Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injuries sustained by a 34-year-old man during his arrest on April 25, 2017.

Notification of the SIU

On April 25, 2017, at 10:50 p.m., the Waterloo Regional Police Service (WRPS) notified the SIU of the serious injury sustained by the Complainant after an interaction with WRPS members.

WRPS reported that on April 25, 2017, police officers responded to a call in respect of two men fighting at a residence in Waterloo. When the officers arrived, the Complainant was holding an axe. The Complainant struck Civilian Witness (CW) #12 on his hand with the axe and left the area.

At about 6:04 p.m., officers found the Complainant, still with the axe, on a sidewalk in the area of Mill Street and Lansdowne Boulevard in Kitchener. The Complainant ignored the officers’ commands and the Subject Officer (SO) deployed his Conducted Energy Weapon (CEW) twice. Witness Officer (WO) #1 deployed her CEW once. The CEW

The Complainant had facial injuries so he was taken to the hospital. At 9:52 p.m., WRPS was notified by medical staff that the Complainant had facial fractures.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators (FIS) responded to the scene and identified and preserved evidence. They documented the relevant scene associated with the incident by way of notes, photography, sketches and measurements.

Complainant

34-year-old male interviewed, medical records obtained and reviewed

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Interviewed

CW #10 Interviewed

CW #11 Interviewed

CW #12 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Not interviewed, but notes received and reviewed[1]

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

Subject officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.

During the late afternoon on April 25, 2017, the Complainant threw a paving stone from a third floor window at his residence in Waterloo at CW #12 and their landlord, who were standing outside.

CW #12 entered the home and confronted the Complainant, who was armed with an axe. A struggle ensued between the two men, and they fell down a flight of stairs together. Both men were injured as a result of the struggle. 911 was called and the Complainant fled the premises with the axe.

The SO located the Complainant walking down the middle of Mill Street in Kitchener. The SO attempted to stop the Complainant, advised him that he was under arrest for the earlier incident at his home and ordered him to show his hands, but the Complainant refused to comply with the officer’s demands. The Complainant repeatedly reached to his waist band, and the SO again ordered the Complainant to show his hands, but the Complainant refused.

As dispatch had cautioned the SO that the Complainant may still be armed with the axe, and in an effort to ensure the Complainant’s compliance, the SO unholstered and pointed his firearm at the Complainant and ordered him to get on the ground. The Complainant continued to stare at the SO and reach in and out of his waistband. The SO re-holstered his firearm and discharged his CEW twice at the Complainant, who pulled the wires out of his body and continued to walk away. The Complainant then started to drink from a beer can he had on him. The SO tackled the Complainant, bringing him to the ground. WO #1, the second officer on scene, discharged her CEW once at the Complainant while he was on the ground. It did not stop the Complainant from struggling with the SO.

While on the ground, the SO struggled to control the Complainant, who reached up and grabbed the SO’s vest and portable radio microphone. The Complainant pulled the SO towards him by the vest. The SO punched the Complainant on the face several times until the Complainant let go of the SO’s vest and stopped struggling. He was then handcuffed. The axe was recovered from the Complainant’s waistband. During the struggle, the SO’s middle finger was broken.

Because of the Complainant’s obvious facial injuries, an ambulance attended and took the Complainant to the hospital where it was determined that he had suffered multiple facial fractures, including fractures of his nasal and orbital bones.

The scene

Mill Street is populated by single-family dwellings on both sides of the road and runs in a general east-west direction. The roadway is paved and there is one lane in each direction for vehicular traffic. There are sidewalks of a common width on both sides of the roadway and overhead street lights on the south side of the roadway which light the area when in darkness. On either side of Mill Street, between the sidewalks and the roadway, there are thin grassy areas, with few exceptions. Lansdowne Boulevard runs south from Mill Street and is the eastern boundary of the scene.

Scene diagram

Physical evidence

Below is a photo of the axe taken from the Complainant’s waistband following his arrest:

Forensic Evidence

SIU FIS Analysis of the CEW Download Data

An analysis of the CEWCEW assigned to the SO on April 25, 2017 deployed a total of two cartridges, the first at 6:04:23 p.m.

The CEW assigned to WO #1 deployed one cartridge on April 25, 2017 at 6:06:19 p.m.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence.

Witness Generated Cellular Telephone Video

Three cellular telephone video clips that captured some of this interaction were collected from CW #1[2]. There were no time stamps associated with any of those videos but they were in colour, included audio and unquestionably depicted excerpts of the Complainant’s interaction with the SO on Mill Street on April 25, 2017.

Video One:

Recorded a police officer [now known to be the SO] standing on Mill Street about three metres away from the Complainant. A WRPS SUV police cruiser sat to the right-hand side in the video, with its driver’s side front door open.

It continued to record as the SO deployed his CEW, and the sound “clack clack clack” was clearly audible. The Complainant grunted, remained standing, and pulled the CEW wires out of his body.

Video Two:

The SO and the Complainant still stood about the same distance apart, as captured in Video One. Commands were yelled to “Put your hands behind your back,” (presumably by the SO). Capture of that interaction was interrupted when CW #1 walked through her house but when she got outside the capture resumed. The men were still standing and the Complainant yelled, “I am not under arrest for assault with a weapon.”

Video Three:

The SO and the Complainant walked away from the camera, up Mill Street, two metres from one another. They appeared to be in dialogue. Emergency vehicle sirens overwhelmed the audio and blocked out any ability to hear that dialogue.

Communications recordings

The communication recordings were comprehensively captured on a follow-up report and corroborate the evidence of the police officers who were interviewed in this matter.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the WRPS

• Communications recordings
• Station video
• Computer Aided Dispatch (CAD) Details Report
• Duty Rosters
• List of Officers re Contact with the Complainant
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6 and WO #7
• Occurrence (Person) – the Complainant
• Occurrence and CAD Details of prior incidents involving the Complainant

(15 reports – from 2006 to 2017);

• WRPS scene photos
• Prisoner Detail Sheet
• Procedure - Arrest
• Procedure - Use of Force
• Street Check Summaries
• Training Record – the SO and WO #1
• WRPS Witness Statements – CW #12 and four other non-designated witnesses

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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 88(1), Criminal Code - Possession of weapon for dangerous purpose

88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

Section 265(1), Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

Section 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. causes bodily harm to the complainant

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

On April 25^th, 2017 in the late afternoon, the Complainant became involved in an altercation with CW #12 (another tenant) in his building in the City of Waterloo, resulting in the Complainant arming himself with a small axe or a hatchet. Following that interaction, and based on the information received from CW #12 and other witnesses, police had reasonable grounds to arrest the Complainant for assault with a weapon (s. 267) and weapons dangerous (s. 88) of the Criminal Code and officers of the WRPS were advised accordingly. Officers were also advised that the Complainant may still be in possession of the weapon involved. Later that same day, at 6:04 p.m., the SO spotted the Complainant walking on Mill Street and attempted to effect an arrest. Following his interaction with police, the Complainant was transported to the hospital where he was diagnosed as having sustained numerous facial fractures and would be required to undergo surgery.

The Complainant, in his interview with SIU investigators, acknowledged consuming beer and marijuana before his interaction with police on April 25^th. He also acknowledged that he had a hatchet on him at the time of the interaction. He denied hitting anyone with the hatchet, however, or that he was injured during his interaction with CW #12. The Complainant alleged that the SO repeatedly fired his CEW at him when he was on Mill Street, and, when he was on the ground, another officer kicked him in the face.

During the course of this investigation, 12 civilian witnesses were interviewed, in addition to the Complainant. Of those 12, two were from the initial incident at the residence. Of the remainder, eight were witnesses who were present at various points during the Complainant’s interaction with police on Mill Street and two were medical personnel. Additionally, eight police officers, including the SO, were interviewed. The 7 witness officers all provided their memorandum book notes for review. Investigators also had access to the police radio transmission recordings, a cell phone video made by one of the witnesses on Mill Street and the CEW download data from both the SO and WO #1.

CW #12 advised WRPS that he and the Complainant both resided in a rooming house in Waterloo. At one point, while CW #12, along with another tenant and the landlord, were standing outside of the residence, a paving stone was thrown from a third floor window that narrowly missed the men. The landlord and CW #12 went up to speak to the Complainant. They confronted the Complainant and he held an axe in the air. CW #12 described the Complainant as being blank and without emotion. CW #12 advised that he lunged at the Complainant to disarm him of the axe, and the Complainant and CW #12 struggled. Both men fell down a flight of stairs. The men struggled again over the axe. CW #12 pushed the Complainant, who fell down another flight of stairs and then punched him in the face, above his nose, and kicked him in the left eye. This knocked the Complainant unconscious for a very short time but shortly thereafter, the Complainant got up and fled the building. Both men had visible injuries.

The SO was in his police vehicle on duty when he observed the Complainant walking on Mill Street and, after hearing the description of the wanted male in the hatchet incident, he felt confident that the Complainant was the man they were looking for. This evidence is confirmed by the radio transmission recording whereupon immediately after the dispatcher repeats the Complainant’s description as a male, heavy build, 5’4” [1.63 metres] wearing camouflage pants, a hoodie, shaved head and boots, the SO is heard to transmit, “I believe I just passed that male on Mill at Stirling” and then he is heard to say, “I’ll just swing around. What are we looking for him for?” and the dispatcher responds with the details and cautions “unknown if might still have the axe on him”.

As the SO approached the Complainant in his cruiser, he observed that the Complainant had blood on the bridge of his nose down to his lip. The SO, while still inside his vehicle, told the Complainant to stop, that he was under arrest for assault with a weapon and weapons dangerous. The Complainant did not stop but continued to walk toward the SO in his cruiser as if he was not there; he was staring right through him. The SO repeated that the Complainant was under arrest and told him to stand still and put his hands behind his back. The Complainant again stared at him and said nothing at first, but then told the officer “fuck you” and began to reach inside the hood of his sweater and then lowered his hands to his waist. The SO remained seated inside of his cruiser and yelled, “Show me your hands, put your hands behind your back”. The SO indicated that he believed that the Complainant may be reaching for a weapon. The SO then told the Complainant to get on the sidewalk and put his hands out in front of him where he could see them. The Complainant just continued staring at the SO, which the SO described as being like a “programmed robot, like he was on a mission” and that the SO was interfering. The SO advised that as the Complainant was not known to him, he did not know if alcohol, drugs or mental health issues were involved, but he believed the Complainant to be a threat.

The SO continued to demand that the Complainant show him his hands but the Complainant did not do so. The SO described the Complainant as becoming agitated, grinding his teeth, and inflating himself as if trying to make himself look bigger - he lifted his shoulders and kept putting his hands in and out of his waistband, while staring at the SO.

The SO then exited his cruiser in an effort to perhaps de-escalate the situation, but the Complainant continued to reach for his waistband, resulting in the SO drawing his firearm and pointing it at the Complainant and saying, “Police, don’t move, get down on the ground.” The Complainant and the SO were three or four metres apart at that point, when the Complainant reached out, in a grabbing motion, and tried to grab the firearm from the SO. The Complainant had a smile on his face at the time. The SO described it as the craziest thing he had ever seen and he back-pedaled quite a few metres onto the front yard of a nearby residence and re-holstered his firearm while drawing his CEW and yelling commands for the Complainant to show his hands. Instead, the Complainant grabbed his own hoodie and spread it open, and the SO deployed his CEW with one probe hitting the Complainant near his waistband and one landing near the nipple line of his chest. This evidence is confirmed by CW #11 and the paramedic records, who observed three CEW probes in the Complainant’s chest, and is also consistent with the evidence of WO #7, who observed medical personnel at the hospital remove one probe from the Complainant’s belt. After the initial deployment of the CEW, the SO observed the Complainant grab the CEW wires with both hands and rip them off his body, with no apparent effect, other than that the Complainant appeared to become agitated and enraged, yelling, “You got nothing on me, I’m not going to jail, fuck you cop!” and continued to reach for his waistband area. The SO again told the Complainant to stop and the Complainant first stepped toward the SO but then left the sidewalk and walked away. The SO walked in front of the Complainant to attempt to block him from walking down the street and deployed his CEW a second time. The probes hit the Complainant in roughly the same area as the first deployment and he again wrapped his hands around the wires and ripped them from his body.

This evidence is fully confirmed by the cell phone video taken by CW #1, wherein the SO and the Complainant are first seen standing about three metres apart and the police cruiser is seen on the right hand side with the driver’s door standing open. The SO is then seen, and heard, to deploy his CEW and the sound “clack clack clack” is clearly audible followed by a grunt from the Complainant, who remains on his feet and is seen to pull the wires out of his body. A second video clip reveals the SO and the Complainant still standing the same distance apart while the SO is heard to yell, “Put your hands behind your back,” and the Complainant (after a lapse in the footage as the videographer changed her location) is heard to yell, “I’m not under arrest for assault with a weapon!” In a third clip, the SO and the Complainant appear to be walking away from the camera, with the two facing each other, but the SO appears to be stepping back away from the Complainant. There appears to be some dialogue between the two which is then drowned out by the sound of an approaching siren.

The SO advised that he had never been in a situation such as this before, and he called for back-up. This evidence is confirmed by the radio transmission recording wherein the SO is heard to say, “Taser deployed. I need another unit.” He is then heard to yell, “Put your hands behind your back! Do it now!” and then, “Taser’s been deployed. Two cartridges. Not successful. He’s just ripped the wires off,” and he gives his location as out front of a residence on Mill Street.

The CEW download data from the SO’s CEW confirms that he deployed his CEW twice on April 25^th, 2017, with the first being at 6:04:23 p.m. and a total of two cartridges were deployed. This is further confirmed by the evidence of the Complainant himself.

The SO advised that he then inspected his CEW, as he thought it must not be working. He observed four probes in the Complainant and tried to re-energize his CEW but then re-holstered it and again drew his firearm. He ordered the Complainant to the ground and the Complainant mumbled, “Fuck the police,” and that he was not going anywhere. The SO continued to follow the Complainant for about 50 metres down the centre of Mill Street, yelling at him the entire time. He then observed a silver motor vehicle enter onto Mill Street and slow, as a result of which he again holstered his firearm because the car and its occupants would have been in his line of fire, behind the Complainant. The Complainant walked towards the driver’s door of the car and yelled, “Give me your car! I’m taking your car!” but the car reversed away and left. The SO indicated that he thought that the Complainant was going to kill someone or take the car and kill someone. The SO advised that he then observed a person he knew, CW #9[3], on the front lawn of a residence on Mill Street and he asked CW #9 if he knew the Complainant and, if so, could he please tell him to get down on the ground as he was under arrest. The SO advised that CW #9 indicated he would not help and that he did not know the guy. WO #1 then ran up to the left side of the SO, with her CEW pointed at the Complainant, and the Complainant grabbed his hoodie, ripped it off, threw it down on the ground and kept walking. At that point, the SO saw that the Complainant had a small hatchet in his waistband at the small of his back. The SO and WO #1 then saw the Complainant produce a tall can of beer from somewhere on his person and begin to chug it while yelling, “I’ll drink my fucking beer, you won’t stop me!”

WO #1 advised that she had heard the broadcast about the assault earlier in the day and that the Complainant may still be in possession of an axe and that there were reasonable grounds to arrest him for assault with a weapon. When WO #1 heard the SO broadcast that he had located the Complainant, and that he had discharged his CEW twice, ineffectively, and needed assistance, she turned onto Mill Street and observed the Complainant walking in the street away from the SO. She described the Complainant as yelling and flailing his arms at the SO, who was trying to speak to him. WO #1 advised that she parked her cruiser and heard the Complainant scream, “Fuck you! I am not listening to you. This is ridiculous.” WO#1 was approximately eight metres behind the Complainant and she told him he was under arrest for assault with a weapon, while the SO repeatedly ordered the Complainant to stop walking and get on the ground. WO #1 advised that as she was aware that the CEW had already been deployed twice and that the Complainant might be armed with the axe, she drew her CEW and told the SO that she had a CEW and could deploy if needed. She observed the SO to be very focused on the Complainant, who occasionally turned and yelled at them. WO #1 observed that CEW wires were hanging from the Complainant’s chest and/or stomach and she observed what appeared to be dried blood on his lower face. WO #1 advised that she saw the silver car travelling on Mill Street towards them, and then stop and reverse away. She further indicated that the Complainant was about five metres from the car as it reversed away and she was concerned that the Complainant was uncomfortably close to the car and clearly agitated. The Complainant then ripped off his jacket and threw it on the ground and produced a can of beer from somewhere on his person and began to drink it. She also observed the shaft of the axe tucked into his waistband in the small of his back and she and the SO exchanged a look confirming that they had both seen it.

The SO indicated that the Complainant appeared to him as a programmed robot and he was concerned that the Complainant would kill someone. He told WO #1 that they had to take the Complainant down and, when the Complainant took another sip of his beer, the SO told WO #1 that they had to take him then and he charged at the Complainant and took him to the ground while WO #1 deployed her CEW into the Complainant’s back, but it had no effect. The SO thought that the Complainant had unreal strength and immense pain tolerance. The SO got on top of the Complainant’s back and used gravity to slam the Complainant to the ground, where the Complainant immediately flipped onto his back and remained face to face with the SO. The Complainant then bridged his body and pushed the SO up and off of him. The SO described the Complainant as having his hands at his sides and clenched into fists. WO #1 then went to the Complainant’s left side and the SO to his right, when the Complainant reached up and grabbed the SO’s vest, grabbing his portable radio microphone and pulling him by the vest. Things fell out of the SO’s vest onto the ground. The SO described the Complainant’s strength as unreal and as something you would not expect. The SO then used his right hand and punched the Complainant in the left side of his face as hard as he could and continued to hit him with his fist until the Complainant let go and the SO felt that the threat had abated. The SO estimated that he struck the Complainant at least three times but possibly as many as seven times. He advised that he struck the Complainant in the face because that was the target that was available to him and that he held the Complainant’s left arm down until he gained compliance and the Complainant stopped resisting. The SO observed the Complainant to have blood coming from his nose, and he then looked normally at the SO and said that he was done. WO #3, who had arrived moments before, then retrieved the axe from the waistband of the Complainant and the paramedics arrived and assisted him. At that point, the SO saw that the Complainant’s left eye was swollen and bruised and he was taken to hospital. The SO advised that his own right hand had been cut open and was bleeding and he later learned that his middle finger was broken.

WO #1 indicated that after the Complainant took a sip of beer and told the SO, “I’m not listening to you,” the SO ran approximately one metre at the Complainant and tackled him to the roadway from behind. She described the SO as having both of his arms around the Complainant’s torso and the two men fell to the road with the Complainant landing on his left shoulder and that he did not extend his arms to break his fall. Both men then rolled onto their sides and struggled face to face. The Complainant grabbed at the SO, flailing his legs, and WO #1 described him as being assaultive. After about five seconds of struggling, WO #1 deployed her CEW at the Complainant’s back and both probes made contact, resulting in a scream from the Complainant. WO #1 indicated that although the deployment was not fully effective, it allowed the SO a window of opportunity to position himself on top of the Complainant at his waist. The Complainant flailed both his arms and his legs and yelled, “Fuck you,” and, “Fuck off,” while the SO yelled that he was under arrest and to stop.

WO #1 advised that she then saw the Complainant reach for the SO’s radio and she was concerned that he could get access to the use of force options on his duty belt, at which point she moved in and tried to grab the Complainant’s limbs to arrest him. She observed the SO make a closed fist with his right hand and punch the Complainant in the left eye four or five times in rapid succession with his bare hands which had no jewelry on his fingers. The Complainant continued to struggle and to reach and grab while his legs moved up and down in a flutter kick motion. WO #1 controlled the Complainant’s legs so that he could not kick the SO. When the Complainant stopped fighting and yelling, the SO stopped hitting him. At no time did WO #1 observe the Complainant to lose consciousness. He then became compliant and both officers rolled him onto his left shoulder where she noticed that the Complainant’s left eye was swollen and there was a cut on his left temple. WO #1 advised that the SO told her that prior to her arrival, he had attempted a gun point arrest and had deployed his CEW twice. WO #1 advised that no one other than the SO ever struck the Complainant and she opined that the SO’s actions were the only non-lethal use of force option available to him, since the CEW had already been ineffectively deployed three times and the use of pepper spray or the baton were not options as the officers and the Complainant were all in such close proximity. In her view, the only other use of force option that was available was the firearm.

WO #6 advised that upon his arrival, he observed the Complainant’s left eye to be swollen, but he did not believe that the damage had just occurred, while he did believe that his red and swollen nose, which was actively bleeding, had. He also described the Complainant as seeming to be in a “drug induced daze, a zombie state” and he did not seem to be “with it”. When he saw the Complainant at the hospital, the Complainant asked him why he was under arrest, as if he had no recollection of what had occurred.

WO #3 located both the axe in the back waistband of the Complainant’s pants, and later, his jacket in a location consistent with the location where the SO and WO #1 had indicated the Complainant had ripped it off and thrown it onto the ground.

When WO #4 arrived at the scene, he observed that the Complainant had not yet been handcuffed and that the SO and WO #1 were struggling to keep him under control. The SO relayed to WO #4 that he had taken his gun out but put it away in favour of his CEW, but that the CEW deployment had failed. WO #4 also observed two CEW wires on the ground.

All officers who arrived at the scene while the Complainant was on the ground indicated that at no time did he lose consciousness. WO #5 noted that the Complainant was conscious, silent and breathing upon his arrival with WO #1 kneeling behind him. He further noticed that some of the probes in the Complainant’s back were still connected to WO #1’s holstered CEW and that the SO, who was kneeling in front of the Complainant, also had wires connected to the CEW dangling in his holster. The SO told WO #5 that the Complainant had ripped the wires away from the probes when he landed on the Complainant.

On all of the evidence, it is clear that the Complainant suffered severe facial injuries to the left eye and, while those injuries are more consistent with the kick to the left eye that he received during his struggle with CW #12 at the residence, which CW#12 described as landing in the Complainant’s left eye socket causing the Complainant to fall forward and become unconscious, than it is with the five to seven short and hard punches delivered to the left side and eye of the Complainant’s face by the SO, I will deal with whether or not the SO’s actions were an excessive use of force on the basis that there is a possibility that they may have caused the Complainant’s injuries, although it would be impossible to prove this beyond a reasonable doubt in a court of law. I find it important to note, however, that the observations of CW #11 that the Complainant’s left eye had already developed into a large bruise and was swollen upon her arrival, as well as the paramedic records which described the Complainant’s left eye as already being swollen shut at the time that they saw him, and the observation of WO #6 that this injury was not fresh, tends to lend credence to the fact that it was actually the kick at the residence that caused the broken bones in his eye rather than the punches from the SO. On the evidence of two civilian witnesses, I accept that the Complainant already had obvious bleeding and facial injuries when he left his residence after his physical confrontation with CW #12. I further note that the Complainant himself attributed his injury to being kicked in the eye, both in his statement to the SIU and to paramedics immediately after the incident, although he believed it to have been a police officer who kicked him, when, in fact, on all of the evidence, it is clear that the Complainant was not kicked by any officer during the incident on Mill Street. Based on the Complainant’s statement, I find that the Complainant has little recall of how he was injured and that it is likely that due to his altered mental state, he has fused together in his memory the two incidents which occurred on April 25^th into one.

Further, I do not accept, on all of the evidence, that the SO punched the Complainant in the face the extreme number of times alleged by CW #9, as that evidence is inconsistent with all of the other civilian witnesses who observed the punches and estimated them as being around six times. I find that the evidence of these other civilian witnesses fully confirms the evidence of the SO that he punched the Complainant no less than three times but no more than seven times, as well as the evidence of WO #1 that the SO punched the Complainant four to five times in rapid succession. I further do not accept the evidence of CW #9 regarding the number of times that the CEW was deployed by the SO, as that is contradicted by all of the other witnesses, as well as the CEW deployment data and the radio transmissions, which all clearly indicate two deployments by the SO and one later deployment by WO #1. I also reject the evidence of CW #9 regarding that the Complainant was rendered unconscious when he lay on the road, as that is again not consistent with the evidence of the other civilian witnesses nor the paramedic records, which indicate that they asked the Complainant if he ever lost consciousness and he indicated that he had not.

I accept the evidence that the Complainant had the SO by his vest and his radio and that his hands were in the area of his duty belt on the basis that this is consistent with the evidence of WO #1 and also with the fact that the SO went back to the area to retrieve the items that had fallen from his vest when the Complainant was grabbing at his vest and pulling him.

Finally, I also accept, on the evidence of several civilian witnesses, which was consistent with the evidence of the SO, WO #1 and the other officers who later arrived at the scene, that the Complainant was apparently, for whatever reason, immune to pain and behaving like a robot.

On the evidence of all of the witnesses, with the exception of CW #9, whose evidence I reject as being exaggerated and untruthful and in contradiction of every other witness, very possibly due to his prior interactions with the SO[4], I find that the evidence of the SO and WO #1 is substantially confirmed by the evidence of all of the other civilian witnesses, as well as the physical evidence, and the utterances made at the time, without opportunity for concoction, by both the SO and WO #1 to the paramedics. The statements of various police officers are also consistent with the SO and WO #1’s statements and I accept that version of events as accurate and those are the facts upon which I rely to determine whether or not there are reasonable grounds to believe that the SO’s actions amounted to an excessive use of force.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the statement of CW #12, as provided to the 911 operator and later relayed to the SO and WO #1 by the police dispatcher, that they had reasonable grounds to believe that the Complainant had committed the offences of assault with a weapon and weapons dangerous. As such, both the SO and WO #1 were acting lawfully and within their duties when they attempted to arrest, and subsequently subdue, the Complainant during their interaction with him.

With respect to the amount of force used by the officers in their attempts to subdue the Complainant, one has to consider what the SO and WO #1 were dealing with at the time, in order to determine if the amount of force used was justified or not. I note that the SO, knowing that the Complainant had allegedly assaulted another male with an axe and that he may possibly still be in possession of that axe, initially drew his firearm when the Complainant ignored his demands to stop and put his hands behind his back and refused to acknowledge that the officer was placing him under arrest. After repeatedly and loudly advising the Complainant to comply, and with the uncertainty as to whether or not he was still in possession of a weapon, I note that the SO considered the safety of the public and re-holstered his firearm and drew his CEW. I accept the description of the SO, as it is directly confirmed by both CW #12 and CW #8, that the Complainant was not behaving normally, but was staring through the SO and behaving like a “programmed robot … on a mission” that the SO was interfering with and that the SO considered him to be a real threat. The SO first hoped to de-escalate the situation by getting out of his cruiser to speak to the Complainant, and then by drawing his firearm and, although he never intended on actually discharging his firearm, he was shocked when the Complainant grabbed at the gun. I fully appreciate that having already directed the Complainant to comply and the Complainant ignoring those commands as well as apparently feeling totally unthreatened by the SO drawing his firearm, that short of actually shooting the Complainant, the SO had few remaining use of force options left. I have no difficulty in finding that the SO’s only option at that point was to resort to his CEW in the hopes that would cause the Complainant to submit and allow him to be arrested. Having discharged his CEW on two occasions, with little or no indication that it was in the least bit effective, the SO had even fewer options available to him and had the presence of mind to call for back-up.

While the SO initially believed that his CEW was simply not working, once WO #1 deployed her CEW as well and it too had little to no effect on the Complainant, I can appreciate how the Complainant would have seemed totally lacking in vulnerability and immune to any reasonable use of force options at the SO’s disposal. It is to his credit that the SO never discharged his firearm in these circumstances, when all else had failed. I agree with the assessment of WO #1 that the SO’s actions in tackling the Complainant to the ground and punching him until he complied and was no longer a threat was the only option remaining to the SO. I also accept the evidence of several of the civilian witnesses and that of the SO and WO #1 that no further punches were thrown after the Complainant submitted to the officers. I believe that the entire policing model is based on a presumption that most persons will submit when faced with certain use of force options. That model fails, however, when, as here, a person is for whatever reason totally without fear and incapable of feeling pain. In those circumstances, there are few options left remaining to a police officer to attempt to gain compliance. Here, the SO considered and rejected the use of his firearm, and found that his CEW proved ineffective, leaving him only with physical force to overcome the Complainant. Even were I to find that the Complainant’s injuries were caused by the SO punching him in the face numerous times, I find that pursuant to section 25(1) of the Criminal Code, the officer used no more force than was reasonably necessary in the execution of his lawful duties and I do not find this to have been an excessive use of force in the circumstances. On this record, it is clear that the force used by both the SO and WO #1 progressed in a measured and proportionate fashion to meet and overcome the Complainant’s total lack of fear, his incredible resistance to pain, and his resultant surprising and extraordinary human strength, and therefore fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.

In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

I find, on the record before me, that the degree of force and the number of punches to the Complainant’s face were, unfortunately, required in order to gain control of the Complainant and to place him under arrest and remove any potential weapons on his person. Before concluding, however, I believe that it is worthy of note that the SO considered all options in dealing with the Complainant and rejected a lethal use of force. Although from a distance it may have appeared to civilian bystanders that the SO was using excessive force when he repeatedly punched the Complainant in the face, I find that he only struck the Complainant up until the point in time when he stopped resisting and that the SO did not continue after the Complainant had indicated that he was done. In all, I find that unlike the unfortunate outcomes of many police interactions with persons suffering from either drug/alcohol intoxication or possible mental health issues,[5] the SO considered all of his options, kept a level head, and thereby possibly prevented a loss of life. It is unfortunate that the Complainant suffered the serious injury that he did, if he in fact sustained that injury at the hands of the SO, of which I am not fully convinced,[6] but on the whole, the outcome could have been far worse had the SO decided to resort, when all else failed, to a lethal use of force option.

As such, I am therefore satisfied on reasonable grounds on this record that the actions exercised by both the SO and WO #1 fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: January 11, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Memorandum book entries made by WO #2 were reviewed and revealed that his involvement in the matter was limited to scene control; he had not witnessed the interaction between the Complainant and other police officers. [Back to text]
• 2) [2] CW #1 sent those videos to the SIU through the SIU website. [Back to text]
• 3) [3] The SO described CW #9 as a known drug addict and drug dealer from the area. [Back to text]
• 4) [4] Interestingly enough, CW #9, while extremely detailed in his description of the SO’s actions, could not even describe WO #1. [Back to text]
• 5) [5] In this case there is no doubt that the Complainant suffered memory deficits, but it is unclear whether this was the result of drug/alcohol impairment or other medical issues from which he suffered [Back to text]
• 6) [6] It is just as likely, or even more likely, that the Complainant suffered his serious injury when kicked in the face/eye by CW #12 or when he “fell” down two flights of stairs. I note also that the struggles with the Complainant were so intense that both CW #12 and the SO broke fingers during their confrontations. [Back to text]