SIU Director’s Report - Case # 23-OCI-206
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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 32-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 32-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On May 29, 2023, at 4:48 p.m., the Niagara Regional Police Service (NRPS) notified the SIU of an injury to the Complainant.According to the NRPS, on May 28, 2023, at approximately 9:22 p.m., the NRPS received a 911 called regarding a fight in progress at King Street West, Welland. Officers arrived and the Complainant ran off. At 10:14 p.m., the Complainant was arrested at a nearby intersection. On May 29, 2023, the Complainant was diagnosed with a fractured left knee.
The Team
Date and time team dispatched: 05/30/2023 at 11:05 a.m.Date and time SIU arrived on scene: 05/30/2023 at 1:26 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
32-year-old male; interviewed; medical records obtained and reviewedThe complainant was interviewed on June 3, 2023.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Not interviewed; provided video footage
CW #4 Not interviewed; provided video footage
The civilian witnesses were interviewed on June 8, 2023.
Subject Officials (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on June 27, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Not interviewed; notes received and reviewed
WO #6 Not interviewed; notes received and reviewed
The witness officials were interviewed on June 12, 2023.
Evidence
The Scene
The events in question transpired in and around two residences near King Street and Lincoln Street, Welland. The events in question commenced in the rear yard of a residence, and ended across the road on a driveway after a foot pursuit. A concrete driveway ran between two residences, encompassed by a fence. The roadway was made of asphalt and the driveway was concrete.
Forensic Evidence
Conducted Energy Weapon (CEW) Deployment Data
On June 1, 2023, SIU obtained the SO’s CEW deployment data from May 28, 2023. At 10:13:47 p.m., bay one of his CEW was deployed and at 10:13:48 p.m., bay two was deployed. Video/Audio/Photographic Evidence [2]
911 Call
Two 911 calls were received from residents at King Street, Welland, relating to an assault that had just occurred.
Police Radio Communications
Police dispatched a crew to attend King Street, Welland, for a disturbance. Dispatch provided cautions and a description of the Complainant. Police officers confirmed the Complainant had left the location and requested a police dog and handler to assist.
WO #2 radioed they had the Complainant. WO #3 radioed she was running down a nearby street. WO #2 stated he had the Complainant in custody. WO #3 requested EMS for CEW probes.
Surveillance Camera Footage
On June 19, 2023, SIU investigators obtained surveillance camera footage from CW #4.The footage was black and white, date and time-stamped, and eight minutes in duration. The audio component appeared to be a second or two behind the video component.
On May 28, 2023, at about 10:14:00 p.m., two shots could be heard, off-camera. This was believed to be the discharge of a CEW. At 10:14:12 p.m., the Complainant entered the camera view from the west, running southwest. As the Complainant ran, his left leg limped noticeably. He was closely followed by the SO. WO #3 arrived from the east in her police vehicle. The SO reached out and, with his left hand, grabbed the Complainant by his shoulders. The Complainant pulled away. The SO held onto the right arm of the Complainant and pulled him down to the ground in a forward motion. The Complainant landed on both knees, then his stomach. The SO sat on the Complainant’s back, near his buttocks, and tried to gain control as the Complainant struggled on the ground. WO #3 assisted the SO. The SO yelled, “Get on the ground,” and the Complainant yelled, “What did I do?” The SO and WO #3 gained control and handcuffed the Complainant’s hands behind his back. He was walked to a police vehicle.
The recording ended at 10:25:10 p.m.
Cell Phone Footage
On June 17, 2023, SIU investigators obtained and viewed two cell phone video recordings provided by CW #3. The recording commenced after the Complainant had been handcuffed and provided no further evidence. Materials Obtained from Police Service
Upon request, the SIU received the following materials from the NRPS between June 1 and 6, 2023:- Occurrence Report;
- Communications recordings;
- CEW deployment data;
- Notes-WO #1
- Notes-WO #2;
- Notes-WO #3;
- Notes-WO #5;
- Notes-WO #6; and
- Notes-WO #4.
Materials Obtained from Other Sources
On June 16, 2023, SIU obtained the Complainant’s medical records from Greater Niagara General Hospital.The SIU obtained video footage from CW #3 and CW #4.
Incident Narrative
The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.
In the evening of May 28, 2023, the SO and WO #1 were dispatched to a unit at King Street, Welland. A resident had called police to report having been assaulted by the Complainant. The Complainant was not at the building upon the officers’ arrival. Additional officers, including a dog handler with his dog, were deployed to the scene to assist in locating the Complainant.
WO #2 – the dog handler - arrived at the address and a search for the Complainant was initiated. In short order, the dog led WO #2 and the SO to the rear of a residence a short distance away from King Street. The Complainant was located on the other side of a wooden fence separating the property from an adjacent one. Told that he was under arrest, the Complainant lifted himself from the ground and ran towards the front of another property, scaling another wooden fence in the process.
The SO deployed his CEW twice at the Complainant as he fled, each discharge failing to immobilize the Complainant. The officer scaled the fence and chased after the Complainant on foot.
As the Complainant entered onto the street, he stumbled and fell, picked himself up, and continued a short distance before the SO caught up with him. The officer pulled the Complainant to the ground, and kept him pinned in a prone position. Within moments, WO #3 arrived and assisted the SO in securing the Complainant in handcuffs behind the back.
The following day, after complaining of pain, officers arranged to take the Complainant to hospital where he was diagnosed with a fractured left leg.
In the evening of May 28, 2023, the SO and WO #1 were dispatched to a unit at King Street, Welland. A resident had called police to report having been assaulted by the Complainant. The Complainant was not at the building upon the officers’ arrival. Additional officers, including a dog handler with his dog, were deployed to the scene to assist in locating the Complainant.
WO #2 – the dog handler - arrived at the address and a search for the Complainant was initiated. In short order, the dog led WO #2 and the SO to the rear of a residence a short distance away from King Street. The Complainant was located on the other side of a wooden fence separating the property from an adjacent one. Told that he was under arrest, the Complainant lifted himself from the ground and ran towards the front of another property, scaling another wooden fence in the process.
The SO deployed his CEW twice at the Complainant as he fled, each discharge failing to immobilize the Complainant. The officer scaled the fence and chased after the Complainant on foot.
As the Complainant entered onto the street, he stumbled and fell, picked himself up, and continued a short distance before the SO caught up with him. The officer pulled the Complainant to the ground, and kept him pinned in a prone position. Within moments, WO #3 arrived and assisted the SO in securing the Complainant in handcuffs behind the back.
The following day, after complaining of pain, officers arranged to take the Complainant to hospital where he was diagnosed with a fractured left leg.
Relevant Legislation
Section 25, 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 diagnosed with a serious injury following his arrest by NRPS officers. 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.
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 spoken with the reported victim of an assault at the hands of the Complainant and viewed his injuries. In the circumstances, the officer was proceeding to lawfully arrest the Complainant for assault.
With respect to the force used by the SO, namely, CEW discharges and a takedown, I am satisfied it was legally justified. At the time of the two discharges, neither of which were effective, the Complainant was fleeing from the officer having been told he was under arrest. There was a real prospect that the Complainant might get away, and the SO acted reasonably in attempting to thwart his escape by use of the CEW. The same goes for the resort to a takedown by the officer. The Complainant was in flight from police at the time and the officer had reason to believe that he would resist police efforts to take him into custody once captured. On this record, it made sense to forcibly ground the Complainant to, first, bring his flight to an end and, second, place him in a position of disadvantage from which any additional resistance could be better managed.
It is alleged that the Complainant’s left leg was fractured when an officer, after he was handcuffed on the ground, forced his left ankle backwards and towards his inner right leg. That action, however, was not witnessed by civilian witnesses to the arrest, nor was it captured on video footage that captured the incident in parts.
It remains unclear when precisely the Complainant fractured his leg. It could conceivably have occurred in the course of the reported assault that prompted police attendance, his flight from police, his stumble onto the roadway, or his takedown by the SO. Be that as it may, as there are no reasonable grounds to conclude that the officer comported himself other than lawfully in his dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: September 26, 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 SO had spoken with the reported victim of an assault at the hands of the Complainant and viewed his injuries. In the circumstances, the officer was proceeding to lawfully arrest the Complainant for assault.
With respect to the force used by the SO, namely, CEW discharges and a takedown, I am satisfied it was legally justified. At the time of the two discharges, neither of which were effective, the Complainant was fleeing from the officer having been told he was under arrest. There was a real prospect that the Complainant might get away, and the SO acted reasonably in attempting to thwart his escape by use of the CEW. The same goes for the resort to a takedown by the officer. The Complainant was in flight from police at the time and the officer had reason to believe that he would resist police efforts to take him into custody once captured. On this record, it made sense to forcibly ground the Complainant to, first, bring his flight to an end and, second, place him in a position of disadvantage from which any additional resistance could be better managed.
It is alleged that the Complainant’s left leg was fractured when an officer, after he was handcuffed on the ground, forced his left ankle backwards and towards his inner right leg. That action, however, was not witnessed by civilian witnesses to the arrest, nor was it captured on video footage that captured the incident in parts.
It remains unclear when precisely the Complainant fractured his leg. It could conceivably have occurred in the course of the reported assault that prompted police attendance, his flight from police, his stumble onto the roadway, or his takedown by the SO. Be that as it may, as there are no reasonable grounds to conclude that the officer comported himself other than lawfully in his dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: September 26, 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.