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 31-year-old man (the “Complainant”).

Notification of the SIU[1]

On September 29, 2024, at 12:20 a.m., the Hamilton Police Service (HPS) notified the SIU of an injury to the Complainant.

According to the HPS, on September 28, 2024, HPS officers were following a Mazda 3 automobile that had been reported stolen when they lost sight of it. At 10:12 p.m., the Subject Official (SO) came across a Nissan Altima, which he believed to be the stolen vehicle, and pinned it in. The driver, the Complainant, was inside. The SO smashed the window. The Complainant attempted to run but was tackled by the SO. The Nissan was also found to be stolen. It had a false licence plate attached. The Complainant complained of injury and was taken to St. Joseph’s Hospital (SJH). At 10:54 p.m., the Complainant was diagnosed with a fractured left arm and put in a temporary cast.

The Team

Date and time team dispatched: 2024/09/29 at 6:28 a.m.

Date and time SIU arrived on scene: 2024/09/29 at 6:40 a.m.

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on September 29, 2024.

Civilian Witnesses (CW)

CW #1 Interviewed

CW #2 Interviewed

The civilian witnesses were interviewed on September 29, 2024.

Subject Official

SO Interviewed, but declined to submit notes, as is the subject official’s legal right

The subject official was interviewed on December 18, 2024.

The Scene

The events in question transpired in and around a vehicle parked on West Avenue North, Hamilton.

Video/Audio/Photographic Evidence[2]

Video Footage from a Residence

On September 28, 2024, starting at about 8:09:43 p.m., the front of a sedan [Nissan Altima] was captured travelling north and parking on the west side of West Avenue North. It subsequently reversed out of view, but its headlights were still visible.

At 8:10:20 p.m., the headlights were turned off.

Starting at about 8:10:27 p.m., a marked HPS cruiser [driven by the SO] slowly approached southbound. It angled towards the area of the Altima.

At 8:10:44 p.m., the SO activated his emergency lights.

Starting at about 8:10:52 p.m., the SO exited his cruiser and walked south out of view.

Starting at about 8:11:29 p.m., a person ran north on the east side of the street.

At 8:11:39 p.m., the video concluded.

Police Communications Recordings

On September 28, 2024, at 8:24:30 p.m., a Mazda 3 sedan was reportedly being sought by HPS officers after it had failed to stop for officers. It was last seen near Emerald Street.

At 8:41:46 p.m., the SO was said to be travelling on West Avenue North. He had located a vehicle he believed was the Mazda on West Avenue North. The SO subsequently reported he had a male [the Complainant] in custody and a female had run north on West Avenue North.

A HPS officer requested EMS for a bleeding hand injury, that later was later confirmed to be an injury the SO had sustained. A Nissan was said to have been reported stolen. It was identified as a separate vehicle from the Mazda 3 that had originally failed to stop.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the HPS between October 1, 2024, and October 11, 2024:

• HPS Occurrence / Arrest / Supplementary Reports;
• Computer-aided Dispatch Report;
• Communications recordings; and
• List of previous interactions involving the Complainant.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between September 29, 2024, and October 2, 2024:

• The Complainant’s medical records from SJH; and
• Video footage from a residence.

The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.

In the evening of September 28, 2024, the SO was on patrol operating a marked cruiser when he observed a stopped vehicle that he believed had recently fled from police. About ten minutes earlier, another HPS officer reported that a Mazda 3 had failed to stop for him. The Mazda had a male driver and female front passenger, and was missing a front licence plate. The vehicle the SO had come across was also missing the front licence plate. It too had a male in the driver’s seat and a female in the front passenger seat.

The SO brought his cruiser to a stop nose-to-nose with the vehicle, which was parked facing north on the west side of West Avenue North. He exited the cruiser, approached the vehicle and ordered its occupants to get out repeatedly. Fearing he was about to place the vehicle in motion, the SO broke the driver’s door window to get access to the driver.

The driver was the Complainant. He was operating a Nissan Altima, not the Mazda 3 being sought by police. It too was stolen and was fitted with a fraudulent licence plate at the back. When the officer smashed the driver’s door window, his passenger exited the vehicle via the front passenger door and fled northwards on West Avenue North. The Complainant climbed over the centre console of the car and also exited through the front passenger door. He ran eastward across the roadway a short distance before he was tackled to the ground by the SO.

On seeing the Complainant exiting the Nissan, the SO ran after him and took him down from behind. The officer held the Complainant down for a period and handcuffed him behind the back.

The Complainant was transported to the station and then to hospital after he complained of pain to his left arm. He was diagnosed with a fractured forearm.

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 a HPS officer on September 28, 2024. The SIU was notified of the incident and initiated an investigation. The SO was identified as 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.

Though the Complainant and the vehicle he was operating were not the subjects of the flight from police that had earlier been reported, the law does not expect perfection from police officers. They are accorded a measure of protection when they proceed on a mistaken basis so long as their error was a reasonable one to have been made in the circumstances. In the instant case, I am satisfied that the SO had reasonable grounds to believe that the Complainant was the individual who had earlier fled from police. Like the vehicle in question, the Nissan was missing a front licence plate, and contained a male driver and female passenger. It was also in the vicinity of the Mazda’s reported location a short time after it was last seen.

I am also satisfied that the force used by the SO in taking the Complainant into custody, namely, a tackle, constituted lawful force. Some type of physical intervention was going to be necessary to arrest the Complainant when he took off running from the officer. That intervention would also have to account for what the officer might expect in the way of physical resistance from the Complainant once he and the officer were physically engaged. On this record, a takedown made sense as it would bring the flight to an end while positioning the officer to better manage any further resistance from the Complainant.

In the result, while I accept that the Complainant broke his arm when he was tackled to the ground, I am unable to reasonably conclude that the injury is attributable to any unlawful conduct on the part of the SO. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: January 27, 2025

Electronically approved by

Joseph Martino

Director

Special Investigations Unit