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:

• 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 Personal 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.

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

• 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.

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 31-year-old man (the “Complainant”).

Notification of the SIU[1]

On February 25, 2024, at 9:27 a.m., the Niagara Regional Police Service (NRPS) contacted the SIU with the following information.

At 6:22 a.m., NRPS officers responded to 5950 Victoria Avenue (Courtyard by Marriott Niagara Falls) regarding a man reportedly breaking into vehicles. At 6:23 a.m., the Subject Official (SO) arrived and had a verbal exchange with the Complainant, who fled on foot. The officer chased after the Complainant on foot. At 6:26 a.m., while executing the arrest, the officer and the Complainant fell over a barricade into a ditch. The SO sustained a knee injury and the Complainant complained of pain to his shoulder area. Emergency Medical Services (EMS) were requested, and the Complainant was taken to the Niagara Health, Greater Niagara General Hospital (GNGH), where he was diagnosed with a fractured collarbone.

The Team

Date and time team dispatched: 2024/02/25 at 10:00 a.m.

Date and time SIU arrived on scene: 2024/02/25 at 10:38 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

31-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on March 4, 2024.

Civilian Witnesses (CW)

CW #1 Interviewed

CW #2 Interviewed

The civilian witnesses were interviewed on February 25, 2024.

Subject Official (SO)

SO Declined interview, as is the subject official’s legal right; notes received and reviewed

Witness / Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed on March 4, 2024.

The Scene

The events in question transpired on and around the parking lot at the rear of the Courtyard by Marriott Niagara Falls, 5950 Victoria Avenue, Niagara Falls.

Video/Audio/Photographic Evidence[2]

Police Communications Recordings

On February 25, 2024, at about 6:20 a.m., a 911 call was received from CW #2 at the Courtyard by Marriott reporting a man in the parking lot breaking into his vehicle. CW #2 had seen the break-in from his room.

At about 6:26 a.m., the SO arrived on scene, and requested additional units.

At about 6:29 a.m., the SO broadcast that the Complainant was in custody and complaining of shoulder pain.

At about 6:43 a.m., WO #2 advised she was en route to GNGH with the Complainant.

At about 11:02 a.m., WO #1 reported the Complainant had been released from hospital on a Form 10.

Video Footage - Courtyard by Marriott Niagara Falls

The footage covered the parking lot on the east side of the hotel. A police vehicle was captured slowly travelling in the centre of the parking lot and stopping. The SO exited the police vehicle and approached a parked vehicle. The Complainant exited the parked vehicle and fled. The SO pursued on foot a short distance between two parked vehicles on the eastern-most side of the parking lot. The officer tackled the Complainant over a fence and they both fell to the ground. Once on the ground, a parked vehicle blocked the view.

Cellular Telephone Recording – CW #1

From her hotel room, CW #1 recorded the Complainant in the back parking lot of the Courtyard by Marriott. The Complainant was dressed in dark clothing and wore a hoodie. He moved among parked cars and opened the passenger door of a black vehicle. CW #2 was heard calling 911 while the Complainant rummaged inside the vehicle.

The SO arrived and approached the vehicle as the Complainant bolted away. The SO pursued on foot and grabbed the Complainant near a short fence. They both launched over the fence to land on the grass on the other side. The SO landed on top of the Complainant, who landed heavily on his left side.

The SO leveraged his right knee and body weight to pin the Complainant to the ground while he attempted to control his arms. The Complainant rolled onto his back and the SO adjusted his position and delivered a single strike to the Complainant’s head area. WO #2 arrived and, shortly after, WO #1. The SO hobbled on one leg.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from NRPS between February 26 and April 16, 2024:

• Prosecution summary;
• Notes - WO #1;
• Notes - WO #2;
• Notes - WO #3;
• Notes - the SO;
• Police communications recordings; and
• Computer-assisted Dispatch Report.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between February 26 and March 8, 2024:

• The Complainant’s medical records from GNGH;
• Video recordings from the Courtyard by Marriott Niagara Falls; and
• Cellular telephone recording from CW #1.

The evidence collected by the SIU, including interviews with the Complainant and civilian witnesses to the incident, as well as video footage that captured the incident in parts, 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 morning of February 25, 2024, police were called to the parking lot of the Courtyard by Marriott Niagara Falls, 5950 Victoria Avenue, Niagara Falls. From their room, CW #1 and CW #2 had witnessed a male breaking into their vehicle. The SO was the first to arrive on scene in his cruiser, which he stopped in front of the vehicle.

The male was the Complainant. He was in the vehicle when the SO arrived on scene, and fled from the vehicle as the officer exited the cruiser. He ran a short distance with the SO in pursuit, ducking between two parked vehicles and running towards the edge of the parking lot.

The SO followed the Complainant between the vehicles and caught up to him within a stride or two. The two tumbled over a short fence onto the ground on the other side, the officer landing on top of the Complainant before delivering a punch to the Complainant’s head. Other officers arrived on scene and assisted in handcuffing the Complainant.

The Complainant was taken to hospital after his arrest and diagnosed with a fractured left clavicle.

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.

The Complainant was seriously injured in the course of his arrest by a NRPS officer on February 25, 2024. The SIU was notified of the incident and initiated an investigation naming the SO 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 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 Complainant was subject to arrest at the time of the takedown. He had been observed breaking into a vehicle and was fleeing from that same vehicle upon the SO’s arrival.

With respect to the force used by the SO in aid of the arrest, I am unable to reasonably conclude it was unjustified. The grounding, which likely caused the Complainant’s injury, was a reasonable tactic. It would bring the Complainant’s flight to an end and position the officer in an advantageous position to manage any resistance from the Complainant on the ground. The officer says he struck the Complainant once to the head when the Complainant refused to remain in a prone position, a not excessive use of force on the SO’s evidence. The Complainant says he was struck repeatedly in the head, even after he was handcuffed. That evidence, however, is belied by the video footage of the incident, the accounts of officers arriving on scene and participating in the Complainant’s restraint, and the evidence of civilian witnesses. On this record, it would be unwise and unsafe to rest charges on the strength of the Complainant’s evidence alone.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: June 24, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit