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SIU Director’s Report - Case # 19-OCI-127

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 50-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On June 11, 2019, at 9:07 a.m., the Hamilton Police Service (HPS) reported an injury to the Complainant. The HPS advised that on June 10, 2019, at 10:00 p.m., the Complainant called the HPS regarding being followed by several different people and vehicles at the Fortino’s Plaza (Dundurn and Main Streets). HPS officers arrived and the Complainant stated that he had injected himself with cocaine and officers searched his vehicle and found residue which they suspected was cocaine. He alleged he had been followed by several people from the USA and appeared to be paranoid. The Complainant was apprehended under the Mental Health Act. While officers took the Complainant to a cruiser he attempted to escape and was struck by a Conducted Energy Weapon (CEW). The Complainant fell and struck his face on the asphalt. He was taken to the Hamilton General Hospital and diagnosed with a possible fracture. The scene was being held.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned:

Complainant:

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


Civilian Witnesses

CW 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

On June 11, 2019, at 11:48 a.m., the SIU forensic investigator (FI) arrived at the Fortino’s Plaza on Dundurn Street South, Hamilton. At that time there was a marked HPS vehicle and an officer protecting the scene, which was a portion of the parking lot protected with police banner. This plaza is a large strip mall with a McDonald’s Restaurant on one end and a Fortino’s Grocery Store near the centre of the plaza.

Within the protected area, there was an area of small blood drops. Close to the blood drops were the blast doors from a CEW, four unsmoked fresh cigarettes which were slightly broken, and one anti-felon identification device (AFID) from the CEW cartridge.

Also within the protected area was a black Chrysler 300. This vehicle was located approximately 20 metres south of the location of the exhibits. The vehicle was locked. Looking through the window it appeared the ignition push button was missing.

The SIU photographed the area showing the overall scene, the location of the exhibits, and the Chrysler 300 vehicle. More AFIDs from the CEW cartridge were located, but it appeared they had blown against the curb next to the storefronts.

Forensic Evidence


CEW Download


At 1:15 p.m., the SIU FI attended the HPS Central Station and was provided with an envelope containing the SO’s CEW and a used cartridge. Photographs of the CEW were taken. The CEW was downloaded, which showed the recorded time of any activity was fast by 1 minute 44 seconds. There appeared to be two trigger activities on June 10, 2019: at 2:33:15 p.m. for 4 seconds and another at 11:23:41 p.m. for 4 seconds. Both these times are 1 minute 44 seconds fast of the correct time. The CEW was then returned to the HPS.

Communications Recordings

The SIU received three files from HPS containing the communication recordings from June 10, 2019. File one is dictated by an acting supervisor and details the information in files two and three. File two contains the 911 call placed by the Complainant while file three contains the dispatch transmissions made in relation to the call. The following is a summary of the pertinent information from the recordings:

File Two:

  • At 10:43:00 p.m., a man who identified himself as the Complainant made an emergency call to 911. He told the dispatcher that his call was regarding “death threats”;
  • The Complainant spelled his full name for the dispatcher and provided his date of birth;
  • The Complainant advised a “bunch of guys” were following him. The Complainant was unable to tell the dispatcher who specifically was following him;
  • When asked by the dispatcher what the death threat was, the Complainant advised no one had threatened him as of yet;
  • The Complainant told the dispatcher there were approximately 20 people following him and they were “all over”;
  • When asked if any of the people following him were inside the Tim Hortons, the Complainant advised there was one person right beside him;
  • The dispatcher then asked the Complainant to describe the person. The Complainant described a skinny man wearing a blue sweater;
  • The dispatcher proceeded to ask the Complainant why he believed that man was following him, to which the Complainant responded, “Because they are all outside”;
  • The dispatcher told the Complainant it was a busy plaza and inquired again as to why the man would be following him;
  • The Complainant then told the operator that it was probably because he “got into some trouble”;
  • The Complainant told the operator that no one had made any threats nor talked to him yet;
  • The Complainant confirmed with the operator that a police cruiser would be sent. He also confirmed he was calling from the Tim Hortons landline;
  • The operator told the Complainant to call 911 back if anything changes; and
  • Throughout the duration of the call the Complainant appeared to speak in a relatively calm voice.


File Three:

  • At 10:44 p.m., the first radio transmission was made;
  • A unit was dispatched to a person in crisis call at 50 Dundurn. The dispatcher advised a man believed 20 people were following him and the man was unable to answer any further questions;
  • Unit #1 advised they would assist with the call at 50 Dundurn;
  • The dispatcher broadcasted that the involved man’s name was [the Complainant], along with a date of birth. The dispatcher further advised he was “clear”;
  • Unit #1 advised they had arrived on scene and been flagged down;
  • Unit #1 and Unit #2 advised they were at the scene;
  • Unit #2 requested the dispatcher run a check on the Complainant;
  • Dispatch advised the Complainant came back clear;
  • Unit #2 requested the dispatcher run a licence plate;
  • The dispatcher advised the plate came back to a 2008 Chrysler with a registered owner with the Complainant’s last name. The registered owner was also referred to as clear;
  • A unit came over the air and advised, “Taser deployed”;
  • Unit #2 advised, “Alert, conscious, breathing,” while sirens can be heard in the background;
  • Unit #2 again requested emergency services (EMS), “Step it up,” as the party had swelling around the eye, bleeding from the mouth and “was not making much sense”;
  • Unit #2 advised EMS was on scene;
  • Unit #2 asked what time the CEW was deployed. The dispatcher responded it was 10:44 p.m.;
  • Unit #2 requested the dispatch time, arrival time and the computer-aided dispatch number, which the dispatcher subsequently provided;
  • Unit #2 said he was looking for what time the CEW was deployed, to which the dispatcher responded they did not know a CEW was deployed; and
  • The dispatcher confirmed the CEW deployment was at 11:23 p.m. 

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HPS:
  • Event Chronology;
  • Communication recordings;
  • General occurrence report;
  • Notes of witness officers;
  • Data downloaded from CEW;
  • Policy-Use of Force; and
  • Policy-CEW.

Incident Narrative

The material events in question are not in dispute on the evidence collected by the SIU, which included statements from the Complainant, the SO and several other police and non-police witnesses to the incident, as well as data downloaded from the SO’s CEW. At about 10:40 p.m. on June 10, 2019, the Complainant made a 911 call to police from the Tim Hortons at the Dundurn Plaza reporting that he was being followed by a group of people and had been threatened with death. Officers were dispatched to investigate.

The SO and WO #2 were the first officers to arrive. The SO took the lead in speaking with the Complainant outside the Tim Hortons and quickly deduced that he was not of sound mind. The Complainant claimed that he was being followed but could not articulate how or why that was occurring. WO #3, a member of the HPS Mobile Crisis Rapid Response Team, together with the CW, a mental health worker with Crisis Outreach and Support Team and paired with WO #3 on the day, soon joined the SO and WO #2. While nobody believed they had grounds to apprehend the Complainant under the Mental Health Act, it became apparent that the Complainant was likely impaired by drugs. Indeed, when asked, the Complainant informed the officers that he had injected cocaine a couple of hours prior to his call to police.

The SO found himself in a quandary. The Complainant had not done anything that would justify his being taken into custody. However, the officers were not prepared to leave the Complainant to his own devices given that he seemed under the influence of cocaine and had indicated a desire to leave the scene in his car. The SO offered to drive the Complainant to a family member and arranged with his aunt to meet her in Caledonia.

As the SO attempted to usher the Complainant toward his cruiser, the Complainant brushed him aside and ran in the direction of his vehicle, which was parked in the lot north of their location. The SO ran after him and, from a metre or two away, deployed his CEW in the Complainant’s direction. The probes struck the Complainant in the back and immediately immobilized him. The Complainant fell forward striking his head on the ground. With the assistance of WO #3, the SO was able to handcuff the Complainant without further incident, whereupon paramedics were summoned to the scene and took the Complainant to hospital.

Relevant Legislation

Section 27, Criminal Code -- Use of force to prevent commission of offence

27 Every one is justified in using as much force as is reasonably necessary
(a) to prevent the commission of an offence
(i) for which, if it were committed, the person who committed it might be arrested without warrant, and
(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or
(b)To prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

Section 320.14, Criminal Code – Operation while impaired

320.14 (1) Everyone commits an offence who 

(a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug

Analysis and Director's Decision

The Complainant was diagnosed with serious facial and head injuries following his arrest by the SO on June 10, 2019. The injuries were the result of the Complainant’s fall to the ground after being struck by a CEW discharge deployed by the officer. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injuries.

Pursuant to section 27 of the Criminal Code, everyone is justified in using reasonably necessary force to prevent the commission of an offence that would, were it committed, subject its perpetrator to being arrested without warrant and would likely cause serious injury to a person or property. Moreover, the provision confers the same justification on a person in the case of force used to prevent anything being done that the person reasonably believes would, were it done, amount to the same type of offence. I am satisfied that the SO was acting to prevent the Complainant from what he reasonably apprehended would be the commission of an offence that would render him liable to being arrested without warrant within the terms of section 27, namely, impaired operation/care and control of a motor vehicle contrary to section 320.14 of the Criminal Code. The Complainant had given the SO good cause to believe that he was suffering the effects of cocaine intoxication. He was paranoiac, incoherent at times and unfocused in his conversation with the SO. The officer was also justifiably concerned that the Complainant would operate his vehicle if left to his own devices. The Complainant repeatedly refused to hand over his car keys to the SO and objected to being driven to a place of safety, indicating he preferred to drive away himself even after being cautioned that he would be committing an offence if he did so. In the circumstances, I am unable to reasonably conclude that the SO acted outside the parameters of section 27 when he chased after the Complainant and deployed his CEW. Though the Complainant had run past his vehicle at the moment of the CEW discharge, I accept that the SO’s apprehension that there remained a risk of the Complainant entering his vehicle was reasonable given the dynamics of the situation and the possibility of the Complainant circling back toward the car. I further accept that the CEW discharge, though leading directly to the Complainant’s injuries, was a tactic reasonably available to the SO to prevent the Complainant’s continued flight. The SO had chased after the Complainant for a period and says he discharged his weapon when he failed to gain on him. There is nothing in the record to cast doubt on the officer’s assertion in this regard. On this record, I am unable to find fault with the SO’s decision to resort to his CEW as the only effective means at his disposal in the moment to stop the Complainant.

In the result, while the injuries the Complainant suffered were serious and most unfortunate, I am satisfied that the SO’s apprehensions that a CEW discharge was necessary in order to prevent the commission of the offence of impaired operation/care and control of a motor vehicle by the Complainant were reasonable and that his conduct fell within the ambit of the protection set out in section 27. Accordingly, there is no basis to proceed with charges against the SO and the file is closed.


Date: December 9, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit