SIU Director’s Report - Case # 20-OCI-242
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Mandate of the SIU
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 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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 a serious injury sustained by a 56-year-old woman (the “Complainant”).
Notification of the SIUOn September 28, 2020, at 9:52 a.m., the Hamilton Police Service (HPS) notified the SIU of the following:
On December 7, 2019, HPS police officers were asked to assist EMS (Emergency Medical Services) at an address on Queen Street. When two police officers arrived, they apprehended the Complainant under the strength of the Mental Health Act. No issues were documented during the apprehension.
On August 27, 2020, the Complainant filed an Office of the Independent Police Review Director (OIPRD) complaint in which she stated that during her apprehension on the abovementioned date, police officers were rude to her and she had broken her left wrist as a result of the interaction.
On December 12, 2019, the Complainant attended a fracture clinic for an X-ray, and the results showed no fracture. On December 23, 2019, the Complainant attended the clinic again for an X-ray, and the results showed she likely had a small avulsion fracture to her left wrist.
The HPS had met with the Complainant and was able to obtain a copy of her medical record from the clinic.
The TeamNumber of SIU Investigators assigned: 4
Complainant:56-year-old female interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed '
Witness OfficersWO Interviewed
Police Employee WitnessesPEW Interviewed
Subject OfficersSO Interviewed, and notes received and reviewed
The SceneThe incident is alleged to have occurred inside an elevator in the lobby of a building on Queen Street.
Communications RecordingsThe following is a summary of the 911 phone calls received by the HPS on December 7, 2019, starting at 5:16 p.m. regarding a person in crisis at an address on Queen Street:
911 call-taker (CT): Ambulance, what’s your emergency?
Male (M): Hello, I’m calling, I’m a physician, I’m doing on-call service for a family practice. I’ll give you the address now. It’s [address]. So, the patient calls us at our on-call service, she says that she’s going to kill herself because she is locked out of her apartment, they have nowhere to go, so I’m just hoping for ambulance to go and assess her, and to bring her to hospital if needed.
CT: Is the person awake?
CT: Is the person breathing?
M: She was speaking in full sentences that’s all I can say.
CT: Tell me what happened?
M: So, she said her apartment was being cleaned up by the landlord. When she went back today, it was not livable. Her furniture was upside down, nobody came in to help her and the landlord won’t help her out, she can’t find any help and she’s tried 911, police, COAST. She’s threatening suicide, because she can’t get help. I tried to help her, I tried some options, but she is fed up and hung up on me and said she would kill herself.
CT: Does the person have any weapons?
M: That I cannot say for certain.
CT: Violent or dangerous to herself or others?
M: To self, yes.
Ambulance dispatcher (AD) comes into the conversation;
AD: So, police will be attending ambulance with this, it seems to be a person in crisis. What’s the name of the patient?
M: [The Complainant].
AD: Okay I think I’ve got everything I need right now, thank you sir, do you need to be advised of the outcome?
Second call - Police Dispatcher (PD) calls the Complainant
PD: Hi [the Complainant], it’s the police calling.
The Complainant: Yes.
PD: How are you?
The Complainant: Not good. I tried calling you for help and was told you don’t deal with this matter so please leave me alone.
Call disconnects and PD calls back
The Complainant: If this is the police, leave me alone, I’m not dealing with you, and hangs up.
PD calls back again
The Complainant: What do you want?
PD: Alright, so apparently you called and spoke to a doctor and said you’re going to hurt yourself.
The Complainant: That’s the only option left. I’ve tried the police, I’ve tried the fire, arguing with the landlord office today, there is no getting out of this.
PD: What happening, what’s going on with your apartment?
The Complainant: I moved into this fucking hell hole, it’s a death trap, hangs up.
PD calls back again. There is no answer. Dispatcher leaves a message to call back at 911 so they can help her.
The following is a copy of a 911 call on December 7, 2019 at the HPS:
911: 911 police, fire ambulance?
The Complainant: Police.
CT: Where do you need the police?
The Complainant: They tried to call me, and I guess my phone cut off and they asked me to call back.
CT: Okay were you calling for something, what’s the address?
The Complainant: [Provides address and name]
CT: So, yeah [the Complainant] we were just trying to get some clarification because you made some comments that you were going to go and kill yourself, is that correct?
The Complainant: Yep.
CT: Okay, are you still feeling that way.
The Complainant: Yep.
CT: How do you want to take your own life; do you have a plan?
The Complainant: I have plenty of plans.
CT: Are you home right now?
The Complainant: I’m not.
CT: Where are you?
The Complainant: I’m out and that’s all I’m saying.
CT: Okay, well if you’re not going to be co-operative, we are going to have to come and find you, man.
The Complainant: Well, that’s going to be useless, because I’ll be hard to find.
CT: Okay, well why don’t we just try to get you some help, if that’s what you’re looking for tonight.
The Complainant: I’ve already been told the police don’t deal with this matter that I need help with so.
CT: Who told you that?
The Complainant: The police when I called you the very first time.
CT: Well I’m sorry you were told that, but we are definitely going to get you some help and assistance, okay.
The Complainant: You’re going to deal with my landlord.
CT: We can absolutely deal with your landlord, that’s what we are here for to help your guys.
The Complainant: Because, when I asked you to do that in the first place around four o’clock today, I got told we don’t deal with that and they gave me a number to call for landlord and tenant.
CT: Yeah, sometimes the landlord and tenant board.
The Complainant: And they are closed until Monday, I’m stuck […] The security can lock me out at any fucking second.
CT: Okay, so sometimes the landlord and tenant board can give you some advice. I’m sorry they are closed.
The Complainant: I’m already going through a human rights case with the landlord and that’s why [she is doing this].
CT: Okay, well it might have been a miscommunication so I’m going to make sure you get some help today [the Complainant] okay. So, you said your waiting in […] the building.
The Complainant: That’s where I’m supposed to be.
CT: Okay, where are you right now?
The Complainant: I’m out on the street at the moment. I’m not going to say what street.
CT: Why don’t you want to disclose the street, if you want to get some help we need to know where you are.
The Complainant: Because it seems to be useless, I’ve tried the police, I’ve tried my doctor.
CT: [The Complainant], I’m reassuring you that it’s not useless and that there might have been a miscommunication and I’m going to get you some help tonight, so I don’t want you to think we are not going to help you because we are.
The Complainant: You really think you are going to get my landlord here to set my unit up so I can go back into it to be able to sleep or to sit.
CT: [The Complainant], you just need to take a deep breath because I’m trying to give you some options and some help and you’re just talking over me okay. So, I want to let you know we are going to give you some help with the landlord, it’s not going to be instant. We can’t make things happen right away, but we can definitely give you options and talk to the landlord.
The Complainant: [provides medical information].
CT: So, do you feel like you need an ambulance right now?
The Complainant: No, no I’m not going to no frigin hospital.
CT: Okay, so I’ve given you some really good advice, and I’m going to get you some good help tonight, okay so why you don’t make your way back to the address and I’m going to send officers over there to give you a hand. Is that fair [the Complainant]?
The Complainant: Are they going to be male cops?
CT: I can make a note for them to be female.
The Complainant: Yes, because the last ones that came were males and they assaulted me.
CT: Okay, so if you want to start making your way back to the Queen Street address I will let my dispatcher know that you are requesting a female officer and like I said I am going to get you some help tonight, okay so let try and stay on the same page don’t worry about what the other people told you we are going to get you some good help tonight and I want you to make your way back to the address and we will have officers reattend there to the lobby.
The Complainant: I can be back there in ten minutes […] I can meet them in the lobby.
CT: Okay, I have all those details in there, thank you for calling us back [the Complainant], we will get some good help over there for you shortly okay.
Another call received by HPS:
CT: 911 police fire and ambulance?
The Complainant: Police.
CT: Where do you need the police?
The Complainant: I was just taking with them, it’s [the Complainant].
CT: Okay, [the Complainant] so that’s for Queen Street, we just spoke what’s going on what’s changed?
The Complainant: Why is the paramedics here?
CT: Pardon me?
The Complainant: Why is the paramedics here?
CT: Let me have a look here and check for you okay, let’s not get too worked up. I’m just looking here, mam, to see why?
The Complainant: I have got you on speaker, please tell them to leave.
CT: Hi, ambulance, its police dispatch here.
The Complainant: Please tell the paramedics to leave.
CT: I’m not going to tell them to leave, if they are there to assess you, mam.
The Complainant: I’m going to walk out right now.
CT: Well I don’t want you to walk out, so just give me a moment okay. Just tell them to wait for police, okay?
The Complainant: They heard you.
CT: Thank you, mama, and we will be there when we have officers free, okay?
The Complainant: Thanks.
The following is a copy of dispatch for a person in crisis:
D: Dispatch to [call sign (CS) #1)].
CS #1: Go ahead
D: I’m going to get you started on a person in crisis, ambulance just called its [address] is where the female resides […]. Supposedly the on-call physician has some concerns, the female made a comment she was going to kill herself. There is no method mentioned. COAST is also involved making sure we got the call. So, this is a [the Complainant], she shown symptoms [medical condition] otherwise clear. Ambulance will be on scene standing by she will not allow them access to her rental until police are on scene, no noted injuries.
CS #2: [Unable to make out], under the Mental Health Act.
D: 10-4 section 17 and 19, do you need another unit there. Can I get another unit over to [the address]?
CS #2: Are you sending more units?
D: I was just getting a status rep are you 10-4 there?
CS #2: Yeah, we are 10-4, we apprehended, everything is good, no units required.
Summary of the Closed-circuit Television (CCTV) footage
7:25:30 p.m. (actual time) - Video begins. There is a stretcher in the lobby.
7:25:32 p.m. – The Complainant walks towards the elevators. The Complainant is followed by two uniformed police officers. There is a man wearing a yellow vest and plain clothes behind the officers. There are two paramedics also following behind the police officers.
7:25:41 p.m. – The man with the yellow vest steps to the left side of the elevators. One police officer is standing on the right side of the elevators and appears to be speaking to the Complainant who is standing to the police officer’s left. An employee is standing on the staircase above the elevators.
7:25:47 p.m. – The elevator door opens and the Complainant steps inside and goes out of sight. The police officer on the right side of the elevator appears to try and go onto the elevator with the Complainant. The police officer bends into the elevator. The man with the yellow vest is standing in front of the elevator door blocking the view. The Complainant comes out of the elevator and is standing next to the man with the yellow vest. One of the police officers is holding onto the Complainant’s left arm. The paramedics are preparing the stretcher.
The time stamp is no longer visible on the video at this time. The time references below indicate elapsed time from start of recording:
1:06 min – The police officer on the left is physically engaged with the Complainant and is assisted by the man wearing the yellow vest. The Complainant’s hands are now behind her back.
2:12 min – The Complainant walks to where the stretcher is to the right side of the lobby. The police officer is going through the Complainant’s coat pockets.
2:34 min – The Complainant tries to kick the police officer with her right leg.
3:03 min – The police officer to the right of the Complainant moves a cat carrier to the side.
3:04 min – The Complainant is standing and appears to be speaking to the police officers and paramedics. One of the officers moves to the Complainant’s right to search her coat. The Complainant pulls away. The police officer empties the Complainant’s coat pockets. The police officer on the Complainant’s left side removes property from the Complainant’s coat pocket. The Complainant continues to pull away.
4:00 min – One of the paramedics points at the stretcher while speaking to the Complainant. The Complainant is standing on her own, moving around, and appears to be speaking.
6:26 min – One of the police officers becomes physically engaged with the Complainant to get her onto the stretcher. The second police officer and the man with the yellow vest assist.
6:31 min – The Complainant is on the stretcher on her back. The police officers are holding the Complainant’s legs. A paramedic wraps the Complainant’s legs with a white ribbon.
7:30 min – The police officers are no longer holding the Complainant.
8:35 min – An employee takes the Complainant’s cat carrier. A police officer grabs the Complainant’s property.
10:00 min – The Complainant is wheeled out of the lobby by the paramedics.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from HPS:
- Arrest Policy;
- Communications recordings;
- Computer-assisted Dispatch-Event Chronology;
- HPS Contact with Person in Crisis Form;
- Mental Illness Policy;
- Notes of the WO;
- Training Record-the SO; and
- Use of Force Policy.
Materials obtained from Other SourcesUpon request, the SIU obtained and reviewed the following documents from the Hamilton EMS, Hamilton General Hospital (HGH), McMaster Family Practice (MFP), Medical Record-Charlton X-Ray and Ultrasound, St. Joseph’s Health Care (SJHC) and the Complainant:
- Ambulance Call Reports;
- Medical Record-HGH;
- Medical Record-MFP;
- Medical Record-SJHC;
- Medical Record-Charlton X-Ray and Ultrasound; and
- OIPRD Complaint-the Complainant.
The SIU also obtained and reviewed video footage of the address on Queen Street.
The Complainant was indeed frustrated that day. Having been removed from her apartment in order that it might be treated for pests, the Complainant had returned to find her residence in disarray. Not satisfied with staying in a common room while the landlord tried to address her concerns, and having been initially apprised by police that she should call the landlord and tenant board for redress, the Complainant was at her wits’ end. When the police called her back having been advised by the ambulance service of the Complainant’s predicament, she confirmed that she was in fact thinking of committing suicide.
The paramedics were the first to arrive at the building, followed by the SO and the WO, the former in the company of an off-duty special constable, the PEW. The Complainant was in no mood to be cooperative and gave the paramedics and officers a hard time. She refused the paramedics’ offer to bring her to hospital to be examined. And she rejected out of hand the officers’ ideas for temporary alternate housing arrangements. When asked by the officers what she had meant by the suicide threats, the Complainant told them not to worry about it.
Concerned about the Complainant’s mental health and well-being, the SO decided to apprehend her under the Mental Health Act. The officer followed her as she made her way to the lobby elevator and stepped in to go up, presumably to her apartment. The SO asked the Complainant to calm down and attempted to win her over but she was insistent that she be left alone. As the elevator door was closing, the SO used his foot to keep it open. The Complainant grew angrier and attempted to push the officer away. The SO took hold of the Complainant and removed her from the elevator. While handcuffed with her arms behind her back, the Complainant was placed on a stretcher, loaded into the ambulance and taken to hospital.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(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,
Section 17, Mental Health Act -- Action by police officer
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or(c) has shown or is showing a lack of competence to care for himself or herself,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) serious physical impairment of the person,
Analysis and Director's Decision
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. By the time of her arrest, the Complainant had repeatedly indicated that she had designs on killing herself by jumping from her apartment or overdosing, and dismissed questions from paramedics and police about her intentions. Coupled with concerns having been expressed from her physician regarding her mental health, the lack of any immediate solution to her housing situation, and signs that the Complainant was intoxicated at the time, I am satisfied that the SO had grounds under section 17 of the Mental Health Act to take the Complainant into custody for psychiatric assessment at hospital.
Thereafter, there is insufficient evidence to reasonably conclude that the Complainant was subjected to excessive force. There is some evidence that the Complainant was manhandled by the SO while in the elevator in the course of her arrest. Specifically, this evidence indicates that the SO pushed the Complainant from behind causing her left hand to strike the frame around the elevator, fracturing it in the process. However, none of the witnesses who were in the area saw the SO rough the Complainant up in the manner she describes. If anything, the tenor of the countervailing evidence indicates that the Complainant was the aggressor, repeatedly striking the SO with her hands and feet, and that the officer responded in a restrained and professional manner. For his part, the SO denies using force on the Complainant beyond that which was necessary to take control of her arms and place them around her back; at no time, says the officer, did he push her against the elevator.
In the result, while I accept that the Complainant’s left wrist might well have been fractured in the course of her arrest on December 7, 2019, perhaps the result of the application of the handcuffs, the evidence of assault is insufficiently cogent to warrant being put to the test by a trier of fact in light of the strength of the evidence to the contrary. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Date: March 8, 2021
Electronically approved by
Special Investigations Unit
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.