SIU will not charge WRPS officer who shot and killed Kitchener man

Nicholas Nembhard, 31, was killed by police in February outside his Kitchener home. The SIU says there are no grounds to charge the officer who shot Nembhard. (Submitted by Andre Nembhard - image credit)
Nicholas Nembhard, 31, was killed by police in February outside his Kitchener home. The SIU says there are no grounds to charge the officer who shot Nembhard. (Submitted by Andre Nembhard - image credit)

A Waterloo region police officer who shot and killed a man in Kitchener, Ont., earlier this year will not be charged, the province's Special Investigations Unit says.

But the family of Nicholas Nembhard say they want answers after they called police to help the man, who was diagnosed with schizophrenia and under his doctor's supervision.

The Special Investigation's Unit (SIU) said in a release on Friday that officers with the Waterloo Regional Police Service were called to a home in the area of Brybeck Crescent and Karn Street for a "disturbance call" shortly before 9 p.m. on February 19.

The release says police saw Nicholas Nembhard holding an "edged weapon" leading to an interaction where one of the officers shot the 31-year-old man, who later died in hospital.

"Nicholas' family cannot move on until they fully understand why their call for help led to a fatal shooting," an email sent to CBC News from the family's lawyer said. The family is calling for Ontario's chief coroner to call an inquest into his death immediately.

"A coroner's inquest, which is mandatory in these circumstances under the Coroner's Act, may be the only avenue the family has to get answers about Nicholas' death. It is also their only chance to participate in a process that can prevent similar deaths from occurring again."

The statement from the family says they want the public to know how much he is missed.

"He worked hard, despite his mental health challenges, to provide for his family, including putting his sister through school. His loss is felt deeply every day," the statement said.

The SIU report findings

After taking a look at the evidence, SIU director Joseph Martino said in the report released Friday that it was determined there are no reasonable grounds to believe the officer who shot Nembhard committed a criminal offence.

The SIU report says the police car that was driven by the officer who shot Nembhard was found on scene with a machete lodged into the front bumper.

The SIU included this picture in its report, to show Nembhard's machete lodged into the front bumper of the WRPS cruiser that was driver by the officer who eventually shot and killed the man.
The SIU included this picture in its report, to show Nembhard's machete lodged into the front bumper of the WRPS cruiser that was driver by the officer who eventually shot and killed the man.

The SIU included this picture in its report, to show Nembhard's machete lodged into the front bumper of the WRPS cruiser that was driver by the officer who eventually shot and killed the man. (Special Investigations Unit)

It says in addition to the pistol used to shoot Nembhard, the officer's duty belt also had "all of the usual use of force options" including pepper spray, a baton and a taser.

The report says an officer had tried to use a stun gun on Nembhard twice before another officer shot and killed the man.

Martino says the officer was within his rights to shoot Nembhard.

"I am satisfied that the [officer] fired his weapon to repel what he reasonably apprehended to be an attack on his partner," Martino wrote in the SIU report, adding that firing the taser twice seemed to do very little to stop Nembhard.

"[Nembhard] was in possession of a machete — a weapon capable of inflicting grievous bodily harm or death — and had given the officers every indication he was intent on using it."

The SIU says investigators found this machete belonging to Nicholas Nembhard, lodged into the bumper of a WRPS cruiser at the scene of the police shooting.
The SIU says investigators found this machete belonging to Nicholas Nembhard, lodged into the bumper of a WRPS cruiser at the scene of the police shooting.

The SIU says investigators found this machete belonging to Nicholas Nembhard, lodged into the bumper of a WRPS cruiser at the scene of the police shooting. (Special Investigations Unit)

Martino says he also considered if the officers took too much time before providing Nembhard with aid after he was shot.

"The question is whether there was any want of care on the part of the involved officers, sufficiently serious to attract criminal sanction, that endangered the complainant's life or caused his death. In my view, there was not," Martino wrote in his report.

"[Nembhard] had been mortally wounded by the [officer's] gunshots and needed immediate medical attention, but the officers could not have been certain of the state of his condition at the time or whether he remained a threat."

The SIU mapped out the scene of the incident in this diagram. Investigators found Nembhard's machete lodged into the front bumper of the WRPS Ford Explorer pictured between the two other WRPS cruisers.
The SIU mapped out the scene of the incident in this diagram. Investigators found Nembhard's machete lodged into the front bumper of the WRPS Ford Explorer pictured between the two other WRPS cruisers.

The SIU mapped out the scene of the incident in this diagram. Investigators found Nembhard's machete lodged into the front bumper of the WRPS Ford Explorer pictured between the two other WRPS cruisers. (Special Investigations Unit)

Martino said at the time, police were also confused about whether the man still had his machete, so they did not know if it was safe to approach him.

"In fact, he was no longer holding the machete, but he still had the machete sheath, which was mistaken for the weapon," he said.

"I accept there was a need to act with deliberation and caution in approaching [Nembhard] ... there is no basis for proceeding with criminal charges. The file is closed."