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 suffered by a 55-year-old male on May 28, 2016 at approximately 9:55 p.m., discovered following his arrest for being intoxicated in a public place.

Notification of the SIU

The SIU was notified of the incident by the Waterloo Regional Police Service (WRPS) on May 29, 2016 at 11:55 a.m. WRPS notified the SIU that following his arrest on May 29, 2016 at a pub in Cambridge, the Complainant was treated for a fractured wrist.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness Officers

WO #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Subject Officer

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

Video/Audio/Photographic Evidence

CCTV Video / The Pub

The SIU canvassed the area and secured video recordings of the altercation that occurred between the Complainant and CW #1.

Analysis of the CCTV images collected from the pub in Cambridge revealed that CW #1 and the Complainant appeared to be having a conversation but there was no audio associated with the recording. The Complainant displayed physical signs of agitation before the two men began to fight.

At 9:37 p.m., the Complainant, who appeared to be the aggressor, rushed towards CW #1. The Complainant repeatedly attacked CW #1. CW #1 got behind the Complainant and put him into what is commonly referred to as a “sleeper hold”. CW #1 put his arm around the neck of the Complainant and rendered him unconscious. CW #1 then pulled the Complainant out of the patio area out of camera view and put him down to the ground but due to the patio fence obstruction, the camera did not record how hard or gently the Complainant went to the ground. The Complainant regained consciousness and again attacked CW #1. CW #1 delivered a front thrust kick that hit the Complainant in the groin area. CW #1 then shoved the Complainant backwards. The Complainant landed very hard on his buttocks with his arms extended out behind his body to break his fall. The Complainant continued to wave his arms around and the patio gate was shut to keep him out. The Complainant was seen to stagger away down the alley out of camera view. The Complainant’s arrest was not captured on the video recording.

WRPS Booking/Cell Video

Analysis of the booking/cell video revealed the Complainant being brought into the booking area. There was no audio. The booking process concluded without incident and the Complainant was escorted off camera and into the cell area where he was put in a prison cell. The Complainant stayed in that cell until he was removed at 9:08 a.m., May 29, 2016.

At 10:54 p.m., May 28, 2016, while seated in the cell, the Complainant appeared to inspect his fractured left wrist. Occasionally the Complainant would hit or bang on the cell door but not with enough force likely to have caused a fracture. The Complainant spent his time either lying on the bunk, standing at the door of the cell, pacing the cell or sleeping. At times the video captured the Complainant waving his arms and apparently yelling.

Materials obtained from Police Service

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

• Computer Aided Dispatch (CAD) - Details,
• Cell Block Detention Record (Central Cells),
• Cell Block Video,
• Disclosure Log-May 31, 16, and
• Notes of WO #1, #2, #3 and #4.

On the evening of May 28, 2016, the Complainant attended a pub in Cambridge. CW #1, a bouncer at the pub, approached the Complainant and asked him to leave as he had been previously banned from the premises and was not welcome. The Complainant refused to leave and engaged in a violent physical altercation with CW #1. At one point, CW #1 shoved the Complainant backwards, and he landed very hard on his buttocks with his arms extended out behind his body to break his fall.

CW #1 contacted WRPS to request their assistance. WRPS officers, including the SO, attended the pub and encountered the Complainant outside. The officers detected a strong odour of an alcoholic beverage emanating from the Complainant, and he was bleeding and had fresh cuts on his arms and elbows. The Complainant was very agitated and upset that he was ejected from the pub, and appeared unsteady on his feet and struggled to walk. The officers arrested the Complainant for being intoxicated in a public place. While the officers attempted to handcuff the Complainant, he resisted and tried to pull away. Each of the four officers grabbed a hold of one of the Complainant’s wrists, and controlled the Complainant until they successfully handcuffed him.

The Complainant was taken to the police station where he complained about his handcuffs. The officers removed his handcuffs and the Complainant continued to be agitated until he was placed in a cell. While he was held in custody at the police station, the Complainant banged on the plexi-glass and used his hands to hit the wall surfaces. Upon his release, the Complainant was taken to hospital where he was diagnosed with a left distal radius (forearm) fracture.

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 31(4), Liquor Licence Act - Intoxication

(4) No person shall be in an intoxicated condition,

1. in a place to which the general public is invited or permitted access;

Section 31(5), Liquor Licence Act - Arrest without warrant

(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.

On the evening of May 28, 2016, the Complainant was at a pub in Cambridge. He got into a physical fight with a staff member and the WRPS was contacted. WRPS officers encountered the Complainant outside the pub and arrested him for being intoxicated in a public place. He was subsequently diagnosed with a left distal radius (forearm) fracture. For the reasons that follow, I am satisfied that there are no reasonable grounds to believe that the SO committed a criminal offence in relation to the injuries sustained by the Complainant.

On the night of the incident, the Complainant was drinking alcohol at the pub. The bouncer, CW #1, confronted the Complainant and told him to leave the premises, as he had been banned for inappropriate conduct on the patio a couple weeks before. The Complainant suddenly attacked CW #1. A fight ensued between the two men, which was captured on CCTV video. CW #1 and another unknown individual called the police for assistance.

The SO was first on scene[1]. WO #4 arrived shortly thereafter and noticed the SO talking with the Complainant outside by the entrance to the pub’s patio area. WO #4 observed that the Complainant was unsteady on his feet, spoke loudly, rambled on and smelled of alcohol. When WO #2 arrived, he and WO #4 spoke with CW #1, who told him what had happened inside the pub. WO #1 joined the SO, who was still interacting with the Complainant. WO #1 described the Complainant as easily agitated, angry, yelling and slurring his words. According to WO #1, the Complainant poked the SO in the chest several times with his finger. The Complainant was adamant that the bouncer had no right to evict him from the pub. The Complainant had scrapes on both arms and above his nose that were bleeding, but refused medical attention.

The Complainant’s level of intoxication and behaviour was such that the involved officers felt that it was not safe for him to leave unsupervised. WO #1 attempted to find an alternative location to take the Complainant other than the cells or detoxification centre, but the Complainant became enraged when WO #1 asked if there was a responsible person at home who could take care of him. The Complainant started to walk away but was unsteady on his feet. WO #2 and WO #1 determined that the Complainant had to be arrested for his own protection and advised him of such.

It is a breach of section 31(4) of the Liquor Licence Act (LLA) to be intoxicated in a place to which the general public is invited or permitted access. Furthermore, section 31(5) of the LLA affords police officers the authority to arrest without warrant any person found contravening section 31(4), if in the opinion of the police officer, to do so is necessary for the safety of any person. I am satisfied on this record that the involved officers had good cause to be concerned for the Complainant’s safety based on their observations of his agitated, aggressive and intoxicated behaviour, combined with the reports from CW #1 of the fight prior to their arrival, and that arresting him to prevent further harm was justifiable.

To initiate the arrest, the SO and WO #1 took hold of the Complainant’s wrists to handcuff him. The Complainant yelled and tried to pull away from them. WO #4 put a hand on the Complainant’s upper back to bend him forward to assist the other officers in handcuffing him. Within about 30 seconds, the Complainant was handcuffed with his hands behind his back. He made no complaint and showed no pain reaction to being handcuffed. The Complainant was put in the back of the SO’s cruiser and continued to be belligerent. En route to the station, the SO broadcast over the radio that the Complainant was banging his head off the partition in the back seat. The Complainant was held in custody until the next morning when he was transported to the hospital after complaining of pain in his left wrist. An x-ray revealed a fracture in the Complainant’s left forearm near his wrist.

In my view, there is no evidentiary basis for a finding of excessive force by the SO or any of the other involved officers. Section 25(1) of the Criminal Code limits the force an officer may use to that which is reasonably necessary in the circumstances in the execution of their lawful duties. According to WO #1, WO #2 and WO #4, the Complainant was not grounded or struck by any officer, nor was his left arm manipulated in any manner other than to apply handcuffs. He was never taken down to the ground during the arrest process. Unfortunately, there were no civilian witnesses or video recordings of the Complainant’s arrest, and he had no memory of the event. The CCTV recordings from the pub depicted a violent physical confrontation between the Complainant and CW #1, in which the Complainant fell backwards at one point after being kicked and braced his landing with his outstretched arms. This is most likely when his injury occurred. Based on the available evidence, it is clear that the force applied by the involved officers in their encounter with the Complainant cannot be attributed to his wrist injury, and was so minimal that it raises no concerns of excessive force.

Consequently, I find that the actions of the SO, as well as the other involved officers, fell well within the limits prescribed by law. As a result, no charges will issue.

Date: August 23, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The SO exercised his legal right and did not provide the SIU with an interview or a copy of his notes [Back to text]