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 40-year-old man (the “Complainant”).

Notification of the SIU[1]

On August 21, 2024, at 7:54 a.m., the Hamilton Police Service (HPS) contacted the SIU with the following information.

On August 21, 2024, at 2:10 a.m., the Subject Official (SO) was driving a marked cruiser when he entered a parking lot at Bay Street and Bold Street to make notes in relation to a previous incident. When he felt resistance to the vehicle, the officer stopped, exited, and saw a man underneath the cruiser. He reversed and observed that the man was covered by a green sweater. The area was dark with no artificial lighting. The man, identified as the Complainant, was taken to Hamilton General Hospital (HGH) via Emergency Medical Services (EMS) at 2:24 a.m. He was admitted at 6:20 a.m. for a lacerated liver and stitches to his left eye.

The Team

Date and time team dispatched: 08/21/2024 at 8:56 a.m.

Date and time SIU arrived on scene: 08/21/2024 at 10:00 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Number of SIU Collision Reconstructionists assigned: 1

Affected Person (aka “Complainant”):

40-year-old male; interview declined

Witness Officials

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 September 11, 2024.

The Scene

The events in question transpired in the parking lot of Central Elementary School, located at the northeast corner of the intersection of Bold Street and Bay Street South, Hamilton.

Scene Diagram

Physical Evidence

The parking lot was accessible via a driveway on the east side of Bay Street South. It was surrounded by fencing with no overhead lighting, making the area poorly illuminated at night.

At the scene, a 2021 Ford Explorer SUV, a black-and-white marked cruiser, was present. It was oriented in a southerly direction on the parking lot.

Two distinct trails of green fabric transfer were visible. The first trail originated at the southern end and ran along the left side of the SUV, continuing to a bloodstain. The second trail began under the SUV and ran parallel to the first, ending at a second bloodstain. Further south from the fabric trails, a collection of cut-off clothing items was discovered, including a dark green hooded sweatshirt.

Figure 1- Marked HPS vehicle, drag marks identified bycones

Expert Evidence

SIU - Technical Collision Report – Summary

On August 21, at 2:08 a.m., the SO travelled westbound on Bold Street and turned right onto northbound Bay Street South. He drove about 40 metres to the entrance driveway of Central Elementary School’s parking lot. According to the in-car camera (ICC), this distance was covered in about seven seconds, indicating an average speed of approximately 20 km/h on Bay Street South.

The SO then turned into an empty school parking lot and proceeded diagonally southeast across it, heading towards where the Complainant was lying on the ground. After travelling 18 metres, the left corner of the cruiser’s front bumper struck the Complainant. The ICC analysis determined that this distance was covered in approximately seven seconds, indicating an average speed of about 9 km/h in the parking lot before the collision.

Following the impact, the Complainant was pushed along the ground. For approximately two metres, sand and light debris were cleared from the pavement, while a trail of clothing fibres extended for a total of five metres. The SO braked and stopped the cruiser after this distance. The time from the initial collision to the point where the cruiser came to a stop was about four seconds, indicating an average speed of 6 to 9 km/h during this interval.

Technical collision investigation and reconstruction evidence indicated that the SO had been driving at low speeds throughout the ten minutes leading up to the collision and that the incident itself occurred at very low speed.

Video/Audio/Photographic Evidence[2]

HPS Radio Communications

On August 21, 2024, at 2:11:09 a.m., the SO provided an incorrect address to the police dispatcher but later corrected it. He reported that everything was in order.

At 2:11:20 a.m., the SO reported that a pedestrian had been struck by a vehicle. Eight seconds later, he requested that paramedics respond to an empty lot near Bold Street and Bay Street. WO #1 radioed his intent to assist.

At 2:13:10 a.m., the police dispatcher requested an update on the condition of the pedestrian [the Complainant]. WO #1 reported that the Complainant had a head injury and minor injuries to his legs, and was awake, breathing and alert.

At 2:16:56 a.m., WO #1 informed the dispatcher that EMS had arrived on

scene and confirmed the pedestrian’s identity as the Complainant.

By 2:24:34 a.m., WO #1 reported that the Complainant had been transported to HGH by EMS.

ICC Footage - HPS Vehicle

On August 21, 2024, at 2:08:33 a.m., footage from the SO’s cruiser began.

At 2:08:46 a.m., the cruiser made a right turn into a parking lot, now identified as the Central Elementary School parking lot. The area was dark, illuminated only by streetlights on the exterior of the parking lot. A single bulb on the side of the school added minimal visibility.

At 2:08:49 a.m., the cruiser continued turning right and, at 2:08:51 a.m., its headlights illuminated a dark object, later confirmed to be the Complainant. The object quickly disappeared under the hood of the cruiser.

At 2:08:53 a.m., the cruiser raised slightly and, by 2:08:55 a.m., came to a stop.

At 2:09:05 a.m., the SO entered the left camera frame and approached the driver’s side of the hood, looking under the cruiser.

At 2:09:13 a.m., WO #1 entered the left camera frame as well. The SO stepped out of the camera frame, and WO #1 began shining his flashlight towards the ground.

At 2:09:22 a.m., the cruiser slowly reversed and, at 2:09:23 a.m., WO #1

reached down towards the Complainant. Due to the angle of the camera, the Complainant was not visible at this moment.

At 2:09:33 a.m., the emergency lights on the cruiser activated.

At 2:09:41 a.m., the SO reappeared in the left camera frame, and both the SO and WO #1 stood over the Complainant.

At 2:10:11 a.m., WO #1 reached down towards the Complainant while the SO put on gloves. The officers stood over the Complainant for a moment before walking away from him.

At 2:10:49 a.m., WO #1 bent down holding something, later identified as gauze, while reaching for the Complainant.

At 2:11:27 a.m., WO #1 and the SO paced around the Complainant, and the top of the Complainant’s head was visible in front of the hood of the cruiser. The Complainant removed two shirts.

At 2:11:48 a.m., the SO exited the left camera frame.

At 2:11:57 a.m., a fully marked HPS cruiser with activated emergency lights [driven by WO #3] entered the left camera frame. The cruiser circled and stopped to the right of the SO’s cruiser, after which the SO re-entered the left camera frame.

At 2:12:22 a.m., WO #3 joined the SO and WO #1 at the hood of the SO’s vehicle, while the Complainant continued to rock back and forth and move on the ground.

At 2:14:56 a.m., the SO crouched beside the Complainant and placed something on his forehead.

At 2:17:59 a.m., EMS entered the left camera frame and began tending to the Complainant.

At 2:18:07 a.m., WO #2 entered the left camera frame.

At 2:18:46 a.m., the paramedics assisted the Complainant, who was shirtless, to his feet.

By 2:19:03 a.m., the Complainant was assisted onto the stretcher.

At 2:20:45 a.m., the paramedics wheeled the Complainant out of the left camera frame on the stretcher.

Materials Obtained from Police Service

The SIU obtained following records on September 3, 2024.

• ICC footage;
• Global Positioning System data;
• Communications recordings;
• Motor Vehicle Collision Report;
• Supplementary Occurrence Reports;
• Computer-aided Dispatch Report; and
• Notes – WO #2, WO #3 and WO #1.

The evidence collected by the SIU, including an interview with the SO and video footage that captured the incident in part, gives rise to the following scenario.

In the early morning of August 21, 2024, the SO, having concluded a service call in the area, made his way to the parking lot of a school located at the northeast corner of Bold Street and Bay Street South, Hamilton. Travelling in a cruiser behind the SO was WO #1, also involved in the call. The two planned to park in the lot to update their notes.

The SO led the way into the parking lot, entering from the access off of Bay Street South. He had travelled a short distance in a southerly direction when he sensed an obstruction under his cruiser. Bringing his vehicle to a stop, the SO exited to find a male – the Complainant – under the front carriage of the cruiser.

WO #1 came to a stop behind the SO and exited to join his colleague. He stood by the front of the SO’s cruiser and watched as he re-entered his vehicle and reversed, freeing the Complainant.

The Complainant had sustained cuts on the left forehead and near the left eye, and road rash. He was transported to hospital and reportedly diagnosed with a lacerated liver.

Section 320.13, Criminal Code – Dangerous Operation Causing Bodily Harm

320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

On August 21, 2024, the HPS notified the SIU that a male – the Complainant – taken to hospital after being struck by a police cruiser had been diagnosed with a serious injury. The SIU initiated an investigation naming the driver of the cruiser – 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 injuries.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, the offence is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which the SO operated his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to his collision with the Complainant. In my view, there was not.

The SO approached the parking lot at modest speeds, and had travelled no more than about 20 metres at minimal speed before he ran over the Complainant. The scene was dark with very little artificial lighting in the area and it would have been difficult to see the Complainant, who was lying on the ground at the time. It might have been that the Complainant was briefly visible in the cruiser’s headlights as the officer approached his location, and that the SO had an opportunity to avoid the collision. Even if that was the case, however, the officer’s want of care was characteristic of a momentary lapse of attention. On this record, I am unable to reasonably conclude that the manner in which the SO operated his cruiser transgressed the limits of care prescribed by the criminal law.

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

Date: December 19, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit