Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into an incident that took place at about 3:40 p.m. on September 1, 2016 involving the Niagara Regional Police Service (NRPS).The complainant fled on foot when he was confronted by NRPS officers. The complainant was quickly caught by the officers and resisted their efforts to secure him in handcuffs. The officers were able to subdue the complainant and retrain him in handcuffs, whereupon he was taken to the hospital and diagnosed with a broken nasal bone.

Notification of the SIU

The SIU was notified of the incident by the NRPS on September 1, 2016 at 10:15 p.m.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 0

Complainant

24-year-old male, interviewed

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right

The Scene

The incident took place in the area of Main Street and Ferry Street in Niagara Falls.

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from NRPS

Upon request the SIU obtained and reviewed the following materials and documents from the NRPS:

• Booking photo of complainant,
• Disclosure log with responses to Sept 6, 16 disclosure request,
• Disclosure log-2016-09-19,
• Information folder,
• Involved officer list,
• Narrative text-initial report-16-76859,
• WO notes
• NRPS contact- complainant,
• Procedure-general order 074.04-execution of criminal process, and
• Warrant for arrest.

On September 1, 2016, a warrant was in effect for the complainant’s arrest for the offence of assault causing bodily harm contrary to s.267 of the Criminal Code. As a result, the NRPS Street Crime Unit, of which the SOs and the WOs were members, was going to make attempts to arrest the complainant on the warrant. At approximately 3:30 p.m., the complainant was located in a truck on Ferry Street in the City of Niagara Falls. The complainant was in the company of his friend, CW #1. WO #5 had been conducting surveillance on the complainant for approximately one hour prior to his attendance at a tattoo parlour on Ferry Street. WO #5 observed the complainant speaking to CW #2 when WO #6 and WO #3 advised that the complainant was to be arrested while he was out of his vehicle. WO #5 put on his police vest, got out of his vehicle and ran towards the tattoo parlour. SO #1 was running in the same direction. As WO #5 neared the complainant, he called out for this arrest. The complainant ran across Ferry Street into a parking lot, and while SO #1 continued to pursue him, WO #5 stopped at the truck and arrested CW #1. Once WO #6 arrived at the truck, WO #5 ran in the direction that the complainant had gone and saw him on the ground with other police officers around him. He then returned to the truck.

SO #1 tackled the complainant to the ground because the complainant was running with his hands in his pockets before turning towards him, and he feared the complainant had a firearm. SO #2 struck the complainant in the face as he would not show his hands as instructed. SO #2 also struck the complainant in the rib area to free one of his arms. WO #2 straddled the complainant’s legs and punched him in the thigh area twice, to gain compliance while he was actively resisting. The complainant was not struck after he was handcuffed. Following his arrest, the complainant was transported to hospital and diagnosed with a broken nose.

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.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the complainant’s apprehension, it is clear that a warrant had been sworn before a Justice of the Peace for the arrest of the complainant for the offence of assault causing bodily harm contrary to s.267 of the Criminal Code. Additionally, WO #5 advised that he had observed the complainant carry out a drug transaction while he had the complainant under surveillance, and as such, he had reasonable grounds to arrest the complainant for the offence of trafficking in a substance contrary to s.5 and possession of a substance contrary to s.4 of the Controlled Drugs and Substances Act. As such, the pursuit and apprehension of the complainant were legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the complainant, I find that their behaviour was justified in the circumstances and that they used no more force than necessary to subdue the complainant, who refused to show his hands when directed, had been seen with his right hand down the waistband of his pants while running away and who officers believed, on information received, was suspected of having access to firearms and had a warrant outstanding for an offence of violence. Additionally, as the complainant had already fled from police and was observed by WO #3 to be struggling against SO #1 and SO #2 and was observed by WO #2 to be flailing and kicking his legs and flailing his right hand, it was clear that the complainant was not going to allow himself to be arrested without some resistance.

It is clear that SO #1 tackled the complainant to the ground and that he did so because the complainant was running with his hands in his pockets before turning towards him and SO #1 indicated that he feared the complainant had a firearm; SO #2 struck the complainant in the face because he would not show his hands as instructed and WO #3 observed SO #2 strike the complainant in the rib area to try and get one of his arms free; WO #1 admitted to punching the complainant in the triceps when the complainant was digging under his body with his left hand; and WO #2 indicated that he straddled the complainant’s legs and punched him in the thigh area twice, to gain compliance while he was actively resisting.

On this record, it is clear that the actions of the officers were dictated by the information in their possession about the complainant; that being that he was suspected of having access to firearms, that he had been observed dealing drugs, that he was wanted for an offence of violence for which there was a warrant out for his arrest and that he was seen by a number of officers with his hands around his waistband area which would have been the most obvious location for a firearm to have been hidden. On this evidence, it was paramount for police officers to apprehend the complainant and it would have been foolish not to take every precaution in doing so, including the need to both subdue the complainant and to get both of his hands out from under him in order to prevent his access to any weapons and thereby avoid any possible harm coming to themselves or the public.

On all of the evidence before me, I cannot find that the officers resorted to an excessive use of force in overcoming the resistance of a possibly armed and known to be violent male who first fled and then was actively resisting officers’ attempts to gain control of his hands and affect his lawful detention.

In the final analysis, I am satisfied for the foregoing reasons that the complainant’s arrest and the manner in which it was carried out were lawful notwithstanding the injury which he suffered. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: July 27, 2017

Original signed by
Joseph Martino
Acting Director
Special Investigations Unit