SIU Director’s Report - Case # 23-OCI-337
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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 injuries of a 34-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 injuries of a 34-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On August 20, 2023, at 2:06 p.m., the Waterloo Regional Police Service (WRPS) notified the SIU of an injury to the Complainant. According to the WRPS, on August 1, 2023, at 3:50 a.m., an off-duty WRPS officer, the Subject Official (SO), was fueling his vehicle at the Esso gas station located at 593 Victoria Street North, Kitchener. A man [later known to be the Complainant] approached the SO in an intoxicated state and was bothering him. The SO called the WRPS Communications Centre and advised that the Complainant was intoxicated and causing a disturbance. Two other off-duty WRPS officers, Witness Official (WO) #4 and WO #3, arrived. The SO shared information with them that led them to believe that the SO had been robbed. WO #4 and WO #3 chased the Complainant and took him to the ground to effect an arrest. The SO reportedly kicked the Complainant, which resulted in the Complainant complaining of sore ribs. WO #2 and WO #1, both on-duty WRPS officers, arrived and assisted with the arrest. The Complainant was taken to the home of a relative and released on an undertaking. A couple of hours later, the Complainant went to St. Mary’s General Hospital (SMGH) where he was admitted for a broken rib and a collapsed lung.
The Team
Date and time team dispatched: 08/21/2023 at 7:41 a.m.Date and time SIU arrived on scene: 08/21/2023 at 9:25 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
34-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on August 21, 2023.
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
The civilian witnesses were interviewed between August 21 and 29, 2023.
Subject Official
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on September 25, 2023.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed between August 25 and 29, 2023.
Evidence
The Scene
The events in question transpired in and around the intersection of Victoria Street North and Edna Street, Kitchener.Due to the delay in notification, there was no secured scene and SIU forensic investigators did not attend.
Video/Audio/Photographic Evidence [2]
Video Footage – Esso - 593 Victoria Street North
Starting at about 3:40 a.m., the SO was captured stopped at the pumps to get gas.
Starting at about 3:53 a.m., the SO, WO #4 and WO #3 drove in separate vehicles on Edna Street towards Victoria Street North.
Starting at about 3:54 a.m., the Complainant ran into the Esso lot. The SO drove through the Esso lot towards Edna Street. WO #4 and WO #3 were stopped on Edna Street. The Complainant ran to the Esso store, but the door was locked.
Starting at about 3:56 a.m., the Complainant ran towards Victoria Street North and out of sight. WO #3 ran into the Esso lot towards Victoria Street North, followed by the SO.
Video Footage - Petro Canada - 607 Victoria Street North
Starting at about 3:27 a.m., the SO was captured driving into the lot and stopping at the gas pumps.Starting at about 3:28 a.m., the Complainant walked towards the pumps and stopped. The SO approached the Complainant and they exchanged words.
Starting at about 3:33 a.m., the Complainant ran past Petro Canada with the SO and WO #3 chasing him.
Video Footage - Doorbell Camera
Starting at about 3:55 a.m., the Complainant ran to the door of a residence. A male voice yelled, “Keep running you little fuck.” The Complainant replied to leave him alone. The Complainant knocked on the door, then ran away.Starting at about 4:00 a.m., WO #2 and WO #4 were in front of the residence when WO #4 indicated that the Complainant was running away. WO #4 pointed across the road and said, “He’s over there,” before running in that direction.
Police Communication Recordings
Starting at about 3:48 a.m., a WRPS Communications Centre communicator called the SO on his cell phone. The SO said he was off-duty and at Petro Canada, and the Complainant was approaching his vehicle. The SO was yelling, “Get away from my car. I am going to arrest you, get away, get away. Get across the street right now. Get across the street.” After a delay, the SO advised that everything was all right and that he had a conversation with the Complainant, who had run across the street to Weston Bread (Wonder Brands).Starting at about 3:53 a.m., police officers were dispatched to 593 Victoria Street North on information the Complainant was approaching the SO’s vehicle.
Starting at about 3:54 a.m., dispatch advised that the SO indicated everything was fine and that the Complainant had run across the street to Weston Bread.
Starting at about 3:56 a.m., a resident called and indicated the SO, WO #4 and WO #3 were parked in front of the caller’s house. The Complainant had knocked on her door, and she thought they may have been fighting and the Complainant was trying to get away from them.
At about 3:57 a.m., dispatch was advised that the Complainant was in custody.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the WRPS on August 23, 2023:- Names and roles of involved police officers;
- Names of civilian witnesses and copies of statements provided;
- Information from computer-assisted dispatch;
- General Occurrence Report;
- Arrest Report/Crown Brief Summary;
- Copies of video footage and digital images;
- Communications recordings;
- Duty book notes – WO #4;
- Duty book notes – WO #3;
- Duty book notes – WO #2;
- Duty book notes – WO #1;
- Policy - Arrest and Release; and
- Policy - Use of Force.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between August 21 and 23, 2023:- The Complainant’s medical records from SMGH; and
- Text message to WO #2 from the Complainant.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, and video footage that captured the incident in parts, gives rise to the following scenario.
In the early morning of August 1, 2023, the SO was off-duty and stopped at the Esso gas station at the southwest corner of Victoria Street North and Edna Street when he was confronted by the Complainant. The Complainant yelled at the officer and then followed him as the SO made his way across the street to the Petro Canada gas station; the pumps at the Esso were malfunctioning. The Complainant harassed the officer as the SO fueled his vehicle. He wanted to know why the SO was refueling his car. The SO told him he was not interested in any further conversation. When the Complainant persisted, he identified himself as an officer and cautioned him about criminal harassment. The Complainant was undeterred. The SO called his service and reported what was happening.
The Complainant was inebriated at the time. He had been unsuccessfully trying to have third-parties contact a taxi for him when he came upon the SO. The Complainant had returned to the Petro Canada gas station when he was approached by the SO and WO #3, the latter having come upon the disturbance and stopped to inquire what was happening. The Complainant ran away from the officers.
The SO and WO #3, soon joined by WO #4, had decided to arrest the Complainant for criminal harassment. The three chased after the Complainant in their vehicles and on foot, intermittently losing sight of him. WO #4 eventually caught up to the Complainant a short distance away on Victoria Street North by the Weston Foods. The officer forced the Complainant to the ground and punched him twice to the left shoulder when he failed to show him his right hand. WO #3 arrived shortly after the Complainant was grounded. He too punched the Complainant in the shoulder when he refused to surrender his arms. He also elbowed him in the face when the Complainant tried to bite the officer. WO #4 and WO #3 were eventually able to handcuff the Complainant behind the back.
The Complainant was transported home and released on an undertaking. He subsequently attended hospital and was diagnosed with two fractured ribs and a moderately collapsed left lung.
In the early morning of August 1, 2023, the SO was off-duty and stopped at the Esso gas station at the southwest corner of Victoria Street North and Edna Street when he was confronted by the Complainant. The Complainant yelled at the officer and then followed him as the SO made his way across the street to the Petro Canada gas station; the pumps at the Esso were malfunctioning. The Complainant harassed the officer as the SO fueled his vehicle. He wanted to know why the SO was refueling his car. The SO told him he was not interested in any further conversation. When the Complainant persisted, he identified himself as an officer and cautioned him about criminal harassment. The Complainant was undeterred. The SO called his service and reported what was happening.
The Complainant was inebriated at the time. He had been unsuccessfully trying to have third-parties contact a taxi for him when he came upon the SO. The Complainant had returned to the Petro Canada gas station when he was approached by the SO and WO #3, the latter having come upon the disturbance and stopped to inquire what was happening. The Complainant ran away from the officers.
The SO and WO #3, soon joined by WO #4, had decided to arrest the Complainant for criminal harassment. The three chased after the Complainant in their vehicles and on foot, intermittently losing sight of him. WO #4 eventually caught up to the Complainant a short distance away on Victoria Street North by the Weston Foods. The officer forced the Complainant to the ground and punched him twice to the left shoulder when he failed to show him his right hand. WO #3 arrived shortly after the Complainant was grounded. He too punched the Complainant in the shoulder when he refused to surrender his arms. He also elbowed him in the face when the Complainant tried to bite the officer. WO #4 and WO #3 were eventually able to handcuff the Complainant behind the back.
The Complainant was transported home and released on an undertaking. He subsequently attended hospital and was diagnosed with two fractured ribs and a moderately collapsed left lung.
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 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
(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened(a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or(b) an offence punishable on summary conviction.
(5) Where the court is satisfied of the existence of an aggravating factor referred to in subsection (4), but decides not to give effect to it for sentencing purposes, the court shall give reasons for its decision.(a) the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or(b) the terms or conditions of any other order or recognizance made or entered into under the common law or a provision of this or any other Act of Parliament or of a province that is similar in effect to an order or recognizance referred to in paragraph (a).
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by WRPS officers on August 1, 2023. The SIU was notified of the incident and initiated an investigation, naming the SO as the subject official. 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 injuries.
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.
For no apparent reason, other than he was inebriated at the time, the Complainant had approached the SO and interacted with him in increasingly belligerent tones. He questioned why the officer had fueled his vehicle at different locations, and then accused the officer of following him. He continued his unwelcome overtures even after the SO asked him to desist and told him he was a police office. In the circumstances, I am satisfied the Complainant was subject to arrest for criminal harassment under section 264 of the Criminal Code.
As for the force brought to bear by the police in aid of the Complainant’s arrest, I am satisfied it was legally justified. For starters, the takedown executed by WO #4 appears to have been in order. By that time, the Complainant having led the officers on a protracted chase in the area, it was clear that he was bent on escape. With him on the ground, the officers could expect to better manage any continuing resistance by the Complainant. Indeed, the Complainant did continue to struggle with the officers, refusing to release his arms to be handcuffed and attempting to bite WO #3. The additional strikes by WO #4 and WO #3 were tailored to subdue the Complainant and, in fact, did so. No further strikes were delivered after the Complainant was handcuffed.
There is an account of the Complainant being kicked in the ribs by the SO while on the ground, but it be unwise and unsafe to place credence on this evidence due to a lack of reliability in light of other evidence. As for the SO, he denies kicking the Complainant.
In the result, while I accept that the Complainant’s injuries were incurred in the altercation that marked his arrest, I am not satisfied on reasonable grounds that they are attributable to any unlawful conduct on the part of the SO, WO #4 or WO #3. As such, there is no basis for proceeding with charges in this case.
Date: December 18, 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.
For no apparent reason, other than he was inebriated at the time, the Complainant had approached the SO and interacted with him in increasingly belligerent tones. He questioned why the officer had fueled his vehicle at different locations, and then accused the officer of following him. He continued his unwelcome overtures even after the SO asked him to desist and told him he was a police office. In the circumstances, I am satisfied the Complainant was subject to arrest for criminal harassment under section 264 of the Criminal Code.
As for the force brought to bear by the police in aid of the Complainant’s arrest, I am satisfied it was legally justified. For starters, the takedown executed by WO #4 appears to have been in order. By that time, the Complainant having led the officers on a protracted chase in the area, it was clear that he was bent on escape. With him on the ground, the officers could expect to better manage any continuing resistance by the Complainant. Indeed, the Complainant did continue to struggle with the officers, refusing to release his arms to be handcuffed and attempting to bite WO #3. The additional strikes by WO #4 and WO #3 were tailored to subdue the Complainant and, in fact, did so. No further strikes were delivered after the Complainant was handcuffed.
There is an account of the Complainant being kicked in the ribs by the SO while on the ground, but it be unwise and unsafe to place credence on this evidence due to a lack of reliability in light of other evidence. As for the SO, he denies kicking the Complainant.
In the result, while I accept that the Complainant’s injuries were incurred in the altercation that marked his arrest, I am not satisfied on reasonable grounds that they are attributable to any unlawful conduct on the part of the SO, WO #4 or WO #3. As such, there is no basis for proceeding with charges in this case.
Date: December 18, 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.