SIU Director’s Report - Case # 22-OCI-179
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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 injury of a 30-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 the serious injury of a 30-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On July 11, 2022, at 10:45 a.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant.The HPS advised that on July 11, 2022, at 12:30 a.m., Witness Official (WO) #2 was patrolling in the area of Barton Street East and Chapple Street, Hamilton, when he observed a man riding a bicycle. The police officer attempted to make conversation with the man, but he ignored the officer and continued riding his bicycle through alleyways. WO #2 attempted to stop the man, and updated police communications by radio as he was not stopping. The Subject Official (SO) and WO #1 arrived to assist, eventually getting the man stopped in an alleyway south of Cannon Street East between Kinrade Avenue and Chestnut Avenue. The man was identified as the Complainant. It was learned that the Complainant had an outstanding bench warrant for his arrest. When the police officers attempted to arrest the Complainant, a struggle ensued. During the arrest, the Complainant was struck twice in the nose. He was taken to Juravinski Hospital and diagnosed with a fractured nose.
The Team
Date and time team dispatched: 07/11/2022 at 12:54 p.m.Date and time SIU arrived on scene: 07/11/2022 at 12:58 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
30-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on July 12, 2022.
Subject Official
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on August 30, 2022.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Not interviewed; notes received and reviewed
The witness officials were interviewed on July 22, 2022.
Evidence
The Scene
The scene was located at the north end of an alleyway that ran north-south off Cannon Street East between Kinrade Avenue and Chestnut Avenue.The SIU did not attend the scene as it had been released prior to SIU notification.
Video/Audio/Photographic Evidence [1]
Police Radio Transmissions
The following is a summary of the pertinent radio communications, as captured on the Event Chronology Report.At about 12:27 a.m., WO #2 radioed that he was trying to stop a male cyclist without lights on his bike.
At about 12:32 a.m., an officer radioed that he was at the “north end of the alleyway”.
At about 12:32 a.m., an officer radioed that the cyclist had been captured.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the HPS between July 12 and 15, 2022:- Weekly Roster July 10-16, 2022;
- Communications recordings;
- Crown Brief - Synopsis;
- General Report;
- HPS Policy - Use of Force and Equipment;
- HPS Policy - Arrest Procedures;
- Email with list of involved officers;
- Event Chronology;
- Notes- WO #1;
- Notes- WO #2; and
- Notes- WO #3.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Medical records for the Complainant.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.
At about 12:27 a.m. of July 11, 2022, WO #2, while in his cruiser on patrol, attempted to stop the Complainant for an apparent Highway Traffic Act infraction. The Complainant was riding a bicycle without the required lighting equipment in the area of Barton Street East and Chapple Street. The Complainant refused to stop and cycled away. He rode west on Barton Street East to Lottridge Street, where he went through a red light, followed by WO #2. WO #2 broadcast what he was doing on police radio and sought assistance from other officers before losing sight of the Complainant.
The SO and his partner, WO #1, heard WO #2’s broadcasts. While travelling west on a side street south of Barton Street East, the officers observed the Complainant cycling eastbound towards them. They stopped their cruiser, exited, and signaled at the Complainant to stop. The Complainant made a U-turn, travelled west a distance, and turned left to cycle south on Sherman Avenue North. The SO returned to the cruiser and chased after the Complainant.
The Complainant travelled south on Sherman Avenue North and then west on Cannon Street East, all the while disregarding the SO’s repeated commands, yelled out the cruiser by the officer, that he stop. Arriving at a north-south alleyway between Kinrade Avenue and Chestnut Avenue, the Complainant turned right onto the alleyway off of Cannon Street East to cycle north.
Unable to make the turn onto the alleyway, the SO drove to the north end of the alleyway to intercept the Complainant. Arriving at the location, the SO again exited the cruiser and signaled at the Complainant to stop as the Complainant closed the distance between them. The Complainant refused to stop. He picked up his speed and attempted to travel past the officer. As the cyclist was just about on him, the SO sidestepped to his left to avoid being struck, and then grabbed a hold of the Complainant’s torso, forcing him off the bike. In the process, the Complainant struck his head on the pavement as the officer fell on top of him.
On the ground, the SO attempted to handcuff the Complainant and then punched him twice in the face when he tried to push the officer off him. Following the punches, the officer took control of the Complainant’s arms and handcuffed them behind his back.
The Complainant was subsequently taken to hospital while in police custody and was diagnosed with a broken nose.
At about 12:27 a.m. of July 11, 2022, WO #2, while in his cruiser on patrol, attempted to stop the Complainant for an apparent Highway Traffic Act infraction. The Complainant was riding a bicycle without the required lighting equipment in the area of Barton Street East and Chapple Street. The Complainant refused to stop and cycled away. He rode west on Barton Street East to Lottridge Street, where he went through a red light, followed by WO #2. WO #2 broadcast what he was doing on police radio and sought assistance from other officers before losing sight of the Complainant.
The SO and his partner, WO #1, heard WO #2’s broadcasts. While travelling west on a side street south of Barton Street East, the officers observed the Complainant cycling eastbound towards them. They stopped their cruiser, exited, and signaled at the Complainant to stop. The Complainant made a U-turn, travelled west a distance, and turned left to cycle south on Sherman Avenue North. The SO returned to the cruiser and chased after the Complainant.
The Complainant travelled south on Sherman Avenue North and then west on Cannon Street East, all the while disregarding the SO’s repeated commands, yelled out the cruiser by the officer, that he stop. Arriving at a north-south alleyway between Kinrade Avenue and Chestnut Avenue, the Complainant turned right onto the alleyway off of Cannon Street East to cycle north.
Unable to make the turn onto the alleyway, the SO drove to the north end of the alleyway to intercept the Complainant. Arriving at the location, the SO again exited the cruiser and signaled at the Complainant to stop as the Complainant closed the distance between them. The Complainant refused to stop. He picked up his speed and attempted to travel past the officer. As the cyclist was just about on him, the SO sidestepped to his left to avoid being struck, and then grabbed a hold of the Complainant’s torso, forcing him off the bike. In the process, the Complainant struck his head on the pavement as the officer fell on top of him.
On the ground, the SO attempted to handcuff the Complainant and then punched him twice in the face when he tried to push the officer off him. Following the punches, the officer took control of the Complainant’s arms and handcuffed them behind his back.
The Complainant was subsequently taken to hospital while in police custody and was 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 62 (1), Highway Traffic Act -- Lamps required on all motor vehicles except motorcycles
62 (1) When on a highway at any time from one-half hour before sunset to one-half hour after sunrise and at any other time when, due to insufficient light or unfavourable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 150 metres or less, every motor vehicle other than a motorcycle shall carry three lighted lamps in a conspicuous position, one on each side of the front of the vehicle which shall display a white or amber light only, and one on the rear of the vehicle which shall display a red light only.Section 218, Highway Traffic Act -- Cyclist to identify self
218 (1) A police officer who finds any person contravening this Act or any municipal by-law regulating traffic while in charge of a bicycle may require that person to stop and to provide identification of himself or herself.
(2) Every person who is required to stop, by a police officer acting under subsection (1), shall stop and identify himself or herself to the police officer.
(3) For the purposes of this section, giving one’s correct name and address is sufficient identification.
(4) A police officer may arrest without warrant any person who does not comply with subsection (2).
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by a HPS officer on July 11, 2022. The officer – the SO – was identified as the subject official in the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable ground 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 SO was within his rights in seeking to arrest the Complainant. Given what he knew of his refusal to stop and identify himself for WO #2 in connection with a Highway Traffic Act offence, the Complainant was subject to arrest by combined operation of section 62 (17) (lights and reflectors on bicycles) and 218 (arrest) of the statute.
I am also satisfied that the force used by the SO, namely, a takedown and two punches to the face, constituted legally justified force. The Complainant had given every indication that he was not about to relent in his flight from the police on the bicycle. In the circumstances, it would appear that a physical takedown from the bicycle was a reasonably available tactic to stop the Complainant, even if it carried some risk of injury coming to the cyclist. Once dispossessed of the bicycle and placed on the ground, the SO could expect to better manage any further efforts by the Complainant to flee. The Complainant did, in fact, continue to try to escape once off the bicycle and was met by two punches to the face. While it is conceivable that the officer might have chosen to assert his manpower by endeavoring to wrestle control of the Complainant without striking him, the SO’s punches fell within a range of reasonable alternatives in light of the dynamics of the situation. In particular, the officer was alone at the time and confronted with an individual who had demonstrated a dogged determination to evade police apprehension. On this record, I am unable to reasonably conclude that the officer acted with excess when he sought to quickly subdue the Complainant with the use of strikes.
In the end, whether the Complainant’s broken nose was the result of the officer’s takedown or punches, I am satisfied the injury was not attributable to unlawful conduct on the part of the SO. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: November 7, 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 SO was within his rights in seeking to arrest the Complainant. Given what he knew of his refusal to stop and identify himself for WO #2 in connection with a Highway Traffic Act offence, the Complainant was subject to arrest by combined operation of section 62 (17) (lights and reflectors on bicycles) and 218 (arrest) of the statute.
I am also satisfied that the force used by the SO, namely, a takedown and two punches to the face, constituted legally justified force. The Complainant had given every indication that he was not about to relent in his flight from the police on the bicycle. In the circumstances, it would appear that a physical takedown from the bicycle was a reasonably available tactic to stop the Complainant, even if it carried some risk of injury coming to the cyclist. Once dispossessed of the bicycle and placed on the ground, the SO could expect to better manage any further efforts by the Complainant to flee. The Complainant did, in fact, continue to try to escape once off the bicycle and was met by two punches to the face. While it is conceivable that the officer might have chosen to assert his manpower by endeavoring to wrestle control of the Complainant without striking him, the SO’s punches fell within a range of reasonable alternatives in light of the dynamics of the situation. In particular, the officer was alone at the time and confronted with an individual who had demonstrated a dogged determination to evade police apprehension. On this record, I am unable to reasonably conclude that the officer acted with excess when he sought to quickly subdue the Complainant with the use of strikes.
In the end, whether the Complainant’s broken nose was the result of the officer’s takedown or punches, I am satisfied the injury was not attributable to unlawful conduct on the part of the SO. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: November 7, 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.