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 injuries of a 37-year-old man (the “Complainant”).

Notification of the SIU[1]

On May 16, 2024, at 6:47 p.m., the Hamilton Police Service (HPS) contacted the SIU with the following information.

On May 16, 2024, at 10:40 a.m., two plainclothes officers in an unmarked police vehicle observed a Hyundai Tucson travelling at a high rate of speed eastbound on Barton Street, Hamilton. The Hyundai continued southbound onto Chestnut Avenue, eastbound through an alleyway, and then northbound on Kinrade Avenue. The vehicle entered a parking lot at the John Howard Society located at 654 Barton Street East, at which point the plainclothes officers approached it. It was driven by the Complainant, and the passenger seat was occupied by a woman. At 10:51 a.m., the plainclothes officers identified themselves and removed the Complainant from the vehicle to arrest him for impaired operation. As the officers placed handcuffs on the Complainant’s right wrist, he became combative, and a struggle ensued. The police officers delivered several strikes to the Complainant, which caused him to fall backwards onto a nearby vehicle. Once handcuffed, the Complainant complained of pain in his ribs. HPS officers transported him to the Hamilton General Hospital (HGH). At 5:29 p.m., the Complainant was diagnosed with a fractured orbital bone, fractured ribs, and a stable fracture in his back.

The Team

Date and time team dispatched: 2024/05/17 at 8:35 a.m.

Date and time SIU arrived on scene: 2024/05/17 at 12:39 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on May 17, 2024.

Civilian Witnesses (CW)

CW #1 Interviewed

CW #2 Interviewed

The civilian witnesses were interviewed between May 17 and 27, 2024.

Subject Officials (SO)

SO #1 Interviewed; notes received and reviewed

SO #2 Interviewed; notes received and reviewed

SO #3 Interviewed; notes received and reviewed

The subject officials were interviewed on June 7, 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

The witness officials were interviewed on June 3, 2024.

The Scene

The events in question transpired on and around the parking lot located at 81 Kinrade Avenue, Hamilton.

Forensic Evidence

On May 30, 2024, a request was made to the Forensic Data Recovery Unit at the Ministry of Finance to enhance the quality of video footage, however, it was not a candidate for enhancement.

Video/Audio/Photographic Evidence[2]

Video Footage – John Howard Society – 654 Barton Street East

At two minutes and 11 seconds into the footage, an unidentified woman exited the passenger side of a vehicle [Hyundai Tucson operated by the Complainant] in the corner of the parking lot.

At two minutes and 47 seconds, a man [the Complainant] exited the driver’s seat of the Hyundai Tucson. Two men [SO #1 and SO #2] in plainclothes approached the Complainant. SO #2 stood on the Complainant’s right side and SO #1 stood on the Complainant’s left side.

At three minutes and two seconds, SO #1 and SO #2 placed the Complainant up against an adjacent vehicle [Vehicle #1]. SO #1’s body obscured the camera view of the Complainant and SO #2.

At three minutes and 14 seconds, the Complainant twisted his body. The Complainant and the police officers slammed back and forth between Vehicle #1 and the Hyundai Tucson. The unidentified woman ran across and out of the parking lot. SO #1 and SO #2 struggled to control the Complainant.

At three minutes and 34 seconds, the Complainant and the police officers went to the ground and the struggle continued. SO #2 knelt over the Complainant. SO #1 was not visible. The Complainant rose to a seated position.

At four minutes and five seconds, a woman and a man walked over towards where the arrest was occurring. They disappeared from view behind a building.

At four minutes and 37 seconds, SO #2 knelt on the Complainant. The Complainant appeared to resist less as the police officers gained increased control of him. The unidentified woman entered the passenger side of the Hyundai Tucson and exited approximately 20 seconds later.

At five minutes and 25 seconds, the Complainant appeared to lift himself off the ground and kick his feet.

At five minutes and 29 seconds, the unidentified woman returned inside the passenger side of the Hyundai Tucson and then left again. She appeared to remove items from the vehicle.

At seven minutes and 14 seconds, a marked police vehicle [SO #3] entered the parking lot with emergency lights activated. SO #3 stopped his vehicle, which obscured the camera view of the struggle on the ground. He exited his vehicle immediately and assisted SO #1 and SO #2.

At seven minutes and 32 seconds, a second marked police vehicle [WO #2] arrived with emergency lights activated.

At seven minutes and 51 seconds, the HPS officers stood up.

At eight minutes and 13 seconds, WO #1 and WO #3 arrived.

At nine minutes and 19 seconds, WO #1 and SO #3 lifted the Complainant to his feet. He was placed into the back of SO #3’s police vehicle, which was obscured from camera view.

HPS Radio Communications

On May 16, 2024, at 10:51 a.m.,[3] a police officer [SO #1] broadcast a radio transmission for assistance. He advised there was a man [the Complainant] on the ground, whom he was attempting to handcuff. The officer provided his location.

At 11:00 a.m., an ambulance was requested.

HPS Scene and Injury Photographs

The photographs depicted some minor dents in the passenger door of Vehicle #1. They also showed the area of the parking lot where the struggle occurred and the location of the John Howard Society video camera relative to the location of the struggle.

SO #2 had abrasions to his left wrist and arm. His shirt was torn over his chest. SO #1 had abrasions to both knees. He also had a laceration to his right hand. SO #3 had a laceration to his right hand.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the HPS between May 17, 2024, and July 16, 2024:

• General Occurrence Report;
• CAD Report;
• Arrest Report;
• In-car camera videos;
• Communications recordings;
• Policy - Use of Force;
• Policy - ICC;
• Video footage – 654 Barton Street East;
• Notes – WO #1;
• Notes – WO #2;
• Notes – WO #3;
• Notes – SO #2;
• Notes – SO #1;
• Notes – SO #3;
• Scene and injury photographs; and
• Training records – SO #1, SO #2 and SO #3.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on May 31, 2024:

• The Complainant’s medical records from HGH.

The evidence collected by the SIU, including interviews with the Complainant, the three subject officials and an independent civilian eyewitness, and video footage that captured the incident in parts, gives rise to the following scenario.

In the morning of May 16, 2024, SO #1 was in plainclothes operating an unmarked cruiser when his attention was drawn to a Hyundai Tucson. It was northbound on Sanford Avenue travelling in excess of the speed limit. The officer ascertained the vehicle’s licence plate marker and learned that the Complainant had stolen it in the past and that the Complainant’s description matched the driver he had observed. The Complainant was a prohibited driver and SO #1 decided to stop the vehicle.

SO #1 followed the Tucson as it made its way to a parking lot at 81 Kinrade Avenue. He was joined by another officer at the lot – SO #2. The Complainant had parked the Tucson in the southwest corner of the parking lot and exited. A female passenger also exited the vehicle. The officers approached the Complainant, told him he was under arrest, and took hold of him. There ensued a struggle which eventually saw all three parties go the ground. A third police officer – SO #3 – arrived on scene and joined in the arrest. The three officers were, in time, able to control and handcuff the Complainant behind the back.

The Complainant was taken to hospital after his arrest and diagnosed with four right-sided rib fractures, a right maxillary sinus fracture, and fractures of three lumbar vertebrae.

The Complainant was seriously injured in the course of his arrest by HPS officers on May 16, 2024. The SIU initiated an investigation naming three subject officials – SO #1, SO #2 and SO #3. The SIU investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials committed a criminal offence in connection with the Complainant’s arrest and injuries.

The Complainant was operating a motor vehicle while under suspension. In the circumstances, he was subject to arrest as a prohibited driver and for non-compliance with the terms of a probation order.

There is no doubt that the Complainant was subject to significant physical force during his arrest, but the totality of the evidence falls short of reasonably establishing it was unlawful. There is an account proffered in the evidence in which the Complainant reportedly pulled his right hand away from the officer who initially grabbed and broke one of his fingers. The same account suggests the Complainant did not resist arrest as three officers subjected him to multiple knee strikes, punches, and kicks.

This narrative, however, is undermined by an opposing civilian witness account that the Complainant aggressively resisted arrest over a protracted period, and was not subdued and handcuffed until the arrival of SO #3. It is also contradicted in part by video footage, which appears to capture the Complainant lifting his body as the officers are attempting to control him on the ground. Lastly, it is in conflict with the accounts proffered by the subject officials. SO #1 says he punched the Complainant two to three times to the head and once to the left ribs when the Complainant began to physically jostle with the officers on his feet. The Complainant was then forced to the ground where he continued to resist arrest. SO #1 tripped in the takedown and inadvertently landed on the Complainant’s right side. SO #2 says he punched the Complainant in the ribs several times after he started to resist on his feet and then wrestled with him on the ground in an effort to secure his arms. According to SO #3, he arrived at the scene of the altercation to find the Complainant on the ground on his stomach, and SO #1 and SO #2 struggling to control his arms. The officer observed the Complainant kicking backwards at the officers and attempting to stand, and reacted by kneeing the Complainant to the left side of the torso. When the Complainant continued to refuse to release his arms, SO #3 delivered two more knee strikes, this time to the right side of the torso, before the officers managed to apply the handcuffs. On the officers’ rendition of events, the strikes were at all times a measured response to the Complainant’s fight, and they came to a stop as soon as the Complainant had been subdued.

On the aforementioned-record, as there is no reason to believe that the account of undue force against the Complainant is any likelier to be closer to the truth than the countervailing evidence, and some reason to doubt it, I am unable to reasonably conclude that the incriminating evidence is sufficiently cogent to warrant being put to the test by a court. As such, while I accept that the Complainant’s injuries were incurred in the physical altercation that marked his arrest, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: September 13, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit