Cruiser accidentRunnersCruiser and motorbike
thick blue gradient line

SIU Director’s Report - Case # 19-OCI-088

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 a serious injury sustained by a 55-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On April 28, 2019 at 10:35 p.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant. The HPS reported that at approximately 2:30 p.m. the day before, two officers responded to a domestic call at Wood Street in Hamilton where the resident, Civilian Witness (CW) #1, called police because her boyfriend, the Complainant, was intoxicated and would not leave her house. A criminal record query revealed the Complainant was on conditions to abstain from alcohol consumption and to stay away from CW #1 and her residence. With this information, the police officers arrested the Complainant. He immediately resisted and became combative and only empty hand tactics were deployed to subdue and restrain him. The Complainant was brought to headquarters to be held for a bail hearing.

When interviewed by the custody sergeant, the Complainant claimed he had a broken rib which he sustained several days prior and made no complaints about his arrest this date.

The Complainant was denied bail later the same date and was transported to the Hamilton-Wentworth Detention Centre, but staff there refused to admit him as he had swelling about his right eye. Police officers transported him to Hamilton General Hospital where he was examined and diagnosed with a fractured orbital bone on the right side and released back to police custody.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

WO Not interviewed, interview deemed not necessary


Subject Officers

SO #1 Interviewed, and notes received and reviewed
SO #2 Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was located inside a home on Wood Street in Hamilton.

The incident was reported to the SIU over a day after the Complainant’s arrest. As such there was no scene for examination.

Video/Audio/Photographic Evidence


HPS Closed-Circuit Television (CCTV) Recordings:


The Complainant appeared calm during the booking as he cooperated with the police officers. When asked if he had any “medical issues” he simply said he took “a few Advil tablets a day.” He made no complaints about the arrest.

Communications Recordings


911 Call and Communications Recordings:


In the 911 call recording, CW #1 reported her husband had been beating her up for several days. During the call, a male took the phone from her. Sounding impaired, he refused to return the phone to the female caller until the call taker identified herself. When she did not, the Complainant ended the call.

Two police officers were dispatched.

The call taker advised the responding police officers the subject of the call would possibly be the Complainant, who was flagged as violent, accused of disarming a peace officer, among other offences, and was on “stay away conditions from CW #1.”

Sometime later, a police officer reported the Complainant was at the residence and they were waiting for him to open the door.

About 18 minutes into the recording, an indecipherable transmission sounded as though a struggle was ensuing. At 18:38 in the recording, a police officer sounded out of breath as he reported he had someone in custody.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HPS:
  • 911 Call and Communications Recordings; and
  • HPS CCTV Recordings.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU in its investigation, which included statements from SO #1, SO #2 and the Complainant, as well as two civilian eyewitnesses inside the home at the time. In the afternoon of April 27, 2019, HPS received a 911 call from CW #1 reporting that her husband – the Complainant – had been assaulting her for several days. The Complainant took the phone away from CW #1 and disconnected the call. SO #1 and SO #2 were dispatched to investigate.

SO #2 was the first officer to arrive at the address – a house located on Wood Street in Hamilton – followed closely by SO #1. By the time of their arrival at around 2:40 p.m., the officers had been advised that the Complainant was subject to a recognizance preventing him from having contact with CW #1. After a short period, CW #1 answered the knock on the door and spoke with SO #2; SO #1 had gone to the back of the house. The Complainant objected to SO #2’s presence in the home. SO #2 explained that it was his duty to ensure the safety of persons inside the residence and proceeded to advise the Complainant that he was under arrest.

As SO #2 moved in to take hold of the Complainant, the Complainant pushed the officer in the chest, took up a fighting stance - clenching his fist and cocking an arm - and told the officer he was not leaving. SO #2 was able to avoid a punch thrown by the Complainant and followed by slapping the Complainant’s face. The officer managed to take the Complainant to the floor, from which position the Complainant continued to struggle. With SO #1 now by SO #2’s side, the officers attempted to secure the Complainant’s arms to be handcuffed. The Complainant refused to surrender his arms, prompting SO #2 to deliver two knee strikes to the Complainant’s thigh. There is some evidence suggesting SO #2 may also have punched the Complainant’s right torso three times. SO #1 kicked the Complainant once in the right torso to have him release his arms and followed that with a punch to the face and two knee strikes as the Complainant continued to resist. Thereafter, some two to three minutes into the fracas, the officers were able to wrestle control of the Complainant’s arms and restrain them in handcuffs.

The Complainant was taken to the police station after his arrest and subsequently taken to court for a bail hearing. His release having been denied, the Complainant was transported to a detention centre. Staff at the centre refused his admission given an apparent injury to his right eye, whereupon the Complainant was redirected to hospital.

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 arrested inside his home by two HPS officers – SO #1 and SO #2 – on April 27, 2019. He was subsequently taken to hospital where he was diagnosed with serious injuries including a fractured right orbital bone. On my assessment of the evidence, I am satisfied there are no reasonable grounds to believe either SO #1 or SO #2 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 that he was under conditions to not contact or communicate with CW #1, the Complainant nevertheless permitted her to reside at his residence. In the circumstances, I am satisfied that SO #1 and SO #2 were proceeding to lawfully arrest the Complainant for breaching a term of his recognizance. I should add that the officers’ presence inside the home was, in my view, also authorized to ensure the safety of its occupants following a disconnected 911 call reporting violence in the residence: R. v. Godoy, [1999] 1 SCR 311. Thereafter, I am further satisfied that the force used by the officers fell within the range of what was reasonably necessary to effect the Complainant’s arrest. The Complainant made it clear from the outset that he would not go peacefully. He shoved SO #2 and attempted to punch him when the officer initially moved in to take him into custody, and then engaged in a spirited struggle to prevent the officers from placing him in handcuffs. In response, the Complainant was taken to the floor following a strike to the face by SO #2, from which position the officers could better deal with his combativeness, and then subjected to a kick and several hand and knee strikes intended to quell his fight and aid in the release of his arms. No further hostilities were exchanged after the Complainant was handcuffed. On this record, I am unable to reasonably conclude that the officers ran afoul of the limits prescribed by the criminal law in the force they used to overcome the Complainant’s resistance and secure his arrest.

In the result, while the Complainant’s injuries are regrettable, they did not result in my view from unlawful police force. Accordingly, there are no grounds to proceed with criminal charges against either of the subject officers and the file is closed.


Date: November 4, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit