SIU Director’s Report - Case # 23-OCI-172
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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 section 14 (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 37-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 37-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On May 6, 2023, at 1:03 a.m., the Hamilton Police Service (HPS) contacted the SIU with the following information.On May 5, 2023, at 9:09 p.m., the Complainant became involved in a dispute with patrons at the George Hamilton Restaurant and Brewery, 152 King Street West, Hamilton. As the interaction escalated, the Complainant was observed to wave what appeared to be a firearm in the air. He fled the restaurant and, a short time later, was observed in the area of Bay Street and King Street in Hamilton. At 9:15 p.m., the Complainant was located by police and grounded during the arrest. Police observed an obvious injury to his face as a result of the arrest and requested that Emergency Medical Services transport him to hospital for assessment. The Complainant was taken to the Hamilton General Hospital and diagnosed with a fractured nose.
The Team
Date and time team dispatched: 05/06/2023 at 1:39 a.m.Date and time SIU arrived on scene: 05/06/2023 at 3:00 a.m.
Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
37-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on May 6, 2023.
Civilian Witnesses
CW InterviewedSubject Officials
SO Interviewed, and notes received and reviewedThe SO was interviewed on June 13, 2023.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
The witness officials were interviewed between May 10, 2023, and May 16, 2023.
Evidence
The Scene
The events in question transpired in and around the intersection of Bay Street and King Street West, Hamilton.On May 6, 2023, at 3:00 a.m., a SIU forensic investigator attended the area of King Street West and Bay Street. The scene had been secured by HPS. The northeast corner was marked off with scene tape.
King Street West was a five-lane, one-way (westbound) asphalt-paved roadway with a concrete curb and sidewalks to the north and south sides. Bay Street was a five-lane, one-way (northbound) asphalt-paved roadway with one dedicated two-way bicycle lane on the west side, a concrete curb, and sidewalks on the east and west sides.
Physical Evidence
On May 6, 2023, a SIU forensic investigator attended HPS Central Station and was given access to photograph the Complainant to document his injuries. The Complainant had suffered a fractured nose. There was swelling and bruising of the nose, extending to the left side of his face and cheek area. Video/Audio/Photographic Evidence [1]
911 Call
On May 9, 2023, the SIU received an audio file from HPS containing the 911 call related to their interaction with the Complainant on May 5, 2023. There was no time or date stamp included in the recording.On May 5, 2023, a male called 911 and requested that police attend Bay Street North and King Street West. He reported that another male was flashing a gun “or something like that”. He confirmed he had seen the firearm. He described the male as a white man wearing a white hoodie, and said he believed the Complainant had put the firearm in the left pocket of the hoodie. He believed the firearm to be a BB gun because it did not look heavy. The Complainant had not fired any shots.
The caller subsequently advised the 911 dispatcher when police arrived on scene. He refused to identify himself and said he did not want to be involved. He remained on the line and confirmed the firearm was still in the Complainant’s pocket. He also confirmed the Complainant was by himself. He then stated the Complainant was reaching into a bag, and he was asked to let the 911 dispatcher know if anything was pulled out of the bag.
The 911 caller said something that sounded like, “He just pulled it again.” The 911 dispatcher asked him to clarify. He told her police had come and disconnected the call before she could clarify.
Video Footage - McMaster University
On May 10, 2023, the SIU received video footage from the cameras located in a McMaster University parking lot on the south side of King Street West, east of Bay Street North. The footage was from May 5, 2023, between 9:00 p.m., and 9:30 p.m.The footage was reviewed. It did not capture the incident under investigation, nor did it yield evidence to advance the investigation.
Materials Obtained from Police Service
The SIU obtained the following records from the HPS between May 6, 2023, and May 15, 2023:- Policy – Use of Force;
- Arrest / Booking Report;
- Date from conducted energy weapon (CEW);
- Event Chronology Report;
- Exhibit Report;
- WO #3 - Notes;
- WO #6 - Notes;
- WO #4 - Notes;
- WO #5 - Notes;
- WO #7 - Notes;
- WO #2 - Notes;
- WO #1 - Notes;
- SO - Notes;
- General Report;
- Subject Profile – the Complainant;
- Supplement Report; and
- Use of Force Certification – the SO.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources: - The Complainant’s medical records from the HGH; and
- Video footage – McMaster University.
Incident Narrative
The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.
In the evening of May 5, 2023, HPS officers were dispatched to the intersection of Bay Street and King Street West, Hamilton. A 911 call had been received by police about a male waving a gun in the area.
The male was the Complainant. He was in possession at the time of a BB gun.
WO #4 was the first officer on scene. He stopped his cruiser, emergency lights flashing, in the intersection facing north, exited, and confronted the Complainant. The Complainant was by the northeast corner of the intersection. He had placed his ‘gun’ in the front pocket of the sweater he was wearing. From the driver’s side of his cruiser, WO #4 pointed his firearm at the Complainant and ordered him to the ground.
Additional officers began to arrive on scene, among them the SO. The officer parked his cruiser on Bay Street North, south of Market Street, and began to make his way southward on foot towards King Street West. The SO observed the Complainant on the northeast corner of the intersection, and then noted as he neared WO #4 and eventually lowered himself to the ground. The SO, running towards the Complainant from behind, pushed him in the back with both hands. The Complainant was knocked forward, striking his face on the ground and losing consciousness.
Other officers moved in and assisted in handcuffing the Complainant’s arms behind the back. The Complainant was placed in the recovery position and paramedics were called to the scene. A search of his person revealed the presence of a BB gun.
The Complainant regained consciousness and was diagnosed with a fractured nose at hospital.
In the evening of May 5, 2023, HPS officers were dispatched to the intersection of Bay Street and King Street West, Hamilton. A 911 call had been received by police about a male waving a gun in the area.
The male was the Complainant. He was in possession at the time of a BB gun.
WO #4 was the first officer on scene. He stopped his cruiser, emergency lights flashing, in the intersection facing north, exited, and confronted the Complainant. The Complainant was by the northeast corner of the intersection. He had placed his ‘gun’ in the front pocket of the sweater he was wearing. From the driver’s side of his cruiser, WO #4 pointed his firearm at the Complainant and ordered him to the ground.
Additional officers began to arrive on scene, among them the SO. The officer parked his cruiser on Bay Street North, south of Market Street, and began to make his way southward on foot towards King Street West. The SO observed the Complainant on the northeast corner of the intersection, and then noted as he neared WO #4 and eventually lowered himself to the ground. The SO, running towards the Complainant from behind, pushed him in the back with both hands. The Complainant was knocked forward, striking his face on the ground and losing consciousness.
Other officers moved in and assisted in handcuffing the Complainant’s arms behind the back. The Complainant was placed in the recovery position and paramedics were called to the scene. A search of his person revealed the presence of a BB gun.
The Complainant regained consciousness and was diagnosed with a fractured nose at hospital.
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 May 5, 2023. One of the officers – the SO – was identified as the subject official in the ensuing SIU investigation of the incident. 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 SO, aware of the information that had been received via the 911 call about a male – the Complainant – waving a gun around at the intersection of Bay Street and King Street West, was within his rights in seeking to take the Complainant into custody.
With respect to the force used by the SO in aid of the Complainant’s arrest, namely, a tackle of sorts to the ground, I am satisfied that it was legally justified. While the Complainant was on the ground at the time, he was not completely on the ground. That is, the evidence indicates he was on his hands and knees, and, therefore, still in a position to access the gun he had in the pocket of his sweater. Though the gun was, in fact, a BB gun, the SO would not have known that. In the circumstances, it was imperative that the Complainant be subdued at the earliest opportunity to prevent what he believed to be an actual gun from being accessed and, possibly, used. A push from behind to completely flatten the Complainant on the ground would do just that without the use of any weapons or need for any strikes, such as punches, kicks, or knees. On this record, while it is regrettable that the Complainant temporarily lost consciousness and broke his nose when he was knocked to the ground, I am unable to reasonably conclude that the force used by the SO was excessive in light of the exigencies of the moment.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his dealings with the Complainant, there is no basis for proceeding with chares in this case. The file is closed.
Date: September 1, 2023
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, aware of the information that had been received via the 911 call about a male – the Complainant – waving a gun around at the intersection of Bay Street and King Street West, was within his rights in seeking to take the Complainant into custody.
With respect to the force used by the SO in aid of the Complainant’s arrest, namely, a tackle of sorts to the ground, I am satisfied that it was legally justified. While the Complainant was on the ground at the time, he was not completely on the ground. That is, the evidence indicates he was on his hands and knees, and, therefore, still in a position to access the gun he had in the pocket of his sweater. Though the gun was, in fact, a BB gun, the SO would not have known that. In the circumstances, it was imperative that the Complainant be subdued at the earliest opportunity to prevent what he believed to be an actual gun from being accessed and, possibly, used. A push from behind to completely flatten the Complainant on the ground would do just that without the use of any weapons or need for any strikes, such as punches, kicks, or knees. On this record, while it is regrettable that the Complainant temporarily lost consciousness and broke his nose when he was knocked to the ground, I am unable to reasonably conclude that the force used by the SO was excessive in light of the exigencies of the moment.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his dealings with the Complainant, there is no basis for proceeding with chares in this case. The file is closed.
Date: September 1, 2023
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.