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 the serious injury a 41-year-old man (the “Complainant”) suffered.

Notification of the SIU

On May 20, 2022, at 12:14 a.m., the Niagara Regional Police Service (NRPS) notified the SIU of an injury to the Complainant.

According to the NRPS, on May 18, 2022, a NRPS official conducted a traffic stop of a motorcycle. During the stop, the rider drove off before the officer could identify him. The NRPS used a gas station video and social media to identify the licence plate on the motorcycle. Eventually, the NRPS went to an address in St. Catharines, and saw the motorcycle and a man run into the residence. The NRPS obtained a Feeney warrant, [1] after which seven officials made entry into the house and arrested the man. After the arrest, the man complained of an injury. He was taken to the hospital and diagnosed with a fractured clavicle.

The Scene

The scene was the attic of a residence in St. Catharines.

The entrance to the attic was via an opening in the ceiling of a hallway. The door to the attic had been removed exposing the attic. There was evidence of fallen insulation scattered on the floor. The attic covered the entire area of the residence and was completely empty of any stored items except for a ladder used to gain access from the interior of the residence. The pitch of the roof was high enough to allow one to stand up in the middle of the attic.

The entire area of the attic consisted of blown insulation along with insulation batts scattered loosely in two areas. In the northwest corner was an area of disturbed insulation with batts tossed about. There was another area of disturbed insulation and batts tossed about along the south side of the attic. There was an area of blown insulation that had been compressed under the removed batts. There was also an exposed rafter in that area.

Video/Audio/Photographic Evidence [2]

Custody Video Summary

On May 27, 2022, the SIU received a copy of the custody video from the NRPS. The following is a summary of the footage.

On May 18, 2022, between about 9:38:46 p.m. and 9:43:50 p.m., WO #1’s police cruiser entered the sally port. A special constable, WO #2, and WO #3 met WO #1. A second special constable entered the sally port while the first special constable moved a snow brush over the Complainant’s body. The Complainant, who was handcuffed with his hands behind his back, walked on his own accord towards an exit.

Between about 9:43:55 p.m. and 9:48:00 p.m., the Complainant entered the booking hall. WO #3 notified the Complainant the booking hall was audio and video recorded. The Complainant told WO #3 his “left collarbone was really sore right now” and he incurred his injury during his arrest. The Complainant told WO #3 he was unable to escape or flee if the handcuffs were removed because, “I can’t move my shoulder. It’s killing me right now.” WO #3 told the Complainant he would be afforded an opportunity to speak to Duty Counsel in private and the Complainant was escorted out of camera view for a pat down search. The Complainant was subsequently escorted by both special constables to the shower.

Between about 9:56:35 p.m. and 10:18:53 p.m., the Complainant was lodged in a cell, taken for photographs and fingerprints, and returned back to the cell.

On May 18 and 19, 2022, between about 10:18:55 p.m. and 8:19:08 a.m., the Complainant was sleeping on his back, as well as on his right and left sides.

Between about 8:19:09 a.m. and 8:28:24 a.m., the Complainant exited the cell in the company of two special constables, and was subsequently re-lodged in the cell.

At about 11:26:24 a.m., the Complainant used his left hand to push himself up to a seated position against the wall.

Between about 2:07:34 p.m. and 2:12:50 p.m., the cell door was opened, and the Complainant was provided a mask to wear. He used his T-shirt to fashion a sling for his left shoulder. The Complainant pointed to his left shoulder while speaking with a special constable. The Complainant exited the cell with the sling on his left arm. The Complainant was re-lodged in the cell.

At about 2:12:59 p.m., a special constable examined the Complainant’s left shoulder, while another special constable stood in the threshold of the doorway.

Between about 3:08:50 p.m. and 3:34:00 p.m., the Complainant went to the ground, landing on his left shoulder. He went to his knees and pushed his body onto the cement block, with his stomach facing down. The Complainant went to the cell door, attempting to garner the attention of someone.

Between about 3:35:11 p.m. and 3:37:09 p.m., the Complainant waved at the camera in the cell and pointed at the facilities. His left arm was supported by a self-made sling.

Between about 4:19:53 p.m. and 4:20:18 p.m., the cell door was opened and a special constable entered. The Complainant re-applied his self-made sling to his left arm, and he exited the cell.

Between about 4:20:41 p.m. and 4:22:55 p.m., a special constable conducted a pat down search of the Complainant and leg restraints were applied on him. The Complainant walked through the vestibule towards the sally port, with two special constables following. He was lodged in a court services transport van and left the police station.
 

Police Communications Recordings

On June 29, 2022, the SIU received police communications recordings relevant to the incident. The following is a summary of the recordings.

On May 18, 2022, at 9:37 a.m., Officer #1 broadcast that a motorcycle had taken off on him. He indicated he was not pursuing the vehicle, and noted that the motorcyclist was a white male. The motorcycle did not have a licence plate.

It was noted on the recordings that officers were responding to assist. It was further noted that the officers would not enter onto private property to effect an arrest; rather, they would wait for a warrant.

The Feeney warrant had been granted and the Street Crime Unit were on their way to the scene to execute the arrest.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the NRPS between May 24, 2022, and June 29, 2022:

• Security camera video images of the Complainant;
• Communication recordings;
• Feeney warrant;
• Notes- Officer #2; [3]
• Notes- SO #2;
• Notes- WO #3;
• Notes- WO #5;
• Notes- WO #1;
• Notes- WO #4;
• Notes- WO #2;
• Notes- SO #1;
• Custody video;
• Policy-Use of Force;
• Occurrence Report; and
• Photograph of motorcyclist.

Materials Obtained from Other Sources

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

• The Complainant’s medical records.

The evidence collected by the SIU, including an interview with the Complainant, gives rise to the following scenario. As was their legal right, SO #1 and SO #2 declined an interview with the SIU. They did authorize the release of their notes.

In the afternoon of May 18, 2022, the Complainant was in the backyard of the home he was staying at in St. Catharines when his attention was drawn to an officer at the front of the residence. The officer – Officer #1 – called out to the Complainant indicating he wished to speak to him about his motorcycle. The Complainant refused to speak with the officer. He entered the home through a back door and sought refuge in the attic.

Earlier in the day, Officer #1 had observed an individual riding a motorcycle without a licence plate. The motorcyclist, having come to a stop at a red light, accelerated away from Officer #1 as the officer approached to speak with him. Further investigation had identified the motorcyclist as the Complainant.

Officer #1 decided against entering the home. Instead, the residence was monitored while a Feeney warrant was being obtained. The warrant was issued at about 8:30 p.m., after which members of the Street Crime Unit convened at the home to effect the Complainant’s arrest.

The officers, including SO #2 and SO #1, entered the home at about 9:00 p.m. Within minutes, the subject officials located the Complainant hiding in the attic. He was lying down between ceiling joists attempting to conceal himself. The Complainant, lying in a prone position with his arms tucked underneath his chest, did not release his arms when directed and was met with a degree of force. SO #2 delivered several punches to the Complainant’s head and face area, and the two officers eventually wrestled control of his arms and secured them in handcuffs.

Following his arrest, the Complainant was escorted outside the home, placed in a police vehicle and transported to the police station where he was lodged in a cell.

The next day, a police officer took him to hospital where he was diagnosed with a ‘healing left clavicular fracture’.

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,

On May 20, 2022, the NRPS contacted the SIU to report that a man they had arrested on May 18, 2022 – the Complainant – had been diagnosed with a serious injury. The 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 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 subject officials were in the lawful discharge of their duties when they entered the home endeavouring to arrest the Complainant. There was a warrant in effect authorizing the entry and arrest.

With respect to the force used by the officers, namely, a series of strikes by SO #2 and their efforts to pull free the Complainant’s arms, I am satisfied it was legally justified. The Complainant left the officers little choice but to attempt to wrest control of his arms when he refused to release them voluntarily. As for the strikes, it should be noted that it was dark in the attic and there was some urgency to ensuring the Complainant was arrested as soon as possible. The strikes helped to accomplish that without inflicting any serious injury.

There is a version of events proffered in the evidence that the Complainant was met with a half-dozen punches to the face even though he did not resist his arrest, but I am unable to place much if any weight on this evidence. It is inconsistent with the lengths the Complainant’s took to evade apprehension, including refusing to surrender when he knew the officers had entered into the attic, and is belied by the lack of visible injuries to his head and face.

In the result, as there are no reasonable grounds to believe that the subject officials comported themselves other than lawfully in the course of the tussle that marked the Complainant’s arrest, there is no basis for proceeding with criminal charges in this case.


Date: September 15, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit