SIU Director’s Report - Case # 23-OCI-162
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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 section 14 (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 the serious injuries of a 58-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 the serious injuries of a 58-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On May 2, 2023, the Niagara Regional Police Service (NRPS) contacted the SIU with the following information.On May 2, 2023, at approximately 1:52 a.m., NRPS police officers responded to a residence near Queen Elizabeth Way in Grimsby following the receipt of a report of an extremely intoxicated male [now known to have been the Complainant] breaching conditions of his probation. The Complainant was arrested and transported to NRPS Headquarters in Niagara Falls where he was lodged in cells at approximately 3:07 a.m. At approximately 3:47 a.m., the Complainant was reported to have fallen forward onto his head attempting to remove his pants. He fell unconscious and was transported to Niagara General Hospital where he was diagnosed with a fractured neck.
The Team
Date and time team dispatched: 05/02/2023 at 11:24 a.m.Date and time SIU responded: 05/02/2023 at 11:30 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
58-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on May 3, 2023.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
The civilian witnesses were interviewed on May 8, 2023.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal right.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on May 10, 2023.
Evidence
The Scene
The events in question transpired in a cell of the NRPS Central Lock-up Facility, Niagara Falls.Video/Audio/Photographic Evidence [2]
Communications Recordings
A 911 call was received by NRPS at 1:28 a.m. on May 2, 2023, regarding a situation in Grimsby. Two officers [known to be WO #2 and WO #1] were requested to attend a residence in relation to the Complainant, who was possibly suffering from a Mental Health Act episode.Information was provided by the police call-taker that the Complainant was known from police records checks to be violent and a drug user. The Complainant was also known to be currently on charges with release conditions not to be at the residence near Queen Elizabeth Way, Grimsby.
A second 911 call was received at about 1:49 a.m. from the original caller [known to be CW #2] reporting that the Complainant had returned to the residence just after police officers had left. The Complainant’s behaviour had deteriorated since she last saw him and she thought he had taken something, either drugs or alcohol. CW #2 requested the police officers return as the Complainant was trying to get in the rear door. The call-taker advised CW #2 to ensure the doors were all locked and that NRPS officers were being sent back to the house.
WO #1 advised that he had the Complainant in custody and required an ambulance as the Complainant had a small cut to his hand.
WO #2 advised that he was transporting the Complainant to cells.
Cell Video Footage
The Complainant was captured being wheeled into the booking area without any apparent contusions on his forehead or left eye. WO #2 could be heard explaining the grounds for the arrest to the SO. He also explained that the Complainant had been examined by paramedics and the cuts on his hands were found to be old. The Complainant did not speak while at the booking desk. His eyes were open, and he was following the directions of the officers around him. He did not appear to be injured at this time.The Complainant was wheeled into an observation cell with a large window that allowed a view into the cell from the custody desk. He was assisted to his feet, still handcuffed, by two special constables. His pants were down around his left ankle. The handcuffs were removed, and the Complainant sat down on the solid bench of the cell. He was wobbly, but able to sit up on his own, and appeared to converse with the special constables.
The Complainant seemed to fall asleep while sitting upright. When he started to fall over, he stopped himself and remained upright. The Complainant fell to his left and ended up lying on his side on the bench with his legs dangling on the floor. He got up from the bench and shuffled over to the toilet. He was very unsteady on his feet and used the wall around the toilet to support himself.
The Complainant shuffled back over to the bench, turned his back to the bench and then started to fall straight forward. He appeared to try and stop his fall and, when he could not, placed his hands out in front of himself to break the fall. The Complainant fell forward and landed on the floor with his forehead first.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the NRPS between May 3, 2023, and May 26, 2023:- Arrest Information - the Complainant;
- Release Order - October 1, 2022 - the Complainant;
- Mugshot;
- Injury Report - the Complainant;
- Involved Officer List;
- Notes - WO #1;
- Notes - WO #2;
- General Order - Persons in Custody;
- General Order - Use of Force;
- General Order - Powers of Arrest;
- Video footage - Central Station holding cells;
- Communications recordings; and
- Occurrence Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- The Complainant’s medical records from Greater Niagara General Hospital, received on May 9, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and police and non-police witnesses, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
The Complainant was arrested on the premises of a residence near Queen Elizabeth Way in Grimsby in the early morning hours of May 2, 2023. He was there in violation of a judicial release order. The Complainant was taken to the ground in the course of his arrest when he approached the officers – WO #1 and WO #2 – in an aggressive fashion. By all accounts, minimal force was used in the takedown, although it does appear that the Complainant’s head struck the ground in the process.
The Complainant, heavily intoxicated at the time, was taken into custody and lodged in a police cell. About a 40 minutes later, the Complainant fell forward in his cell, striking his forehead on the floor. A special constable entered the cell to assist the Complainant and paramedics were called.
The Complainant was taken to hospital and diagnosed with fractured vertebrae.
The Complainant was arrested on the premises of a residence near Queen Elizabeth Way in Grimsby in the early morning hours of May 2, 2023. He was there in violation of a judicial release order. The Complainant was taken to the ground in the course of his arrest when he approached the officers – WO #1 and WO #2 – in an aggressive fashion. By all accounts, minimal force was used in the takedown, although it does appear that the Complainant’s head struck the ground in the process.
The Complainant, heavily intoxicated at the time, was taken into custody and lodged in a police cell. About a 40 minutes later, the Complainant fell forward in his cell, striking his forehead on the floor. A special constable entered the cell to assist the Complainant and paramedics were called.
The Complainant was taken to hospital and diagnosed with fractured vertebrae.
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.
Section 221, Criminal Code -- Causing bodily harm by criminal negligence
221 Every person who by criminal negligence causes bodily harm to another person is guilty of(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or(b) an offence punishable on summary conviction.
Analysis and Director's Decision
The Complainant was arrested on May 2, 2023, taken into custody, and subsequently diagnosed with serious injuries. In the ensuing SIU investigation, the SO was identified as the subject official. 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 injuries.
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 only force used by police against the Complainant was at his brother’s residence where WO #1 and WO #2 grounded him. On the evidence, the takedown was warranted, given the aggressive fashion in which the Complainant was approaching the officers, and executed with minimal force. Though the Complainant’s impact with the ground cannot be dismissed as the source of one or more of his diagnosed fractures, I am unable to reasonably conclude on this record that the force used by the officers was excessive.
The same may be said of the fall in the cell, namely, while it too might account for one or more of the Complainant’s fractures, it does not give rise to criminal liability on the part of the SO. The issue in this case is one of potential criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of the SO (ultimately responsible for the care of prisoners in the lock-up facility), sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s fall. In my view, there was not. The Complainant had been in the cell for no more than about 40 minutes before he lost his balance and fell. Once down, officers immediately rendered assistance to the Complainant and arranged for prompt medical attention.
It remains unclear precisely when the Complainant’s injuries were incurred. There is evidence, for example, that the Complainant fell on one or more occasions before he was arrested by WO #1 and WO #2. Be that as it may, as there are no reasonable grounds to conclude that the SO or any of the officers who had dealings with the Complainant comported themselves other than within the limits of the criminal law, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: August 30, 2023
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 only force used by police against the Complainant was at his brother’s residence where WO #1 and WO #2 grounded him. On the evidence, the takedown was warranted, given the aggressive fashion in which the Complainant was approaching the officers, and executed with minimal force. Though the Complainant’s impact with the ground cannot be dismissed as the source of one or more of his diagnosed fractures, I am unable to reasonably conclude on this record that the force used by the officers was excessive.
The same may be said of the fall in the cell, namely, while it too might account for one or more of the Complainant’s fractures, it does not give rise to criminal liability on the part of the SO. The issue in this case is one of potential criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of the SO (ultimately responsible for the care of prisoners in the lock-up facility), sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s fall. In my view, there was not. The Complainant had been in the cell for no more than about 40 minutes before he lost his balance and fell. Once down, officers immediately rendered assistance to the Complainant and arranged for prompt medical attention.
It remains unclear precisely when the Complainant’s injuries were incurred. There is evidence, for example, that the Complainant fell on one or more occasions before he was arrested by WO #1 and WO #2. Be that as it may, as there are no reasonable grounds to conclude that the SO or any of the officers who had dealings with the Complainant comported themselves other than within the limits of the criminal law, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: August 30, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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.