Source: The SpecMay 12, 2010
The Hamilton Spectator
(May 12, 2010)
Hamilton police did not contact the Special Investigations Unit, a provincial police watchdog, after the mistaken arrest of Po La Hay, who lay bleeding after police stormed into his apartment last week.
The SIU contacted Hamilton police after the ordeal of the 58-year-old Karen refugee from Myanmar was reported in local media more than a day after the incident, said SIU spokesperson Monica Hudon.
But the unit, which investigates incidents involving police that lead to death or serious injury, determined that Hay's cuts, bruises and suspected broken rib did not meet the "serious injury" threshold needed to launch an investigation.
Legal experts, however, contend the SIU's definition of serious injury is not clear and police should have contacted the provincial body.
"It seems definite that the Hamilton police should have called the SIU," said Peter Rosenthal, a Toronto lawyer who has dealt with several cases involving victims killed by police, invoking the SIU's mandate.
He described Hay's injuries as "close to the border" of the how the SIU defines serious injury.
In its formal definition on its website, the SIU says "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."
Because Hay's injuries fall into a "grey area," Rosenthal said, police should have called and "let the SIU make the decision."
Hamilton police contend "the injury threshold was not met," said spokesperson Catherine Martin. If there is new medical information, she said, they will contact the SIU.
Police Chief Glenn De Caire could not be reached for comment. Martin said he is awaiting a decision by the Office of the Independent Police Review Director (OIPRD) and is committed to meeting with Hay.
Representatives for Hay met with police following the incident in which police went to the wrong apartment looking for a 35-year-old drug dealer. Hay has said he is too fearful to meet with police.
The OIPRD is a recently created civilian agency responsible for overseeing and dealing with all public complaints against police in Ontario. The complaint laid in the Hay case came from the public.
It could take more than three months before the OIPRD determines if an investigation under the Police Services Act is warranted. An SIU investigation can result in criminal charges.
"When a citizen complains to an ombudsman-like organization, that should not preclude a proper investigation," said top Toronto criminal lawyer John Rosen, who sometimes works in Hamilton.
The OIPRD complaint provides the excuse to do nothing, he said. He was surprised the chief has not launched an internal investigation .
"The problem with the (SIU) mandate is that death is pretty clear, but serious injury is subjective," Rosen said, adding he would rather see one provincial oversight body that investigates any injury.