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SIU Director’s Report - Case # 20-OCI-018

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 the injuries that a 32-year-old woman (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On January 28, 2020, at 9:08 a.m., the Hamilton Police Service (HPS) notified the SIU of the Complainant’s injury.

According to the HPS, on January 28, 2020, the HPS received a written complaint from the Office of the Independent Police Review Director (OIPRD) filed by the Complainant on or about November 19, 2019. The Complainant reported to the OIPRD that during the evening of July 9, 2019, she was fighting with her partner, Civilian Witness (CW) #1, in CW #1’s apartment on Main Street West, Hamilton, and CW #1 called the HPS. The Complainant reported that she and CW #1 were arrested by Witness Officer (WO) #3 and WO #1 and taken to hospital where the Complainant received 20 stitches to her right hand and CW #1 was treated for head injuries.

The HPS further reported that CW #3 and another physician were the Complainant’s physicians, and that she did not complain of any other injuries. However, and again according to the HPS, the Complainant told the OIPRD she sustained a fractured right hand when she was handcuffed and forced to sit, and which moment the Complainant heard a bone in her hand cracking.

The Team

Number of SIU Investigators assigned: 2

SIU investigators interviewed the Complainant and, with the Complainant’s written authorization, obtained copies of the medical records relevant to the incident, including the ambulance call report. SIU investigators interviewed the physician most responsible for the Complainant’s care and one other civilian witness, as well as a police witness.
SIU investigators also canvassed for civilian witnesses and for closed-circuit television (CCTV) data relevant to the incident.

SIU investigators endeavoured to interview CW #1, who declined to cooperate with the SIU. Instead, SIU investigators were referred to and spoke with counsel for CW #1, who was charged with several criminal offences secondary to CW #1’s interaction with the Complainant on July 9, 2019. This lawyer informed the SIU investigators that CW #1 would not participate in an interview.

Complainants

32-year-old female interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Not Interviewed – Declined
CW #2 Interviewed
CW #3 Interviewed

Witness Officers

WO #1 Not interviewed – notes reviewed
WO #2 Not interviewed – notes reviewed
WO #3 Interviewed


Subject Officers

SO Interviewed and notes reviewed


Evidence

The Scene

The Complainant was arrested in and around the area of the intersection of Queen Street North and Market Street.

Video/Audio/Photographic Evidence


HPS Audio-Video Interview of the Complainant


The Complainant stated to police that she forcefully struck a metal door frame and / or wall with her right fist inside the apartment occupied by CW #1 during their physical altercation before the Complainant fled and was apprehended by HPS police officers near the intersection of Queen Street North and Market Street about 15 minutes after CW #1 called 911.

The following are extracts from the audio-video recorded interview of the Complainant:

  • Between ten minutes and 42 seconds and ten minutes and 47 seconds into the recorded interview, the Complainant stated while slowly gesturing with her raised right hand from right to left toward the wall of the interview room, “…picked up my bag and run and block her from swiping, and I ended up hitting my hand on the wall…”.
  • Between 14 minutes and 31 seconds and 15 minutes and 19 seconds into the interview, the Complainant stated, while again gesturing slowly with her raised right hand toward the interview room wall and putting her fist against it, “…and then I ended up hitting the metal corner part, I just tried to go and then hit my hand hard!” The Complainant emphasized the blow by mimicking the sound of her fist hitting the structural component(s).
  • By 15 minutes and 19 seconds into the recorded interview, the Complainant had added to her statement, “…and then when I turned and was trying like to hit the thing, whatever it was in her, like, you know, and I ended up hitting my hand on the wall and I think in the process of hitting my hand and when I was turning, she cut me.”

Police Communications Recordings


HPS Communications Audio Recordings


Record #1:

The 911 call was initiated by CW #1 with indiscernible voices in the background that may have been CW #1 and the Complainant arguing, or the sound of a television. After some protracted delays, CW #1 spoke sporadically to the 911 call-taker with slurred speech and a distinctive accent. About two-and-half minutes into the call, CW #1, who was sobbing, told the 911 call-taker that the Complainant had punched her. The Complainant said that there were no weapons involved and that she would go to the lobby and wait for police. There were no sounds of a struggle or anything remotely suggesting that anyone had been stabbed.

Record #2:

CW #2 called 911. He saw the Complainant, who appeared to have been stabbed in the arm and stomach, and she was refusing help. He provided the ambulance and HPS 911 call-takers with a description of the Complainant’s clothing and appearance, and saw her enter the La Luna Restaurant at 306 King Street West. He was still on the telephone when police arrived at the La Luna Restaurant and reported to the call-takers that she was walking away from them toward Queen Street North.

Record #3:

Another 911 call came from a civilian, who was not asked by the HPS 911 call-taker for her family name or telephone number. The civilian was calling as she had seen the Complainant enter and quickly leave the restaurant at 306 King Street West, known as La Luna. The Complainant was bleeding profusely but the civilian did not interact with the Complainant.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HPS:
  • Arrest Report for the Complainant;
  • Bail for CW #1;
  • Computer-Assisted Dispatch (CAD) Chronology dealing with the Complainant’s interactions with CW #1;
  • CAD Chronology dealing with the Complainant’s actions outside;
  • Canadian Detention Report CW #1;
  • Communications audio recordings;
  • Domestic Violence Risk Management Report-CW #1;
  • Domestic Violence Risk Management Report-the Complainant;
  • General Report summarizing the incident and the charges being laid against the Complainant and CW #1;
  • HPS audio-video recordings of interviews of the Complainant and CW #1;
  • Interview Scribe Notes summarizing the Complainant’s interview with a detective related to the criminal charges against the Complainant and CW #1;
  • List of involved officers;
  • Medical Records (Provided by HPS)-the Complainant;
  • Notes-the SO;
  • Notes-all WOs;
  • Scenes of Crime Officer (SOCO) Report;
  • Supplementary Report Criminal Investigations Division (CID) 2;
  • Supplementary Report CID 3;
  • Supplementary Report CID;
  • Supplementary Report SOCO; and
  • Will State-all WOs.

Materials obtained from Other Sources

Upon request, the SIU obtained and reviewed the following additional materials from other sources:
  • Hamilton Emergency Medical Services Ambulance Call Report;
  • Hamilton General Hospital records for the Complainant, including diagnostic images; and
  • OIPRD Complaint – the Complainant.

Incident Narrative

At about 10:15 p.m., the police received a 911 call reporting a domestic disturbance in a residence on Main Street West. An occupant of the residence complained that a woman – the Complainant – had assaulted her. Officers were dispatched to the area. Police were subsequently advised that the Complainant had left the residence. A further 911 call was received at about 10:30 p.m. from a pedestrian indicating that a woman – the Complainant – appeared to have been stabbed, and was refusing his help and repeatedly falling on King Street West making her way to Queen Street North.

Moments prior, the Complainant had left the residence on Main Street West following an altercation with another woman during which the Complainant was reportedly stabbed.

The SO and his trainee at the time, WO #3, traveled to the intersection of Queen Street North and Market Street. The Complainant was under detention at the time by other officers. WO #3 took custody of the Complainant. She was subsequently arrested for assault and taken to hospital from the scene for treatment of a stab wound to her left arm.

While at the hospital, the Complainant’s right hand was recognized to be causing her pain and the Complainant was diagnosed with a fracture.

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 219, Criminal Code -- Criminal negligence 

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

Section 221, Criminal Code -- Causing bodily harm by criminal negligence

221 Every person who by criminal negligence causes bodily harm to another person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.

Analysis and Director's Decision

In the evening of July 9, 2019, the Complainant was apprehended by HPS officers and subsequently taken to hospital, where she was diagnosed with a fractured right hand. A number of officers were present with the Complainant at the time, including the SO, who 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, or any of the other officers present, committed a criminal offence in connection with the Complainant’s detention and injury.

The SIU has received allegations that a police officer – resembling the SO by description – slammed the Complainant into the backseat of a cruiser with her arms handcuffed behind her back. As a result, according to this allegation, the Complainant’s hands were caught between the hard shell of the seat and her body weight, causing the injury.

Whether or not these allegations, were they true, rise to the level of a criminal offence based on excessive force or want of care, I am unable to lend them any credence. The allegation asserts that the Complainant was lodged in a police cruiser prior to being placed in an ambulance for transport to the hospital; the weight of the evidence indicates the Complainant did not enter a police cruiser until after she was released from hospital. The allegation suggests that it was the SO who slammed the Complainant into the cruiser. The SO denies ever touching the Complainant at the scene and is supported in this regard by WO #3. Finally, the medical evidence strongly suggests that the Complainant’s fracture was not sustained in the fashion of the allegation; rather, the injury – named a boxer’s fracture – is typically inflicted as the result of a person punching an object. There are other frailties associated with the allegation.

Based on the information provided to police in the 911 calls and their personal observations of the Complainant once they located her at the intersection of Queen Street North and Market Street, the officers had reasonable cause to suspect, and then believe, that she was implicated in a recent assault in a residence on Main Street West. Her detention and subsequent arrest were, accordingly, lawful in my view: R v Mann, [2004] 3 SCR 59; R v Storrey, [1990] 1 SCR 241. Thereafter, there is simply no trustworthy evidence that any of the officers did anything untoward in their dealings with the Complainant. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: May 19, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit