Explanatory note

The Ontario Government is releasing past SIU Director Reports (submitted to the Attorney General prior to May 2017) that include fatalities involving a firearm, physical altercation, and/or use of conducted energy weapon, or other extensive police interaction that did not result in a criminal charge.

Justice Michael H. Tulloch made recommendations about the release of past SIU Director Reports in the Report of the Independent Police Oversight Review, released on April 6, 2017.

Justice Tulloch explained that since past reports were not originally drafted for public release they may have to be edited substantially to protect sensitive information. He took into account that confidentiality assurances were given to various witnesses during the course of SIU investigations, and recommended that some information be redacted in the interests of privacy, safety, and security.

As recommended by Justice Tulloch, this explanatory note is being provided to assist the reader’s understanding of why certain information is redacted in these reports. Notes have also been inserted throughout the reports to help describe the nature of the information that was redacted and why it was redacted.

Law enforcement and personal privacy information considerations

Consistent with Justice Tulloch’s recommendations and guided by section 14 of the Freedom of Information and Protection to Privacy Act (FIPPA) (relating to law enforcement information), portions of these reports have been removed to protect:

  • confidential investigative techniques and procedures used by the SIU
  • 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
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Consistent with Justice Tulloch’s recommendations and guided by section 21 of FIPPA (relating to personal privacy information), personal information, including sensitive personal information, has also been redacted, except that which is necessary to explain the rationale for the Director’s decision. 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
  • other identifiers which are likely to reveal personal information about individuals involved in the investigation, including in relation to children
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Personal health information

Information related to the personal health of individuals that is unrelated to the Director’s decision (taking into consideration the Personal Health Information Protection Act, 2004) has been redacted.

Other proceedings, processes, and investigations

Information may have also been excluded from these reports 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.

Director’s report

Notification of the SIU

On January 29, 2011, at 0400 hrs, Notifying Officer of the Hamilton Police Service (HPS) notified the SIU of the serious injury sustained by Deceased at or near his home while accompanied by uniformed members of the HPS.

Notifying Officer reported that Deceased had been removed from local taverns for disruptive behaviour earlier that night by HPS officers. Because he lived near the tavern, the officers drove Deceased home rather than arrest and incarcerate him. Once at the front door to his home, Deceased collapsed without vital signs. Efforts at resuscitation failed and Deceased did not regain consciousness. He was pronounced deceased at Hamilton General Hospital (HGH) 11 days later on February 10, 2011.

The investigation

Three SIU investigators and two SIU forensic investigators (FIs) initiated an investigation in Hamilton immediately after being notified by the HPS on January 29, 2011. The scene was photographed and measured and physical evidence was obtained from the front porch area of the complainant’s home.

The area was canvassed and civilian witnesses were identified and interviewed. Deceased’s movements immediately prior to his collapse were traced, further evidence was uncovered and medical records were obtained upon consent.

The SIU requested, received and reviewed the following documents and materials from the HPS:

  • the CAD report
  • the HPS Event Chronology
  • the HPS policy directive regarding the handling of intoxicated persons
  • the Liquor Licence Act as it pertains to the incident
  • scene sketches by Subject Officer and Witness Officer #1
  • duty notes of all involved officers
  • the HPS Communications Recording
  • ambulance Call reports
  • typed statements of all witness officers, and
  • a bank statement of Deceased

The witness officers were interviewed as indicated:

  • Witness Officer #1 (January 31, 2011)
  • Witness Officer #1 (Second Interview) (March 8, 2011)
  • Witness Officer #2 (January 31, 2011)
  • Witness Officer #3 (January 31, 2011)
  • Witness Officer #3 (Second Interview) (March 8, 2011)
  • Witness Officer #4 (January 31, 2011)
  • Witness Officer #5 (February 3, 2011)
  • Witness Officer #6 (February 3, 2011)

The subject officer, Subject Officer, was interviewed on February 3, 2011.

The civilian witnesses were interviewed on the dates below:

  • Civilian Witness #1 (January 29, 2011)
  • Civilian Witness #2 (January 29, 2011)
  • Civilian Witness #3 (January 29, 2011)
  • Civilian Witness #4 (February 3, 2011)
  • Civilian Witness #5 (February 7, 2011)
  • Civilian Witness #6 (February 7, 2011)
  • Civilian Witness #7 (February 8, 2011)
  • Civilian Witness #7 (Second Interview) (March 8, 2011)
  • Civilian Witness #8 (March 8, 2011)
  • Civilian Witness #9 (March 8, 2011)
  • Civilian Witness #10 (March 8, 2011)

Overview

On January 29, 2011, Deceased visited local taverns and consumed alcohol to the point where he was refused service. He was driven to his home by HPS officers and safely entered his home. Shortly thereafter however, Deceased left his house and returned to the tavern where he was again denied service and became disruptive and assaultive to other patrons.

Police were called and again drove Deceased home. Deceased was obviously intoxicated and belligerent. Once on the porch of his home he faced the subject officer, Subject Officer, and advanced with his walking cane pointed at the officer. Subject Officer stopped the advance by shoving Deceased with an open hand push.

Deceased fell backwards and struck the brick wall adjacent to the front door and fell to the ground. Blood was noticed at the base of the wall and Deceased began to snore, evidently unconscious. EMS was summoned and eventually transported Deceased to HGH where he did not regain consciousness. He died 11 days later.

Director’s decision under s. 113(7) of the Police Services Act

There are no reasonable grounds, in my view, to believe that the subject officer, Subject Officer, committed a criminal offence in connection with Deceased’s death on February 10, 2011.

In the late hours of January 28, 2011, Deceased left his home and became involved in a sequence of events that would ultimately culminate in his unfortunate demise. For purposes of the liability analysis that follows, a detailed recitation of the material events in the hours preceding Deceased’s medical distress is in order. It appears he first attended Buddy’s Bar in Hamilton where he ordered and had several drinks. Upon being denied further service, he left the bar in the company of an unidentified patron. Deceased proceeded to make his way to the Across the Road Tavern. There he had some more to drink before getting into an argument with another man at the bar. Both men then left the bar.

What followed thereafter is somewhat sketchy, but the evidence suggests the distinct possibility that Deceased became embroiled in a physical altercation with an unknown individual or individuals. At around 1:15 a.m. on January 29, 2011, several police officers, responding to reports of an assault in progress near the Across the Road Tavern, found Deceased lying on the east sidewalk of a location. Though none of the officers noted any serious injury (one of the officers noted a cut to one of Deceased’s hand and another observed a small amount of blood on his lips), they were concerned enough about his well-being given Deceased’s highly intoxicated condition. At one point in their conversation, according to the sergeant on scene, Deceased stated that he had been kicked in the face. Deceased ultimately agreed to be accompanied home by a couple of the officers. The officers did so.

Unfortunately, that was not to be the end of Deceased’s night. He soon returned to the Across the Road Tavern. The bartender denied him service, so Deceased helped himself to another patron’s bottle of beer. The bartender intervened. He/She retrieved the bottle of beer from Deceased and told him to leave. Deceased then fell to the floor, although how he got there exactly is a matter of some dispute. A witness says that Deceased tripped and fell after he lifted himself from the stool on which he was sitting. Another patron says he/she witnessed Deceased attempt to strike the bartender with his cane as the bartender turned to walk away from him, having removed his beer bottle. Just then, a person intervened, grabbed Deceased and “body-slammed” him to the floor. According to this witness, Deceased hit the floor hard with the back of his head and lost consciousness for under a minute. The police were called and Witness Officer #1 arrived at the bar shortly thereafter. Deceased was initially uncooperative, but was eventually persuaded to leave the bar with Witness Officer #1. Subject Officer joined Witness Officer #1 outside the bar. It was agreed Witness Officer #1 would transport Deceased home in his/her cruiser accompanied by Subject Officer in his/her own cruiser.

A short time later, at about 2:40 a.m., the officers arrived at Deceased’s residence on a location. Deceased initially refused to leave the cruiser. He cursed and threatened the officers as they attempted to remove him. When Deceased did finally come out of his own accord, he was unsteady on his feet but was able to walk unassisted up the ramp to the front door of his residence. According to Subject Officer, at one point during the trip up the ramp, Deceased turned backwards in his direction and swung his cane at the officer. As the parties reached the door, the Subject Officer warned Witness Officer #1 of Deceased’s gesture and to be careful around him.

After a few minutes of knocking on the door, according to the officers, Deceased again turned in Subject Officer’s direction and moved towards him/her. When he was within arm’s length of the officer, Subject Officer shoved him backwards with his/her left arm. The push, described by the officers as being delivered with minimal force, caused Deceased to stumble backwards against the brick wall adjacent to the front door, striking the back of his head against the wall in the process. Deceased would come to rest slumped on the ground on his back, his head resting against the brick wall and propped forward. The officers soon heard Deceased snoring. They thought about carrying him into the residence, but decided against doing so when they learned from Civilian Witness #1 who had joined the officers at this time from inside the house, that Deceased suffered from a back condition. Instead, paramedics were called. A few minutes later, ambulance and fire services personnel arrived. They determined that Deceased was in medical distress and started to treat him. Shortly thereafter, Deceased was loaded into an ambulance and taken to Hamilton General Hospital. He never regained consciousness, and died on February 10, 2011.

Whether or not Subject Officer can be said to have “caused” Deceased’s death is a difficult question for purposes of assessing criminal liability. The post mortem report, received by the office on July 12, 2011, concludes that Deceased died of brain damage (“anoxic ischaemic encephalopathy”) due to “status post cardiac arrest”. The pathologist concludes that the “exact underlying mechanism for the cardiac arrest could not be ascertained at autopsy.” He/She proceeds to suggest, however, that Deceased’s cardiac arrest can be explained by a couple of conditions, operating independently or in combination. First, given Deceased’s position on the ground, with his head propped forward, neck flexed and chin placed on his chest, there is the possibility of positional asphyxia being the precipitating cause of the cardiac arrest. Second, Deceased’s acute alcohol intoxication at the time, operating together with a possible cerebral concussion sustained as a result of Deceased’s head striking the wall of his home and/or earlier in the evening when he was thrown to the ground at the Across the Road Tavern, could have led to post traumatic apnea and the cardiac arrest. The criminal law requires that the conduct under scrutiny amount to a “significant contributing cause” of a death in question before criminal liability will attach: R v Nette, 2001 3 S.C.R. 488. For charging considerations, there need only be reasonable grounds to believe that Subject Officer’s conduct was a significant contributing cause of Deceased’s death. Within this framework and given the pathological evidence, it is perhaps possible to reasonably conclude the officer’s conduct was a significant contributing cause of Deceased’s cardiac arrest and subsequent death.

Fortunately, I am of the view that I need not answer that question to resolve the question of the officer’s potential criminal liability. Even assuming Subject Officer “caused” Deceased’s death, I am satisfied on reasonable grounds that his/her conduct in so doing did not amount to any criminal offence. On the theory that Subject Officer’s shove of Deceased caused or contributed to Deceased’s head injury, which, in combination with Deceased’s level of intoxication and/or compromised neck position following his fall to the ground, resulted in cardiac arrest, I am satisfied that the force was reasonably necessary and therefore justified under the Criminal Code. The officer asserts that he/she used minimal force to stop Deceased from advancing towards him/her in a menacing fashion by shoving him backwards with his/her left hand. I accept the officer’s evidence on this point. It is confirmed by the only other witness to the events in question, Witness Officer #1. According to the statements of independent witnesses, Deceased had been belligerent, at times assaultive, throughout the hours preceding the confrontation with Subject Officer. It is not surprising that he would have threatened Subject Officer in the fashion described by the officer. Having observed Deceased swing his cane in his/her direction a moment earlier, and then confronted by an advancing Deceased at the front door, Subject Officer was entitled to defend himself/herself and thwart his progress. I am satisfied that he/she used no more force than was reasonably necessary to do so.

On the theory that the officers ought to have been alert to the dangers of positional asphyxia and adjusted Deceased’s head position on the ground, instead of leaving him there for a period of time while waiting for paramedics to arrive, I am also satisfied that the officers exercised a level of care within the limits prescribed by the criminal law. To reiterate, the officers considered moving Deceased into the residence, but decided against doing so when they learned from Civilian Witness #1 of Deceased’s back injury. Their decision was motivated by a desire to avoid doing further harm to Deceased. It was, in my view, a reasonable one to have made in the circumstances.

For the foregoing reasons, this file is closed.

Date: July 15, 2011

Original signed by

Joseph Martino
Director
Special Investigations Unit