SIU Director’s Report - Case # 21-OCI-069
Warning:
This page contains graphic content that can shock, offend and upset.
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 section14 (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.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 a 41-year-old woman (the “Complainant”) suffered during an interaction with the police.
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 a 41-year-old woman (the “Complainant”) suffered during an interaction with the police.
The Investigation
Notification of the SIU
On March 3, 2021, the Niagara Regional Police Service (NRPS) notified the SIU of the Complainant’s injury.NRPS reported that on March 3, 2021, at approximately 6:50 p.m., police officers from the NRPS Street Crime Unit (SCU) were conducting surveillance on drug activity in the area of Preakness Street in Niagara Falls. The police officers saw a woman approach a vehicle and purchase drugs from the driver. The woman was identified as the Complainant. She walked away and the Subject Official (SO) approached and arrested her. She began to pull away from the SO and as a result suffered a fractured arm. The Complainant was taken to the Greater Niagara General Hospital (GNGH) and released unconditionally from police custody.
The Team
Date and time team dispatched: 03/04/2021 at 7:03 a.m.
Date and time SIU arrived on scene: 03/04/2021 at 11:43 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
The Complainant was interviewed on March 4, 2021.
Civilian Witnesses (CW)
CW #1 Interviewed
CW #2 Interviewed
The civilian witnesses were interviewed on March 4, 2021.
Subject Official
SO Interviewed, but declined to submit notes, as is the subject official’s legal right. The subject official was interviewed on March 15, 2021.
Witness Officials (WO)
WO #1 Interviewed
WO #2 Interviewed
The witness officials were interviewed between March 6 and 16, 2021.
Evidence
The Scene
The incident occurred on the grounds of a townhouse complex in the area of Preakness Street, Niagara Falls. Video/Audio/Photographic Evidence
NRPS Radio and Telephone Communications
The police communications recordings were received from NRPS on March 15, 2021. They were not time or date stamped. • An SCU police officer [now known to have been WO #1] called-in and reported they had two arrested persons, and they required an ambulance. A woman [now known to have been the Complainant] was heard screaming and crying in the background.
• WO #1 asked for a uniform female police officer to attend, as one of the arrested persons was a woman, and she would be required to go to the hospital with her. He requested a second uniform police officer to transport the second arrested person.
• The dispatcher asked if the road sergeant had copied the message. The sergeant replied he would head to the location.
Materials Obtained from Police Service
Upon request, the SIU received the following materials and documents from the NRPS between March 4 and 17, 2021:
• Cell Phone Photographs of the Scene;
• Communication Recordings;
• Notes-WO #1;
• Notes-WO #2;
• Arrest Details;
• Computer-assisted Dispatch (CAD) Printout;
• General Order – Use of Force;
• General Order – Powers of Arrest;
• General Order – Search and Seizure;
• CAD Summary;
• Prosecution Summary Report; and
• Surveillance Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following record on March 10, 2021:
• Medical Records from GNGH.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and the SO. In the evening of March 3, 2021, the Complainant was taken into custody following a brief physical altercation with the SO. The arrest occurred on the grounds of a townhouse complex off of Preakness Street.
Moments before the arrest, an undercover team of NRPS officers, led by the SO, had observed the Complainant purchase a quantity of illicit drugs from CW #1. CW #1 had pulled into the townhouse complex and parked his Jeep, after which the Complainant approached the passenger side of the vehicle, opened the front passenger door, and paid over a quantity of cash in exchange for a packet of cocaine.
Soon after the transaction, as the Complainant was walking away from CW #1’s vehicle, four unmarked police vehicles surrounded the Jeep. CW #1 exited his vehicle and was arrested without incident.
Among the officers, the SO, who had positioned his vehicle nose-to-nose with the Jeep, chased after the Complainant on foot and called out to her to stop. The Complainant refused to hand over the cocaine she had just purchased and resisted as the SO moved in to arrest her.
Paramedics were called to the scene as it became clear that the Complainant’s left shoulder had been injured.
The Complainant was taken to hospital from the scene via ambulance, and diagnosed with a fracture of the left arm.
Moments before the arrest, an undercover team of NRPS officers, led by the SO, had observed the Complainant purchase a quantity of illicit drugs from CW #1. CW #1 had pulled into the townhouse complex and parked his Jeep, after which the Complainant approached the passenger side of the vehicle, opened the front passenger door, and paid over a quantity of cash in exchange for a packet of cocaine.
Soon after the transaction, as the Complainant was walking away from CW #1’s vehicle, four unmarked police vehicles surrounded the Jeep. CW #1 exited his vehicle and was arrested without incident.
Among the officers, the SO, who had positioned his vehicle nose-to-nose with the Jeep, chased after the Complainant on foot and called out to her to stop. The Complainant refused to hand over the cocaine she had just purchased and resisted as the SO moved in to arrest her.
Paramedics were called to the scene as it became clear that the Complainant’s left shoulder had been injured.
The Complainant was taken to hospital from the scene via ambulance, and diagnosed with a fracture of the left arm.
Relevant Legislation
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.
Analysis and Director's Decision
On March 3, 2021, the Complainant suffered a serious injury in the course of her arrest in Niagara Falls by a NRPS officer. The arresting officer – the SO – was identified as a subject official for purposes of the SIU investigation. 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. I accept that the SO was within his rights in taking the Complainant into custody. The Complainant had just engaged in an illegal purchase of drugs and was clearly subject to arrest.
While there are varying accounts in the evidence of the physical interaction between the SO and the Complainant, I am unable to reasonably conclude that the officer used excessive force. At its highest, the evidence indicates that the SO broke the Complainant’s left arm when he forcefully yanked it out of her pocket after she refused to hand over the drugs she had just acquired. While the Complainant’s injury is regrettable, the SO had cause to be concerned that anything less than prompt, resolute action risked the Complainant moving to discard or consume the drugs. On this record, if the officer did not perfectly tailor the force he brought to bear in extracting the Complainant’s hand, I am not persuaded that he was so heavy-handed as to have fallen afoul of the range of reasonable force in the circumstances.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his interaction with the Complainant, there is no basis for proceeding with criminal charges against the officer and the file is closed.
Date: June 28, 2021
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. I accept that the SO was within his rights in taking the Complainant into custody. The Complainant had just engaged in an illegal purchase of drugs and was clearly subject to arrest.
While there are varying accounts in the evidence of the physical interaction between the SO and the Complainant, I am unable to reasonably conclude that the officer used excessive force. At its highest, the evidence indicates that the SO broke the Complainant’s left arm when he forcefully yanked it out of her pocket after she refused to hand over the drugs she had just acquired. While the Complainant’s injury is regrettable, the SO had cause to be concerned that anything less than prompt, resolute action risked the Complainant moving to discard or consume the drugs. On this record, if the officer did not perfectly tailor the force he brought to bear in extracting the Complainant’s hand, I am not persuaded that he was so heavy-handed as to have fallen afoul of the range of reasonable force in the circumstances.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his interaction with the Complainant, there is no basis for proceeding with criminal charges against the officer and the file is closed.
Date: June 28, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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.