SIU Director’s Report - Case # 21-OFP-123
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Mandate of the SIU
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, 2019Pursuant 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 ActPursuant 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, 2004Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.
Other proceedings, processes, and investigationsInformation 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.
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 discharge of a firearm at a 40-year-old man (the “Complainant”).
Notification of the SIUOn April 16, 2021, the Niagara Regional Police Service (NRPS) notified the SIU of a police-firearm discharge at a person incident in Niagara Falls.
The NRPS reported that on April 16, 2021, the NRPS Emergency Task Unit (ETU) responded to a neighbour dispute call, in which the Complainant had barricaded himself in his apartment. The NRPS obtained a Feeney warrant  and, on April 16, 2021, at 10:44 a.m., entered the Complainant’s apartment. An Anti-riot Weapon ENfield (ARWEN) was discharged twice and one projectile struck the Complainant, who was subsequently arrested.
The TeamDate and time team dispatched: 04/19/2021 at 11:07 a.m.
Date and time SIU arrived on scene: 04/20/2021 at 9:39 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):40-year-old male interviewed, medical records received and reviewed
The Complainant was interviewed on April 20, 2021.
Subject OfficialsSO Interviewed, but declined to submit notes, as is the subject official’s legal right.
The subject official was interviewed on April 30, 2021.
Witness OfficialsWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
The witness officials were interviewed on April 22, 2021.
The Scene This incident occurred at the rear of a building on River Road in Niagara Falls. The scene was not examined or photographed.
Video/Audio/Photographic Evidence 
Police Radio CommunicationsAt 12:38:42 a.m. on April 16, 2021, the communications centre dispatched two police officers to a property damage call at an address on River Road in Niagara Falls. A man had said the Complainant slashed his car tires again. He was [a positive hit] for robbery, threats, prohibited firearms possession, prohibited weapon, and not to possess any firearms. The man was going to be waiting in his vehicle in the driveway because he could not drive away as the tires were slashed. The suspect was inside the address.
An officer reported that the male was inside his apartment and the officers were locked out. The officer asked whether the male was flagged for anything, such a mental health issues. The communications centre responded, “Negative, [violent] on CPIC and no hazards, one previous Mental Health Act call back in January.” An officer indicated that two officers were standing in the hallway, and CIB [Criminal Investigation Branch] was working on an entry warrant.
At 8:32 a.m., the communications centre broadcast that there were two officers staying in the hallway, and CIB was working on an entry warrant.
An officer radioed a request for the attendance of EMS to the address on River Road that ETU was at for a conducted energy weapon (CEW) deployment. The officer asked that the cells be notified that they were coming in with a male from River Road who was extremely agitated, and had probes that were still in. The officer asked that EMS be contacted and directed to the cells at headquarters.
Materials Obtained from Police Service The SIU obtained and reviewed the following records from the NRPS:
• Notes of WOs;
• Computer-assisted Dispatch Summary;
• Copy of Feeney warrant;
• Training Summary-the SO;
• Versadex Report;
• NRPS Policy – Use of Force; and
• NRPS Communications Recordings.
Materials Obtained from Other SourcesThe SIU obtained and reviewed the following records from the following other sources:
• Niagara EMS – Ambulance Call Report.
At about 12:20 a.m. of April 16, 2021, a man called police to report that the Complainant had slashed his tires and threatened him with death.
Uniform officers responded to the scene. They sought to arrest the Complainant but were unable to do so. The Complainant had locked himself in a room and was refusing to come out. It was decided that officers would remain by the Complainant’s doorway, containing the scene, while the police sought a Feeney warrant. 
At about 8:00 a.m., a tactical team of officers, led by the SO, were enlisted to execute the Feeney warrant, which had been obtained by that time. In addition to the SO, the team consisted of WO #1, WO #2 and WO #3. The officers arrived at a staging area in the vicinity of the scene at about 9:30 a.m. They were briefed on the morning’s events, reviewed the warrant, and developed a plan for entry into the Complainant’s room. WO #1 was to be the first officer in a stack formation outside the unit charged with breaching the door, if necessary. Behind him were WO #2, the SO and WO #3 armed with a CEW, ARWEN and firearm, respectively, at the ready.
The team arrived at the building shortly after 10:30 a.m. and made their way to the second floor. Just prior to entry, WO #4 tried calling the Complainant inside the unit to arrange a peaceful surrender, but was unable to reach him. Finding the door locked, WO #1 struck it with the ram, loudly announcing the presence of the police as he did so. The door opened partially - a piece of furniture behind the door prevented it opening all the way. The time was about 10:45 a.m.
The Complainant was woken from his sleep at the sound of the door being forced open. He rose to his feet, rushed to the door, and slammed it shut again. The door was struck again with the ram and, this time, opened more fully. The Complainant retreated a distance into the room and adopted a fighting stance at the officers as they yelled at him to get to the floor. The Complainant hurled profanity at the officers, told them they were not welcome in his home, and said that what they were doing was racist.
When the Complainant failed to get to the floor as directed, the SO fired his ARWEN once. The round struck the Complainant’s upper body. At about the same time, WO #2 discharged his CEW, temporarily immobilizing the Complainant. The Complainant went to the floor. However, once the CEW cycle ended, he started swinging his arms in the direction of the officers. This prompted the discharge of a further ARWEN round by the SO, which may or may not have struck the Complainant, and another CEW deployment by WO #2.
Following the second ARWEN and CEW discharges, the officers moved in to physically engage with the Complainant and he was handcuffed in short order without incident.
Aside from bruising, the Complainant was not seriously injured in the incident.
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,
Analysis and Director's Decision
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 am satisfied that the tactical team, including the SO, were proceeding to lawfully arrest the Complainant when the ARWEN was used. In effect at the time was a warrant authorizing their forcible entry into the unit to take the Complainant into custody.
I am further satisfied that the decision to deploy a tactical team, and the conduct of that team, were reasonable in the circumstances. Given the information at their disposal to the effect that the Complainant had slashed a neighbour’s tires and threatened to kill him, there prevailed a legitimate concern that the Complainant might have access to weapons inside his apartment, and a willingness and ability to use them. Tactical officers train specifically for incidents involving weapons. Once at the Complainant’s apartment door, the officers endeavoured to have the Complainant surrender peacefully but were unable to reach him inside the apartment. Thereafter, having forced open the door, the Complainant reacted angrily to the officers’ presence and adopted an aggressive posture toward them. In the circumstances, still concerned that the Complainant was armed, I am unable to fault either of the SO and WO #2 when they deployed their less lethal weapons attempting to neutralize him at a distance. This followed requests made that the Complainant drop to the floor, and the Complainant’s failure to do so. As the Complainant was only temporarily immobilized by the initial ARWEN and CEW discharges, and continued to lash out at the officers, I am unable to reasonably conclude that a further discharge of their weapons by each officer was excessive. The officers were operating in a confined space in a dynamic situation involving a violent person whom they legitimately feared could be armed. On this record, and mindful of the common law principle that officers embroiled in dangerous situation are not expected to measure their responsive force with precision – what is required is a reasonable response, not necessarily an exacting one, I am satisfied that the force used by the officers did not run afoul of the law.
For the foregoing reasons, there are no reasonable grounds to believe that the SO conducted himself other than lawfully throughout his engagement with the Complainant. Accordingly, there is no basis for proceeding with charges in this case.
Date: August 13, 2021
Electronically approved by
Special Investigations Unit
- 1) Obtained via the framework set out in sections 529 and 529.1 of the Criminal Code, and named after the Supreme Court of Canada decision in R v Feeney  2 SCR 13, a warrant of this nature authorizes a police officer’s forcible entry into a dwelling-house to effect an arrest. [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]
- 3) Supra at footnote 1. [Back to text]
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.