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 sustained by a 40-year-old man during his arrest on April 2, 2017.

Notification of the SIU

On April 3, 2017 at 1:10 a.m., the Hamilton Police Service (HPS) notified the SIU of a custody injury to the Complainant.

HPS reported that on April 2, 2017 at 8:44 p.m., HPS officers responded to a call regarding a domestic disturbance at a residence. The female occupant wanted the Complainant removed from her apartment.

The Complainant was uncooperative. He was arrested and taken to the floor by the Subject Officer (SO). The Complainant was then taken to the hospital by ambulance and found to have sustained a broken nose and other facial injuries.

The Team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes and photography.

Complainant:

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

Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

Additionally, the notes and prepared statements from two other, non-designated officers, and a prepared statement from one other, non-designated officer, were received and reviewed.

Subject Officers

SO Interviewed, and notes received and reviewed.

During the evening of April 2, 2017, the HPS Communications Centre received a call requesting police attendance at a residence regarding a disturbance. The SO and WO #1 were dispatched, and attended at the apartment. Upon arrival, the officers could hear a disturbance taking place. The CW invited the officers inside, and explained that this was her address and that the Complainant, from whom she had been separated, did not live there but had come to visit her earlier. She said the Complainant was extremely intoxicated and she wanted him to leave her apartment.

The CW took their young daughter into the bedroom, and the SO advised the Complainant that he needed to leave the apartment. The Complainant was very uncooperative, hostile and began shouting obscenities at the officers. The Complainant then punched the bedroom wall several times with his fist while shouting obscenities at the CW and their daughter. Next, he turned to WO #1 and clenched and raised both fists.

Concerned for everyone’s safety, the SO grounded the Complainant, who struck the living room floor with his face. WO #1 assisted in handcuffing the Complainant. An ambulance was called and the Complainant was taken to the hospital. It was determined that the Complainant had sustained a comminuted nasal bone fracture associated with soft tissue hematoma and laceration of the upper lip.

The Scene

The scene is a one bedroom, tenth floor apartment in Hamilton.

Communications Recordings

A review of the HPS communications recordings, Event Chronology and computer assisted dispatch report revealed that at 8:44 p.m., the SO and WO #1 were dispatched to the CW’s residence regarding a disturbance. They arrived on scene at 8:53 p.m. The SO ran a Canadian Police Information Centre (CPIC) check on the Complainant at 9:03 p.m. At 9:10 p.m., the SO requested that an ambulance attend their location for a “male conscious, breathing and bleeding from the nose.” At that same time, the SO requested for a Sergeant to attend their location. At 9:11 p.m., the SO advised “male was grounded, semi-conscious, still bleeding.” At 9:15 p.m., the SO advised “male talking fine now, nose still bleeding.”

The information gleaned from all police officer interviews conducted by SIU Investigators was consistent with the review of the HPS communication recordings.

Materials obtained from Police Service

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

• Communications recordings
• HPS holding cell video
• CPIC query – the complainant
• Duty roster - 2017-04-02
• Event chronology
• Event unit history
• Notes of WO #1, WO #2 and WO #3
• Notes of two, non-designated officers
• Occurrence (involved officers)
• Prior occurrence details reports involving the complainant
• Occurrence details report, arrest report and release documents
• Procedure - use of force reporting
• Procedure - use of force and equipment
• Procedure - arrest procedures and compelling appearance in court
• Subject profile report – the complainant
• Training record – the SO
• Training record – WO #1, and
• Prepared statements – three non-designated officers

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(1), 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

Section 270(1), Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure

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,

1. without the express permission of the occupier, the proof of which rests on the defendant,
   1. enters on premises when entry is prohibited under this Act, or
   2. engages in an activity on premises when the activity is prohibited under this Act; or
2. 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.

On April 2, 2017 at 8:44 p.m., a 911 call was received by HPS requesting police assistance at a disturbance at an apartment in the City of Hamilton. The SO and WO #1 were dispatched and arrived at 8:53 p.m. and immediately went up to the apartment where they knocked at the door and were invited in by the tenant, the CW. The CW advised them that the Complainant, from whom she was separated, was in her apartment, was intoxicated and she had asked him to leave but he refused to do so. The SO and WO #1 entered the apartment and eventually arrested the Complainant for assaulting a peace officer contrary to the Criminal Code. The Complainant was taken to hospital thereafter and diagnosed with a fractured nose.

In his interview with investigators, the Complainant had no recollection as to any interaction he had with police beyond their initial entry into the apartment, or how he came to be injured or taken to hospital. Despite his lack of recall, the Complainant did not hold anyone responsible for his injuries.

While the Complainant was unable to recall the incident, both of the police officers who attended to the apartment provided statements to investigators, which were confirmed by the CW and, as such, a clear picture of the sequence of events was able to be determined. There is no dispute as to the facts.

The SO, in his statement to investigators, advised that once he entered the apartment, he recognized the Complainant from a previous incident wherein the Complainant was intoxicated, quite violent, had exhibited great strength and was extremely hostile towards police. The SO advised that he was also aware that the Complainant had extensive prior involvement in the justice system and was flagged as being violent and unpredictable. The SO described the Complainant as having slurred speech, glassy eyes and there was a strong odour of alcohol coming from him. The SO assessed the Complainant as being very intoxicated and noted him to be drinking from a Vodka bottle and shouting; this was also observed by WO #1. The SO observed the CW take her daughter into a bedroom accompanied by WO #1, while the SO continued to try to speak with the Complainant. WO #1 later returned and advised the SO that there was no allegation of domestic assault but that the CW simply wanted the Complainant removed from her apartment due to his level of intoxication and his poor behaviour.

While the Complainant initially agreed to leave the apartment, he then became enraged and refused to do so, continuing to shout obscenities at the SO; this was also observed by WO #1. The SO tried to de-escalate the situation by speaking calmly to the Complainant. While WO #1 was standing outside of the bedroom in which the CW and her young daughter were situated, the Complainant walked to the confined area outside of the bedroom and violently punched the door frame three times with full force while continuing to shout obscenities at his young daughter inside the bedroom. The SO observed the Complainant to clench his jaw and ball up his fist and he, the SO, advised that he was very fearful for the safety of all present.

While still in the small alcove outside the bedroom, WO #1 observed the Complainant take a step toward the SO and WO #1 advised that she noted the Complainant was angry, intoxicated, unsteady on his feet, had slurred speech and a strong odour of alcohol on his breath. WO #1 placed her right hand on the Complainant’s upper left arm and told him to leave the apartment, whereupon he clenched both fists and raised them up in front of him in a fighting stance; WO #1 described the Complainant as enraged and staring at her and she was very frightened, especially in light of the fact that she was in a small confined area and had no place to which she could retreat. WO #1 indicated that she too felt that the Complainant was about to attack her or someone else as he appeared totally out of control. The SO advised that he believed at that point that the Complainant was about to strike WO #1 and he decided he needed to intervene but that no use of force option was appropriate in such a small, confined space. As a result, the SO opted to take the Complainant down to the floor using an empty hand technique that he had learned in his use of force training and which he believed would allow him to gain control of the Complainant.

The SO then grabbed hold of the Complainant’s right wrist with his right hand and grabbed the Complainant’s upper right arm with his left hand and successfully pulled the Complainant off balance and down to the tiled surface of the living room floor, where the Complainant fell face first onto the floor, making no attempt to break his fall by putting out his free arm. At that point, the Complainant stopped his assaultive behaviour and was handcuffed, whereupon he apologized for his behaviour. This interaction was observed by WO #1 and is consistent with what the CW heard from inside the bedroom. The Complainant was then observed to be bleeding from his facial area and was arrested for assault peace officer and transported to hospital where he was diagnosed with a comminuted nasal bone fracture associated with soft tissue hematoma and a laceration of the upper lip.

Other than grounding the Complainant, there is no allegation by anyone that any other force was used against the Complainant.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the statement of the CW that the Complainant was an unwanted guest in her home and that he refused to leave, thereby placing him in breach of the Trespass to Property Act and, when he refused to leave when asked to do so by the police, he was arrestable as such.

Additionally, when the Complainant balled up his fists and appeared to be about to assault WO #1, the SO did not need to wait for WO #1 to be assaulted but was justified in acting pre-emptively in order to prevent that occurring. As such, the SO was also justified in apprehending the Complainant for assault peace officer when, pursuant to the definition of assault in section 265(1)(b), the Complainant “attempted or threatened, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose”. The Complainant had just violently punched the door frame three times. Further, armed with the information regarding his prior involvement with the Complainant wherein he had been intoxicated, quite violent, exhibited great strength and was extremely hostile towards police as well as knowing that he had a lengthy history involving violence, the SO was more than aware that the Complainant had the “present ability to effect his purpose”, that being to assault WO #1, when he was observed to be enraged, clenching his fists at WO #1 and raising them up in front of him in a fighting stance. As such, the arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in his attempt to subdue the Complainant, one has to consider what the police officers were dealing with at the time of the injury in order to determine if the amount of force used was excessive or not. In this particular case, the Complainant was extremely intoxicated, combative, shouting obscenities and was acting in such a way that both the SO and WO #1 were fearful that he was about to assault WO #1 and/or anyone else in the area. Taking into account that both police officers and the Complainant were in a very small, confined space and that the CW and their young daughter were just on the other side of the door, it was incumbent on the police officers to act quickly to eliminate the threat posed by the Complainant before any harm could come to any of the persons present. Additionally, armed with the knowledge that the Complainant was quite capable of being violent, and was deemed to be dangerous and unpredictable when intoxicated, the SO would have had an even greater appreciation of the heightened risk posed by the Complainant if not subdued.

On these facts, although I find that the Complainant’s injury was caused by the SO taking him to the hard tiled floor and landing on his face, I find that pursuant to section 25(1) of the Criminal Code, the SO used no more force than was reasonably necessary in the execution of his lawful duty in apprehending an intoxicated, combative, enraged and apparently powerful man. While I find that the degree of force with which the Complainant’s face struck the ground may have been greater than expected by the SO due to the fact that the Complainant did not put out a hand to break his fall and the SO was hindered in his movements by the confines of the limited space in the alcove occupied by the Complainant and both the SO and WO #1, I cannot find that the actions of the SO amounted to an excessive use of force. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), that police officers are not expected to measure the degree of their responsive force to a nicety. On this record, it is clear that the force used by the SO to subdue the Complainant and to prevent an assault upon WO #1 fell within the range of what was reasonably necessary in the circumstances to result in his lawful detention and to remove the risk that he continued to pose until he was apprehended and handcuffed.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s apprehension and the manner in which it was carried out were lawful notwithstanding the injury which he suffered, that the actions exercised by the SO fell within the limits prescribed by the criminal law, and that there are no grounds for proceeding with charges in this case.

Date: November 28, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit