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 58-year-old woman (the “Complainant”).

Notification of the SIU

On August 26, 2023, at 3:53 a.m. the Hamilton Police Service (HPS) contacted the SIU with the following information.
On August 25, 2023, at 11:48 p.m., the SO was driving in the vicinity of Birch Avenue and Burlington Street, Hamilton, when he observed a vehicle stop at an intersection on a red traffic signal. When the traffic signal turned green, the vehicle remained stationary. The SO activated his emergency lights and the vehicle drove off at speeds of 80 to 90 km/h. The vehicle turned right onto Barton Street East, and then made another quick right turn onto Fullerton Avenue. Once on Fullerton Avenue, the SO observed a woman fall down and he stopped to assist her. The woman identified herself as the Complainant. She told the SO she had been hit by the vehicle he was pursuing. Paramedic services were called to attend the scene. The Complainant was transported to the hospital and diagnosed with a fractured foot.

The Scene

The events in question transpired on a stretch of roadway beginning on Burlington Street East, east of Birch Avenue, travelling south on Birch Avenue, then west on Barton Street East, and north a short distance on Fullerton Avenue.

Video/Audio/Photographic Evidence [1]

Police Communications Recordings

The SO was recorded reporting a blue sedan vehicle that had not stopped for him. He provided his location as Barton Street East and Birch Avenue. The SO noted that the vehicle had struck someone [the Complainant], who had fallen backwards onto the road. The vehicle had turned onto Fullerton Avenue at a high rate of speed and continued after it struck the Complainant. The SO requested an ambulance.

The evidence collected by the SIU, including interviews with the Complainant and the SO, and video footage that captured the incident in parts, gives rise to the following scenario.

In the evening of August 25, 2023, the SO was operating a marked police cruiser travelling on Burlington Street East when his attention was drawn to a four-door sedan. The vehicle had travelled straight in a turn lane and the officer decided to stop it for a Highway Traffic Act infraction.

The SO followed the vehicle as it turned south onto Birch Avenue and noticed as it picked up speed south of Brant Street. The officer accelerated, caught up to the vehicle in the area of a railway overpass, and activated his emergency lights (not the siren). The sedan failed to stop for the cruiser and continued south for several hundred more metres before turning right on Barton Street East and then right on Fullerton Avenue. As the SO turned to follow the vehicle on Fullerton Avenue, he noticed a woman had fallen on the roadway. He stopped to render assistance as the sedan continued northwards and out of sight.

The woman was the Complainant. She had been crossing the street when the sedan ran over her right foot. The SO remained with the Complainant until paramedics arrived. She was transported to hospital and diagnosed with a fractured foot.

Section 320.13 (1) Criminal Code – Dangerous operation causing bodily harm

The Complainant was seriously injured when a vehicle ran over her right foot on August 25, 2023. As the vehicle was being pursued by a HPS officer at the time, the SIU was notified and initiated an investigation. The SO was identified as the subject official. 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 injury.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, the offence is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which the SO operated his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the injury. In my view, there was not.

I am satisfied that the SO was in the execution of his lawful duties when, having seen a vehicle being operated in apparent contravention of the Highway Traffic Act, he decided to stop it.

I am also satisfied that the SO comported himself with due care and regard for public safety throughout his brief engagement with the sedan – under a minute and about 500 metres in length. The officer did reach a top speed of about 100 km/h on Birch Avenue, but that speed was short-lived and does not appear to have resulted in third-party vehicles being directly placed in harm’s way. Beyond that, the evidence indicates that the SO had his emergency lights activated from an early point in the pursuit, alerting nearby traffic of his presence. Lastly, it is worth noting that the pursuit unfolded at slower speeds at its tail end. On this record, aside from perhaps being the impetus for the sedan’s flight, the evidence falls short of suggesting the SO transgressed the limits of care prescribed by the criminal law.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.



Date: December 21, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit