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SIU Director’s Report - Case # 20-OCI-102

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 27-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On May 4, 2020, at 2:40 p.m., the Hamilton Police Service (HPS) reported an injury to the Complainant.

The HPS advised that at 8:50 a.m. on May 4, 2020, HPS officers responded to an address on Sanford Avenue South for a suspicious vehicle. Six police officers arrived on scene and two men were found in the vehicle passed out. The licence plates were listed on the Canadian Police Information Centre (CPIC) as stolen.

The Complainant was in the driver’s seat and was removed by the Subject Officer (SO) and Witness Officer (WO) #5. During the removal, the Complainant was grounded, and blood was observed on his face. An ambulance was called, and he refused medical attention. The arresting officers took him to hospital due to the bleeding.

The Complainant was diagnosed with a fractured left orbital bone. [1]

The Complainant was returned to HPS Central Station to be lodged on impaired care and control, refuse and possession of drugs.

The Team

Number of SIU Investigators assigned: 3

Complainants

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

Witness Officers

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


Subject Officers

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



Evidence

The Scene

The incident occurred in a semi-circle driveway located just south of the building at an address on Sanford Avenue South. The area was under video surveillance; however, the recording system was not working at the time of the incident.

Video/Audio/Photographic Evidence


Video of Booking Area


A copy of the booking video for the Complainant was provided to the SIU and reviewed. The recording had some audio, but the audio was of limited use because of the quality.

The SO was present when the Complainant was booked. The Complainant’s injury was recognized; however, there was limited discussion regarding the injury. The mechanism of the injury was not discussed. How or why the SO delivered a punch to the Complainant was not discussed. The manner in which the Complainant was removed from the Dodge was not discussed.

Police Communications Recordings


Radio Communications and Event Chronology


Four audio files labelled A, B, C and CC were provided to the SIU by the HPS. Tracks A and C were introductions and authenticity verifications for tracks B and CC done by the HPS Communicator who made the copies of the recordings. The Event Chronology for the incident was reviewed.

Track B was the call to HPS from CW #2 reporting the Dodge parked at the address on Sanford Street South with the Complainant and CW #1 “unconscious”, as described by CW #2.

The call from CW #2 was received at 8:48 a.m. It sounded like CW #2 was outside on a cellular telephone not far from the police officers, watching the police officers, and talking to other persons in the background.

At about 8:58 a.m., CW #2 said to someone in the background that there were a lot of police officers, followed shortly afterwards by an utterance to the effect that the Complainant and CW #1 must be wanted and the police officers were “blocking them right in”.

At about 9:00 a.m., there was what sounded like a short commotion in the background, followed by someone else in the background commenting, “They got ‘em.”

Track CC was the police radio transmissions, commencing at 8:50 a.m., and apparently one constant unedited recording, including police radio transmissions unrelated to the incident under investigation. The Event Chronology assisted in identifying the officers whose call signs and voices were heard on the audio recording and the times.

At about 8:50 a.m., the dispatcher requested that a unit attend the call. WO #5 volunteered and was dispatched, followed apparently by WO #2, following which additional information was provided by the dispatcher to the responding police officers regarding the situation.

At about 8:54 a.m., WO #1 said he was on the scene, followed about 20 seconds later by WO #4, following which WO #1 said (apparently to WO #4), “I’ll take the back, you take the front.”

At about 855 a.m., WO #1 requested an estimated time of arrival for additional police officers to “pin” the Dodge and said, “I have a feeling when we wake these guys up, they’re gonna ram our vehicles.”

At about 9:00 a.m., WO #4 said the police officers were “off with two males, everything 10-4”.

At 9:01 a.m., the dispatcher added the comment to the Event Chronology.

At about 9:04 a.m., WO #4 requested an ambulance for the Complainant who was “breathing, conscious, just bleeding from the nose and eye”.

The SO was never heard on the police radio communications and was not listed on the Event Chronology.

Nothing was heard on the recordings, or gleaned from the Event Chronology, to assist the investigation into exactly how or why the Complainant sustained his injury.

Three civilian names were found on the Event Chronology. CW #2, who called the HPS regarding the Complainant and CW #1, was interviewed by the SIU. Another civilian was identified as the registered owner of the stolen licence plates that were affixed to the Dodge. This civilian was not present during the interaction and not interviewed by the SIU. A third civilian was identified as the registered owner of the licence plate which had been stolen two days earlier and found inside the Dodge. Even though the third civilian resided at the address on Sanford Avenue South, he was not present during the incident, and he was not interviewed by the SIU.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HPS:
  • Computer-assisted Dispatch (CAD) Chronology;
  • Communications Recordings;
  • Booking Video:
  • General Report VETTED;
  • Hamilton Subject Profile Report - the Complainant;
  • List of Involved Persons;
  • Notes-all WOs;
  • Use of Force and Equipment Policy;
  • Use of Force Reporting Policy; and
  • Will State-all WOs.

Incident Narrative

The material events in question are relatively clear on the weight of the evidence collected by the SIU, which included interviews with the Complainant, three civilian eyewitnesses, the SO, and several witness officers present at the time of the arrest. At about 8:50 a.m. on May 4, 2020, police officers began arriving at an address on Sanford Avenue South in response to a 911 call from the superintendent of the building at the address, CW #2. CW #2 had contacted police to report the presence of a minivan, parked but running, in the semi-circle driveway just south of the building. According to CW #2, there were two males in the van who appeared to be “passed out”.

WO #1 was the first officer at the scene, followed shortly by WO #4. The officers positioned their vehicles to the front and rear of the minivan, which was facing west in the driveway, so as to prevent the driver from driving away once awoken. The SO, together with WO #2, WO #3 and WO #5, soon also arrived and further surrounded the minivan with their cruisers. A plan was quickly developed whereby the officers would divide in two groups. One group would approach the occupant sitting in the front passenger seat, whose door was unlocked. The other officers would wait for the driver’s door to be unlocked by their colleagues on the passenger side of the minivan before moving in to effect the driver’s arrest.

The Complainant was the male sitting and sleeping in the driver’s seat of the minivan. His passenger was CW #1.

At about 9:00 a.m., the officers who had gathered on the passenger side of the minivan – WO #2, WO #3 and WO #1 – opened the front passenger door, woke CW #1, removed him from the vehicle and took him into custody without incident. At about the same time, the officers on the driver’s side of the minivan – WO #4, the SO and WO #5 – opened the front door and roused the Complainant.

The Complainant shrugged and pulled away from the SO and WO #5 as the officers told him he was under arrest and grabbed hold of his upper body. Very quickly, the Complainant reached with his right hand toward the dashboard and was met with a right-handed punch to the left side of the face by the SO. Following the punch, the SO and WO #5 yanked the Complainant off the driver’s seat and onto the ground. The left side of the Complainant’s head hit the ground first, followed by the left side of his torso and lower limbs. Once extricated from the vehicle, the SO and WO #5 were able to free the Complainant’s arms without much trouble and affix them behind his back in handcuffs.

It was apparent following his arrest that the Complainant had sustained an injury; he was bleeding from the left side of the face. Paramedics were summoned and the Complainant was ultimately taken to hospital by police. The Complainant had sustained fractures of the left orbital bone and nose.

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 morning of May 4, 2020, the Complainant was arrested by HPS officers and suffered facial fractures in the process. One of the arresting 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 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 required or authorized to do by law. Arriving at the scene and inspecting the interior of the minivan, which had licence plates not registered to the vehicle, the officers observed drug paraphernalia in plain view: burnt tin foil on the dash, tin spoons, and needle caps. In the circumstances, I am satisfied the officers were proceeding lawfully to arrest the Complainant for being impaired while having care and control of a vehicle. The issue turns to the propriety of the force used by the SO in effecting the Complainant’s arrest.

It is clear on the record that the Complainant resisted his arrest, refusing to come out of the vehicle willingly when woken from his slumber, and that the officers were entitled to resort to a measure of force. Aside from the grappling that occurred between the SO and WO #5, on the one hand, and the Complainant, on the other, the force consisted in the main of the punch the SO delivered to the left side of the Complainant’s face and the officers’ takedown of the Complainant from the driver’s seat onto the ground. In my view, this level of force did not run afoul of the limits of permissible force prescribed by the criminal law.

Just before the punch, the Complainant, having already made it clear that he was not about to submit to his arrest peacefully, reached for the dashboard with his right hand. As the minivan was still running at the time, the movement reasonably caused the SO to fear that the Complainant was attempting to put the minivan into forward or reverse gear. Had the Complainant done so, there was every expectation that the minivan would collide with one or more of the cruisers around it and create a potential risk of bodily harm to the officers in the vicinity. On this record, I am unable to reasonably conclude that the punch, which was effective in stunning the Complainant and neutralizing the forward motion of his right arm, was other than a reasonable tactic commensurate with the risks at hand.

Similarly, I am satisfied that the Complainant’s forcible removal from the minivan onto the ground did not constitute excessive force. The Complainant had given the officers cause to believe he would, given the opportunity, put the minivan in motion. Given his state of sobriety at the time, and the officers and cruisers surrounding the vehicle, it was imperative that the Complainant be immediately removed from the driver’s seat.

In the final analysis, whether the Complainant suffered his injuries during one or both of the punch and takedown he endured, I am satisfied that the officers and, more specifically, the SO, acted lawfully throughout the incident. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: September 21, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Evidence would later reveal that the Complainant had also suffered a broken nose during the arrest. [Back to text]