Director's Report Details

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.

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: 

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 injury a 28-year-old man (the “Complainant”) suffered during an interaction with the police.

Notification of the SIU

On February 21, 2021, at 10:45 p.m., the Hamilton Police Service (HPS) notified the SIU of the Complainant’s injury. According to the HPS, on February 21, 2021 about 6:45 p.m., HPS received a call from the Civilian Witness (CW) complaining her son, the Complainant, was intoxicated and trashing the house. HPS officers entered the house and a struggle took place during the arrest of the Complainant. While being transported to the station, the Complainant smashed his head against the Plexiglas divider in the police cruiser.

The Team

Date and time team dispatched: 02/22/2021 at 2:01 p.m.

Date and time SIU arrived on scene: 02/23/2021 at 9:50 a.m.

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

Affected Person (aka “Complainant”):

28-year-old male interviewed, medical records obtained and reviewed

The Complainant was interviewed on February 23, 2021.

Civilian Witness

CW Interviewed

The civilian witness was interviewed on February 23, 2021.

Subject Official (SO)

SO Interviewed, and notes received and reviewed

The subject official was interviewed on March 8, 2021.

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

The witness officials were interviewed on March 1, 2021.

The Scene

The incident occurred inside a house on Glow Avenue, Hamilton.

Video/Audio/Photographic Evidence

Police Communication Recordings

The following is a summary of the police communications recordings relating to this incident.

On February 21, 2021 at 6:23 p.m., the CW called HPS asking that her son, the Complainant, be removed from her house. She had gone to get her other son, and when she returned the Complainant began calling her names, made a hole straight through from the living room to the hall, and told her he was going to kill her. She indicated he had been drinking, and she wanted him charged.

At 6:24 p.m., the communications centre dispatched two officers to the residence for a trouble in progress call. The CW was outside and would meet them.

An officer came on the air to indicate he was transporting a male to the station, and that the male was hitting his head off the glass.

The officer came back on the air advising he was going to the hospital and asking for some assistance as his partner was taking a statement from the CW. He could wait at the residence for an officer to arrive and would be going to St. Joseph’s hospital.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from the HPS between February 23 and 26, 2021:

• Bail Opposition Form;
• Computer-assisted Dispatch;
• Canadian Detention Report;
• General Report;
• Communication Recordings;
• Niche Records Management System Report;
• Policy-Domestic;
• Policy-Use of Force and Equipment;
• Policy-Use of Force Reporting;
• Scenes of Crime Officer Report and Photos;
• Notes-the SO;
• Notes-WO #3;
• Notes-WO #1;
• Notes-WO #2;
• Willsay-WO #1;
• Willsay-WO #2; and
• Willsay-the SO.

Materials Obtained from Other Sources

The SIU received the following record from other sources on February 24, 2021:

• St. Joseph’s Hospital Medical Records for the Complainant.

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant and the SO, as well as the Complainant’s mother, the CW, who witnessed the incident in parts, and WO #1, who also participated in the Complainant’s arrest.

In the evening of February 21, 2021, the CW contacted police about her son, the Complainant. He was intoxicated, had threatened her with death and damaged the interior of her home, and she wanted him removed from the residence. The SO and WO #1 were dispatched to investigate.

The officers spoke with the CW outside the home and then ventured inside to speak with the Complainant. When he insisted that he would not leave the house for the night, they decided to arrest him. The Complainant was handcuffed without incident in the kitchen.

The Complainant’s belligerence turned to violence as he was being escorted to the front door of the home, and he was met with a measure of force by the officers. As he passed his mother standing in the living room, the Complainant lunged toward her in aggressive fashion. The SO intervened to prevent him reaching the CW by forcing him against a wall that divided the foyer from the living room. The Complainant struggled with the SO against the wall and attempted to head butt him. The SO reacted by delivering a right forearm strike to the Complainant’s head. Thereafter, the Complainant was taken to the ground where he was kept for a short period before being lifted to his feet. The officers grounded the Complainant a second time just outside the front door as he physically resisted their efforts to escort him to a police cruiser.

The Complainant was eventually carried to the SO’s cruiser and had to be forced inside, kicking and screaming. As he was bleeding from the nose, the SO took the Complainant to hospital where he was diagnosed with a fractured nose.

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,

On February 21, 2021, the Complainant sustained a broken nose in the process of his arrest in his mother’s home in Hamilton. One of the arresting officers – the SO – was identified as a subject official for purposes of the SIU investigation. 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 required or authorized to do by law. As they made their way to the CW’s home, the SO and WO #1 knew they were responding to a domestic disturbance in which the Complainant had reportedly threatened to kill his mother and done damage to her home. That information was confirmed once at the property through the officers’ personal observations and conversations with the parties. In the circumstances, the officers had lawful grounds to arrest the Complainant for threatening and mischief, and take him into custody.

I am further satisfied that the officers and, in particular, the SO, used no more force than was reasonably necessary to safely maintain the Complainant in custody. Regrettably, though the Complainant’s handcuffing was uneventful, the threatening and violent behaviour that had prompted the officers’ visit returned as he was being escorted through the home. Angry with his mother for having called the police, the Complainant lunged in her direction as he passed the living room area of the home. The SO was duty bound to protect the CW and did so, reasonably in my view, by forcing the Complainant against a wall before he could reach his mother. When the Complainant then turned his ire toward the officer and tried to head butt him, the SO was entitled to protect himself and did so by administering a forearm strike. In the heat of the moment, confronted by a violent Complainant attempting to assault him, I am unable to fault the SO for striking the Complainant to deter his attack. There followed two takedowns of the Complainant, both, in my view, justified on the basis of his level of aggression. Given what he had managed to accomplish while on his feet, the officers could reasonably expect to better manage any further resistance by the Complainant with him on the ground. Aside from the blow struck by the SO, no further strikes of any kind were delivered by the officers.

In the result, while I accept that the Complainant’s nose was likely fractured in the course of the force used by the officers, there are no reasonable grounds to believe that either officer comported himself other than lawfully throughout this matter. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: June 17, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit