SIU Director’s Report - Case # 23-OCI-207
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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 injury 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 injury of a 40-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On May 31, 2023, at 3:32 a.m., the Hamilton Police Service (HPS) notified SIU of an injury to the Complainant. According to HPS, on May 30, 2023, at 9:30 p.m., police officers were requested to attend the area of Upper Sherman Avenue and Munn Street in connection with a ‘prowl by night’ investigation. Police officers responded along with the Police Services Dog Unit and established a track to locate the Complainant. At approximately 10:31 p.m., police officers located the Complainant in the rear yard of an address on Queensdale Avenue East. He resisted arrest and the police officers grounded him resulting in a cut to his face. Police officers transported him to St. Joseph’s Hospital (SJH) where he was diagnosed with a fractured orbital bone.
The Team
Date and time team dispatched: 05/31/2023 at 10:31 a.m.Date and time SIU arrived on scene: 05/31/2023 at 12:31 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
40-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on June 1, 2023.
Subject Official (SO)
SO Unavailable for interview.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed between June 30, 2023, and August 11, 2023.
Evidence
The Scene
The interaction occurred in the backyard of a residence on Queensdale Avenue East.On June 1, 2023, at 3:00 p.m., SIU investigators attended and located the scene. Near the side door, there was a stain consistent with dried blood, about 15 or 20 centimetres in width.
Video/Audio/Photographic Evidence [2]
HPS Radio Communications
In the evening of May 30, 2023, a police dispatcher asked that police officers attend an address in the area of Upper Sherman Avenue and Munn Street for a ‘prowler in progress’. At 10:26 p.m., WO #3 said he was still checking yard to yard.
At 10:31 p.m., WO #3 said the Complainant was in custody.
At 10:37 p.m., WO #4 requested an ambulance for the Complainant, who was bleeding from the cheek.
The remainder of the police radio transmissions related to the transportation of the Complainant to SJH, holding the arrest scene, the movements of the involved police officers after the interaction, and the HPS investigation. They were of no significance to the SIU investigation.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the HPS on June 14, 2023:- Event Chronology;
- General Report;
- Subject Profile;
- Communications recording;
- Notes – WO #2;
- Notes – WO #1;
- Notes – WO #4;
- Notes – WO #3;
- Use of Force Policies; and
- Responding to a Person in Crisis Policies and Procedures.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources: - Medical records for the Complainant from SJH, received on June 6, 2023.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and officers who participated in his arrest, gives rise to the following scenario. The subject officer was unavailable for an interview.
At about 10:00 p.m. on May 30, 2023, HPS officers were dispatched to the area of Munn Street and Upper Sherman Avenue. Reports had been received of a person travelling between the houses and garages in the area.
The Complainant was the person of interest. He became aware of the police presence building in the area and took active steps to avoid detection. At about 10:30 p.m., however, he was confronted by officers in the backyard of a house on Queensdale Avenue East.
The SO and WO #2 had entered the backyard of the house on Queensdale Avenue East where they observed the Complainant. The Complainant attempted to escape apprehension by running towards a gate in the fence that led to the front of the house. WO #1 and WO #3, however, were arriving through that same gate at the time; the former grabbed the Complainant and tripped him to the ground. There ensued a struggle before the Complainant was handcuffed and taken into custody.
The Complainant was subsequently taken from the scene to hospital where he was diagnosed with a fractured right orbital bone.
At about 10:00 p.m. on May 30, 2023, HPS officers were dispatched to the area of Munn Street and Upper Sherman Avenue. Reports had been received of a person travelling between the houses and garages in the area.
The Complainant was the person of interest. He became aware of the police presence building in the area and took active steps to avoid detection. At about 10:30 p.m., however, he was confronted by officers in the backyard of a house on Queensdale Avenue East.
The SO and WO #2 had entered the backyard of the house on Queensdale Avenue East where they observed the Complainant. The Complainant attempted to escape apprehension by running towards a gate in the fence that led to the front of the house. WO #1 and WO #3, however, were arriving through that same gate at the time; the former grabbed the Complainant and tripped him to the ground. There ensued a struggle before the Complainant was handcuffed and taken into custody.
The Complainant was subsequently taken from the scene to hospital where he was diagnosed with a fractured right orbital bone.
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 177, Criminal Code – Trespass at night
177 Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by HPS officers on May 30, 2023. One of the arresting 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 and the other officers were within their rights in seeking to arrest the Complainant. Information had been received by police of an individual trespassing on private properties over a period of time, and the Complainant was identified in the area from which the 911 calls originated on private property without a lawful excuse. On this record, it would appear he was subject to arrest for ‘trespassing at night’ under section 177 of the Criminal Code.
There is version of events proffered in the evidence that the Complainant did not resist arrest when he was captured, but was nevertheless punched and kneed repeatedly by an officer prior to being handcuffed. This evidence must be approached with caution due to reliability issues with the account.
The body of evidence proffered by the witness officers paints a story of reasonable force. The Complainant attempted to elude officers in the backyard and was taken to the ground by WO #1, a seemingly sensible tactic to end an individual’s flight from police. Thereafter, when the Complainant refused to free his right arm from underneath him to be handcuffed, he was met by a punch and two to four knee strikes to the head by the SO. The officers had attempted to wrestle the arm free for a period before resorting to the strikes, which came to an end the moment the Complainant released his arm.
In the final analysis, while I accept that the Complainant’s injury was the result of the blows to the head he sustained, I am unable to reasonably conclude that the version of events depicting the use of excessive force by an officer is any more likely to be true than the officers’ account. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: September 28, 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 and the other officers were within their rights in seeking to arrest the Complainant. Information had been received by police of an individual trespassing on private properties over a period of time, and the Complainant was identified in the area from which the 911 calls originated on private property without a lawful excuse. On this record, it would appear he was subject to arrest for ‘trespassing at night’ under section 177 of the Criminal Code.
There is version of events proffered in the evidence that the Complainant did not resist arrest when he was captured, but was nevertheless punched and kneed repeatedly by an officer prior to being handcuffed. This evidence must be approached with caution due to reliability issues with the account.
The body of evidence proffered by the witness officers paints a story of reasonable force. The Complainant attempted to elude officers in the backyard and was taken to the ground by WO #1, a seemingly sensible tactic to end an individual’s flight from police. Thereafter, when the Complainant refused to free his right arm from underneath him to be handcuffed, he was met by a punch and two to four knee strikes to the head by the SO. The officers had attempted to wrestle the arm free for a period before resorting to the strikes, which came to an end the moment the Complainant released his arm.
In the final analysis, while I accept that the Complainant’s injury was the result of the blows to the head he sustained, I am unable to reasonably conclude that the version of events depicting the use of excessive force by an officer is any more likely to be true than the officers’ account. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: September 28, 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]
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.