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 43-year-old man (the “Complainant”) suffered when he was 31 years old.

Notification of the SIU

On September 1, 2021, at 11:30 a.m., a man notified the SIU of an injury reportedly suffered by his brother, the Complainant, at the hands of the police.

The man explained that he had a twin brother, the Complainant, who was bipolar and suffered manic episodes in the summer 2009. As a result of the Complainant’s manic episodes, his parents contacted the police for a person-in-distress complaint. The Hamilton Police Service (HPS) dispatched a total of seven police officers to the residence and the Complainant was apprehended by police. According to the man, as the Complainant lay face down on the ground with his hands handcuffed behind his back, an HPS police officer kicked the Complainant three times in the head with a steel-toed boot.

As a result of this attack, the man said that the Complainant was admitted to McMaster University Hospital and placed in the intensive care unit for two weeks in an induced coma for blunt force trauma to the head.

He advised that his brother was never charged for any crime.

The Complainant had no history of contact sports or any other activities that would have resulted in blunt force trauma to his head.

The Team

Date and time team dispatched: 09/02/2021 at 12:12 p.m.

Date and time SIU arrived on scene: 09/02/2021 at 2:42 p.m.

The Scene

This incident occurred at a residence in the area of Mohawk Road and McNiven Road in Ancaster. The address was a two-storey single family residence in a residential neighbourhood.

SIU Forensic Investigators did not attend the residence and therefore no scene examination was done, and no diagram was produced.

Forensic Evidence

WO #2’s Conducted Energy Weapon (CEW) Download

The data associated with WO #2’s CEW indicated the following for July 8, 2009:

• The CEW was fired at 4:34:16 p.m. [2] for a charge duration of six seconds.
• The CEW was fired at 4:34:24 p.m. for a charge duration of five seconds.
• The CEW was fired at 4:34:27 p.m. for a charge duration of three seconds.
• The CEW was fired at 4:34:46 p.m. for a charge duration of seven seconds.

Video/Audio/Photographic Evidence

911 Calls and Communication Recordings

HPS retention period for 911 calls and communication recordings was three years in their record management system. The only time an older request could be fulfilled was if it was saved in a folder at the time of or shortly after the occurrence.

No recordings were available in respect of this incident.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from HPS between September 8, 2021 and December 15, 2021:

• Computer-assisted Dispatch (CAD) Background Event Chronology;
• CAD Event Chronology;
• Contact with Emotionally Disturbed Person Form;
• NICHE (records management system) Report;
• Notes – WO #4;
• Notes – WO #2;
• Notes – WO #5;
• Notes – WO #1;
• HPS Policy-Arrest;
• HPS Policy-Use of Force;
• HPS Police-Prisoner Care; and
• Supplementary Occurrence Report-the SO (2009 Occurrence).

The following scenario emerges from the evidence collected by the SIU, which included an interview with the SO and other officers who participated in the Complainant’s arrest.

In the afternoon of July 8, 2009, HPS officers were dispatched to a home in the area of Mohawk Road and McNiven Road, Ancaster. They had been sent following a 911 call from the residence complaining that a man under the influence of drugs was trying to break into the home. The man – the Complainant - was kicking at the garage door and had broken a window.

The SO was the first officer to arrive at the address. He exited his cruiser and was quickly approached by the Complainant walking down the driveway of the home. The officer retreated behind his cruiser and drew his ASP baton preparing to defend himself. The Complainant came within metres of the officer before he turned away and walked back towards the home, threatening the officer with death if he followed.

Followed by the SO, the Complainant walked along the garage to the backyard of the home, and then through the backyard and over a perimeter fence onto the roadway. He was in a highly agitated state, and unwilling or unable to respond to the officer when asked what was upsetting him. The Complainant continued southward on the road for a distance before he sat on the east curb. He continued to ramble incoherently as the SO asked questions. Within a short period, the Complainant rose to his feet and charged at the officer, coming within metres of the SO before suddenly changing course and running northward.

The Complainant’s attention had been drawn to WO #2, who had also responded to the 911 call and was standing on the property where the Complainant first encountered the SO. As the Complainant rushed toward her, the SO chasing him from behind, WO #2 drew her CEW and discharged it as he neared to within three metres. The probes found their mark, and the Complainant was immobilized, falling face first onto the front lawn of the home. When the charge finished, the Complainant removed the probes from his body, raised himself to his knees and lunged towards WO #2’s waist. Before he could reach her, the SO kneed the Complainant in the chest, causing him to fall to the ground again. The Complainant was told to stay down but continued to try to get up. Following several more CEW discharges by WO #2 and a couple of kicks to the upper arm area by the SO, the Complainant was subdued and handcuffed behind his back.

Paramedics attended the scene and loaded the Complainant into an ambulance. In the process, he tried to bite WO #2, who reacted by punching the side of the Complainant’s face.

The Complainant remained in a frenzied condition at hospital and had to be strapped to a bed. He was found to have consumed a large quantity of street drugs, and was induced into a coma.

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,

Section 17, Mental Health Act -- Action by police officer

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

On September 1, 2021, a man contacted the SIU to report that his brother – the Complainant – had been seriously injured at the hands of HPS officers in the summer of 2009. The SIU initiated an investigation and identified July 8, 2009 as the date in question. On that date, the Complainant was arrested by several HPS officers. One of the arresting officers – 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.

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. The Complainant was clearly of unsound mind at the time, the result, at least in part, of illicit drug use. He had also threatened to do harm to the SO and himself, and tried to break into a residence – his parents’ home - prior to the officers’ arrival. In the circumstances, I am satisfied he was subject to apprehension under section 17 of the Mental Health Act.

I am also satisfied that the force brought to bear by the officers against the Complainant was legally justified. The Complainant was running headlong towards WO #2, in what could only have been interpreted as an assault in the making, when she fired her CEW and halted his progress. This would appear to have been a measured and proportionate response to an imminent attack. In light of the Complainant’s continued resistance following the initial CEW discharge, including a lunge at WO #2’s waist that the officer legitimately feared was an attempt to grab her firearm, I am unable to reasonably conclude that the further strikes and CEW discharges, delivered by the SO and WO #2, respectively, fell afoul of the latitude of permissible force prescribed by the criminal law. Once the Complainant had been subdued and handcuffed, no further notable force was used with the exception of WO #2’s punch. As the Complainant had just tried to bite her, however, the officer was entitled to react with a measure of force to protect herself and deter any further aggression. A single punch, in the circumstances, did not exceed the remit of authorized force.

In the result, whether the officers played any role in the Complainant’s condition at hospital, [3] there are no reasonable grounds to believe that any of them comported themselves 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: December 24, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit