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SIU Director’s Report - Case # 20-OCI-001

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 injury that a 26-year-old woman (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On January 1, 2020 at 6:59 p.m., the Hamilton Police Service (HPS) notified the SIU of an injury suffered by the 26-year-old Complainant.

The HPS told the SIU that on January 1, 2020 at approximately 1:20 a.m., the HPS received a telephone call regarding three people smashing glass at an abandoned business at 118 George Street. Partial descriptions of the suspects were provided, and they were last seen entering 116 George Street [a bar known as Lou Dawg’s Southern BBQ].

Police officers arrived and questioned the suspects. An intoxicated female, the Complainant, injected herself into the conversation the police officers were having with others. One of the suspects was arrested and placed into a police cruiser. The Complainant began punching at the police vehicle.

According to the HPS, the police officers did not have sufficient grounds to continue the arrest of the suspect and the suspect was released.

At 1:33 p.m., the Complainant’s mother called the HPS and reported her daughter was at St. Joseph’s Hospital being treated for an injury she suffered after being assaulted by the police. Police officers attended the hospital and the Complainant’s boyfriend reported that officers had pushed the Complainant and she fell. A doctor determined the Complainant had suffered a fracture to an elbow.

The Team

Number of SIU Investigators assigned: 6

Complainants

Complainant: 26-year-old female interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed


Subject Officers

SO Interviewed and notes reviewed

Evidence

The Scene

Queen Street is a one-way street with traffic flowing southbound. George Street is a one-way street on the east side of Queen Street. The area is locally known as Hess Village, and it is a popular entertainment district.

Lou Dawg’s Southern BBQ is a bar/restaurant located at 116 George Street, on the northeast corner of the intersection at George Street and Queen Street South, Hamilton. The bar has an outside patio along its east wall. Above Lou Dawg’s Southern BBQ, and the building attached to it at 118 George Street, there are residential apartments.

Across the street from Lou Dawg’s Southern BBQ, on the southeast corner of George Street and Queen Street, there is a restaurant which has gone out of business. The outdoor patio of that business is enclosed by wooden walls that have opaque glass windows.

Forensic Evidence


GPS Data


The SIU asked the HPS to provide the GPS data for any police vehicles that were in the area of the incident at the time the SO and WO #1 were on scene.

A review of the GPS data provided showed the SO and WO #1 at the intersection of George Street and Queen Street at 2:37 a.m. At 2:38:29 a.m. they reached the intersection at Main Street and turned eastbound. They then parked in the Hess Village Parking lot, at George Street and Caroline Street.

At 2:38:04 a.m., WO #4 was on Queen Street, just north of George Street. At 2:38:48 a.m. WO #4 was just south of George Street. The GPS data indicate WO #4 was in position such that WO #4 might have seen the SO and WO #1 as they travelled southbound on Queen Street toward Main Street, and WO #4 might have had time to pull up to the intersection at George Street while the SO and WO #1 were still there.

WO #5 was approximately a half-minute behind WO #4 travelling southbound on Queen Street. At 2:38:49 a.m. WO #5 was on Queen Street. The GPS data do not suggest WO #5 would have been in a position to observe the police cruisers operated by the SO and WO #1, who had turned onto Main Street approximately 20 seconds earlier.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications Recordings

The communications recording provided by the HPS appears to be a real time recording of all HPS radio calls for a period of 17 hours and 28 minutes. According to the preamble provided by the HPS, the audio recording started at 1:27 a.m. on January 1, 2020. The times mentioned below assume a start time of 1:27 a.m. and that the recording is real time playback.

At 1:27 a.m., the HPS dispatcher asked for two units to investigate a “mischief in progress” at Lou Dawg’s Southern BBQ. It was reported a male dressed all in white and another male smashed windows in a building across the street. WO #1 volunteered for the call.

At 1:32 a.m., the SO volunteered to attend the mischief call.

The dispatcher advised the SO and WO #1 that two men had smashed windows in the building across from Lou Dawg’s Southern BBQ and they then ran back to Lou Dawg’s Southern BBQ. One was dressed all in white while the second male was wearing a black leather jacket.

At 2:34 a.m., the SO requested a query on a person in custody, CW #4. The dispatcher reported that CW #4 was clear on “CPIC” [Canadian Police Information Centre].

At 2:35 a.m., WO #1 keyed in his microphone. The dispatcher called WO #1 to check on him, as WO #1 had keyed his microphone. WO #1 did not respond to the dispatcher, so other police officers were sent to WO #1’s location to check on WO #1’s well-being. At 2:36 a.m. the dispatcher called the SO to make sure everything was okay. The SO confirmed everything was alright and they had one person in custody. At 2:38 a.m., the dispatcher called the SO to confirm he said they had one person in custody. The SO replied, “Yah, for now.”

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HPS:
  • A copy of the radio communications;
  • Computer Aided Dispatch (CAD) Record (mischief in progress);
  • CAD Report (report of injuries suffered by the Complainant);
  • A list of Involved Officers;
  • Involved Persons Report;
  • GPS tracking data for several police vehicles.
  • Notes of WO #1, WO #2 and WO #3;
  • Notes of the SO;
  • Occurrence Report; and
  • Supplementary Report.

Materials obtained from Other Sources

In addition to the materials received from the HPS, SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records from St. Joseph’s Hospital.

Incident Narrative

While the broad strokes of what occurred leading to the Complainant’s injury are relatively clear on the weight of the evidence collected by the SIU, which included interviews with the Complainant, the SO, a witness officer and several civilian eyewitnesses, the crucial details around the event itself are in dispute. The Complainant, her fiancé, and several friends had arrived at Lou Dawg’s Bar and Grill shortly before midnight of the day in question to ring in the New Year. The party had been drinking and some of them, including the Complainant, were significantly inebriated.

At about 2:00 a.m., the SO, in the company of WO #1, arrived in the area in separate cruisers to investigate a complaint of someone smashing the windows of the building on the southeast corner of Queen Street South and George Street across from Lou Dawg’s. They spoke with the complainant, CW #5, who told them the culprits had gone into Lou Dawg’s. CW #4, among the Complainant’s party, matched the description of one of the suspects that had been provided by CW #5. The officers entered Lou Dawg’s and, after a period of investigation, the SO arrested CW #4 for mischief.

Th Complainant was upset by her friend’s arrest. The Complainant forcefully injected herself into the conversation the SO and WO #1 were attempting to have with CW #4 and questioned their authority to do what they were doing. Profanity and insults were hurled at the SO and WO #1 by the Complainant, who pursued the SO and WO #1 as they led CW #4 out of the bar to their cruisers a short distance away on Queen Street South.

With CW #4 lodged in the rear passenger-side seat of the SO’s cruiser, the SO began to accelerate away south from the scene when the SO heard a sound. The sound was an incensed Complainant banging on the trunk of the SO’s cruiser. The SO brought his cruiser to a stop, exited and walked toward the Complainant. Within moments, the Complainant was on the ground crying in pain.

The Complainant’s friends took the Complainant home in an Uber. Later that day, the Complainant attended hospital and was treated for her injury – a fractured elbow.

The evidence around what happened to bring the Complainant to the ground is contested. One scenario that emerges from some evidence is that after the bang on the trunk of the SO’s cruiser, the SO exited, confronted the Complainant and pushed the Complainant, resulting in the Complainant’s fall. CW #1 came to the Complainant’s defence and was physically restrained by the SO before being let go by the SO. Shortly thereafter, the officers left the scene in their cruisers.

According to the SO, at no time did he push the Complainant. Not knowing whether the sound the SO heard was the Complainant banging on the vehicle or being run over, the SO stopped his cruiser and exited to investigate. As the SO did so, one of the males in the Complainant’s party – CW #3 – raised his hands threateningly in the officer’s direction, prompting the SO to grab hold of CW #3 and throw CW #3 to the left toward Queen Street South. CW #3 fell to the ground, as did the SO. As the SO got up, CW #3 confronted the SO again and was thrown eastward in the direction of Lou Dawg’s. It was at this point that the SO saw the Complainant on the ground. The SO did not know how the Complainant got there but surmised that the Complainant might have been holding onto CW #3 whom he had thrown on a couple of occasions. At one point in the SO’s statement to the SIU, the SO conceded he might have touched the Complainant but, if the SO did, it was completely inadvertent and probably occurred during his dustup with CW #3.

For his part, WO #1 indicated he saw the SO exit his cruiser after the Complainant slammed the trunk. The SO had his arms raised - not in a threatening fashion but in the manner of a “whoa” gesture. At that moment, according to WO #1, WO #1 looked down at WO #1’s ignition. When WO #1 looked back up, the SO was on the ground and being approached by an angry male – CW #1. WO #1 exited his cruiser, grabbed hold of CW #1 and restrained CW #1 against the front of WO #1’s cruiser. Shortly thereafter, WO #1 released CW #1 so he could check on the Complainant, who, WO #1 noticed for the first time, was sprawled on her side on the sidewalk.

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 January 1, 2020, the Complainant attended hospital in Hamilton and was diagnosed with a broken elbow. The injury was the result of the Complainant’s fall in the course of an interaction with an HPS police officer earlier that day. The SO was the officer in question and 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 fall and injury.

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 required or authorized to do by law. One version of events would mean that the SO was not in the execution of his duty when the SO approached the Complainant and pushed the Complainant to the ground. Rather, the act was one of frustration and/or anger after the Complainant had banged on the SO’s cruiser as the SO was driving away. If believed, this version of events would leave the SO open to an assault-based charge. I am not satisfied, however, that the evidence is sufficiently trustworthy to warrant being put to the test before a court of law.

In order to avoid usurping the proper role of the court as the final arbiter of issues of credibility and reliability, charging authorities must limit their assessments around the strength of the evidence to threshold considerations. Were it only a question of one camp offering evidence that conflicts with another body of evidence, the matter should be remitted to a court to be resolved where one rendition of events gives rise to criminal liability. However, in the instant case, there is the added difficulty that the evidence supporting this account is inconsistent in certain respects and untrustworthy owing to intoxication.

The cumulative impact of the foregoing difficulties would not necessarily be fatal to charges, however, were it not for other, independent, eyewitness evidence that the Complainant fell while backing away from the SO, who had emerged from his vehicle and was attempting to direct the Complainant back onto the sidewalk at the time.

It should be noted that the officers’ accounts suffered from their own weaknesses. In particular, the SO’s interview did not align with what he recorded in his notes in several important ways. However, one must remember that the burden of proof remains on the state to garner positive evidence of guilt and that no adverse inference going to substantive liability should be drawn simply because the SO’s evidence was not entirely believable.

In the final analysis, I am unable to reasonably conclude on the aforementioned-record that the SO intentionally pushed the Complainant to the ground in conduct that would amount to an unlawful use of force. Accordingly, there is no basis for proceeding with charges in this case against the SO, and the file is closed.


Date: July 14, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit