SIU Director’s Report - Case # 20-OCI-236
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Mandate of the SIU
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 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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 serious injuries sustained by a 54-year-old man (the “Complainant”).
Notification of the SIUOn September 24, 2020, at 10:45 a.m., the Hamilton Police Service (HPS) notified the SIU of an injury to a man.
The HPS advised that on September 24, at 1:00 a.m., HPS High Enforcement Action Team (HEAT) Unit members heard breaking of glass at 700 Queenston Road at Nash Road. They observed two people enter a business and then flee into a vehicle. When HPS officers attempted to stop the vehicle, it rammed the cruisers but was then stopped trying to drive over a curb. The three men in the car refused to get out, so the police officers broke the glass and extracted them out of the vehicle. The driver was Civilian Witness (CW) #1 and the rear passenger was CW #2. Both men were taken to the station and held for bail. The front passenger (now known to be the Complainant) was taken to the Hamilton General Hospital (HGH) for a cut over his left eye and treated for two fractures in his left foot.
The TeamNumber of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Number of SIU Collision Reconstructionist assigned: 1
Complainant:54-year-old male, declined interviewed, medical records received and reviewed
Civilian WitnessesCW #1 Not interviewed (declined)
CW #2 Not interviewed (declined)
CW #3 Interviewed
CW #4 Interviewed
Witness OfficersWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
Subject OfficersSO #1 Interviewed, and notes received and reviewed
SO #2 Interviewed, and notes received and reviewed
The SceneThe scene was the parking lot of the shopping plaza at 700 Queenston Road, in front of Unit # 9, Signature Vape Plus. The glass in the door of Unit # 9 was broken.
A blue BMW 750i was stopped across a concrete curb defining the parking area in front of Unit # 9. There was blood on the hood and roof of the vehicle. The driver’s window was broken, and the windshield was cracked on the passenger’s side.
There was blood, clothing, keys, a cellular phone, a Conducted Energy Weapon’s (CEW) probe, and a CEW’s wire on the ground on the passenger’s side of the vehicle. There was a second cellular phone on the hood of the vehicle. There were CEW probes, CEW wire and Anti-Felon Identification tags in the front seating area of the vehicle.
A silver GMC Acadia with damage to its front driver’s side was parked beside the BMW, driver’s door to driver’s door.
Figure 1 – The GMC Acadia and BMW 750i.
An HPS Ford Police Interceptor was on the opposite side of the BMW from the GMC with its front end in contact with the BMW.
Figure 2 - The front bumper of the HPS Ford Explorer and the BMW 750i.
A grey Kia Sedona was parked next to the building housing Unit # 9 just east of the BMW.
A silver Dodge Grand Caravan was parked parallel to and just south of the Kia.
Summary of the SIU Reconstructionist Report
There were two collisions. The first occurred when the front driver side’s corner of the BMW struck the front driver’s corner of the Acadia, and the second collision occurred when the front of the police Ford Explorer SUV struck the front passenger’s corner of the BMW. The damage to the three vehicles involved in the collision was relatively minor in nature. The vehicles were still in their post-collision positions near the front of the Signature Vape store which was the most southerly business at the end of the plaza.
The BMW 7-series vehicle was facing generally west. The undercarriage was resting on top of the cement sidewalk just south of the Signature Vape store in such a manner that the BMW was “hung up” on the curb. The passenger side’s front quarter area of the BMW was still in contact with the push bumper of the police Ford Explorer SUV. The BMW had collision damage on the front driver’s side consistent with the collision with the Acadia, as well as damage to the front passenger side’s corner consistent with the collision with the push bumper of the marked police Ford Explorer SUV. There was damage to the BMW’s front windshield on the passenger’s side at the top corner consistent with the Complainant having not been wearing a seat belt and having struck the windshield with his head during the BMW’s impact with the Acadia. The air bags in the BMW had not deployed. None of the seat belts in the BMW displayed evidence of having been worn during the impacts.
The BMW was not supported by the Crash Data Retrieval (CDR) system, meaning that no possibility existed to scan the air bag control module for electronic data (such as speed and braking).
The GMC Acadia
The Acadia was facing east, just south of the BMW, with the driver’s door next to and almost even with the driver’s door of the BMW. The Acadia had damage to the front driver’s side corner which was consistent with a collision with the BMW. The front wheels were turned sharply to the left and the left wheel appeared to have sustained damage during the collision with the BMW. No air bags had deployed in the Acadia, and there was nothing remarkable about the Acadia’s interior.
The 2018 Ford Explorer SUV
The HPS 2018 Ford Explorer SUV was fully marked as a police vehicle and was black and white in colour. The police Ford Explorer SUV was facing south with the front push bumper resting against the front passenger’s quarter panel of the BMW. The police Ford Explorer SUV’s push bumper had been forced backwards into the police vehicle’s bumper’s cover on the front passenger’s side, consistent with a collision with the BMW. No air bags had deployed in the police Ford Explorer SUV and there was nothing remarkable about the police Ford Explorer SUV’s interior.
Calculations and CDR Report
The air bag control module of the Acadia operated by SO #1 captured a “non-deployment” event – a collision with insufficient force to deploy the vehicle’s air bags. Five seconds prior to the collision, the accelerator pedal was at 10 percent of full, the brakes were off, and the Acadia travelled at 24 km/h. Four seconds prior to the collision, the accelerator pedal was at 99 percent of full, the brakes were off, and the Acadia travelled at 26 km/h. Three seconds prior to the collision, the accelerator pedal was at 99 percent of full, the brakes were off, and the Acadia travelled at 34 km/h. Two seconds prior to the collision, the accelerator pedal was at 0 percent of full, the brakes were on, and the Acadia travelled at 41 km/h and then began to decelerate. One-half second prior to the collision, the accelerator pedal remained at 0 percent, the brakes remained on, and the Acadia had decelerated to 19 km/h. The speed of the Acadia at the collision was not captured in the CDR Report. Due to the rate of deceleration during the two seconds prior to the collision, the Acadia was likely stopped when the collision occurred.
Results of analysis of scene evidence and CDR report
Three to four seconds prior to the collision, SO #1 was accelerating heavily forward. He accelerated from 24 km/h and reached a maximum speed of 41 km/h in about two seconds, then applied the brakes and slowed to a rate of speed of less than 19 km/h, and likely to a stop, prior to the Acadia being struck by the BMW. Because the Acadia was likely stopped when the collision occurred, the damage to both the Acadia and the BMW from the first collision was entirely a result of the forward momentum of the BMW.
Had the Complainant, seated in the BMW, not been wearing his seat belt, the Complainant could have been ejected from his seat during the collision with the Acadia with sufficient force to have struck his head on the windshield, causing the damage previously noted to the windshield and a head injury to the Complainant. The partial ejection of the Complainant from his seat during the collision with the Acadia could also have caused a leg injury when his body continued forward during the collision and made contact with the footwell and/or dashboard.
Summary of Closed-circuit Television (CCTV) from Canadian Tire
Per the video:
Between about 12:31:19 a.m. - 12:33:28 a.m., a dark-coloured vehicle enters camera view from the north, drives to the east and parks briefly. A white vehicle enters camera view from the north towards the other vehicle, which drove past it in a northerly direction.
At 12:35:54 a.m., both vehicles leave, heading northbound.
At 12:37:16 a.m., it is possible that a light-coloured vehicle drives from the south side of the business toward the Signature Vape shop and apparently stops; the vehicle is not seen to leave.
Between about 12:44:42 a.m. - 12:44:46 a.m., a vehicle [now known to be driven by SO #1] approaches the Signature Vape shop from the north. A second vehicle [now known to be a police vehicle] also approaches the Signature Vape shop from the north and appears to park on the south side of SO #1’s vehicle.
At 12:45:14 a.m., another group of police vehicles, marked and unmarked, arrive in the area.
At 12:46:37 a.m., a uniformed person with the word CADET printed on the back of his vest positions himself safely on the west side of a cruiser, not involved physically with anyone.
At 12:47:03 a.m., a man is taken to the ground by officers.
At 12:49:08 a.m., a man is escorted to and placed inside a cruiser.
At 12:50:16 a.m., the man who was taken to the ground is helped to his feet and escorted by two or three police officers out of view.
Summary of the CCTV Vape Store
Camera 1 was mounted high in the north-western corner of the interior near the front window and faced southeast. Limited movement (basically just shadows) could be seen to the south, exterior to the store in the area where the interaction occurred.
Camera 2 was mounted high in the south-western corner of the interior near the front window and faced northeast. The camera was angled in such a way that more of the store’s exterior could be seen than on camera 1, but the view was looking northwest into the parking lot, in the opposite direction from the interaction.
The following is a summary of the surveillance videos’ footage relevant to the investigation:
Between about 12:43:25 a.m. - 12:44:50 a.m., two men were outside the front door of the store and began smashing the glass. The two men entered the store. The first man was wearing solid colour clothing and a baseball cap. The second man was wearing a horizontally striped hoodie with the hood up. The two men opened several drawers of display cabinets along the store’s southern wall. They gathered up merchandise. The first man placed the merchandise in a box and the second man placed the merchandise in a cylindrically shaped pail consistent with a garbage pail which he retrieved from inside the store.
At 12:44:41 a.m., the first man exited the store through the front door and went south.
At 12:44:50 a.m., the second man exited the store through the front door and went south.
At 12:45:25 a.m., headlights from a police SUV [now known to be an HPS vehicle operated by WO #6] approached travelling southbound in the parking lot across the front of the stores. The HPS vehicle crossed in front of the Signature Vape store but where the vehicle stopped (where the interaction occurred) was not visible – some lights could be seen reflecting inside the store during the interaction.
At 12:46:09 a.m., a light, consistent perhaps with the front passenger side’s headlight of the BMW, moved a few metres to the west.
Police Communications RecordingsThe SIU obtained and reviewed audio communications recordings and the event chronology report from the HPS.
Dispatch Transmissions, September 24, 2020
12:45:31 a.m.: Several units offer to back up SO #1, talking over each other; seven units assigned.
12:48:39 a.m.: Three under arrest.
12:49:10 a.m.: [A police code indicating police are to limit transmissions] is lifted.
12:49:50 a.m. - 12:50:42 a.m.: Three ambulances are requested for conscious, breathing, two bleeding people. One bleeding from the face, cut to the face; another with cut to face. One or two officers cut from glass.
12:51:08 a.m.: Bleeding controlled for all but one; they are working to control it.
A 911 call received on September 24, 2020
Car-to-car transmissions on September 24, 2020
- I’m right behind you
- I’m here
- Yup, they just broke into Signature Vape
- What’s the plan?
- In a car in the far side of the hydro up there
- I have 3 of them inside, there’s one guy just went inside right now, wanna get around back there maybe
- Yup, I’ll take the back
- I’m in back as well…
- …call out the B & E [break and enter] in progress
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from HPS:
- CAD Report;
- CDR Report for the GMC Acadia driven by SO #1;
- Communication – HPS;
- Email from HPS regarding CEWs and badge numbers;
- Email from HPS-Case Information and Attachments;
- Email from HPS-Use of Force Training;
- Event Chronology;
- General Report (x2);
- Motor Vehicle Collision report (x2);
- Notes of all SOs and WOs;
- Policy - Use of Force and Equipment;
- Policy - Arrest;
- Use of Force and Firearms in Policing Service, O Reg 132/20;
- Supplementary Reports (x8); and
- Will States of witness officers.
Materials obtained from Other SourcesUpon request, the SIU obtained and reviewed the following document from HGH:
- The Complainant’s Medical Record.
Upon request, the SIU obtained the following video/audio evidence:
- CCTV-700 Queenston Road; and
- CCTV-Canadian Tire.
Based upon the aforementioned sources and other analyses, the following narrative emerges. On September 24, 2020 at 12:44 a.m., an HPS HEAT Unit member – SO #1 - heard breaking glass at 700 Queenston Road at Nash Road. As SO #1 neared the scene in his vehicle, he observed two people entering a Signature Vape shop and then, with a third person, fleeing into a BMW. SO #1 reported the break and enter in progress over the radio, and was soon joined by other police officers in their vehicles converging on the BMW.
By 12:45 a.m., multiple police cruisers had responded to the break and enter in progress and were near the BMW, but CW #1 – the driver of the BMW – tried to ram the police cruisers which had arrived and were positioned in an attempt to prevent the BMW from leaving. The BMW’s continued efforts to flee were largely thwarted when it drove over a curb and got stuck. The three men in the car refused to get out, so the police officers broke the glass and extracted them from the vehicle.
Multiple police officers were required in order to drag each man from the BMW, and the Complainant – the front seat passenger – loudly encouraged CW #1 to attempt to get the BMW moving again. Even after CW #1 and CW #2 had been extricated from the BMW and had surrendered, the Complainant kept resisting. His resistance consisted of punching and kicking at the officers who were trying to remove him from the passenger door window. Punches, kicks, grapples, strikes with an ASP baton, deployment of OC spray, and pointing a firearm at him were all used in attempts to subdue the Complainant, but none were able to quell the Complainant’s resistance sufficiently to permit the officers to take custody of him. It was not until the discharge of a CEW, deployed by WO #4, that it appears the officers were able to finally overcome the Complainant’s struggle and remove him from the vehicle. Even then, the Complainant refused to release his arms and was only handcuffed following a kick to the back by SO #2. During the course of his struggles against police officers’ efforts to arrest him, which seem to have lasted approximately three minutes, the Complainant was struck once on the left foot with an ASP baton by SO #2 and at least 15 times on the lower body by SO #1.
Following his arrest, the Complainant was taken to the HGH for a cut over his left eye and was treated for fractures in his left foot.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(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,
Analysis and Director's Decision
Before any further analysis of the legal issues in this case, it must be noted that there is an issue related to causation in this case. Given the fact that the Complainant had been seated, without a seatbelt, in a BMW which was being deliberately rammed into other vehicles, the possibility arises that all of the Complainant’s serious injuries were caused during the BMW’s ramming maneuvers. Such a conclusion, however, need not be explored further because this case is not one in which the Complainant’s serious injuries, even if caused only by police officers’ actions, were caused illegally, as I explain below.
Since the Complainant had been caught engaging in breaking and entering, the police were lawfully entitled to arrest the Complainant without a warrant. The Complainant, by responding to this lawful arrest with extreme physical resistance, in turn granted the police officers the right, pursuant to section 25(1) of the Criminal Code, to use reasonable force in order to subdue him.
Can it be said, therefore, that any police officer, when struggling with the Complainant, used unreasonable – and hence unlawful – force against him? In my view, there is insufficient evidence to reasonably conclude as much. Though there is no doubt that the cumulative force used against the Complainant was significant - multiple hand strikes and ASP blows, OC spray, and a CEW discharge – there is similarly no doubt that the Complainant was vigorously resisting his arrest, even striking out himself at the officers with arms and legs. In the course of this melee, it is apparent that the officers escalated their use of force only when it was clear that lesser force was not accomplishing the task at hand, namely, effecting the Complainant’s arrest. It is also important to bear in mind the broader context in which the officers were confronted by persons who had just been caught committing a serious offence and determined to drive away. In the circumstances, there was some imperative in ensuring that the Complainant and his associates were taken into custody as quickly as possible in the interests of public safety. On this record, I am satisfied on reasonable grounds that the force used by the officers was measured, proportionate and, ultimately, lawful.
For the foregoing reasons, there is no basis for proceeding with criminal charges against any police officer in this case, and the file is closed.
Date: January 6, 2021
Electronically approved by
Special Investigations Unit
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.