SIU Director’s Report - Case # 21-OCI-352
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Contents:
Mandate of the SIU
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.
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.
Information Restrictions
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:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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.Mandate Engaged
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 a serious injury sustained by a 38-year-old man (the “Complainant”).
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 a serious injury sustained by a 38-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On October 19, 2021, at 10:54 a.m., the Complainant notified the SIU of an injury he had sustained at the hands of Hamilton Police Service (HPS) officers.According to the Complainant, on July 2, 2019, at about 7:30 p.m., he was at his parents’ home at a rural address near Ancaster, when he was punched and kneed by HPS police officers while they were arresting him. He was charged with several counts of assaulting a police officer.
The Complainant complained of injuries at the time he was arrested and was taken to St. Joseph's Healthcare Hamilton. The Complainant stated that he was at the hospital for about five minutes and that the police officers told the medical staff what his injuries were. He was discharged from hospital into police custody without treatment or any examination.
The Complainant said he was held in police custody and released late on July 3, 2019.
On July 4, 2019, the Complainant attended the Hamilton General Hospital and was diagnosed with a fractured orbital bone.
The Team
Date and time team dispatched: 10/19/2021 at 12:49 p.m.Date and time SIU responded: 10/19/2021 at 1:12 p.m.
Number of SIU Investigators assigned: 4
Affected Person (aka “Complainant”)
Interviewed; medical records obtained and reviewedThe Complainant was interviewed on October 20, 2021.
Civilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
The civilian witnesses were interviewed between November 4, 2021, and November 23, 2021.
Subject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right.The subject official was interviewed on December 17, 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed between November 15, 2021 and November 19, 2021.
Evidence
The Scene
There was no scene for forensic examination by the SIU. The arrest occurred on the gravel driveway in front of a residence on Alberton Road, Ancaster. Video/Audio/Photographic Evidence [1]
The SIU made inquiries of the Complainant and the civilian witnesses, including the property owner where the incident occurred, regarding the existence of any audio, video and/or photographic records of relevance, with negative results.
911 Call Recording
The audio-recorded 911 call placed by CW #2 was 28 minutes and eleven seconds in duration. The call included CW #2 providing the communications operator with information relevant to the Complainant’s behaviour and interaction with his family. There were indiscernible and unidentifiable voices of men heard arguing in the background and CW #2’s voice occasionally diverting to her daughter.
The 911 call was terminated when the SO and WO #1 arrived.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the HPS:- Cell Check Log;
- Chronology;
- Communications audio recording;
- Custody Property Report;
- Custody Report;
- General Report;
- Hamilton Arrest Booking Report;
- Notes of WOs;
- Statements of Two Civilian Witnesses;
- Supplementary Occurrence Reports;
- Use of Force Records for the SO and WO #1; and
- Will-states of WO #1 and WO #2.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Hamilton Health Sciences [Hamilton General Hospital] records;
- Hamilton Health Sciences [Main West Walk-in Clinic] records; and
- St. Joseph’s Healthcare Hamilton records.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO, and several police and civilian witnesses who observed the incident in parts.
Police officers were called to a rural address on Alberton Road in the evening of July 2, 2019. CW #2, the Complainant’s former spouse, had arrived at the residence to drop off her and the Complainant’s daughter. The Complainant was fighting outside with his father and brother on her arrival, prompting the call to police.
The SO and WO #1 were the first to arrive at the property, followed by WO #2. At the request of the Complainant’s parents, the officers decided they would not arrest the Complainant but ensure he left the property. The Complainant and his daughter had made their way a distance out into the property’s fields, and the three officers went looking for them. The Complainant was compliant when found and told he would have to leave. As he had been drinking, arrangements were made to have his girlfriend attend the property to drive him to her house.
The officers waited with the Complainant for his girlfriend to arrive in the garage and by the driveway. The Complainant was upset about having been directed to leave the property. He wrestled with his dog, made thinly-veiled threats about directing his dog to attack the officers, and mouthed-off at his family and police. At one point, the Complainant encroached on the SO’s personal space on the driveway and shoved the officer with his right elbow.
At the push by the Complainant, the SO immediately grabbed hold of his right arm, forced him to the ground, and told him he was under arrest. The Complainant resisted his arrest on the ground refusing to release his arms to be handcuffed and biting in the direction of the lower left leg of WO #1, who had intervened to assist the SO. The SO saw the bite and reacted by delivering a right-handed punch to the left side of the Complainant’s face. The Complainant let go of his bite and was handcuffed behind the back by WO #1.
The Complainant was lifted to his feet, at which point he spit in the direction of the SO and was kneed by the officer in the abdomen. The SO kneed him again – three times to the right leg – when the Complainant resisted the officers’ efforts to place him in the rear seat of a police cruiser.
Following his arrest, the Complainant was taken to hospital where he was cleared medically before being brought to the police station. He was released the next day following a bail hearing.
On July 4, 2019, the Complainant attended a medical clinic and was diagnosed with a fractured left-sided cheekbone and a chipped left elbow, the latter of which may or may not have been an old injury.
Police officers were called to a rural address on Alberton Road in the evening of July 2, 2019. CW #2, the Complainant’s former spouse, had arrived at the residence to drop off her and the Complainant’s daughter. The Complainant was fighting outside with his father and brother on her arrival, prompting the call to police.
The SO and WO #1 were the first to arrive at the property, followed by WO #2. At the request of the Complainant’s parents, the officers decided they would not arrest the Complainant but ensure he left the property. The Complainant and his daughter had made their way a distance out into the property’s fields, and the three officers went looking for them. The Complainant was compliant when found and told he would have to leave. As he had been drinking, arrangements were made to have his girlfriend attend the property to drive him to her house.
The officers waited with the Complainant for his girlfriend to arrive in the garage and by the driveway. The Complainant was upset about having been directed to leave the property. He wrestled with his dog, made thinly-veiled threats about directing his dog to attack the officers, and mouthed-off at his family and police. At one point, the Complainant encroached on the SO’s personal space on the driveway and shoved the officer with his right elbow.
At the push by the Complainant, the SO immediately grabbed hold of his right arm, forced him to the ground, and told him he was under arrest. The Complainant resisted his arrest on the ground refusing to release his arms to be handcuffed and biting in the direction of the lower left leg of WO #1, who had intervened to assist the SO. The SO saw the bite and reacted by delivering a right-handed punch to the left side of the Complainant’s face. The Complainant let go of his bite and was handcuffed behind the back by WO #1.
The Complainant was lifted to his feet, at which point he spit in the direction of the SO and was kneed by the officer in the abdomen. The SO kneed him again – three times to the right leg – when the Complainant resisted the officers’ efforts to place him in the rear seat of a police cruiser.
Following his arrest, the Complainant was taken to hospital where he was cleared medically before being brought to the police station. He was released the next day following a bail hearing.
On July 4, 2019, the Complainant attended a medical clinic and was diagnosed with a fractured left-sided cheekbone and a chipped left elbow, the latter of which may or may not have been an old injury.
Relevant Legislation
Section 25(1), Criminal Code -- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(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,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by HPS officers on July 2, 2019. He contacted the SIU on October 19, 2021 to report the incident. The SIU initiated an investigation. One of the arresting officers – the SO – was identified as a subject official. The investigation is now concluded. 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.
The Complainant had fought with his brother and father, and then pushed the SO in a deliberate attempt to antagonize the officer. His arrest for assault was clearly lawful.
The Complainant resisted his arrest and was met with legally justifiable force by the SO. The takedown by the SO would appear to have been a tactic reasonably available to the officer. The push by the Complainant was the culmination of a series of escalating aggressive behaviours, and the officer was within his rights in the circumstances to deter any further violence by placing him in a position of disadvantage on the ground. The Complainant struggled with the officers on the ground as they attempted to wrestle control of his arms, and was struck once in the face by the SO as he bit or was attempting to bite WO #1’s leg. The punch was reasonably necessary given the immediate need to neutralize what the Complainant was doing and prevent injury to WO #1. The SO’s knee strikes would also appear to have been a measured and commensurate response to the Complainant’s continued combativeness after he was handcuffed. The first one assisted in temporarily distracting the Complainant, facilitating the officers’ efforts to pull his shirt over his head to prevent their being spit at, while the three knee strikes by the cruiser were delivered as the Complainant refused to enter the vehicle. Once in the cruiser, there was no further force used by the officers.
It was alleged that the Complainant was subjected to excessive force by the officers, including multiple knees strikes to the head and punches to the face while he was on the ground, but it would be unwise and unsafe to rest charges on this evidence. It is apparent that this evidence minimized the Complainant’s belligerent behaviour towards the officers as they waited for his girlfriend to arrive. Though witnessed by multiple parties, for example, there was no mention in this evidence of the Complainant having come chest-to-chest with the SO just before he was grounded. In light of these and other frailties, I am satisfied that this evidence is insufficiently reliable to warrant being put to the test by a trier-of-fact.
In the result, while I accept that the Complainant’s cheekbone fracture (and, possibly, the left elbow chip) was incurred in the physical altercation that marked his arrest, there are no reasonable grounds to believe it was attributable to unlawful conduct on the part of the SO or either of the other two officers. Accordingly, there is no basis to proceed with criminal charges in this case, and the file is closed.
Date: February 16, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 had fought with his brother and father, and then pushed the SO in a deliberate attempt to antagonize the officer. His arrest for assault was clearly lawful.
The Complainant resisted his arrest and was met with legally justifiable force by the SO. The takedown by the SO would appear to have been a tactic reasonably available to the officer. The push by the Complainant was the culmination of a series of escalating aggressive behaviours, and the officer was within his rights in the circumstances to deter any further violence by placing him in a position of disadvantage on the ground. The Complainant struggled with the officers on the ground as they attempted to wrestle control of his arms, and was struck once in the face by the SO as he bit or was attempting to bite WO #1’s leg. The punch was reasonably necessary given the immediate need to neutralize what the Complainant was doing and prevent injury to WO #1. The SO’s knee strikes would also appear to have been a measured and commensurate response to the Complainant’s continued combativeness after he was handcuffed. The first one assisted in temporarily distracting the Complainant, facilitating the officers’ efforts to pull his shirt over his head to prevent their being spit at, while the three knee strikes by the cruiser were delivered as the Complainant refused to enter the vehicle. Once in the cruiser, there was no further force used by the officers.
It was alleged that the Complainant was subjected to excessive force by the officers, including multiple knees strikes to the head and punches to the face while he was on the ground, but it would be unwise and unsafe to rest charges on this evidence. It is apparent that this evidence minimized the Complainant’s belligerent behaviour towards the officers as they waited for his girlfriend to arrive. Though witnessed by multiple parties, for example, there was no mention in this evidence of the Complainant having come chest-to-chest with the SO just before he was grounded. In light of these and other frailties, I am satisfied that this evidence is insufficiently reliable to warrant being put to the test by a trier-of-fact.
In the result, while I accept that the Complainant’s cheekbone fracture (and, possibly, the left elbow chip) was incurred in the physical altercation that marked his arrest, there are no reasonable grounds to believe it was attributable to unlawful conduct on the part of the SO or either of the other two officers. Accordingly, there is no basis to proceed with criminal charges in this case, and the file is closed.
Date: February 16, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
Note:
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.