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 the serious injury a 46-year-old man (the “Complainant”) suffered.

Notification of the SIU

On September 19, 2021, at 10:32 a.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant.

On September 18, 2021, at 11:10 p.m., HPS officers were reported to have responded to a motor vehicle collision involving two motorcycles at Lawrence Road and Edgerat Street. [1] One of the riders, the Complainant, ran from the scene. With the assistance of witnesses, police officers set up a perimeter. Police officers saw the Complainant running while limping from a wooded area along Lawrence Road. The Complainant was told to stop but he jumped over a fence and went out of sight. With the assistance of a police dog, the Complainant was located on a nearby trail and arrested. He was transported to Hamilton General Hospital (HGH) and diagnosed with a fractured ankle.

The Team

Date and time team dispatched: 09/19/2021 at 10:45 a.m.

Date and time SIU arrived on scene: 09/19/2021 at 11:31 a.m.

Number of SIU Investigators assigned: 2

The Scene

On September 21, 2021, at 10:40 a.m., the SIU Forensic Investigator and Lead Investigator attended the scene.

Lawrence Road and Edgemont Street meet at a “T” intersection. Lawrence Road runs in an east-west direction and Edgemont Street in a south-north direction. Both roadways are paved and are two lane roadways. There is a small bush area lining the south side of Lawrence Road with a collapsing wire fence. The fence borders a rail track leading to a very steep hill towards the Kenilworth Access.

The SIU Forensic Investigator took general photographs of the area. A scene examination beyond the Kenilworth Access was not completed as the terrain conditions posed unreasonable safety risks.



Figure 1 – The train track area bordering Lawrence Road


Figure 2 – The collapsing fence between Lawrence Road and the railroad tracks

Video/Audio/Photographic Evidence [2]

HPS Communication Recordings

On October 15, 2021, the SIU received a copy of the relevant communication recordings from the HPS. A summary of the material information therein follows.

The police vehicle operated by WO #4 was at a motor vehicle collision at Lawrence Road and Edgemont Street with another unit operated by WO #2. WO #2 advised two motorcycles were involved - one was un-plated and embedded into the front of the other motorcycle. WO #2 requested additional units as he did not know if the second driver was injured. WO #4 and WO #1, as well as another unit responded.

WO #2 requested a perimeter be set up as witnesses had heard someone in the woods, possibly injured.

WO #5’s unit was mobile in the area, east of the collision.

The Canine Unit was requested to commence a track.

WO #2 radioed that the Complainant was wearing all black clothing and a black helmet.

WO #5 saw the Complainant limping across the Kenilworth Access. He provided a physical description of the Complainant and his jacket. He lost sight of the Complainant after he scaled a barbed wire fence towards the rail trail.

WO #5 coordinated a perimeter with other units to secure the Complainant in the area.

WO #4 provided updates as the police service dog led the track of the Complainant in the rail trail. WO #3 and SO #2 located the Complainant after the police service dog began barking. The Complainant continued to evade capture.

WO #4 requested Emergency Medical Services (EMS) for the Complainant, who was complaining of sore feet.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from HPS between September 20, 2021 and November 3, 2021:

• Communication Recordings;
• Collision (Witness) Statement-CW #3;
• Collision (Witness) Statement-CW #4;
• Event Chronology;
• General Report;
• Motor Vehicle Collision Report;
• Notes-WO #4;
• Notes-WO #3;
• Notes-WO #2;
• Notes-WO #5;
• Notes-WO #5 (transcribed notes);
• Notes-WO #6;
• Notes-WO #1;
• Use of Force and Equipment Policy;
• Arresting Procedures and Compelling Appearance in Court Policy;
• Subject Profile Report-the Complainant;
• Supplementary Occurrence Report;
• Training Records;
• Will State-WO #4;
• Will State-WO #2; and
• Will State-WO #1.

Materials Obtained from Other Sources

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

• Ambulance Call Report-Hamilton EMS;
• Medical Records-HGH; and
• Medical Records-St. Joseph’s Healthcare.

The following scenario emerges on the weight of the evidence collected by the SIU, which included interviews with the Complainant, one of the subject officials – SO #2, and several other officers present at the time of the arrest. As was his legal right, SO #1 chose not to interview with the SIU or authorize the release of his notes.

At about 11:00 p.m. of September 18, 2021, the Complainant, though prohibited from operating a motor vehicle, was traveling on a motorcycle eastward on Lawrence Road when he became involved in an accident. In the area of the Edgemont Street South intersection, he had rear-ended another motorcyclist, propelling him (the Complainant) off his vehicle into a grassy ditch that lined the south side of Lawrence Road.

The police were alerted to the collision and sent officers, who arrived to learn that the Complainant had fled the scene of the accident. Emergency Response Unit officers and a dog handler were dispatched to conduct a search for the Complainant. Based on information from civilian witnesses, the officers ascertained that the Complainant had fled south up a steep hill towards Kenilworth Access. Moments later, it was further learned that the Complainant had scaled a fence south of Kenilworth Access into a heavily treed area that rose towards the Escarpment Rail Trail.

The search party, including SO #2 and SO #1, WO #1 (the dog handler) and WO #3, convened at the fence south of the Kenilworth Access at about 11:45 p.m. They trekked southward up the hill towards the Escarpment Rail Trail, then west and east on the trail before doubling-back to their start location. Shortly thereafter, upon pursuing a path southwest up the hill, the dog located the Complainant. His left foot stuck on the top of another fence, the Complainant was hanging upside-down on the other side of the fence as the officers approached.

The officers directed the Complainant to remain in place, but he kicked his feet and was able to free himself, falling to the ground. Thereafter, he crawled a short distance into the bush before he came to rest in a prone position.

SO #2, having climbed over the fence, was the first officer to physically engage the Complainant. He was joined quickly by WO #3 and SO #1. With SO #2 and WO #3 on either side of him, and SO #1 by his feet, the officers were able to restrain the Complainant and secure him in handcuffs in fairly short order.

Following his arrest, the Complainant was escorted by officers towards the Escarpment Rail Trail and then east along the trail until the Kenilworth Stairs, which they climbed down to get to Kimberly Drive. Paramedics at that location transported the Complainant to hospital, where he was diagnosed with a fractured right ankle.

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,

The Complainant was diagnosed with a serious injury following his arrest by HPS officers on September 19, 2021. SO #1 and SO #2 were among the arresting officers and identified as subject officials for purposes of the ensuing SIU investigation. The investigation is now concluded. 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 had fled the scene of an accident and was subject to lawful arrest under section 320.16(1) of the Criminal Code.

The preponderance of the evidence indicates that the Complainant’s injury pre-existed his arrest by the police, and was caused by the motor vehicle accident in which he had been involved or his flight over steep, uneven, heavily treed terrain in the dark. For example, WO #5, upon seeing the Complainant crossing Kenilworth Access in front of his cruiser, radioed that he was limping.

Once confronted by the officers, the evidence indicates that they simply used their greater manpower to keep the Complainant pinned on the ground as they wrestled control of his arms to handcuff them behind his back - no strikes of any kind were delivered. This would appear to have been a reasonable level of force given indications that the Complainant continued to offer a degree of resistance to his arrest on the ground.

In the result, as there are no reasonable grounds to believe that the Complainant’s injury was associated with unlawful force on the part of the subject officials, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: January 17, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit