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 injury of a 41-year-old man during his arrest on January 12, 2017.

Notification of the SIU

The SIU was notified of the incident by the Waterloo Regional Police Service (WRPS) on January 13, 2017 at 8:45 a.m.

WRPS reported that on January 12, 2017 at 5:26 p.m., police responded to a disturbance call on King Street East. Upon arrival, police officers arrested and grounded the Complainant for possessing dangerous weapons. The Complainant was subsequently transported to hospital, where he was apprehended under the Mental Health Act (MHA). A computed tomography (CT) scan was performed and revealed that the Complainant suffered an orbital bone fracture.

The Team

Number of SIU Investigators assigned: 2

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Not interviewed, but notes received and reviewed[1]

WO #4  Not interviewed, but notes received and reviewed

Subject Officers

SO Interviewed, and notes received and reviewed

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence and received video footage from the community support centre where the incident occurred.

Summary of Video Footage

On January 12, 2017, at approximately 5:10 p.m., the following was captured on video from the community support centre:

• At 5:10 p.m., the Complainant walked to a table and picked up a blue coloured item [now known to be a blue trinket box that belonged to girlfriend of another resident (Other Resident)]. The Complainant examined the item for a few seconds and dropped it on the ground. The Other Resident stood up and engaged in conversation with the Complainant. CW #2 and another individual approached the Complainant. The Complainant walked around the table towards the Other Resident. CW #2 and the other individual followed the Complainant. The Complainant walked past the Other Resident and walked towards the corner of the room. [One is unable to see the Complainant in the corner of the room. There is a red coloured telephone booth next to him];
• At 5:23 p.m., CW #1 approached the Complainant, who was in the corner of the room, and appeared to be talking. CW #2 and the other individual were standing close by. It appeared that the Complainant threw something down onto the ground. Fragments could be seen dispersing on the ground. A chair was pushed out from the corner where the Complainant was located
• At 5:26 p.m., the Complainant could be seen taking a chair that was next to the red telephone booth. CW #1 approached the Complainant and took the chair away from him. CW #1 conversed with the Complainant who was still in the corner of the room. It appeared that the Complainant placed an item on the floor
• At 5:40 p.m., WO #2 entered the room with CW #2 and he walked towards the corner where the Complainant was
• At 5:42 p.m., WO #1 entered the room and walked towards the corner of the room where the Complainant was
• At 5:43 p.m., WO #2 bent over and grabbed a bag that was in front of the Complainant and threw it behind him towards the red coloured telephone booth
• At 5:46 p.m., the SO entered the room and walked towards the corner where the Complainant was located
• At 5:46:53 p.m., a piece of paper or item was thrown from the corner where the Complainant was and landed on a table. All three police officers walked towards the Complainant. The interaction between the SO, WO #1, WO #2 and the Complainant was out of camera view since it appeared that they were in the corner of the room and there were no other cameras overlooking this area. It appeared that two of the police officers kneeled down on the ground, and
• At 5:50 p.m., the Complainant was escorted out of the room by the police officers.

Communications Recordings

911 Communications Summary

• On January 12, 2017, at approximately 5:26 p.m., CW #2 called 911 and reported that a man [now known to be the Complainant] was not leaving the community support centre after he was asked to do so. CW #2 explained that she needed police assistance because the Complainant had pushed carts at other people and had smashed his guitar. She also said that the Complainant was a user of methamphetamine, and
• At 5:33 p.m., CW #2 called 911 again and reported that the Complainant had a pair of pliers [now known to be shears] and a hammer that he had wielded in front of staff members. CW #2 also said that when other guests approached the Complainant, the Complainant would become agitated.

Materials obtained from Police Service

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

• Communications recordings
• Cellblock and booking video
• Detained Person Medical Supplementary
• Dispatch from Computer Aided Dispatch Details
• Incident Report
• List of events seen on community support centre video footage
• List of Seized Property
• Notes of WO #1, WO #2, WO #3 and WO #4
• Occurrence Details (Redacted)
• Prisoner Detain Sheet
• Procedure - Use of Force

During the afternoon of January 12, 2017, the Complainant was at a community support centre facility in Kitchener. While the Complainant was in the common area, he threatened staff members and other guests with a hammer and garden shears, as well as violently smashing his guitar on the ground. CW #2 called 911 for police assistance in removing the Complainant from the facility.

The SO, WO #1 and WO #2 attended the community support centre. The Complainant was aggressive with the officers, and refused to go with them. The officers also located shears and a hammer near the Complainant.

The Complainant threw an object towards WO #1 and walked towards him with his fists clenched. While the SO, WO #1 and WO #2 were grounding the Complainant, the SO used his right elbow and delivered a distractionary strike to the left side of the Complainant’s face. Once the Complainant was on the ground, he was handcuffed and taken to the hospital by ambulance.

A CT scan was taken of the Complainant’s head and showed that he suffered a displaced fracture to his left orbital bone.

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.

On January 12, 2017, at 5:26 p.m., WRPS received a call from a community support centre in Kitchener, reporting that the Complainant was acting violently and would not leave the premises. WRPS was told that the Complainant had a pair of pliers[2] and a hammer that he wielded in front of staff members. He also reportedly smashed his guitar on the ground and had a history of methamphetamine use.

At approximately 5:30 p.m., the SO, WO #1 and WO #2 arrived at the community support centre and began to engage with the Complainant. The Complainant was belligerent and angry. He paced back and forth in a corner with clenched fists while telling the police officers that he was not going anywhere with them. CW #1 told WO #2 that the Complainant had threatened people at the centre with a hammer and pair of shears that were now in a bag next to him. WO #2 observed shears in this bag and subsequently also recovered a hammer nearby.

Suddenly, the Complainant threw a piece of cardboard at WO #1, nearly hitting him in the head. He then walked towards WO #1 aggressively with his fists clenched. This was witnessed by staff members at the community support centre and the other involved officers. As a result, the SO, WO #1 and WO #2 grabbed the Complainant and attempted to ground him. The Complainant resisted their efforts and they had difficult bringing him down to the ground. The SO used his right elbow and struck the Complainant in the left side his face. The Complainant immediately groaned after he was hit and the officers put him on the ground. He continued to struggle but WO #1 was able to handcuff the Complainant’s hands behind his back. The Complainant was brought to his feet and his left eye was visibly swollen. Paramedics were called and he was taken to the hospital by ambulance. A CT scan revealed that the Complainant had a displaced fracture of his left orbital bone. Additionally, the Complainant was admitted to the hospital on a Form 1[3] under the authority of the Mental Health Act.

During the investigation, the SIU interviewed the Complainant, CW #1, CW #2, and the three attending police officers, including the SO. All three involved officers also provided a copy of their notes for review. Additionally, the 911 call and police radio communications were provided to investigators. Video recordings from inside the community support centre were obtained and confirmed some of the Complainant’s aggressive behaviour prior to police arrival as described by CW #1 and CW #2. The cameras did not cover all areas of the community support centre. Unfortunately, the Complainant was located out of the view of the camera during his interactions with the officers and his arrest was not captured on video.

Turning first to the lawfulness of the Complainant’s apprehension, it was apparent that the Complainant was threatening people at the community support centre with a hammer and scissors prior to the arrival of the police. He was asked to leave the centre by the community support centre staff but refused. When the police officers arrived, he continued to behave aggressively and threw something at WO #1 before advancing towards him in an aggressive manner. Immediately prior to being apprehended, the Complainant moved towards WO #1 in a threatening manner with his fists clenched. Finally, the Complainant was still in possession of the aforementioned shears and hammer which were located in one of his nearby bags. I am therefore satisfied that the officers had lawful grounds to arrest the Complainant.

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. The Complainant admitted to resisting the officers’ efforts to arrest him. I accept that the elbow strike by the SO was the most apparent cause of the Complainant’s fractured orbital bone, given that it was delivered in the same area as the injury, which the SO admitted, and that it was apparent to witnesses immediately after he was brought to his feet and not before. While some might question the decision to strike the Complainant in the face rather than another, less vulnerable area of his body, given that there were two other officers present and the Complainant was not armed with a weapon at the time, I recognize that this use of force did achieve the desired result to gain control of him and that the Complainant was acting violently. Furthermore, I must take into account the jurisprudence as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, that police actions should not be judged against a standard of perfection nor should they be expected to measure their force with exactitude. Additionally, the Ontario Court of Appeal in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), held that officers are not expected to measure the degree of their responsive force to a nicety. Based on the law and the evidence before me, I find that the force used to affect the Complainant’s arrest was measured and not unreasonable.

In conclusion, while I believe that the Complainant suffered damage to his left orbital bone during his encounter with WRPS on January 12, 2017, I am satisfied that the Complainant was lawfully under arrest and that the force applied by the SO to the left side of his face fell within the limits prescribed by the criminal law. I therefore have no reasonable grounds to believe a criminal offence was committed. Accordingly, this case will be closed and no charges will issue.

Date: November 20, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #3 and WO #4’s notes were reviewed and it was determined that they had attended the scene after the Complainant was grounded. [Back to text]
• 2) [2] Confirmed to be shears. [Back to text]
• 3) [3] A Form 1 allows a physician to hold an individual in a psychiatric facility for up to 72 hours to undergo a psychiatric assessment. [Back to text]