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 48-year-old man during his arrest on December 30, 2016.

Notification of the SIU

On December 30, 2016, at 9:05 a.m., Hamilton Police Service (HPS) notified the SIU of the serious injury sustained by the Complainant during his arrest earlier that morning.

HPS reported that shortly after midnight on December 30, 2016, security officers guarding a construction yard on Barton Street alerted the HPS of a break and enter at the facility. The security firm had the suspects under video surveillance. HPS police officers sped to the scene and were informed that the suspects had fled the property in a Pontiac Grand Prix.

Patrolling police officers soon found the vehicle abandoned and began to search the surrounding area. A canine officer, in tandem with two tactical police officers, located the Complainant in a rear yard. The Complainant was subsequently arrested and later complained of left side pain. He was examined at the hospital and was found to have suffered a fracture to a left side rib.

The Team

Number of SIU Investigators assigned: 4

Complainant:

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

Civilian Witnesses

None

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Not interviewed, but notes reviewed[1]

WO #4  Not interviewed, but notes reviewed[2]

WO #5  Not interviewed, but notes received and reviewed

WO #6  Not interviewed, but notes reviewed[3]

WO #7  Not interviewed, but statement and notes received and reviewed

WO #8  Not interviewed, but statement and notes received and reviewed

Additionally, the notes from one other, non-designated officer were received and reviewed.

Subject Officers

SO #1  Interviewed, but declined to submit notes, as is the subject officer’s legal right.

The Scene

The Complainant was arrested in the rear yard of a detached home in the city’s east end.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence.

The videos were taken from numerous cameras covering the vast property housing the construction yard on Barton Street East. The video quality was very good and clearly depicted two culprits in the yard gathering items for the purpose of stealing them. Identification was difficult because both individuals wore balaclavas. One of the men, however, wore dark overalls/coveralls and a dark nylon jacket, precisely the clothing worn by the Complainant upon his arrest.

Physical Evidence

A folding knife was seized from the Complainant upon his arrest. Below is a photo.

Materials obtained from Police Service

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

• Arrest and booking report of the Complainant
• Canadian Police Information Centre (CPIC) check
• Event Chronology
• General Property Details
• Involved Persons List
• Scenes of Crime Officer Report
• HPS Custody video
• Notes of WO #1, WO #2, WO #5, WO #7 and WO #8
• Occurrence Details Report
• Photos of folding knife seized from the Complainant
• Supplementary Occurrence Report
• Prepared statements of WO #1, WO #2, WO #7 and WO #8
• Notes and prepared statement of a non-designated officer
• Witness Statement of a non-designated civilian witness, and
• Witness victim list

During the early morning hours of December 30, 2016, two men were observed on surveillance video at a construction yard in Hamilton stealing property. The men left in a Pontiac Grand Prix, and were located nearby. The Complainant’s co-accused was arrested and advised of his involvement in the break and enter at the construction yard. The Complainant was located hiding behind a shed.

The Complainant resisted the SO’s and WO #1’s efforts to arrest him and handcuff him. In the course of his arrest, the Complainant was grounded and each officer delivered one distractionary strike to ensure the Complainant’s compliance – WO #1 delivered a closed handed punch to the upper middle back area of the Complainant, and the SO delivered one knee strike to the left side of his mid-section. The Complainant was finally handcuffed and transported to the HPS station.

The Complainant later complained of pain to his ribs and was taken to hospital where an x-ray confirmed a non-displaced fracture of the left side tenth rib.

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 348, Criminal Code - Breaking and entering with intent, committing offence or breaking out

348 (1) Every one who

1. breaks and enters a place with intent to commit an indictable offence therein
2. breaks and enters a place and commits an indictable offence therein, or
3. breaks out of a place after
   1. committing an indictable offence therein, or
   2. entering the place with intent to commit an indictable offence therein

is guilty

4. (d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
5. (e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction

On December 30, 2016, at 12:38:24 a.m., a 911 call was received by HPS from a security monitoring company indicating that one of the properties that they were monitoring, a construction yard on Barton Street East in the City of Hamilton, appeared to have a Break and Enter in progress. The SO, WO #1 and WO #2, and his K-9 service dog, as well as other police officers, were dispatched to investigate.

According to Closed Circuit Television (CCTV) footage from the construction yard, two men wearing balaclavas are seen to be on the property of the construction company and appear to be stealing property; one of the men can be seen to be wearing dark overalls or coveralls and a hoodie.

According to the occurrence report filed by Hamilton Police, a security company monitoring the construction property on video surveillance, observed two men inside the fenced compound removing construction materials; police were contacted. Upon arrival, police officers investigated and observed two men climb over the fence and get into a dark coloured Grand Prix motor vehicle and flee the scene; this same motor vehicle was then stopped by police officers and two males fled from the vehicle. Upon further investigation, the motor vehicle was found to be registered to a friend of the Complainant, who advised that the Complainant was in possession of the motor vehicle that evening. One of the men who ran from the vehicle, the Complainant’s co-accused, was pursued on foot and arrested; he later admitted his involvement in the break and enter at the construction yard. Additionally, the Grand Prix motor vehicle was found to have various tools from the construction site located in it upon police investigation.

The Complainant, in his statement to SIU investigators, denied any involvement in the break and enter.

WO #2 and his service dog attended at the construction yard to attempt to locate the culprits of the break and enter, and observed a figure jump over the fence and, shortly thereafter, a vehicle left the area. After receiving information that the Grand Prix had been stopped and two males fled on foot, WO #2 attended the area and began an area search at 1:18 a.m.; he was accompanied by the SO and WO #1. WO #2 reported that his dog began to show interest in the rear yard of a residence and began to pull aggressively in that direction; once in the yard, he continued to indicate an area of interest behind a shed on the property, and the Complainant, wearing overalls and a hoodie, was located behind the shed. WO #2 heard the Complainant ask him to hold the dog, and WO #2 issued the police warning, yelled at the Complainant to come out and then held onto his dog and moved back seven to ten feet (2.13 to 3.05 metres).

The Complainant denied resisting arrest or doing anything to provoke the police officers.

Both the SO and WO #1 advised that though they made multiple demands for the Complainant to show his hands and come out, the Complainant stood with his hands extended in front of his body, but would not come out. The Complainant was described as just standing there, not moving, at which point WO #1 grabbed the Complainant by one arm and the SO grabbed him by the front of his clothing and they pulled him out from behind the shed. The SO then ordered the Complainant to get on the ground; again, he did not comply. The SO advised that he then turned the Complainant off his hip and tried to take him to the ground, but the Complainant was actively resisting and refusing to get down. WO #1 heard the SO repeatedly order the Complainant to get on the ground. The SO then employed a leg sweep to get the Complainant down quickly in order that he could gain control of the Complainant and control his hands. Once the Complainant was face down on the ground, he tucked his hands up underneath his body, and despite numerous commands to give up his hands, he again refused to comply. After numerous unsuccessful attempts by both the SO and WO #1 to try to get the Complainant’s hands out so that he could be handcuffed, the Complainant continued to resist and WO #1 delivered a closed handed punch to the upper middle back area of the Complainant, while the SO simultaneously delivered one knee strike to the left side of his mid-section. WO #1 indicated that he was concerned that the Complainant might be carrying weapons, and as such it was important that his hands be placed behind his back and he be restrained. The Complainant finally gave up his hands after these distractionary strikes and he was handcuffed to the rear. The SO estimated that it took a couple of minutes to arrest the Complainant, due to his struggling, while WO #1 estimated approximately 45 seconds. When subsequently searched, a folding knife was located in the front pant pocket of the Complainant.

The Complainant alleges that while he was being handcuffed, one of the police officers forcefully kneed him twice in the left side of his ribs and he felt something crack after he was kneed the second time. The Complainant did not mention being kneed by the SO and punched in the back by WO #1 while his hands were still under his body; on that basis, I am able to conclude that the Complainant was only struck twice by police officers, which is consistent with the evidence of the SO and WO #1.

On this record, there is little dispute between the evidence of the Complainant and the SO and WO #1. The police officers concede that they delivered one knee strike to the left side of the Complainant and one closed handed punch to his mid back area. The Complainant, while face down on the ground, believed that there were two knee strikes, but I find that from the position he was in at the time, it is unlikely that he would have been able to differentiate between the two strikes. Additionally, the Complainant was unable to identify which police officer did what. From his position face down on the ground, clearly the Complainant could not determine if the two strikes were from the same police officer or from two different police officers.

Although WO #2’s attention was focused on his dog and he did not observe either police officer deliver any distractionary strikes to the Complainant, he was able to corroborate that he too observed the Complainant on the ground with his hands underneath his body, while repeated commands were made for him to put his hands behind his back, to no avail.

The Complainant later complained of pain to his ribs and was taken to hospital where an x-ray confirmed a non-displaced fracture of the left side tenth rib.

On this evidence, I have no difficulty in finding that the knee strike delivered by the SO to the left side of the Complainant was the cause of his injury. I also have no difficulty finding that the Complainant did not comply with the police officers’ commands both to get down and to give up his hands. I find that in these circumstances the police officers were justified in their concerns that the Complainant may be armed and that they needed to act quickly to handcuff him and alleviate any risk that he might pose. Where, as here, the struggle to restrain and search the Complainant required some 45 seconds to two minutes, due to the Complainant continuously resisting and being non-compliant, I cannot find that the officers’ actions, in each applying one distractionary strike, was excessive in the circumstances. It may well have been that one strike would have been sufficient to get the Complainant to comply, however, where, as here, things were moving quickly, the Complainant was actively resisting and officers were attempting to subdue him in a confined area with minimal lighting, and where there was another potential suspect in the area, it is understandable that each officer simultaneously acted to subdue the Complainant without first consulting to see what the other was doing.

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 information in the possession of police, that being that a male person wearing coveralls and a hoodie had been seen fleeing from the location of a break and enter in a dark coloured Grand Prix motor vehicle, that same man was then seen to flee from the Grand Prix when stopped by police officers and that police officers later located a man wearing coveralls and a hoodie hiding behind a shed in someone’s backyard in the middle of the night, that police officers had more than reasonable grounds to believe that the Complainant was the suspect that they were seeking and was arrestable for break, enter and theft contrary to the Criminal Code. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by police officers in their attempts to subdue the Complainant, I find that their actions were justified in the circumstances and that they used no more force than necessary to subdue the Complainant, who was secreting his hands underneath his body and who continued to pose a threat to police officers until he was handcuffed and searched for weapons. In addition, I find that the knife which was located in the front pant pocket of the Complainant, where it was easily accessible to him as long as he kept his hands under his body, is conclusive proof of the risk that police officers may expose themselves to if they do not proceed cautiously and subdue and handcuff a suspect as soon as possible. In these circumstances, where the SO and WO #1 each restricted their use of force to only one strike, with each occurring simultaneously and not repeated once the Complainant’s hands were secured and the risk alleviated, I find that they acted reasonably and that their actions did not amount to an excessive use of force, despite the injury sustained by the Complainant. 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:

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, was lawful notwithstanding the injury which he suffered. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the police officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: October 13, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #3 was involved with securing the scene of the break and enter. [Back to text]
• 2) [2] WO #4 was present at the hospital while the Complainant was being examined. [Back to text]
• 3) [3] WO #6 was involved with following the ambulance to the hospital. [Back to text]