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 sustained by a 27-year-old man on July 24, 2016 following a fight in a bar in Kitchener.

Notification of the SIU

On July 24, 2016 at 12:44 p.m., the Waterloo Regional Police Service (WRPS) reported that on July 24, 2016 at about 2:04 a.m., WRPS responded to a call about a fight at Roxxanne’s Bar and Grill in Kitchener. The Complainant fled prior to the police officers arriving at the bar.

The Complainant later attended a hospital to seek treatment of injuries he had sustained during the fight at the bar. At about 3:30 a.m., WRPS officers attended the hospital to arrest the Complainant for his involvement in the fight. While taking the Complainant into custody, he resisted and fought with the police officers.

The Complainant was subsequently diagnosed with a fracture to his lower back. The Complainant was released from the hospital into police custody and was held for a bail hearing.

It was unknown if the Complainant’s injuries occurred as a result of the bar fight or during his arrest.

The team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 0

Complainant: 27-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

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Not interviewed, but statement and notes received and reviewed

WO #6 Not interviewed, but statement and notes received and reviewed

Subject Officers

SO #1 Interviewed, and notes received and reviewed

SO #2 Interviewed, and notes received and reviewed

The scene

This case involved two separate scenes where the Complainant had involvement. The first was at a strip club called Roxxanne’s Bar and Grill where the Complainant became involved in a large brawl. The second scene was at the hospital where the Complainant attended on his own to seek treatment of a large cut to the back of his head.

Video/audio/photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and locate video from both Roxxanne’s Bar and Grill and the hospital.

Roxxanne’s Bar and Grill

Video from Roxxanne’s Bar and Grill depicted six camera angles and captured the brawl that the Complainant was involved in prior to involvement with WRPS officers. Camera Three showed the Complainant being grabbed, punched and kicked. One man is seen stomping on the Complainant’s back while others continue to punch and kick at him. Camera Four showed five unknown men arrive and proceed to assault the Complainant by punching, kicking and stomping on him. One of the men in particular can be seen stomping numerous times with his left foot onto the Complainant’s back.

Video footage from the Hospital

Video obtained from the hospital showed the Complainant in a struggle with two WRPS officers, and two hospital security staff. There are no kicks or punches or strikes to the lower back area depicted. The video supports positional control.

Communications recordings

The communications recordings start at 2:04 a.m. on July 24, 2016 and commence with 911 calls regarding the bar fight at Roxxanne’s Bar and Grill.

The recordings reveal various WRPS officers determining that the Complainant was the aggressor in the bar fight, and that grounds existed for his arrest. The Complainant had fled, and the recordings capture WRPS officers chasing suspects, who turn out not to be the Complainant.

At 3:06 a.m., two calls came in from patients at the hospital that had been attended by the Complainant. One caller is a woman and is not identified, but at 3:15 a.m., an identified male advises WRPS dispatch that the man responsible for the bar fight at Roxxanne’s Bar and Grill is in the emergency department. The caller provides a detailed description of the Complainant, as well as the licence plate of the Complainant’s mother’s vehicle.

At 3:22 a.m., SO #2 and then SO #1 arrive at the hospital. They confirm the outstanding charges and attend the acute care unit to arrest the Complainant. The hospital would not release the Complainant’s name to WRPS dispatch prior to SO #1 and SO #2’’s arrival.

Forensic evidence

Toxicology tests done at the hospital indicated that the Complainant tested positive for cocaine and alcohol.

Materials obtained from Police Service

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

• Computer Aided Dispatch
• Communications recordings
• Case File Synopsis
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5 and WO #6
• Previous Incidents with the Complainant
• Prisoner Detain Sheet
• Shift Logs
• Prepared Statements of SO #1, WO #2, WO #3, WO #5 and WO #6
• Witness List, and
• Witness Statements – two non-designated, civilian witnesses regarding the fight at Roxxanne’s Bar and Grill

In the early morning hours of July 24, 2016, the Complainant was involved in a brawl at Roxxanne’s Bar and Grill in Kitchener. The Complainant fled before the police arrived, and attended the hospital on his own to have a large cut on the back of his head treated.

WO #1 attended Roxxanne’s Bar and Grill and confirmed by watching video of the brawl that the Complainant was responsible and arrestable for various violent offences. At the same time, WRPS received two 911 calls from the hospital that the Complainant, who the callers said was responsible for the fight at the bar, was there. One of the callers indicated that the Complainant advised that he had fallen down some stairs. SO #1 and SO #2 attended the acute care unit of the hospital to arrest the Complainant.

When the Complainant saw SO #1 and SO #2, however, he charged at them and attempted to flee down the hallway. Both officers tried to grab the Complainant, and fell to the ground. The Complainant crashed into various pieces of equipment before he, too, fell to the ground. With the assistance of CW #2 and CW #3, and after SO #1 used his baton to pry the Complainant’s arm out from under his body, the officers were able to handcuff him.

Subsequent X-rays indicated that the Complainant had fractures to the vertebrae in his lower back.

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 July 24, 2016, at approximately 3:30 a.m., SO #1 and SO #2 attended at the hospital in response to a call that the perpetrator involved in an assault with a weapon that had occurred earlier at Roxxanne’s Bar and Grill in Kitchener was in attendance at the hospital.^{footnote []} Once officers arrived at the hospital, they placed the Complainant under arrest for Assault. Following his interaction with police, the Complainant was assessed at the hospital and was diagnosed as having sustained fractures to his lower back.

The Complainant received staples and stitches to close the wound to his head, and sustained fractures to vertebrae of his lower back. The Complainant contended that the fractures that he sustained were not caused during the altercation at the bar but that the injury occurred at the hospital. The Complainant could not identify the police officer who caused these injuries.

During the course of the SIU investigation into this matter, investigators interviewed seven civilian witnesses, in addition to the Complainant, as well as either interviewing or receiving statements from six police witnesses, including the two subject WRPS officers, SO #2 and SO #1, who both made themselves available for interviews. Additionally, investigators had access to the notebooks of all police officers involved; the video recordings taken both at the hospital as well as at Roxxanne’s Bar and Grill; and the communications recordings and log from WRPS. On the basis of this evidence, a clear picture of what occurred is apparent.

CW #5 and CW #6 witnessed the Complainant’s arrest at the hospital. Neither witness indicated that SO #1 or SO #2 acted inappropriately in apprehending the Complainant. CW #2 and CW #3 were also present at the hospital and witnessed the Complainant’s arrest. Neither witnesses observed either SO #1 or SO #2 use any strikes or use of force options to control the Complainant. The civilian witnesses described the Complainant as a large, well built man.

SO #2 stated that he attended Roxxanne’s Bar and Grill to investigate a fight which had just occurred on the premises. Detailed information provided to SO #2 indicated that it was the belief of Roxxanne’s Bar and Grill staff, that the Complainant was the main instigator involved and had fled from the bar prior to WPRS police officers arrival. Subsequent information received indicated that the Complainant was possibly at the hospital. SO #1 indicated that he would attend with SO #2 at the hospital. SO #2 concluded that he had reasonable and probable grounds to arrest the Complainant for two counts of assault with a weapon; one count of assault; and one count of causing a disturbance, all contrary to the Criminal Code.

The Complainant was in an emergency ward room at the hospital which was attended by SO #2 and SO #1 who, upon entry, informed the Complainant that he had the grounds to effect the arrest of the Complainant for the offence of assault. Immediately, the Complainant lowered his head; began breathing heavily; and ran directly towards both police officers. SO #1 believed that the actions of the Complainant indicated that he was attempting to execute a football-style tackle on both police officers. SO #1 described the Complainant as being approximately 6’1” in height and about 260 pounds in weight. SO #2 indicated that the Complainant could have easily run through both officers and continued down the corridor. Both police officers initially attempted to grab and stop the Complainant without success. Immediately both police officers gave chase, SO #2 was able to grab onto the shorts of the Complainant and within approximately five feet was able to pull the Complainant to the floor. SO #2 saw the Complainant falling into the nurse’s station. However, it was the belief of SO #2 that very little physical force was applied to the Complainant as he had already began to lose his balance and fall, more or less on his own. SO #2 advised that once the Complainant was face down on the floor he used positional force near the upper back and shoulder area of the Complainant. SO #2 was assisted by SO #1 as the Complainant was continuing to actively resist and directing derogatory language to both police officers. SO #1 was assisted by CW #3 in handcuffing the Complainant who was then placed onto a gurney in hospital restraints. SO #2 stated that the application of force by both police officers used on the Complainant was positional control which was used to subdue the Complainant in order that he could be handcuffed. SO #2 indicated that no kicks, punches, or knee strikes were used in the arrest of the Complainant by any police or security officer. SO #2, after having reviewed both the video from the hospital of the arrest of the Complainant, as well as the video of the fight at Roxxanne’s Bar and Grill, believed that any injury received by the Complainant must have occurred at the bar fight.

The evidence of SO #1 corroborates the evidence of SO #2. SO #1 witnessed the attempt by the Complainant to flee from his assigned hospital room. SO #1 observed the Complainant lowering his right shoulder, “like a bull”, and striking him squarely in the chest. SO #1 further indicated that he tried to tackle the Complainant to the ground, with the unintended result that both he and SO #2 fell to the floor striking the nursing cart. When subsequently the Complainant fell onto the hospital floor, SO #1 and SO #2 were assisted by CW #3. The Complainant’s hands were flat on the floor and he was attempting to push off, without success, both SO #2 and CW #3. As SO #1 was having trouble gaining control of the Complainant, he successfully used his ASP baton to pry the arm of the Complainant back. CW #2 arrived and assisted SO #1 in completing the handcuffing of the Complainant. Subsequently, SO #1 accompanied the Complainant to the X-ray department, where he overheard the Complainant tell the attending nurse that he had a long time prior back injuries.

The medical chart of the Complainant revealed that he had fractures to his L3, L4 and L5 vertebrae. Toxicology screening at the hospital confirmed the presence of both alcohol and cocaine in the Complainant’s system. The Complainant was referred to CW #7 as a result of his complaints about lower back pain. CW #7 could not determine, however, if the current injury to the Complainant injury was, in fact, a new injury.

There were six video camera angles at Roxxanne’s Bar and Grill. Camera Three showed the Complainant being grabbed, punched and kicked. One man is seen stomping on the back of the Complainant while others continued to punch and kick him. Camera Four showed five unknown men arrive and proceed to assault the Complainant by punching, kicking and stomping on him. Of particular note, one male can be seen stomping on the Complainant’s back numerous times with his foot. The video from the hospital reveals the Complainant in a struggle with two WRPS officers and two hospital security staff. The video reveals that there were no kicks, punches or strikes to the lower back area or any other part of the body of the Complainant. The only use of force option applied by SO #1 and SO #2 evident is the positional control exercised by police officers to subdue the Complainant.

In assessing the totality of the evidentiary record, it is my opinion that the evidence of both the Complainant and CW #1 on the issue of the degree of force used by SO #1 and SO #2 to arrest the Complainant is unsubstantiated and is contradicted by several fully independent and unbiased civilian witnesses; by WRPS police officers SO #2 and SO #1; and most important of all by the hospital surveillance video which captured in detail the handcuffing and arrest of the Complainant. Specifically, the video recording fully corroborates the evidence of CW #6, showing that SO #2 only managed to grab the shorts of the Complainant for a brief instant. The video further corroborates the evidence of both CW #3 and SO #2 that, when the Complainant fell to the floor, he more or less did so on his own as he appeared to lose his balance. However, a significant aspect of the video recording confirms the position of SO #2 that the only force applied to the Complainant in effecting his arrest was positional control.

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 video of the brawl at Roxxanne’s Bar and Grill that WRPS police officers had reasonable grounds to believe that the Complainant had committed various criminal offences of an assaultive nature. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances. With respect to the amount of force used by SO #1 and SO #2 in their attempts to subdue the Complainant, it is my conclusion that their behaviour was more than justified in all the circumstances. I observed both police officers as well as the hospital security officers on the hospital video. It is beyond any doubt in my opinion that no more force than necessary was used to subdue the Complainant, a man who was described by civilian witnesses as a large, strong, raging man.

In my opinion, the force resorted to by SO #1 and SO #2 to apprehend the Complainant was minimal, and, was no more than was reasonable in all of the circumstances. 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 (1981), 60 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]

Taking into consideration the fact that the Complainant had already been involved in a serious altercation at Roxxanne’s Bar and Grill, and that he had used his considerable strength to bulldoze through the two police officers trying to arrest him, it was not a stretch to find that he was more than capable of continuing to commit his assaultive behaviour, if he was not subdued. It is my opinion that if the injury to the Complainant was not pre-existing, it is more than likely that the Complainant suffered his injury when he was being severely stomped on at Roxxanne’s Bar and Grill. It would be difficult to comprehend how the minimal force used to subdue the Complainant at the hospital by SO #1 and SO #2 could have caused his back injuries when the extreme force inflicted on the Complainant at the bar, could not. Even if the injuries were caused as a result of the police officers attempts to subdue the Complainant, I cannot find that to be an excessive use of force. It is abundantly clear that the force used by both SO #1 and SO #2 was no more than required to meet and overcome the resistance and powerful physical strength of the Complainant. Without any doubt, the actions of both SO #1 and SO #2 fell well within the range of what was reasonably necessary in the circumstances to affect his lawful detention.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention and the manner in which it was carried out were lawful notwithstanding the injury which he suffered, even were I to find that the police officers caused the injury, which I am not inclined to do. The injuries sustained by the Complainant occurred as a direct result of his own uncontrolled aggressiveness at Roxxanne’s Bar and Grill and at the hospital. I am, therefore, satisfied on reasonable grounds that the actions exercised by the both SO #1 and SO #2 fell within the limits prescribed by the criminal law. Accordingly, there are no grounds for proceeding with any charges in this case.

Date: September 22, 2017

Tony Loparco
Director
Special Investigations Unit