ballistic vest of WO #1 was examined and it contained CAP and DHC.


          Firearms Report

          The SIU submitted a Glock 22 Gen 4 pistol obtained from the SO on February 28, 2022, to the CFS Firearms and Toolmarks Section for analysis.

          The SIU also submitted four cartridge cases found at the scene to the CFS Firearms and Toolmarks Section for analysis.

          The Firearms and Toolmarks Section concluded that the pistol was identified within the limits of practical certainty as having fired the four cartridge cases found at scene.

          Video/Audio/Photographic Evidence [1]

          NPPS Communications Recordings

          The recordings were made on February 28, 2022. The following is a summary of the pertinent communications.

          The dispatcher advised the SO that the Bridge Commission had just called indicating there was a man (the Complainant) hanging out by the wall right underneath the Rainbow Bridge. He was on the northside of the bridge on the east side of the wall, and was harassing people as they walked by. They could not get a description of him other than he was carrying a lot of stuff and he looked to be an older gentleman. The SO responded, “10-4” and WO #1 responded, “Copy.”

          The SO notified the dispatcher that he was with the man and asked for a check of his name. WO #1 then notified the dispatcher that he was with the man.

          The SO asked if there were any cautions on “RMS” (Records Management System) for the man, and the dispatcher responded, “Negative.”

          The dispatcher then explained there had been an earlier event in which a male was screaming under the bridge causing a disturbance. NRPS had been to and then cleared the event, with remarks made that the male was having a bad day.

          The SO reported that he and WO #1 had just been pepper sprayed, and then that shots had been fired.

          The SO requested an ambulance and noted that the suspect was down, shots had been fired, and he could not see.

          NRPS Communications Recordings

          The recordings were made on February 28, 2022. The following is a summary of the pertinent communications.
          The NRPS dispatcher requested that officers head over to see the ‘Parks Police’ at Hiram Street and River Road as it appeared that shots had been fired there.

          The dispatcher noted the call involved the same male as an earlier call – “[first name of the Complainant]”.

          The SO reported over the police radio that shots had been fired under the bridge, and that he and his partner had been pepper sprayed and needed help.

          The dispatcher responded that officers were on the way and asked for updates on injuries. The SO advised the dispatcher that he could not see and there was still a knife on the ground. The SO advised they had one person at gunpoint, but they could not see.

          The SO advised that the suspect was down, and asked for Emergency Medical Services (EMS).

          WO #3 advised police were on the way. The SO responded that they still had the male at gunpoint. He had been shot and the knife was still in reach, but they were having trouble seeing.

          WO #5 advised that one person was in custody, and the dispatcher requested the status of the victim. WO #5 asked that EMS be expedited. WO #3 advised it looked like there were at least two bullet wounds to the chest, and one in the leg. The male did not appear to be breathing.

          WO #3 reported that no police were injured other than pepper sprayed.

          The dispatcher reported that three ambulances were on the way.

          WO #3 advised the dispatcher that he (the Complainant) had been pronounced deceased.

          Niagara Falls Bridge Commission (NFBC) Video Footage

          The recordings were made on February 28, 2022. The following is a summary of the pertinent footage.

          Camera #1

          At 2:04:51 p.m., the SO walked around the rear of his cruiser.

          At 2:06:11 p.m., a second man in a high visibility yellow jacket crossed from the west side of the street to the east [known to have been CW #4] and walked in the same direction as the SO had gone.

          At 2:06:53 p.m., a marked NPPS SUV cruiser [known to have been operated by WO #1] approached southbound on River Road with the emergency lights activated. The SUV pulled into the north side of the traffic turn-around north of the SO’s cruiser and stopped facing east.

          At 2:17:20 p.m., three NFBC staff ran from their building towards the east sidewalk and appeared to be carrying water bottles.

          At 2:19:27 p.m., a marked NRPS cruiser approached southbound on River Road with its emergency lights activated and crossed the centre median of the road on the north side of the Rainbow Bridge.

          At 2:24:25 p.m., a dark-coloured unmarked police cruiser [known to be operated by WO #2] with its emergency lights activated blocked southbound traffic on River Road north of the Rainbow Bridge. WO #2 exited his cruiser and walked towards the east sidewalk and the Rainbow Bridge underpass.

          At 2:24:46 p.m., a white paramedic SUV with its emergency lights activated came southbound in the northbound lanes and drove under the Rainbow Bridge.

          At 2:27:09 p.m., an ambulance arrived on scene and parked just north of the Rainbow Bridge in the northbound lanes. Access from the north side of the Rainbow Bridge was secured with yellow police tape. 

           At 2:28:13 p.m., a second ambulance arrived and parked behind the first. Two paramedics then entered the scene.

          Camera #2

          At 10:05 a.m., the Complainant walked north on the east sidewalk under the Rainbow Bridge. He then climbed the angled embankment on the west side of the sidewalk to the level area under the Rainbow Bridge next to the arched wall that ran east and west under the Rainbow Bridge.

          At 12:27:54 p.m., CW #7 and her husband and two children were walking south from the north side of the Rainbow Bridge on the east sidewalk and passed the Complainant.

          At 12:35:06 p.m., WO #4 and CW #6 entered the pedestrian underpass from the south side of the Rainbow Bridge and approached the Complainant in the centre of the bridge.

          At 12:36 p.m., two uniformed NRPS officers walked south on the sidewalk from the north side of the Rainbow bridge. Both had “POLICE” in large letters on their backs. They met with WO #4 and CW #6.

          At 12:37:48 p.m., WO #4 and CW #6 walked south, while the two uniformed NRPS officers walked north to exit the underpass. The police officers had stayed on the sidewalk to speak with the Complainant.

          At 2:05:17 p.m., the SO entered the pedestrian underpass and walked south on the east sidewalk.

          At 2:05:50 p.m., the SO turned to his right and took a few steps up the concrete embankment near the large arch that ran east to west towards the Complainant’s location.

          At 2:06:18 p.m., the SO climbed to the top of the concrete embankment and stood on the upper-level platform near the Complainant.

          At 2:07:40 p.m., CW #4 walked south of the east sidewalk wearing a reflective yellow coat and stopped on the sidewalk just below the SO.

          At 2:08:09 p.m., WO #1 entered the underpass and walked south on the sidewalk through the metal railing north of the SO and the Complainant. He stayed at the base of the concrete embankment.

          At 2:09:11 p.m., WO #1 walked to the top of the concrete embankment and stood on the east side of the level platform.

          At 2:15:29 p.m., CW #4 moved to the north, and WO #1 moved down the concrete embankment from the top towards CW #4.

          At 2:15:32 p.m., WO #1 was at the bottom of the embankment and the SO began moving downward on the concrete embankment from the top. The SO stopped near the midway point going down the embankment. CW #4 moved further north.

          At 2:15:36 p.m., WO #1 was at the bottom of the embankment, the SO was at the middle of the embankment but further south, the Complainant was still on the upper platform and CW #4 had turned to move north.

          At 2:15:40 p.m., CW #4 stopped and turned to face south towards the officers.

          At 2:15:42 p.m., WO #1 and the SO were both on the sidewalk next to the stonewall with CW #4 looking at them. The Complainant was still on the upper platform, but he could not be seen due to the lighting conditions. CW #4 turned again and started to run to the north and out of the underpass.

          At 2:15:56 p.m., WO #1 walked north on the sidewalk a few metres, while the SO walked south. WO #1 paced back and forth while the SO continued to walk south and emerged at the south end of the underpass.

          At 2:16:04 p.m., CW #4 walked back into the underpass and south towards WO #1. He turned and spoke into a handheld radio and then walked north out of view.

          At 2:16:23 p.m., the SO re-entered the underpass from the south side. WO #1 remained below the Complainant’s location. The SO and WO #1 passed through the metal hand railing and climbed the embankment to the upper platform.

          At 2:18:21 p.m., CW #4 and two fellow employees in yellow safety jackets entered the underpass from the north and walked towards the SO and WO #1.

          At 2:19:53 p.m., NRPS officers, one from the north [believed to be WO #5] and one from the south, WO #4, entered the underpass and moved to the SO and WO #1’s location on the sidewalk.

          At 2:20:02 p.m., another NRPS officer entered the underpass from the south, WO #3, and all three NRPS police officers met the SO and WO #1 at the base of the embankment and climbed to the upper platform where the Complainant was situated.
          Camera #3

          At 10:05:35 a.m., the Complainant was walking north on the east sidewalk under the Rainbow Bridge. He had a backpack and what appeared to be reusable grocery bags on his back. The Complainant was carrying two plastic bags and appeared to be dressed for the weather.

          At 12:35:06 p.m., WO #4 and CW #6 walked north on the east sidewalk. WO #4’s uniform had ‘POLICE’ in bold letters on the front and back. CW #6’s coat had ‘Crisis Worker’ in large letters on the back.

          At 2:05:50 p.m., the legs of the SO were seen walking south on the sidewalk. The SO turned to his right, passed through a metal railing and stood midway up on an embankment near the Complainant’s location.

          At 2:06:17 p.m., the SO moved to the upper platform and out of view of the camera, which was blocked by an east to west arched wall. The SO’s location was within a few centimetres of the north side of the east to west wall.

          At 2:08:15 p.m., CW #4’s legs were seen south on the sidewalk and stopped where the SO was climbing the embankment. CW #4 backed up and leaned against the eastside wall of the sidewalk.

          At 2:15:28 p.m., CW #4 moved quickly towards the north. He was followed by WO #1, who descended the embankment to the bottom where it met the metal hand railing. The SO descended halfway down the embankment and then stopped, after which he shuffled down the embankment. The SO stopped and turned to the west in the direction of the Complainant. The SO took a small step towards the Complainant and then moved to the bottom of the embankment and to his right, moving through a gap in the metal handrail to the sidewalk.

          At 2:15:52 p.m., the SO started to move south on the sidewalk and was wiping his eyes with his right hand. His left hand grabbed high on his left chest towards the police radio microphone.

          At 2:16:09 p.m., WO #1 moved north and stopped on the sidewalk directly east of the Complainant.

          At 2:16:25 p.m., after pacing back and forth and rubbing his eyes, WO #1 bent over and used the handrail to support himself. His hands were empty.

          At 2:16:29 p.m., the SO moved north on the sidewalk and joined WO #1. Both police officers moved to the west, passed through the handrail and climbed up the embankment towards the Complainant and out of sight of the camera.

          At 2:19:54 p.m., WO #4 ran north on the sidewalk from the south side followed a few seconds later by WO #3.

          At 2:20:25 p.m. WO #3 walked to the west, up the concrete embankment.

          Camera #4

          At 10:05 a.m., the Complainant was walking east across River Road on the south side of the Rainbow Bridge and then north on the east sidewalk under the Rainbow Bridge. The Complainant had a backpack and other items on his back, and carried what appeared to be a bag in this left hand.

          At 12:28:47 p.m., CW #7 and a man walked out the south side of the Rainbow Bridge, and CW #7 used her cellphone.

          At 12:34:38 p.m., WO #4 and CW #6 walked north on the east sidewalk towards the south side of the Rainbow Bridge and entered the pedestrian underpass.

          At 12:38:18 p.m. WO #4 and CW #6 exited the south side of the Rainbow Bridge and walked south on the east sidewalk.

          At 12:39:14 p.m. a police cruiser drove north on River Road and under the Rainbow Bridge. The cruiser was driven by WO #4.

          Materials Obtained from Police Service and Niagara Parks Commission

          Upon request, the SIU received the following materials from the NPPS and NRPS between March 1, 2022, and May 19, 2022:
          • NPPS Computer-assisted Dispatch Report;
          • NPPS communications recordings;
          • NRPS communications recordings;
          • NPPS General Order - Mentally Ill Persons 2020;
          • NPPS General Order - Use of Force 2022;
          • NPPS Notes-the SO;
          • NPPS Notes-WO #1;
          • NPPS Training Records of the SO;
          • NRPS Disclosure Memo;
          • NRPS General Occurrences (x4);
          • NRPS Notes-WO #5;
          • NRPS Notes-WO #4;
          • NRPS Notes-WO #2;
          • NRPS-Witness Interviews;
          • Niagara Fall Ontario (NFO) Bridge Commission video received from NRPS;
          • Traffic camera video footage received from NRPS; and
          • NRPS Notes-WO #3

          Materials Obtained from Other Sources

          The SIU obtained and reviewed the following records from the following other sources:
          • NFO Bridge Commission video footage;
          • Chemistry Report from CFS;
          • Firearms Report from CFS;
          • Preliminary Autopsy Findings from Ontario Forensic Pathology Service; and
          • Post-mortem and Toxicology Reports received from the Office of the Chief Coroner on May 26, 2022.

          Incident Narrative

          The following scenario emerges from the evidence collected by the SIU, which included an interview with a special constable of the NPPS present at the time of the shooting and video footage that captured the incident in parts. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

          Shortly after 2:00 p.m. of February 28, 2022, the Complainant was underneath the Rainbow Bridge when he was approached by the SO. The Complainant had been harassing passersby as they walked north and south on the sidewalk on the east side of River Road, which ran under the bridge. The police had been called to remove the Complainant from the area.

          The Complainant’s encounter with the police was his second of the day. Earlier that afternoon, again responding to complaints about the Complainant harassing pedestrians passing under the bridge, WO #4 of the NRPS had responded to the area. The officer was with CW #6, an employee of the Canadian Mental Health Association – Niagara, assigned as a crisis worker to the NRPS Mobile Crisis Rapid Response Team. WO #4 spoke with the Complainant and attempted to prevail upon him to leave. The Complainant reacted angrily, indicated he just wanted to be left alone, and refused all offers of help. WO #4 and CW #6 agreed that the best course was to de-escalate the situation by removing themselves. They had assessed the Complainant’s mental health and decided he was competent and not an apparent danger to himself or others.

          The SO had parked his police vehicle in a vehicle turn-around north of the bridge and exited to approach the Complainant on foot. The Complainant was seated on a raised concrete platform near the south end of the bridge, west of the sidewalk. The officer climbed up the sloped embankment south of the Complainant, explained the reason he was there – there had been complaints by pedestrians – and stated that the Complainant would have to vacate the area. Moments prior, the SO had spoken with CW #4 of the NFBC. CW #4 had indicated that the land underneath the bridge belonged to the NFBC and he wanted the Complainant removed. Moments later, the SO was joined by WO #1 of the NPPS, who took up a position north of the Complainant’s location on the slope/platform area.

          The Complainant refused to leave and turned down the officers’ offer to take him to a shelter. He became angry and accused the officers of being “fake”. At one point, the Complainant replaced the sandals he was wearing with a pair of sneakers, after which he stood up; it seemed to the officers he might be preparing to leave. Instead, the Complainant retrieved a bottle of water from his belongings and sat back down to drink it. Again, he stood up and took a few paces in the direction of WO #1. The officer was within several metres of the Complainant at this time. The Complainant once more turned towards his belongings – a backpack in this instance – and removed a canister. With the canister in hand, he turned back towards WO #1 and discharged a stream from the canister in the officer’s direction. The canister contained pepper spray.

          WO #1 screamed in pain after being sprayed in the face. He turned away from the Complainant and climbed off the platform down the sloped embankment. The officer heard something metallic falling and striking the concrete ground and, shortly thereafter, the SO yell, “Knife,” twice before the sound of several gunshots in succession.

          The shots had been fired by the SO. The officer had seen the Complainant spray WO #1 and reacted by drawing his ASP baton. Before the SO could use the weapon, the Complainant turned and sprayed him in the face as well. His eyes began to burn and he had difficulty seeing. When his sight started to return within moments of being struck by the spray, the SO observed the Complainant bent down rummaging in one of his bags and then righting himself with a knife in his right hand. The officer dropped his baton, drew his firearm, yelled at the Complainant to drop the knife, and then fired four rounds as the Complainant moved towards him.

          The Complainant stood for a while after the shooting before falling to his knees, still on the raised platform. The SO placed his foot on the Complainant’s buttocks and forced him prone on the ground.

          NRPS officers began to arrive at the shooting scene and rendered first aid to the Complainant before the paramedics arrived.

          The Complainant was pronounced deceased at about 2:31 p.m.

          Cause of Death

          The pathologist at autopsy was of the view that the Complainant’s death was attributable to ‘Gunshot wounds of torso’.

          Relevant Legislation

          Section 34, Criminal Code -- Defence of person - Use or threat of force

          34 (1) A person is not guilty of an offence if
          (a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 
          (b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
          (c) The act committed is reasonable in the circumstances.
          (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
          (a) the nature of the force or threat;
          (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
          (c) the person’s role in the incident;
          (d) whether any party to the incident used or threatened to use a weapon; 
          (e) the size, age, gender and physical capabilities of the parties to the incident;
          (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
          (f.1) any history of interaction or communication between the parties to the incident;
          (g) the nature and proportionality of the person’s response to the use or threat of force; and 
          (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
          (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

          Analysis and Director's Decision

          The Complainant was shot in Niagara Falls by a NPPS special constable on February 28, 2022, and died as the result of his wounds. The special constable – the SO – was named as the subject official in 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 death.

          Pursuant to section 34 of the Criminal Code, force used in the defence of oneself or another from a reasonably apprehended attack, actual or threatened, is legally justified as long as the force was itself reasonable. The reasonableness of the force is to be assessed against the relevant circumstances that prevailed at the time, including such considerations as the nature of the force or threat; the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; whether any party to the incident used or threatened to use a weapon; and, the nature and proportionality of the person’s response to the use or threat of force. The use by the SO of his firearm fell within the bounds of the section 34 justification.

          The SO was lawfully placed throughout the series of events culminating in the shooting. Having spoken to CW #4 of the NFBC, he had reason to believe that the land under the Rainbow Bridge belonged to the NFBC and that the Complainant was no longer welcome there as he had reportedly been harassing passersby. In the circumstances, I accept that the SO was in the lawful discharge of his duties attempting to enforce the Trespass to Property Act at the time of the incident.

          I am also satisfied that the SO acted to protect himself from a reasonably apprehended knife attack by the Complainant when he fired his gun. A belligerent Complainant had refused to vacate the space under the bridge and then assaulted the SO and WO #1 with pepper spray before turning to retrieve a knife from his belongings. On this record, it is clear that the Complainant was intent on doing harm to the officers with the knife, and that the SO discharged his weapon in self-defence.

          Finally, the shooting itself constituted reasonable force in the circumstances. The Complainant was within a few metres of the officers, having subjected them to pepper spray and its debilitating effects, when he moved to retrieve a knife from his belongings. The knife – with a blade length of about 11 centimetres - was capable of inflicting grievous bodily harm or death. And the SO could only assume, as any reasonable person would, that the Complainant was prepared to make imminent use of it against the officers. Retreat was not a realistic option given the speed with which events unfolded. For the foregoing reasons, I am unable to reasonably conclude that the SO acted other than in a manner commensurate with the exigencies at hand when he chose to meet a threat of lethal violence with a resort to lethal force of his own.

          In the result, there are no reasonable grounds to believe that the use by the SO of his gun was not legally justified. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.


          Date: June 28, 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.