SIU Director’s Report - Case # 23-OCI-301
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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.Mandate Engaged
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 31-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 31-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On July 31, 2023, at 12:15 p.m., the Waterloo Regional Police Service (WRPS) contacted the SIU with the following information.On June 23, 2023, at approximately 2:56 p.m., WRPS officers responded to an address in the area of Avenue Road and Elgin Street North, Cambridge, for a disturbance. A man [later identified as the Complainant] was reportedly breaking into a family member’s residence. Police officers arrived and encountered the Complainant. He was non-compliant and resisted the police officers. A conducted energy weapon (CEW) was deployed, and the Complainant was effectively grounded. Emergency Medical Services (EMS) responded and removed the CEW prongs. The Complainant did not complain of any injuries. At the conclusion of the incident, the family member was reluctant to proceed with charges, and the Complainant was released unconditionally. On July 31, 2023, the Complainant was arrested by WRPS officers for weapons offences. During the arrest, the Complainant disclosed that after his June incident with the WRPS officers, he had sought medical treatment and was diagnosed with three fractured ribs.
The Team
Date and time team dispatched: 2023/07/31 at 12:45 p.m.Date and time SIU arrived on scene: 2023/07/31 at 1:50 p.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
31-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on August 28, 2023.
Civilian Witness (CW)
CW Not interviewed (declined)Subject Official (SO)
SO Declined interview, as is the subject official’s legal right; notes received and reviewedWitness Officials (WO)
WO #1 Interviewed; notes received and reviewedWO #2 Interviewed; notes received and reviewed
WO #3 Interviewed; notes received and reviewed
WO #4 Interviewed; notes received and reviewed
The witness officials were interviewed between August 18, 2023, and September 26, 2023.
Evidence
The Scene
The events in question transpired on the front porch of a house in the area of Avenue Road and Elgin Street North, Cambridge.Forensic Evidence
CEW Deployment Data – The SO
At 3:16:31 p.m., [2] June 23, 2023, the trigger was pulled, Cartridge 1 deployed, and energy discharged for six seconds.At 3:16:32 p.m., the weapon was in Arc mode for one second.
At 3:16:33 p.m., the weapon was in Arc mode for four seconds.
At 3:16:38 p.m., the weapon was in Arc mode for one second.
CEW Deployment Data – WO #2
At 3:17:01 p.m., June 23, 2023, the weapon was in Arc mode for one second.At 3:17:02 p.m., the weapon was in Arc mode for one second.
At 3:17:03, the weapon was in Arc mode for one second.
Video/Audio/Photographic Evidence [3]
Police Communications Recordings
Starting at about 2:55 p.m., June 23, 2023, a member of the Complainant’s family called 911 indicating that the Complainant was trying to break into her house. She said he had successfully entered the house. The caller stated she could not take it anymore and was going to sit in her car until WRPS officers arrived. She did not believe he had access to any weapons. The caller asked how a person could obtain a restraining order. The 911 call-taker told her to discuss it with police officers when they arrived. The caller did not know if the Complainant was under the influence of drugs or alcohol. The Complainant had not made any threats to the caller. The Complainant had recently begun to self-harm, slamming his thumb into the refrigerator door, and then blaming the injury on the caller. Starting at about that point, WRPS police officers arrived at the address and the call ended.Starting at about 2:56 p.m., WRPS dispatched police units to the home for a disturbance in progress.
Starting at about 2:58 p.m., WRPS dispatcher advised that the Complainant was breaking into the house and had broken down the door. The family member had left the house and was sitting in her car, a place of safety, waiting there until police officers arrived. No one had been injured and possible weapons were unknown. There had been previous police involvement at the house.
Starting at about 3:01 p.m., WRPS dispatcher provided a description of the Complainant. It was believed the Complainant was inside the house. One of the attending police officers asked if a canine unit was available. The dispatcher replied in the negative.
Starting at about 3:04 p.m., police officers advised the Complainant was inside the house. It was broadcast by one of the police officers that there were grounds to arrest the Complainant for break and enter. WO #3 asked what call the police officers were on, and WRPS police dispatcher updated him.
Starting at about 3:06 p.m., one of the attending police officers said he would cover the back of the house.
Starting at about 3:07 p.m., it was broadcast that the Complainant had a firearms licence, but none had been seen. WRPS dispatcher confirmed he had a licence but no registered firearms. WO #3 asked if the tactical team was working.
Starting at about 3:09 p.m., WO #3 requested that tactical team members at the range be made aware of the call. He instructed the SO, WO #1 and WO #2 to negotiate with the Complainant to come out of the house. One of the attending police officers said the house was in darkness. WO #3 inquired how sure the police officers were that the Complainant was in fact inside the house. Attending police officers said they would make further inquiries with the Complainant’s family member. WO #3 asked that he officially be placed on the call as ‘attending’. One of the attending police officers said the Complainant was inside the house.
Starting at about 3:12 p.m., one of the police officers broadcast a CEW deployment and requested EMS. WO #3 asked if they were inside or outside the house, and was told “outside”. WO #3 said that the tactical team was not required to attend.
Starting at about 3:13 p.m., WRPS dispatcher advised the ambulance was attending.
Starting at about 3:15 p.m., police officers stated a large group of people had gathered and more police officers were required for crowd control.
Starting at about 3:19 p.m., police officers advised they had a man in custody, and they were waiting for EMS.
Starting at about 3:39 p.m., police officers asked WRPS dispatch to check Niche [4]and ascertain if there were any records to show the Complainant lived at the address.
Starting at about 3:40 p.m., one of the police officers asked for any records as to when the Complainant was last at the house, and records of his address.
Starting at about 3:43 p.m., EMS arrived and assessed the Complainant.
Starting at about 4:27 p.m., police officers attended. The Complainant had been released unconditionally.
Body-worn Camera (BWC) Footage
On June 23, 2023, WO #3 wore a BWC when he attended the residence. There were four separate video clips that WO #3 recorded during the entire interaction.Between 3:17 p.m. and 3:23 p.m., WO #3 arrived at the address with knowledge the Complainant had been arrested and a CEW had been deployed. WO #2, WO #1 and the SO had attended the address and EMS had been dispatched to deal with CEW probe removal. WO #3 located the Complainant in the rear of WO #1’s police car. The Complainant told WO #3 he lived at the house, and had a key and a letter to prove that he paid rent. Neighbours could be heard complaining that the Complainant’s family member was cruel and inappropriate with the Complainant. WO #3 returned to his police car and updated the interaction on his BWC.
Between 3:31 p.m. and 3:39 p.m., WO #3 exited his police car saying he was revisiting the interaction because of the discrepancy regarding the lease agreement and lawful authority of the Complainant to be present at the house. The Complainant had a document which proved he paid rent. The Complainant was accompanied out of the police car by WO #3 and WO #1 to his parked car to retrieve the document.
Walking with no difficulty, the Complainant was able to maneuver himself, while handcuffed, into a position to remove a document from his brief case on the front passenger seat of the car. The Complainant did not show any signs of pain when executing the retrieval of the document. He produced a receipt dated ‘May 2023’ from the Complainant’s family member stating the Complainant had paid rent for that month. EMS arrived and the Complainant was escorted to the ambulance for CEW probe removal.
Between 3:44 p.m. and 4:18 p.m., WO #3, seated in his police car, exited to speak with a man. The unidentified man stated the Complainant resided at the house. A neighbour, the CW, also approached him and confirmed the Complainant lived there, paid rent and mowed the lawn. WO #3 told them he did not believe the Complainant should be charged with any criminal offences. WO #3 learned from WO #1, WO #2 and the SO that WRPS had been to the house five times over the previous two days, all disturbance calls related to the Complainant and the same family member.
WO #3 told the police officers he believed the matter was an eviction process, a civil matter, not a police investigation. He did not believe that the Complainant had been properly and legally advised regarding the eviction his family member was trying to effect. Contrary to claims the family member made about the Complainant breaking in, he did not damage the door upon entry, had a key to the house and also had a receipt for a recent rent payment. WO #3 entered the house and spoke with the family member. She took him to the side door to show him damages and said there was no damage to the entry door. The Complainant’s family member spoke about other problems she had encountered with the Complainant. She maintained she evicted the Complainant days earlier. She did sign a receipt for rent, saying the Complainant bullied her, threatening to make sexual assault allegations if she did not cooperate. WO #3 told the family member that he believed the Complainant had a colour of right to be in the house. WO #3 exited the house and had a conversation with WO #1, WO #2 and the SO. The Complainant was removed from the rear of WO #1’s police car, and released unconditionally.
Between 4:28 p.m. and 4:32 p.m., WO #3 again exited his police car. He spoke with the CW and obtained her personal information.
TikTok Video
A TikTok video of the interaction involving the Complainant was captured by an anonymous source on June 23, 2023. SIU received the video from WRPS.It began with a long side view of the front yard of the home. Superimposed on the video was white writing that said, “A little excessive for 1 scrawny guy I’d say.”
The Complainant could be heard repeatedly yelling, like he was in pain.
As the video footage moved closer to the front yard, the Complainant was captured lying on his stomach on the front porch, handcuffed with his hands behind his body. The SO, WO #1 and WO #2 surrounded him. The Complainant yelled at his family member, asking her if she saw what they were doing to him. The Complainant yelled at the three police officers above him, saying that they had beat the “crap” out of him and he “didn’t fight” them. One of the three police officers said something to the Complainant, and he said, “I did not go to run away”.
Police officers searched the Complainant, rolling him onto his left side and then onto his right side. A car pulled into the driveway of the house. The Complainant was advised that he was under arrest for break and enter. The Complainant, in a conversation that could not be fully heard, said that he had a right to be on the property. The Complainant yelled to a neighbour, believed to be the CW, and asked her if she saw what had happened.
Neighbours had gathered across the street from the interaction and watched what was transpiring. The Complainant yelled loudly, “I did not break and enter.”
The Complainant was brought to his feet and walked to WO #1’s police car by the SO, WO #1 and WO #2.
While at the police car, the CW could be heard yelling and the Complainant yelled to her that he wanted the interaction recorded. Two women, believed to be the CW and the Complainant’s family member, could be heard yelling at each other, one saying, “You little bitch.” The CW walked onto the lawn yelling, and used the word, “Bitch.” The video ended.
Materials Obtained from Police Service
Upon request, the SIU obtained the following materials from the WRPS between August 3, 2023, and October 27, 2023:- Information from computer-assisted dispatch;
- CEW deployment data;
- Communications recordings;
- General Reports;
- List of Involved Officers;
- Notes – WO #4;
- Notes – WO #1;
- Notes – the SO;
- Notes – WO #2;
- Notes – WO #3;
- Procedure – Use of Force; and
- BWC footage.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources:- Social media video footage from TikTok;
- The Complainant’s medical records, received October 19, 2023; and
- EMS records from the Region of Waterloo Paramedic Services, received August 16, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and two WRPS officers who took part in his arrest, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU. He did authorize the release of his notes.
In the afternoon of June 23, 2023, WRPS officers were dispatched to a house in the area of Avenue Road and Elgin Street North, Cambridge, following a 911 call from the homeowner. The caller had contacted police to report a break and enter in progress by the Complainant, her family member. Concerned for her safety, the caller indicated she would wait outside in her vehicle pending the arrival of the police.
The SO arrived at the address. So too did WO #1 and WO #2. The Complainant’s family member told WO #1 that the Complainant did not have a lease at the house and was not supposed to be there. She confirmed that he had forced his way into the residence. The officers decided to arrest the Complainant for break and enter.
After several door knocks by the officers, the Complainant stepped out onto the front porch. Told that he was under arrest, the Complainant tensed up and pulled away from the officers as they attempted to position his arms behind the back. He was grounded by the officers, and subjected to several strikes and CEW discharges before he was handcuffed behind the back.
Following his arrest, the Complainant was placed in the rear seat of WO #1’s cruiser. He protested that he had not broken into the house but, rather, had entered the house with a key. The Complainant would go on to produce a rent receipt. Satisfied that the Complainant’s family member had exaggerated her claim of break and enter, and that the Complainant had an apparent colour of right to the property, the officers released him unconditionally.
The Complainant would later attend hospital of his own volition. He was ultimately diagnosed with three fractured left-sided ribs.
In the afternoon of June 23, 2023, WRPS officers were dispatched to a house in the area of Avenue Road and Elgin Street North, Cambridge, following a 911 call from the homeowner. The caller had contacted police to report a break and enter in progress by the Complainant, her family member. Concerned for her safety, the caller indicated she would wait outside in her vehicle pending the arrival of the police.
The SO arrived at the address. So too did WO #1 and WO #2. The Complainant’s family member told WO #1 that the Complainant did not have a lease at the house and was not supposed to be there. She confirmed that he had forced his way into the residence. The officers decided to arrest the Complainant for break and enter.
After several door knocks by the officers, the Complainant stepped out onto the front porch. Told that he was under arrest, the Complainant tensed up and pulled away from the officers as they attempted to position his arms behind the back. He was grounded by the officers, and subjected to several strikes and CEW discharges before he was handcuffed behind the back.
Following his arrest, the Complainant was placed in the rear seat of WO #1’s cruiser. He protested that he had not broken into the house but, rather, had entered the house with a key. The Complainant would go on to produce a rent receipt. Satisfied that the Complainant’s family member had exaggerated her claim of break and enter, and that the Complainant had an apparent colour of right to the property, the officers released him unconditionally.
The Complainant would later attend hospital of his own volition. He was ultimately diagnosed with three fractured left-sided ribs.
Relevant Legislation
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
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) 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.
Analysis and Director's Decision
On July 31, 2023, the WRPS contacted the SIU to report they had earlier that day been notified of serious injuries suffered by a male – the Complainant – in the course of his arrest by officers in Cambridge on June 23, 2023. The SIU initiated an investigation and named one of the arresting officers – the SO – the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest.
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
I am satisfied that the SO and the other officers were within their rights in seeking to arrest the Complainant for break and enter. Had they more time, they might have come to realize through some preliminary inquiries that the Complainant had not, in fact, forced his way into the house. However, as they had cause to believe that the Complainant had just committed a violent act and might have access to firearms (they knew he had a firearms licence), it was imperative that they take him into custody as soon as possible. Thereafter, once they learned the true state of affairs, the officers acted quickly to release the Complainant.
With respect to the force used by the SO and his colleagues, I am unable to reasonably conclude that it was not legally justified. For starters, the takedown by the SO and WO #1 seems to have been in order. The Complainant pulled away from the officers and refused to surrender his arms to be handcuffed. On the ground, the officers could better expect to manage any continuing resistance on the part of the Complainant. As for the strikes and CEW discharges that followed, there is a conflict in the evidence. There is a version of events in which the Complainant did not resist on the ground, but was nevertheless met with a hefty kick to the left side, and multiple CEW discharges. The officers’ rendition of events, however, paints a picture of force that was scaled and proportionate to the exigencies of the moment. They indicate that the Complainant did in fact continue his struggle on the ground, refusing to release his arms, and that physical force was brought to bear by the SO (multiple strikes) and WO #1 (two knee strikes to the thigh) to overcome his resistance. When that did not work, the SO fired his CEW at the upper left shoulder and lower right thigh of the Complainant. WO #2 did the same to the Complainant’s lower back and right hamstring, after which the officers were able to control the Complainant’s arms and place them in handcuffs. In the face of this discrepancy, it would be unwise and unsafe to proceed with charges. Simply put, there is nothing in the evidence to suggest that the account depicting undue force is likelier to be any closer to the truth than that proffered by the officers.
In the result, while I accept that the Complainant’s injuries were probably incurred in the altercation that marked his arrest on June 23, 2023, I am not reasonably satisfied that they are attributable to any unlawful conduct on the part of the SO or the other officers. As such, there is no basis for proceeding with criminal charges on this case. The file is closed.
Date: February 21, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
I am satisfied that the SO and the other officers were within their rights in seeking to arrest the Complainant for break and enter. Had they more time, they might have come to realize through some preliminary inquiries that the Complainant had not, in fact, forced his way into the house. However, as they had cause to believe that the Complainant had just committed a violent act and might have access to firearms (they knew he had a firearms licence), it was imperative that they take him into custody as soon as possible. Thereafter, once they learned the true state of affairs, the officers acted quickly to release the Complainant.
With respect to the force used by the SO and his colleagues, I am unable to reasonably conclude that it was not legally justified. For starters, the takedown by the SO and WO #1 seems to have been in order. The Complainant pulled away from the officers and refused to surrender his arms to be handcuffed. On the ground, the officers could better expect to manage any continuing resistance on the part of the Complainant. As for the strikes and CEW discharges that followed, there is a conflict in the evidence. There is a version of events in which the Complainant did not resist on the ground, but was nevertheless met with a hefty kick to the left side, and multiple CEW discharges. The officers’ rendition of events, however, paints a picture of force that was scaled and proportionate to the exigencies of the moment. They indicate that the Complainant did in fact continue his struggle on the ground, refusing to release his arms, and that physical force was brought to bear by the SO (multiple strikes) and WO #1 (two knee strikes to the thigh) to overcome his resistance. When that did not work, the SO fired his CEW at the upper left shoulder and lower right thigh of the Complainant. WO #2 did the same to the Complainant’s lower back and right hamstring, after which the officers were able to control the Complainant’s arms and place them in handcuffs. In the face of this discrepancy, it would be unwise and unsafe to proceed with charges. Simply put, there is nothing in the evidence to suggest that the account depicting undue force is likelier to be any closer to the truth than that proffered by the officers.
In the result, while I accept that the Complainant’s injuries were probably incurred in the altercation that marked his arrest on June 23, 2023, I am not reasonably satisfied that they are attributable to any unlawful conduct on the part of the SO or the other officers. As such, there is no basis for proceeding with criminal charges on this case. The file is closed.
Date: February 21, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Unless otherwise specified, the information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) The times are derived from the internal clocks of the weapons, and are not necessarily synchronous between weapons and with actual time. [Back to text]
- 3) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
- 4) Niche is a computer records management system. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.