SIU Director’s Report - Case # 22-OCI-005
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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 the serious injuries a 35-year-old woman (the “Complainant”) suffered.
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 injuries a 35-year-old woman (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On January 10, 2022, at 11:48 a.m., the Hamilton Police Service (HPS) notified the SIU that the Complainant had reportedly sustained serious injuries in an interaction with police officers on June 24, 2021, at about 12:00 a.m. HPS informed the SIU that the Complainant had provided a statement to the HPS.The Team
Date and time team dispatched: 01/11/2022 at 10:25 a.m.Date and time SIU arrived on scene: 01/11/2022 at 2:20 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
35-year-old female; interviewed; medical records obtained and reviewedThe Complainant was interviewed on January 14, 2022.
Civilian Witness (CW)
CW InterviewedThe civilian witness was interviewed on February 16, 2022.
Subject Officials (SO)
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Interviewed, but declined to submit notes, as is the subject official’s legal right.
The subject official was interviewed on April 12, 2022.
Witness Officials (WO)
WO #1 InterviewedWO #2 Not interviewed
WO #3 Interviewed
The witness officials were interviewed between February 10, 2022, and March 11, 2022.
Evidence
The Scene
The incident occurred in the backyard of a house near Fennel Avenue East and Upper Gage Avenue, Hamilton.Video/Audio/Photographic Evidence [1]
Police Telephone Communications
On January 19, 2022, HPS provided the SIU with the telephone communications recordings pertinent to the incident under investigation. The following is a summary of the recordings.On June 24, 2021, on two occasions, the CW called the HPS to report that the Complainant was at his residence at an address near Fennel Avenue East and Upper Gage Avenue. She was harassing him, and had broken a basement window in his house. The Complainant was in the backyard of his residence. She was wearing jeans and a T-shirt. The police call-taker advised the CW to stay inside the residence and that police were en route.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from HPS between January 19, 2022, and March 31, 2022:- Canadian Detention Report;
- Event Chronology (x2);
- Communications recordings;
- Contact with ‘Person in Crisis’ Form;
- Email from HPS regarding Involved Officers and Civilian Witness Details;
- Email from HPS-officer vehicles;
- General Report;
- Notes-WO #1;
- Notes-WO #3; and
- Will say-WO #1.
Materials Obtained from Other Sources
The SIU received the following records from other sources:- Medical Records – Mackenzie Health.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, SO #2, and another police officer who participated in the Complainant’s arrest, WO #1. As was her legal right, SO #1 chose not to interview with the SIU or authorize the release of her notes.
At about 11:30 a.m. of June 24, 2021, HPS officers – SO #2, SO #1 and WO #1 – were dispatched to a home near Fennel Avenue East and Upper Gage Avenue, Hamilton. They were there following a call from the homeowner – the CW – complaining that the Complainant – a former partner – had broken a window and was refusing to leave the property.
The officers arrived at the address to find the Complainant sitting on a lawn chair in the backyard. Told that she would have to leave, the Complainant demurred and threatened the officers with violence if they tried to have her removed. She then followed through with her threat as the officers moved in to take hold of her person.
The Complainant kicked at SO #2 from her chair as he approached from her left side and then flailed her limbs as the officers pulled her to the ground. The officers had grabbed her arms and forced her from the chair. The subject officials then each had occasion to use force during the struggle on the ground. SO #2 delivered a single kick to the Complainant’s lower body or abdominal area, followed by a punch to one of her legs. SO #1 is said to have used “empty hand control” techniques. WO #1 had fallen and was pinned beneath the Complainant’s legs – she did not contribute as an active participant in the struggle in the ground.
SO #2 and SO #1 eventually wrestled control of the Complainant’s arms and handcuffed them behind her back. She was lifted to her feet and escorted to SO #1’s cruiser for transportation to the station.
On June 28, 2021, the Complainant attended hospital and was diagnosed with fractures of two right-sided ribs.
At about 11:30 a.m. of June 24, 2021, HPS officers – SO #2, SO #1 and WO #1 – were dispatched to a home near Fennel Avenue East and Upper Gage Avenue, Hamilton. They were there following a call from the homeowner – the CW – complaining that the Complainant – a former partner – had broken a window and was refusing to leave the property.
The officers arrived at the address to find the Complainant sitting on a lawn chair in the backyard. Told that she would have to leave, the Complainant demurred and threatened the officers with violence if they tried to have her removed. She then followed through with her threat as the officers moved in to take hold of her person.
The Complainant kicked at SO #2 from her chair as he approached from her left side and then flailed her limbs as the officers pulled her to the ground. The officers had grabbed her arms and forced her from the chair. The subject officials then each had occasion to use force during the struggle on the ground. SO #2 delivered a single kick to the Complainant’s lower body or abdominal area, followed by a punch to one of her legs. SO #1 is said to have used “empty hand control” techniques. WO #1 had fallen and was pinned beneath the Complainant’s legs – she did not contribute as an active participant in the struggle in the ground.
SO #2 and SO #1 eventually wrestled control of the Complainant’s arms and handcuffed them behind her back. She was lifted to her feet and escorted to SO #1’s cruiser for transportation to the station.
On June 28, 2021, the Complainant attended hospital and was diagnosed with fractures of two right-sided ribs.
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 430, Criminal Code -- Mischief to Property
430 (1) Every one commits mischief who wilfully
(a) destroys or damages property;(b) renders property dangerous, useless, inoperative or ineffective;(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
Section 2, Trespass to Property Act -- Trespass an offence
2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
is guilty of an offence and on conviction is liable to a fine of not more than $10,000.
(2) It is a defence to a charge under subsection (1) in respect of premises that is land that the person charged reasonably believed that he or she had title to or an interest in the land that entitled him or her to do the act complained of.
Section 9, Trespass to Property Act – Arrest without warrant on premises
9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer.
Analysis and Director's Decision
The Complainant reportedly suffered serious injuries in the course of her arrest by HPS officers on June 24, 2021. Two of the officers – SO #1 and SO #2 – were identified as subject officials in the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that SO #1 and SO #2 committed a criminal offence in connection with the Complainant’s arrest.
The incident involved the second of the Complainant’s two arrests on the day in question. The police had received a call from the CW at about 2:10 a.m. that the Complainant was refusing to leave his property. On that occasion, the Complainant was arrested without incident under the Mental Health Act and taken to hospital for examination.
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.
SO #2, SO #1 and WO #1 had lawful grounds to arrest the Complainant for ‘trespass’ and ‘mischief’ under sections 2 and 9 of the Trespass to Property Act, and section 430(1) of the Criminal Code, respectively. Having spoken with the CW about the broken window, and in light of the Complainant’s refusal to leave the property, the officers were within their rights in taking the Complainant into custody.
If believed, the Complainant’s account of what transpired amounts to an assault, but it would be unwise and unsafe to rest charges on her evidence given her poor recall of the events in question and other frailties associated with her allegations. In their totality, I am satisfied that they render the Complainant’s allegations insufficiently reliable to warrant being put to the test by a trier-of-fact.
While the officers’ evidence is not without its own warts, I am satisfied that it is a more accurate description of what occurred with the Complainant. SO #2 says that the Complainant was on her back when she kicked at him. In contrast, WO #1 suggests that the Complainant was in a prone position at the time. Be that as it may, what is clear from their evidence is that the Complainant kicked at SO #2, and that the officer responded by delivering a single kick to the Complainant’s lower body or abdominal area. Thereafter, SO #2 delivered a punch to one of the Complainant’s legs as she refused to release her arms from under her chest, and SO #1 applied an unspecified degree of force as well to subdue the Complainant and wrestle control of her arms. Once handcuffed, no further force was used. On this record, I am unable to reasonable conclude that the force used by the officers amounted to a disproportionate response in light of the nature and extent of the Complainant’s resistance.
For the foregoing reasons, while I accept that the Complainant’s injuries might well have been incurred in the struggle with the subject officials, I am not satisfied that they are attributable to unlawful conduct on the part of SO #2 and SO #1. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: May 10, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The incident involved the second of the Complainant’s two arrests on the day in question. The police had received a call from the CW at about 2:10 a.m. that the Complainant was refusing to leave his property. On that occasion, the Complainant was arrested without incident under the Mental Health Act and taken to hospital for examination.
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.
SO #2, SO #1 and WO #1 had lawful grounds to arrest the Complainant for ‘trespass’ and ‘mischief’ under sections 2 and 9 of the Trespass to Property Act, and section 430(1) of the Criminal Code, respectively. Having spoken with the CW about the broken window, and in light of the Complainant’s refusal to leave the property, the officers were within their rights in taking the Complainant into custody.
If believed, the Complainant’s account of what transpired amounts to an assault, but it would be unwise and unsafe to rest charges on her evidence given her poor recall of the events in question and other frailties associated with her allegations. In their totality, I am satisfied that they render the Complainant’s allegations insufficiently reliable to warrant being put to the test by a trier-of-fact.
While the officers’ evidence is not without its own warts, I am satisfied that it is a more accurate description of what occurred with the Complainant. SO #2 says that the Complainant was on her back when she kicked at him. In contrast, WO #1 suggests that the Complainant was in a prone position at the time. Be that as it may, what is clear from their evidence is that the Complainant kicked at SO #2, and that the officer responded by delivering a single kick to the Complainant’s lower body or abdominal area. Thereafter, SO #2 delivered a punch to one of the Complainant’s legs as she refused to release her arms from under her chest, and SO #1 applied an unspecified degree of force as well to subdue the Complainant and wrestle control of her arms. Once handcuffed, no further force was used. On this record, I am unable to reasonable conclude that the force used by the officers amounted to a disproportionate response in light of the nature and extent of the Complainant’s resistance.
For the foregoing reasons, while I accept that the Complainant’s injuries might well have been incurred in the struggle with the subject officials, I am not satisfied that they are attributable to unlawful conduct on the part of SO #2 and SO #1. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: May 10, 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.