Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into a serious injury sustained by a 19-year-old male (Complainant) on June 4, 2017.

Notification of the SIU

On September 7, 2017, a member of the Hamilton Police Service (HPS) notified the SIU of an injury apparently sustained by the Complainant during a disturbance in Hamilton that occurred on June 4, 2017.

It was reported that on June 4, 2017, several HPS police officers were called to Hess Village in response to a large street fight. During the disturbance, the Complainant and his brothers were arrested but later released. The Complainant’s brother sustained a serious leg fracture during the incident that required surgery.[1] The Complainant claimed he sustained a knee injury during the same incident, but only recently received medical documentation to prove the injury.

The Team

Number of SIU Investigators assigned: 3

Complainant:

19-year-old male interviewed, medical records obtained

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3[2] Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed

The Scene

The area of the incident was composed of dozens of bars, restaurants and nightclubs on three streets in Hamilton. During the warmer months, the area is a gathering spot for locals and tourists, and attracts hundreds of patrons. A dozen or so paid-duty police officers are usually sent to patrol the area with regular patrols as back up. The crowd is primarily young people.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HPS:

• HPS Witness Statement of the Complainant
• HPS Arrest Procedures
• Notes of CW #3, the SO, WO #1, WO #2, WO #3 and WO #4, and
• Occurrence Details Report

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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 129, Criminal Code - Offences relating to public or peace officer

129 Every one who

1. resists or wilfully obstructs a public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer
2. omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his duty in arresting a person or in preserving the peace, after having reasonable notice that he is required to do so, or
3. resists or wilfully obstructs any person in the lawful execution of a process against lands or goods or in making a lawful distress or seizure

is guilty of

4. an indictable offence and is liable to imprisonment for a term not exceeding two years, or
5. an offence punishable on summary conviction

Section 495(1), Criminal Code - Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant

1. a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence
2. a person whom he finds committing a criminal offence; or
3. a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found

On June 3, 2017, the Complainant attended a boxing match at the Hamilton Convention Centre with his brothers and cousin. They arrived at the event at around 8:00 p.m. and stayed until the event ended at around 11:30 p.m. After the event, the group took a taxi to Hess Village, an entertainment district in Hamilton, where the group split up. The Complainant’s brothers went to “Side Bar” and the Complainant and his cousin went to “ORA Bar.”

At around 12:30 a.m. on June 4, 2017, the SO was stationed in Hess Village when he witnessed an apparently unprovoked assault. It was very crowded on the street and when he got to the area of the assault, WO #1 was on his knees and trying to restrain the Complainant’s cousin on the ground. The SO did not know if the Complainant’s cousin was the person who had thrown the punch, but went to WO #1’s aid and held onto the Complainant’s cousin’s arm. The Complainant approached the struggle and screamed at the officers to let his cousin go. The SO told the Complainant to get back, but the Complainant continued toward the HPS officers and tried to pull WO #1 off of his cousin. The SO disengaged from the struggle and pushed the Complainant back a few steps. The SO decided to arrest the Complainant for obstruction because he was interfering in a lawful arrest, and ordered him to get down. The Complainant ignored the SO’s commands. The SO had his hands on the Complainant’s shoulders and attempted to take him to the ground twice by using his foot to sweep the Complainant’s right foot out from under him. The second attempt worked and the Complainant fell, pulling the SO down to the ground with him. The Complainant continued to resist but was quickly handcuffed. Once the Complainant was placed in a police cruiser, he complained of a sore knee but declined medical attention. Following a brief period inside the cruiser, the Complainant was released from police custody.

The Complainant was eventually seen at hospital and diagnosed with a meniscus tear to the right knee.

In my view, the weight of the evidence establishes that the amount of force the SO used was well within the scope of force that police officers are permitted to use by law. Pursuant to section 25(1) of the Criminal Code, police officers may use force in the execution of their lawful duties to the extent reasonably necessary in the circumstances. I believe that the SO was acting in the execution of his lawful duties because s. 495(1)(b) of the Criminal Code permits a peace officer to arrest a person without a warrant where they find that person committing an offence. The SO saw the Complainant attempting to interfere with a lawful arrest[3] by pulling WO #1 off of his cousin and therefore saw him committing the offence of obstructing a peace officer contrary to s. 129 of the Criminal Code. The SO was accordingly acting within this duties when he arrested the Complainant.

Having found the arrest lawful, the next question to consider is whether the force used was reasonably necessary in the circumstances. The SO admitted to shoving the Complainant and using his foot to perform leg sweeps to take the Complainant to the ground. I find this reasonably necessary and proportionate to the circumstances. Before the SO shoved the Complainant, the SO said that he told the Complainant to stay back, the Complainant refused to comply and physically touched WO #1. The SO’s belief that the Complainant may have been a threat was reasonable, and shoving the Complainant to gain distance was clearly justifiable under s. 25 of the Criminal Code. The subsequent take down and accompanying force was also justified. The Complainant was belligerent and not obeying commands. Using leg sweeps to take the Complainant to the ground to execute the arrest was not unreasonable in these circumstances. In coming to this conclusion, I am mindful of the jurisprudence which states that police officers are not held to the standard of perfection in the execution of their duties (R. v. Nasogaluak, [2010] 1 S.C.R. 206) nor are they expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). It is possible that the Complainant was injured during the take down, but it is also possible that the Complainant was injured in the street fight that preceded it. Regardless, the minimal force used by the SO was clearly within the limits he was permitted to use by law.

In sum, I do not believe that the SO exceeded the level of force permitted by law and therefore am unable to form grounds to believe he committed an offence. This file is therefore closed.

Date: August 7, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The Complainant’s brother’s injury was investigated by the SIU in a separate file (17-OCI-142). [Back to text]
• 2) [2] CW #3 is a police employee but was not designated a “witness officer” because he is not a “police officer” under the Police Services Act. [Back to text]
• 3) [3] The Complainant’s cousin’s arrest was lawful because WO #1 had seen him throw a punch. [Back to text]