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 of a 52-year-old man (the “Complainant”).

Notification of the SIU [1]

On January 9, 2023, at 10:00 p.m., the Hamilton Police Service (HPS) contacted the SIU with the following information.

On January 9, 2023, at approximately 12:30 p.m., the Subject Official (SO) and the Witness Official (WO) conducted a traffic stop in the downtown core of Hamilton after they had recognized a wanted individual in a vehicle they were following. When the vehicle pulled over and stopped, the lone passenger (the Complainant) exited and fled. The officers pursued him on foot. Eventually, the Complainant was grounded, and a struggle ensued when he refused to release his hands for handcuffing. The Complainant was overpowered, handcuffed, and taken to the HPS Central Station where he was lodged pending a bail hearing. At approximately 1:30 p.m., the Complainant complained of pain to his face and was taken by Emergency Medical Services (EMS) to the Hamilton General Hospital where he was diagnosed with a broken nose.

The Scene

The events in question transpired on a grassy area on the north side of Barton Street East, west of Robins Avenue.

Video/Audio/Photographic Evidence [2]

Radio Transmissions and Computer-assisted Dispatch (CAD) Report

On January 13, 2023, the SIU received a copy of the pertinent radio communications from the HPS. On January 20, 2023, the SIU received the relevant CAD report.

The location of the traffic stop was on Robins Avenue.

Starting at about 1:03:55 p.m., a dispatcher checked on the status of the police officers, and they reported they “were alright”.

Starting at about 1:14:23 p.m., the Complainant was in custody across from the Hamilton Tire and Auto [3] and behind the Rogers [4] store at the Centre Mall.

Between about 1:15:31 p.m. and 1:17:25 p.m., the WO or the SO reported [5] the Complainant, a wanted individual, was in handcuffs. The Complainant was heard screaming in the background.

Starting at about 1:25:57 p.m., EMS was requested for the Complainant.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the HPS between January 10 and 20, 2023:

• Communications recordings;
• Arrest Warrant – the Complainant;
• General Report;
• Policy - Arrest;
• Policy - Use of Force;
• Event Chronology;
• History of Police Contacts – the Complainant;
• Notes – the SO; and
• Notes – the WO.

Materials Obtained from Other Sources

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

• Ambulance Call Reports from the Hamilton Paramedic Services; and
• The Complainant’s medical records from Hamilton Health Sciences.

The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.

In the early afternoon of January 9, 2023, the vehicle in which the Complainant was a passenger was stopped by a HPS cruiser in the area of Robins and Campbell Avenues, Hamilton. Driving the cruiser was the WO. His passenger was the SO. The officers had followed the vehicle from a suspected drug house and decided to stop it because of front end damage.

As the officers dealt with the driver of the vehicle, CW #2, eventually issuing him a ticket, the Complainant exited the vehicle and began to walk north on Robins Avenue. A check of police records would soon confirm that the Complainant was wanted on an outstanding arrest warrant for a probation violation.

The WO and the SO travelled northwards in their cruiser and located the Complainant at the intersection of Robins Avenue and Barton Street East. He was making his way towards the northwest corner of the intersection, after which he turned to walk west on Barton Street East. The WO brought the cruiser to a stop in the westbound lanes of Barton Street East a distance behind the Complainant.

The SO exited the cruiser, caught up with the Complainant and told him he was under arrest. When the officer took hold of the Complainant, he turned away and fled westward along a grassy area beside the sidewalk. The SO caught up with the Complainant and tackled him to the ground. A struggle ensued in which the SO delivered several punches to the Complainant’s head. The Complainant was eventually handcuffed by the SO and the WO, and lifted to his feet.

The Complainant complained of pain to his face and was transported to hospital. He was diagnosed with fractures of the nose.

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 seriously injured in the course of his arrest by two HPS officers on January 9, 2023. One of the officers – the SO – was identified as the subject official in the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.

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.

There was a warrant out for the Complainant’s arrest, and the officers were within their rights in seeking to take him into custody.

With respect to the force that was used, I am unable to reasonably conclude that it was excessive. There is a version of events in the evidence in which the Complainant was punched two or three times to the head by the SO as soon as the officer confronted him, after which he turned and ran away a distance before tumbling to the ground. Thereafter, with the officers on his back, the Complainant was punched one or two more times to the face prior to being handcuffed. This rendition of events is at odds with that proffered by the SO and the WO, each of whom indicates that the Complainant fled from the SO before any punches were thrown. The Complainant was subsequently tackled to the ground where he refused to release his arms from under his torso to be handcuffed. It was during the officers’ struggle to overcome the Complainant’s resistance that the SO is said to have delivered two punches to the head of the Complainant. The punches were effective in subduing the Complainant, who was then handcuffed. As it seems as likely as not on the totality of the evidence that the officers’ story is closer to the truth of what happened, the evidence is insufficiently cogent to warrant criminal charges. Within the confines of that story, in my view, two punches delivered in quick succession fell within the range of what was reasonable at the time given that the Complainant had to that point successfully resisted the officers’ efforts to wrestle control of his arms.

In the result, while I accept that the Complainant’s nose was broken in the altercation that marked his arrest, whether the result of the takedown or the punches struck by the SO, there are no reasonable grounds to believe that the injury is attributable to unlawful conduct on the part of the subject official. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: May 5, 2023



Electronically approved by

Joseph Martino
Director
Special Investigations Unit