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 26-year-old man (the “Complainant”).

Notification of the SIU

On December 28, 2021, at 1:03 p.m., the Hamilton Police Service (HPS) contacted the SIU to report that on December 28, 2021, at 8:27 a.m., HPS officers had responded to a break and enter in progress at an address on Sherman Avenue South, Hamilton. On arrival, HPS officers located the Complainant as he attempted to flee the home using the homeowner’s vehicle. The vehicle was blocked-in by a HPS cruiser and the Complainant attempted to flee on foot; however, he was arrested a short distance away. During the arrest, the Complainant was grounded and received an injury to his right shoulder. The Complainant was later taken to the Hamilton Health Sciences (HHS) General Hospital, where he was diagnosed with a fractured right clavicle.

The Team

Date and time team dispatched: 12/28/2021 at 2:00 p.m.

Date and time SIU arrived on scene: 12/28/2021 at 5:46 p.m.

Number of SIU Investigators assigned: 5

Affected Person (aka “Complainant”):

26-year-old male interviewed; medical records obtained and reviewed

The Complainant was interviewed on January 5, 2022.

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

The civilian witnesses were interviewed on December 29, 2021, and December 31, 2021.

Subject Officials

SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right.
SO #2 Declined interview and to provide notes, as is the subject official’s legal right

SO #1 was interviewed on January 27, 2022.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed

The witness officials were interviewed between December 31, 2021, and January 7, 2022.

The Scene

The scene was the front lawn of a home on Cumberland Avenue, Hamilton. The home was on the corner of Sherman Avenue South and Cumberland Avenue, Hamilton.

Video/Audio/Photographic Evidence [1]

911 Call, Computer-aided Dispatch (CAD) Report, and Communications Recordings

The HPS provided the SIU with the communications recordings on December 30, 2021

On December 28, 2021, at 8:22 a.m., CW #1 called 911 to report a man (later identified as the Complainant) as he had broken into the home at an address on Sherman Avenue South. CW #1 told the 911 call-taker that the Complainant had stolen various items from the house, and he was attempting to steal the homeowner’s vehicle, which was parked in the driveway.

CW #1 further reported that the Complainant could not start or back the vehicle out of the driveway. When the Complainant did manage to start the vehicle’s engine, he reversed out of the driveway and into the side of a vehicle parked on the opposite side of the street. When a HPS cruiser arrived, it blocked the vehicle’s exit, but the Complainant got out and ran away, leaving the vehicle to travel into the side of the HPS cruiser.

In the background, a man’s voice was heard yelling, “Put your hands behind your back. Put your hands behind your back!” CW #1 said the HPS officers were wrestling with the Complainant as he struggled; however, he was eventually handcuffed and taken into custody.

Materials Obtained from Police Service

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

• 911 / Communications Recordings;
• CAD Report;
• Motor Vehicle Collision Report;
• Arrest Report;
• Case File Synopsis;
• General Occurrence Report;
• Forensic Identification Services Report;
• SOCO (Scenes of Crime Officer) Photographs;
• Civilian Witness list; and
• Notes of the witness officials.

Materials Obtained from Other Sources

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

• Medical Records from the HHS – General Hospital.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, one of the officers who participated in his arrest – SO #1, and a police and civilian eyewitness. As was his legal right, the other subject official – SO #2 – chose not to interview with the SIU or authorize the release of his notes.

In the morning of the day in question, HPS officers were dispatched to an address on Sherman Avenue South. A neighbour had called to report a break and enter in progress at the address.

SO #1 was the first officer on scene in a marked police SUV. As he neared the property, the officer observed a vehicle reversing out of the driveway and striking a vehicle parked curbside on the opposite side of the street. Aware that the 911 caller had reported the culprit attempting to leave the premises in this vehicle, SO #1 pulled alongside the front of it to block its path. From inside his cruiser, the officer ordered the driver to show his hands. The driver refused to do so. Instead, he exited the vehicle and fled on foot southbound on Sherman Avenue South. The driver was the Complainant.

SO #2 was also on scene by this time. He gave chase on foot and caught up to the Complainant on the front lawn of a property on Cumberland Avenue – a house south of the residence on Sherman Avenue South – tackling him to the ground.

SO #1 joined SO #2 on the lawn and attempted to wrestle control of the Complainant’s arms. The Complainant, in a prone position, struggled against the officers’ efforts and refused to release his arms to be handcuffed, keeping them tucked under his chest. SO #2 delivered four punches to the Complainant’s upper back, after which the Complainant’s arms were brought under control and secured in handcuffs.

Following his arrest, the Complainant complained of pain to his shoulder at the station and was transported to hospital for examination. He was diagnosed with a fractured right clavicle.

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 sustained a serious injury in the course of his arrest in Hamilton on December 28, 2021. The arresting officers – SO #1 and SO #2 – were identified as subject officials in the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either officer 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 required or authorized to do by law.

I am satisfied that SO #1 and SO #2 were within their rights in seeking to arrest the Complainant based on the call to 911 describing a break and enter and theft of a vehicle from an address on Sherman Avenue in real time, and the officers’ own observations of the Complainant’s behaviour at the scene.

I also accept that the officers used legally justified force in taking the Complainant into custody. The tackle to the ground by SO #2 would appear to have been a reasonable tactic in light of the Complainant’s flight from police at the time. As was the series of punches struck by the officer to the Complainant’s backside. These, I am satisfied, were designed and delivered to quell the Complainant’s resistance, and would not appear to have been disproportionate to the task at hand. In arriving at this conclusion, I am mindful of the fact that the officers had reason to believe that the Complainant had just taken flight from a break and enter and theft, and therefore had cause to want to arrest the Complainant as quickly as possible. There were no further strikes of any kind after the Complainant was handcuffed.

It should be noted that an account of what happened, in which it is claimed that the Complainant did not struggle against the officers on the ground, is insufficiently reliable to warrant being put to the test by a trier-of-fact. Not only is the Complainant’s reported passivity belied by his flight from police, it is also at odds with the eyewitness evidence of a third-party civilian witness and a police eyewitness.

In the result, there are no reasonable grounds to believe that either of SO #1 and SO #2 conducted themselves unlawfully in their engagement with the Complainant notwithstanding the injury he suffered in the process. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: April 26, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit