SIU Director’s Report - Case # 20-OVI-161
Warning:
This page contains graphic content that can shock, offend and upset.
Contents:
Mandate of the SIU
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.
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.
Information Restrictions
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.
- 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.Mandate Engaged
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 injuries a 44-year-old woman (the “Complainant”) suffered.
“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 injuries a 44-year-old woman (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On July 1, 2020, an SIU member was made aware that a collision occurred in Milton on the evening of June 30, 2020, involving a Halton Regional Police Service (HRPS) vehicle and a cyclist. It was reported that the cyclist, the Complainant, received serious injuries and was in Hamilton General Hospital (HGH) awaiting surgery. SIU was not notified of the incident by the HRPS. The SIU contacted HRPS who were aware of the incident but believed the injuries to be non-serious and determined that notification to the SIU was not necessary. As a precaution, however, when HRPS learned of the incident they ensured that the involved police cruiser and the Complainant’s bicycle were secured.
The collision scene was examined and photographed by the HRPS.
The Team
Number of SIU Investigators assigned: 2 Number of SIU Forensic Investigators assigned: 1
Number of SIU Collision Reconstructionists assigned: 1
Complainant:
44-year-old female interviewed, medical records obtained and reviewedWitness Officers
WO #1 Interviewed, notes received and reviewedWO #2 Interviewed, notes received and reviewed
Additionally, the notes from six other officers were received and reviewed.
Subject Officer
SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.Evidence
The Scene
In the area of the collision, Main Street East is a four-lane paved asphalt road which permits two lanes of eastbound and two lanes of westbound vehicular movement. The lanes are delineated with a yellow paint mark near the centre of the road. The lanes permitting travel in the same direction are delineated with intermittent white paint marks. At the approaches to Thompson Road South there are concrete medians and an additional left turn lane delineated with a solid white paint mark and painted left turn arrows on the road. Thompson Road South intersects at near right angles. It is a four-lane paved asphalt road with two northbound and two southbound lanes delineated with a solid painted yellow line near the centre of the road. The lanes permitting travel in the same direction are delineated with intermittent white paint lines. At the approaches to Main Street East there are concrete centre medians and an additional left turn lane delineated with a solid white paint mark and painted left turn arrows on the road.
Both roads are bordered by concrete curbs, grassed boulevards and sidewalks. The sight lines in all directions are good. The speed limit on Main Street East is posted at 50 km/h and at 60 km/h for Thompson Road South. The intersection possesses functioning traffic signals, pedestrian walk signals, pedestrian crosswalks and stop bars. The pedestrian crosswalks are concrete, and they are bordered by concrete pavers instead of being painted white.
Figure 1 – This photograph is a Google Earth® depiction of the scene. The black line was added to show the path taken by the SO’s vehicle and the orange arrow the path taken by the Complainant. The red circle depicts the Area of Impact.
Figure 2 – Photograph taken by HRPS of the scene.
Forensic Evidence
Collision Reconstruction Report
At the same time the Complainant was operating her bicycle northbound on the west side walk of Thompson Road South at an average calculated speed of 19.9 km/h just before the collision. The atmosphere was clear, the roads were dry, and it was dark. While the SO negotiated the southbound turn onto Thompson Road South, the Complainant rode her bicycle abruptly eastbound into the crosswalk attempting to cross Thompson Road South. The front tire of her bicycle struck the right front fender of the SO’s police cruiser in a sideswipe fashion. The Complainant and parts of her bicycle impacted the right front fender and two right doors of the SO’s police cruiser. This caused scuffing on the left sidewall of the front wheel at the same time as the tip of the left handlebar. Only the lower fork assembly was rotated while the brake and gear actuators on the handlebar were not affected. This action also caused the brake cable to become twisted around the neck. The Complainant and her bicycle fell to the pavement near the crosswalk and came to rest close by. The precise speed of the SO’s police cruiser at impact is not known but it was brought to a complete stop some 3.3 metres south of the Area of Impact and crosswalk.
Video/Audio/Photographic Evidence
The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following sources:- Closed-circuit Television (CCTV) footage from the First Ontario Centre in Milton; and
- CCTV footage from a Milton traffic camera.
CCTV - First Ontario Centre
At 8:57:21 p.m. (per the recording’s time stamp), eastbound traffic on Main Street East was stopped at Thompson Road South and then started to move eastbound. The pedestrian signal turned white and seven seconds later it started to flash red. The Complainant cycled her bicycle northbound on the west sidewalk on the far left of the video image. The Complainant’s position was near the south side of the East Side Mario’s building that was on the southwest corner of the intersection. Two vehicles can be seen to be travelling side by side eastbound on Main Street East in front of 875 Main Street East [one of the vehicles is now known to have been an unmarked police cruiser operated by the SO]. The police cruiser was in the curb lane and the right turn signal was activated and flashing. The Complainant cannot be seen in the video as she had moved behind a large tree that blocked the camera view.
At 8:57:40 p.m., the Complainant appeared from behind the tree and was still moving in a northbound direction. The Complainant appeared to be wearing a white top. The SO’s police cruiser was still on Main Street just west of the corner of Thompson Road. The police cruiser started to turn south onto Thompson Road South. The Complainant was still northbound on the sidewalk equal to the traffic light for southbound Thompson Road South traffic that was located on the west side of the road south of the intersection.
The front of the SO’s police cruiser entered the south crosswalk of Thompson Road South. The Complainant was still northbound and turned eastbound and was at the west curb of Thompson Road South. The police cruiser was almost fully turned onto Thompson Road South and was just at the south side of the crosswalk for east-west pedestrian traffic. The Complainant had started to turn east onto Thompson Road South. There were no lights visible on the front or back of her bicycle. The Complainant’s bicycle collided with the front right corner of the SO’s police cruiser.
The SO’s police cruiser came to a stop with its rear wheel at the south edge of the crosswalk. The Complainant had been thrown in front of the vehicle and came to rest on the roadway south of the police cruiser.
CCTV - Milton Traffic Camera
An eastbound vehicle in the curb lane [now known to have been the HRPS police cruiser operated by the SO] turned on its right turn signal. The police cruiser made a right turn on a green traffic light for east-west traffic and then suddenly applied its brakes [brake lights came on] and came to a stop. The SO exited the police cruiser and went to the front of the vehicle. The emergency lights on the police cruiser were activated.
Prior to making the right hand turn onto Thompson Road South, the SO had been travelling side by side with another vehicle that had made a left turn onto Thompson Road North as the SO turned right. The SO’s police cruiser did not stop at Thompson Road South prior to making the right-hand turn.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from HRPS:- Computer-assisted Dispatch Event Chronology;
- Motor Vehicle Collision Report;
- Notes-WO #1;
- Notes-WO #2;
- Notes of six non-designated officers;
- Occurrence Reports (x2);
- HRPS Policy Directive DRE-004 - Operation of a Police Vehicle;
- HRPS Policy Directive TRF-009 - Motor Vehicle Collision; and
- Witness Statement- the Complainant (cyclist).
Materials obtained from Other Sources
Upon request, the SIU obtained and reviewed the following additional materials and documents from non-police sources:- Medical Records – the Complainant;
- CCTV footage from Milton Traffic Camera; and
- CCTV footage from the First Ontario Centre in Milton.
Incident Narrative
The material events in question are apparent on the weight of the evidence, which included statements from the Complainant and the SO, and video recordings of the incident captured by two surveillance cameras in the area. At about 10:00 p.m. on June 30, 2020, the Complainant was riding her bicycle northward on the west sidewalk of Thompson Road South approaching Main Street East. It was her intention to cross Thompson Road South at the south crosswalk of Main Street East through the intersection. At the same time, the SO was traveling in an unmarked police cruiser east along Main Street intending to turn south onto Thompson Road South. He was responding to a call for service at the Milton Go Station, which does not appear to have been urgent as his speed was moderate and the cruiser’s emergency lights and siren were not activated.
The SO approached the intersection on a green light and started into his right-hand turn. As the officer was into his turn, the Complainant rode her bicycle eastward into the roadway near the south edge of the crosswalk and collided with the front passenger side of the cruiser. The Complainant was sent tumbling onto the ground off her bike. The SO quickly stopped his cruiser, exited and rushed to render aid to the Complainant. EMS was contacted and soon on the scene.
The Complainant was taken to hospital where she was diagnosed with a fractured left pelvis and left humerus.
The SO approached the intersection on a green light and started into his right-hand turn. As the officer was into his turn, the Complainant rode her bicycle eastward into the roadway near the south edge of the crosswalk and collided with the front passenger side of the cruiser. The Complainant was sent tumbling onto the ground off her bike. The SO quickly stopped his cruiser, exited and rushed to render aid to the Complainant. EMS was contacted and soon on the scene.
The Complainant was taken to hospital where she was diagnosed with a fractured left pelvis and left humerus.
Relevant Legislation
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.
Analysis and Director's Decision
On June 30, 2020, the Complainant was injured in a collision with an HRPS police cruiser in Milton. She was riding her bicycle at the time. The operator of the cruiser – the SO – was identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the collision.
The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. The offence is predicated, in part, on conduct that amounts to a marked departure from a reasonable level of care in the circumstances. In my view, there is no evidence to reasonably conclude that the SO transgressed the limits of care prescribed by the criminal law.
There is a heavy onus on the operators of motor vehicles to be ever mindful of the presence of other users of the road, particularly pedestrians and cyclists in the vicinity given their relative vulnerability. In the instant case, the SO was traveling at a moderate and safe speed as he entered into his right-hand turn onto Thompson Road South. He did so on a green light and at a time when the same traffic control signal was flashing red for pedestrians, requiring users of the crosswalk to refrain from entering the intersection. The officer says that he simply did not see the Complainant until she suddenly appeared at his front passenger side and collided with his cruiser. While I accept the SO’s account on this point, the question is whether he was keeping a proper lookout and ought to have seen the Complainant. While there is evidence that cuts both ways on this issue, the fact that it was dark at the time and that the Complainant appears to have entered the intersection on a bicycle that did not have a forward facing light leads me to conclude that the officer’s oversight, if it was such, did not amount to a pronounced lack of care sufficient to ground criminal liability.
On the aforementioned-record, there is insufficient evidence to reasonably conclude that the SO ran afoul of the criminal law vis-à-vis the collision with the Complainant. Accordingly, there is no basis for proceeding with criminal charges.
Date: February 16, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. The offence is predicated, in part, on conduct that amounts to a marked departure from a reasonable level of care in the circumstances. In my view, there is no evidence to reasonably conclude that the SO transgressed the limits of care prescribed by the criminal law.
There is a heavy onus on the operators of motor vehicles to be ever mindful of the presence of other users of the road, particularly pedestrians and cyclists in the vicinity given their relative vulnerability. In the instant case, the SO was traveling at a moderate and safe speed as he entered into his right-hand turn onto Thompson Road South. He did so on a green light and at a time when the same traffic control signal was flashing red for pedestrians, requiring users of the crosswalk to refrain from entering the intersection. The officer says that he simply did not see the Complainant until she suddenly appeared at his front passenger side and collided with his cruiser. While I accept the SO’s account on this point, the question is whether he was keeping a proper lookout and ought to have seen the Complainant. While there is evidence that cuts both ways on this issue, the fact that it was dark at the time and that the Complainant appears to have entered the intersection on a bicycle that did not have a forward facing light leads me to conclude that the officer’s oversight, if it was such, did not amount to a pronounced lack of care sufficient to ground criminal liability.
On the aforementioned-record, there is insufficient evidence to reasonably conclude that the SO ran afoul of the criminal law vis-à-vis the collision with the Complainant. Accordingly, there is no basis for proceeding with criminal charges.
Date: February 16, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.