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 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 injuries a 70-year-old woman (the “Complainant”) suffered.

Notification of the SIU

On November 10, 2020 at 3:22 p.m., the Hamilton Police Service (HPS) notified the SIU of an injury suffered by the Complainant during her arrest on September 12, 2021.

On October 26, 2020, the Complainant notified the HPS that she had suffered a shoulder injury during her arrest on September 12, 2020. She reported that during her arrest, police officers handcuffed her hands behind her back. She complained of pain and told the police officers she had fractured her shoulder on July 12, 2020. The police officers then handcuffed her hands to the front of her body.

On October 19, 2020, the Complainant underwent an ultrasound examination of her shoulder and she was diagnosed as having suffered a partial tendon tear in her left shoulder. The Complainant alleged the injury was caused during the handcuffing process.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

Complainant:

70-year-old female interviewed, medical records obtained and reviewed

Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed
CW #3 Not interviewed [1]
CW #4 Not interviewed [2]

Witness Officer (WO)

WO Interviewed, and notes received and reviewed

Subject Officer (SO)

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

The Scene

The scene was located outside a residence near Upper James Street and Fennell Avenue, Hamilton.

Video/Audio/Photographic Evidence

Cell Phone Video Recording – CW #2

CW #2 recorded a short video of her interaction with the Complainant, using her cellular telephone. While recording the incident, CW #2’s hand was across the camera lens, obstructing a view of the incident. The audio recording captured a conversation between the Complainant and CW #2. The conversation became a heated debate between CW #3, CW #2 and the Complainant, regarding the placement of garbage cans.

At 52 seconds into the recording, CW #2 said, “Don’t touch me.” She then yelled, “Don’t touch me!” The Complainant asked, “Are you okay?” [3] CW #2 replied, “You just fucking hit me!” The Complainant moved backward and laughed. CW #2 told CW #3 that the Complainant had just hit her, and CW #3 started yelling at the Complainant. The recording then ended.

Police Communications Recordings

Communications Recordings

On September 12, 2020 at 3:20 p.m., CW #3 reported his pregnant fiancée had just been assaulted. He explained he and his fiancée had been having a dispute with refugee tenants who resided in the basement apartment of their residence and the tenants’ sponsor had attended the residence and moved their garbage containers. CW #3 reported the woman had hit his fiancée in the chest and pushed her. He reported the woman’s first name (the Complainant) and that she had driven away with the two gentlemen who lived in the basement.

The WO and SO were dispatched to the incident. They were advised the first name of the subject and that she had driven away.

At 5:52 p.m., the WO reported his partner had a person in custody.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following records from the HPS:

• Communications recordings;
• Cell phone video – CW #2;
• General Occurrence Report;
• List of Involved Officers;
• List of Police Occurrences involving the Complainant;
• Notes of the WO;
• Photos of CW #2;
• Witness statement - CW #1; and
• Witness statement – CW #2.

Materials obtained from Other Sources

The SIU obtained and reviewed the following records from non-police sources:

• Still image from CW #2; and
• Medical records.

The following scenario emerges on the evidence collected by the SIU, which included interviews with the Complainant, two civilian eyewitnesses and the WO - the other arresting officer. As was her legal right, the SO declined to interview with the SIU or authorize the release of her notes.

At about 4:30 p.m. of September 12, 2020, the SO and WO arrived at a residence near Upper James Street and Fennell Avenue, Hamilton, following a call to police from a tenant of the home – CW #3. CW #3 reported that his fiancée – CW #2 – had just been assaulted by the Complainant while the two were engaged in a dispute over the placement of garbage bins on their shared driveway.

The officers, having spoken with the Complainant, CW #2 and other witnesses, decided to arrest the Complainant. The SO brought the Complainant’s arms around her back and secured them in handcuffs, in the process of which the Complainant experienced pain, said, “No, no, no,” and explained that she had fractured her left shoulder in July 2020.

The Complainant was placed in the backseat of the officer’s cruiser where she asked that the handcuffs be repositioned to the front because of the previous injury to her left shoulder. Her request was accommodated by the officers.

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,

The Complainant was arrested by HPS officers on September 12, 2020. The Complainant experienced pain in her left shoulder at the time and in the days after her arrest. She underwent an ultrasound examination on October 19, 2020 and was diagnosed with a partial tendon tear in the left shoulder. The HPS, having been informed on October 26, 2020 of the Complainant’s injury and the prospect that it was incurred in the course of her arrest, notified the SIU of the matter on November 10, 2020. The SIU initiated an investigation and identified one of the arresting officers, the SO, as the subject officer. 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 and injury.

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 authorized or required to do by law. I accept that the Complainant’s arrest was lawful. Based on what they knew of the 911 call and from their own investigation of the matter at the scene, the officers had reasonable grounds to believe that the Complainant had assaulted CW #2.

Thereafter, I am satisfied that the SO used lawful force in placing handcuffs on the Complainant. By outward indications, the arrest seems to have been executed rather uneventfully. Certainly, there is no suggestion that the Complainant physically resisted or that the SO was overtly physical or heavy-handed. That said, there are accounts in the evidence of the SO having “yanked” on the Complainant’s arm to bring it around her back, and that the officer was “rough” with the Complainant – an elderly woman. Others in the vicinity, however, saw nothing untoward in the manner in which the SO handled the Complainant. In the final analysis, while it may be that the SO injured the Complainant’s shoulder with force that was not precisely tailored in the circumstances, particularly in view of the fact that the Complainant was an older woman, I am unable to conclude that the force was excessive or fell afoul of the limits prescribed by the criminal law.

In the result, as I am satisfied that the SO conducted herself lawfully throughout her engagement with the Complainant, there is no basis for proceeding with criminal charges against the officer. The file is closed.


Date: April 19, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit