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 the serious injury sustained by a 42-year-old man (the “Complainant”).

Notification of the SIU

On June 5, 2022, at 4:30 p.m., the Waterloo Regional Police Service (WRPS) contacted the SIU with the following information.

On June 4, 2022, at 11:25 a.m., WRPS police officers attended a Zehrs store located at 750 Ottawa Street South, Kitchener, following reports of a shoplifter. The Complainant fled the store with a full shopping cart of food and was apprehended by the Subject Official (SO) and Witness Official (WO) #1. The SO heard a pop sound while handcuffing the Complainant. The Complainant was taken to St. Mary’s Hospital (SMH) where he was examined and diagnosed with a fractured left elbow.

The Scene

The Complainant was arrested at the rear of the Staples Store, 245 Strasburg Road, Kitchener, located in the same plaza as the Zehrs store. The premises did not have any outside security cameras.

Video/Audio/Photographic Evidence [1]

The SIU searched for video records of relevance, without success.

911 Call to the WRPS

On June 5, 2022, at 11:22:14 a.m., a WRPS call-taker received a telephone call from a woman at a Zehrs store. She had observed a male – the Complainant - walk throughout the store, select several items, and place them in a buggy. When the caller approached him, he took off from her and made no attempt to pay for the items. The caller recognized the Complainant because of his clothing. The Complainant had shoplifted from the same Zehrs store the day before. The caller made observations of the theft from June 5, 2022, and video-recorded the theft. She described the Complainant as a white male in his late 20s or early 30s. She described his physical appearance and reported that he had a backpack, which he filled with groceries. She maintained eye contact with him while she spoke with the call-taker.

The Complainant was observed in the open parking lot near the buggy coral. He had removed the stolen groceries from the cart and placed them in his backpack. He remained concealed behind a parked car. He changed his outer clothing. He walked toward a bicycle. The bicycle was black and resembled a ten-speed. He pedaled off towards the roadway, northeast towards the Staples store, and rode behind the building. The caller did not see him come out from behind the Staples.

The call-taker advised that police officers [now known to be WO #1 and the SO] were in the open parking lot. The caller confirmed she saw their police cruisers. She was confident the Complainant was the same male who had stolen from the same Zehrs the day before. She saw one police cruiser approach the rear of the Staples from the north, and the other from the south. She did not see either police officer or the Complainant come out from behind the Staples.

WRPS Radio Communications

On June 5, 2022, at 11:27 a.m. the WRPS communications centre broadcast a theft call over the WRPS radio system.

WO #1 told the dispatcher to divert him from another call for service so he could attend to the shoplifting call at Zehrs.

The SO was dispatched to attend Zehrs to back up WO #1 on the shoplifting call.

The dispatcher updated the call information and advised that the Complainant had just tied his windbreaker around his waist and provided information about his clothing. The dispatcher advised SO and WO #1 that the Complainant was walking away from Montana’s and was at the northeast corner of the plaza parking lot, behind the Staples store.

One of the responding officers stated they were behind Staples with the Complainant. WO #1 said the Complainant was resisting but that they were “good”. He said they had an arrest and needed an additional unit to attend. He advised that the Complainant’s left elbow was injured. A male, believed to be the Complainant, could be heard whimpering in the background. WO #1 asked that a rush be put on the attending ambulance as the Complainant was in an awkward position, and he and the SO did not want to move him.

The dispatcher requested that two units attend the scene to look after the Complainant, and to relieve the SO and WO #1.

A police officer said he was in the ambulance with the Complainant on the way to SMH.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the WRPS between June 7, 2022, and June 29, 2022:

• Notes- the SO;
• Notes- WO #1;
• Notes- WO #2;
• 911 call and radio communications;
• Use of Force Procedure;
• Arrest and Release Procedure;
• Case File Synopsis; and
• Witness Statement – the 911 caller.

Materials Obtained from Other Sources

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

• Ambulance Call Report;
• Zehrs video footage; and
• Medical records from SMH.

The evidence collected by the SIU, including interviews with the Complainant, an officer who participated in his arrest – WO #1, and a civilian witness, gives rise to the following scenario. As was his legal right, the SO declined an interview with the SIU. He did authorize the release of his notes.

At about 11:30 a.m. of June 5, 2022, the Complainant was outside by the rear of the Staples store in Kitchener when he was confronted by the SO and WO #1. The officers took hold of his arms – the SO, the left; WO #1, the right – and told the Complainant he was under arrest for theft.

The SO and WO #1 had been called to the scene following a 911 call to police from a person at a nearby Zehrs store. She had observed the Complainant leave the store with merchandise that he had not paid for. As the caller explained to the 911 call-taker, the Complainant had stolen merchandise from the store the day before as well.

The Complainant physically resisted as the officers attempted to bring his arms around his back so they could be handcuffed. He continued to resist after the officers placed him on the ground in a prone position, refusing to bring his arms around his back. WO #1, with a hold of the right arm, was able to wrestle it behind the Complainant’s back. The SO adjusted his hold so that he had a grasp of the Complainant’s left wrist and tricep, after which he endeavoured to maneuver the arm backwards. As he did so, he heard a ‘pop” sound.

The officers handcuffed the Complainant, and called for an ambulance and the attendance of a sergeant at the scene.

The Complainant was taken to hospital and diagnosed with a dislocated left elbow and fracture of the coronoid process of the ulna.

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,

The Complainant sustained a serious injury in the course of his arrest by WRPS officers on June 5, 2022. One of the two officers – the SO – was identified as the subject official in 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.

I accept that the SO and WO #1 were proceeding to lawfully arrest the Complainant. Based on the information they had received from a 911 call, which included a detailed description of the Complainant, there were reasonable grounds to believe that the Complainant had committed a theft.

With respect to the force used in aid of the Complainant’s arrest, I am unable to reasonably conclude that it was excessive. When the Complainant refused to voluntarily place his arms behind his back, and then struggled against the efforts of the SO and WO #1 to do so, he left the officers little choice but to apply physical force if they were going to handcuff him. While the Complainant suffered injuries to his left arm in the process, I am satisfied that this was no more than an unfortunate consequence of opposing forces being brought to bear in a dynamic situation, and not the result of inordinate force or a reckless manipulation of the arm.

For the foregoing reasons, there are no grounds in the evidence that would warrant criminal charges against the SO. The file is closed.



Date: October 3, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit