SIU Director’s Report - Case # 22-OCI-295
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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 the serious injuries of a 40-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 injuries of a 40-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On November 13, 2022, at 8:25 a.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant. According to the HPS, on November 13, 2022, at approximately 6:11 a.m., the HPS were requested to respond to a detox centre in Hamilton for a male, the Complainant, trespassing on the property. Police responded at 6:14 a.m. The Complainant was escorted from the property but, once the police officer returned to his police cruiser, the Complainant followed. When the police officer began to escort the Complainant from the property again, he shoved the police officer in the area of the chest. The police officer grounded the Complainant while attempting to make an arrest, causing him to lose two teeth (root included). The Complainant was transported by ambulance to St. Joseph’s Hospital (SJH) for treatment and was awaiting a computerized tomography scan at the time of notification. The HPS Forensic Services Unit had attended, and examined and photographed the scene due to imminent weather conditions. The Complainant was to be charged with Assault Police and Fail to Leave Premises when directed under the Trespass to Property Act.
The Team
Date and time team dispatched: 11/13/2022 at 9:17 a.m.Date and time SIU arrived on scene: 11/13/2022 at 10:15 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
40-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on November 15, 2022.
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
The civilian witnesses were interviewed between November 13, 2022, and December 9, 2022.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on March 3, 2023.
.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed between November 21, 2022, and December 1, 2022.
Evidence
The Scene
The events in question transpired on the driveway and parking lot of a detox centre in Hamilton.The scene was examined and photographed by the HPS.
Video/Audio/Photographic Evidence [2]
911 Calls to HPS
Call from the Detox CentreThe call-taker asked if the address he had was correct, which CW #1 confirmed. CW #1 indicated the Complainant would not leave; he was intoxicated and using vulgar language. CW #1 said he could not let the Complainant into the building at that time of the morning in his condition. The call-taker asked what the Complainant’s name was. CW #1 had no clue but said that earlier in their conversation the Complainant had said, “[name provided],” but then said he was not sure. CW #1 then said he would ask him. CW #1 was heard to ask, “What’s your name?” and a different male voice said the Complainant’s last name.
CW #1 returned to his conversation with the call-taker and said the Complainant was lying, that is, that he had provided a different name earlier in their communications. The call-taker asked if the Complainant was outside the building at that time. CW #1 said he was still outside and had been banging on the door. The Complainant spoke of an argument with a girlfriend somewhere in the city earlier that night. CW #1 said that the Complainant called him on the telephone prior to arriving, but the call was disconnected. After that call, the Complainant got a taxi and arrived at the detox centre.
The call-taker asked why the Complainant called the detox centre and CW #1 said that he wanted a bed. CW #1 was asked for his name, and he provided the information, along with the telephone number of the detox centre. The call-taker asked CW #1 if the Complainant had any weapons. CW #1 said he did not know, but that the Complainant had been vaping outside the back door.
The call-taker asked where the Complainant had gone, and CW #1 advised he was leaning up against the back door of the building. He believed the Complainant had been utilizing the Wi-Fi from the detox centre as he had just been listening to sports highlights. He said he did not believe the Complainant had anywhere to go, as he had asked if he could come inside to get warm. CW #1 considered granting him access. CW #1 asked the Complainant if he had money to pay for a taxi and he said “no”.
CW #1 commented on the Complainant’s reluctance to leave the property, aware that CW #1 was talking on the telephone to the HPS. When asked if the Complainant had any bags with him, CW #1 replied he had none. The call-taker advised a police officer would attend the location, but if the situation escalated before the police arrived, CW #1 should call HPS again.
911 Call from the Complainant
The call was placed at approximately 5:45 a.m., according to HPS records, and lasted five minutes and 25 seconds. The Complainant identified himself by first name and said he was sorry to waste the call-taker’s time, but he had an issue. He reported he had been told he could enter the detox centre, but that he was then denied after he had arrived.
The call-taker asked the Complainant if he had any idea why they were declining him entry. He replied to the call-taker she had to forgive him because he was so confused. He stated he was new to Hamilton and trying to take care of life. Alcohol had become a problem for him, and he said he would very much like for a police officer to come and see him. The call-taker advised the Complainant that they already had a call to the detox centre, and that a police officer would be attending.
The call-taker said she wanted to confirm with the Complainant why he was being denied access to the detox centre. The Complainant replied, “’Cause I’m drunk.” The call-taker inquired with the Complainant as to whether he had been given any alternative options. He replied that he did not know what to do, and that he just wanted to detox. When asked for his full name, he provided it along with his date of birth and address. When asked if he had a local address, he said he was a guest where he was staying, and that he wanted to detox.
The Complainant was told that a police officer had been dispatched to attend to the detox centre and would see him there. The call-taker advised the Complainant that depending on detox centre policies, if people could not be admitted while intoxicated, then police officers would be able to provide him with other options and that the attending police officers would be there soon.
HPS Radio Communications
The times referenced below are approximations. Starting at about 6:12 a.m., HPS Communications Centre asked if a day-shift officer could attend to the detox centre to assist with a trespasser. The SO stated he would attend the call. HPS Communications Centre advised that staff from the detox centre had called complaining there was a male, with the Complainant’s first name, at the back door of the premises. A physical description was provided.
The dispatcher broadcast that a second call to the same address had come in from the Complainant. The Complainant advised the HPS Communications Centre that the detox centre was refusing him because he was intoxicated. A records check revealed he had a positive Criminal Number Index (CNI) and was flagged ‘V’ for violence. He was associated with a number of assaults and aggravated assault.
Starting at about 6:20:30 a.m., the SO said something inaudible.
Starting at about 6:21:27 a.m., the SO said, “Ya can I get a sergeant here please.” An acting sergeant, WO #1, was advised that the SO required his presence at the detox centre, and he acknowledged that he would attend the call.
Starting at about 6:32:44 a.m., the SO said, “Can I get EMS here too please.” HPS Communications Centre acknowledged the request and then asked for details. The SO said that the Complainant had an injury to his mouth. The SO asked for confirmation that the ambulance was coming.
WO #1 requested that two more police officers attend to the detox centre.
An ambulance subsequently arrived on scene.
Video Footage from the Detox Centre
On November 13, 2022, starting at about 5:40 a.m., the Complainant was captured walking towards the rear admitting door of the detox centre, and then standing outside the door. There were lights on inside the entrance and artificial lighting in the parking lot. The Complainant remained outside the rear door, standing and leaning against the wall.Starting at about 6:06:56 a.m., a marked police cruiser [now known to be driven by the SO] travelled on the driveway to the rear parking lot and turned around. The SO stopped near the rear admitting door and sidewalk. The Complainant remained standing at the entrance door. The SO opened his driver door and exited his police cruiser, closed the door, and pointed his right hand towards the Complainant while walking towards him. The SO stopped when he got onto the sidewalk, and appeared to be talking to the Complainant, who was leaning against the wall looking at the SO. The SO pointed his right hand up into the air and moved to the other side of the sidewalk. The SO and the Complainant continued talking to each other.
Starting at about 6:08:17 a.m., the SO walked to the Complainant, used his right hand to pull the Complainant away from the door, and directed him to walk away on the sidewalk. The Complainant stopped and the SO gave him a push to continue walking. The Complainant took a few steps and stopped. The SO gave him a second push to continue walking and followed behind him as they walked out of camera view. The SO was seen giving the Complainant a push from behind at the corner of the driveway. The Complainant stepped onto the driveway and stopped. The SO was pointing with his left hand towards the street while standing apart from the Complainant. It appeared as if the SO was giving the Complainant instructions. The officer put his hand down and then pointed to the street a second time while they continued talking.
Starting at about 6:08:47 a.m., the SO moved to the Complainant on the driveway, grabbed the Complainant’s left arm with his left arm, pointed with his right arm towards the street, and pushed the Complainant with his right arm to walk down the driveway towards the street. The Complainant walked towards the street, with his cell phone illuminated in his hands while he was looking down at it. The SO followed him at a distance and gave him three pushes to continue walking. The view was obstructed by a tree.
Starting at about 6:09:43 a.m., the SO walked back down the driveway alone towards his police cruiser. He got in and closed the driver’s door. The Complainant was seen walking up the driveway towards the rear, with something in his left hand, and travelling out of view.
Starting at about 6:10:02 a.m., the SO started to drive away at about the same time a man [now known to be CW #1] walked out the detox centre admittance door. The SO stopped. CW #1 walked towards the police cruiser and the Complainant walked back on the sidewalk towards the police cruiser. The SO opened his driver’s door, exited, and closed the door. He did not acknowledge CW #1 but faced the Complainant with his left arm pointing up towards him and walked towards him. The SO grabbed the Complainant, who turned around to leave. The SO pushed the Complainant to walk away and followed him off camera. CW #1 remained on the sidewalk and watched at a distance.
Starting at about 6:10:12 a.m., the Complainant came out from behind the building as if pushed and went onto the driveway, followed by the SO who was talking to him. The SO walked to the Complainant on the driveway, grabbed his left arm with his right arm and pointed towards the street with his left arm, and appeared to be speaking to the Complainant. The SO pushed and followed him down the driveway. The Complainant turned and walked backwards towards the street while facing the SO. The SO moved the Complainant’s left hand, and something fell to the ground, which the Complainant picked up before continuing out of camera view. CW #1 walked up the driveway out of view and continued to walk out towards the street following the SO and the Complainant.
Starting at about 6:13:05 a.m., the SO was seen walking back from the street with the Complainant on his right side. The Complainant had his hands handcuffed behind his back. CW #1 walked along the fence line towards the back lot. The SO walked back to his police cruiser with the Complainant on his right side. They stood at the rear passenger door of the cruiser. CW #1 walked into view along the fence continuing to watch while the SO was talking and patting down the Complainant. The SO opened his rear passenger door and shone a light with his left hand, and the Complainant sat down inside the rear seat. The SO closed the rear door while the light was still on. He opened and closed his front door and then turned off the light and walked towards two other uniform police officers who had arrived and were parked on the driveway.
The SO and the two police officers walked down the driveway towards the street and then returned to the back lot. CW #1 walked from the fence onto the rear sidewalk and was approached by the SO and the two other police officers. The SO continued to his front passenger door, opened the door, appeared to double-lock the rear door, and then entered his police cruiser, after which the cruiser backed up and stopped by the back fence. The SO exited his police cruiser and walked around to the rear passenger door, opened the door, and leaned in to talk to the Complainant with a light illuminated in one hand. CW #1 remained standing at the corner with the two other police officers.
The SO stood at his rear open passenger door with a light illuminated in his hand.
Starting at about 6:17:17 a.m., the SO closed his rear door and walked towards CW #1 and the two other police officers. CW #1 remained with the two police officers talking. The SO walked back into view towards his police cruiser and then turned around and walked out of view. CW #1 remained standing on the sidewalk. The SO walked to his police cruiser, got into the driver’s seat, and drove away from the back lot. A police officer walked into the building with CW #1.
Video Footage from Business #1
Starting at about 6:09:15 a.m., a marked HPS police cruiser [now known to be driven by the SO] travelled along the driveway of the detox centre towards the rear entrance parking lot. Starting at about 6:10:55 a.m., the SO walked from the rear of the building behind the Complainant to the driveway. They stood talking and then the SO pushed the Complainant’s arm, and they both walked towards the street.
Starting at about 6:11:13 a.m., the SO walked on the driveway behind the Complainant, who was looking down at his cell phone as he walked towards the street. The SO followed behind and put his right hand onto the Complainant twice to push him forward towards the street. The SO followed the Complainant and, at 6:11:31 a.m., they walked out of camera view.
Starting at about 6:11:47 a.m., the SO walked on the driveway by himself back towards his police cruiser.
Starting at about 6:12:06 a.m., the Complainant came into view walking on the driveway behind the SO and out of view. The SO walked behind the detox centre towards the admittance entrance, and the Complainant walked behind the building following the SO.
Starting at about 6:12:35 a.m., the SO followed the Complainant from behind the building onto the driveway. The Complainant was walking on the driveway followed by the SO. The Complainant turned around to face the SO while walking backwards holding a cell phone in his left hand. The SO used his right hand to hit the phone, and the phone fell to the ground. The SO pushed the Complainant away from him. They separated and then the Complainant walked to the left of the SO and picked up the phone from the ground. The SO pointed towards the road and waited.
Starting at about 6:12:52 a.m., the Complainant walked towards the SO, who used his right hand to push the Complainant away from him and towards the street. The Complainant walked backwards towards the street, facing the SO, holding his cell phone up in his right hand pointed at the SO’s face. The SO pushed the Complainant towards the street following him out of camera view at 6:13:07 a.m.
Starting at about 6:13:25 a.m., the SO came into view walking backwards. His body was not completely visible; his lower body was captured. The SO grabbed the Complainant and turned to his left, throwing the Complainant to the ground on the driveway at 6:13:29 a.m. The SO knelt on top of the Complainant. He put the Complainant’s hands behind his back, applied handcuffs, and appeared to talk into his portable radio.
Starting at about 6:14:15 a.m., the SO stood up from the Complainant. The Complainant was seen rolling on the ground while the SO rubbed his hands and leaned over saying something. CW #1 walked on the driveway by the fence watching the SO standing above the Complainant. The SO assisted the Complainant up to a sitting position while standing on the right side of the Complainant and then behind him as CW #1 continued to watch. It appeared the SO was talking to the Complainant.
Starting at about 6:15:00 a.m., the Complainant rose to his feet as the SO helped him from behind. The SO held onto the Complainant’s left arm with his right hand and picked up something from the ground. The SO maintained a hold of the Complainant with his right hand while he walked the Complainant back towards his police cruiser. They walked out of view at 6:15:27 a.m.
Video Footage from Residence #1
The times referenced below are approximations.Starting at about 6:14:18 a.m., November 13, 2022, a marked police cruiser was captured turning onto the driveway of the detox centre, where it travelled to the back of the building.
Starting at about 6:16:28 a.m., the Complainant walked on the driveway by a tree towards the sidewalk. The SO walked on the left side of the Complainant. They both walked to the street. The Complainant turned to the right and it appeared the SO gave him a push with his right hand to walk away.
Starting at about 6:16:48 a.m., the SO walked back up the driveway towards the rear of the building and out of sight. The Complainant remained standing on the sidewalk and appeared to be looking at his cell phone.
Starting at about 6:17:17 a.m., the Complainant began walking back up the driveway in the same direction as the SO and went out of sight.
Starting at about 6:18:03 a.m., the Complainant walked backwards on the driveway towards the street, with the SO following him closely. As they got closer to the sidewalk, the SO pushed the Complainant in the chest twice, and they continued to walk to the sidewalk. The SO was up close to the Complainant. The Complainant moved away from the SO and then moved back towards him. The SO appeared to push the Complainant away and then turned and began to walk up the driveway back towards the admittance area. The officer then stopped and turned to face the Complainant.
Starting at about 6:18:30 a.m., the SO moved towards the Complainant, stepped back and used his right arm to reach out and grab the Complainant by his left arm, and threw the Complainant down to the driveway over his left leg and hip. The Complainant landed front first. The SO straddled the Complainant’s back and handcuffed him with his hands behind his back. The SO stood up beside the Complainant and assisted him to his feet. Both then walked back up the driveway towards the admittance area.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the HPS between November 15, 2022, and March 15, 2023:- Statement of CW #1 to HPS;
- Record of computer-assisted dispatch;
- Event Chronology;
- Offline CPIC Check;
- CNI;
- Communications recordings;
- General Report;
- HPS Charges – the Complainant;
- Notes-WO #1;
- Notes-WO #2;
- Notes-WO #3;
- HPS Policy-Arrest Procedures;
- HPS Policy-Use of Force and Equipment;
- HPS Communications Standard Procedure Guide 2023;
- HPS Priority Response System;
- HPS Sudden Death Report;
- Mobile Data Terminal - messages; and
- Use of Force Certifications–the SO.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources: - Incident Report from Detox Centre;
- Copy of Intake Form-Detox Centre;
- Addiction Service Admission Criteria-Detox Centre;
- Medical Report from SJH;
- Ambulance Call Report;
- Ministry of Finance Video Enhancement Report;
- Call Log from Blueline Taxi Company;
- Video footage from the Detox Centre;
- Video footage from Business #1;
- Cell phone video footage from the Complainant; and
- Video footage from Residence #1.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant, the SO and a civilian eyewitness, and video footage that captured the incident in parts, gives rise to the following scenario.
In the morning of November 13, 2022, the SO travelled to a detox centre in Hamilton. An employee of the centre – CW #1 – had contacted police to report that a belligerent and intoxicated male - the Complainant - was outside the building, banging on the door and refusing to leave. Shortly thereafter, a second 911 call was received by police, this time from the Complainant. He explained that he had been denied entry at the centre and was confused, as he had earlier called and been told there was a bed available for him.
The SO arrived at the address and travelled in his cruiser on the driveway to where the facility’s back door was located. The officer pulled up beside the Complainant, confirmed his identity, and then directed him to leave the property. When the Complainant refused to leave, indicating that he wished to talk about the situation, the SO exited his cruiser and approached the Complainant. The two stood by the facility’s door, the officer continuing to direct the Complainant off the property, and the Complainant refusing to do so.
After a period, the SO grabbed a hold of the Complainant, pulled him away from the door, and began to escort him around the corner of the building and down the driveway towards the street. The Complainant protested the whole way, occasionally stopping in his tracks, on which occasions the SO would push him forward. On other occasions, the officer used his right arm to nudge the Complainant forward as they made their way towards the street. Once on the sidewalk by the roadway, the SO told the Complainant he was not to return to the detox centre as he would be trespassing, after which he walked back towards his cruiser.
The Complainant idled a moment on the street and then made his way to the rear of the detox centre again. He believed he had a right to be there and was not satisfied with having been evicted from the premises. The Complainant decided to approach the officer to ask for his identification.
The SO confronted the Complainant, told him again to leave, and pushed him away. The Complainant stumbled forward and turned around to face the officer, at which point the SO grabbed him by the left arm and walked him several steps down the driveway. This was followed by an additional push as the Complainant turned sideways to address the officer, and at least one more push to the Complainant’s torso as he turned to face the officer while walking backwards towards the road. As he continued backwards a few steps away from the sidewalk, the SO swatted a mobile phone that the Complainant had been holding. The Complainant stopped to pick up the phone as the officer pointed him in the direction of the street. The SO again grabbed the Complainant’s left arm and walked him down the driveway several more steps before letting go. The two continued in tandem down the driveway – each facing the other and no more than a metre apart. It appeared that the Complainant was video recording the officer with his mobile phone. The SO pushed the Complainant in the chest one last time as the latter reached the sidewalk before turning to walk back up the driveway.
The Complainant, frustrated and upset with his treatment, did not remain on the sidewalk. As the SO turned to walk away from him, the Complainant followed. When the officer turned to confront him, the Complainant touched the SO in the chest with his left hand. Within moments, the SO grabbed him by the left arm and threw him to the ground over the officer’s right leg that he had extended in front of the Complainant.
Following the takedown, the SO secured the Complainant in handcuffs behind the back and walked him back to his cruiser, placing him inside the vehicle. The Complainant was bleeding from the mouth and had lost teeth. The officer called for paramedics and a senior officer to the scene.
The Complainant was transported to hospital and diagnosed with multiple avulsed teeth and comminuted fracture of the anterior maxilla.
In the morning of November 13, 2022, the SO travelled to a detox centre in Hamilton. An employee of the centre – CW #1 – had contacted police to report that a belligerent and intoxicated male - the Complainant - was outside the building, banging on the door and refusing to leave. Shortly thereafter, a second 911 call was received by police, this time from the Complainant. He explained that he had been denied entry at the centre and was confused, as he had earlier called and been told there was a bed available for him.
The SO arrived at the address and travelled in his cruiser on the driveway to where the facility’s back door was located. The officer pulled up beside the Complainant, confirmed his identity, and then directed him to leave the property. When the Complainant refused to leave, indicating that he wished to talk about the situation, the SO exited his cruiser and approached the Complainant. The two stood by the facility’s door, the officer continuing to direct the Complainant off the property, and the Complainant refusing to do so.
After a period, the SO grabbed a hold of the Complainant, pulled him away from the door, and began to escort him around the corner of the building and down the driveway towards the street. The Complainant protested the whole way, occasionally stopping in his tracks, on which occasions the SO would push him forward. On other occasions, the officer used his right arm to nudge the Complainant forward as they made their way towards the street. Once on the sidewalk by the roadway, the SO told the Complainant he was not to return to the detox centre as he would be trespassing, after which he walked back towards his cruiser.
The Complainant idled a moment on the street and then made his way to the rear of the detox centre again. He believed he had a right to be there and was not satisfied with having been evicted from the premises. The Complainant decided to approach the officer to ask for his identification.
The SO confronted the Complainant, told him again to leave, and pushed him away. The Complainant stumbled forward and turned around to face the officer, at which point the SO grabbed him by the left arm and walked him several steps down the driveway. This was followed by an additional push as the Complainant turned sideways to address the officer, and at least one more push to the Complainant’s torso as he turned to face the officer while walking backwards towards the road. As he continued backwards a few steps away from the sidewalk, the SO swatted a mobile phone that the Complainant had been holding. The Complainant stopped to pick up the phone as the officer pointed him in the direction of the street. The SO again grabbed the Complainant’s left arm and walked him down the driveway several more steps before letting go. The two continued in tandem down the driveway – each facing the other and no more than a metre apart. It appeared that the Complainant was video recording the officer with his mobile phone. The SO pushed the Complainant in the chest one last time as the latter reached the sidewalk before turning to walk back up the driveway.
The Complainant, frustrated and upset with his treatment, did not remain on the sidewalk. As the SO turned to walk away from him, the Complainant followed. When the officer turned to confront him, the Complainant touched the SO in the chest with his left hand. Within moments, the SO grabbed him by the left arm and threw him to the ground over the officer’s right leg that he had extended in front of the Complainant.
Following the takedown, the SO secured the Complainant in handcuffs behind the back and walked him back to his cruiser, placing him inside the vehicle. The Complainant was bleeding from the mouth and had lost teeth. The officer called for paramedics and a senior officer to the scene.
The Complainant was transported to hospital and diagnosed with multiple avulsed teeth and comminuted fracture of the anterior maxilla.
Relevant Legislation
Section 2(1), 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.
Section 35, Criminal Code – Defence – Property
35 (1) A person is not guilty of an offence if
(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;(b) they believe on reasonable grounds that another person
(i) is about to enter, is entering or has entered the property without being entitled by law to do so,(ii) is about to take the property, is doing so or has just done so, or(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
(c) the act that constitutes the offence is committed for the purpose of
(i) preventing the other person from entering the property, or removing that person from the property, or(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and
(d) the act committed is reasonable in the circumstances.
(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.
(3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
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 a HPS officer on November 13, 2022. [3] The arresting 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 grounds to believe the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.
The SO was lawfully placed and in the execution of his duties from the moment he arrived to deal with the Complainant until the moment he decided to force him to the ground. Despite clear and repeated advice that he was not welcome on the property of the facility and had to leave, the Complainant refused to do so. He had effectively become a trespasser on the premises of the detox centre under section 2 of the Trespass to Property Act, and was therefore subject to forcible removal. In essence, this is what the SO did on each of the two occasions that he escorted the Complainant down the driveway onto the sidewalk, occasionally holding and pushing the Complainant along the way. Though some of those pushes may have been more forceful than were strictly necessary to usher the Complainant off the property, I am unable to reasonably conclude that the force used by the officer was unreasonable. The Complainant was not a willing participant in his eviction. He dragged his feet, stopped moving on occasions, and even returned onto the property after first being escorted off the driveway. On this record, I accept that the force used by the SO on these occasions was justified pursuant to section 35 of the Criminal Code.
With respect to the takedown that caused the Complainant’s injuries, the operative provision of the Criminal Code is section 25. It provides that 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.
When the Complainant touched the SO’s chest, he rendered himself subject to arrest for assault. In the circumstances, the officer 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 forceful grounding, I am satisfied that it was legally justified. While the officer might have adopted a different tactic – a verbal request that the Complainant surrender his arms to be handcuffed or a physical engagement with him on his feet – the option he chose would appear to have been a legitimate one in the circumstances. The Complainant’s defiance had been escalating. He refused to remove himself willingly from the property and had approached the officer and touched his chest just before the takedown. That act of intentional contact with the officer, in my view, had upped the ante to the point that the SO could reasonably fear a continuation of the assault if he did not take immediate action to deter the Complainant. On this record, a takedown makes sense as it would immediately place the officer in a better position to manage any further aggression on the part of the Complainant. In arriving at this finding, I am mindful that the law does not require officers in potentially dangerous situations to measure their use of force with precision; what is required is a reasonable response, not an exacting one: R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA).
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 charges in this case. The file is closed.
Date: September 8, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The SO was lawfully placed and in the execution of his duties from the moment he arrived to deal with the Complainant until the moment he decided to force him to the ground. Despite clear and repeated advice that he was not welcome on the property of the facility and had to leave, the Complainant refused to do so. He had effectively become a trespasser on the premises of the detox centre under section 2 of the Trespass to Property Act, and was therefore subject to forcible removal. In essence, this is what the SO did on each of the two occasions that he escorted the Complainant down the driveway onto the sidewalk, occasionally holding and pushing the Complainant along the way. Though some of those pushes may have been more forceful than were strictly necessary to usher the Complainant off the property, I am unable to reasonably conclude that the force used by the officer was unreasonable. The Complainant was not a willing participant in his eviction. He dragged his feet, stopped moving on occasions, and even returned onto the property after first being escorted off the driveway. On this record, I accept that the force used by the SO on these occasions was justified pursuant to section 35 of the Criminal Code.
With respect to the takedown that caused the Complainant’s injuries, the operative provision of the Criminal Code is section 25. It provides that 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.
When the Complainant touched the SO’s chest, he rendered himself subject to arrest for assault. In the circumstances, the officer 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 forceful grounding, I am satisfied that it was legally justified. While the officer might have adopted a different tactic – a verbal request that the Complainant surrender his arms to be handcuffed or a physical engagement with him on his feet – the option he chose would appear to have been a legitimate one in the circumstances. The Complainant’s defiance had been escalating. He refused to remove himself willingly from the property and had approached the officer and touched his chest just before the takedown. That act of intentional contact with the officer, in my view, had upped the ante to the point that the SO could reasonably fear a continuation of the assault if he did not take immediate action to deter the Complainant. On this record, a takedown makes sense as it would immediately place the officer in a better position to manage any further aggression on the part of the Complainant. In arriving at this finding, I am mindful that the law does not require officers in potentially dangerous situations to measure their use of force with precision; what is required is a reasonable response, not an exacting one: R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 CCC (2d) 96 (Ont. CA).
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 charges in this case. The file is closed.
Date: September 8, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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]
- 3) The Complainant passed away on January 14, 2023, of causes unconnected to the injuries he incurred on November 13, 2022. [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.