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.

On February 23, 2016, the complainant in this case was examined at hospital by a doctor. Serious injuries were confirmed.

Notification of the SIU

On February 23, 2016, at 9:58 a.m., the Waterloo Regional Police Service (WRPS) notified the SIU of the serious facial injury suffered by a 24-year-old man (the complainant) during his arrest in Cambridge earlier that morning.

The notifying officer reported that at about 4 a.m. on February 23, 2016, a woman motorist called the police and reported that a man was interfering with traffic while brandishing a knife in downtown Cambridge. The man was subsequently identified. WRPS reported that police officers responded and shortly thereafter tackled the man to the ground. It was further reported that the man sustained a broken nose during the takedown and a police officer incurred a similar injury during the struggle.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

Complainant

Interviewed, medical records obtained and reviewed

Civilian witnesses

CW Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

Subject Officers

SO #1 Interviewed, and notes received and reviewed

SO #2 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

Forensic evidence

Photographs of the complainant’s injuries were taken by the SIU.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from the WRPS

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

• Computer Aided Dispatch details
• photos of electronic cigarette device taken by WRPS
• contact sheet of WRPS photos
• Crown Brief Report by one WO
• photo of complainant
• notes of WOs
• review of WRPS policies
• communications recordings and
• Prisoner Detain Sheet of complainant

Around 2:30 a.m. on February 23, 2016, two police officers responded to the area of Hamilton Street and Lowther Street South to deal with a man dancing in the middle of the intersection. After a brief conversation with the police officers, the man agreed to go home. The police officers followed the man into his apartment, and after deciding that he was not a risk, left him there.

At approximately 4 a.m., the CW was driving north on King Street when the CW saw the complainant, who was standing in the middle of King Street. He blocked the path of the CW’s vehicle and appeared to brandish a weapon. They exchanged words, and the CW reversed and fled while informing police of the incident, and communicating that the man was in possession of a knife.

The police flooded the area and SO #1 located the complainant on Westminster Drive South, with another officer arriving soon after. The man was in the intersection and holding in his right hand what officers believed to be a knife. SO #1 stopped his vehicle 30 to 40 metres away from the man. The man was waving the ‘knife’ about and appeared to be challenging SO #1. SO #1 exited his police vehicle, drew his handgun, pointed it at the man and issued the police challenge, “Police, don’t move.” SO #1 yelled several times at the man to drop the knife.[1] The man casually turned, walked off the roadway and dropped the ‘knife’ on the grass boulevard. As the man dropped the ‘knife’, SO #1 holstered his firearm. SO #1 began walking towards the man, ordered him to get down on the ground and put his hands on his head and told him he was under arrest. Instead of complying with the demands, the man removed his hat, hoodie and t-shirt and threw them to the side of the roadway. The man then bolted, and SO #1 and another officer entered into a foot pursuit The man ran south on Westminster Drive, left onto Hamilton Street and then right onto Church Street South. As the pursuit approached the intersection of Church and Moore Streets, a police vehicle being driven by SO #2 made a sharp left turn in front of the man, at which time the man pivoted and turned as if he was going to keep running. As the man made the turn, he stumbled and lost his balance slightly. SO #1 increased his pace and had his arms outstretched as if he was going to tackle the man. As SO #1 got very close, the man, in the process of falling, swung his left arm backwards and the back of his left hand struck SO #1’s nose, resulting in SO #1’s nose being fractured. The man stumbled and fell face first onto the pavement.

SO #1 put his left knee and body weight on the man’s lower back and SO #2 put one of his knees on the man’s lower back. SO #1 had his right hand on the man’s right hand area to gain control. The man had his hands near his head and alternately made fists and planted his palms on the pavement as if to stand up. The man continued to resist and struggle and showed enormous strength.

SO #1 repeatedly ordered the man to put his hands behind his back, telling him he was under arrest and to stop resisting. The man refused to comply with the directions. SO #2 delivered knee strikes to the man’s left side, increasing their intensity as he delivered them. SO #1 delivered two to three knee strikes into the area of the man’s right side ribs, but they had no effect whatsoever. SO #2 then struck the man in the head at least once with his hand and the man appeared to weaken slightly. The officers were able to effect the arrest soon after.

Emergency Medical Services arrived at the scene and took the complainant to hospital where he was diagnosed with a broken nose.

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.

Turning first to the lawfulness of the man’s apprehension, it is clear from the statement of the CW that the man was, at the very least, a danger to the public in that he was dancing or loitering in the street with what appeared to be a weapon in his possession and had the potential to cause serious injury to himself or others. Although the weapon in fact turned out to be an electronic cigarette device, the subject officers could not have reasonably known this given the information they had been provided by a citizen through a 911 call, the appearance of what was in the man’s hand, and the man’s unwillingness to speak with the officers. As such, the pursuit and apprehension of the man by the two subject officers was legally justified in the circumstances.

With respect to the amount of force used by the officers in their attempts to subdue the man, I find that given the man’s continued resistance, their behavior was justified in the circumstances and that they used no more force than necessary to subdue the man who was clearly out of control and thrashing and flailing about. In light of the fact that he had already caused injury to SO #1, either intentionally or otherwise, it was not unreasonable to conclude that he was capable of doing so again, if not subdued. It is more than likely that the man suffered his injury when he tripped and fell hard on his face onto the pavement. However, even if the injury was caused by the efforts of the officers to subdue the man, I do not have reasonable grounds to believe that use of force was excessive. On this record, it is clear that the force used by both subject officers progressed in a measured and proportionate fashion to meet and overcome the man’s resistance and surprising strength, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.

In the final analysis, I am satisfied for the foregoing reasons that the man’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 officers caused the injury, which I am not inclined to do. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: May 25, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The knife turned out to be an electronic cigarette device. [Back to text]