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 of a 54-year-old man (the “Complainant”).

Notification of the SIU [1]

On May 30, 2023, at about 10:53 p.m., the Niagara Regional Police Service (NRPS) notified the SIU of an injury to the Complainant.

According to NRPS, the NRPS was involved in a child pornography investigation and sought to arrest the Complainant. The Complainant was located at a residence in the area of Phipps Street and Niagara Boulevard, Fort Erie, and came to the door, but would not come out to be arrested. The NRPS obtained a warrant to enter a dwelling-house (Feeney warrant [2]) and subsequently arrested the Complainant. The Complainant was transported to the station where he complained of sore ribs. He was taken to the hospital and diagnosed with a fractured rib.

The Scene

The events in question transpired in an upper-floor bedroom of the building near Phipps Street and Niagara Boulevard, Fort Erie.

NRPS took photographs of the building and room where the Complainant was arrested.

Video/Audio/Photographic Evidence [3]

Communications Recordings and Computer-assisted Dispatch (CAD)

On June 13, 2023, at 11:00 a.m., NRPS provided the communications recordings and CAD report in connection with the Complainant’s arrest.

The recordings began at 3:59 p.m., on May 30, 2023, and ended at 4:15 p.m. WO #2 advised dispatch that NRPS officers were en route to the scene to execute a search warrant. WO #2 then broadcast all units were on scene. The next broadcast was WO #2 advising that two persons were in custody. There was a screaming sound in the background. WO #2 advised dispatch that CW #2 was to be released at the scene and the Complainant would be taken to NRPS cells. All NRPS officers had exited the scene at that time. The SO broadcast that he was with the Complainant heading to central cells.

The evidence collected by the SIU, including an interview with the Complainant, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

In the afternoon of May 30, 2023, NRPS officers showed up at a residence near Phipps Street and Niagara Boulevard, Fort Erie. They were there to execute a Feeney warrant to enter the residence and arrest the Complainant, who was wanted in relation to a child pornography investigation. The SO was among the officers on scene. The officers entered the premises and made their way upstairs, where they had reason to believe the Complainant resided.

The SO was the first officer to confront the Complainant in the Complainant’s bedroom. He was joined by WO #1. Following a physical altercation, the Complainant was handcuffed by the officers and taken into custody.

The Complainant complained of pain and was taken to hospital. He was diagnosed with possibly un-displaced left-sided rib fractures.

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,

The Complainant was seriously injured in the course of his arrest by NRPS officers in Fort Erie on May 30, 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 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 officers who attended at the residence were in possession of a facially valid arrest warrant. In the circumstances, I am satisfied that the SO was within his rights in seeking to take the Complainant into custody.

It has been alleged that the Complainant was a victim of excessive force at the hands of the arresting officers, but it would be unwise and unsafe to rest charges on the strength of this evidence alone. This evidence indicates the Complainant was compliant with police at all times, and never physically resisted his arrest, but was subjected to repeated knee-strikes and punches while handcuffed. He was also grabbed by the hair and had his head banged off the floor.

This evidence is contested by the SO and WO #1, whose accounts paint a picture of reasonable force. In the officers’ rendition of events, the SO delivered a knee-strike to the Complainant’s side when he refused to release his hands from under his body while on the bedroom floor. The officer struck the Complainant with another knee, this time to a leg, when he began to kick. WO #1 punched the Complainant once to the right shoulder after he was kicked by the Complainant during the struggle on the ground. No further force was used after the officers controlled the Complainant’s hands behind his back and secured him in handcuffs.
There is little if anything to tip the balance regarding this conflict in the evidence, and some reasons to be wary of the allegation which claims, for example, that the Complainant was willing to surrender to police from the moment they arrived at the residence. That evidence, however, is belied by the evidence of another occupant of the address, who recalls the Complainant running up the stairs to his bedroom after realizing that the police were about to enter. On this record, I am unable to reasonably conclude that the more incriminating version of what happened is any closer to the truth than that proffered by the officers. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: September 27, 2023


Electronically approved by

Joseph Martino
Director
Special Investigations Unit