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 41-year-old man during his arrest on September 14, 2016 for failing to appear in court.

Notification of the SIU

On September 14, 2016, at 3:55 a.m., the Hamilton Police Service (HPS) notified the SIU of the custody injury to the Complainant. HPS reported that at about 12:11 a.m. that morning, HPS responded to a domestic situation between the Complainant and Civilian Witness (CW) #1 at their home.

Upon arrival, officers had difficulty gaining entry into the residence as the occupants were uncooperative. Once inside the residence, they recognized the Complainant as possibly being wanted on several outstanding warrants for failing to appear. The Complainant fled on foot and officers chased him. The Complainant ran through backyards, alleys, and over garage roofs. Officers caught up to him.

Subject Officer (SO) #1 deployed a controlled energy weapon (CEW) twice in an effort to gain control of the Complainant, possibly while the Complainant was on a garage roof. As a result, the Complainant fell. He was arrested by SO #3, Witness Officer (WO) #4, WO #2 and SO #2. The Complainant was taken to the hospital where he was diagnosed with a fractured rib.

On October 18, 2016, the SIU Director rendered his decision that this case would be closed with no charges given that the Complainant advised his rib was broken when he jumped off the roof.

At 10:06 a.m. that day, the Complainant was contacted for notification of the decision. At that time, the Complainant reported that he was facing two charges of assaulting a police officer from this incident and he was ready now to tell the SIU the truth. He was not a "rat" but given that the officer was trying to wreck his life, the Complainant felt he had to explain what really happened. The Complainant stated that his broken rib was caused by an officer hitting him in the left ribs, and not from his fall from the roof.

The Team

Number of SIU Investigators assigned: 4

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:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

WO #4  Interviewed

WO #5  Interviewed

WO #6  Not interviewed, but statement and notes received and reviewed

Additionally, will-states and the notes from 2 other non-designated officers were received and reviewed.

Subject Officers

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

SO #2  Declined interview and to provide notes, as is the subject officer’s legal right.

SO #3  Interviewed, but declined to submit notes, as is the subject officer’s legal right.

The Scene

The incident occurred in a residential neighbourhood in Hamilton. The Complainant’s apartment was two floors of a house that was attached to a block of buildings with main floor store fronts facing a main street. There were small gaps between some of the buildings in this block and the roofs were of varying heights. The ground where the Complainant was arrested was a cement parking area of a house with a small patch of grass.

Physical Evidence

CEW Logs

The download records for the CEWs issued to SO #1, SO #2, SO #3, WO #1, WO #2, WO #3, WO #4, and WO #6 were reviewed and revealed that SO #1 was the only officer to deploy his CEW at the time of the incident.

On September 14, 2016 at 12:38:58 a.m., SO #1’s CEW was recorded as having fired for three seconds, and at 12:39:28 a.m. for five seconds. When his CEW was downloaded by the SIU on September 14, 2016 at 10:18 a.m., the time on this device was found to be about three minutes faster than real time.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

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

• Communications Recordings and Dispatch,
• CEW Downloads for SO #1, SO #2, SO #3, WO #1, WO #2, WO #3, WO #4, and WO #6,
• Event Chronology,
• Event Log Explanation,
• General Occurrence Report,
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5 and WO #6,
• Will States of WO #1, WO #2, WO #3 and WO #6,
• Notes and Will-States of 2 non-designated officers,
• Occurrence – Involvements,
• CEW Policy, and
• Witness List.

On September 14, 2016, 911 received a call regarding a domestic incident between the Complainant and CW #1. SO #2 and WO #2 responded to the call, arriving at the residence around 12:30 a.m.

The officers found the Complainant in his backyard. Upon seeing the police, the Complainant ran through his home and out a second story window onto neighbouring rooftops. SO #1 arrived on scene and located the Complainant on a rooftop. As the Complainant charged towards SO #1, SO #1 deployed his CEW. One probe connected with the Complainant’s shoulder, but appeared to have had no effect. The Complainant charged into SO #1, then ran across several rooftops in an effort to evade arrest until he fell to the ground below.

Once on the ground, the Complainant charged at SO #2. SO #1 again deployed his CEW at the Complainant, but was too far away at that point and it did not connect. The Complainant and SO #2 collided, and SO #3 came to assist SO #2. Both officers fell to the ground with the Complainant. SO #1 also assisted in controlling the Complainant.

The Complainant was handcuffed and an ambulance was called to remove the CEW probe and treat an apparent injury to his left side. X-rays revealed that the Complainant suffered a fractured left rib.

Section 145(2), Criminal Code - Failure to attend court

(2) Every one who,

1. being at large on his undertaking or recognizance given to or entered into before a justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court in accordance with the undertaking or recognizance, or
2. having appeared before a court, justice or judge, fails, without lawful excuse, the proof of which lies on him, to attend court as thereafter required by the court, justice or judge,

or to surrender himself in accordance with an order of the court, justice or judge, as the case may be, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years or is guilty of an offence punishable on summary conviction.

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.

On September 14^th, 2016, at 12:08:37 a.m., a 911 call was received by the HPS dispatcher reporting that the two tenants at a residence in the City of Hamilton were fighting and the caller could hear the female yelling, “Don’t hit me”. As a result, WO #2 and SO #2 were dispatched to the call. When WO #2 arrived on scene, he attempted to speak with the male tenant, the Complainant, who went inside the house and then attempted to flee out an upstairs window and across the roofs of other buildings. The Complainant was apprehended and thereafter taken to hospital where it was determined that he had sustained a fractured rib.

The Complainant was initially interviewed by SIU investigators on September 14^th, 2016 and made no allegation that any officer hit him or that his sore left rib and head were caused by anything other than his fall from the roof when he landed on a pipe.

The forensic investigators were able to locate the area where the Complainant believed he was injured and confirmed that a horizontal gas pipe and a raised step were on a second story flat roof at the back of the residence, as described in the Complainant’s statement. The flat rooftop was almost 3.6 metres below the neighbouring rooftop to the east from which the Complainant would have jumped.

As alleged by the Complainant, the CEW logs for the officers who responded to the call to arrest the Complainant confirmed that only one officer deployed his CEW, and he did so at 12:35:58 a.m. for a duration of three seconds and then again at 12:36:28 a.m. (taking into account the three minutes by which the CEW was found to be off) for a duration of five seconds. As well, only one probe was embedded in his left tricep.

The accounts of how the Complainant suffered his injury as recounted by the Complainant to paramedics, hospital personnel and medical personnel later at the Hamilton Wentworth Detention Centre (HWDC) are consistent to his initial statement to SIU investigators. It is summarized as follows by the paramedics who attended to the Complainant:

Patient conscious, alert and oriented x3, complains of left side rib pain reporting he fell from a roof onto a railing.

Once at HWDC, according to his medical records, the Complainant confirmed having received his injury as follows:

Inmate complained of pain, stated broken ribs left side, head smashed, left bottom bruised when he fell off roof prior to coming here.

And later:

• was “roof jumping”
• being chased
• fell off/jumped
  • could not see where landing
  • hit pole
  • ribs, head impacted
  • landed on lower roof “flat topped”
  • difference between two about 20 feet
• made a pretty weird noise
• thought I was going to die
  • were you high?  Yes

Both the medical records at the hospital and later at HWDC made findings consistent with the Complainant’s account as to how he was injured, indicating that he had a swollen left hand, a large bruise on his left buttock, a red mark to the back of his head and bruising to his left side rib area.

The communications recordings also confirmed the Complainant’s statement regarding the number of officers present at the time of his arrest; they revealed that in addition to the two officers initially responding to the scene, once the Complainant began to run on the roofs, an additional seven units either attended or were en route to assist in the pursuit of the Complainant. Each cruiser that responded was manned by only a single officer, with the exception of one cruiser which had two officers, for a total of ten officers. The communications recording further confirmed that one officer called in at 12:37:26 a.m. and indicated that he had deployed his CEW.

As a result of the above information, the Complainant was notified on October 18^th, 2016 that the file was closed with the finding being, as indicated by the Complainant, that his injury had occurred as a result of his fall from the roof without any intervention by police. At that time, the Complainant reported that he had been charged with two counts of assault police and that he now wished to change his statement and tell the truth. Consequently, the investigation was re-opened and the Complainant gave a second statement on October 20^th, 2016.

In the Complainant’s second statement, his version of events changed dramatically. The Complainant changed his description of his own actions, the number of officers that deployed their CEWs at him, exponentially increased the number of officers who surrounded him just prior to his arrest, and alleged that he was threatened and punched in his left side ribs by an unknown officer.

As indicated above, the physical evidence, which had confirmed the account of events in the Complainant’s first statement, contradicted the account given by the Complainant in his second statement.

Nine officers were identified as having been present during the pursuit of the Complainant, based on the communications tape and their notebook entries, and confirmed in their statements; although not all were physically present at the time that the Complainant was arrested. The following is a summary of the involvement of police officers at the scene, based on that evidence.

SO #2 and WO #2 were the first officers dispatched in response to the call for assistance at the residence and arrived at 12:27 a.m., according to the communications record. Upon arrival, the Complainant was located in the backyard and WO #2 called out to him, whereupon the Complainant turned and WO #2 observed him to be drenched in sweat, fidgety and his eyes were darting around; he was also observed to have a pair of wire cutters and pliers in his hands, which WO #2 ordered him to put down. The Complainant complied and then immediately ran inside the house and closed the door behind him. For officer safety reasons, SO #2 and WO #2 did not follow the Complainant inside, but instead called dispatch and requested assistance. WO #2 went to the back of the house and SO #2 was covering the front when she saw the Complainant exiting through an upstairs window onto the roof and yelled out to alert WO #2.

SO #1 and WO #4 both responded to the call for assistance, and climbed the stairs to the flat rooftop at the residence where they searched for the Complainant using their flashlights. SO #1 observed someone hiding behind an air conditioning unit and heard clanking noises, as a result of which he was concerned that the Complainant might be armed with a weapon and he drew his CEW and pointed it at the Complainant. SO #1 repeatedly told the Complainant to step out and show his hands whereupon the Complainant suddenly peeked out and charged aggressively towards SO #1; at that point SO #1 discharged his CEW but it did not stop the Complainant, who continued to run and struck SO #1 in the chest as he passed, throwing the officer to the side. SO #1 then observed the Complainant to jump off the flat roof onto a garage with a very steep roof and he believed that it was too risky for him to follow, so he reloaded his CEW and holstered it. SO #1 advised he did not wish to deploy his CEW at that point for fear it would cause the Complainant to fall off the roof. The Complainant then slid off the roof and landed on his feet about 3 metres below, at which point his body crumpled down as he landed and he knew struck his chest upon impact. The Complainant then stood and charged towards SO #2 and SO #1 drew his CEW a second time and discharged it from the rooftop towards the Complainant’s back, from about 4.5 metres away; SO #1 believed he was slightly out of range and no probes connected with the Complainant. SO #1 observed that the Complainant then collided chest to chest with SO #2 and they both pushed against the garage wall.

SO #3 observed the Complainant push his full body weight against SO #2 and then run towards SO #3. SO #3 told the Complainant to stop and then stood his ground bracing himself against the Complainant when he ran into him and then bounced backwards off SO #3’s chest. SO #3 described the Complainant as pushing back and refusing to listen to his commands to stop resisting, show his hands, and get on the ground, at which point SO #3 used several right handed open hand distractions to the Complainant’s face, similar to slaps, to get the Complainant to comply and give up his hands, but that technique was not successful. At that point, the Complainant was taken to the ground in an uncontrolled grounding and he fell back and landed on his left side. SO #3 also fell with the Complainant and struck the Complainant one more time with an open hand distraction blow to the face whereupon the Complainant immediately put one arm behind his back and SO #3 took control of it. Within seconds, other officers appeared and one of them took control of the Complainant’s other arm.

According to the statements of all officers present, other than SO #2, who declined to be interviewed, the officers involved in the struggle after the Complainant was grounded were SO #2, SO #3 and SO #1; when the Complainant was being handcuffed WO #2 arrived and assisted by holding his legs and WO #1 placed the handcuff on his wrist. No other officers took part in the struggle or subsequent handcuffing of the Complainant.

SO #3 advised that the Complainant told him at that point that he thought he broke his ribs when he jumped off the roof. SO #3 also observed a CEW prong in the rear of the Complainant’s left shoulder and called for Emergency Medical Services to remove it and to deal with the potentially broken rib.

According to all officers present, no officer struck, punched or kicked the Complainant other than SO #3, who conceded that he had employed a number of distractionary open-handed blows to the Complainant’s face in order to gain compliance. SO #3 advised that he, at no time, punched the Complainant nor extended a knuckle toward the Complainant in a threatening manner.[1]

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 911 call that officers were investigating an allegation of a possible incident of domestic violence and, additionally, an outstanding warrant for the arrest of the Complainant for failing to appear in court had been confirmed. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

On a review of all of the evidence, I accept the initial statement of the Complainant, as confirmed by the physical evidence, the communications recordings, the CEW logs and his utterances to police, paramedics and medical personnel at both the hospital and HWDC. I reject the second statement of the Complainant, because all of the items outlined above which confirm the first statement, contradict the second. Additionally, the Complainant’s second statement is also contradicted by CW #1. As such, I find that at the time of the giving of the second statement, the Complainant’s credibility and reliability had been almost totally compromised and the second statement cannot be relied upon to form reasonable grounds to believe that a criminal offence has been committed.

With respect to the amount of force used by officers in their attempts to apprehend and later subdue the Complainant, I find that their actions were justified in the circumstances and that they used no more force than necessary to first apprehend a fleeing Complainant who was running on the rooftops of people’s homes and garages, and then to arrest him. Furthermore, during the course of attempting to evade police, the Complainant had, at various points, assaulted SO #1, SO #2 and SO #3 and it appeared that he was certainly capable of assaulting or harming others, if not subdued.

I also find, on a review of all of the evidence, including the initial statement provided by the Complainant and the physical evidence that confirmed that account, that it is more almost a certainty that the Complainant suffered his injury when he fell from the rooftop; however, even if it were caused by the efforts of the officers to subdue the Complainant, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by SO #1 in deploying his CEW, as well as the force used by SO #2, SO #3 and SO #1 in the struggle to subdue the Complainant, progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance, combativeness and his unflinching desire to flee from police, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention. 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 were lawful notwithstanding the injury which he suffered, even were I to find that the officers caused the injury, which I am not inclined to do. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: September 7, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] As the complainant alleged that an unknown officer had done. [Back to text]