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 48-year-old man (the “Complainant”).

Notification of the SIU [1]

On August 26, 2023, at approximately 1:48 a.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant.

According to the HPS, on August 25, 2023, at approximately 10:15 p.m., the HPS received a call for service regarding a tent fire at Woodlands Park (501 Barton Street East, Hamilton). HPS officers arrived along with the fire department but found no tent on fire. While on scene, HPS officers saw a man [later known to be the Complainant] riding a motorcycle without a helmet and with what appeared to be a fake plate. They attempted to detain the Complainant for investigation and subsequently grounded him when he tried to leave. The Complainant’s right wrist appeared to have been injured and was ultimately determined to be fractured.

The Scene

The events in question transpired in Woodlands Park, behind the Hamilton Fire Service (HFS) station located at the northeast corner of Wentworth Street North and Barton Street East.

The terrain consisted of a grass and dirt pathway running from Wentworth Street to behind the HFS station. The park was occupied by a number of persons residing in tents.

SIU forensic investigators did not attend the scene as there was no evidentiary value for such.

Video/Audio/Photographic Evidence [2]

Computer-assisted Dispatch (CAD) Information

At 9:03 p.m., it was noted that the SO and the WO were dispatched to Woodlands Park regarding a tent fire. The SO and the WO could not locate a male in connection with the reported fire.

At 9:19 p.m., HFS requested to see the police officers at the park.

At 10:01 p.m., the officers asked the dispatcher if HFS still required them at the park. HFS had cleared from the scene but reported a motorcyclist speeding around the park.

At 10:04 p.m., HFS said they no longer heard the motorcycle, and the police were not required.

At 10:08 p.m., the dispatcher noted that the SO was “off with unplated bike in the park”. The dispatcher did some name queries.

At 10:12 p.m., three police officers were dispatched to the park.

At 10:14 p.m., two police officers arrived at the park. A warrant for the Complainant was confirmed.

At 10:37 p.m., the SO and the WO left the park with the Complainant in the custody of the SO.

The evidence collected by the SIU, including interviews with the Complainant and an officer who participated in his arrest, gives rise to the following scenario. 

In the evening of August 25, 2023, the SO and the WO were dispatched to Woodlands Park, at the northeast corner of Wentworth Street North and Barton Street East, following reports of a motorcyclist speeding in the park. The officers arrived on scene and spoke with firefighters from the fire station at the southwest corner of the park. They reported what they had heard and seen of the motorcyclist, and then identified the motorcycle as it returned to the park.

The Complainant was the motorcyclist identified by the firefighters. He was approached by the SO and the WO and told he was being investigated for the manner in which he was operating his motorcycle. The Complainant did not take kindly to being investigated. He told the officers he was not who they were looking for and then turned to walk away.

The SO and the WO took hold of the Complainant’s arms and tried to position them behind his back to be handcuffed. The Complainant struggled against their efforts and was taken down by the WO, all three of them falling to the ground in the process. Within moments, the Complainant’s arms were handcuffed behind the back.

The Complainant was transported to the station and then to hospital where he was diagnosed with a fractured right wrist.

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,

Section 320.13 (1) Criminal Code – Dangerous operation

The Complainant was seriously injured in the course of his detention by HPS officers on August 25, 2023. The SIU was notified of the incident and initiated an investigation naming one of the officers – the SO – 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.

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 the SO and the WO were within their rights in seeking to detain the Complainant for investigation. Given what they had been told of his behaviour on the motorcycle that evening, namely, riding it at speed on the park pathways and the surrounding roads, there were reasonable grounds to suspect that the Complainant was ‘driving dangerously’ contrary to section 320.13(1) of the Criminal Code: see R v Mann, [2004] 3 SCR 59. Beyond that, when the Complainant physically resisted the detention, the officers had cause to want to secure him in handcuffs so they could continue to pursue their investigation safely.

With respect to the force used by the officers in the course of their engagement with the Complainant, the evidence falls short of any reasonable suggestion it was excessive. When the Complainant turned to walk away and then struggled against the SO and the WO’s efforts to handcuff his arms, the officers were entitled to resort to a measure of force to enforce his detention. They initially wrestled with the Complainant on their feet and then took him to the ground to press their objective. This would appear a reasonable and measured escalation of force; once on the ground, the officers could expect to better manage any continuing resistance by the Complainant.

There is conflicting evidence regarding the nature and extent of the force used by the SO once the Complainant was on the ground. There is a version of events proffered in the evidence that the officer unnecessarily wrenched the Complainant’s right wrist to the point that it broke as she positioned it behind his back. The SO denies having twisted the Complainant’s right wrist. The WO, who was right there, did not notice anything untoward. Both officers suspect the Complainant’s wrist was fractured from the impact with the ground in the course of the takedown. On this record, I am unable to reasonably conclude that the rendition of events involving undue force by the officer is any closer to the truth than that proffered by the SO.

In the result, while I accept that the Complainant’s fracture was incurred in the altercation that marked his arrest, I am not reasonably satisfied that the injury was the result of any unlawful conduct on the part of the SO. As such, there is no basis for proceeding with criminal charges against the officer. The file is closed.


Date: December 22, 2023


Electronically approved by

Joseph Martino
Director
Special Investigations Unit