SIU Director’s Report - Case # 21-OVI-097
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Contents:
Mandate of the SIU
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.
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.
Information Restrictions
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 Privacy Act
Pursuant to section14 (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.
- 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.Mandate Engaged
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 a 36-year-old man (the “Complainant”) suffered.
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 a 36-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On March 31, 2021, at 9:31 a.m., the Brantford Police Service (BPS) notified the Special Investigations Unit (SIU) of the following.At approximately 9:00 a.m., the Subject Official (SO) was on general patrol on Veterans Memorial Parkway and operating a police cruiser. The SO noticed a motorcyclist, the Complainant, who was wanted on arrest warrants. The Complainant became aware he was being followed and accelerated. The SO did not pursue the Complainant and strategically proceeded behind; however, the Complainant disappeared.
The SO arrived in the area of Clarence Street and Mount Pleasant Street, and saw a motor vehicle accident. It looked like the Complainant had collided with a car and possibly hit another vehicle.
The Complainant was transported to the Hamilton General Hospital.
The Team
Date and time team dispatched: 03/31/2021 at 10:29 a.m.Date and time SIU arrived on scene: 03/31/2021 at 11:30 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Number of SIU Collision Reconstructionists assigned: 1
Affected Person (aka “Complainant”):
36-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on April 1, 2021.
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
The civilian witnesses were interviewed on March 31, 2021.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Notes reviewed, interview deemed not necessary
The witness officials were interviewed between April 11 and 15, 2021.
Evidence
The Scene
The incident took place in the area of Veterans Memorial Parkway and Erie Avenue. Veterans Memorial Parkway is a four-lane paved asphalt road which permits two lanes of eastbound and two lanes of westbound vehicular movement. Erie Avenue is a four-lane paved asphalt road permitting north and southbound vehicular movement. Immediately east of the intersection, Veterans Memorial Parkway assumes an abrupt north and south flow and is known as Clarence Street South. The Complainant’s motorcycle had struck the guardrail on the north side of Veterans Memorial Parkway. The Complainant was traveling westbound on Veterans Memorial Parkway just before the collision occurred.
Figure 1 – The Complainant’s motorcycle
Scene Diagram
Vehicle Global Positioning System (GPS) Data Summary
The following is a compilation of data from the BPS MP4 file for the BPS Unit operated by the SO.
The SO commenced his travels northbound on Clarence Street South, the area in which he first observed the Complainant. The SO continued until he reached Greenwich Street and conducted a U-turn, returning southbound on Clarence Street South. The SO continued until he reached the intersection of Clarence Street South, which turned into Veterans Memorial Way, at Erie Avenue. The posted speed limit for the area was 50 km/h. As the SO followed the Complainant, he reached a top speed of 64 km/h and maintained an average speed of 38.4 km/h.
The SO travelled through three intersections equipped with traffic control signals. The colour of the traffic signals is not known and cannot be determined. However, it is evident via a review of closed-circuit television (CCTV) footage from a business on Clarence Street and a gas station on Clarence Street that the SO operated his police cruiser with the flow of traffic, suggesting he followed the traffic control signals until he returned southbound to the intersection of Clarence Street South and Erie Avenue. Upon reaching Clarence Street South and Erie Avenue for the second time, the SO proceeded through the intersection towards Veterans Memorial Way, while other vehicles came to a stop.
Video/Audio/Photographic Evidence
CCTV Summary – Gas Station on Clarence Street
There appeared to be an approximately four-minute discrepancy in time between this video footage and actual time.
Scene Diagram
Forensic Evidence
Vehicle Global Positioning System (GPS) Data Summary
The following is a compilation of data from the BPS MP4 file for the BPS Unit operated by the SO. The SO commenced his travels northbound on Clarence Street South, the area in which he first observed the Complainant. The SO continued until he reached Greenwich Street and conducted a U-turn, returning southbound on Clarence Street South. The SO continued until he reached the intersection of Clarence Street South, which turned into Veterans Memorial Way, at Erie Avenue. The posted speed limit for the area was 50 km/h. As the SO followed the Complainant, he reached a top speed of 64 km/h and maintained an average speed of 38.4 km/h.
The SO travelled through three intersections equipped with traffic control signals. The colour of the traffic signals is not known and cannot be determined. However, it is evident via a review of closed-circuit television (CCTV) footage from a business on Clarence Street and a gas station on Clarence Street that the SO operated his police cruiser with the flow of traffic, suggesting he followed the traffic control signals until he returned southbound to the intersection of Clarence Street South and Erie Avenue. Upon reaching Clarence Street South and Erie Avenue for the second time, the SO proceeded through the intersection towards Veterans Memorial Way, while other vehicles came to a stop.
Video/Audio/Photographic Evidence
BPS - Communications Summary
- 8:55:24 a.m. – The SO advised the dispatcher that he had just seen the Complainant on his bike [now known to be a motorcycle] driving on Clarence Street South. He advised that he knew that the Complainant had a couple of warrants for his arrest for robbery;
- 8:55:43 a.m. – The SO advised that the Complainant knew he was following him. The SO said he was not chasing the Complainant, just keeping a “long eye” on him;
- 8:55:58 a.m. – The SO advised that the Complainant was continuing on Veterans Memorial Parkway;
- 8:56:25 a.m. – The SO advised that he last saw the Complainant going onto Veterans Memorial Parkway. The SO was going to check the area for the Complainant;
- 8:56:41 a.m. – The SO said the Complainant was involved in a motor vehicle collision and asked to have Emergency Medical Services sent there now;
- 8:57:07 a.m. – The SO advised that the Complainant was conscious and breathing. It appeared that he had hit the guardrail but was now on the ground;
- 8:57:27 a.m. – The staff sergeant from the duty office asked if there were any attempts to stop the Complainant and whether the incident was a fail to stop;
- 9:06:37 a.m. – The SO advised that there was no attempt to stop and that the vehicle just took off;
- 9:18:17 a.m. – An officer advised the duty office that it was not just a guardrail and that there were two other vehicles involved, one with full airbag deployment;
- 9:22:09 a.m. – The staff sergeant confirmed that the only injuries were to the Complainant and one of the vehicle drivers;
- 10:49:11 a.m. – The police officer at the hospital advised that the Complainant’s injuries were now considered non-life threatening; and
- 10:51:55 a.m. – The SO told the staff sergeant in the duty office that he had not activated his emergency equipment when following the Complainant. He advised that the warrants for the Complainant had been endorsed.
CCTV Summary – Gas Station on Clarence Street
There appeared to be an approximately four-minute discrepancy in time between this video footage and actual time.- 8:49:26 a.m. – Video commenced;
- 8:51:08 a.m. – A dark motorcycle travelled northbound on Clarence Street towards Greenwich Street;
- 8:51:31 a.m. - A police cruiser SUV with no emergency equipment activated entered the camera’s field of view. It travelled the same direction as the motorcycle, northbound towards Greenwich Street;
- 8:51:44 a.m. – A dark motorcycle travelled on Clarence Street towards Veterans Memorial Parkway at a high rate of speed, past the Petro Canada;
- 8:51:52 a.m. – The motorcycle continued out of sight towards Veterans Memorial Parkway;
- 8:52:23 a.m. – A police cruiser SUV, with no emergency equipment activated, entered the camera’s field of view. It travelled the same direction as the motorcycle towards Veterans Memorial Parkway;
- 8:52:26 a.m. – The police cruiser continued out of sight, towards Veterans Memorial Parkway;
- 8:53:02 a.m. – A marked police cruiser, with emergency equipment activated, travelled on Clarence Street towards Veterans Memorial Parkway; and
- 8:53:13 a.m. – The marked police cruiser with its roof lights activated went out of sight.
CCTV Summary – Business on Clarence Street
The video was unclear due to moisture on the camera lens and its location. The video footage was not time stamped.- 16 min 54 sec (into the video) – A marked police SUV was observed traveling northbound on Clarence Street towards Greenwich Street;
- 17 min 13 sec - A motorcycle drove on Clarence Street towards the intersection of Veterans Memorial Way and Erie Avenue;
- 17 min 48 sec – A marked police SUV travelled on Clarence Street towards Veterans Memorial Parkway. The emergency equipment was not activated;
- 18 min 32 sec – A marked police SUV with its roof lights flashing travelled on Clarence Street towards Veterans Memorial Parkway; and
- 18 min 39 sec – The police cruiser went out of sight.
Materials Obtained from Police Service
Upon request, the SIU received the following materials and documents from BPS between April 8 and 29, 2021:- Computer-assisted Dispatch Details;
- BPS Communications Audio;
- CW #4 - Statement Synopsis;
- Driver Information Sheets (x3);
- Officer Note Taking Policy;
- Witness Information Sheet;
- Involved Person Report – CW #4;
- Involved Person Report – CW #2;
- CW #2 - Statement Synopsis;
- Notes-WO #2 (x2);
- Notes-WO #4;
- Notes-WO #1;
- Notes-WO #3;
- General Report-WO #2;
- Supplementary Occurrence Report-WO #2;
- GPS Data;
- Scene and Vehicle Photos;
- CCTV video footage – a gas station on Clarence Street; and
- CCTV video footage – a business on Clarence Street.
Materials Obtained from Other Sources
The SIU received the following record from other sources on April 14, 2021: • Medical Records from Hamilton HSC – the Complainant;
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, which included an interview with the Complainant and several civilian eyewitnesses, as well as video recordings of the incident captured by security cameras. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
Just before 9:00 a.m. of March 31, 2021, the SO was on patrol in his cruiser when he came across the Complainant operating a motorcycle northbound on Clarence Street South. The SO was aware that there was a warrant out for the Complainant’s arrest on robbery charges, and so he decided to follow him. He did so northward on Clarence Street until the roadway’s intersection with Greenwich Street, in which area the officer executed a U-turn to continue following the Complainant; the Complainant had taken note of the cruiser behind him and changed directions to travel southbound hoping to evade apprehension.
The Complainant picked up his pace south on Clarence Street South and then west onto Veterans Memorial Parkway as the road curved to the right. At a point at or near the end of a centre median that divided the road just west of the Veterans Memorial Parkway and Erie Avenue intersection, the Complainant lost control of his motorcycle. He entered onto the eastbound lanes and struck the driver’s side of an eastward vehicle – a Ford Escape. The Complainant was thrown from his bike and struck another eastward vehicle directly behind the Escape. His motorcycle collided with the guardrail on the north side of Veterans Memorial Parkway, coming to rest in the westbound curb lane of the road.
The SO had lost sight of the motorcycle as it maneuvered around the bend in the roadway past Erie Avenue. He arrived at the scene of the collision about a half-minute after it occurred and rendered care to the Complainant.
Paramedics arrived at the scene and transported the Complainant to hospital. He was diagnosed with fractures of the left leg and hand.
Just before 9:00 a.m. of March 31, 2021, the SO was on patrol in his cruiser when he came across the Complainant operating a motorcycle northbound on Clarence Street South. The SO was aware that there was a warrant out for the Complainant’s arrest on robbery charges, and so he decided to follow him. He did so northward on Clarence Street until the roadway’s intersection with Greenwich Street, in which area the officer executed a U-turn to continue following the Complainant; the Complainant had taken note of the cruiser behind him and changed directions to travel southbound hoping to evade apprehension.
The Complainant picked up his pace south on Clarence Street South and then west onto Veterans Memorial Parkway as the road curved to the right. At a point at or near the end of a centre median that divided the road just west of the Veterans Memorial Parkway and Erie Avenue intersection, the Complainant lost control of his motorcycle. He entered onto the eastbound lanes and struck the driver’s side of an eastward vehicle – a Ford Escape. The Complainant was thrown from his bike and struck another eastward vehicle directly behind the Escape. His motorcycle collided with the guardrail on the north side of Veterans Memorial Parkway, coming to rest in the westbound curb lane of the road.
The SO had lost sight of the motorcycle as it maneuvered around the bend in the roadway past Erie Avenue. He arrived at the scene of the collision about a half-minute after it occurred and rendered care to the Complainant.
Paramedics arrived at the scene and transported the Complainant to hospital. He was diagnosed with fractures of the left leg and hand.
Relevant Legislation
Section 320.13, Criminal Code – Dangerous operation of motor vehicles, vessels and aircraft
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.
(3) 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 the death of another person.
Analysis and Director's Decision
On March 31, 2021, the Complainant was seriously injured in a motor vehicle collision in Brantford. As he was being followed by a BPS officer shortly before the collision, the SIU was notified and initiated an investigation. The officer – the SO – was identified as the subject official 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 driving 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 any want of care on the part of the SO in the manner in which he engaged with the Complainant that caused or contributed to the collision and/or was sufficiently egregious as to attract criminal sanction. In my view, there was not.
The SO was in the discharge of his lawful duties when he spotted the Complainant and decided to follow him, presumably to stop or get a fix on his location so that he could eventually be arrested. There was an arrest warrant out for the Complainant on robbery charges and the officer was within his rights in doing what he could to have him taken into custody.
Thereafter, I am satisfied that the SO comported himself with due care and regard for public safety, including the Complainant’s health and well-being. From a distance, the officer followed the Complainant but decided not to actively engage him in a pursuit. That decision was a sensible one, especially as the Complainant, aware that he was being followed, decided to accelerate south and then west onto Veterans Memorial Parkway. The roads were wet and slippery, and the Complainant was operating a motorcycle, placing him in a particularly vulnerable situation. Regrettably, though he was not being pushed and had ample opportunity to safely negotiate the bend, the Complainant continued at speed, lost control of his vehicle, and crashed into eastward vehicles. For his part, the SO maintained a moderate and safe speed throughout his brief engagement with the motorcycle. Once at the scene, the officer quickly called for paramedics and cared for the Complainant while they waited. On this record, while the officer’s presence was the impetus for the Complainant’s acceleration, there is no evidence of any dangerous driving on his part.
For the foregoing reasons, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law in the course of this incident. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Date: July 28, 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 driving 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 any want of care on the part of the SO in the manner in which he engaged with the Complainant that caused or contributed to the collision and/or was sufficiently egregious as to attract criminal sanction. In my view, there was not.
The SO was in the discharge of his lawful duties when he spotted the Complainant and decided to follow him, presumably to stop or get a fix on his location so that he could eventually be arrested. There was an arrest warrant out for the Complainant on robbery charges and the officer was within his rights in doing what he could to have him taken into custody.
Thereafter, I am satisfied that the SO comported himself with due care and regard for public safety, including the Complainant’s health and well-being. From a distance, the officer followed the Complainant but decided not to actively engage him in a pursuit. That decision was a sensible one, especially as the Complainant, aware that he was being followed, decided to accelerate south and then west onto Veterans Memorial Parkway. The roads were wet and slippery, and the Complainant was operating a motorcycle, placing him in a particularly vulnerable situation. Regrettably, though he was not being pushed and had ample opportunity to safely negotiate the bend, the Complainant continued at speed, lost control of his vehicle, and crashed into eastward vehicles. For his part, the SO maintained a moderate and safe speed throughout his brief engagement with the motorcycle. Once at the scene, the officer quickly called for paramedics and cared for the Complainant while they waited. On this record, while the officer’s presence was the impetus for the Complainant’s acceleration, there is no evidence of any dangerous driving on his part.
For the foregoing reasons, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law in the course of this incident. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Date: July 28, 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.