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SIU Director’s Report - Case # 19-OCI-094

Contents:

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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 26-year-old man (“the Complainant”).

The Investigation

Notification of the SIU

On May 1, 2019, at 1:15 p.m., the Hamilton Police Service (HPS) notified the SIU of the Complainant’s injury.

The HPS reported that on May 1, 2019, at 4:00 a.m., HPS officers attended a disturbance call at a residence in Hamilton. The police officers arrested the Complainant for uttering threats to his father, civilian witness (CW) #1. The Complainant complained of an injury to his hand and refused medical attention. He was then transported to the police station and released with conditions to stay away from CW #1.

At 6:57 a.m., the Complainant returned to CW #1’s residence and was arrested again for breaching his conditions and transported to the police station. At the police station, the Complainant complained of an injury to his hand and indicated that his father caused his injuries. The Complainant was subsequently transported to St. Joseph’s Hospital (SJH).

At SJH, the Complainant was diagnosed with a fracture to his right hand. He told the hospital personnel that the police officers caused his injuries. 
 

The Team

Number of SIU Investigators assigned: 3

Complainant:

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


Civilian Witnesses

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

Witness Officers

WO Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was the kitchen on the main floor of a house located on Abemarle Street, sector of Hamilton.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HPS:
  • Event Chronology Report;
  • General Occurrence Report; and
  • Notes of the involved officers.

Incident Narrative

The material events in question are apparent on the weight of the evidence collected by the SIU, which included statements from the Complainant, the subject officer (SO), the witness officer (WO) and several eyewitnesses to the incident. Just before 4:00 a.m. on May 1, 2019, the HPS received a call from CW #3 complaining that the Complainant, who was residing in the home, was inebriated, causing a disturbance and fighting with others. The Complainant had consumed a quantity of alcohol and fallen asleep in the bathroom. When CW #1 confronted the Complainant, a physical altercation ensued in the course of which the two men fell down a flight of stairs.

The SO and the WO were dispatched to investigate the disturbance and arrived at the address at about 4:15 a.m. After speaking with the residents, and learning that the Complainant was no longer welcome in the home, the Complainant was asked to leave by the officers and then arrested for trespassing when he refused to do so. The Complainant resisted his arrest by pulling away from the officers, whereupon he was taken to the kitchen floor in a controlled fashion and secured in handcuffs.

The Complainant was released from custody moments after his arrest and escorted to his mother’s residence in a police cruiser. Before his mother could be located, however, the Complainant was placed under arrest again, this time for having threatened to kill CW #1, following a phone conversation between CW #1 and the SO in which the former indicated he wished to proceed with charges. The Complainant was taken to the police station and, following a short period in cells, released later that morning on condition that he not return to the residence. The Complainant did just that and soon found himself under arrest one more time. He was later taken to SJH and was diagnosed with his injury.

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 diagnosed with a fractured right hand several hours after being arrested by the SO and the WO on May 1, 2019. On my assessment of the evidence, I am satisfied there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s 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 authorized or required to do by law. While I am not entirely persuaded that the Complainant’s arrest as a trespasser was lawful, there is sufficient factual uncertainty regarding his status within the home such that I am unable to reasonably conclude the arrest was unlawful. Proceeding therefore on the basis that the SO and the WO were within their rights in arresting the Complainant, the issue turns to the propriety of the force used by the officers to effect their purpose. The evidence indicates that each officer participated in wrestling the Complainant to the ground when he pulled away as they tried to secure him in custody. In my view, the takedown, performed in a controlled fashion, was a reasonable tactic in the circumstances; with the Complainant on the floor, the SO and the WO could better control his movements and counter any further resistance on the Complainant’s part. No further hostilities of note were exchanged once the Complainant’s arms were handcuffed.

In the result, while I accept that the Complainant’s hand may have been fractured in the course of his initial arrest by the SO and the WO, [1] presumably as he was grounded, the evidence falls short of establishing on reasonable grounds that the Complainant’s arrest

was unlawful or that the force used in aid of the arrest was excessive. Accordingly, there are no grounds for proceeding with criminal charges in this case and the file is closed.


Date: November 25, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) There is a distinct possibility raised in the evidence, even likelihood, that the Complainant broke his hand in the physical altercation he had with his father prior to the arrival of the officers. [Back to text]