SIU Director’s Report - Case # 20-OCI-338
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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 a serious injury sustained by a 46-year-old man (the “Complainant”).
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 a serious injury sustained by a 46-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On December 3, 2020, at 10:18 p.m., the Waterloo Regional Police Service (WRPS) notified the SIU of an injury sustained by the Complainant. The WRPS advised that at 3:48 p.m., December 3, 2020, WRPS police officers responded to a domestic dispute at the Kitchener Waterloo Working Centre (KWWC). The Complainant had been in a fight and his girlfriend had exited the centre. The Complainant had struck his girlfriend and was arrested by Subject Official (SO) #1 and SO #2. During the struggle with police officers the Complainant was grounded. Witness Official (WO) #1 was a witness to the arrest. The Complainant was taken to the Grand River Hospital (GRH) by Region of Waterloo Paramedic Services (EMS) where he was diagnosed as having sustained a fractured jaw. The Complainant had since been released from the GRH and taken to the WRPS central cell block.
The Team
Date and time team dispatched: 12/03/2020 at 10:55 p.m.Date and time SIU arrived on scene: 12/04/2020 at 9:30 a.m.
Number of SIU Investigators assigned: 3
The Complainant was taken to the GRH by EMS where he was diagnosed with having sustained a facial fracture. The Complainant signed a medical release and the medical records were obtained from the GRH. The medical records contained the ambulance call report.
A Closed-circuit Television (CCTV) video was obtained from the KWWC, which captured the arrest.
Three civilian witnesses from the KWWC were interviewed along with three witness officials.
The two subject officials did not present for an interview or supply copies of their notes.
The booking hall video and the audio communications were obtained from the WRPS.
Affected Person (aka “Complainant”):
46-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on December 4, 2020.
Civilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
The civilian witnesses were interviewed between December 6 and 10, 2020.
Subject Officials
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Declined interview and to provide notes, as is the subject official’s legal right
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on December 21, 2020.
Investigative Delay
A CCTV recorded video was obtained from the KWWC, which captured the arrest. Both WO #2 and WO #3 were identified from the video. WO #2 and WO #3 were designated on December 18, 2020 and they were interviewed on December 21, 2020. The delay was due to days-off. WO #1 had been on vacation time, which explained the delay of his interview.
Evidence
The Scene
The scene was a laneway on the east side of the KWWC at 97 Victoria Street North, Kitchener, between Heit Lane and Victoria Street North.Video/Audio/Photographic Evidence
Summary of CCTV Video - KWWC - December 3, 2020
The recorded video footage was found on two cameras. The first camera was located on the northwest corner of 87 Victoria Street, and looked west at the east side of 83 Victoria Street. The second camera was located on the east side of 97 Victoria Street and faced south towards Heit Lane. The camera was just north of the entry doors that were halfway between Victoria Street and Heit Lane. There was no audio of the interaction between WRPS members and the Complainant. A time was visible on the first of the two recordings, indicating the footage was from 3:36 p.m. There was no time stamp visible on the second recording.
Video 1 - West side of 87 Victoria – starting at 3:36:50 p.m.
A man [now known to have been the Complainant] was depicted. He was observed in the driveway on the east side of 83 Victoria Street. The Complainant was very unsteady on his feet and staggering. The Complainant did not look up towards the camera, so his face was not visible to see if he had any injuries.
Video 2 - East side of 97 Victoria
The Complainant walked north from Heit Lane in the laneway on the east side of 97 Victoria Street towards the east side entrance to the Community Kitchen. The Complainant carried a knapsack in his left hand.
At 00:03 minutes - a uniformed police officer [now known to be SO #1], wearing a black toque with a crest on the front and a surgical mask, entered the laneway from the area where a police SUV was parked on Heit Lane.
At 00:06 minutes - a second uniformed police officer [now known to be SO #2] entered the laneway from the area of the SUV.
At 00:10 minutes - the Complainant stopped, put his knapsack on the ground, turned towards the police officers, and pulled open his coat. The Complainant then walked aggressively towards SO #1.
At 00:16 minutes - the Complainant stopped approximately two metres from SO #1. A man dressed in black and wearing a hat was observed to follow the police officers down the laneway.
At 00:18 minutes - SO #1 was slightly to the Complainant’s right, and SO #2 was three metres to the left of The Complainant.
At 00:19 minutes - SO #1 stepped forward toward the Complainant and reached with his left hand toward the Complainant’s right arm. The Complainant stepped backward and pushed off SO #1. SO #1 reacted by grabbing the Complainant upper right arm with his left hand and the Complainant’s right wrist with his right hand.
At 00:21 minutes - SO #1 stepped behind the Complainant as SO #2 grabbed the Complainant’s back and left arm. SO #1 utilized the Complainant’s right arm to direct him face first to the ground. SO #2 fell to the ground with the Complainant, while SO #1 followed them to the ground.
At 00:26 minutes - SO #2 was on the left side of the Complainant and SO #1 on the right side. They worked to bring the Complainant’s arms behind his back.
At 00:30 minutes - a uniformed female WRPS police officer [now known to have been WO #2] arrived from the Victoria Street side of the laneway. WO #2 took a position with her knee on the back of the Complainant’s shoulder and assisted as he was handcuffed with his hands behind his back.
At 00:35 minutes - a WRPS police officer [now known to have been WO #3] arrived from the north and observed as the Complainant was brought to a seated position.
At 07:00 minutes - EMS arrived to treat the Complainant.
Summary of Police Communications Recordings - December 3, 2020
At 3:56 p.m., a WRPS dispatcher contacted EMS and asked that an ambulance attend at the rear of 97 Victoria Street North, Kitchener. Information was provided that an injured woman had a cut to her head. An EMS dispatcher contacted WRPS to ascertain whether WRPS police officers were present at 97 Victoria Street North, Kitchener.
At 4:07 p.m., a WRPS dispatcher asked EMS to send a second ambulance to 97 Victoria Street North. The WRPS dispatcher corrected the information and said the first dispatch was for the Complainant, with a cut to his head, and the second ambulance was required for a woman with a head injury.
At 3:30 p.m., a WRPS dispatcher broadcasted that a man (the Complainant), who was in his late 40s, had assaulted a woman, who was near the Shoppers Drug Mart, 1221 Weber Street East. The Complainant was angry and yelling.
At 3:46 p.m., a WRPS unit [now known to be WO #2] was dispatched to 97 Victoria Street North. The Complainant was on Heit Lane, Kitchener. Yelling was heard in the background. The dispatcher provided a description of the Complainant.
At 3:48 p.m., WO #2 requested that the Complainant be run through the Canadian Police Information Centre (CPIC).
At 3:49 p.m., WO #2 was notified that the Complainant was positive on the system for Possession of Weapons, Assault, Utter Threats, Assault with Resist Arrest.
At 3:55 p.m., WO #2 requested an ambulance to the location for the Complainant who had a cut to his head. The Complainant was conscious and breathing.
At 4:01 p.m., WO #2 notified dispatch that an ambulance had arrived.
At 4:05 p.m., a second ambulance was requested to assess a woman for a possible head injury.
At 4:14 p.m., WO #2 notified dispatch that the Complainant was being transported to GRH.
Summary of Booking Video
At 10:53 p.m., the Complainant was brought into the booking area and paraded. A sergeant [now known to be WO #1] and an unknown man, uniformed police officer, were present behind the counter.
At 10:55 p.m., the video camera on the ceiling of the booking area captured WO #1 asking if the Complainant had any injuries. He replied that he had a cut on his left arm, which was infected. The Complainant was asked about the injuries to his face and he said that they had happened recently.
At 11:01 p.m., the Complainant had the handcuffs removed and he was taken into a search room.
Materials Obtained from Police Service
The SIU obtained the following records from the WRPS from December 11, 2020 to January 29, 2021:- Communications recordings;
- Letter to SIU regarding Disclosure Request (x2);
- Notes of WOs;
- Procedure - Arrest and Release;
- Procedure - Use of Force;
- Use of Force Training Records – SO #1;
- Computer-assisted Dispatch Details;
- Crown Brief Synopsis;
- Occurrence Details;
- Witness Statement (x3); and
- WRPS booking video.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - 97 Victoria Street CCTV Video; and
- Medical Record GRH with Ambulance Call Report, received December 29, 2020.
Incident Narrative
The material facts in question are clear on the evidence collected by the SIU thanks to a video recording that captured the entire arrest, as well as interviews with several police and civilians who witnessed the incident in parts. As was their legal right, neither SO #1 nor SO #2 interviewed with the SIU or authorized the release of their notes.
At about 3:44 p.m. of December 3, 2020, a 911 call was placed to the WRPS reporting an assault in progress behind the building at 97 Victoria Street North. An inebriated man – the Complainant – was said to have kicked a woman in the head a number of times. Officers were dispatched to the scene.
SO #1 and SO #2 arrived together, parked their cruiser on Heit Lane, exited and made their way on foot along a pathway that lined the east side of the address. The Complainant, walking north some distance ahead of the officers along the same path, became aware of the officers’ presence and turned southward to face them. As the parties neared, SO #1, on the Complainant’s right side, attempted to grab hold of him with his left hand. The Complainant backed away and swatted SO #1’s chest with his left hand. SO #1 moved in and grabbed hold of the left side of the Complainant’s body as SO #2 did the same with his right side. Together, the officers grounded the Complainant onto his right side, before forcing him into a prone position and pinning him on the ground.
Shortly after the Complainant was grounded, the officers were joined by WO #2, approaching from the north end of the pathway. WO #2 placed her right knee on the Complainant’s left shoulder/upper arm area and assisted SO #1 and SO #2 in handcuffing his arms behind his back.
After the handcuffs were affixed, the Complainant was raised by the officers into a seated position on the ground. He remained there for several minutes until paramedics arrived on scene.
The Complainant was loaded onto a stretcher and taken to hospital in ambulance. He was diagnosed with a facial fracture.
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 December 3, 2020, the Complainant was arrested by WRPS officers and subsequently diagnosed with a facial injury. The arresting officers, SO #1 and SO #2, were identified as the subject officials for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the Complainant’s 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. There is no reason in the evidence to doubt that the subject officials had grounds to apprehend the Complainant. The Complainant had violently assaulted a woman moments before the officers’ arrival and was clearly subject to arrest for assault.
Thereafter, it would not appear that the officers used excessive force in taking the Complainant into custody. As is clear in the video of the arrest, SO #1 and SO #2 only took the Complainant to the ground when he backed away and swatted SO #1 as the officer attempted to grab hold of his arm. In the context of an individual the officers had cause to believe was predisposed to violence – the Complainant was reasonably thought to have assaulted a woman a short time ago and had approached the officers in an aggressive fashion in the pathway – they were within their rights, in my view, in taking the Complainant to the ground when he physically resisted arrest. The tactic proved successful in quickly subduing a combative Complainant. No strikes of any kind were delivered by the officers.
There is a distinct possibility raised in the evidence that the Complainant’s left-sided facial fracture was incurred prior to the officers’ arrival; it appears he had been involved in physical altercations with at least one other male before or after his assault on the woman. Be that as it may, as I am not satisfied on reasonable grounds that SO #1 and SO #2 conducted themselves other than lawfully throughout their engagement with the Complainant, there is no basis for proceeding with criminal charges against either officer. The file is closed.
Date: March 30, 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. There is no reason in the evidence to doubt that the subject officials had grounds to apprehend the Complainant. The Complainant had violently assaulted a woman moments before the officers’ arrival and was clearly subject to arrest for assault.
Thereafter, it would not appear that the officers used excessive force in taking the Complainant into custody. As is clear in the video of the arrest, SO #1 and SO #2 only took the Complainant to the ground when he backed away and swatted SO #1 as the officer attempted to grab hold of his arm. In the context of an individual the officers had cause to believe was predisposed to violence – the Complainant was reasonably thought to have assaulted a woman a short time ago and had approached the officers in an aggressive fashion in the pathway – they were within their rights, in my view, in taking the Complainant to the ground when he physically resisted arrest. The tactic proved successful in quickly subduing a combative Complainant. No strikes of any kind were delivered by the officers.
There is a distinct possibility raised in the evidence that the Complainant’s left-sided facial fracture was incurred prior to the officers’ arrival; it appears he had been involved in physical altercations with at least one other male before or after his assault on the woman. Be that as it may, as I am not satisfied on reasonable grounds that SO #1 and SO #2 conducted themselves other than lawfully throughout their engagement with the Complainant, there is no basis for proceeding with criminal charges against either officer. The file is closed.
Date: March 30, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Seized were seven rounds of .354 calibre magnum and one round of .45 calibre ammunition. [Back to text]
- 2) Commercial business. [Back to text]
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.