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SIU Director’s Report - Case # 18-OCI-367

Contents:

News Releases for this Case:

French:

Mandate of the SIU

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.

Information Restrictions

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.

Mandate Engaged

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 serious injuries sustained by a 46-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 19, 2018, at 11:30 p.m., the Complainant reported being approached by three police officers, including Witness Officer (WO) #2, in a Dollarama in Hamilton. The officers tackled him, struck him in the head, and advised him he was under arrest for driving while under suspension. He was released and subsequently diagnosed with fractured ribs, and neck and knee injuries. 

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed


Subject Officers

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


Evidence

The Scene

There was no scene held for this case due the incident occurring in March 2018, and the notification occurring in December 2018.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HPS:
  • Appearance Notice;
  • Arrest report;
  • Canadian Detention Report;
  • Crown Brief - Statement of the SO;
  • Crown Brief - Statement of WO #2;
  • Crown Brief - Synopsis;
  • General Report;
  • Information;
  • List of Officers;
  • Notes of WO #1 and WO #2;
  • Policy-Alcohol Related Driving Offences;
  • Policy-Licence Suspensions-Prohibitions;
  • Policy-Tagging and Towing from Private Property;
  • Policy-Stolen Abandoned Vehicles;
  • Procedure-Tagging and Towing Motor Vehicles; and
  • Procedure-Stolen Abandoned Vehicles.

Materials obtained from Other Sources

Materials and documents from non-police sources:
  • Transcript of R. v. [Complainant], February 7, 2019.

Incident Narrative

The material events in question are relatively clear on the weight of the reliable evidence collected by the SIU. In the afternoon of March 23, 2018, the Complainant, in the company of a friend, was observed driving to a Dollarama in Hamilton in contravention of his driving prohibition. WO #2, working in plainclothes with the SO and WO #1, spotted the Complainant operating the vehicle in the area of Upper Gage Avenue and Mohawk Road. The team of officers, each in their own unmarked police vehicles, were patrolling the area as part of an organized effort to combat street-level crime. WO #2 advised his colleagues of his observations and the officers followed the Complainant into the parking lot of the Dollarama store.

The three officers converged on the Complainant in an aisle, identified themselves as police officers, and told the Complainant he was being arrested for driving a vehicle while disqualified. The Complainant tensed up as the officers took hold of him and struggled against their efforts to control him. He was grounded by the officers and continued to resist while on the floor. When the Complainant refused to surrender his right arm, WO #2 struck his quadriceps three or four times. The officers were eventually able to wrestle control of the Complainant’s arms and secure them in handcuffs.

The Complainant describes a greater level of force used against him; however, his allegations are contradicted in several respects by all other witnesses. In the result, it would be unwise and unsafe to rely on the Complainant’s account where it differs with the bulk of the evidence.

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.

Section 259(4), Criminal Code – Operation while disqualified

259(4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.

Analysis and Director's Decision

The Complainant was arrested by HPS officers on March 23, 2018. Several days later, the Complainant was diagnosed with a fracture to a right-sided rib. Of the three officers who participated in the Complainant’s arrest, the SO was identified as the subject officer. For the reasons that follow, there are no reasonable grounds to believe that the SO, or either of the other two arresting officers, 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 is reasonably necessary in the execution of an act that they are required or authorized to do by law. I am reasonably satisfied on the evidence that officers were proceeding to lawfully arrest the Complainant at the time force was used. The Complainant was disqualified from operating a motor vehicle and was therefore in apparent contravention of section 259(4) of the Criminal Code when he was observed driving to the Dollarama. Turning to the force that was used in effecting the arrest, namely, the Complainant’s grounding, the officers combined manpower in wrestling control of the Complainant’s arms and three or four punches delivered by WO #2, this seems to be generally commensurate with the Complainant’s resistance. I accept the evidence of the witnesses to the effect that the Complainant attempted to fight with the officers while on his feet, and then struggled against their efforts after he had been grounded. On this record, I am unable to reasonably conclude that the force used by the officers, including the subject officer, fell outside the range of what was reasonably necessary to subdue the Complainant and effect his arrest notwithstanding the broken rib that may have been inflicted in the process. In the result, there are no grounds for proceeding with criminal charges in this case and the file is closed.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) Now section 320.18(1) of the Criminal Code. [Back to text]