Director's Report Details

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.

Freedom of Information and Protection of 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.

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 a serious injury sustained by a 30-year-old man (the “Complainant”).

Notification of the SIU

On October 12, 2020, at 5:54 p.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant. That day, at 12:38 p.m., HPS police officers responded to a motor vehicle collision involving a motorcycle. A woman [1] had taken her boyfriend’s (the Complainant) motorcycle and collided with a car on Hope Street. The Complainant came, took the motorcycle, and left the area before police officers arrived.

The Complainant was seen southbound on Ottawa Street, and was followed by police officers. On Rosslyn Avenue North, police officers “lit him up” with emergency lights. At 12:46 p.m., the Complainant turned onto Craigmiller Avenue, and lost control of the motorcycle. He first struck a fence and then a car. He fled on foot and was arrested in a backyard on Craigmiller Avenue.

The Complainant was taken to the Hamilton General Hospital and diagnosed with a fractured right little finger before he was returned to an HPS facility and lodged for a show cause hearing.

The Team

Number of SIU Investigators assigned: 4

The Scene

Craigmiller Avenue’s westerly termination was on the west side of a pocket of residential streets in an area surrounded by properties of mixed residential and commercial use. A railway line ran, predominantly, north and south, parallel to and west of Rosslyn Avenue North. Craigmiller Avenue ran east, from Rosslyn Avenue North, only. The roadways through the neighbourhood were sufficiently wide for opposing directions of vehicular traffic but those lanes were not marked by traffic control lines.

Craigmiller Avenue was populated on each side by detached homes designed for single family occupancy. The houses were separated from the roadway by a residential sidewalk, of common width, with no boulevard between the sidewalk and the roadway.

The following image shows the motorcycle as it came to rest, faced front wheel pointed east, on the sidewalk, on the south side of Craigmiller Avenue, beside the fence separating 2 Craigmiller Avenue from the sidewalk and roadway.


Figure 1 - The Complainant's motorcycle on Craigmiller Avenue.

Forensic Evidence

Global Positioning System (GPS) Data

The GPS data associated to the SO’s police vehicle were requested for October 12, 2020. The HPS reported the equipment had malfunctioned and had not reported to the GPS database since October 11, 2020. When that information became apparent attempts were made to retrieve the data directly form the in-car computer system. That attempt was also unable to retrieve the GPS data due to equipment failure. Upon that notice, investigators sought the maintenance records for the police vehicle’s GPS equipment and answers to questions pertaining to how the operator of a GPS malfunctioning police vehicle or dispatch personnel would be or become aware the equipment had malfunctioned. The information and answers provided were received and sufficed to satisfy that the absence of GPS data associated to the investigation was coincidental.

Expert Evidence

A forensic investigator formed an opinion, based on a photograph taken by HPS investigators, of the speed at which the Complainant’s motorcycle was traveling when it fell to the ground, on the sidewalk, on Craigmiller Avenue. In his opinion the scrape marks on the concrete sidewalk were about one metre long and extended to the left foot peg area of the fallen motorcycle. He assumed the co-efficient of friction to be 0.35 to 0.62, on concrete, as per motorcycle engineering testing. The speed required for the sliding motorcycle to make the mark captured by the photograph was calculated to be 9.9 km/h to 12.8 km/h. That estimation could not speak to the speed that would have been required for the motorcycle to create the damage to the car on the motorcycle’s left side nor could it address the motorcycle’s speed before it was braked and then slid on the concrete sidewalk. The latter events would undoubtedly result in an increase in the estimation of the motorcycle’s speed.

Video/Audio/Photographic Evidence

Custody Video
The Complainant was held in an HPS facility after he was cleared at hospital on October 12, 2020.

Video #1
At 4:33:39 p.m., two marked police vehicles pulled into the garage of the HPS facility and a police officer exited each vehicle. One of them retrieved a backpack from the front passenger door of his police vehicle and walked into the station with it. The second police officer waited in the garage. On his return, the first police officer spoke to [the Complainant] through the open window of the back of his police vehicle. At 4:38:40 p.m., the Complainant exited the police vehicle and put on a Covid mask before he and the two police officers entered the station, at 4:39:00 p.m.

Video #2 - Area P6 - Receiving area - Inside station from garage / sally port area
At 4:37:58 p.m., the door from the garage opened and the Complainant entered with two police officers. The Complainant was sat on a bench.
Video #3 - Booking desk and counter
The booking officer stood behind the booking counter and faced a bench. There were two police employees behind the desk, one in a powder blue uniform shirt, the other in a midnight blue uniform shirt.

At 4:38:57 p.m., the Complainant led the way into camera view and sat on the bench, followed by two police officers. A third police officer entered the camera view from behind the counter. The Complainant’s hands were not handcuffed. His right hand was wrapped and splinted.

The booking process progressed (without audio) and the Complainant’s clothing was searched and his person was “patted down”. The draw string from his trousers and his shoelaces were removed and handed to personnel behind the counter. He was “wanded” with a hand-held metal detector.

At 4:42:31 p.m., the Complainant was directed into a room across from the booking counter, out of camera view. A police officer stood in the doorway of that anti-room but did not follow the Complainant. 4:43:08 p.m., the Complainant emerged from the anti-room and, at 4:43:26 p.m., he was led off camera.

Video #4 – Area P4 - Central area with desk (no audio)
This is an area outside the HRPS cells. At 4:43:15 p.m., a police officer and the Complainant, who wore a dark jumpsuit, appeared. The police officer held a set of sheets. At 4:43:24 p.m., the police officer was given a key at a desk and he and the Complainant walked down a hallway.

Video #5 – Area P4 - Central area with desk (no audio)
At 4:49:52 p.m., a plainclothes police officer walked by the desk and, at 4:50:09 p.m., the Complainant was placed in a room near the desk. A special constable locked the door, securing the Complainant inside. At 4:56:00 p.m., the special constable unlocked the door, and the Complainant exited the room and walked down the hallway, out of sight.

Civilian Residential Security Video

A canvass discovered a short video of the incident. The collected video was two minutes and 50 seconds long, but the relevant footage was only approximately six seconds in duration, beginning 30 seconds into the video.

The video captured the Complainant as he travelled through the area, on a motorcycle, followed by a police vehicle, on October 12, 2020. An analysis of the footage, conducted by an SIU forensic investigator, follows:

Located on the northeast corner of a residence on Dalkeith Avenue, a camera was directed toward the northwest and captured activity on Rosslyn Avenue North and Dalkeith Avenue. Rosslyn Avenue North permitted vehicular travel north and south. Dalkeith Avenue permitted vehicular travel east and west, intersecting Rosslyn Avenue North, on the east side only.

Using Windows Media Player, the camera recorded events at two mouse clicks per second. The following indicates the times at which the fronts of each vehicle were in line with landmarks in the camera’s field of view. The measured distances along the southbound lane of Rosslyn Avenue North were calculated with the measuring tool in the GoogleEarth® program.



The calculated average speeds were a good representation of the vehicles’ speeds, but the timings/distances measured were not precise as the landmarks on GoogleEarth® were not exceptionally clear and the timings on the video were ‘jittery’ from a lack of recorded frames per second. The police vehicle’s siren and engine acceleration could be heard when it was beyond the stop sign, on the north side of Dalkeith Avenue. No pedestrians were visible in the area, nor were there any people in the park on the northeast corner of the intersection.

Communications Recordings

911 Call
On October 12, 2020, at 12:35 p.m., an unidentified woman called 911 to report her van, parked in front of her address on Hope Street, was struck by a woman [now known to be the Complainant’s girlfriend] driving a motorcycle. The licence plate was given to the call-taker. The woman appeared uninjured, but the caller thought she might be on drugs. The woman said she was unlicensed, walked away from the collision and entered a home. A man [now known to be the Complainant] rode off on the motorcycle.

The caller’s neighbour took the telephone and noted that after the van was struck, the Complainant and the woman drove to a parking lot at Hope and Kenilworth Avenues. The motorcycle stalled, the woman got off, and the Complainant, having restarted the motorcycle, rode south to Britannia Street. A picture had been taken of the licence plate.

Neither callers saw who drove the motorcycle into the van. Both the woman and the Complainant were described to the call-taker.


Police Radio Transmissions
The transmissions were not time stamped. They started on October 12, 2020, at 12:38 p.m., when the communicator dispatched a police officer to an address on Hope Avenue, for a fail to remain at the scene of a motor vehicle collision. The female driver of a motorcycle had hit a parked vehicle, abandoned the motorcycle and walked to an address. She may have been impaired. A male passenger had taken control of the motorcycle and fled.

The SO asked for a description of the man who took the motorcycle as one just passed him at the Centre Mall. The dispatcher told the SO the motorcycle was a red sports bike and gave him the licence plate number.

A police officer broadcasted that the man on the motorcycle wore all white clothing and a helmet.

The SO broadcasted he was in a foot pursuit and “Craigmiller, get on the ground”, before he broadcasted everything was okay and he had someone in custody.

WO #2 broadcasted he was approaching Craigmiller Avenue.

A police unit said he had the woman, from the Hope Avenue collision, in his vehicle.

WO #6 said he was on Craigmiller Avenue.

WO #3 broadcasted he was going to Hope Avenue. The dispatcher ran a CPIC check querying the woman. The woman was revealed to be unlicensed and to have two driving licence suspensions, was to be approached with caution, and was prohibited from possessing firearms.

A police unit requested a CPIC check for the Complainant, and was told he should be approached with caution, had a history of family violence, was an escape risk, was prohibited from the possession of firearms and was on an undertaking, charged with assault and failing to comply with a probation order. The Complainant did not have a driving licence.

A tow truck was ordered for the motorcycle, and the communicator informed police officers the motorcycle had been stolen from Peel Region. The communicator also thought the licence plate was wrongly related during the initial call, but it turned out it had been altered with blue paint.

WO #6 requested an ambulance on Craigmiller Avenue to assess the Complainant as he confessed to recent drug use and complained of pain due to the accident. A police unit asked if a drug recognition unit was available and was told yes.

The police unit asked to cancel the tow truck until the Complainant had been medically cleared.

Materials obtained from Police Service

The SIU obtained and reviewed the following records from the HPS:

• Computer-assisted Dispatch Chronology;
• Certificate of a Medical Practitioner (for blood samples) (x2);
• Court document-Notice of Intent;
• Court document-Notice of Production;
• Court document-Probation Order-the Complainant;
• Court document-Release Order-the Complainant;
• Court document-Summons-the woman;
• Court document-Undertaking-the Complainant;
• General Report (x2);
• Hamilton Health Appointment form;
• Hamilton Health Release of Evidence to Police form-the Complainant;
• HPS Arrest Booking Report-the Complainant;
• HPS Arrest Report-the Complainant;
• HPS Bail Form-Bail Opposition;
• HPS Custody Video Request form;
• HPS Domestic Violence Risk Management Report;
• HPS Emails regarding GPS not working;
• HPS Report regarding Technician Support Requests;
• HPS Involved Persons;
• HPS Motor Vehicle Collision Report;
• HPS Previous Occurrences - the Complainant;
• HPS Procedure - Use of Force;
• HPS Procedure - Suspect Apprehension Pursuits;
• HPS Procedure - Arrest;
• HPS Procedure - Prisoner Care and Control;
• HPS request to Ontario Court of Justice, Guelph, for certified information and release order;
• HPS Response to SIU Questions;
• HPS Supplementary Occurrence Report (x6);
• HPS Surety Background Check form;
• HPS Tow Tag;
• HPS Training Record-Use of Force requalifications-the SO;
• HPS Vehicle Assignments (x2);
• HPS Vehicle Release;
• HPS Witness Statements (x3)
•  Involved Officers;
•  Ministry of Transport Request for Driver Record form;
•  Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6 and WO #7;
• OPP Report-the Complainant;
• Photo of Licence; and
• Photo Taken by civilian of the Complainant (x2).

Materials obtained from Other Sources

The SIU obtained and reviewed the following records from non-police entities:

• Ambulance call report.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the SO and a number of civilians who witnessed the incident in parts, as well as a review of a video recording that captured a portion of the pursuit. In the afternoon of October 12, 2020, the SO was on patrol in his cruiser when his attention was drawn to a male riding a motorcycle. The motorcycle, turning east onto the grounds of the Centre Mall, matched the description of a vehicle that had just fled from the scene of a motor vehicle collision nearby. Suspecting the motorcycles were one and the same, the SO decided to follow the motorcycle.

The SO tracked the motorcycle at slow to moderate speeds and at a distance as the vehicles left the Centre Mall area and travelled through the parking lot of an apartment building beside the mall before finding their way onto northbound Ottawa Street North. The motorcyclist turned left to travel westward on Dalhousie Avenue and the officer followed suit from a distance of about a couple of car lengths. As the vehicles approached a forced left hand turn in the road at the end of Dalhousie Avenue, the SO received word of a description of the motorcyclist who had been seen at the scene of the prior collision. Satisfied the description matched the motorcyclist he was tailing, the SO activated his emergency lights and siren with the objective of stopping the vehicle.

The motorcyclist was the Complainant. Reportedly, he was not the driver of the motorcycle that had previously crashed; rather, his girlfriend had been operating the vehicle at the time. The Complainant had attended the scene of that accident and driven off on the motorcycle moments before he was noticed by the SO.

The Complainant refused to stop for the cruiser. Instead, he continued southward on the roadway past the forced left turn from Dalhousie Avenue, namely, Rosslyn Avenue North. The SO followed on the heels of the motorcycle. In the area of Craigmiller Avenue, the SO maneuvered into the opposing lane of traffic, accelerated and, driving past the motorcyclist, brought his cruiser to a stop at an angle in the southbound lane in front of the Complainant.

The Complainant slowed for a period and evaded the roadblock by turning left onto Craigmiller Avenue. Unable to maintain control of his vehicle, the motorcycle mounted the south sidewalk, struck a fence and fell onto its left side, striking the passenger side of a parked vehicle in the process. The Complainant fell from his motorcycle, picked himself up and began to run eastward.

The SO saw the collision and chased the Complainant on foot into the backyard of a home a short distance away on the south side of Craigmiller Avenue. The Complainant tried and failed to scale the back fence of the yard; a table he climbed onto to assist in his effort had collapsed under his weight. The SO directed the Complainant to the ground and subsequently handcuffed him without incident.

An ambulance attended the scene when the Complainant complained of pain in his right hand and noted he had earlier consumed a quantity of fentanyl. He was taken to hospital and diagnosed with a fracture to the right little finger.

Section 320.13, Criminal Code – Dangerous operation of motor vehicles, vessels and aircraft

On October 12, 2020, the Complainant was arrested following a brief motor vehicle pursuit and subsequently taken to hospital where he was reportedly diagnosed with a fractured right finger. The officer who had been in pursuit of the Complainant, 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 pursuit and the Complainant’s injury.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. The offence is predicated, in part, on conduct that departs markedly from a reasonable level of care in the circumstances. In the instant case, the issue is whether the SO displayed a want of care in the manner in which he engaged with the Complainant which caused or contributed to the collision and/or was sufficiently egregious as to attract criminal sanction. In my view, though there are aspects of the SO’s conduct that were problematic, there are no reasonable grounds to believe that the officer transgressed the limits of care prescribed by the criminal law.

It appears that the SO pushed the limits and perhaps even violated one or more of the strictures set out in O. Reg. 266/10, the provincial regulation that governs police pursuits. For starters, there is little question that the SO initiated a suspect apprehension pursuit under the regulation that governs police pursuits in the province – O. Reg. 266/10. He was within a couple of car lengths of the motorcycle, lights and siren on, as the Complainant continued southbound on Rosslyn Avenue North. Thereafter, he was arguably precluded from initiating or continuing a pursuit under the terms of the regulation as he was aware of the licence plate marker on the motorcycle at an early point, that information having been provided over the radio from witnesses to the earlier collision. For example, section 2(6) of O. Reg. 266/10 provides that “[a] police officer engaging in a suspect apprehension pursuit for a non-criminal offence shall discontinue the pursuit once the fleeing motor vehicle or an individual in the fleeing motor vehicle is identified”. It must also be noted that the SO was pursuing a motorcyclist who was in a relatively vulnerable position compared to the officer given the nature of their vehicles. While the regulation does not outright ban the pursuit of motorcyclists, its fundamental organizing principal is that pursuits must not be undertaken where the dangers created by a pursuit to public safety outweigh the dangers to public safety of a fleeing vehicle left unchecked or unidentified. Moreover, the police service’s pursuit policy lists a motorcycle as a risk factor to be considered in the assessment of public safety. Given the nature of the predicate offence giving rise to the pursuit, the type of vehicle being pursued, and the fact that the SO was following the motorcycle within inches of its rear wheel, one might reasonably infer that the balance of public safety considerations weighed against the course the officer adopted. Finally, there was the attempted roadblock by the SO. In my view, the tactic, though justified by the officer on the basis of preventing a pursuit from materializing on Barton Street, a couple of blocks south of their position, was ill-advised. There was simply no imperative, in my view, to force an immediate end to the pursuit by way of such an inherently risky tactic in view of the prevailing circumstances at the time.

On the other side of the ledger, there were a number of extenuating considerations in the circumstances that characterized the pursuit. The SO’s emergency lights and siren were on at all material times, thereby giving pedestrians and motorists in the vicinity some advance warning of the pursuit. That said, whatever traffic was on the roadway in course of the pursuit was little to non-existent. While I am troubled by the fact that the SO appears to have been within a metre or two of the motorcyclist at points as they travelled south on Rosslyn Avenue North, it bears noting that the vehicles’ speeds were fairly moderate at the time – not much more than 50 km/h as they approached Craigmiller Avenue. As for the use of his cruiser to set up a roadblock on the road, it is apparent that the SO left the Complainant sufficient time and space to come to a safe stop if he had been so inclined. Finally, and importantly, the active pursuit portion of the officer’s overall engagement with the Complainant was exceedingly short – no more than 130 to 140 metres from the moment the SO activated his lights and siren at the north end of Rosslyn Avenue North to the street’s intersection with Craigmiller Avenue. Thus, whatever danger the SO was creating was momentary.

In the final analysis, when the pros and cons of the SO’s conduct are weighed in the balance, I am not persuaded with any degree of confidence that the officer’s shortcomings were such as to render his driving a marked departure from a reasonable level of care in the circumstances. Accordingly, there is no basis for proceeding with criminal charges and the file is closed.


Date: April 19, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit