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 26-year-old man (the “Complainant”) suffered.

Notification of the SIU

On April 7, 2021, at 12:10 a.m., the Hamilton Police Service (HPS) reported the following.

On April 6, 2021, at 6:45 p.m., the HPS received a call to an address on Neil Avenue regarding a family disturbance. The Subject Official (SO) was the first officer to arrive and found the Complainant fighting with his father inside the residence. The SO separated the two and escorted the Complainant outside, where he became aggressive with the officer. The SO grounded the Complainant as Witness Official (WO) #1 arrived to assist.

The Complainant was taken to the Hamilton General Hospital (HGH) and was diagnosed with a broken nasal bone. He was expected to be released from hospital and from police custody on a Promise to Appear for assault with intent to resist arrest.

Due to an imminent rainstorm, HPS was to arrange for a Scenes of Crime Officer (SOCO) to photograph blood at the scene.

It was further reported that family members might have witnessed the arrest.

The Team
 

Date and time team dispatched: 04/07/2021 at 8:33 a.m.

Date and time SIU arrived on scene: 04/07/2021 at 10:11 a.m.

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on April 7, 2021.

Civilian Witnesses (CW)
 

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

The civilian witnesses were interviewed between April 8, 2021 and May 13, 2021.

Subject Official
 

SO Interviewed, but declined to submit notes, as is the subject official’s legal right.

The subject official was interviewed on August 8, 2021.

Witness Officials
 

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed

The witness officials were interviewed between April 23, 2021 and May 4, 2021.

The Scene 
 

The scene consisted of the front steps and lawn of an address on Neil Avenue, Hamilton.

The SIU did not attend the scene.

Due to an imminent rainstorm, the HPS SOCO photographed blood at the scene.

Video/Audio/Photographic Evidence [1]
 

Communications Recordings

On April 20, 2021, the HPS provided communications recordings regarding the incident involving the Complainant on April 6, 2021. The following is a summary of those recordings.

Call #1
A 911 call was received by the police at 6:46 p.m. CW #3 required the HPS because his brother, the Complainant, was drunk and attacking his father, CW #2 (yelling and some sort of disturbance could be heard).

Call #2
At 6:45 p.m., CW #1 said, “I need the police please.” Her son was drunk and fighting with people in the house (yelling could be heard in the background while CW #1 spoke). CW #1 said the Complainant was behaving in an aggressive manner towards his father. There were three people in the house, and her other son had left the residence. The Complainant was in the living room of the residence. CW #1 had arrived home one-half hour before, and the Complainant turned into a “fricking demon” when he drank. CW #1 said someone was knocking at the door and, a moment later, she confirmed a police officer had arrived.

Call #3
At 6:53 p.m., the HPS phoned the EMS and asked that they attend an address on Neil Avenue. A man was bleeding heavily from his nose; he had been fighting with his father and his nose was still bleeding.

HPS Dispatcher Recording of Event
The HPS radio transmissions for the call began on April 6, 2021, at 6:44 p.m. The SO was dispatched to the address for a family disturbance in progress. The Complainant was attacking his father and had been drinking.

At 6:47 p.m., the HPS Communications (HPSC) asked the SO if he was waiting for back-up to arrive. The SO replied, “No I’m going inside.”

At 6:47 p.m., HPSC asked the SO if everything was okay, and he replied it was.

At 6:49 p.m., HPSC asked the SO if everything was still okay, and he answered, “Alright.” Very shortly thereafter, the SO requested an ambulance. WO #3 and WO #4 broadcast they were attending the call.

At 6:50 p.m., the SO broadcast the Complainant was bleeding heavily from the nose.

At 6:53 p.m., WO #3 broadcast everything was in order and a man was in custody.

At 6:55 p.m., the SO said there were other HPS officers present, the man was handcuffed, and the situation was “10-4”.

At 6:55 p.m., HPSC told units attending the address that the ambulance would be there shortly.

At 7:04 p.m., the SO advised the HPSC the paramedics were at the address. A short time later, WO #3 said he was in the ambulance accompanying the Complainant to the HGH and WO #4 was following in her police cruiser.

Photographs

On April 8, 2021, the SOCO photos were received by the SIU.


 

Materials Obtained from Police Service
 

Upon request, the SIU received the following materials and documents from HPS between April 7, 2021 and May 26, 2021:

• Communications Recordings;
• SOCO Photographs;
• Communication Computer-assisted Dispatch Report;
• General Report;
• Involved Officer Use of Force Training Dates;
• Notes-WO #1;
• Notes-WO #2;
• Notes-WO #3;
• Notes-WO #4;
• Policies: Arrest, Use of Force Reporting and Use of Force and Equipment;
• Supplementary Report - Forensics;
• Will State-WO #4;
• Will State-WO #1; and
• Will State-WO #3.

Materials Obtained from Other Sources
 

The SIU received the following records from other sources on April 11, 2021:

• Medical Records from the HGH.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO and a civilian eyewitness.

In the evening of April 6, 2021, the HPS received 911 calls from persons in the home of an address on Neil Avenue. The Complainant’s mother and brother were calling to report a domestic disturbance involving the Complainant and members of his family that had turned violent. An intoxicated Complainant had reportedly attacked his father. Officers were dispatched to the address.

The SO was the first to arrive at about 6:45 p.m. Because he could hear fighting inside the house, the officer decided to intervene at that point rather than wait for additional officers to arrive. The Complainant’s mother – CW #1 – opened the door to the SO and immediately told him that she wanted the Complainant out of the house. When asked, the Complainant’s father – CW #2 – confirmed that he had been assaulted by his son. The SO asked that the Complainant accompany him outside, and the Complainant did so.

Once outside, though initially calm, the Complainant’s belligerence returned. At that point, the SO thought it best to take the Complainant into custody for the assault on his father.

The Complainant objected to his arrest and struggled against the officer’s efforts to place him in handcuffs. The struggle continued as the SO delivered a knee strike to the Complainant’s midsection and pulled him to the ground. The Complainant was able to maneuver from a prone position onto his back with the officer on top of him. The SO delivered two right-handed punches, seconds apart, to the Complainant’s face, after which the Complainant’s fight subsided and the hostilities came to an end.

At about 6:50 p.m., the SO radioed for an ambulance to the scene. The Complainant was bleeding from the nose.

The Complainant was taken to hospital and 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 April 6, 2021, the Complainant suffered a serious injury in the course of his arrest in Hamilton by an HPS officer. The officer – the SO – was identified as the 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. Given what he had learned of the situation via dispatch, and what he was personally able to gather once at the address in speaking with the Complainant’s family, I am satisfied that there was a lawful basis to arrest the Complainant for an assault against his father.

Thereafter, I am unable to reasonably conclude on the evidence that the SO used excessive force in his dealings with the Complainant. The record is clear that the Complainant physically resisted the SO as the officer moved in to handcuff him. The parties wrestled with each other on their feet for a period before the officer, reasonably in my view, decided to take the Complainant to the ground. The Complainant had shown a propensity for violence and the SO was within his rights in seeking to gain an advantage with the Complainant on the ground. The Complainant continued to struggle with the officer on the ground to the extent that he was able to right himself from a prone position onto his backside with the officer’s weight on top of him. Face-to-face and alone with a combative individual, whom the officer reasonably believed had moments earlier just attacked his father, the SO had cause to want to end the struggle as soon as possible. In the circumstances, the officer’s punch was, in my view, a reasonable and proportionate escalation of force. When the first punch did not deter the Complainant, the SO delivered a second punch. Coming seconds after the first punch, as the struggle continued, I am satisfied that the second strike was also a measured and necessary use of force.

In the result, while the force used by the SO may have been at the upper end of what was reasonable in the circumstances, the evidence does not reasonably persuade me that it crossed the line. In arriving at this conclusion, I am mindful of the common law principle that officers embroiled in violent situations are not expected to measure their responsive force with precision. Rather, some leeway is recognized given the volatility of the situation and the need to make quick decisions in the heat of the moment: R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.); R. v. Nasogaluak [2010] 1 SCR 206. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: November 8, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit