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 the serious injury reportedly sustained by a 53-year-old man during his arrest on August 5^th, 2017.

Notification of the SIU

At approximately 8:49 a.m. on Saturday, August 5^th, 2017 the Hamilton Police Service (HPS) notified the SIU of a custody injury suffered by a 53-year-old male.

The HPS reported that shortly after midnight on August 5^th, 2017, SO #1 and SO #2 responded to a domestic assault incident in the City of Hamilton. The HPS were told that the Complainant had thrown a wine bottle at his wife’s daughter. The Complainant was arrested and at some point his head might have struck the outside of a police cruiser. Furthermore, while the Complainant was being transferred to the HPS he smashed his face against the security screen inside the police cruiser and kicked at the windows of the cruiser.

The HPS further reported that the Complainant was lodged in a cell at 1:10 a.m. At 2:46 a.m., he was observed on the floor of the cell complaining about pain in his right side and he was taken to hospital where it was determined that he had suffered a fractured rib on his right side.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

SIU investigators were immediately dispatched to Hamilton to interview the Complainant. The police vehicle used to transport the Complainant to the police station following his arrest had been secured and SIU forensic investigators were dispatched to examine that vehicle.

The SIU contacted Hamilton Taxi, who confirmed that they received a request for a taxicab at 11:34 p.m. on August 4^th, 2017. That request came from CW #4. The taxicab was directed to attend the laneway behind the garage at the residence of the 911 call. The driver who responded to that request attended the address, but departed four minutes later, reporting that the fare was a “no show.” The taxi driver was contacted by the SIU, but he had no recollection of witnessing the police arresting someone during his time at that address.

Complainant:

53-year-old male, interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

Witness Officers

The notes of seven potential witness officers were reviewed. The SIU elected not to interview any of these police officers, based on the content of their notebook entries, as they were not present during the arrest of the Complainant and had no evidence to further the investigation.

According to the custody sergeant’s notes, he was working in the custody area on August 5^th, 2017, when he observed the Complainant fall to the floor of the cell. The sergeant attended the cell and spoke to the Complainant, who stated that he had an injured rib. The Complainant told the sergeant, “I did it to myself,” and he further stated that he had put up a fight with the arresting officers.

Subject Officers

SO #1 Interviewed, notes received and reviewed

SO #2 Interviewed, notes received and reviewed

On the evening of August 4^th, 2017, a 911 call was received by the HPS at 11:14 p.m. reporting that the caller, CW #2, had been contacted by her mother who had indicated that her boyfriend, the Complainant, was becoming violent. CW #2 and CW #1 then travelled to Hamilton to investigate the situation. Once CW #2 arrived on scene, she removed a dog from the Complainant’s care. When she did so, the Complainant threw a bag and a wine bottle at CW #2.

Once the police arrived, they determined that they had reasonable grounds to arrest the Complainant for assaulting CW #2. The Complainant was initially cooperative with the police officers but, when the police officers started to handcuff and search him, he became agitated and started to hit his head on the rear of the police cruiser and resisted being loaded into the police vehicle.

The Complainant was then transported to the police station where he was lodged in a cell at 1:14 a.m. At 2:46 a.m., the Complainant stood at the cell door and then collapsed onto the floor. He was then transported to hospital.

The Scene

The Complainant resides at the rear of a building, in an apartment on the ground floor. The Complainant was residing with CW #6 at the time of his arrest.

There is an alleyway that runs behind the buildings on the Complainant’s street, past the Complainant’s apartment patio. The alleyway runs the width of the block. Midpoint along the alleyway there is another alleyway that runs to the north, providing nearby residents access to the garages at the rear of their properties.

On the northwest corner of the intersection, there is the Stadium Mall. On the southwest corner of the intersection there is a Bank of Montreal branch. On the southeast corner of the intersection there is a Welcome Mart convenience store.

The police vehicle used to transport the Complainant was a fully marked 2016 Dodge Charger. In the rear passenger side of the vehicle was an enclosed single seat, separated from the rest of the vehicle by way of plastic partitioning.

The exterior right rear corner of the police vehicle showed signs of disturbance. The road dust on the right rear quarter panel and the right rear door had been disturbed and brushed away. There was a greasy smear mark and small dent on the trunk lid along the right side where the trunk lid meets the right rear quarter panel. There was a handprint with visible ridge detail next to the smear mark. There was another small dent at the top of the fender, over the right rear wheel well.

The examination of the interior of the vehicle showed numerous greasy smear marks to the inside surface of the plastic enclosure surrounding the prisoner compartment.

There were other handprints with visible ridge detail on the right front corner and the hood of the vehicle, along the right side.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences

Video/Audio/Photographic Evidence

A Bank of Montreal branch is located in the area of the Complainant’s arrest. The SIU contacted the Bank of Montreal corporate security department to determine whether surveillance cameras in the bank might have captured the incident. The Bank of Montreal security department advised the SIU that the video recordings from the bank had been reviewed and there was no footage of the incident. The Bank of Montreal was unwilling to provide any video recordings without a production order or subpoena.

The City of Hamilton Traffic Management Office was contacted to determine whether traffic cameras positioned at the intersection of the arrest were recorded. The SIU was advised that those cameras did not record, and they are only used to monitor traffic flow.

A canvass was conducted in the area of the Complainant’s arrest in an attempt to identify surveillance cameras and witnesses. Video footage from a nearby store was reviewed and a copy was recorded. Unfortunately, the camera angle was such that an overhead canopy obscured the scene of the arrest.

Custody Area Video Recordings

On August 5^th, 2017 at 1:09 a.m., the Complainant entered the custody area of the police station, escorted by SO #1 and SO #2. The Complainant appeared to be in pain as he approached the booking desk.

The Complainant had his hands handcuffed behind him, fastened with a set of steel handcuffs. As the handcuffs were removed, the Complainant was asked to place his hands high up on the booking counter but the Complainant complained he could not do so, due to pain.[1] There were no comments from any of the parties with respect to any altercation that might have occurred during the Complainant’s arrest.

At 1:14 a.m., the Complainant was lodged in a cell. He lay down on the cell bunk and appeared to fall asleep. He soon began tossing and turning and he continued to do so until he was removed from the cell at 1:49 a.m., to speak to duty counsel. The Complainant was then placed back into the cell at 1:59 a.m. and he returned to the cell bunk.

At 2:45 a.m., the Complainant rose from the bunk and stood at the cell door. He tapped on the cell door and at 2:46:00 a.m. he collapsed onto the floor of the cell. At 2:46:50 a.m., the booking sergeant and a female custodian attended the cell. At 03:00 a.m., paramedics arrived at the cell door and the Complainant was removed from the cell.

Communications Recordings

A 911 call was received by the HPS at 11:14:42 p.m. on August 4^th, 2017. The caller reported that “my mom’s boyfriend is going ballistic, he’s intoxicated, he’s smashing things in the house and he took off with my dog”. CW #2 went on to indicate that the boyfriend, who she identified as the Complainant, had just left and walked down the street. She further indicated that she was not at the scene, but was en route as her mother had called her and the phone had been disconnected during the commotion and CW #2 was now unable to get a hold of her mother.

Materials Obtained from Police Service

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

• The communications recordings
• Video from the custody areas of the HPS Central Station
• The Arrest Booking Report
• The Arrest Report
• The Computer Aided Dispatch (CAD) Event Chronology
• HPS Witness Statements of CW #s 1 and 2
• Notes of all witness officers, and
• The Occurrence Details Report

The SIU also obtained the Complainant’s medical records.

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 265, Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

1. the application of force to the complainant or to a person other than the complainant
2. threats or fear of the application of force to the complainant or to a person other than the complainant
3. fraud; or
4. the exercise of authority

Section 266, Criminal Code – Assault

266 Every one who commits an assault is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction

On August 4^th, 2017, a 911 call was received by the Hamilton Police Service at 11:14 p.m. from CW #2 advising, “My mom’s boyfriend is going ballistic, he’s intoxicated, he’s smashing things in the house and he took off with my dog.” CW #2 went on to indicate that the boyfriend, who she identified as the Complainant, had just left the residence in the City of Hamilton, and walked down the street. She further indicated that she was not at the scene, but was en route as her mother had called her and the phone had been disconnected during the commotion and CW #2 was now unable to get a hold of her mother.

As a result, SO #1 and SO #2, travelling in separate police cruisers, were dispatched to the address, arriving at 11:41:01 p.m.

Upon their arrival, the Complainant, CW #6, CW #1, CW #4 and CW #3, were all in and around the location of the Complainant’s interaction with police and were all witnesses to the event. With the exception of one additional civilian witness (CW #5) who came forward, who unfortunately could not recall the date of his observations, and whose recall of the party being arrested and the police officers, as well as the actions of all persons involved, did not accord with the evidence of any of the other civilian witnesses, the police officers, nor the statement of the Complainant himself, there is no dispute as to the sequence of events. On this basis, I have not taken into account the evidence of CW #5, as his evidence appears to describe an unrelated event.

Based on all of the remaining evidence, which I find to be both consistent and reliable, it is clear that on August 4^th, 2017, in response to a 911 call, SO #1 and SO #2 attended the intersection of Barton Street and Gage Avenue in the City of Hamilton. Upon arrival, SO #1 spoke to the Complainant to get his side of the story, while SO #2 spoke to CW #2. SO #2 received information from CW #2 that the Complainant had thrown some items at her, with a wine bottle striking her in the back shoulder. This evidence was confirmed by all of the other witnesses, as well as by the Complainant, and supported by the fact that the wine bottle was located still lying in the street. CW #2 indicated to SO #2 that she wanted the Complainant criminally charged.

Based on the information received, SO #1 believed that he had reasonable grounds to arrest the Complainant for assaulting CW #2, and he requested that the Complainant accompany him to the police cruiser. Up until this point in time, despite the Complainant being described by all parties present as being under the influence of alcohol, with many describing him as intoxicated, he had been compliant and he willingly accompanied SO #1 to his cruiser.

Once at the police cruiser, WO #1 advised the Complainant that he was under arrest for assault, and SO #1 leaned the Complainant over the trunk of his police cruiser and spread his legs to search him, following which the Complainant was handcuffed with his hands behind his back. The Complainant was then described as looking toward CW #2 and CW #1 and he unexpectedly and quickly stood up, tensed his body, and began to shout at CW #2, with several of the witnesses also observing him to spit at CW #2. The Complainant was also observed thrashing and smashing his forehead off the trunk of the SO’s police cruiser three to four times.

SO #1, who was standing to the right and to the rear of the Complainant, maintained control of the Complainant by using his right hand to hold the handcuffs and his left hand to control the Complainant’s back. While some of the civilian witnesses described the Complainant as resisting and assaultive toward SO #1, SO #1 himself did not believe this to be the case. The Complainant admitted that he, of his own accord, twice deliberately struck his head on the trunk of the police vehicle as a result of becoming emotional. SO #2 then grabbed the Complainant’s left arm to stop him from smashing his head, and both officers began to move the Complainant toward the door of the police vehicle.

SO #1 asked SO #2 to unlock the police cruiser and the Complainant was seated in the rear passenger seat, with his feet hanging out of the car. The Complainant then began to kick the door, preventing it from closing, using both feet to push it forward three to four times. SO #1 then used one of his own feet to push the Complainant’s lower body into the police cruiser, using moderate force and, within ten seconds, the Complainant’s legs were inside the cruiser and SO #1 quickly shut the door. Once inside the police vehicle, the Complainant kicked about and banged his head off the plastic partition that separated the front seat from the back seat.

Other than holding onto the Complainant, and pushing his legs into the police cruiser, neither of SO #1 or SO #2 applied any force to the Complainant, and no strikes were ever directed towards him. This evidence is corroborated by all five of the civilian witnesses present, while the Complainant himself had no recollection of how he was placed in the police vehicle and could not remember if he was ever struck by any police officer.

While in the cruiser, the Complainant complained of a sore shoulder, indicating that an injury had occurred previously which was a workplace injury. In order to make the Complainant more comfortable, due to his injury, SO #1 replaced the original set of handcuffs with two sets, thereby easing the pressure on the Complainant’s arms and shoulders by allowing more ease of movement.

Once at the police station, the Complainant was lodged in a cell where he later rapped on the cell door to attract attention, and then fell and struck his head on the door. In his medical records, he told the staff that he deliberately threw himself onto the cell floor. When police officers came to check on the Complainant, he complained of an injury and he was transported to hospital. While at the hospital, the Complainant apologized to SO #1 for becoming emotional earlier, presumably referring to his verbal and physical outburst at the police vehicle.

Once at hospital, the Complainant’s medical records indicate that he advised that he had been involved in an altercation with police and that “he believes he injured a rib” but does not attribute it to any specific action of the police. Later on, he indicates to medical personnel that “he may have been hit to right side of chest”. Again, he appears uncertain and does not provide any mechanism as to how he was injured. Finally, he describes his pain as “feels similar in nature to past fractured ribs”. The medical notes, however, indicate that there was no “obvious trauma”, there was no indication of any external signs of injury, such as bruising or abrasions, and the chest x-ray, which was taken to include the right side ribs, came back as normal. While SO #1 advised that the doctor had told him that the Complainant had sustained a minor rib fracture, I note that this is not supported by the medical documentation, and, as such, it is unclear to me whether or not the Complainant actually suffered any serious injury at all.

Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the two subject officers to qualify for protection from prosecution under s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information provided by CW #2, as confirmed by the other civilian witnesses present, as well as the utterances made by the Complainant himself, that the Complainant had thrown a number of objects at CW #2, with a wine bottle striking her on the shoulder. As such, the police had ample grounds to arrest the Complainant for assault and, as such, it is established that they were acting both in the execution of a lawful duty and on reasonable grounds to believe a criminal offence had occurred, and they are thus protected from prosecution as long as they used no more force than was necessary in the circumstances.

With respect to the use of force resorted to by SO #1 and SO #2, there is nothing in the evidence to indicate that they did anything more than handcuff the Complainant, hold him down against the trunk of the police cruiser while he was thrashing, and, finally, shove his feet into the cruiser when he refused to place them inside the cruiser voluntarily, in order for the door to be closed.

It is notable that none of the civilian witnesses, nor the police officers, indicated that any police officer ever used any force against the Complainant, and that no one observed any police officer to ever kick, punch, strike, or take the Complainant to the ground, and there is absolutely no evidence whatsoever that any such force was ever resorted to. I take further note that all of the witnesses, both civilian and police, and the Complainant himself, could not account for how the Complainant may have fractured a rib during his interaction with police, if he in fact did so.

Based on the reliable evidence before me, including the radiology reports which make no mention of a rib fracture, I must conclude that the Complainant was not injured during his interaction with police. If he did, indeed, have a rib fracture, as indicated by him and as overheard by SO #1, there is no evidence that this injury was sustained during his interaction with police. I further note that of all five of the civilian witnesses present during the Complainant’s interaction with police, none had any concerns or complaints as to the way the Complainant was treated by police and, in fact, were quite complimentary of the way the police handled the situation.

In conclusion, on the basis of the reliable evidence on this record, I do not have reasonable grounds to believe that any police officer, in his or her interaction with the Complainant, ever resorted to an excessive use of force and there is no basis for the laying of criminal charges and none will issue.

Date: April 6, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The Complainant told the SIU that he had suffered from pre-existing shoulder ailments that limited his movement. He had mentioned his rotator cuff ailments during the booking process, according to the booking sergeant’s notes. [Back to text]