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:

• The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
• Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
• Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
• Information that discloses investigative techniques or procedures.
• Information, the release of which is prohibited or restricted by law.
• Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.

Freedom of Information and Protection of Personal Privacy Act

Pursuant to section 14 (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 that 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 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

• The names of persons, including civilian witnesses, and subject and witness officials;
• 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

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

Other proceedings, processes, and investigations

Information may also have 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.

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 26-year-old man (the “Complainant”).

Notification of the SIU[1]

On February 8, 2024, at 9:00 a.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant.

According to the HPS, on February 7, 2024, at 1:00 p.m., plainclothes police officers, the Subject Official (SO) and Witness Official (WO) #1, assigned to the High Enforcement Action Team, arrested the Complainant for Controlled Drugs and Substances Act (CDSA) offences. The arrest occurred in the parking lot of the Philpott Church located at 84 York Boulevard, Hamilton. A struggle ensued and the Complainant was taken to the ground and handcuffed. The Complainant was transported to the HPS Central Station and lodged without issue, pending a bail hearing. At around 9:00 p.m., he complained of pain to his left hand and was taken to St. Joseph’s Healthcare (SJH). X-rays confirmed a fractured finger/knuckle on the left hand. His hand was placed in a cast, and he was discharged back into police custody.

The Team

Date and time team dispatched: 2024/02/08 at 9:17 a.m.

Date and time SIU arrived on scene: 2024/02/08 at 10:30 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on February 8, 2024.

Civilian Witness (CW)

CW Interviewed

The civilian witness was interviewed on February 13, 2024.

Subject Official

SO Interviewed; notes received and reviewed

The subject official was interviewed on February 27, 2024.

Witness Officials

WO #1 Interviewed; notes received and reviewed

WO #2 Not interviewed; notes reviewed and interview deemed unnecessary

The witness official was interviewed on February 21, 2024.

The Scene

The events in question transpired in and around the intersection of Park Street North and Vine Street, Hamilton.

Video/Audio/Photographic Evidence[2]

Police Radio Transmissions

The police radio broadcasts were not time-stamped. They began with WO #1 broadcasting that he and the SO were in a parking lot monitoring for CDSA offences.

WO #1’s next broadcast was a request for a uniformed officer to attend and transport an arrested person to the station. An officer - WO #2 - replied he would attend.

Police Telephone Communications

On February 7, 2024, at 8:33 p.m.,[3] the custody sergeant called a communications operator and asked that officers take the Complainant to the hospital for assessment. The custody sergeant said the Complainant had come in during the dayshift and the dayshift sergeant told the custody sergeant that the Complainant complained of an injury to his left hand and needed medical assessment from being tackled when he was arrested. He had scrapes on his hand. The communications operator told the custody sergeant that she would make those arrangements.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the HPS between February 8, 2024, and February 26, 2024:

• Notes – WO #2;
• Notes – WO #1;
• Notes – the SO;
• Communications recordings;
• CAD report;
• Crown Brief Synopsis;
• General Occurrence Report;
• Custody Report;
• Policy – Arrest;
• Policy – Use of Force;
• Policy – Prisoner Care and Control;
• List – Call-signs; and
• Surveillance photographs.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on February 12, 2024:

• The Complainant’s medical records from SJH.

In the early afternoon of February 7, 2024, the SO and his partner, WO #1, in plainclothes and occupying an unmarked police vehicle parked in a lot on the northeast side of York Boulevard and Park Street North, were monitoring the front area of the Philpott Church for drug activity. The officers observed a male – the Complainant – approach the area and engage in what they believed was a drug sale with another male. They decided they would arrest the Complainant for drug trafficking.

The Complainant was walking north on the west side of Park Street North and crossing Vine Street when he was confronted by the SO. The officers had travelled to the intersection ahead of the Complainant intending to intercept him in that location. The SO announced he was the ‘police’ and grabbed a hold of the Complainant. With the assistance of WO #1, the officers grounded the Complainant. There followed an altercation on the ground in which the SO kneed the Complainant’s left side and WO #1 punched him in the head and torso. The Complainant was eventually handcuffed and taken to the police station.

The Complainant complained of pain to his right hand at the station. He was transported to hospital and diagnosed with a fracture of the little finger.

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

(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,

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.

The Complainant was seriously injured in the course of his arrest by HPS officers on February 7, 2024. The SIU was notified of the incident and initiated an investigation naming 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 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.

The reasons articulated by the SO in support of his arrest decision were thin – including his knowledge of drug activity in the area, and the short interaction between the Complainant and the suspected drug purchaser – but not so thin that I am able to reasonably conclude with any confidence that the arrest was unlawful.

Similarly, with respect to the force brought to bear by the officers, I am unable to reasonably conclude that it was unjustified. There is evidence that the Complainant was very quickly grounded by the officers but that his initial reaction, namely, to back away, might have been interpreted as resistance to his arrest. The officers each say that the Complainant physically resisted the officers on his feet before he was taken to the ground. On this record, the takedown would appear to have been a legitimate tactic. Once on the ground, the officers could expect to better manage any continuing resistance on the part of the Complainant. The strikes delivered by the officers would also seem to constitute reasonable force. As the officers explained to the SIU, they were each of the impression that the Complainant was attempting to access a satchel he was wearing across his torso. Concerned about the presence of a possible weapon, according to the officers, they delivered blows to prevent that contingency from materializing. In the circumstances, I am satisfied the officers strikes were not indiscriminate in nature or number.

For the foregoing reasons, while I accept that the Complainant’s injury was incurred in his interaction with the police, likely, when he fell during the takedown, there is no basis for proceeding with criminal charges in this case.

Date: June 7, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit