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SIU Director’s Report - Case # 19-OCI-279

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 27-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 21, 2019 at 11:00 p.m., the Hamilton Police Service (HPS) notified the SIU of the Complainant’s injury. According to the HPS, on November 21, 2019 at about 5:10 p.m., plainclothes police officers were conducting surveillance of a parked stolen pickup truck in a parking lot area on East Avenue South, Hamilton. At that time, the Complainant exited the building and approached the vehicle. As the Complainant was about to enter the vehicle, the police officers [now known to be the Subject Officer (SO) and Witness Officer (WO) #1] approached the Complainant in order to arrest him. The Complainant was grounded by the SO and taken into custody. Following the arrest, the Complainant informed police officers his shoulder was sore. He was taken to the Hamilton General Hospital, where he was diagnosed with a fractured left clavicle. He was treated and released from hospital, and was being held for a bail hearing.

The Team

Number of SIU Investigators assigned: 3
 
SIU investigators interviewed civilian and police witnesses, and canvassed for additional civilian witnesses and closed-circuit television (CCTV) data. No additional civilian witnesses were identified and there was no CCTV data relevant to the incident.

Complainant:

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


Civilian Witnesses

CW #1 Not interviewed (next-of-kin)
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The incident occurred in a paved parking lot on East Avenue South in Hamilton.

Police Communications Recordings

The HPS provided the SIU with seven communications audio recordings. Of the seven reviewed, only one was specifically relevant to the arrest of the Complainant. That recording was of a 911 call received from a woman. The caller was reporting observations she made from her balcony, near the arrest scene, of events occurring after the Complainant had been grounded by the SO and handcuffed. At no time did the woman state that the Complainant was being mistreated by police officers, including when he was placed inside the police cruiser for transportation from the arrest scene.

The other six communications audio recordings pertained to the earlier theft of the pickup truck in the Complainant’s possession, when he was arrested, and the deployment of HPS officers to unrelated incidents.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HPS:
  • Arrest Booking Report;
  • Communications audio recordings;
  • Event Chronology;
  • Notes of the SO and WOs;
  • Occurrence Report;
  • Photographs of the stolen pickup truck;
  • Supplementary Occurrence Report (x2); and
  • Will-states of the SO and WOs.

Materials obtained from Other Sources

Upon request, the SIU obtained and reviewed the following other materials and documents:
  • Brantford Police Service (BPS) Witness Statements and photographs relating to BPS Occurrence Report;
  • Diagnostic images made of the Complainant’s serious injury;
  • Drawing of scene by CW #2; and
  • Hamilton Health Sciences Centre medical records of the Complainant relevant to the incident.

Incident Narrative

On November 21, 2019, the SO of the HPS’s High Enforcement Action Team (HEAT) received information that the Complainant was in possession of a stolen motor vehicle - a Ford 350 pickup truck. As a result of an unrelated investigation by the SO into the criminal activities of the Complainant, he was aware that the Complainant had been court ordered, as a result of a condition of his judicial release from custody on outstanding charges, to reside with his father in his residence on East Avenue South in the City of Hamilton. The SO attended a parking lot near the residence, where he located the stolen motor vehicle. The SO then contacted WO #1, another member of HEAT but from a different division of the HPS, to assist him in surveilling the pickup truck and arresting the Complainant, should he take possession of the stolen motor vehicle.

At approximately 5:00 p.m., the SO and WO #1 observed the Complainant exit the building and approach the stolen truck. The SO waited until the Complainant made actual physical contact with the truck before moving in to arrest the Complainant, as he wanted to ensure that the Complainant was in possession of the truck. The SO observed the Complainant approach the truck and, while standing at the driver’s door, attempt to gain access to the vehicle. At that point, the SO formed the necessary grounds to believe that the Complainant was in possession of stolen property and he therefore had the necessary grounds to place him under arrest.

During the course of arresting the Complainant, the SO took him to the ground, resulting in the Complainant sustaining a broken clavicle.

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 SIU’s investigation into the circumstances surrounding the Complainant’s injury consisted of interviews with the Complainant; the SO; two civilian witnesses; and, two police witness officers. SIU investigators also reviewed the Complainant’s medical records related to this incident. On a review of this evidence, for the reasons that follow, I am unable to form reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

As the SO observed the Complainant exiting the apartment building, he radioed WO #1, who was seated in his own motor vehicle in the parking lot, and confirmed that this was indeed the Complainant. WO #1, in turn, exited his motor vehicle, but not wanting to alert the Complainant that he was a police officer, he moved to the back of his police vehicle and opened the trunk while continuing to observe the Complainant in his peripheral vision. When the SO saw the Complainant at the stolen motor vehicle, he also exited his unmarked police vehicle and ran toward the Complainant as fast as he could, while shouting at the Complainant, “Police! Don’t move!” WO #1, upon hearing the SO shout out the police warning, and seeing the SO approaching the stolen motor vehicle, closed the trunk of his police vehicle and also began to run toward the Complainant. Both police officers were wearing vests with the word POLICE emblazoned across them. The Complainant was observed to turn and momentarily look at the SO, before then again turning away from him and back toward the door of the stolen vehicle. WO #1, who had been parked further from the Ford 350 truck than was the SO, was further away from the truck when the SO approached the Complainant.

The SO believed that the Complainant was a part of a larger criminal network that was involved in the thefts of trucks, whose members attempted to evade arrest by police and were considered to be armed. Just three weeks prior to this date, the SO had been involved in the arrest of another individual in this network who, while attempting to evade his arrest, stabbed the SO in the forehead with a screwdriver. The SO was also aware that the Complainant was a drug-dealer and that drug dealers were known to carry weapons to protect their product. With all this in mind, the SO ran at the Complainant at full speed making physical contact with the Complainant at the driver’s side door of the truck, causing both men to collide with the truck, before both went to the ground with the Complainant striking the pavement first. At that point, WO #1 arrived and assisted the SO in handcuffing the Complainant, who immediately indicated that he believed that he had broken his collarbone during the arrest.

A later search of the Complainant’s property revealed what appeared to be a firearm [1] and .22 calibre ammunition wrapped in a bandana in the Complainant’s fanny pack, as well as methamphetamines in the Complainant’s backpack.

The physician who treated the Complainant at the hospital indicated that his injury was consistent with having occurred when the Complainant’s shoulder made forceful contact with a flat, hard, immovable surface, and most likely occurred when the Complainant struck the ground while being arrested. It is not alleged that any other force, other than taking the Complainant to the ground, was ever employed by either police officer.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s arrest, it is clear from what the SO knew about the Complainant prior to his attending at the parking lot, coupled with the Complainant’s attendance at the stolen vehicle and putting his hands on the vehicle with the apparent intent of entering it, that the SO had reasonable grounds to arrest the Complainant for possession of stolen property. As such, the arrest of the Complainant was legally justified in the circumstances.

With respect to the force that was used in aid of the arrest – a single forceful tackle delivered at speed by the SO – I am unable to reasonably conclude that it transgressed the limits of justifiable force in the circumstances. At face value, one might legitimately question whether it was necessary to tackle the Complainant. He had not given the officers any indication of physical resistance prior to being forcibly grounded. In fact, he had barely had any time to react to the officer barreling down on his position after being alerted to his presence.

Considered in context, however, I am satisfied that the force used by the SO, while perhaps at the upper end of what reasonably necessary, was not excessive. While the Complainant had not actively resisted prior to the SO running at him and taking him to the ground, I find that the officer, in acting pre-emptively based both on his prior experience and his knowledge of the criminal activities of the Complainant and the violence often associated with those types of activities, was within his rights in grounding the Complainant when he did. It is important to note that the Complainant, having initially turned in the SO’s direction, turned away from the officer despite it being clear that the SO and WO #1 were police officers and there to arrest him. When one adds to the mix the Complainant’s close proximity to the driver’s door of the stolen motor vehicle, as well as the SO’s suspicion, reasonably grounded in my view, that he might have access to weapons, one appreciates why the SO took the forceful and resolute action he did at the first opportunity. In fact, as it turned out, there was a collapsible baton in the pickup truck and a starter’s pistol and ammunition in the Complainant’s possession when he was arrested.

In the final analysis, while the Complainant did sustain a broken clavicle as the result of the SO’s actions, I am satisfied on reasonable grounds that the officer acted lawfully throughout the incident. Accordingly, there is no basis for proceeding with criminal charges against the SO, and the file is closed.


Date: June 1, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) A starter’s pistol that had been modified to potentially discharge bullets. [Back to text]