SIU Director’s Report - Case # 21-OCI-082
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Mandate of the SIU
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.
Special Investigations Unit Act, 2019Pursuant 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 ActPursuant to section14 (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, 2004Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.
Other proceedings, processes, and investigationsInformation 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.
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 serious injuries sustained by a 54-year-old man (the “Complainant”).
Notification of the SIUOn March 15, 2021, at 1:48 p.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant.
Reportedly, on March 14, 2021, at about 4:00 p.m., HPS officers responded to a call regarding a family trouble in progress at an apartment on Main Street. Upon their arrival, officers attempted to breach the front door when the Complainant refused to open it. After entry was achieved, the Complainant struggled with officers inside the apartment and was arrested for aggravated assault for serious injuries sustained by the Complainant’s stepfather, who was found unconscious with extensive facial injuries and laboured breathing.
The Complainant was transported to Central Station for processing, where he engaged officers in a struggle in the hallway and in the Criminal Investigative Division (CID) holding cell.
The following day, the Complainant was transported to Hamilton General Hospital (HGH), where he was diagnosed with fractured ribs on the left side.
The TeamDate and time team dispatched: 03/15/2021 at 2:13 p.m.
Date and time SIU arrived on scene: 03/15/2021 at 4:15 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
SIU investigators interviewed the Complainant and, with his written authorization, obtained copies of the medical records relevant to the incident, including the ambulance call report.
SIU investigators interviewed civilian and police witnesses, and obtained video relevant to the incident.
The HPS commenced a parallel criminal investigation into the circumstances surrounding the Complainant’s interaction with his stepfather prior to police arrival. The SIU obtained a copy of HPS forensic identification work product.
Affected Person (aka “Complainant”):54-year-old male interviewed, medical records obtained and reviewed
The Complainant was interviewed on March 15, 2021.
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
The civilian witnesses were interviewed between March 15, 2021, and March 17, 2021.
Subject OfficialsSO #1 Interviewed, and notes received and reviewed
SO #2 Interviewed, and notes received and reviewed
SO #3 Interviewed, and notes received and reviewed
SO #4 Interviewed, and notes received and reviewed
The subject officials were interviewed on March 26, 2021.
Witness OfficialsWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
The witness officials were interviewed between March 17, 2021, and March 23, 2021.
Service Employee WitnessesSEW #1 Interviewed
SEW #2 Interviewed
The service employee witnesses were interviewed on March 17, 2021, and March 18, 2021.
The Scene On March 15, 2021, at 4:15 p.m., an SIU forensic investigator attended the police station to photograph and obtain relevant evidence.
The booking area was located in the sub-basement. There were numerous halls that led from the central booking area, housing individual holding cells.
The cell where the Complainant was lodged, which was sealed, was located in the adult men’s section. The cell consisted of a clear plexiglass sliding secure door, a raised concrete bunk, and a toilet with attached basin. Pieces of toilet paper littered the ground.
Each cell was equipped with closed-circuit television (CCTV) cameras on the opposite wall of the cell entry doors. There were numerous ceiling-mounted CCTV cameras monitoring activity in the hallways. At the west end of the hall, there was a large common booking area, which was also monitored by ceiling and wall-mounted CCTV cameras. At the booking desk, there were monitor screens to view each prisoner cell and hall area. There was a hallway that led east from the booking area and south of the men’s cell hallway. This hallway led to the on-duty security Sergeant’s Office, the fingerprint room, female cells, and the elevator exit door. The above areas were photographed and examined, with no evidence located.
The elevator was used to transport prisoners to the second floor CID offices, which was controlled by a card access lock. There were no CCTV cameras in the halls or in the immediate office. The access door had a handwritten note affixed to it, “Do not use #4.” A policy and procedure were also affixed to the door indicating that detained persons must be checked every 15 minutes.
Beyond the entrance to the CID office was a small hall to the south, which contained small individual prisoner rooms. Temporary storage room #4 was sealed with a sign on the door which read, “Do not use #4.” There was a small window in the door, and the door locked with a sliding barrel lock. The room had a small metal table and a single metal bench affixed to the wall. There was a visible red stain on top of the bench which was swabbed and referenced as Exhibit #1. The above-mentioned areas at the police station were photographed.
Figure 2 - The red stain on the table in temporary storage room #4 of the CID office.
The Complainant’s interaction with police occurred in the living room, which was cluttered and very confined. There were two shelving units that were pulled away from the wall and a three-seat couch in front of the wall. In front of a black ottoman, there was a telephone handset on the floor, with the battery unit showing.
There was minimal evidence of a disturbance in the living room.
Physical Evidence The cartridge case from SO #3’s CEW was obtained by SIU.
The only other physical piece of evidence was a biological swab of a red stain on the bench seat of the CIB cell #4.
CEW DownloadOn March 15, 2021, the SIU photographed and downloaded data from two CEWs. One of the CEWs was not used at the date and time of the incident.
Taser Model X2
This CEW was used by SO #3. The data obtained by the SIU from the CEW on March 15, 2021, afforded the following information.
On March 14, 2021, at 5:31:41 p.m.,  SO #3’s CEW was armed. At 5:31:54 p.m., SO #3 deployed the CEW for a one second arc with no cartridge deployment. At 5:32:14 p.m., SO #3 deployed one of two cartridges for a cycle duration of 27 seconds. At 5:32:55 p.m., SO #3 redeployed cartridge one for a cycle duration of 23 seconds. At 5:33:23 p.m., SO #3 deployed cartridge one for a cycle duration of 13 seconds.
Video/Audio/Photographic Evidence1The SIU searched for and obtained audio, video, photographic records of relevance, as set out below.
HPS 911 CommunicationsOn March 24, 2021, the SIU received relevant communication recordings from the HPS. A summary of the material information therein follows.
On March 14, 2021, at 3:52 p.m., an emotional female [now known to be CW #1] called 911 to report that her son, the Complainant, had beaten her husband to death. In the background, CW #1 told the Complainant that she was going to shoot him because he hurt her husband. The Complainant replied, “Go ahead.”
CW #1 told the 911 call-taker that the Complainant hit her husband with a lamp and killed him. A winded Complainant told the 911 call-taker, “There’s a fucking Nazi here. I killed him. He did not deserve to be here.” The Complainant requested a pat on the back, $10,000.00 and a firearm to shoot him [the husband].
As the Complainant made his demands, responding officers asked the Complainant to open the door several times and sounds of the door being struck were heard. Following a police request to open the door, the Complainant told police to, “Stay the fuck back!”
Radio CommunicationsAt 3:52:50 p.m., a priority “0” for family trouble in progress at Main Street was broadcast over the police radio. SO #1, SO #2, WO #2 and WO #3 responded to the request for units to attend. While the 911 call-taker was on the line with CW #1, the Complainant said, “There was a Nazi here. I killed him.” Hamilton Emergency Medical Services (EMS) were dispatched and staged at ground level.
At 3:59 p.m., a person and address check relevant to the Complainant yielded negative results. CW #1 told the 911 call-taker that she would wait for police in the lobby.
Upon police arrival at the apartment, SO #1, SO #2, WO #2 and WO #3, encountered a locked front door. The Complainant refused to open the door for police, stated he did not want to be charged, and requested a pat on the back. WO #3 left to obtain a breaching kit.
While the Complainant was still on the phone with the 911 call-taker, WO #2 advised police had made entry.
At 4:04 p.m., WO #3 advised the Complainant was in police custody. WO #2 requested that paramedics attend quickly as a man was bleeding profusely from his head. WO #3 reported the man was unconscious, and had substantial facial injuries and laboured breathing.
At 4:30 p.m., SO #2 requested a second EMS unit to attend the scene to assess the Complainant. Due to the Complainant’s behaviour within the police vehicle and given that he had moved his handcuffs to the front of his body, WO #3 believed there was a safety concern for paramedics and police. At 4:52 p.m., the custody desk was notified of the Complainant’s arrival at the station and of his assessment by paramedics in the security bay.
On March 15, 2021, at 7:29 a.m., a request for a prisoner transport to hospital for possible rib fractures was made via the communications centre.
HPS Custody VideoOn March 17, 2021, the SIU received the custody video of the Complainant from the HPS. The video consisted of footage from the security garage, booking desk, corridors and hallways. The CID holding area was not monitored by cameras. The recordings were date and time stamped, in colour and without audio. A summary of the material information therein follows.
At 5:28 p.m., the Complainant, who was handcuffed with his hands to the front of his body, was escorted into the booking hall from the security garage. SO #2 was positioned on the Complainant’s left side and SO #1 on his right, with SO #3 approximately one arm’s length in front.
Prior to his entrance into corridor “L”, the Complainant stepped back towards the custody desk. SO #2 took hold of the Complainant’s left arm and began to usher him forward. Following several steps, the Complainant stopped again and SO #1 took hold of the Complainant’s right arm. As SO #1 and SO #2 moved towards corridor “L”, the Complainant resisted their efforts by pulling away and appeared to plant his feet in the ground.
After a few more steps, the Complainant stopped walking, prompting SO #3 to take hold of the Complainant’s hands to continue to move forward. WO #5 arrived to assist. Following a few more steps, the Complainant stopped and wrapped his legs around SO #3 waist and left leg prior to falling face forward to the ground, with SO #2 landing on top of him. SO #3 appeared to stumble but otherwise remained on his feet in the area of the Complainant’s feet.
While on the ground, the Complainant flailed his body and resisted efforts of officers to maintain control of his hands as he moved them above his head and underneath his chest. When he lifted his head off the ground, the Complainant’s hands were visible underneath his chest. WO #4 and WO #5 were positioned at the Complainant’s feet, SO #2 at the Complainant’s right upper body and SO #1 on his left torso.
SEW #1 entered the hallway and provided a set of shackles to WO #4 to apply to the Complainant’s feet. As the Complainant continued to struggle, SO #4 entered the hallway and went to her knees on the Complainant’s left side to assist. At 5:29 p.m., SO #3 went to his knees in the area of the Complainant’s left upper torso, where a red light was observed near his upper body, presumably from a CEW. The independent actions of the designated officials were difficult to determine, given the number of uniformed members in the hallway attempting to control a resistant Complainant.
At 5:33 p.m., the Complainant was assisted to his feet. He was handcuffed with his hands behind his back and feet secured in shackles. SO #1 and SO #2 maintained control of the Complainant’s arms with SO #3 following towards the elevators.
At 6:59 p.m., the Complainant was escorted from corridor “L” to the custody area. He walked on his own accord and he appeared to favour his left side.
At 7:08 p.m., while in cell eight, the Complainant appeared to rub the area of his left side.
At 8:07 p.m., the Complainant appeared to complain to a female police officer [now known to be SO #4] about his ribs.
At 9:39 p.m., SO #3 attended the cell door and appeared to verbally engage the Complainant.
A review of the remaining cell video did not depict the Complainant doing anything to cause or contribute to a rib injury.
CCTV from Main Street On March 16, 2021 at 6:45 p.m., the SIU obtained relevant CCTV from Main Street. The SIU learned the video was one hour behind actual time due to the recent change in daylight savings time. As such, the referenced times have been adjusted to reflect actual time.
On March 14, 2021, at 3:55:22 p.m., a female [now known to be CW #1] entered the elevator and went to the ground level. At 4:01:09 p.m., the first police officer [now known to be SO #1] arrived on scene and entered elevator 2.
At 4:03:10 p.m., a second police officer [now known to be WO #3] arrived on scene.
At 4:02:30 p.m., a female police officer [now known to be WO #2] arrived on scene. At 4:02:35 p.m., a fourth police officer [now known to be SO #2] arrived on scene. He and WO #2 ran to the stairs.
At 4:03:09 p.m., a sergeant arrived on scene and spoke to CW #1 in the lobby.
At 4:05:15 p.m., a male and female police officer arrived on scene and entered the elevator. Another male police officer spoke to CW #1.
At 4:05 p.m., the fire department arrived on scene.
At 4:10:15 p.m., the Complainant was handcuffed with his hands behind his back and escorted to the main lobby via the elevator by SO #1, SO #2 and WO #3. He was wearing jeans and a T-shirt. The Complainant was calm when he was escorted to the front door by SO #1 and SO #2. He appeared to be uninjured.
At 4:17:55 p.m., the Complainant’s stepfather was secured on a stretcher with extensive head and facial trauma and taken to the ground level via the elevator with WO #2 and three paramedics on board.
Materials Obtained from Police Service The SIU obtained the following records from the HPS between March 17, 2021, and April 19, 2021:
• 911 and audio communications recordings;• Bail Opposition;• Event Chronology;• Forensic 3D scan and scene photos;• General Report (Aggravated Assault);• Interview Scribe Notes;• Involvement—Occurrence (x2);• Notes of the SOs, SEWs, WO #2, WO #3, WO #4 and WO #5;• Policy: Use of Force and Equipment;• Policy: Arrest Procedures and Compelling Appearance in Court;• Subject Profile Report—the Complainant;• Supplementary Occurrence Reports of WO #1, SEW #2 and six other officers;• Use of Force training record for all designated officials;• Video Interview of CW #1;• Warrant to Search; and• Witness Statement of SO #1, SO #2, SO #3, WO #2 and WO #3.
Materials Obtained from Other SourcesThe SIU obtained and reviewed the following records from the following other sources:
• Ambulance Call Report—Hamilton EMS;• Incident Report-Hamilton EMS;• Medical Records-HGH; and• CCTV from Main Street, Hamilton.
SO #1 was the first officer to arrive at the scene – an apartment on Main Street – followed closely by WO #3. The Complainant had locked himself in the residence and was refusing to come out. The officers attempted to force the door open and WO #3 left to retrieve a battering ram to assist in this effort. SO #2 and WO #2 joined SO #1, and further attempts were made to force open the door.
The officers gained entry into the apartment and confronted the Complainant in the living room. He resisted as the officers attempted to secure him in handcuffs. At one point, the Complainant attempted to bite SO #2 and was met with a punch to the head. The struggle made its way onto the living room couch, where SO #1 kneed the Complainant’s left thigh twice. The Complainant was eventually handcuffed and lifted to his feet.
Following the Complainant’s arrest, WO #2 went to check on the condition of CW #1’s husband; CW #1 had managed to leave the apartment shortly before the arrival of the officers. Her husband was located in a bedroom having suffered grievous bodily harm.
The Complainant was transported to the police station.
Following his booking, the Complainant, who had managed to re-position his handcuffed arms to the front, initiated another physical altercation with police officers. While being led down a hallway toward an elevator that would take him to a holding cell in the CID office, the Complainant refused to move forward and eventually wrapped his legs around the legs of one of the accompanying officers – SO #3. SO #2 intervened to pull the Complainant off SO #3 and onto the floor. Once on the floor in a prone position, the Complainant struggled with the officers as they attempted to remove his arms out from under his torso. He kicked his legs, flailed his body, spit at the officers, and attempted to bite SO #1 and SO #2. SO #3 warned the Complainant that he would fire his CEW if he did not stop, and then proceeded to do on several occasions when his behaviour persisted. The discharges did not quell the Complainant’s fight. The officers used additional force – a punch to the head by SO #2 and two by SO #4, up to two kicks to the legs by WO #5, a possible knee strike to the left side by SO #1, and up to three knee strikes to the same side by SO #3. The Complainant’s arms were forced out from under him and re-positioned in handcuffs behind his back. His legs were also secured in shackles.
The party of officers and the Complainant resumed their trip to the CID office, where the Complainant was lodged in a cell and a third altercation occurred at about 6:15 p.m. This time, the Complainant acted out as officers entered the cell to seize his clothing, obtain swabs and take photographs. From the ground on his back, the Complainant kicked out his legs and struck SO #1 in the groin. The officer delivered a single knee strike to the left thigh, as did SO #2 (to an unascertained part of the body), after which the Complainant calmed down and allowed the forensic officers to complete their work.
At about 7:00 p.m., the Complainant was removed from the CID holding cell and lodged in another cell in the custody area. Several hours later, the Complainant complained of pain in his left side and arrangements were made to take him to hospital.
The Complainant was diagnosed at hospital with a fractured left hand and two left-sided rib fractures.
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,
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 authorized or required to do by law. Given what they had learned via dispatch of the 911 call that had come in from CW #1, and what SO #1 gathered firsthand of what had occurred from CW #1 in the lobby of the building before attending the apartment, the officers had ample grounds to arrest the Complainant for assault. Once arrested, the officers were also entitled to maintain the Complainant safely in their custody and to deal with him accordingly to law.
Given the nature and extent of the Complainant’s physical resistance to his arrest and custody, I am unable to reasonably conclude that the force brought to bear against him by the subject officials was excessive. Inside the apartment, the officers had cause to believe that the Complainant had just perpetrated a vicious assault resulting in possible death. When the Complainant struggled as the officers attempted to secure him in handcuffs, they were entitled to respond with decisive force to ensure he was taken into custody as quickly as possible. In the circumstances, the punch to the head and the knee strikes to the left leg, delivered by SO #2 and SO #1, respectively, were commensurate with the situation at hand.
Once at the police station, the Complainant’s combativeness returned and he was met again with what, in my view, was reasonable force. In the hallway en route to the elevator that would take them to the CID office, the Complainant refused to travel forward and then wrapped his legs around SO #3 before he was forced to the floor, where he attempted to bite officers, kicked out his legs and refused to release his arms from under his torso. The takedown by SO #2, in my view, was a reasonable intervention to remove the Complainant from SO #3’s person. Thereafter, I am unable to conclude that the force applied by the officers in the middle of a heated struggle to bring the Complainant under control was indiscriminate or disproportionate, particularly as the several CEW discharges had proven ineffective.
Finally, with respect to the force used by SO #1 and SO #2 in the CID holding cell, the former had just been kicked in the groin by the Complainant and the officers were entitled to take steps to deter any further violence. In the circumstances, I am unable to characterize the knee strikes – one each by SO #1 and SO #2 - as gratuitous. Following the blows, it is telling that the Complainant told the officers that he was done fighting.
For the foregoing reasons, while I accept that the Complainant broke his ribs in the course of one or more of his physical altercations with officers,  there are no reasonable grounds to believe that any of the subject officials conducted themselves unlawfully in the course of his arrest and throughout his period of custody. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Date: July 13, 2021
Electronically approved by
Special Investigations Unit
- 1) The times are derived from the CEW’s internal clock, which are not necessarily synchronized with actual time. [Back to text]
- 2) 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]
- 3) It is likely that the Complainant’s fractured left hand was inflicted in the course of his interaction with his stepfather ahead of the officers’ arrival at his apartment. [Back to text]
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.