SIU Director’s Report - Case # 23-TCI-189
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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 injury of a 36-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 injury of a 36-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On May 18, 2023, at 11:15 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.On May 18, 2023, at approximately 7:00 a.m., a Joint Forces Operation executed a “no-knock” drug search warrant at the Complainant’s address in Niagara Falls. The Complainant attempted to flee by jumping out the second-storey window of the residence. He was taken into custody and transported to Niagara Falls Health Centre (NFHC) where he was diagnosed with a broken ankle.
The Team
Date and time team dispatched: 05/18/2023 at 11:54 a.m.Date and time SIU arrived on scene: 05/18/2023 at 2:15 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
36-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on May 18, 2023.
Subject Official (SO)
SO Interviewed; notes received and reviewedThe subject official was interviewed on June 13, 2023.
Witness Officials (WO)
WO #1 InterviewedWO #2 Not interviewed; notes reviewed and interview deemed not necessary
WO #3 Not interviewed; notes reviewed and interview deemed not necessary
WO #4 Not interviewed; notes reviewed and interview deemed not necessary
WO #5 Not interviewed; notes reviewed and interview deemed not necessary
WO #6 Not interviewed; notes reviewed and interview deemed not necessary
The witness official was interviewed on June 29, 2023.
Evidence
The Scene
The events in question transpired in and around the staircase from the main floor to the second floor of the Complainant’s residence in Niagara Falls.At the residence front door, a conducted energy weapon (CEW) blast door was lying on the porch. The front door to the residence was damaged due to forced entry. Inside the residence was a staircase that ascended to the second floor. At the base of this staircase were CEW Anti-felon Identification Disks (AFIDS) scattered on the floor. On the wall opposite the stairway was an area of damage. In the kitchen/living room area was further evidence of CEW deployment with more AFIDS and one more blast door. There was no evidence of CEW probes or wire inside the residence.
Forensic Evidence
CEW Deployment Data – WO #2
Events of WO #2’s CEW - May 18, 2023
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP, Halton Regional Police Service (HRPS), Niagara Regional Police Service (NRPS), Toronto Police Service (TPS) and York Regional Police (YRP):- OPP General Order - Joint Forces Operation;
- OPP General Order - Search of Premises;
- OPP General Order - Arrest/Detention;
- Project notes;
- Notes – WO #4 (OPP);
- Notes – WO #6 (OPP);
- Occurrence Summary;
- Notes – the SO (TPS);
- Notes – WO #2 (HRPS);
- Notes – WO #3 (NRPS);
- Notes – WO #5 (YRP);
- Notes – WO #1 (TPS);
- Notes – Officer #1 (NRPS); and
- Search Warrant.
Materials Obtained from Other Sources
The SIU obtained the following record from other sources:- The Complainant’s medical records from NFHC.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may briefly be summarized.
In the morning of May 18, 2023, the Complainant was in his second floor bedroom when he heard loud bangs from the main floor. He walked into the hallway outside his bedroom door overlooking the staircase to the main floor. Uniformed officers were making their way up the stairs towards him.
The officers were part of a joint forces operation involving members from the TPS, OPP, NRPS, YRP and HRPS. They had attended at the residence in Niagara Falls to execute a search warrant for drugs. Led by the SO of the TPS, the team had forcibly entered through the front door of the home with the use of a ram, after which three of them – WO #1 (TPS), WO #4 (OPP) and WO #3 (NRPS) - made immediately for the stairs to the second floor.
As the officers on the staircase neared the second floor landing, the Complainant leapt over the railing and descended upwards of three metres. He landed on the first flight of stairs, fracturing his right foot in the process, and was struck by a CEW deployment before he was handcuffed behind the back and taken into custody.
In the morning of May 18, 2023, the Complainant was in his second floor bedroom when he heard loud bangs from the main floor. He walked into the hallway outside his bedroom door overlooking the staircase to the main floor. Uniformed officers were making their way up the stairs towards him.
The officers were part of a joint forces operation involving members from the TPS, OPP, NRPS, YRP and HRPS. They had attended at the residence in Niagara Falls to execute a search warrant for drugs. Led by the SO of the TPS, the team had forcibly entered through the front door of the home with the use of a ram, after which three of them – WO #1 (TPS), WO #4 (OPP) and WO #3 (NRPS) - made immediately for the stairs to the second floor.
As the officers on the staircase neared the second floor landing, the Complainant leapt over the railing and descended upwards of three metres. He landed on the first flight of stairs, fracturing his right foot in the process, and was struck by a CEW deployment before he was handcuffed behind the back and taken into custody.
Relevant Legislation
Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm
219 (1) Every one is criminally negligent who
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
(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 seriously injured in the course of his arrest by police officers in Niagara Falls on May 18, 2023. One of the officers – the SO – was identified as the subject official in the ensuing SIU investigation of the incident. 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.
The offence that arises for consideration is 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 or any of the joint forces’ officers, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s injury. In my view, there was not.
The SO and his team of officers were lawfully placed throughout the series of events that culminated in the Complainant’s arrest. They had entered the house on the authority of a facially valid search warrant, and were proceeding to lawfully arrest the Complainant on the strength of information indicating he had trafficked in a controlled substance, when he jumped over the railing.
I am further satisfied that the SO and his colleagues comported themselves with due care and regard for the Complainant’s safety throughout their engagement. The only real issue here was the team’s decision to enter the residence without first knocking. There is always the concern with dynamic entries that occupants will react rashly without the time and space to fully appreciate what is happening around them. ‘No-knock’ entries are, therefore, exceptional but can be justified where there are legitimate concerns for officer safety or evidence destruction. The latter, it would appear, was operative in this case. Moreover, this was not one of those case where the homeowner acts on the basis of an erroneous belief that the officers are intruders. The Complainant was fully aware he was dealing with police officers when he decided to attempt an escape by jumping from the second floor.
In the result, as there are no reasonable grounds to believe that the SO or any of the involved officers transgressed the limits of care in their dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. [2] The file is closed.
Date: September 15, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offence that arises for consideration is 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 or any of the joint forces’ officers, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s injury. In my view, there was not.
The SO and his team of officers were lawfully placed throughout the series of events that culminated in the Complainant’s arrest. They had entered the house on the authority of a facially valid search warrant, and were proceeding to lawfully arrest the Complainant on the strength of information indicating he had trafficked in a controlled substance, when he jumped over the railing.
I am further satisfied that the SO and his colleagues comported themselves with due care and regard for the Complainant’s safety throughout their engagement. The only real issue here was the team’s decision to enter the residence without first knocking. There is always the concern with dynamic entries that occupants will react rashly without the time and space to fully appreciate what is happening around them. ‘No-knock’ entries are, therefore, exceptional but can be justified where there are legitimate concerns for officer safety or evidence destruction. The latter, it would appear, was operative in this case. Moreover, this was not one of those case where the homeowner acts on the basis of an erroneous belief that the officers are intruders. The Complainant was fully aware he was dealing with police officers when he decided to attempt an escape by jumping from the second floor.
In the result, as there are no reasonable grounds to believe that the SO or any of the involved officers transgressed the limits of care in their dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. [2] The file is closed.
Date: September 15, 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) Though not the focus of the SIU investigation, the evidence indicates that the Complainant was struck by a CEW discharge fired by WO #2 prior to his arrest. In light of the accounts of WO #2, WO #3, WO #4 and WO #5 that the Complainant immediately rose to his feet after falling from the jump and adopted a fighting stance towards the officers, it is not apparent that WO #2’s use of the weapon was unreasonable. [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.