SIU Director’s Report - Case # 23-OCI-437
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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.Mandate Engaged
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injury of a 49-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injury of a 49-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On October 25, 2023, at 2:28 p.m., the Hamilton Police Service (HPS) contacted the SIU with the following information.On October 25, 2023, the Complainant attended the reception desk at the HPS Central Station and reported that he had been assaulted by HPS officers when he was arrested on October 22, 2023.
The Team
Date and time team dispatched: 2023/10/25 at 4:28 p.m.Date and time SIU arrived on scene: 2023/10/26 at 10:30 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
49-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on October 27, 2023.
Subject Official (SO)
SO Interviewed; notes received and reviewedThe subject official was interviewed on December 20, 2023.
Witness Officials (WO)
WO #1 Interviewed; notes received and reviewedWO #2 Interviewed; notes received and reviewed
WO #3 Interviewed; notes received and reviewed
WO #4 Interviewed; notes received and reviewed
The witness officials were interviewed between November 8 and 13, 2023.
Service Employee Witness (SEW)
SEW Interviewed; notes received and reviewedThe service employee witness was interviewed on November 22, 2023.
Evidence
The Scene
The events in question transpired on and around an asphalt pavement beside the roadway in the area of Main Street East and Strathearne Avenue, Hamilton. Forensic Evidence
Conducted Energy Weapon (CEW) Deployment Data – The SO
The trigger was pulled, and Cartridge Bay #1 deployed, at 4:50:51 p.m., [2] October 22, 2023. The deployment lasted one second. The trigger was pulled again at 4:50:53 p.m., and Cartridge Bay #2 was deployed. The deployment lasted 15 seconds. Video/Audio/Photographic Evidence [3]
HPS In-car Camera (ICC) Footage – The SO’s Cruiser
On October 22, 2023, starting at about 4:49 p.m., the SO was captured arriving on scene. Two cruisers were already present. There was a struggle on the ground with three HPS officers [now known to be WO #1, WO #4, and the SEW] attempting to control the Complainant. The SO ran towards the Complainant’s head. He knelt and punched the Complainant on the top of his head with his right fist. The punch had no effect. The struggle continued and the SO delivered four additional strikes to the head. The struggle continued.
Starting at about 4:52 p.m., the SO reached for his CEW and deployed it at the Complainant. The SO eventually got to his feet while holding his CEW. Seconds later, three other HPS officers arrived, and the Complainant was taken into custody.
Starting at about 4:55 p.m., a sergeant arrived on scene. The sergeant was heard asking the SO if he had any injuries and he indicated that the hand used to punch the Complainant was injured. The SO was directed to get an X-ray. The SO advised the sergeant that he “tazed” the Complainant and punched him a couple of times.
911 Phone Calls
On October 22, 2023, at 4:03 p.m., a woman called 911 to report a possible impaired driver in the area of Main Street East and Strathearne Avenue, Hamilton.On October 22, 2023, at 4:03 p.m., another 911 caller reported a man [the Complainant] had jumped out of a moving vehicle he had been driving in the same area. The pick-up truck ran into a white Mercedes and damaged the back-end of the vehicle. The Complainant was still present in the area and wandering around. The location was provided. The caller was unsure if the Complainant was high and she provided a physical description. The caller advised that the Complainant got back into his pick-up truck, and she provided his direction of travel.
Materials Obtained from Police Service
Upon request, the SIU obtained the following materials from the HPS between October 22 and 31, 2023:- Computer-assisted Dispatch Report;
- General, Supplementary and Arrest Reports;
- Communications recordings;
- Names, contact information and statements provided of all civilian witnesses;
- ICC video recordings;
- CEW deployment data;
- Duty notes - the SO;
- Duty notes - WO #4;
- Duty notes - WO #3;
- Duty notes - WO #1;
- Duty notes - WO #2;
- Duty notes - the SEW;
- Motor Vehicle Collision Report; and
- Third-party cellular telephone video recording.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between October 27, 2023, and November 8, 2023:- The Complainant’s medical records from Hamilton General Hospital; and
- Video footage from the Complainant.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, and video footage that captured the incident in parts, gives rise to the following scenario.
In the afternoon of October 22, 2023, the police were alerted to a possibly impaired driver in the area of Main Street East and Strathearne Avenue, Hamilton. A 911 call had been received of a male operating a pick-up truck which, after he exited, had travelled into another vehicle causing damage. The male wandered for a brief period, seemingly high, before returning to the pick-up and driving away. WO #1 and his partner, the SEW, arrived on scene, spoke with witnesses and set off to locate the pick-up truck. They found it a short distance away parked beside a building. A male – the Complainant – was seated in the driver’s seat.
On seeing WO #1 and the SEW approaching his truck on foot, the Complainant exited and unsuccessfully attempted to enter the building through a locked door. WO #1 informed the Complainant that he was being investigated for a collision in the neighbourhood. The Complainant denied being involved. Told that he was under arrest for impaired driving, the Complainant objected. He pulled away from WO #1 but was ultimately brought to the ground. The Complainant struggled against the officers’ efforts to secure him in handcuffs and was met by physical force. WO #1 punched him a couple of times to the abdomen and the SEW delivered a knee to the stomach. The three continued to wrestle on the ground as other officers made their way to the scene.
WO #4 was next to arrive followed shortly by the SO and his partner, WO #3. The three joined the struggle to subdue the Complainant. WO #4 punched the Complainant once to the armpit area, the SO punched him five times to the head, and WO #3 deployed his oleoresin capsicum (OC) spray. Still, the officers were unable to overcome the Complainant’s resistance and handcuff him. That only happened after the SO discharged his CEW twice.
The Complainant was taken from the scene to hospital in ambulance where he was diagnosed with a broken orbital bone.
In the afternoon of October 22, 2023, the police were alerted to a possibly impaired driver in the area of Main Street East and Strathearne Avenue, Hamilton. A 911 call had been received of a male operating a pick-up truck which, after he exited, had travelled into another vehicle causing damage. The male wandered for a brief period, seemingly high, before returning to the pick-up and driving away. WO #1 and his partner, the SEW, arrived on scene, spoke with witnesses and set off to locate the pick-up truck. They found it a short distance away parked beside a building. A male – the Complainant – was seated in the driver’s seat.
On seeing WO #1 and the SEW approaching his truck on foot, the Complainant exited and unsuccessfully attempted to enter the building through a locked door. WO #1 informed the Complainant that he was being investigated for a collision in the neighbourhood. The Complainant denied being involved. Told that he was under arrest for impaired driving, the Complainant objected. He pulled away from WO #1 but was ultimately brought to the ground. The Complainant struggled against the officers’ efforts to secure him in handcuffs and was met by physical force. WO #1 punched him a couple of times to the abdomen and the SEW delivered a knee to the stomach. The three continued to wrestle on the ground as other officers made their way to the scene.
WO #4 was next to arrive followed shortly by the SO and his partner, WO #3. The three joined the struggle to subdue the Complainant. WO #4 punched the Complainant once to the armpit area, the SO punched him five times to the head, and WO #3 deployed his oleoresin capsicum (OC) spray. Still, the officers were unable to overcome the Complainant’s resistance and handcuff him. That only happened after the SO discharged his CEW twice.
The Complainant was taken from the scene to hospital in ambulance where he was diagnosed with a broken orbital bone.
Relevant Legislation
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
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) 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.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by HPS officers on October 22, 2023. The SIU was notified of the incident and initiated an investigation naming the SO the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
Knowing what they did of the 911 call that had come in of an impaired driver, and having spoken with witnesses to the event who offered a description of the Complainant and his vehicle, I am satisfied that the officers were within their rights in seeking to arrest the Complainant for impaired driving.
I am also satisfied that the force used by the SO and the other officers did not exceed what was legally justified in the circumstances. It is apparent in the video footage of the arrest that the Complainant presented as a formidable opponent. Despite five officers on him, he put up a protracted and vigorous struggle. None of the physical strikes delivered by the officers, including the SO, had managed to sufficiently subdue him to control his arms behind his back. The OC spray was similarly ineffective. It was only after the second of the SO’s CEW discharges that the officers were able to handcuff the Complainant. No further force was brought to bear by the police. On this record, I am unable to reasonably conclude that the Complainant was subjected to excessive force.
In the result, while I accept that the Complainant’s injury was incurred in the altercation that marked his arrest, most likely, one or more of the punches delivered by the SO, there are no reasonable grounds to believe it was attributable to any unlawful conduct by the officers. As such, there is no basis for proceeding with criminal charges in this case.
Date: February 22, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
Knowing what they did of the 911 call that had come in of an impaired driver, and having spoken with witnesses to the event who offered a description of the Complainant and his vehicle, I am satisfied that the officers were within their rights in seeking to arrest the Complainant for impaired driving.
I am also satisfied that the force used by the SO and the other officers did not exceed what was legally justified in the circumstances. It is apparent in the video footage of the arrest that the Complainant presented as a formidable opponent. Despite five officers on him, he put up a protracted and vigorous struggle. None of the physical strikes delivered by the officers, including the SO, had managed to sufficiently subdue him to control his arms behind his back. The OC spray was similarly ineffective. It was only after the second of the SO’s CEW discharges that the officers were able to handcuff the Complainant. No further force was brought to bear by the police. On this record, I am unable to reasonably conclude that the Complainant was subjected to excessive force.
In the result, while I accept that the Complainant’s injury was incurred in the altercation that marked his arrest, most likely, one or more of the punches delivered by the SO, there are no reasonable grounds to believe it was attributable to any unlawful conduct by the officers. As such, there is no basis for proceeding with criminal charges in this case.
Date: February 22, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Unless otherwise specified, the information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) The times are derived from the internal clock of the weapon, which is not necessarily synchronous with actual time. [Back to text]
- 3) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.