SIU Director’s Report - Case # 23-OCI-310
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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 56-year-old woman (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 56-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU [1]
On August 5, 2023, at 8:44 a.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant.
According to the HPS, at approximately 12:57 a.m. that morning, HPS received a call from a bar that a female patron that had been removed from the premises for being intoxicated was seen getting into a car and driving away. The Subject Official (SO) located the vehicle on Centennial Parkway at Arrowsmith Road. He and Witness Official (WO) #1 conducted a tandem stop. The SO ordered the female driver of the vehicle to exit the car. She did so and collapsed to the ground. The SO picked her up by the arms, placed her against the car and arrested her. The driver – the Complainant – was placed in the SO’s cruiser and taken to Station 30 for a breath test. The Complainant refused to provide a breath sample and was released on a Promise to Appear. She complained of a sore shoulder while still at the police station. Emergency Medical Services responded and transported the Complainant to the Juravinski Hospital (JH) where it was determined that she had a fractured left collarbone. The Complainant was treated and released.
The Team
Date and time team dispatched: 2023/08/05 at 9:30 a.m.
Date and time SIU arrived on scene: 2023/08/05 at 9:45 a.m.
Number of SIU Investigators assigned: 3
The Team
Date and time team dispatched: 2023/08/05 at 9:30 a.m.Date and time SIU arrived on scene: 2023/08/05 at 9:45 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
56-year-old female; interviewed; medical records obtained and reviewedThe Complainant was interviewed on August 18, 2023.
Subject Officials (SO)
SO Interviewed; notes received and reviewedThe subject official was interviewed on September 6, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on September 6, 2023.
Evidence
The Scene
The events in question occurred in and around a Mitsubishi vehicle stopped on Centennial Parkway North in the area of Arrowsmith Drive, Hamilton. Video/Audio/Photographic Evidence [2]
In-car Camera System (ICCS) Footage – The SO’s Cruiser
On August 10, 2023, HPS provided the SIU with the ICCS footage from the SO’s police vehicle. The system recorded video and audio of the interaction from a camera which faced out the front windshield and a second camera which recorded the interior of the rear seat when activated. At 12:55 a.m., August 5, 2023, the video commenced. The SO was captured pulling out of a parking lot and increasing his speed.
At 12:56 a.m., the SO caught up to the Complainant’s red SUV. After turning onto Centennial Parkway, the SO activated the flashing emergency lights and the siren of his cruiser. The Complainant drove at a normal rate of speed and was not stopping. The SO notified the dispatcher.
Starting at about 12:58:19 a.m., at Centennial Parkway and Arrowsmith Road, WO #1 pulled in front of the Complainant and the Complainant stopped in the curb lane just before the stop line. The SO had tried to pull her over for almost two minutes and she had driven over a distance of more than 900 metres. The SO walked to the driver’s door of the Complainant’s vehicle, opened the door, and said, “Get out of the car,” as he grabbed the Complainant and pulled her towards the open door. The Complainant fell out of the car onto the ground on her buttocks. The SO had control of both of her arms as she sat down on the ground in the door opening. The SO pulled the Complainant back a further distance and then assisted her up by pulling her hands over her head. She repeatedly asked, “What are you doing?” The SO moved the Complainant’s hands behind her back. She continued to ask what the SO was doing. The SO told the Complainant she was under arrest for ‘impaired driving’ and ‘fail to stop’. She squirmed back and forth. WO #1 held onto the Complainant’s left arm. The SO handcuffed her hands behind her back. The Complainant was placed into the rear seat of the SO’s police vehicle. She sat herself in the seat; no force was used. The Complainant said multiple times that her shoulder hurt. She said the SO threw her down. The SO drove the Complainant to the police station.
The video ended at 1:46 a.m.
Cell Footage
On August 10, 2023, HPS provided the SIU with the cell footage from the HPS.Starting at about 1:28 a.m., August 5, 2023, the SO drove into the sally port. The SO led the Complainant into a holding a cell. The SO removed the handcuffs. The Complainant appeared to favour her left shoulder, at times holding it with her right hand.
Starting at about 2:42 a.m., the Complainant entered the breath room with WO #2. She constantly had her right hand inside her top and holding her left shoulder.
Starting at about 3:00 a.m., attempts to provide a breath sample were made.
Starting at about 3:03 a.m., the Complainant was led out of the breath room and returned to the holding cell. She was subsequently returned to the breath room where further breath sample attempts were made.
Starting at about 3:10 a.m., the Complainant was led out of the breath room back to the holding cell.
Starting at about 3:33 a.m., the Complainant was led out of the holding cell and met with two paramedics.
Starting at about 3:35 a.m., the Complainant left the station with the paramedics.
The footage ended at 3:36 a.m.
Materials Obtained from Police Service
The SIU obtained the following records from the HPS between August 9, 2023, and September 8, 2023:- ICCS footage;
- Cell footage;
- The SO - notes;
- WO #1 - notes;
- WO #2 - notes;
- Alcohol Drug Influence Report;
- HPS statement from bar owner; and
- HPS Use of Force policy.
Materials Obtained from Other Sources
On August 21, 2023, the SIU obtained the Complainant’s medical records from JH. Incident Narrative
The events gathered by the SIU, including interviews with the Complainant and the SO, and video footage that captured the incident in parts, gives rise to the following scenario.
In the early morning of August 5, 2023, HPS received a 911 call from a restaurant reporting that an intoxicated customer - the Complainant - had left the establishment in a vehicle. The SO, in the area of the call, located the vehicle and followed it south on Centennial Parkway North from Van Wagners Beach Road. Just north of Arrowsmith Road, with the assistance of WO #1, the officer pulled the vehicle over in the curb lane.
The SO approached the Complainant’s vehicle, opened the driver’s door, grabbed her left arm, and directed the Complainant to, “Get out of the car,” as he pulled her towards him. The Complainant slid off the driver’s seat back first, her buttocks hitting the roadway. With a hand on each of the Complainant’s hands, the SO pulled her further back a short distance and then steadied her as she lifted herself to her feet. The Complainant was pushed against the driver’s side of the vehicle by the SO, handcuffed, and placed in the rear seat of the officer’s cruiser for transport to the police station.
The Complainant complained of pain in the left shoulder and was taken from the station to hospital in ambulance. She had suffered a mid-shaft fracture of the left clavicle.
In the early morning of August 5, 2023, HPS received a 911 call from a restaurant reporting that an intoxicated customer - the Complainant - had left the establishment in a vehicle. The SO, in the area of the call, located the vehicle and followed it south on Centennial Parkway North from Van Wagners Beach Road. Just north of Arrowsmith Road, with the assistance of WO #1, the officer pulled the vehicle over in the curb lane.
The SO approached the Complainant’s vehicle, opened the driver’s door, grabbed her left arm, and directed the Complainant to, “Get out of the car,” as he pulled her towards him. The Complainant slid off the driver’s seat back first, her buttocks hitting the roadway. With a hand on each of the Complainant’s hands, the SO pulled her further back a short distance and then steadied her as she lifted herself to her feet. The Complainant was pushed against the driver’s side of the vehicle by the SO, handcuffed, and placed in the rear seat of the officer’s cruiser for transport to the police station.
The Complainant complained of pain in the left shoulder and was taken from the station to hospital in ambulance. She had suffered a mid-shaft fracture of the left clavicle.
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 320.17, Criminal Code – Flight from Peace Officer
320.17 Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer and who fails, without reasonable excuse, to stop the motor vehicle or vessel as soon as is reasonable in the circumstances.
Analysis and Director's Decision
The Complainant suffered a serious injury in the course of her arrest by a HPS officer on August 5, 2023. In the ensuing SIU investigation of the incident, the arresting officer – the SO – was identified as the subject official. 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.
I am satisfied that the SO was within his rights in stopping the Complainant’s vehicle and taking her into custody. Given the information he had of the call to police from the restaurant and the Complainant’s failure to stop for him in a timely fashion after he signaled her to pull over, the officer had cause to pursue the Complainant’s vehicle and arrest her for ‘failure to stop for police’ contrary to section 320.17 of the Criminal Code.
I am also satisfied that the SO used only legally justified force in effecting the Complainant’s arrest. The officer grabbed the Complainant’s left arm and applied a minimal amount of force in removing her from the vehicle.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO. The file is closed.
Date: December 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.
I am satisfied that the SO was within his rights in stopping the Complainant’s vehicle and taking her into custody. Given the information he had of the call to police from the restaurant and the Complainant’s failure to stop for him in a timely fashion after he signaled her to pull over, the officer had cause to pursue the Complainant’s vehicle and arrest her for ‘failure to stop for police’ contrary to section 320.17 of the Criminal Code.
I am also satisfied that the SO used only legally justified force in effecting the Complainant’s arrest. The officer grabbed the Complainant’s left arm and applied a minimal amount of force in removing her from the vehicle.
Thereafter, it would appear the SO used a minimal amount of force to assist the Complainant off the road and secure her in handcuffs. While it may well be that the Complainant’s fractured her clavicle on one of these occasions, I am unable to reasonably conclude that the force used by the SO was excessive at any point.
For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO. The file is closed.
Date: December 1, 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.