Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into a serious injury sustained by a 43-year-old man (the “Complainant”).

Notification of the SIU

On March 19, 2021 at 6:53 a.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant.

The HPS advised that on March 18, 2021 at 12:00 p.m., the Complainant allegedly stole a dog. A civilian flagged down Subject Official (SO) #2, who chased the Complainant on foot. SO #2 was struck by a civilian’s car and continued his foot pursuit of the Complainant. SO #2 subsequently caught up to the Complainant and a struggle ensued. The Complainant was taken to the ground, and SO #2 struck the Complainant to get him under control and handcuffed.

The Complainant was transported to St. Joseph’s Hospital (SJH) where he was diagnosed with having suffered a depressed fracture to the left lamina papyracea (orbital wall fracture). He was treated and released back into the custody of HPS.

The Team

Date and time team dispatched: 03/19/2021 at 10:06 a.m.

Date and time SIU responded: 03/19/2021 at 10:46 a.m.

Number of SIU Investigators assigned: 4

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on March 21, 2021.

Subject Officials

SO #1 Declined interview and to provide notes, as is the subject official’s legal right
SO #2 Interviewed, and notes received and reviewed

SO #2 was interviewed on April 15, 2021.

Witness Officials

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

The witness officials were interviewed between March 26, 2021 and March 31, 2021. 

The Scene

The scene was located on the east side of Bay Street North between Market Street and King Street West, Hamilton.

Video/Audio/Photographic Evidence [1]

The SIU obtained audio, video and/or photographic records of relevance, as set out below:

Communications Recordings

The recordings were made on March 18, 2021 and captured the following:

Track B
At 12:05 p.m., a 911 was received from a male who had witnessed a man stealing a dog. The caller followed the man and the dog as they walked in the area of King Street West and Bay Street North.

At 12:07 p.m., the caller said a police officer [now known to be SO #2] was on scene. The dispatcher ended the call at about the time the police officers said on the police radio they were with the Complainant.

Track E
At 12:05 p.m., the dispatcher requested that a police unit attend the call for service. SO #2 was dispatched as it seemed he was in the area and almost immediately said he was speaking with the 911 caller;

SO #2 told the dispatcher he could see the male, but he could not get to him because of the traffic.

At 12:07 p.m., SO #2 said he was going to be with the male at “Bay and York”. He said “it” was [the Complainant] (as if SO #2 knew he was dealing with the Complainant). SO #2 said the Complainant no longer had possession of the dog, and that the Complainant was running from him.

At 12:08 p.m., SO #2 said the Complainant was running south on Bay Street North.

At 12:09 p.m., a male police officer said the Complainant was under arrest.

At 12:10 p.m., SO #2 said he had a person in custody. It sounded like the Complainant was yelling in the background.

There were various other transmissions related to such actions as the transportation of the Complainant to the hospital, but nothing further that was of importance to the investigation of the injury to the Complainant.

Booking Video

The recording began on March 18, 2021 and captured the following:

At 12:44 p.m., two fully marked police cruisers entered the sally port. The first was a sedan driven by SO #2. The second was an SUV [now believed to be driven by WO #2]. A male wearing an HPS cadet uniform got out of the passenger side of WO #2’s vehicle.

Another male uniformed HPS police officer was in the sally port and interacted with the arriving police officers.

At 12:46 p.m., SO #2 told the other male police officer that the Complainant ran for about 20 seconds, and then let go of the dog because SO #2 was “gaining on him”. SO #2 said he was concerned about tackling the Complainant while he had the dog.

The Complainant remained inside WO #2’s police vehicle but could be heard occasionally yelling out, though what he said was not discernable.

At 12:57 p.m., WO #4 came out to WO #2’s police cruiser and looked in the rear seat area. He may have spoken to the Complainant through an open rear door window.

At 1:00 p.m., WO #2 and SO #2 left the sally port in their respective police cruisers.

At 1:29 a.m. on March 19, 2021 the Complainant was returned to the sally port by different police officers.

At 1:54 a.m., the Complainant was escorted from the police cruiser to the booking area, booked, searched, and escorted off-camera to a cell.

Materials Obtained from Police Service

The SIU obtained the following records from the HPS between March 25, 2021 and April 20, 2021:

• HPS Communications Recordings;
• HPS Booking and Cell Video;
• HPS Arrest Report;
• HPS Bail Report;
• HPS Computer-assisted Dispatch Report;
• HPS Canadian Detention Report;
• HPS Victim Statement;
• HPS General Report - Disturbance Person in Crisis;
• HPS General Report - Theft;
• HPS Involved Persons Report;
• HPS Notice to Victim of Crime;
• HPS Witness Statement;
• HPS Policy-Arrest;
• HPS Policy-Use of Force;
• HPS Prisoner Care Policy;
• HPS Probation Order (x3);
• HPS Release Document;
• HPS Use of Force Report – WO #1;
• Narratives of WO #1 and WO #2; and
• Notes of WOs.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:

• Medical Records from SJH.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and one of the two subject officials – SO #2. As was his legal right, SO #1 chose not to interview with the SIU or authorize the release of his notes.

Just after noon on March 18, 2021, the HPS received a 911 call from a person reporting that he had witnessed a male stealing a dog and providing the male’s current location – the area of King Street West and Bay Street North. Officers were dispatched to investigate.

SO #2 arrived in the area in his cruiser and located a male – the Complainant – matching the suspect’s description walking a dog on the east side of Bay Street North. The officer pulled up to the Complainant and asked him about the dog. the Complainant indicated he did not want to talk, and then changed course and started walking south toward Market Street.

The officer stopped his cruiser, exited and chased after the Complainant, who had started to run west across Bay Street North. SO #2 was struck by a third-party motorist as he made his way westward across Bay Street North.

SO #2 was not seriously injured in the collision. He spoke briefly with the driver and then continued after the Complainant, who was seen to release the dog and cross back over to the east side of Bay Street North.

SO #2 caught up with the Complainant on Bay Street North between Market Street and King Street West. The Complainant turned to face SO #2 and pushed him. SO #2 threw a punch at the Complainant, forced him to the ground face first, and told him he was under arrest for theft.

The Complainant resisted his arrest and quickly made it onto his back, after which he placed his hands in his pants pockets and refused to remove them. SO #2 punched the Complainant three times to the right ribs, following which the officer was able to remove the Complainant’s hands from his pockets and roll him onto his front.

At about this time, SO #2 was joined by SO #1 and WO #1. The Complainant continued to struggle against the officers’ efforts to arrest him, and was met with three punches to the torso by WO #1. Following the punches, the officers took control of the Complainant’s arms and handcuffed them behind his back.

The Complainant was transported to the police station but was re-directed to hospital before being booked.

At hospital, the Complainant was diagnosed with a fractured right cheek bone.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

On March 18, 2021, the Complainant suffered a serious injury in the course of his arrest by HPS officers. Two of the arresting officers – SO #1 and SO #2 – were identified as subject officials for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the Complainant’s arrest and injury.

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 authorized or required to do by law. The Complainant was in the area of the reported dog theft, roughly matched the description of the suspect, and had a dog which he released as he fled from SO #2. In the circumstances, I am unable to reasonably conclude that the Complainant’s arrest was unlawful.
Thereafter, given the Complainant’s physical resistance to his arrest, I am satisfied the force used by the officers was justified. With respect to the initial punch thrown by SO #2 and the takedown that quickly followed, the Complainant had just shoved the officer before SO #2 even laid a hand on him. In the circumstances, the force seems a proportionate response to deter any further assault by the Complainant. Once on the ground, the Complainant proved a formidable physical challenge as SO #2, first, and then SO #1 and WO #1, attempted to wrest control of his arms. SO #2 was right to be concerned about potential weapons in the Complainant’s possession and, therefore, entitled to take resolute action to remove the Complainant’s hands from his pockets when he failed to do so at the officer’s direction. On this record, I am unable to characterize the three strikes to the torso delivered by SO #2 as excessive. The same may be said with respect to the three punches struck by WO #1 as the officers struggled to overcome the Complainant’s resistance and take control of his arms. No further force was used after the Complainant was secured in handcuffs.

It should be noted that some evidence suggests a greater use of force by the officers, but it would be unwise and unsafe to rest charges on his evidence. This evidence did not indicate that the Complainant had stolen a dog, and yet the evidence tilts heavily in the direction. More importantly though, it appears that the source of the incriminating evidence was delusional at the approximate time of this incident. In the circumstances, I am not satisfied that this rendition of events is sufficiently reliable to warrant being put to the test by a trier-of-fact.

In the result, while I accept that the Complainant’s cheek bone was fractured in the course of the physical altercation that marked his arrest, there are no reasonable grounds to believe that the force used by the officers was more than was reasonably necessary in aid of a lawful arrest. Accordingly, there is no basis for proceeding with charges in this case.


Date: July 15, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit