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: 

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 31-year-old man (the “Complainant”).

Notification of the SIU

On August 6, 2021, at 12:15 p.m., the Waterloo Regional Police Service (WRPS) notified the SIU of an injury to the Complainant.

The WRPS advised that on August 5, 2021, at approximately 6:34 p.m., the Subject Official (SO) had observed a man operating a modified motorized bicycle (MMB) in the area of Westmount Road and Victoria Street South in Kitchener. The police officer attempted to stop the man, but he tried to ride away. While attempting to flee the police officer, the bicycle struck a curb and the man fell off the bike. That man was apprehended and identified as the Complainant.

The Complainant was offered Emergency Medical Services, but declined.

The Complainant was issued three Provincial Offence Notices (PONs) and sent on his way.

Later, the Complainant attended the Grand River Hospital (GRH) where he was examined in the emergency room and diagnosed with a fractured left radial head (elbow).

The Team

Date and time team dispatched: 08/06/2021 at 1:05 p.m.

Date and time SIU responded: 08/06/2021 at 1:38 p.m.

Number of SIU Investigators assigned: 3

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on August 9, 2021.

Civilian Witnesses

CW Interviewed

The civilian witness was interviewed on August 26, 2021.

Subject Officials

SO Interviewed, but declined to submit notes, as is the subject official’s legal right.

The subject official was interviewed on October 25, 2021.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

The witness officials were interviewed between August 11, 2021, and September 17, 2021.

The Scene

The scene was neither attended nor was it examined at the time of the Complainant’s interaction with the SO. An investigator did attend the area on August 10, 2021, to canvass for residential security video. [1]

The area was an exclusively residential neighbourhood populated by a combination of detached and semi-detached one-storey homes. The road was a paved roadway separated from the homes by elevated curbs of common height, and grass boulevards and sidewalks of common width.

Video/Audio/Photographic Evidence [2]

The SIU searched for and obtained audio, video, and photographic records of relevance, as set out below

Body Worn Camera (BWC) footage – the SO

Requested on August 6, 2021, the SO’s BWC video was received into the SIU Central Registry on August 17, 2021.

Recorded on August 5, 2021, the footage began at 6:34:37 p.m., some 24 seconds before the Complainant fell from his bike. The total file was 23 minutes, 33 seconds long. The remainder of the video captured conversation between the Complainant and the SO and, from 6:33:43 p.m. to 6:57:19 p.m., the SO in his police vehicle preparing PONs.

At 6:34:50 p.m., the SO looked toward a bend in the road from where a loud engine was heard. At 6:34:54 p.m., the MMB, operated by a man [now known to be the Complainant], neared where the SO stood. The SO’s left hand was visible on camera. His fingers were extended, pointed at the Complainant. A man [now known to be the CW] stood on the porch of a nearby residence, faced toward the street.

At 6:34:59 p.m., the Complainant passed the SO and looked towards him. The SO’s left arm was still extended toward the Complainant, and he said, “Stop.” The Complainant’s hands gripped the handle grips; his fingers were not on the brake levers. Any physical contact between the two had concluded, and the Complainant drove past the SO.

At 6:35:00 p.m., the Complainant made it to a nearby tree, next to the curb, before he lost his balance.

By 6:35:01 p.m., the Complainant had fallen onto the driveway of nearby residence.

Between 6:35:05 p.m. and 6:38:11 p.m., the Complainant stood to his feet and the SO said, “I told you to stop.” The Complainant responded, “I tried to move around you, are you fucking stupid?” The SO said, “You’ve got to stop for police.” The Complainant said, “You fucking just knocked me off my bike.”

The SO and the Complainant argued. The Complainant berated the SO for knocking him off his bike. The SO did not deny doing so. The Complainant said, “I went around you to slow down, you body checked me off my bike.” The SO said, “I know, I was trying to grab [indecipherable] you were trying to evade me.” The Complainant said, “Ya, because you jumped in front of me. Why would you do that?” The SO said, “Because I was trying to stop you.”

The Complainant had cuts on his back, and both his elbows were skinned. The Complainant paced and smoked a cigarette with his right hand, and motioned both his arms in animated dialogue. He did not complain of any pain; he did inspect his elbows.

Between 6:44:43 p.m. and 6:57 p.m., the SO was in his police vehicle preparing PONs. He issued those PONs to the Complainant at 6:57:19 p.m., and the Complainant walked his MMB in the direction from which he came.

Police Radio Communications

Requested on August 9, 2021, and received into the SIU Central Registry on August 28, 2021, all radio transmissions made during the SO’s interaction with the Complainant on August 5, 2021, were made after the Complainant had fallen from his MMB.

At 6:39 p.m., the SO asked the dispatcher to pre-empt him from his task and put him on a traffic stop. The dispatcher asked for his location and he provided an address. She asked for a licence plate and was told he had stopped an MMB.

At 6:41 p.m., the SO asked for and was given the occurrence number for his stop. He also asked the dispatcher to check the Complainant. The dispatcher gave him the results of that check and the SO asked her to check for a driver’s licence. He was told the Complainant did not have one.

At 6:46 p.m., the SO asked if a sergeant was logged on and was told no.

Mobile Data Terminal (MDT) Transmissions

Requested on August 9, 2021, and received into the SIU Central Registry on August 28, 2021.

On August 5, 2021, at 7:11 p.m., the SO messaged the dispatcher to put “this” on hold, he would come back to it, and have a unit contact him when they logged on. That message was acknowledged by the dispatcher.

At 7:22 p.m., the dispatcher messaged the SO that WO #2 was logged on and had been asked to call him.

At 8:00 p.m., WO #3 sent a message to the SO asking if he knocked the person [now known to be the Complainant] off an e-bike and, at 8:05 p.m., the SO responded, “Yes, it was on a bolt on motor to a bicycle and I tried to stop him and he scrubbed the curb with his bike and fell off…my video was on so you can watch it.”

At 8:14 p.m., WO #3 asked if the SO offered the Complainant medical attention because the Complainant was going to the hospital, and WO #3 wanted to know what injuries he had and why the SO stopped him. The SO replied, “I got a statement from the witness that saw it,” and, “Yes, I offered him an ambulance and he said he wasn’t getting anything from me. He was driving with no helmet and on a bicycle that had a bolt on motor, when it was clear he was not trying to stop I attempted to grab a hold of him.”

At 8:29 p.m., WO #3 told the SO, “OK…make good notes…make copies of everything and leave them here with me before going home…I need to make sure on injuries that we need to contact the SIU.” The SO acknowledged and returned, “OK, I’m just headed back from office. I will see you in a few.”

At 10:10 p.m., WO #3 messaged WO #1, “If you talk to the doctor, we viewed the video and he did not hit his head.”

On August 6, 2021, at 1:19 a.m., WO #1 messaged WO #2, “Discharged with left radial head fracture left elbow…should I give a copy of my notes to staff? I already told him about the injury.” At 1:21 a.m., WO #2 messaged, “Yup, go in and provide em just in case…thx.”

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the WRPS:

• Computer-assisted Dispatch Details;
• MDT Transmissions;
• Communication recordings;
• BWC footage – the SO;
• Notes of WOs;
• Policy - Arrest and Release;
• Policy - Suspect Apprehension Pursuits;
• Policy - Use of Force;
• Letter – No policies related to guidelines on motorized bicycles, mopeds, e-bikes – No policy on Highway Traffic Act enforcement – No policy or procedure for conducting vehicle stops;
• Use of Force Training Records – the SO; and
• Witness Statement – the CW.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:

• Medical Records – the Complainant, GRH.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and the SO, as well as a civilian eyewitness. The investigation was also assisted by a review of the police communications recordings and video footage captured of the incident by the SO’s BWC.

At about 6:30 p.m. of August 5, 2021, the Complainant was driving an MMB west along a road in the area of Westmount Road and Victoria Street South, past a curve in the road. As he rounded the curve, the Complainant continued in the direction of a marked WRPS vehicle, parked on the north side of the road some 30 metres away.

The SO was operating the cruiser that day. The officer, by the driver’s door of his vehicle at the time, had been dealing with an occupant of a nearby home on an unrelated incident when the sound of the motor of the Complainant’s MMB caught his attention. As the Complainant was not wearing a helmet, the SO decided to stop him for a Highway Traffic Act infraction.

The SO proceeded into the centre of the road as the MMB travelled towards him, and pointed his left arm and hand at the Complainant in a ‘stop’ signal. The Complainant did not slow or stop as he approached the officer; rather, he maneuvered the MMB to the left to travel past the SO. The SO continued to track the MMB towards the south curb and, with his left hand, contacted the Complainant’s upper body. The contact caused the Complainant to lose his balance. The MMB scrubbed against the curb and the Complainant tumbled off the vehicle at the bottom of a shared driveway between two residences.

The SO issued the Complainant traffic tickets under the Highway Traffic Act for not wearing a helmet, driving without a licence, and failing to stop when directed to do so by an officer.

The Complainant attended hospital later that day and was diagnosed with a fractured left elbow.

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,

On August 5, 2021, the Complainant fell from his MMB in Kitchener, suffering serious injury in the process. As a WRPS officer had tried to stop him just before the fall, the SIU was notified and initiated an investigation. The officer – the SO – was identified as 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 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 no more than was reasonably necessary in the execution of an act that they were required or authorized to do by law. Under section 216(1) of the Highway Traffic Act, motorists are required to come to a stop when signaled to do so by a police officer. By virtue of section 217(2), motorists who fail to stop are subject to arrest without warrant. The Complainant says he was coming to a stop for the SO when he was knocked off his bike. That may well be the case. However, I am unable to conclude that the SO was without reasonable grounds to believe that the Complainant was not going to stop. For example, as the BWC footage depicts, it does not appear that there was any appreciable reduction in the Complainant’s speed as he approached and then passed the officer. On this record, I am satisfied that the SO was within his rights in seeking to arrest the Complainant under section 217(2) of the Highway Traffic Act.

I am further satisfied that the force used by the officer – an attempted grab of the Complainant – fell within the remit of legally authorized force. Believing, as he reasonably did, that the Complainant was not going to stop, the officer was entitled to resort to a measure of force to take the Complainant into custody. That force, in my view, fell on the low end of the range of options that were available at the time. No weapons were used, nor did the officer resort to physical strikes of any kind. Instead, the SO reached out with his left hand to grab at the Complainant’s upper body, and this after the officer had physically and verbally told him to stop. On this record, I am unable to reasonably conclude that the force used by the SO was more than was reasonably necessary in the circumstances.

That conclusion might have been different were I to accept, as is elsewhere suggested in the evidence, that the Complainant was “body-checked” off the MMB. I am unable to give effect to this statement to any degree. The BWC footage shows that simply did not happen.

In the final analysis, while the SO might have been better advised to simply let the Complainant pass without any physical intervention given the nature of the offences at issue and the motorist’s vulnerable position on an MMB, he was, strictly speaking, entitled to effect the Complainant’s arrest in the moment. Having chosen to do so, I am satisfied that he comported himself within the limits of justifiable force prescribed by the criminal law. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: December 3, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit