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SIU Director’s Report - Case # 19-OCI-071

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 the injuries that a 55-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On April 8, 2019, at 9:05 p.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant.

The HPS reported that on April 8, 2019, at about 2:00 p.m., uniformed police officers attended the Complainant’s address looking to arrest him for several theft offences. The police officers spoke with the Complainant who was inside his residence; however, he refused to exit. The Complainant was informed police officers would be seeking a Feeney warrant [1] which would allow them to enter his residence. The Complainant then disappeared from the sight of the police officers. One of the police officers attended the rear of the residence and located the Complainant attempting to flee from the residence. He was subsequently tackled and taken into custody. Emergency Medical Services (EMS) was contacted as the Complainant sustained a cut to his head area. He was taken to the Hamilton General Hospital (HGH) where he was treated. While in hospital, the Complainant was also diagnosed with two fractured ribs.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

Complainants

Complainant: 55-year-old male interviewed, medical records obtained and reviewed


Subject Officers

SO #1 Interviewed and notes reviewed
SO #2 Interviewed and notes reviewed


Evidence

The Scene

The Complainant’s house on Charlton Avenue West is a two-storey single family residence. A sidewalk leads to the front porch and entrance door. The sidewalk also continues to a west side entrance door to the residence. Further south of this doorway, the sidewalk continues to a gated entrance to the rear yard. The gate, which opens outward towards the street, was open. The sidewalk continues into the rear yard of the residence, which is fenced-in.

The rear (south) side of the fence leads out to the parking area, which is accessed by a small laneway. The wood fence is partially collapsed. An entrance door at the southwest corner of the residence is partially opened. A small, wooden raised porch is located in front of this door with two steps down to a concrete patio.

The concrete patio is cluttered with numerous items including patio furniture, BBQ, cushions, building material, and a lawnmower.

The BBQ is overturned. A stack of two seat cushions is located north of the BBQ – 3.6 metres south of the southwest door and 1.8 metres east of the west fence. The top cushion is heavily bloodstained. A bloodstained tension bandage and wrapper is located west of the cushion. A Bic lighter is located on the concrete patio and amongst a trail of blood southwest of the cushions.

Video/Audio/Photographic Evidence


Summary of Gas Station Video Footage Depicting Thefts


A Jeep bearing an Ontarian licence plate [now known to belong to the Complainant] pulled up and stopped beside a gas pump. The Complainant got out of the driver’s side of the vehicle, picked up the nozzle from the pump, did not interact with the gas pump, and pumped gas into the vehicle. The Complainant finished pumping gas, put the nozzle back on the pump, got back into the vehicle, and drove away without being seen to pay.

In a separate incident, the same Jeep vehicle with the same licence plate pulled up to the same gas pump. The Complainant got out of the vehicle and pumped gas into the tank. The Complainant got back into the vehicle and drove away without being seen to pay for the gas.

Police Communications Recordings


Summary of Communication Recordings


The dispatcher called SO #2 and said, “Try 3816, they’re not answering on the air.”

SO #1 said, “One 10-92, require EMS.” The dispatcher asked, “What’s the condition?” SO #1 said, “Breathing, but has a wound. A cut to his head, not sure how bad yet.”

SO #2 asked the dispatcher to “step up” EMS because the Complainant was “bleeding pretty good from the head.” SO #2 requested the dispatcher tell EMS they were in the backyard. Moaning could be heard in the background.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HPS:
  • Event Chronology;
  • Communications recordings;
  • General Reports about certain thefts of gas;
  • Photo of the Complainant associated with a theft of gas;
  • Policies: Use of Force and Arrest Procedures; and
  • Use f Force training recertification dates.
  • Video-Theft of Gas-January 15, 2019 and March 18, 2019; and
  • Radio transmissions.

Materials obtained from Other Sources

In addition to the materials received from the HPS, SIU obtained and reviewed the following materials from other sources:
  • Ambulance Call Report from Hamilton EMS;
  • The Complainant’s Medical Record from HGH; and
  • Video recordings of thefts of gas on January 15, 2019 and March 18, 2019.

Incident Narrative

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and SO #1 and SO #2. At about 1:30 p.m. of April 8, 2019, SO #1 and SO #2 arrived at the Complainant’s home on Charlton Avenue West intending to arrest him for a series of gas thefts. The officers had reviewed video footage from the gas stations where the thefts had occurred and were satisfied that the Complainant was the perpetrator. Neither of them had a warrant for the Complainant’s arrest.

The Complainant opened his front door and denied having done anything wrong. There ensued conversation at the door’s threshold in the course of which SO #1 and SO #2 made it clear they had no intention in debating the merits of the Complainant’s guilt or innocence. The Complainant asked whether the officers had a warrant. The officers responded they did not, explaining they could get one to arrest the Complainant in the Complainant’s residence but would prefer if the Complainant surrendered himself willingly. Eventually, after at one point seeming on the verge of going with the officers, the Complainant made it clear he would not be cooperating. The Complainant closed the door on the officers and indicated they were not welcome.

SO #1 stood watch on the property as SO #2 arranged to obtain a Feeney warrant. As this was happening, the Complainant exited his home from a rear door into his backyard. Fearing the Complainant was planning to escape via a laneway that ran across the back of the property, SO #1 entered the yard through a wooden gate and confronted the Complainant. A physical struggle followed that was quickly joined by SO #2, culminating in the Complainant’s arrest.

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

In the afternoon of April 8, 2019, the Complainant was arrested by SO #1 and SO #2 in the backyard of his home on Charlton Avenue West. The Complainant was taken from the scene to hospital, where he was diagnosed with broken ribs, the result of force used during his arrest. On my assessment of the evidence, there are no reasonable grounds to believe that either of the arresting officers committed a criminal offence in connection with the Complainant’s arrest and injuries.

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 was reasonably necessary in the execution of an act that they were authorized or required to do by law. At the outset, I readily accept from the evidence that SO #1 and SO #2 had reasonable grounds to arrest the Complainant for gas thefts based on their investigation, which included a review of video footage of the thefts from the gas stations. Beyond that, however, there are a number of difficult issues of law and fact that bear on the legality of the Complainant’s arrest per se.

In R v Feeney, [1997] 2 SCR 13, the Supreme Court of Canada held that police officers cannot enter a dwelling-house legally without permission or exigent circumstances to effect an arrest in the absence of judicial pre-authorization. While the weight of the reliable evidence indicates that the Complainant was not arrested inside his house, there is authority for the proposition that a deck affixed to the exterior of a residence is part of the dwelling-house [2] and evidence to the effect that the Complainant was arrested on his back deck.

Were the foregoing evidence accepted, then the Complainant’s arrest was arguably unlawful and SO #1 and SO #2 could be open to charges of assault. I am not prepared to accept the evidence, however, as it is insufficiently reliable to warrant resting criminal charges on it. The source of the evidence that the arrest took place here is not reliable. Given this issue, as well as the chaotic nature of the arrest, I cannot conclude with sufficient certainty that the arrest started on the rear deck of the Complainant’s home.

Prior to R v Le, 2019 SCC 34, whether the fenced backyard of a private residence formed part of a dwelling-house for purposes of the protections set out in Feeney, supra, was an open question. While the decision by the Supreme Court of Canada did not squarely address the issue, it suggested an answer in the affirmative insofar as the decision was critical of police officers for entering a fenced backyard without a warrant. Le, however, was released in May 2019, more than a month after the Complainant’s arrest. In the circumstances, even if the arrest occurred in the rear yard of the Complainant’s property, I am not persuaded that it was unlawful on the basis that it was a warrantless apprehension in a dwelling-house given the state of the law at the time.

Finally, aside from whether the arrest occurred in a dwelling-house, the question arises whether the officers were trespassers in the Complainant’s rear yard at the time and the impact of such on the lawfulness of the arrest. Here, too, the factual and legal issues are so equivocal that I am unable to arrive at any firm conclusions. SO #1, who first entered the backyard, suggests he had authority to do so without the Complainant’s permission pursuant to the doctrine of hot pursuit. SO #1 was clearly in error in surmising as much. The legal doctrine, which authorizes an officer’s entry into a dwelling where she or he is freshly pursuing a suspect from the commission of an offence, was inapplicable to the situation at hand: see R v Macooh, [1993] 2 SCR 802. Was SO #1 therefore a trespasser? Perhaps, were it not for evidence that the Complainant opened the gate to his rear yard, albeit under duress, to let SO #1 in. To add to the complexity, it is not entirely clear whether SO #1’s status as a trespasser necessarily affects the legality of an arrest which was otherwise justified by a belief based on reasonable and probable grounds in the Complainant’s guilt for the gas thefts: Le (2019), supra, at para. 128.

In drawing attention to the aforementioned-difficulties, I am cognizant that charging authorities must restrict their deliberations to threshold considerations so as not to usurp the proper role of the court as the ultimate arbiter of legal and factual issues. That said, I am simply not persuaded that there are sufficient grounds suggesting the Complainant’s arrest was unlawful to warrant that issue being put to the test before a court. I proceed, therefore, on the basis that SO #1 and SO #2 were proceeding to lawfully arrest the Complainant when they confronted him in his backyard.

The issue turns to the propriety of the force used by the officers. By all accounts, SO #1, at first, and SO #2 quickly thereafter, grappled and struck the Complainant several times after the Complainant was taken to the ground. According to SO #1 and SO #2, they did so to overcome the Complainant’s vigorous resistance to being handcuffed. Some evidence, on the other hand, says the Complainant was pummeled by the officers for no reason. In the face of the officers’ countervailing evidence, however, I find the evidence in favour of the Complainant’s alleged passivity unconvincing on the basis of his intoxication at the time. In the result, I am left with a scenario in which SO #1 and SO #2 met the Complainant’s force with force of their own. On this record, the evidence falls short of suggesting SO #1 and SO #2 used more force than was necessary to subdue the Complainant and take him into custody.

In the final analysis, while I accept that the Complainant suffered fractured ribs at the hands of one or both of SO #1 and SO #2 during his arrest, I am not satisfied on reasonable grounds that the officers acted unlawfully in their dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: July 13, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Named after the decision of the Supreme Court of Canada’s ruling in R v Feeney, [1997] 2 SCR 13, a Feeney warrant, obtained under section 529.1 of the Criminal Code, authorizes the forcible entry into a dwelling-house to effect an arrest. [Back to text]
  • 2) R v Le (TD), 2011 MBCA 83 at paras 88, 275 CCC (3d) 427, leave to appeal to SCC refused, 34562 (29 March, 2012). This case cited R v Tesfai (E) (1995), 148 NSR (2d) 93 (SC), where a patio affixed to a home was held to be part of a “dwelling-house”. [Back to text]