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

Notification of the SIU[1]

On March 8, 2024, at 8:47 p.m., the Hamilton Police Service (HPS) contacted the SIU with the following information.

On March 8, 2024, at around 4:55 p.m., five HPS plainclothes police officers with the High Enforcement Action Team (HEAT) were following two males on suspicion of drug offences in the area of Mary Street, Hamilton. The officers were in foot pursuit of the two suspects when one, Civilian Witness (CW) #1, collided with an uninvolved pedestrian. The pedestrian, later identified as the Complainant, was injured and taken to Juravinski Hospital (JH) where she was diagnosed with a fractured left wrist. At the time of notification, the Complainant was being discharged from JH, while CW #1 had been admitted to hospital for treatment of a fentanyl overdose.

The Team

Date and time team dispatched: 2024/03/08 at 9:02 p.m.

Date and time SIU arrived on scene: 2024/03/08 at 9:46 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

61-year-old female; interviewed; medical records obtained and reviewed

The Complainant was interviewed on March 11, 2024.

Civilian Witnesses (CW)

CW #1 Interviewed

CW #2 Interviewed

The civilian witnesses were interviewed on March 11, 2024.

Subject Official (SO)

SO Interviewed; notes received and reviewed

The subject official was interviewed on March 21, 2024.

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Interviewed; notes received and reviewed

WO #4 Interviewed; notes received and reviewed

The witness officials were interviewed on March 18, 2024.

The Scene

The events in question transpired outside a premises on Mary Street, Hamilton.

Video/Audio/Photographic Evidence[2]

911 Telephone Recordings

On March 8, 2024, CW #2 called 911 to request an ambulance to an address on Mary Street. She reported that a woman [the Complainant] was pushed down by someone at the front while waiting for a car. The Complainant had injured her wrist. Undercover police officers were there. A person was being arrested and the Complainant got pushed during the event.

Video Footage – Building #1 on Mary Street

The footage started at 3:50 p.m., March 8, 2024.

At 3:50 p.m., the Complainant was in front of the building. She was talking on her cellular telephone.

At 3:57 p.m., CW #1 and Witness #1 walked along Mary Street and onto the property of the building. They walked down the wheelchair ramp and into the front door, where they remained in the vestibule. A short time later, the Complainant walked up the wheelchair ramp and stopped at the top of the ramp. She took out her cellular telephone.

At 3:59 p.m., an unmarked HPS vehicle [occupied by WO #2 and WO #1] travelled into the parking lot and parked. Three people [CW #2, and an unidentified female and male] walked out the front door of the building towards a vehicle parked in the parking lot.

WO #2 exited the vehicle and WO #3 stood on the sidewalk near the corner of the building, with a cellular telephone to his ear. WO #4 drove on Mary Street and stopped at the curb next to the building. WO #3 walked from Mary Street to the top of the wheelchair ramp.

The Complainant moved from the sidewalk to the top of the wheelchair ramp. She leaned forward on the handrail with her forearms and looked at her cellular telephone. CW #1 and Witness #1 walked out of the vestibule, out the front door and through the alcove, after which they started to walk up the wheelchair ramp towards Mary Street. As Witness #1 walked up the wheelchair ramp, WO #3 put his coffee cup on the ground, stepped in front of Witness #1 and reached out towards him. Witness #1 turned and moved back towards the front door. WO #3 made contact with Witness #1, then brought him to the ground near the bottom of the wheelchair ramp, close to the front door of the building. WO #2 ran towards WO #3 and WO #1 exited the vehicle and ran towards WO #3. The Complainant turned her head and looked to her right at WO #3 and Witness #1.

At 4:00 p.m., WO #3, WO #2 and WO #1 were with Witness #1. CW #1 jumped over the metal railing and walked towards Mary Street. The Complainant stepped to her left, to the sidewalk at the top of the wheelchair ramp. She held the railing with her right hand and turned to look at WO #3, WO #2 and WO #1 dealing with Witness #1. CW #1 walked close to the Complainant. He paused, briefly.

The SO entered the camera’s view. He was running from the roadway to the concrete sidewalk with his arms out. He attempted to grab CW #1 with his right hand near the left side of CW #1’s head. The SO’s left hand appeared to attempt to grab CW #1’s right hand. The Complainant’s head was turned to the right towards WO #3, WO #2 and WO #1 while they were dealing with Witness #1. She held her cellular telephone in her left hand.

CW #1 turned to the south and moved a step backwards towards the Complainant. CW #1 and the SO separated. The Complainant held out her right hand. CW #1’s left shoulder seemed to make contact with the Complainant’s left shoulder after he turned. The Complainant moved backward and CW #1 moved northbound beside the Complainant. The Complainant fell backwards, out of camera view and her cellular telephone fell to the ground. The SO was in front of the Complainant. He turned to his left and ran northbound.

CW #1 ran northbound and the SO ran about two metres behind him. WO #4 got out of his vehicle and intercepted CW #1. The two officers and CW #1 fell to the grass. A man with a backpack and other people in the area ran to help the Complainant. WO #3 looked towards the Complainant.

The exact manner as to how the Complainant fell to the ground was not clear from the video. It was not conclusive if the Complainant was knocked to the ground by either CW #1 or the SO. It remained possible the Complainant may have lost her balance as she attempted to avoid the physical contact between CW #1 and the SO as the SO attempted to grab and take control of CW #1

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the HPS between March 8, 2024, and March 11, 2024:

• Arrest Report;
• Detention Log;
• General Occurrence Report;
• Supplementary Occurrence Report;
• Event Chronology;
• Notebook Entries – the SO, WO #3, WO #1 and WO #2, and WO #4;
• Will-say statements – WO #3, WO #1 and WO #2, and WO #4;
• Witness Statement – the Complainant;
• Scene photos;
• In-car camera footage;
• Polices: Prisoner Care and Control / Arrest Procedures and Compelling Appearance in Court; and
• Video footage from Building #2 on Mary Street.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between March 11, 2024, and March 13, 2024:

• The Complainant’s medical records from JH; and
• Video footage from Building #1 on Mary Street.

The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.

In the afternoon of March 8, 2024, the SO and his partner, WO #3, plainclothes officers with the HPS HEAT, took note of two males on Wilson Street holding a bag that they suspected contained an illicit substance. They tracked the males in their unmarked cruiser and watched as they seemingly engaged in drug transactions at the skate park at Wilson and Mary Streets. The officers advised other HEAT members of their observations and broadcast that the two were subject to arrest for drug trafficking. They continued to surveil the males and watched them enter a building on Mary Street. Other HEAT members travelled to the address. It was decided that the males would be arrested at that scene.

The males were CW #1 and Witness #1. At about 4:00 p.m., they exited the building and began to make their way up a ramp that led from the front door towards Mary Street. Witness #1, walking ahead of CW #1, was confronted by WO #3, who had taken up a position at the top of the ramp. With the help of two other HEAT members, WO #3 grounded Witness #1 and took him into custody.

Seeing his associate on the ground, CW #1 hopped over the ramp railing onto the parking lot beside the building and began to walk towards Mary Street. He had reached the end of the ramp and was just about at the roadway when he was approached by the SO. The officer took hold of a surprised CW #1, who pulled away backwards breaking free. As he did so, he bumped into a woman standing at the top of the ramp. The woman – the Complainant – was waiting for a ride. She fell backwards, used her left hand to break her fall, and broke her wrist in the process.

CW #1 fled northwards along the side of the building a short distance before he was tackled to the ground by WO #4 and taken into custody.

An ambulance was called to the scene for the Complainant.

Sections 219 and 221, Criminal Code - Criminal Negligence Causing Bodily Harm

219 (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

221 Every person who by criminal negligence causes bodily harm to another person is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or (b) an offence punishable on summary conviction.

The Complainant was seriously injured in and around the scene of an arrest by HPS officers on March 8, 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 injury.

As the officers did not apply any force to the Complainant, the only offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s injury. In my view, there was not.

The SO was lawfully placed and in the execution of his duties throughout the series of events culminating in the Complainant’s injury. He had observed what he believed were drug transactions involving CW #1 and Witness #1, and was within his rights in attempting to arrest CW #1 on that basis.

I am also satisfied that the SO comported himself with due care and regard for public safety, including the Complainant’s safety, as he moved to take CW #1 into custody. There appears to have been a collective meeting of the minds among the HEAT members that the exterior space beside the building on Mary Street was a safe place to arrest CW #1 and Witness #1. The parking lot was out of the way of the main throughfares in the area and was not much trafficked at the time. Of course, it was not entirely free of traffic – the Complainant was present as were one or two other pedestrians – but no place is ever perfect. In the circumstances of this case, I am unable to reasonably conclude that the SO and the other officers were derelict in acting to effect the arrests where they did. Simply put, it was not reasonably foreseeable that CW #1 and the SO would converge just where the Complainant was located and that CW #1’s act of resistance would result in the Complainant’s tumble to the ground.

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

Date: July 5, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit