SIU Director’s Report - Case # 22-OCI-048
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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.
- 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 serious injuries sustained by a 23-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 serious injuries sustained by a 23-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On February 16, 2022, at 11:15 p.m., the Waterloo Regional Police Service (WRPS) notified the SIU that the Complainant had suffered a fractured arm during his arrest earlier that evening.According to the WRPS, at approximately 8:23 p.m., WRPS officers responded to an ‘unwanted person’ call at a shelter located in Kitchener. The Complainant was acting violently and refusing to leave the premises of the shelter.
The Subject Official (SO) and Witness Official (WO) #1 responded to the call. Shortly after their arrival, the SO arrested the Complainant for refusing to leave the premises. While placing the Complainant’s arm behind his back, the police officers heard a cracking sound.
The Complainant was taken to the Grand River Hospital, where it was determined he had suffered a broken humerus. The Complainant’s arm was put in a sling, and he was released from the hospital.
At the time of the notification, attempts were being made to find the Complainant a place to stay for the evening.
The Team
Date and time team dispatched: 02/17/2022 at 9:52 a.m.Date and time SIU arrived on scene: 02/17/2022 at 1:40 p.m.
Number of SIU Investigators assigned: 3
Affected Person (aka “Complainant”):
23-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on February 17, 2022.
Civilian Witnesses
CW Interviewed The civilian witness was interviewed on March 30, 2022.
Subject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right. The subject official was interviewed on March 15, 2022.
Witness Officials
WO #1 Interviewed WO #2 Not interviewed, but notes received and reviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Interviewed
WO #7 Interviewed
The witness officials were interviewed between March 4, 2022, and April 19, 2022. WO #2 relieved the SO at the hospital and stood-by with the Complainant while notification was made to the SIU. WO #4 and WO #5 were sent to the scene of the Complainant’s arrest to transport the SO’s vehicle from the scene to the hospital. WO #2, WO #4 and WO #5 were not interviewed given that they were not present at the time of the Complainant’s arrest.
Evidence
The Scene
The shelter was located in downtown Kitchener. A makeshift wooden structure had been erected near the shelter to be used by shelter clients who smoked. The Complainant was in the wooden structure when arrested by the SO and WO #1.An office building nearby was equipped with exterior cameras, from which recordings were obtained.
Expert Evidence
On March 24, 2022, the SIU spoke with a member of the Ontario Police College (OPC) (the “expert”) regarding the use of Jiu Jitsu techniques by police officers.The expert explained that Jiu Jitsu techniques, such as the ‘kimura’, are nuanced skills and the OPC did not train candidates on such skills. They did not teach the kimura. They trained students in options that police officers could usually use to gain an advantage on a person.
Police officers are free to obtain additional training they can employ in their work. The OPC did not address any training that police officers might obtain outside of their police training, other than to tell police officers to bring everything they can to a situation.
According to the expert, it would be simplistic to view the kimura as a submission technique. The kimura could be used to direct people to various positions. When used, police officers should articulate what the expected outcome would be.
Video/Audio/Photographic Evidence [1]
Communications Recordings and Computer-aided Dispatch (CAD) records
The following is a summary of the information derived from the pertinent communications recordings and CAD.On February 16, 2022, at 7:36 p.m., the WRPS received a telephone call from the CW. She reported that the Complainant was outside the homeless shelter and creating a disturbance. The CW reported the Complainant was being aggressive and throwing things at people as they exited the building. The Complainant was upset he was not being allowed entry into the shelter, as the shelter was full for the evening. The Complainant was attempting to enter the building and, as a result, staff at the shelter had to lock the doors, preventing other clients from exiting the building to smoke. The Complainant was also scratching the letters ‘FTP’ [believed to stand for ‘Fuck the Police’] into a window.
At 8:16 p.m., the SO advised the police dispatcher he would drive by the shelter to see if the Complainant was still there, as it had been approximately 40 minutes since the call was received.
At 8:23 p.m., the SO reported the subject, the Complainant, appeared to still be outside the shelter. The SO requested another police officer to assist him. A police officer asked to have the Complainant queried on the police computer.
At 8:28 p.m., the dispatcher advised the SO that the Complainant had an outstanding warrant held by the Huron Ontario Provincial Police with a return radius of 200 kilometres, relating to an assault and uttering threats to cause death. He was also marked with cautions for ‘violence’ and ‘escape’.
At 8:30 p.m., it was reported the Complainant had been arrested. The SO requested an ambulance as the Complainant might have injured his arm. The SO also asked that a sergeant attend the scene. The sergeant, WO #3, reported it would take some time for him to get to the scene.
Video Recording from Office Building
The video recording commenced at 7:30 p.m. People could be seen milling around the entrance to the homeless shelter. Some of the people stepped in and out of the wooden smoking structure west of the entrance door.At 7:32 p.m., a man exited the wooden structure carrying a wooden pallet. The man carried the pallet across Weber Street and threw it onto the sidewalk in front of a business. The man then picked up a large orange traffic pylon and placed it over his head. The man walked eastbound, and then threw the orange pylon into a dumpster that was on the sidewalk. It was difficult to see where that individual went afterward.
At 8:21 p.m., a police vehicle pulled into the parking lot of the shelter. The police officer from that vehicle, known to be the SO, entered the shelter. At 8:24 p.m., a second police vehicle, known to be operated by WO #1, entered the parking lot.
WO #1 stood at the wooden structure as the SO exited the church and spoke to him. The SO and WO #1 spoke to a person standing on the sidewalk, and that person then entered the wooden structure. The SO and WO #1 stood at the entrance of the wooden shelter, and it appeared that at least one of them was conversing over his police radio.
At 8:29 p.m., the SO and WO #1 entered the wooden structure. At 8:30 p.m., the SO and WO #1 exited the wooden structure, escorting the Complainant, who had his hands behind his back. They escorted the Complainant to the parking lot.
At 8:32 p.m., a third police vehicle, believed to have been operated by WO #3, arrived in the parking lot. At 8:35 p.m., an ambulance arrived in the parking lot.
The video recording ended at 8:36 p.m.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the WRPS:- Civilian witness contact information for the CW;
- A statement obtained from the CW;
- A copy of the related communications recordings;
- A copy of the CAD Details Report;
- A list of officers and their involvement;
- Notes of WO #1, WO #2, WO #3, WO #4 and WO #5;
- Training record for the SO; and
- WRPS Use of Force Defensive Tactics 2022 training outline.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources:- Closed-circuit television video recordings from the exterior of an office building; and
- Medical record from Grand River Hospital.
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 February 16, 2022, WRPS received a call from a homeless shelter. A member of the shelter reported that the Complainant was outside the shelter causing a disturbance. He had been denied entry into the facility and was throwing things at people as they exited the building. Police were dispatched to investigate.
The SO was the first to arrive, parking his cruiser in the parking lot at the west end of the building. The officer spoke with the person who had made the call to police – the CW – and she identified the Complainant as the male in question. The Complainant was by a makeshift wooden shed that had been erected by the shelter residents.
Joined by WO #1, arriving to assist in the investigation, the SO approached the Complainant and told him he had to leave the premises. The Complainant reacted angrily. He threatened the officers, argued that the shelter was wrong to refuse him entry, and refused to leave. As the officers went back and forth with the Complainant, they came to learn via their radios that he was subject to outstanding arrest warrants. The interaction between the parties transitioned into the wooden shed.
Told he was under arrest, the Complainant refused to surrender his arms to be handcuffed. He physically resisted the officers’ efforts as they took hold of him. The SO executed what he described as a ‘kimura’ technique to assist in wrestling control of the Complainant’s left arm behind his back. The maneuver involved the forceful manipulation of the Complainant’s wrist, elbow and shoulder to overcome his resistance. The Complainant suffered a fractured humerus in the process.
The Complainant was handcuffed behind his back and escorted from the shed to the SO’s cruiser and placed inside. He complained that the SO had broken his arm. The officer called for an ambulance.
Paramedics attended and transported the Complainant to hospital, where he was diagnosed with his injury.
In the evening of February 16, 2022, WRPS received a call from a homeless shelter. A member of the shelter reported that the Complainant was outside the shelter causing a disturbance. He had been denied entry into the facility and was throwing things at people as they exited the building. Police were dispatched to investigate.
The SO was the first to arrive, parking his cruiser in the parking lot at the west end of the building. The officer spoke with the person who had made the call to police – the CW – and she identified the Complainant as the male in question. The Complainant was by a makeshift wooden shed that had been erected by the shelter residents.
Joined by WO #1, arriving to assist in the investigation, the SO approached the Complainant and told him he had to leave the premises. The Complainant reacted angrily. He threatened the officers, argued that the shelter was wrong to refuse him entry, and refused to leave. As the officers went back and forth with the Complainant, they came to learn via their radios that he was subject to outstanding arrest warrants. The interaction between the parties transitioned into the wooden shed.
Told he was under arrest, the Complainant refused to surrender his arms to be handcuffed. He physically resisted the officers’ efforts as they took hold of him. The SO executed what he described as a ‘kimura’ technique to assist in wrestling control of the Complainant’s left arm behind his back. The maneuver involved the forceful manipulation of the Complainant’s wrist, elbow and shoulder to overcome his resistance. The Complainant suffered a fractured humerus in the process.
The Complainant was handcuffed behind his back and escorted from the shed to the SO’s cruiser and placed inside. He complained that the SO had broken his arm. The officer called for an ambulance.
Paramedics attended and transported the Complainant to hospital, where he was diagnosed with his injury.
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
The Complainant was seriously injured while being arrested by WRPS officers on February 16, 2022. One of the arresting officers – 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.
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.
In light of the warrants in effect for the Complainant’s arrest, and his refusal to vacate what appears to have been private property when directed to do so by its proprietors, I am satisfied that the SO and WO #1 had lawful authority to take the Complainant into custody.
I am also satisfied that the evidence falls short of reasonably establishing excessive force on the part of the SO. The ‘kimura’ technique employed by the SO does find recognition in the training materials used by the WRPS. Though apparently not presently taught as such, the technique is effectively endorsed, in substance if not in name, in use of force training regimes that teach officers to physically leverage the arms of a resisting subject behind their back. In applying their training, officers are taught to take advantage of any special training they might have in martial arts provided they can do so safely and within the strictures of the law. The SO was a practitioner of Jiu Jitsu and had reportedly used the ‘kimura’ effectively and without injury to effect several arrests in the past. In the instant case, it would not appear the technique was off-limits. The Complainant, belligerent, had made it clear he was intent on physically resisting his arrest. And grounding the Complainant to assist in his arrest, which the SO believed was not an option given the presence of needles on the ground, would also have come with a risk of injury.
In the result, while it is regrettable that the Complainant’s arm was broken in his arrest, there are no reasonable grounds to believe the injury is attributable to criminal conduct on the part of the SO. Accordingly, there is no basis for proceeding with charges in this case. The file is closed.
Date: June 15, 2022
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.
In light of the warrants in effect for the Complainant’s arrest, and his refusal to vacate what appears to have been private property when directed to do so by its proprietors, I am satisfied that the SO and WO #1 had lawful authority to take the Complainant into custody.
I am also satisfied that the evidence falls short of reasonably establishing excessive force on the part of the SO. The ‘kimura’ technique employed by the SO does find recognition in the training materials used by the WRPS. Though apparently not presently taught as such, the technique is effectively endorsed, in substance if not in name, in use of force training regimes that teach officers to physically leverage the arms of a resisting subject behind their back. In applying their training, officers are taught to take advantage of any special training they might have in martial arts provided they can do so safely and within the strictures of the law. The SO was a practitioner of Jiu Jitsu and had reportedly used the ‘kimura’ effectively and without injury to effect several arrests in the past. In the instant case, it would not appear the technique was off-limits. The Complainant, belligerent, had made it clear he was intent on physically resisting his arrest. And grounding the Complainant to assist in his arrest, which the SO believed was not an option given the presence of needles on the ground, would also have come with a risk of injury.
In the result, while it is regrettable that the Complainant’s arm was broken in his arrest, there are no reasonable grounds to believe the injury is attributable to criminal conduct on the part of the SO. Accordingly, there is no basis for proceeding with charges in this case. The file is closed.
Date: June 15, 2022
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.