Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release 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 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• Subject Officer name(s);
• Witness Officer name(s);
• Civilian Witness name(s);
• 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 (“PHIPA”)

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

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury a 26-year-old man (the “Complainant”) suffered during an interaction with police.

Notification of the SIU
 

On November 5, 2020, at approximately 6:03 p.m., the Hamilton Police Service (HPS) notified the SIU of the Complainant’s serious injury.

According to HPS, on November 5, 2020, at approximately 11:42 a.m., HPS police officers spotted a stolen automobile on the Lincoln Alexander Parkway. After a short vehicle pursuit, the vehicle went into the ditch on the Red Hill Expressway at Lawrence Road. A foot pursuit ensued that led to a brief roadside stand-off in which the Complainant gestured in a manner indicating to police officers present that he was reaching for a weapon.

A Conducted Energy Weapon (CEW) was deployed but it was not effective. Police officers then tackled the Complainant. He was taken into custody and complained of a sore hand.

Police officers transported the Complainant to the Hamilton General Hospital (HGH) where he was diagnosed with a fractured fifth finger on his left hand.

No scene was held by the HPS.

The Team
 

Number of SIU Investigators assigned:     3

Number of SIU Forensic Investigators assigned:     1

Complainant:

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

Witness Officers (WO)
 

WO #1     Interviewed

WO #2     Interviewed

WO #3     Interviewed

WO #4     Notes reviewed, interview deemed not necessary

Subject Officers (SO)
 

SO #1     Interviewed, and notes received and reviewed

SO #2     Interviewed, and notes received and reviewed

SO #3     Interviewed, and notes received and reviewed

SO #4     Interviewed, and notes received and reviewed

SO #5     Interviewed, and notes received and reviewed

The Scene
 

The Complainant was arrested in the ditch by the west shoulder of the Red Hill Valley Parkway a distance south of the Mt. Albion Road overpass.


 

Forensic Evidence 
 

CEW Report

On November 5, 2020, at 11:42:49 a.m., [1] the CEW assigned to SO #3 was triggered. It was triggered a second time at 11:42:51 a.m.

On November 5, 2020, the CEW assigned to SO #2 was triggered at 11:44:17 a.m.

Police Communications Recordings
 

The following is a summary of the information contained in the Computer-aided Dispatch (CAD) report relating to police communications in relation to the incident.

On November 5, 2020, at 11:35 a.m., a transmission indicated that the Complainant was walking towards Mt. Albion Road and a description of the Complainant was broadcast.

At 11:37 a.m., it was noted that the Complainant had made it across the Red Hill Valley Parkway.

At 11:38 a.m., there was a transmission that the Complainant was headed back towards the Red Hill Valley Parkway.

At 11:39 a.m., there was a transmission that the Complainant was being held at gunpoint. It was subsequently noted that the Complainant had hopped a fence and was reaching for his shirt.

At 11:41 a.m., it was noted that the Complainant was in custody.

Materials obtained from Police Service
 

Upon request the SIU obtained and reviewed the following materials and documents from the HPS:

• CAD Report;
• CEW Report;
• General Report (x2);
• Notes – SO #2;
• Notes – WO #4;
• Notes – SO #1;
• Notes – SO #3;
• Notes – WO #2;
• Notes – SO #4;
• Notes – WO #3;
• Notes – WO #1;
• Notes – SO #5;
• Witness Statement – SO #2;
• Witness Statement – SO #3;
• Witness Statement – WO #4;
• Witness Statement – WO #2;
• Witness Statement – SO #4; and
• Witness Statement – WO #1.

Materials obtained from Other Sources

The SIU obtained and reviewed the following records from non-police sources:

• Medical Records from HGH.

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant and each of the subject officers. In the morning of November 5, 2020, officers were put on alert that the Complainant was wanted on a series of domestic-related offences, including assault with a weapon, forcible confinement, pointing a firearm, and threatening to cause death. They were further apprised that the Complainant was known to be operating a stolen Dodge Magnum.

Following a tip to police, officers convened in the area of Congress Crescent to search for the Complainant. At about 11:30 a.m., the Dodge Magnum with the Complainant in it was observed by SO #2, who began to follow it at a distance in his vehicle. The Complainant parked the Magnum toward the dead-end of Hixon Road, exited, and started walking east toward Mt. Albion Road. As he arrived in the area of 276 Hixon Road, he suddenly turned around and started running west toward the Hixon Road dead-end.

SO #2 exited his cruiser, also stopped on Hixon Road, and gave chase. He yelled at the Complainant, “Police, stop running,” and watched as the Complainant jumped over the guardrail at the dead-end onto the embankment to the Red Hill Valley Parkway. The Complainant ran toward the highway and crossed it, scaling a chain link fence lining the west shoulder of the southbound lanes of traffic into an area of brush.

Hearing over his radio that the Complainant had fled from officers west across the highway, SO #3 drove to the area of Mt. Albion and Lawrence Roads, exited his vehicle and made his way south down a footpath west of the Red Hill Valley Parkway. The officer located the Complainant, who stood across a small river from him, and yelled, “Police,” while drawing his CEW. The Complainant told SO #3 he had a gun and would shoot him if he got any closer, reaching under his T-shirt and into his waistband as he did so. SO #3 broadcast what was happening and asked for support.

Following a brief standoff, the Complainant turned to run away from SO #3. He stumbled and fell multiple times through the brush, occasionally turning to face the officer and threatening to shoot him. SO #3 pursued the Complainant, losing his footing as well from time-to-time. After a distance, the Complainant came upon the same chain link fence, and jumped over it. By the time SO #3 followed suit, the Complainant had run into the live lanes of southbound traffic on the Red Hill Valley Parkway.

SO #3, now joined by SO #1, the latter having seen the foot chase in progress and crossed over the highway to assist in the Complainant’s apprehension, confronted the Complainant at gunpoint. They repeatedly told him to get down to the ground, but he refused to do so. As he continued to threaten the officers with gunfire, the Complainant gestured with his hand inside the pocket of the hoodie he was wearing, as if he was pointing a gun in their direction. Southbound vehicles were traveling past the scene or coming to sudden stops as this was occurring.

After a period, SO #3 drew and discharged his CEW at the Complainant. The deployment had no impact on the Complainant. The officer fired his CEW a second time, again to similar effect. A third CEW deployment, this time from SO #2, who had arrived at the scene, was also ineffective. It was only when SO #1, suspecting that the Complainant was not actually armed with a firearm as he proclaimed, rushed the Complainant after the last CEW deployment and tackled him into the sloped ditch west of the highway, that the Complainant was brought to ground.

There followed a struggle as SO #3 and SO #2 physically engaged the Complainant. The Complainant physically resisted his arrest, flailing his body and limbs, striking the officers, and refusing to surrender his arms. The Complainant was struck with a knee to the leg and a series of punches to the head by SO #2. He was eventually turned onto his front, after which, with the arrival and intervention of SO #4 and SO #5, his arms were wrestled behind his back and he was handcuffed.

The Complainant was taken from the scene in ambulance to hospital where he was diagnosed with a fracture of the small left finger.

SO #2 and SO #3 suffered minor injuries in the scuffle with the Complainant. The former – cuts to his right fingers. The latter – a swollen eye, cuts to the face and bruising to the ribs.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

On November 5, 2020, the Complainant suffered a serious injury in the course of his arrest by HPS officers. The arresting officers – SO #3, SO #1, SO #2, SO #4 and SO #5 – were identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officers 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 authorized or required to do by law. There is no evidence to suggest that the officers were without a lawful basis for seeking to arrest the Complainant. They had information that he was wanted in relation to a domestic disturbance in which a firearm had been used.

The Complainant resisted his apprehension and was met with what was, in my view, reasonable force by the subject officers. The Complainant had repeatedly threatened to shoot SO #3 as the officer chased him alongside the Red Hill Valley Parkway, even feigning possession of a gun by manipulating his right hand under his clothing. He did the same to SO #1 and SO #2 in the southbound lanes of the highway. The officers had good reason to believe the Complainant could well be armed with a firearm given the nature of the charges he was facing. In the circumstances, I am unable to fault either SO #3 or SO #2 for attempting to incapacitate the Complainant with their CEW discharges.

Nor do I take issue with SO #1’s decision to tackle the Complainant after the CEWs had proven ineffective. The parties were in live lanes of traffic on a highway and in a position of danger from passing motorists, as well as a threat to vehicular traffic having to take evasive action to avoid striking them. It was imperative that they move off the roadway, and the force used by SO #1 accomplished just that.

Thereafter, the evidence indicates that the Complainant strenuously resisted his arrest, striking and causing injury to SO #3 and SO #2. The officers were entitled to meet his aggression by force of their own and did so largely by way of grappling the Complainant into submission. In the course of the melee, SO #2 delivered a knee to the Complainant’s leg and several punches to the head. I am unable to reasonably conclude that this force was excessive in light of the extent of the Complainant’s resistance – which continued for a period after the strikes – and its nature – sufficiently violent to have caused injury to SO #3 and SO #2. No further force was used after the Complainant was handcuffed.

It is unclear whether the Complainant suffered his fracture at the hands of one or more of the subject officers, or in the course of his several falls as he fled from SO #3. Be that as it may, as I am satisfied for the foregoing reasons that the officers comported themselves
 
lawfully throughout their interaction with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: June 28, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit