SIU Director’s Report - Case # 21-OCI-392
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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 44-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 44-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On November 15, 2021, at 9:01 p.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant. Reportedly, the Complainant had been evicted from his apartment at an address on King Street East on October 20, 2021, by the Sheriff’s Office. On November 15, 2021, at 3:00 p.m., the Complainant was found inside his old apartment by the cleaners. Four HPS officers responded and the Complainant was arrested for being unlawfully in a dwelling house. He resisted the arrest and two of the involved officers struck him. The Complainant was taken to the Hamilton General Hospital and diagnosed with a fractured nose.The Team
Date and time team dispatched: 11/15/2021 at 9:41 p.m.Date and time SIU arrived on scene: 11/15/2021 at 10:20 p.m.
Number of SIU Investigators assigned: 3
Affected Person (aka “Complainant”):
44-year-old male interviewedThe Complainant was interviewed on November 15, 2021.
Subject Officials
SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right.SO #2 Interviewed, but declined to submit notes, as is the subject official’s legal right.
The subject officials were interviewed on January 19, 2022.
Witness Officials
WO #1 InterviewedWO #2 Interviewed
The witness officials were interviewed on November 23, 2021.
Evidence
The Scene
The incident occurred inside an apartment at an address on King Street East, Hamilton.Video/Audio/Photographic Evidence[1]
Communications Recordings
HPS communications recordings were received by the SIU on December 6, 2021. The following is a summary of the relevant communications.On November 15, 2021, at about 3:00 p.m., a man entered the HPS station and reported an unknown disturbance at an apartment on King Street East, close-by to the HPS station.
HPS units attended the call saying they were sorting out what the problem was, and later responded that everything was fine.
HPS Scenes of Crime Officer (SOCO) Photographs
The SIU received the SOCO photographs on February 15, 2022. The images showed an apartment in disarray. The photographs showed numerous weapons but did not depict where they were, except for a hatchet and knife found in the area where the Complainant was reportedly hiding. Multiple knives and hammers, and large glass shards, were photographed, as was a modified hammer with a razor blade attached.Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the HPS:- Custody Log;
- Event Chronology;
- Communications Recordings;
- General Report;
- Notes of WOs;
- SOCO photographs;
- Photograph – the Complainant; and
- Witness statement.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and the officers who arrested him – SO #1 and SO #2.
In the afternoon of November 15, 2021, the HPS received a report that the Complainant, having been evicted from an apartment on King Street East, was staying in the unit. SO #1 and SO #2, in the company of WO #1 and WO #2, attended at the address to investigate the matter.
The Complainant was located inside the unit and refused to exit when directed to by the officers. SO #1 and SO #2 entered the unit and advised the Complainant that he was under arrest. The Complainant physically resisted his arrest. He pushed and pulled the officers to avoid having his arms handcuffed but was eventually subdued following a punch and two punches struck by each of SO #1 and SO #2, respectively.
Following his arrest, the Complainant was taken to hospital and reportedly diagnosed with a broken nose.
In the afternoon of November 15, 2021, the HPS received a report that the Complainant, having been evicted from an apartment on King Street East, was staying in the unit. SO #1 and SO #2, in the company of WO #1 and WO #2, attended at the address to investigate the matter.
The Complainant was located inside the unit and refused to exit when directed to by the officers. SO #1 and SO #2 entered the unit and advised the Complainant that he was under arrest. The Complainant physically resisted his arrest. He pushed and pulled the officers to avoid having his arms handcuffed but was eventually subdued following a punch and two punches struck by each of SO #1 and SO #2, respectively.
Following his arrest, the Complainant was taken to hospital and reportedly diagnosed with a broken nose.
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.
Section 349, Criminal Code -- Being unlawfully in dwelling-house
349 (1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.
(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein.
Analysis and Director's Decision
The Complainant reportedly suffered a serious injury in the course of his arrest by HPS officers on November 15, 2021. The arresting officers – SO #1 and SO #2 – were identified as subject officials for purposes of the SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official 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 act that they were authorized or required to do by law.
Based on information they had received, and what they ascertained themselves of the Complainant’s presence in the apartment despite having been evicted, I am satisfied that the officers had lawful grounds to seek the Complainant’s arrest for being unlawfully in a dwelling in contravention of section 349 of the Criminal Code.
I am further satisfied that the force brought to bear by SO #1 and SO #2 in the course of the Complainant’s arrest, namely, a series of punches to the head, was legally justified. The officers were understandably concerned that the Complainant, in trying to free himself from their grasp, might access a weapon; the unit was in complete disarray and contained multiple knives and hammers strewn about, including a knife and hatchet in the immediate vicinity of the Complainant. In the circumstances, a punch by SO #1 and two by SO #2, each delivered at about the same time in the course of the struggle, would appear a reasonable use of force to quickly subdue the Complainant and take him safely into custody.
It is alleged that the Complainant was beaten by more than half-a-dozen officers despite offering no resistance to his arrest, but it would be unwise and unsafe to rest charges on the strength of this evidence. This account of the incident was decidedly vague and faulty in material respects. Though it was alleged that the Complainant suffered multiple skull fractures, which might have lent credence to the claims of excessive force, the Complainant did not assist the SIU in accessing his medical records to confirm his injuries.
In the result, while I accept that the Complainant might well have had his nose broken by one or the other of the subject officials in the course of the physical altercation that marked his arrest, there are no reasonable grounds to believe that either SO #1 and SO #2 conducted themselves other than lawfully in their engagement. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: March 8, 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 act that they were authorized or required to do by law.
Based on information they had received, and what they ascertained themselves of the Complainant’s presence in the apartment despite having been evicted, I am satisfied that the officers had lawful grounds to seek the Complainant’s arrest for being unlawfully in a dwelling in contravention of section 349 of the Criminal Code.
I am further satisfied that the force brought to bear by SO #1 and SO #2 in the course of the Complainant’s arrest, namely, a series of punches to the head, was legally justified. The officers were understandably concerned that the Complainant, in trying to free himself from their grasp, might access a weapon; the unit was in complete disarray and contained multiple knives and hammers strewn about, including a knife and hatchet in the immediate vicinity of the Complainant. In the circumstances, a punch by SO #1 and two by SO #2, each delivered at about the same time in the course of the struggle, would appear a reasonable use of force to quickly subdue the Complainant and take him safely into custody.
It is alleged that the Complainant was beaten by more than half-a-dozen officers despite offering no resistance to his arrest, but it would be unwise and unsafe to rest charges on the strength of this evidence. This account of the incident was decidedly vague and faulty in material respects. Though it was alleged that the Complainant suffered multiple skull fractures, which might have lent credence to the claims of excessive force, the Complainant did not assist the SIU in accessing his medical records to confirm his injuries.
In the result, while I accept that the Complainant might well have had his nose broken by one or the other of the subject officials in the course of the physical altercation that marked his arrest, there are no reasonable grounds to believe that either SO #1 and SO #2 conducted themselves other than lawfully in their engagement. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: March 8, 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.