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SIU Director’s Report - Case # 19-OCI-217

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 29-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 8, 2019, at 6:00 p.m., the Hamilton Police Service (HPS) notified the SIU of the Complainant’s injury.

According to the HPS, on September 8, 2019, at approximately 11:51 a.m. [now known to be approximately 11:36 a.m.], police officers were called for assistance with a man at a Wendy’s restaurant, located near Centennial Parkway North, in Hamilton.

When police officers arrived, a man [now known to be the Complainant] was walking away from the area. The Complainant’s father [now known to be the Civilian Witness (CW)] pointed him out to the police officers, who took the Complainant to the ground in the area of 267 Centennial Parkway North.

The Complainant was taken to the police station where he complained of pain and, from there, he was taken to the Hamilton Health Sciences Centre’s (HHSC) General Hospital where he was diagnosed with a hip fracture.

The Team

Number of SIU Investigators assigned: 3
 
SIU investigators canvassed the area of the arrest for Closed-Circuit Television (CCTV) data and interviewed civilian and police witnesses.

The SIU obtained signed authorization for the release of medical records for the Complainant relevant to the incident and received a copy of the HHSC records pertaining to the Complainant’s injury.

SIU investigators also obtained and reviewed CCTV data from the Wendy’s and Tim Hortons restaurants and the Pioneer gas station in the immediate vicinity of the incident scene.

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

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


Evidence

The Scene

The Complainant was arrested on the level, unbroken concrete sidewalk about midway between the Tim Hortons restaurant and 267 Centennial Parkway North.

Figure 1 – Google Maps view of the area where the Complainant was arrested.
Figure 1 – Google Maps view of the area where the Complainant was arrested.

Video/Audio/Photographic Evidence


CCTV Data


Wendy’s Restaurant - Hamilton

  • The restaurant had three separate views incorporating two different video systems; the times were inaccurate on each system.
  • On September 8, 2019, at 12:05 p.m., the CW was recorded entering the restaurant with the Complainant;
  • Both approached the counter area and the Complainant appeared to order a meal;
  • The Complainant was agitated and fidgeting with his hands throughout his time at the counter;
  • The Complainant was wearing a black t-shirt pulled up above his navel, blue underwear sitting well above black shorts, that were hanging on his hips, a white sweater/sweatshirt wrapped around his waist and tied at the front, and black socks and shoes with white soles; he was carrying a red ‘Roots’ bag;
  • The CW and the Complainant were depicted on an outdoor patio area on the east side of the restaurant. The Complainant was sitting and standing at various intervals near his father, who sat throughout;
  • The Complainant appeared to put something in his red Roots bag and eventually walked away, going north on the west sidewalk of Centennial Parkway North and beyond the focal range of the CCTV camera;
  • At 12:09 p.m., the CW walked north in the direction his son had taken and also left the focal range of the CCTV camera;
  • Two marked HPS cruisers were recorded entering the northwest parking area of the restaurant. The SO and WO #1 exited their cruisers, had a short conversation, and split up walking to the restaurant’s east and west doors;
  • At 12:16 p.m., the CW was recorded running south on the west sidewalk of Centennial Parkway North and into the restaurant;
  • Shortly thereafter, both police officers exited the restaurant with the CW, who was pointing northbound and talking to the SO and WO #1;
  • The SO and WO #1 got back into their cruisers and drove northbound on Centennial Parkway North; and
  • The CW walked to the west sidewalk area of Centennial Parkway North near the restaurant and stood looking north.


Tim Hortons restaurant – Hamilton

  • The CCTV data were of no probative value.

Pioneer Gas Station – Hamilton

  • Camera six was located on a post next to the southeast gas pump and was focused southeast taking in the shared vehicle entrance area of the Tim Hortons restaurant and the Pioneer gas station. A telephone booth was visible on the west side boulevard area of Centennial Parkway North.
  • At 12:00 p.m., the Complainant, wearing black shorts, socks, shoes, a black t-shirt, and a white sweatshirt, walked into range of the right side of the camera frame and played with something near the ground west of the telephone booth;
  • He then walked around the telephone booth, pulling his sweater off his waist and then replacing it by tying it at the front of his body;
  • As he was doing this, two fully marked HPS cruisers [now known to have been operated by the SO and WO #1] drove north on Centennial Parkway North and into a driveway south of the telephone booth, parking across the boulevard and sidewalk area parallel to each other;
  • As the SO and WO #1 got out of their respective vehicles, the Complainant started running south, past the rear of the police cruisers, and disappeared behind the southernmost cruiser;
  • WO #1 appeared to be bent over doing something on the ground. The Complainant’s body was mostly obstructed by the police cruisers apart from a small portion visible near the curb edge of the roadway; and
  • One of the police officers appeared to be making a kicking, sweeping motion with his right leg. It was unclear if he was contacting the Complainant or moving an item away from the roadway with his foot.

Communications Recordings

The communications audio recordings included the CW’s call to an undesignated officer in response to the officer’s request made the preceding day, and police radio transmissions in respect of the dispatching of the SO and WO #1 for the arrest and post-arrest transportation of the Complainant. There was nothing in the communications audio recordings to advance the investigation of the injury sustained by the Complainant.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HPS:
  • Communications audio recordings;
  • Email from HPS re: subject officer notes and interview;
  • Event Chronology;
  • Notes of the witness officers;
  • Occurrence Details Report;
  • Release documents relevant to the Complainant; and
  • Use of Force certification for the SO.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant, one civilian witness, the SO, and two witness police officers. The investigation also benefitted from CCTV footage, which partially captured the incident. At approximately 11:36 a.m. on September 8, 2019, the SO and WO #1 responded to a call to attend at a Wendy’s Restaurant at Centennial Parkway North, in the City of Hamilton, in order to arrest a man, the Complainant, who was outstanding on an arrest warrant. Upon arrival in the area, the officers observed the Complainant walking towards a Tim Hortons parking lot. The officers pulled up in their police cruisers and exited, with WO #1 directing the Complainant not to move and that he was under arrest for an outstanding warrant. The Complainant immediately began to run away from the officers and the SO ran after him.

The Complainant ran southbound along the west sidewalk and east toward the live lanes of traffic on Centennial Parkway North. After having run several metres, the SO wrapped his arms around the Complainant’s torso and both men fell to the ground. The Complainant landed on his left side, partially on the grass/gravel boulevard and the concrete curb’s edge, with the SO falling on top of him. The SO knelt on top of the Complainant in order to hold him down as the Complainant kicked out his legs and feet. WO #1 then arrived and assisted with the arrest. At no point was any other force used against the Complainant.

The Complainant was handcuffed, lifted to his feet and lodged in the backseat of the SO’s cruiser. Upon arrival at the police station, it was determined that the Complainant required medical assistance and he was transported to the hospital, where he was diagnosed as having sustained a fractured hip.

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

On September 8, 2019, the Complainant broke his left hip in the course of being arrested by two HPS officers. One of the officers – the SO – was identified as the subject officer for purposes of the SIU investigation. 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 arrest and injury.

There is no doubt that some force was used by the SO to stop the Complainant from escaping; however, there is no evidence that this force was excessive. Pursuant to section 25(1) of the Criminal Code, a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. On a review of the record before me, it is clear that the SO was acting in the lawful execution of his duties when he pursued and apprehended the Complainant, who was wanted on an outstanding arrest warrant. Furthermore, as the Complainant was running directly toward the live lanes of traffic on Centennial Parkway North, it would have been incumbent upon the SO to stop the Complainant as quickly as possible before the situation became unsafe, not only for the Complainant, but for the motorists on the roadway. While it is unfortunate that the Complainant injured his hip when he was taken down by the SO, I am unable to reasonably conclude that the force used by the officer was unreasonable given the need to apprehend a fleeing the Complainant, and to do so quickly before he ran into live lanes of traffic.

In the result, as I am satisfied that the SO acted lawfully throughout his dealings with the Complainant, there is no basis to proceed with criminal charges in this matter and the file is closed.


Date: April 20, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit