SIU Director’s Report - Case # 21-OCI-271
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 32-year-old man (the “Complainant”) suffered.
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 32-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On August 23, 2021, at 11:35 p.m., the Waterloo Regional Police Service (WRPS) reported the following.On August 23, 2021, at 6:20 p.m., the Subject Official (SO) responded to a call for a domestic incident involving a mother and son at a residence on East Street in Cambridge. The Complainant lived at the address with his mother, who was his surety on assault and threatening charges. The Complainant was also wanted on a Canada-wide DNA warrant and his mother intended to cancel the surety she had posted. The Complainant left the residence on foot.
As the SO was on his way to the address, he spotted the Complainant in the area of 31 Elgin Street. The SO tried to arrest the Complainant, and a struggle took place. The Complainant tried to gouge the officer’s eyes, and the SO struck him in the face.
The Complainant was taken to Cambridge Memorial Hospital and diagnosed with a fractured left orbital floor. The Complainant had been released from hospital and taken to the WRPS station in Kitchener to await a show cause hearing.
The Team
Date and time team dispatched: 08/24/2021 at 7:26 a.m. Date and time SIU arrived on scene: 08/24/2021 at 12:14 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
32-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on August 24, 2021.
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
The civilian witnesses were interviewed between September 8 and 13, 2021.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on September 17, 2021.
Evidence
The Scene
The scene, in the area of 31 Elgin Street South, Cambridge, was a residential neighbourhood. The interaction between the SO and the Complainant occurred on the sidewalk and/or lawn area of the address. SIU investigators did not attend the scene.Video/Audio/Photographic Evidence [1]
911 Calls
On request of SIU investigators, copies of the 911 communications recordings were received from the WRPS on August 28, 2021.Call #1 – 5:59:23 p.m.
A female caller told the WRPS that her 32-year-old son [known to be the Complainant] had mental health issues and was bound by a court order that allowed him to reside at her address only with her permission. She indicated that the Complainant was yelling and screaming, and throwing things about the house.
The caller was requesting that her surety on the Complainant be revoked and noted that she had asked him to leave three times. She then stated that her son was leaving and was last seen walking down the driveway. She hung up the phone after the call-taker said they would still have to send police officers to the residence to ensure everything was okay.
Call #2 - 6:18:46 p.m.
A caller [known to be CW #2] reported that a police officer [known to have been the SO] was being beat up by a pedestrian [known to have been the Complainant], and then the police officer was beating up somebody else. The incident was taking place in front of 33 Elgin Street South.
The Complainant had thrown his backpack down and started punching at the SO, who then got him down and was sitting on the Complainant’s back with his knees on his buttocks. The Complainant was yelling at the SO to get off of him. There was blood everywhere.
The caller noted that a second police officer had arrived at the scene [known to be WO #2], and that the Complainant was under control.
Call #3 - 6:18:50 p.m.
A caller [known to have been CW #1] reported that a police officer [known to have been the SO] was beating up a civilian [known to have been the Complainant] at the side of the road. CW #1 stated that she did not know what was going on but had seen the SO repeatedly punching the Complainant in the face while the Complainant fought back. CW #1 commented that the Complainant was “crazy on drugs” and did not have a weapon, but was injured and his face was black.
Radio Communications
On request of SIU investigators, WRPS provided copies of all relevant police radio transmissions on August 28, 2021.At 6:19:20 p.m., there was a request for WRPS patrol units to ‘clear’ for an officer punching somebody at 25 Elgin Street North, and information was conveyed that the officer appeared to be the SO. Three WRPS members advised they would respond to the call.
At 6:19:55 p.m., the location was changed to 33 Elgin Street South.
At 6:20:17 p.m., it was broadcast that the 911 caller reported that the SO was sitting up and had just made an arrest, and the suspect was lying on the ground. An ambulance was being dispatched.
At 6:20:57 p.m., the dispatcher asked the SO if he was okay, and he responded that he was.
At 6:23:27 p.m., WO #1 advised that everything was ‘10-4’ (alright) at that time.
At 6:27:48 p.m., WO #3 advised that the involved party [known to be the Complainant] was the same party involved in the domestic violence incident (called-in by the mother of the Complainant). The Complainant was said to be in custody.
Custody Video
On request of SIU investigators, the WRPS custody video was received by the SIU on August 28, 2021. The recordings tracked the Complainant’s presence at the facility from the time of his arrival on August 23, 2021, at 11:41 p.m., until he was transferred on August 24, 2021, at 4:51 p.m.
At 11:41:22 p.m., the Complainant arrived at the police station in the rear seat of a WRPS vehicle in the custody of WO #2. The Complainant’s hands were handcuffed behind his back. He walked on his own to the entry door. There was swelling and redness noticeable around his left eye. WO #2 had a backpack belonging to the Complainant in his possession.
At 11:48:43 p.m., the Complainant was paraded before a sergeant. He was searched and placed in a telephone room to speak to counsel.
WO #2 could be heard saying that the Complainant was under arrest on the strength of an outstanding DNA warrant, as well as new charges of assault police and threatening. The Complainant stated that he did not suffer from a mental health disorder and was not currently taking any medications or non-prescribed drugs other than cannabis, which he used daily and last took the morning before.
At 11:57:30 p.m., the Complainant was placed in a cell and given a blanket.
At 1:16:30 a.m., the Complainant was removed from the cell to have his injuries photographed by a uniform WRPS member.
At 12:14:31 p.m., the Complainant was removed from the cell and taken to an interview room to meet SIU investigators.
Materials Obtained from Police Service
Upon request, the SIU received the following materials and documents from WRPS between August 28, 2021 and September 3, 2021:- Civilian Witness Contact Information;
- Computer-assisted Dispatch Details;
- List of Officers, Call Signs and Radio Details;
- Communication Recordings;
- Custody Video Recordings;
- Notes-WO #1;
- Notes-WO #2;
- Notes-WO #3;
- Prisoner Detain Sheet;
- Statement of a Witness-CW #1;
- Statement of a Witness-civilian witness; and
- Statement of a Witness-CW #2.
Materials Obtained from Other Sources
The SIU received the following records from other sources on August 31, 2021: - Medical Records - Cambridge Memorial Hospital
Incident Narrative
The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant and two civilian eyewitnesses. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the evening of August 23, 2021, the Complainant’s mother called the WRPS to report a domestic disturbance involving her son. Pursuant to a court order, the Complainant was authorized to live with his mother but only with her permission. The Complainant and his mother had argued over the Complainant’s habits in her home, and she was seeking to have him removed from the residence. Police officers were dispatched to investigate.
The SO was on patrol in his vehicle when he came across the Complainant. The Complainant had by that time left his mother’s home and was walking on Elgin Street. Aware that the Complainant was also wanted on a warrant for having failed to attend to provide a DNA sample, the officer pulled up alongside the Complainant and told him he was under arrest. The Complainant uttered profanity at the SO, challenged his arrest authority, made it clear he was not interested in surrendering himself peacefully, and kept walking.
The SO pursued the Complainant a short distance in his cruiser before he stopped the vehicle, exited, and confronted the Complainant face-to-face. The Complainant promptly delivered a series of punches to the side of the SO’s head before the officer could react. The officer defended himself and was able to wrestle the Complainant to the ground where the struggle continued. The two exchanged further punches as the Complainant also tried to gouge at the officer’s eyes. The SO was eventually able to gain the upper hand and subdue the Complainant in a prone position, handcuffing his arms behind his back.
Following his arrest, the Complainant was transported to hospital where he was diagnosed with a non-displaced fracture of the left orbital bone.
In the evening of August 23, 2021, the Complainant’s mother called the WRPS to report a domestic disturbance involving her son. Pursuant to a court order, the Complainant was authorized to live with his mother but only with her permission. The Complainant and his mother had argued over the Complainant’s habits in her home, and she was seeking to have him removed from the residence. Police officers were dispatched to investigate.
The SO was on patrol in his vehicle when he came across the Complainant. The Complainant had by that time left his mother’s home and was walking on Elgin Street. Aware that the Complainant was also wanted on a warrant for having failed to attend to provide a DNA sample, the officer pulled up alongside the Complainant and told him he was under arrest. The Complainant uttered profanity at the SO, challenged his arrest authority, made it clear he was not interested in surrendering himself peacefully, and kept walking.
The SO pursued the Complainant a short distance in his cruiser before he stopped the vehicle, exited, and confronted the Complainant face-to-face. The Complainant promptly delivered a series of punches to the side of the SO’s head before the officer could react. The officer defended himself and was able to wrestle the Complainant to the ground where the struggle continued. The two exchanged further punches as the Complainant also tried to gouge at the officer’s eyes. The SO was eventually able to gain the upper hand and subdue the Complainant in a prone position, handcuffing his arms behind his back.
Following his arrest, the Complainant was transported to hospital where he was diagnosed with a non-displaced fracture of the left orbital bone.
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 August 23, 2021, the Complainant was seriously injured in the course of his arrest by the SO. The SO was identified as the subject official for purposes of the ensuing SIU investigation. 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. Given the warrant out for his arrest, the SO was within his rights in seeking to take the Complainant into custody.
I am also satisfied that the SO used no more force than was legally justified to effect the Complainant’s arrest. The evidence establishes that the struggle was precipitated by an unprovoked attack on the part of the Complainant, and that he gave as much as he received in the course of the fisticuffs that followed. The SO was entitled to defend himself and deter any further aggression from the Complainant when the Complainant repeatedly punched him in the head, and then continued to punch at him on the ground while trying to gouge at the officer’s eyes. The punches struck by the officer, in my view, amounted to a proportionate and reasonable use of force in the circumstances. Once the Complainant was brought under control and then handcuffed, no further strikes of any kind were delivered by the officer.
In the result, while I accept that the SO broke the Complainant’s orbital bone, I am not satisfied on reasonable grounds that the injury was the result of unlawful force by the officer. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: November 29, 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. Given the warrant out for his arrest, the SO was within his rights in seeking to take the Complainant into custody.
I am also satisfied that the SO used no more force than was legally justified to effect the Complainant’s arrest. The evidence establishes that the struggle was precipitated by an unprovoked attack on the part of the Complainant, and that he gave as much as he received in the course of the fisticuffs that followed. The SO was entitled to defend himself and deter any further aggression from the Complainant when the Complainant repeatedly punched him in the head, and then continued to punch at him on the ground while trying to gouge at the officer’s eyes. The punches struck by the officer, in my view, amounted to a proportionate and reasonable use of force in the circumstances. Once the Complainant was brought under control and then handcuffed, no further strikes of any kind were delivered by the officer.
In the result, while I accept that the SO broke the Complainant’s orbital bone, I am not satisfied on reasonable grounds that the injury was the result of unlawful force by the officer. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: November 29, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) 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]
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.