Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

• Confidential investigative techniques and procedures used by law enforcement agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• location information
• witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence and
• other identifiers which are likely to reveal personal information about individuals involved in the investigation

Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury suffered by a 35-year-old man on September 19, 2016 during a motorcycle collision involving a Hamilton Police Service (HPS) officer.

Notification of the SIU

On September 19, 2016, at 6:00 p.m., HPS notified the SIU of the injury to the man.

Reportedly, on Monday, September 19, 2016 at 2:25 p.m., the Subject Officer (SO), a motorcycle officer with HPS, was conducting traffic enforcement when his police motorcycle came in contact with the man’s motorcycle. The incident occurred on South Bend Road just off Upper James Street in Hamilton. Immediately after the collision the man fled the scene on foot. He was subsequently located by police and arrested at a residence on Upper James Street hiding under a deck. The man was taken from the scene by ambulance to the hospital where he was diagnosed with having a fractured left arm. He was at the hospital in police custody at the time of the notification.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 2

Number of SIU Collision Reconstructionists assigned: 1

SIU Forensic Investigators responded to the scene, and identified and preserved evidence. They documented the scene by way of notes, photography, sketches and measurements.

Complainant

35-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Not interviewed, but statement and notes received and reviewed

WO #5 Not interviewed, but statement and notes received and reviewed

WO #6 Not interviewed, but statement and notes received and reviewed

WO #7 Not interviewed, but statement and notes received and reviewed

Additionally, a prepared statement and the notes from one other non-designated officer were received and reviewed.

Subject Officer

SO Interviewed, and notes received and reviewed

The Scene

The scene was located on South Bend Road West, west of Upper James Street in Hamilton. South Bend Road West is an east-west residential road. It is a straight and level two lane paved asphalt road which permits one lane of eastbound and one lane of westbound traffic. The lanes are not delineated and the road is bounded by concrete sidewalks.

There were two vehicles involved in this incident: a HPS marked 2014 Harley Davidson, and a blue and white 2001 Suzuki. The Harley Davidson was lying on its right roll bars facing southwest on the north side of the westbound lane of South Bend Road West. The 2001 Suzuki was also lying on its right side facing west on the north side of the westbound lane of South Bend Road West and the north concrete sidewalk.

There was minimal damage to either motorcycle. There were some tire marks on the road and curb directly behind the Suzuki as well as some scrapes found on the road beneath both motorcycles.

Scene Diagram

Physical Evidence

The HPS Harley Davidson motorcycle was examined at the scene and after it was towed. A fresh gouge in the surface was evident on the outside right lower portion of the front fairing. Below it and to the right was a fleck of blue paint transfer similar in colour to the handlebar tips of the involved Suzuki motorcycle. Two scrapes on the inside right lower portion of the front fairing were similar in shape and separation as two scrapes on the knuckles of the left baby and wedding finger of the complainant’s motorcycle gloves. The right side mirror was bent and scraped on its face. The right side front and rear chrome roll bars were scraped on the outside edges and the windshield was essentially clean. Both tires were Dunlop in make and were inflated with apparent sufficient tread depth. The engine was off at the scene but when turned on at the tow yard it idled at 1400 rpm. The brakes and steering performed properly when tested. The headlight functioned when the motorcycle was started and the transmission lever was in second gear. The blue and red emergency lighting functioned properly for 360 degrees and the two sirens functioned properly when tested. All turn signals functioned properly. The police radio was in the “off” position.

The Suzuki motorcycle was examined at the scene and after it was towed. The blue tip of the left handlebar was detached from the handlebar and located on top of the left side of the front fairing. The outside of the left mirror was freshly scraped. Both tires were Michelin in make and were inflated with apparent sufficient tread depth. The sidewalls of the tires had recently been coated in a black detailing substance. Some scuffing was evident on the right side of the front tire. The engine was off at the scene. The tachometer idled evenly at 1, 000 RPM. The brakes and steering performed properly when tested. The headlight functioned when the motorcycle was started. All turn signals functioned properly except the right front signal. The transmission lever was in first gear.

Expert Evidence

Reconstructionist Report:

An assessment of the collision by the Reconstructionist yielded the following conclusions:

At about 2:25 p.m., September 19, 2016, the SO operated a HPS Harley Davidson motorcycle westbound in the westbound lane of South Bend Road West from Upper James Street in Hamilton. At a slow speed and in an effort to perform a traffic stop he drove to the left side of a Suzuki motorcycle [now determined to have been operated by the complainant] heading westbound on South Bend Road West near the right side north sidewalk.

South Bend Road West has no posted speed limit and it was presumed to be 50 km/h in a dense residential area.

Immediately west of Upper James Street and while leaning to the right, the outside right lower portion of the front fairing of the HPS Harley Davidson impacted the left handlebar of the Suzuki. The outside blue tip of the left handlebar of the Suzuki became detached and released the rusted watery contents of the interior of the handlebar. While still leaning to the right, the HPS Harley Davidson was slowed and then stopped or nearly stopped slightly ahead of and to the west of the Suzuki.

Possibly due to a released clutch, the Suzuki accelerated to the west so that the left glove of the complainant impacted the inside right lower portion of the front fairing of the HPS Harley Davidson. The left mirror and perhaps the complainant’s left arm impacted the right mirror of the HPS Harley Davidson. In a possible effort to keep the HPS Harley Davidson upright, the right footwear of the SO slid along the pavement for about 0.3 metres and the HPS Harley Davidson was dropped to the right, sliding at a speed of 6 km/h to 7 km/h. The HPS Harley Davidson came to rest facing southwest on the north side of the westbound lane of South Bend Road West. The right sidewall of the front tire of the Suzuki struck the south side of the north sidewalk and then the Suzuki fell to the right, coming to rest facing west on the north sidewalk and westbound lane of South Bend Road West, beside, but slightly ahead of, the HPS Harley Davidson.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications Recordings

The communications recordings obtained from HPS revealed the following:

• The SO informed the dispatcher he was on Upper James Street heading north toward Mohawk Road East following a man [now determined to be the complainant] with a motorcycle helmet
• The SO informed the dispatcher the complainant had fled on foot behind a residence on West 1^st Street and he was walking back to his motorcycle
• The SO provided a description of the complainant
• The SO advised the dispatcher he had left his motorcycle on South Bend Road
• The SO informed the dispatcher the complainant had hopped a fence at a residence on West 1^st Street and was running in an easterly direction, and
• A police officer on scene informed the dispatcher the complainant had been located at a residence on Upper James Street and an ambulance was requested

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HPS

• Communications recordings
• Event Chronology
• Motor Vehicle Collision Report
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, and WO #7
• Notes of a non-designated officer
• Property Report
• Supplementary Occurrence Report
• Prepared statements of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, and
• Prepared statement of a non-designated officer

The events in question are relatively clear on the evidence collected by the SIU, including statements from the subject officer and the complainant, and a forensic analysis of the scene and the involved motorcycles. In the afternoon of September 19, 2016, the complainant was involved in a motor vehicle collision on South Bend Road, just west of Upper James Street in Hamilton. He was operating a 2001 Suzuki motorcycle at the time when his vehicle made contact with the subject officer’s marked 2014 Harley Davidson, sending both motorcycles and their drivers to the ground. The complainant fled on foot from the scene of the collision but was located a short time later hiding in the backyard of a nearby residential property, whereupon he was arrested. He was taken from the scene to hospital and diagnosed with multiple fractures of his left forearm.

Moments before their collision, the subject officer was on duty performing traffic enforcement when he crossed paths with the complainant on his motorcycle. As they rode past each other, the subject officer became suspicious when his courtesy nod at the complainant went unacknowledged. The officer turned his motorcycle around and began to follow the complainant. In short order, the subject officer decided to stop the complainant when he observed the Suzuki drive east past the passenger side of another vehicle in the same lane and thereafter proceed through the intersection south onto Upper James Street without stopping for a stop sign. Now south on Upper James Street, the subject officer drove up alongside the complainant’s motorcycle and directed him to pull over. The complainant decelerated and made a right turn onto South Bend Road. The subject officer followed at slow speed and drove past the complainant’s motorcycle intending to position his vehicle ahead of the Suzuki to block its path. It is here that there is controversy in the evidence as to what happened next.

On the one hand, there is evidence to suggest that the officer’s motorcycle struck the left side of the complainant’s motorcycle as it drove past, causing the complainant to release the clutch as he was attempting to bring his vehicle to a stop. The result was a sudden lurch forward by the complainant’s motorcycle into the officer’s vehicle. On the other hand, there is evidence suggesting the subject officer’s motorcycle did not strike the complainant or his motorcycle as he drove alongside and then by him on South Bend Road. On this evidence, the subject officer had stopped his motorcycle some two feet in front of the complainant’s vehicle at a 45 degree angle with the north curb when the Suzuki accelerated suddenly from a stationary position into his motorcycle. The impact sent both vehicles and their occupants to the ground. Thereafter, the complainant attempted to right himself and his motorcycle in an effort to escape, but was forced to flee on foot after the officer pushed him and his motorcycle to the ground again.

Section 249(1)(a), Criminal Code – Dangerous operation of motor vehicles

249 (1) (a) Every one commits an offence who operates a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.

Section 221, Criminal Code – Causing bodily harm by criminal negligence

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Section 266, Criminal Code – Assault

266 Every one who commits an assault is guilty of

1. an indictable offence and liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction

Section 25(1), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. by virtue of his office

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

As far as the subject officer’s potential criminal liability is concerned, the circumstances surrounding these events give rise to two sets of legal considerations. The first relates to the collision or collisions between the motorcycles, in which it is fair to consider whether the officer’s conduct amounted to dangerous driving or criminal negligence causing bodily harm contrary to sections 249 and 221 of the Criminal Code, respectively. The second relates to the evidence indicating that the subject officer pushed the complainant and his motorcycle back to the ground following their initial tumble, and whether there are reasonable grounds to believe this conduct amounted to an assault pursuant to section 266 of the Criminal Code.

Dangerous driving and criminal negligence causing bodily harm are offences off penal negligence and are therefore predicated on conduct that constitutes a marked departure from the level of care that a reasonable person would have exercised in the circumstances. In my view, if any want of care is to be found in the subject officer’s conduct, it falls well short of the standard imposed by the criminal law. In arriving at this determination, I accept for purposes of these reasons the version of events indicating that the subject officer’s motorcycle was the first to strike the complainant’s vehicle as it passed the complainant on South Bend Road, setting in motion a series of events that resulted in a second collision. I do so for two reasons notwithstanding the controversy in the evidence. First, this account finds support in the physical evidence, which suggests there might well have been a collision between the right side of the officer’s motorcycle and the left side of the complainant’s vehicle as the subject officer maneuvered his bike ahead of the Suzuki. Second, it is useful to test the liability analysis against the most incriminating version of events. If it fails on this score, it necessarily fails on the less incriminating scenario that also arises on the evidence.

One begins by noting that the subject officer was clearly in the lawful execution of his duties when he decided to pull the complainant over for traffic infractions; he had just observed the complainant unlawfully overtake another vehicle and then fail to stop at a stop sign. In the brief period that followed before the complainant and the subject officer turned onto South Bend Road, both vehicles were being operated safely at moderate speeds. Visibility was good and the roads were dry. Nor is there any suggestion in the evidence of other traffic in the vicinity, whether pedestrians or vehicles, being impeded or imperiled by the officer’s conduct. While the subject officer certainly ought to have exercised greater care so as to avoid striking the complainant’s motorcycle as he drove past him, it is also apparent that any such impact occurred at slow speed, and was minor and inadvertent. Thereafter, the complainant must assume his share of the blame for the second and more significant collision culminating in both vehicles and their riders on the ground. The subject officer, having positioned his motorcycle ahead of the Suzuki to block its path, was entitled to expect that the complainant would bring his motorcycle to a safe stop. Instead, owing to the combined effect of a mechanical deficiency with the gearing system on his vehicle and a loss of control occasioned by the initial collision with the officer’s motorcycle, the complainant’s vehicle lurched forward into the police motorcycle. Given the motorcycle’s mechanical deficiency, and the fact that the complainant was an uninsured and unlicensed driver who was at the time subject to a driving suspension, he ought not have been operating the vehicle at the time in question. While these circumstances do not absolve the subject officer of exercising due care and control of his motorcycle, they are important contextual considerations to be weighed in the balance. On the totality of this record, I am satisfied that the overall care exercised by the subject officer fell within the limits prescribed by the criminal law.

Turning to the subject officer’s conduct once on the ground in using his hands to push the complainant and his motorcycle to the ground as he attempted to flee the scene, here too I am satisfied that the officer’s conduct does not give rise to criminal culpability. Pursuant to section 25(1) of the Criminal Code, police officers are entitled to use reasonably necessary force in the execution of their lawful duties. It is clear to me that the subject officer did no more than that. The complainant was certainly subject to lawful arrest on several different grounds, including his attempt to flee the scene of an accident contrary to section 252 of the Criminal Code, and the officer was well within his rights in attempting to prevent his flight for that purpose. The subject officer’s use of his hands to push the complainant onto the ground was a reasonable and measured attempt to do so, albeit unsuccessful.

There remains the issue around the mechanism of the complainant’s injuries. The evidence suggests that they occurred from the impact with the subject officer’s motorcycle after the complainant’s Suzuki lurched forward. However, particularly in light of the medical evidence, one cannot dismiss the complainant’s fall to the ground, either after the collision with the police motorcycle or the push from the officer, as causing or contributing to the fractures he suffered. In the final analysis, however, the uncertainty in this area of the evidence is of no consequence given my analysis of the officer’s conduct. That is, while I am satisfied that the complainant’s injuries resulted from his collision with the subject officer’s motorcycle or his fall from his motorcycle, or some combination of the two, there remains nothing in what the officer did or failed to do that would justify criminal proceedings against him. As such, this file is closed.

Date: October 3, 2017

Original signed by

Joseph Martino
Acting Director
Special Investigations Unit