SIU Director’s Report - Case # 23-OCI-069
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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 section 14 (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 the serious injury of a 32-year-old woman (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 the serious injury of a 32-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU [1]
On March 3, 2023, at 2:15 p.m., the Waterloo Regional Police Service (WRPS) notified the SIU of an injury to the Complainant.According to the WRPS, on March 3, 2023, the Complainant reported that she was injured after being taken into custody for public intoxication on February 26, 2023, at 10:10 p.m., at 90 King Street West, Kitchener. Specifically, following her arrest, she had been diagnosed with a concussion.
The Team
Date and time team dispatched: 03/03/2023 at 2:47 p.m.Date and time SIU arrived on scene: 03/03/2023 at 2:50 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
32-year-old female; interviewed; medical records obtained and reviewedThe Complainant was interviewed on March 9, 2023.
Subject Officials (SO)
SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right SO #2 Declined interview and to provide notes, as is the subject official’s legal right
The subject official was interviewed on May 9, 2023.
Witness Official (WO)
WO Interviewed The witness official was interviewed on March 29, 2023.
Service Employee Witnesses (SEW)
SEW #1 Interviewed SEW #2 Interviewed
The service employee witnesses were interviewed on March 22, 2023.
Evidence
The Scene
The scene was in a corridor leading to a cell at the WRPS station located at 134 Frederick Street, Kitchener. Video/Audio/Photographic Evidence [2]
WRPS Custody Video
Cell VideoStarting at about 10:29:29 p.m., February 26, 2023, SEW #1 was captured stopping and standing at an open cell door. Suddenly, she stepped back. Immediately, there was a cluster of uniformed police officers and the Complainant in front of SEW #1. SEW #1 moved forward and stood at the back of the police officers and the Complainant. The police officers pushed the Complainant up against the corridor wall for a number of seconds. Moments later, the police officers moved the Complainant off the wall and escorted her into the cell. SO #1, SO #2 and the WO then walked away from the cell across the corridor. The door to the cell was closed.
Block Video
Starting at about 10:29:29 p.m., February 26, 2023, SEW #1 was captured walking down a corridor ahead of the Complainant. The Complainant was handcuffed with her hands behind her back and was yelling. Walking behind the Complainant were SO #1 and SO #2. SO #1 was to the right of the Complainant and held her right arm. SO #2 followed the Complainant on her left side and held her left arm. The WO followed a few steps behind SO #1 and SO #2. SEW #1 stopped at the end of the corridor and turned around to face the Complainant. The Complainant walked past SEW #1, turned to her right, and suddenly kicked SEW #1 with her right leg. In response to the kick, SEW #1 backed up. At that moment, SO #2 and SO #1 pushed the Complainant forward and into the corridor wall in front of her. The WO rushed in from behind SO #2 and SO #1 and pushed both police officers into the Complainant. SO #1, SO #2, and the WO subsequently placed the Complainant in her cell.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the WRPS between March 9 and 22, 2023:• Notes – the WO;
• Notes – SEW #1;
• Notes – SEW #2;
• Arrest Report;
• Record of computer-assisted dispatch;
• Crown Brief Synopsis;
• Cellblock video;
• Communications recordings;
• Procedure - Use of Force;
• Detain Sheet; and
• Undertaking.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:• The Complainant’s medical records, received on April 3, 2023
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may briefly be summarized.
In the evening of February 26, 2023, the Complainant was arrested by SO #2 outside the Elements nightclub, 90 King Street West, Kitchener. She had just been ejected by security at the nightclub and was taken into custody by the officer for public intoxication.
The Complainant was transported to the police station, searched and lodged in a cell. En route to the cell, while being led by SEW #1, and escorted on either side by SO #1 and SO #2, the Complainant kicked SEW #1. SO #1 and SO #2 reacted by pushing the Complainant against the corridor wall. There, she remained pinned for a brief period before she was placed in a cell.
Following her release from custody, the Complainant saw a doctor on March 1, 2023, who diagnosed her with a mild concussion.
In the evening of February 26, 2023, the Complainant was arrested by SO #2 outside the Elements nightclub, 90 King Street West, Kitchener. She had just been ejected by security at the nightclub and was taken into custody by the officer for public intoxication.
The Complainant was transported to the police station, searched and lodged in a cell. En route to the cell, while being led by SEW #1, and escorted on either side by SO #1 and SO #2, the Complainant kicked SEW #1. SO #1 and SO #2 reacted by pushing the Complainant against the corridor wall. There, she remained pinned for a brief period before she was placed in a cell.
Following her release from custody, the Complainant saw a doctor on March 1, 2023, who diagnosed her with a mild concussion.
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.
Section 31, Liquor Licence and Control Act - Intoxication
31 (1) No person shall be in an intoxicated condition in,
(a) a place to which the general public is invited or permitted access; or
(b) any part of a residence that is used in common by persons occupying more than one dwelling in the residence.
(2) A police officer or conservation officer may arrest without warrant any person who is contravening subsection (1) if, in the opinion of the officer, it is necessary to do so for the safety of any person.
Analysis and Director's Decision
On March 3, 2023, the WRPS contacted the SIU with information indicating that a female they had arrested on February 26, 2023 – the Complainant – might have been injured at the time by a police officer. The SIU initiated an investigation and identified SO #1 and SO #2 as the subject officials. The investigation is now concluded. 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 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.
There is no issue taken with the lawfulness of the Complainant’s arrest under section 31 of the Liquor Licence and Control Act, 2019. She was significantly intoxicated at the time, had just been ejected from a nightclub because of her behaviour, and had immediately adopted a hostile posture with officers outside the club. Once in custody, SO #1 and SO #2 were entitled to exercise control over the Complainant’s movements so she could be safely processed according to law.
Nor does the evidence give rise to any issue regarding the propriety of the force used by SO #1 and SO #2 at the police station. The officers were entitled to intercede to prevent any further assaults on SEW #1 when the special constable, without any provocation, was suddenly kicked by the Complainant. They did so in a controlled and measured fashion by pinning the Complainant against a wall momentarily before lodging her in a cell. No strikes of any kind were delivered.
I accept that the Complainant’s injury might have been incurred when her head contacted the wall when she was pinned against it by the subject officials. That said, it bears noting that she appears to have been involved in a physical engagement inside the nightclub before she was removed, at least with the security personnel, and it was a couple of days after the events in question that she saw a physician and was diagnosed with her injury. Be that as it may, as there are no reasonable grounds to believe that the subject officials comported themselves other than within the limits of the criminal law, there is no basis for proceeding with charges in this case. The file is closed.
Date: June 30, 2023
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 issue taken with the lawfulness of the Complainant’s arrest under section 31 of the Liquor Licence and Control Act, 2019. She was significantly intoxicated at the time, had just been ejected from a nightclub because of her behaviour, and had immediately adopted a hostile posture with officers outside the club. Once in custody, SO #1 and SO #2 were entitled to exercise control over the Complainant’s movements so she could be safely processed according to law.
Nor does the evidence give rise to any issue regarding the propriety of the force used by SO #1 and SO #2 at the police station. The officers were entitled to intercede to prevent any further assaults on SEW #1 when the special constable, without any provocation, was suddenly kicked by the Complainant. They did so in a controlled and measured fashion by pinning the Complainant against a wall momentarily before lodging her in a cell. No strikes of any kind were delivered.
I accept that the Complainant’s injury might have been incurred when her head contacted the wall when she was pinned against it by the subject officials. That said, it bears noting that she appears to have been involved in a physical engagement inside the nightclub before she was removed, at least with the security personnel, and it was a couple of days after the events in question that she saw a physician and was diagnosed with her injury. Be that as it may, as there are no reasonable grounds to believe that the subject officials comported themselves other than within the limits of the criminal law, there is no basis for proceeding with charges in this case. The file is closed.
Date: June 30, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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.