SIU Director’s Report - Case # 23-OCI-335
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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 51-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 the serious injury of a 51-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On August 18, 2023, at 8:15 a.m. the Waterloo Regional Police Service (WRPS) contacted the SIU with the following information. The Office of the Independent Police Review Director (OIPRD) had advised the WRPS that the Complainant had sustained broken ribs as a result of an interaction with WRPS officers on December 31, 2022, at 8:41 p.m. The Complainant complained of discomfort after the arrest, and Emergency Medical Services (EMS) took him to the Grand River Hospital (GRH). He had been released at the time with what was described as tissue injury.
The Team
Date and time team dispatched: 03/14/2023 at 9:15 a.m.Date and time SIU arrived on scene: 03/14/2023 at 11:15 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
51-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on August 23, 2023.
Subject Official
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on October 10, 2023.
Witness Officials
WO #1 Interviewed; notes received and reviewedWO #2 Interviewed; notes received and reviewed
WO #3 not interviewed; notes reviewed, and interview deemed not necessary
The witness officials were interviewed on September 15, 2023.
Evidence
The Scene
The events in question transpired in and around a Hyundai stopped on Victoria Marie Court, near St. Leger Street, Kitchener. The scene was not held as this complaint came to the SIU via an OIPRD referral.
Video/Audio/Photographic Evidence [2]
Police Communications Recordings and Computer-aided Dispatch (CAD) Information
On December 31, 2022, at about 4:31 p.m., a member of the public (Civilian #1) called 911 advising of a domestic situation involving his mother (Civilian #2) and the Complainant at a home in the area of St. Leger Street and Victoria Marie Court, Kitchener. Civilian #1 indicated that the Complainant had been harassing them, circling the block for the past two days and nights. Civilian #1 was notified that officers had been dispatched and would look for the Complainant. At about 8:41 p.m., the SO broadcast that he had the Complainant stopped at St. Leger Street and Guelph Street.
At about 10:08 p.m., the SO requested that EMS attend his location. He reported that the Complainant was complaining of pain to his elbow from a previous injury.
Body-worn Camera (BWC) Footage – SO
Starting at about 7:57 p.m., December 31, 2022, the SO attended at a residence in the area of St. Leger Street and Victoria Marie Court, and spoke with Civilian #1 and Civilian #2. Starting at about 8:41 p.m., the SO stopped the Complainant in his Hyundai and warned him about the possibility of being charged for criminal harassment. The Complainant became increasingly agitated and drove off. The Complainant was then seen driving by the SO and WO #1, honking his horn and yelling profanities at the WRPS officer in later video footage.
Starting at about 9:17 p.m., the SO pulled alongside the Complainant’s vehicle and cautioned him about his behaviour and presence in the area. The Complainant was argumentative and belligerent. The SO returned to the St. Leger Street and Victoria Marie Court residence to update the family about the cautions issued to the Complainant.
Starting at about 9:50 p.m., the Complainant approached the SO as he sat in his WRPS SUV and asked him how he could get the warning for criminal harassment lifted. The SO advised that the person being harassed would have to make that request of the WRPS. The Complainant was verbally abusive to WRPS officers.
Starting at about 10:01 p.m., the SO exited his WRPS SUV, walked towards the front of the Complainant’s vehicle, and demanded he exit. The Complainant stated, “I have done nothing wrong.” The SO repeated his demand and then said that the Complainant was under arrest. He directed the Complainant to get out of the vehicle or he would remove him. The Complainant stated, “Okay, I will leave.” The SO attempted to open the driver’s door and the Complainant used his left hand to pull the door shut. There door eventually opened, and the SO grabbed the Complainant by the left wrist and attempted to pull him from the vehicle. The Complainant resisted and pulled back. The SO told the Complainant to remove the seat belt. The legs of WO #1 could be seen in the footage. The SO pulled the Complainant out of the vehicle by the left wrist. The SO directed the Complainant’s left arm behind his back as the Complainant fell onto the ground on his left side. The SO let go of the Complainant’s arm as WO #1 struggled to move the Complainant’s right hand behind his back. The Complainant continued to yell out that he had done nothing wrong and that the officers were beating him. No punches, kicks or knee strikes were delivered by the officers. The Complainant was rolled onto his stomach and struggled with the officers as they attempted to handcuff him behind the back. The Complainant yelled, “I have a bad arm.”
Starting at about 10:03 p.m., the Complainant was placed in handcuffs behind his back. He asked the WRPS officers to just let him go. When he was assisted to his feet, the Complainant indicated he had pins in his elbow from a previous injury. Once in the rear of the SO’s WRPS SUV, he pled for the handcuffs to be moved to the front. The SO told him this was not possible given his level of aggressiveness.
At 10:16 p.m., EMS arrived on scene.
Images Taken by the Complainant
On August 23, 2023, at 11:52 a.m., the Complainant digitally provided the SIU images he had taken of himself on January 4, 2023, which showed bruising to his chest and shoulder.Materials Obtained from Police Service
Upon request, the SIU received the following materials from WRPS between September 6 and 11, 2023:- Information from CAD;
- Communications recordings;
- Notes – WO #1;
- Notes – WO #2;
- Notes – WO #3;
- BWC footage - SO;
- Arrest Report;
- Crown Brief Synopsis; and
- Charge Summary.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources:- The Complainant’s medical records from GRH, received September 5, 2023; and
- Photographs of injuries taken by the Complainant, received August 23, 2023.
Incident Narrative
The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.
In the evening of December 31, 2022, the SO arrived at the home of Civilian #1 and Civilian #2 in Kitchener following a 911 call from the residence. He spoke to one of the occupants of the home – Civilian #1 – who raised concerns with the behaviour of the Complainant. The Complainant had reportedly engaged in a campaign of harassment which involved repeated drive-bys of the home in his vehicle. The SO indicated he would speak to the Complainant.
At about 8:41 p.m., the SO located and stopped the Complainant’s vehicle in the vicinity of the address. The officer spoke to the Complainant, explained the nature of the complaint that had been made against him, and warned him about criminal harassment. He directed that the Complainant refrain from attempting to contact Civilian #1 and Civilian #2, and driving in the area.
Following the discussion with the SO, the Complainant remained in the area, driving up and down St. Leger Street by Civilian #2’s townhouse complex. The SO pulled up alongside him at about 9:20 p.m. and again cautioned him about his behaviour and presence in the area. The Complainant remained undeterred.
At about 10:00 p.m., the SO observed the Complainant entering onto the grounds of the townhouse complex where Civilian #1 and Civilian #2 lived. The officer maneuvered his vehicle in front of the Complainant’s vehicle as it was stopped on Victoria Marie Court, near St. Leger Street, exited, and approached the driver’s door. By this time, the SO was in the company of another officer – WO #1. The SO told the Complainant he was under arrest and directed that he open the door. When he failed to do so, the officer opened the door and he and WO #1 pulled the Complainant out of the vehicle onto the ground.
Following a brief struggle, the SO and WO #1 handcuffed the Complainant behind the back, lifted him to his feet, and placed him in the rear of a police vehicle.
An ambulance was called to the scene when the Complainant complained of an injury to his arm. He was taken to hospital and diagnosed with a fractured left humerus.
In the evening of December 31, 2022, the SO arrived at the home of Civilian #1 and Civilian #2 in Kitchener following a 911 call from the residence. He spoke to one of the occupants of the home – Civilian #1 – who raised concerns with the behaviour of the Complainant. The Complainant had reportedly engaged in a campaign of harassment which involved repeated drive-bys of the home in his vehicle. The SO indicated he would speak to the Complainant.
At about 8:41 p.m., the SO located and stopped the Complainant’s vehicle in the vicinity of the address. The officer spoke to the Complainant, explained the nature of the complaint that had been made against him, and warned him about criminal harassment. He directed that the Complainant refrain from attempting to contact Civilian #1 and Civilian #2, and driving in the area.
Following the discussion with the SO, the Complainant remained in the area, driving up and down St. Leger Street by Civilian #2’s townhouse complex. The SO pulled up alongside him at about 9:20 p.m. and again cautioned him about his behaviour and presence in the area. The Complainant remained undeterred.
At about 10:00 p.m., the SO observed the Complainant entering onto the grounds of the townhouse complex where Civilian #1 and Civilian #2 lived. The officer maneuvered his vehicle in front of the Complainant’s vehicle as it was stopped on Victoria Marie Court, near St. Leger Street, exited, and approached the driver’s door. By this time, the SO was in the company of another officer – WO #1. The SO told the Complainant he was under arrest and directed that he open the door. When he failed to do so, the officer opened the door and he and WO #1 pulled the Complainant out of the vehicle onto the ground.
Following a brief struggle, the SO and WO #1 handcuffed the Complainant behind the back, lifted him to his feet, and placed him in the rear of a police vehicle.
An ambulance was called to the scene when the Complainant complained of an injury to his arm. He was taken to hospital and diagnosed with a fractured left humerus.
Relevant Legislation
Section 25, 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 264, Criminal Code -- Criminal Harassment
264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be;(d) engaging in threatening conduct directed at the other person or any member of their family.
(3) Every person who contravenes this section is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or(b) an offence punishable on summary conviction.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by WRPS officers in Kitchener on December 31, 2022. The SIU was notified of the incident and initiated an investigation, naming one of the officers the SO. 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 am satisfied that the SO was within his rights in seeking to take the Complainant into custody. By that time, the officer had interviewed the Civilian #1 and Civilian #2 at their home in the area of St. Leger Street and Victoria Marie Court and warned the Complainant that they were feeling harassed by his behaviour. When the Complainant persisted, he was subject to arrest under section 264 of the Criminal Code.
I am also satisfied that the force used by the SO and WO #1 in aid of the Complainant’s arrest was legally justified. The Complainant physically resisted the officers’ efforts to extract him from this vehicle and secure him in handcuffs. In the circumstances, the officers were entitled to resort to a measure of force, the nature and extent of which – as the BWC footage makes clear – was limited to pulling the Complainant out of the vehicle and wrestling control of his arms behind his back. No strikes of any kind were delivered.
In the result, while I accept that the Complainant’s injury was incurred in the course of the altercation that marked his arrest, it was not the result of any excessive force brought to bear by either of the SO or WO #1. As such, there is no basis for proceeding with criminal charges.
Date: December 15, 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.
I am satisfied that the SO was within his rights in seeking to take the Complainant into custody. By that time, the officer had interviewed the Civilian #1 and Civilian #2 at their home in the area of St. Leger Street and Victoria Marie Court and warned the Complainant that they were feeling harassed by his behaviour. When the Complainant persisted, he was subject to arrest under section 264 of the Criminal Code.
I am also satisfied that the force used by the SO and WO #1 in aid of the Complainant’s arrest was legally justified. The Complainant physically resisted the officers’ efforts to extract him from this vehicle and secure him in handcuffs. In the circumstances, the officers were entitled to resort to a measure of force, the nature and extent of which – as the BWC footage makes clear – was limited to pulling the Complainant out of the vehicle and wrestling control of his arms behind his back. No strikes of any kind were delivered.
In the result, while I accept that the Complainant’s injury was incurred in the course of the altercation that marked his arrest, it was not the result of any excessive force brought to bear by either of the SO or WO #1. As such, there is no basis for proceeding with criminal charges.
Date: December 15, 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.