SIU Director’s Report - Case # 16-OCI-231

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 serious injury suffered by a 33-year-old male, during his arrest on September 9, 2016 at approximately 8:00 p.m.

The investigation

Notification of the SIU

On September 9, 2016, at 10:30 p.m., the Hamilton Police Service (HPS) notified the SIU of a custody injury that occurred that evening. The HPS reported that at about 8:00 p.m., the Complainant was heavily intoxicated by illegal substance and alcohol while traveling on a municipal bus and became involved in a physical confrontation with another passenger. HPS police officers responded and arrested the Complainant due to his severe intoxication. HPS then transported the Complainant to hospital.

HPS reported that while in hospital, the Complainant became enraged and combative with the police officers. The Complainant grabbed one of the police officer’s guns, which caused them to ground him. Once subdued, the Complainant was assessed by hospital staff and diagnosed with a fractured elbow. He was treated and held in hospital for observation due to his intoxication.

The team

Number of SIU Investigators assigned: 4

Complainant

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

Civilian witnesses^{footnote 1[1]}

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

Additionally, the notes and prepared statements from two other non-designated officers were received and reviewed.

Subject officers

SO Declined interview and to provide notes, as is the subject officer’s legal right.

Evidence

The scene

There was no scene preserved for examination.

Communications recordings

911 call recordings

In the 911 call recordings a woman was heard calling police and ambulance, reporting that she saw a bloodied man pacing near a bus stop and walking on the roadway. The man had blood on his arm and hands and he “seem[ed] quite agitated.” The caller remained on the phone with the call taker, further advising that the man entered a bank and that she saw the police arrive.

In another 911 call, a man who identified himself as a transit employee, requested an ambulance to attend a bus where a man was injured as a result of a fight on the bus. He also requested that police attend as the person involved in the fight was still on scene and appeared intoxicated.

Radio transmission recordings

Police officers were dispatched to the call regarding the bloodied man walking on the road.

A male police officer was heard reporting that he identified the victim of the assault on the bus and that other passengers pointed out the assailant. After the police officer said, “I’m gonna go arrest buddy,” the dispatcher advised that the man was walking toward a TD Bank.

In response to WO #2’s query of the Complainant’s name and date of birth, the dispatcher advised that he was flagged as violent and that, in January 2016, he “reached out to an officer’s belt to grab hold of the Taser” and that he had remarked that he wanted the police to shoot and kill him.

A male police officer later reported that they needed a sergeant at the hospital. Sounding short of breath, the police officer reported that “…there was a fight. He might be hurt.”

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from HPS:

• Arrest Booking Report - Complainant
• Computer Aided Dispatch (CAD) - Event Chronology
• Injured On Duty Report - WO #1
• Notes of WO #1 and #2
• Notes of two non designated officers
• Occurrence Details Report
• Occurrence Reports
• Procedure - Use of Force and Equipment
• Procedure - Arrest and Compelling Appearance in Court
• Subject Profile - Complainant
• Prepared statements for WO #1 and 2, and
• Prepared Statements for two non-designated officers

Incident narrative

Shortly after 7:00 p.m. on September 9^th, 2016, HPS received 911 calls reporting an altercation on a city bus and that a male was seen wandering the street while bleeding. As a result, the SO, WO #1 and WO #2 were dispatched to the call and located the Complainant unconscious and covered in blood in a nearby TD Bank. The SO performed a sternum rub in an attempt to arouse the Complainant. The Complainant eventually regained consciousness but was disoriented, did not know how be had been injured, his speech was slurred and he smelled of alcohol.

Concerned for the Complainant’s wellbeing, WO #1 requested an ambulance. Once the ambulance arrived, the Complainant was transported to hospital. At the hospital, the Complainant was restrained on a stretcher. After being permitted to get off the stretcher to use the washroom, the Complainant became assaultive towards the SO and WO #1 and attempted to leave the hospital. When the officers tried to restrain him, the Complainant resisted and reached for WO #1’s Conducted Energy Weapon (CEW). Consequently, the SO and WO #1 grounded the Complainant. The Complainant landed with his hands underneath his body. The Complainant continued to resist and refused to be handcuffed.

A Code White^{footnote 2[2]} was called by hospital staff, which caused the paramedics and security staff to respond. Once the Complainant was handcuffed, he continued to be violent. As a result, the Complainant was medically sedated by a doctor.

When assessed, the Complainant was found to have sustained an undisplaced fracture of his right elbow.

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

1. as a private person,
2. as a peace officer or public officer,
3. in aid of a peace officer or public officer, or
4. 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 34, Liquor Licence Act – Unlawful possession or consumption

31(4) No person shall be in an intoxicated condition,

1. in a place to which the general public is invited or permitted access; or
2. in any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.

Sections 265-266, Criminal Code – Assault

265(1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

266 Every one who commits an assault is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction.

Analysis and director’s decision

On September 9^th, 2016, the 911 operator for the HPS received a 911 call reporting a fight on a city bus, while another call indicated that a male was seen wandering the street while bleeding. As a result, the SO and WO #1 were dispatched to the call and located the Complainant, incapacitated and smelling of alcohol, in a nearby TD Bank. The Complainant was transported to hospital by ambulance where he became involved in an altercation with the two arresting officers. When assessed, the Complainant was found to have sustained an undisplaced fracture of his right elbow.

During the course of this investigation, six civilian and two police witnesses were interviewed; unfortunately, the Complainant had no recollection of the incident and four of the remaining civilian witnesses did not observe the altercation. Moreover, the paramedics who were in a position to observe the incident refused to provide statements to SIU investigators. The SO declined to provide a statement and did not provide his notebook for review by investigators, as is his legal right. Additionally, investigators reviewed the communications recordings and the notebooks of WO #1 and WO #2, and two other non-designated officers. There was unfortunately no Closed Circuit Television footage from the area where this incident occurred as the hospital was not equipped with surveillance cameras.

According to the statement of WO #2, she, along with the SO and WO #1, responded to a call at 7:13 p.m. regarding a man who was walking in vehicular traffic while bloodied. She later received additional information that the male had been involved in an altercation on a bus wherein he punched another passenger in the face. Upon speaking with the bus driver, she was advised that the male assailant had walked to the TD Bank at the corner and all three officers attended that location, where they found the Complainant passed out on the floor, covered in blood. The SO performed a sternum rub to attempt to rouse the Complainant while WO #2 called for an ambulance. The Complainant did eventually regain consciousness but appeared disoriented, his speech was slurred, he smelled of alcohol and he was unaware as to how he had come to be injured. The Complainant was transported to hospital in an ambulance with the SO and WO #1 following in their respective cruisers.

WO #2 then returned to the bus to investigate the assault, but the male who advised he had been head-butted by the Complainant did not wish to pursue the matter with criminal charges and refused medical treatment. At 8:03 p.m., WO #2 was leaving the area when she heard a radio transmission from the SO requesting her attendance at the hospital following an altercation with the Complainant. WO #2 advised that once she arrived at the hospital, the SO told her that the Complainant had left the stretcher to use the washroom, and upon his return, he tried to leave the hospital. The officers advised him he could not leave and took him back to the stretcher where he became assaultive and continued in his attempts to leave. As officers attempted to restrain the Complainant, he grabbed at the SO’s use of force options and the officers took him to the floor, whereupon they heard a “pop-pop” sound which caused them to believe that the Complainant had separated his shoulder. Both officers also advised WO #2 that they had each slightly injured their knees when they took the Complainant to the floor. At 8:35 p.m., WO #2 advised that she observed the Complainant spit in the SO’s face and he continued to scream until a doctor had him medically sedated and moved to a private room.

WO #1’s statement was consistent with that of WO #2. He further advised that when they finally managed to rouse the Complainant at the bank, he made racial slurs and was ranting incoherently. The Complainant told WO #1 that he had assaulted the person on the bus to protect a female passenger. WO #1 rated the Complainant’s sobriety on a scale of one to ten, with ten being falling down drunk, at a score above ten. WO #1 advised that they were going to arrest the Complainant for assault, but believed him to be too incapacitated to understand, so, instead, the Complainant was not handcuffed and a call was placed for an ambulance to transport him to hospital. The Complainant left in the ambulance at 7:40 p.m. and was followed to the hospital by both officers. WO #1 advised that at hospital, the Complainant was secured to the stretcher in the Emergency Department waiting for a bed when he indicated that he needed to use the washroom, and was allowed to do so. Upon his return, the Complainant insisted that he had to leave the hospital and began to move toward the nursing station when the SO grabbed his arm and told him he was under arrest. WO #1 then grabbed the Complainant’s other arm and he began to actively resist, insisting that he was leaving the hospital.

WO #1 advised that the SO tried to hold the Complainant against the wall to handcuff him; the SO held the Complainant’s right arm behind his back while WO #1 was on his left, when the Complainant grabbed at the officers’ duty belts and reached for WO #1’s CEW and other use of force options, but not his firearm. At that time, it was decided to take the Complainant to the ground and both officers placed their legs in front of the Complainant’s legs and pushed him forward in what WO #1 described as a quarter turn to the Complainant’s right in a sweeping motion. The Complainant landed prone in the centre of the corridor with his hands underneath his body; when officers ordered him to stop resisting and pried his hands free from under his body in order to handcuff him to the back, WO #1 heard a sound that he believed came from the Complainant’s elbow breaking. WO #1 advised that a Code White was called and paramedics and security staff responded. WO #1 estimated that the entire altercation lasted approximately one minute with the Complainant being handcuffed at 8:03 p.m. The Complainant was then again told that he was under arrest and he continued his violent and belligerent behaviour, including spitting on the SO, at which point he was medically sedated by the doctor.

The communications recording confirmed the statements of WO #2 and WO #1 as to the nature of the 911 calls to which they responded and the radio transmission recording confirmed that officers were directed to the TD Bank to arrest the assailant in the assault on the bus. The recording also confirmed that when WO #2 queried the Complainant on the computer, the dispatcher advised her that he had been flagged as violent and that in 2016 he “reached out to an officer’s belt to grab hold of the Taser” and had made remarks to the effect that he wanted police to shoot and kill him. At 8:03 p.m., an officer is heard on the communications recording requesting the attendance of the sergeant indicating that there had been a fight and the male might be hurt. The officer is clearly out of breath at the time that he is speaking.

Medical records confirmed that the Complainant had sustained an undisplaced fracture of his right elbow; the toxicology screening also confirmed WO #1’s assessment that the Complainant was extremely intoxicated, his blood/alcohol level being at approximately four times the amount at which it would be illegal to drive^{footnote 3[3]}.

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 apprehension, it is clear from the Complainant’s own statement, as well as that of the bus driver and the victim of the assault, that the Complainant had assaulted a male on the bus, and as such was arrestable pursuant to s. 266 of the Criminal Code. Additionally, the Complainant was out in public in an extremely intoxicated state and therefore was further arrestable for being in contravention of s.31(4) of the Liquor Licence Act. Consequently, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, I find that their actions were justified in the circumstances and that they used no more force than necessary to subdue the Complainant who was extremely intoxicated, belligerent and combative and was apparently intent on leaving the custody of the officers. In light of the fact that he had already caused injury to the male passenger on the bus, it was not a stretch to find that he was capable of doing so again, if not subdued. Furthermore, considering that the Complainant had attempted to get hold of WO #1’s use of force options and that he was in a public place with numerous medical staff and patients present, I find that officers could not take the risk that the Complainant might get hold of and use one of the use of force options in police possession. The consequences could have been tragic, were the Complainant not subdued. I find further support in this conclusion from the fact that medical staff had to medically sedate the Complainant in order to calm him down.

Although I find that the Complainant’s injury was caused either by the officers taking him to the ground or in their efforts to gain control of his hands in an attempt to handcuff him after he was placed under arrest, I find that pursuant to section 25(1) of the Criminal Code, the officers involved used no more force than was reasonably necessary in the execution of their lawful duties in attempting to arrest and subdue an intoxicated, combative and extremely resistant man. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, as follows:

Additionally the Ontario Court of Appeal in the decision of R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.) found that officers are not expected to measure the degree of their responsive force to a nicety.

As such, I am satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: September 18, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit