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 injuries sustained by a 43-year-old man during an interaction with three Waterloo Regional Police Service (WRPS) police officers at a licensed Oktoberfest party on October 9, 2016.

Notification of the SIU

On October 11, 2016, at 12:45 p.m., the man contacted the SIU and reported that he received an injury when he was arrested by WRPS police officers on October 9, 2016, at an Oktoberfest party in the Queensmount Arena at 1260 Queen’s Boulevard in Kitchener. Reportedly, he was approached by WRPS officers and told he was being arrested for public intoxication. The police officers pushed him and took him down to the ground to arrest him. The man reported that he was kicked, punched and choked by several police officers who were on top of him. One of the arresting officers was Subject Officer (SO) #1(see below). The man was transported to the station where he was processed. Several hours later, he was charged with assault police and released.

Following his release, the man attended the hospital and was seen by a nurse practitioner complaining of a sore neck, difficulty swallowing and many bruises and scrapes. X-rays were completed but no broken bones were found. The man reported that he was diagnosed with concussion-like symptoms. He was not seen by a doctor at that time.

On October 12, 2016, the man saw his family doctor, and was diagnosed with a concussion and severe neck strain.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators (FI) assigned: 2

SIU FIs documented the scene by way of notes and photography.

Complainant

43-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

CW #13 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Not interviewed, but notes received and reviewed

WO #7 Interviewed

WO #8 Interviewed

Subject officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right.

SO #3 Declined interview and to provide notes, as is the subject officer’s legal right.

The scene

The incident occurred in an indoor hockey arena (Queensmount Arena at 1260 Queen’s Boulevard) in Kitchener during an Oktoberfest event. There were numerous chairs and tables inside the hockey boards on the rink floor (no ice), as well as a stage with two large projection screens hanging on either side. There were alcohol, souvenir, ticket and game booths set up.

Below is a photo taken by the SIU FIs:

Materials obtained from Police Service

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

• Computer Aided Dispatch (CAD) details for two occurrences
• Communication recordings
• Cell block detention record
• Central division cellblock detention record
• Crown brief synopsis
• Disclosure log
• Dispatch from CAD details
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7 and WO #8
• Two occurrence reports
• Two occurrence details
• Oktoberfest policing unit operational plan – Oct 5-16, 2016
• Prisoner detain sheet
• Video from central cells
• Rough notes and business card from WO #5, and
• WRPS witness statements – CW #2, CW #4, CW #5 and CW #6

During the evening of October 9, 2016, the complainant, CW #7, CW #1 and CW #12 attended an Oktoberfest event at Queensmount Arena in Kitchener. All four had consumed alcohol prior to attending the event, and continued to consume alcohol once there. The complainant is a large man, measuring 6’3” tall and weighing 270 pounds. CW #7 is also described as a large man.

The Oktoberfest event had approximately 30 security guards, as well as several pay duty officers. Within the arena, there was a stage with tables for patrons in front. There were also projector screens on either end of the stage airing the baseball game. At either end of the arena, there were smaller cocktail tables, but it was not possible to see the projector screens very well from there. On the perimeter of the rink were various alcohol, souvenir, ticket and game booths. As the various booths held money and were wide open structures, patrons were not permitted to stand in the area between the booths, and security guards were assigned to stand in those locations to prevent someone taking the money from the booths.

After the complainant and the others arrived, he and CW #7 stood against the boards on the arena floor between two booths watching the baseball game on the projector screens. All of the seats in front of the screens were occupied. A young female security guard, CW #8, was stationed in the area at the time, but she was unable to stand at her assigned post because of the location of the complainant and CW #7. She asked them to leave the area, which they did, only to return again later. CW #8 again asked the complainant and CW #7 to leave the area. They did, but returned again. Given these interactions, the complainant clearly knew that the area he and CW #7 were standing in was for volunteers and security only, but he continued to return and stand there regardless as it provided optimal sightlines for watching the baseball game. Not surprising, the security guard supervisor, CW #6, and another guard, CW #2, approached and asked the complainant and CW #7 to leave the area. The complainant refused.

CW #6 and CW #2 left and requested police assistance. They returned moments later with two WRPS officers, SO #1 and SO #3. SO #1 is noticeably smaller that the complainant and CW #7. SO #2 approached behind SO #1 and SO #3 shortly after.

SO #3 asked the complainant and CW #7 to move from the area. The complainant loudly refused. SO #1 determined the complainant was going to become a problem, as he was exhibiting signs of intoxication, including exaggerated mannerisms, aggressive behaviour, and was actively consuming alcohol. The complainant was told repeatedly to leave the premises. He refused. Witnesses observed the complainant raise his arm towards the police officers as if to throw his beer on them, and then push SO #1 in the chest.

The complainant was taken to the ground onto his stomach by SO #3 and SO #1. A struggle with the complainant ensued as the officers, joined by SO #2, attempted to secure him in handcuffs. On the weight of the evidence, including the statements of independent civilian eyewitnesses, it is apparent that the complainant actively resisted the officers’ efforts to gain control of him and apply handcuffs, at one point actually lifting the police officers off the ground. The complainant’s resistance was met with force by the officers, including knees to the back, punches in the back and the head, and what was described by SO #1 as a “quasi choke hold”. No further force was used after the complainant was handcuffed. Once handcuffed, the complainant continued to resist police efforts to remove him from the arena. He was consistently described as loud, angry and extremely agitated.

An hour after the complainant’s release from the station early the next morning, he contacted WRPS complaining that he had been assaulted by the arresting officers. He contacted WRPS again approximately an hour after his first call, wanting to know when police officers would arrive at his residence to take his complaint. When police officers attended his residence to discuss his complaint, the complainant was still in a highly agitated state. At that time, however, he refused medical attention.

Later that morning, the complainant attended the emergency department of a hospital. Two days later, he was seen by his family doctor. He was diagnosed with a concussion, back and neck strain, right periorbital bruising, a small bleed in the right eye and right chest wall strain. All of the injuries observed by his family doctor were consistent with the complainant having been grounded, and then variously punched and kneed about his head and back area in an effort by the SOs to control and ultimately handcuff him.

Section 270(1), Criminal Code - Assaulting a peace officer

270(1)Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure

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.

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. At the time that SO #1 and SO #3 approached the complainant and asked him to leave the area between the booths, the complainant was angry and confrontational. He refused to leave, and went so far as to push SO #1. At that point, the complainant was subject to lawful arrest for assaulting a peace officer and trespassing. The police officers attempted to take the complainant to the ground and then handcuff him. The complainant clearly and violently resisted their efforts, requiring SO #2 to assist. In the course of handcuffing the complainant, he was kneed, punched and subject to at least a “quasi choke-hold”. There is no evidence suggesting the officers used force of any kind against the complainant once he was secured in handcuffs. I believe that his injuries were caused by the police officers’ efforts.

Nonetheless, given the complainant’s size, aggression and determination not to do as lawfully required by the officers, I conclude that the conduct of the three SOs did not fall outside the range of what was reasonably necessary to attempt to subdue the complainant and take him into custody. The jurisprudence is clear - officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)) nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206). As such, I am satisfied on reasonable grounds that the actions exercised by the police officers fell within the limits prescribed by the criminal law and there are no grounds to believe they committed a criminal offence. No charges will issue.

Date: October 5, 2017

Original signed by

Joseph Martino
Acting Director
Special Investigations Unit