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: 

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 a serious injury sustained by a 37-year-old man (the “Complainant”).

Notification of the SIU
 

On May 11, 2021, at 5:25 p.m., the St. Thomas Police Service (STPS) contacted the SIU to report an injury. At 3:00 p.m., the Subject Official (SO) observed the Complainant riding a bicycle on the sidewalk on Elm Street. The SO knew the Complainant was wanted on a warrant. The officer drove alongside him, and then overtook him and crossed the sidewalk. The Complainant collided with the side of the SO’s police vehicle in front of 194 Elm Street. The Complainant was taken to the hospital and diagnosed with a fractured kneecap.

The Team
 

Date and time team dispatched:     05/11/2021 at 6:04 p.m.

Date and time SIU arrived on scene:     05/11/2021 at 8:00 p.m.

Number of SIU Investigators assigned:     5

Number of SIU Forensic Investigators assigned:     2

Affected Person (aka “Complainant”):

37-year-old male interviewed

The Complainant was interviewed on May 17, 2021.

Civilian Witnesses
 

CW #1     Interviewed

CW #2     Interviewed

CW #3     Interviewed

The civilian witnesses were interviewed on May 12, 2021, and May 21, 2021.

Subject Officials
 

SO     Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials
 

WO #1     Interviewed

WO #2     Interviewed

WO #3     Not interviewed, but notes and will say received

WO #4     Interviewed

The witness officials were interviewed on June 2, 2021.

The Scene 
 

The scene was located in front of 194 Elm Street in St. Thomas.

Elm Street was a two-lane roadway that travelled east/west with a separate left turn lane in the middle. The road surface was in good condition and markings were clear and visible. There was residential housing on the north side of the street and a hospital on the south side. There were sidewalks on both sides of the street. The north sidewalk was in good condition and appeared new.


Figure 1 - The scene of the collision.

 

Scene Diagram

Physical Evidence 
 

Vehicle 1 – Police - 2015 Ford Explorer Interceptor

The STPS vehicle was oriented northeast across the north sidewalk at the driveway of 194 Elm Street. There was minor collision damage to the driver’s side rear quarter panel and corner. The damage was a small dent in the fender and black rubber transfer. Tire marks were visible on the roadway leading to the rear of the vehicle. The tire marks began in the eastbound lane on Elm Street west of the driveway and veered left to the resting point of the vehicle.

Figure 2 – The 2015 Ford Explorer with evidence markers indicating tire marks.

Vehicle 2 – Police - 2019 Dodge Charger

The STPS vehicle was oriented east in the centre left turn lane of Elm Street, close in proximity to 194 Elm Street. The vehicle did not have any collision damage. There were visible tire marks on the roadway leading up the rear of the vehicle. The tire marks began in the left turn lane of Elm Street and travelled in a straight line east towards the rear of the vehicle. A bicycle was in the trunk of the Dodge Charger.

Figure 3 - The Dodge Charger with evidence markers indicating tire marks.

Vehicle 3 – Hi-Ten black bicycle

The bicycle had an irregular bend in the front forks and scuff marks on the front tire. The bicycle had no brakes on the front and the rear brakes were inoperable. A squeeze of the hand brake on the right handlebar did not activate the caliper on the rear wheel and the brake pad at the caliper was missing.

Figure 4 - The Hi-Ten bicycle.

Forensic Evidence 
 

Global Positioning System (GPS) Data - SO’s Police Vehicle

The STPS provided a copy of the GPS and Vehicle Track Report for the SO’s police vehicle. 

   

Video/Audio/Photographic Evidence [1]
 

Body-worn Camera (BWC) Footage

The STPS provided a copy of WO #1’s BWC footage for May 11, 2021. The length of the footage was 13 minutes, running between 3:01:03 p.m. and 3:14:04 p.m. The audio was turned on at 3:01:33 p.m., turned off at 3:03:41 p.m., and turned back on at 3:09:14 p.m., when the EMS arrived.
The video started depicting WO #1’s feet as he was handcuffing the Complainant. The Complainant was sat on the north side of Elm Street near the white line and at the driveway opening of 194 Elm Street. The SO’s police vehicle was stopped at the edge of the roadway, across the north sidewalk on Elm Street. WO #1’s police vehicle was stopped in the left turn lane and WO #2’s police vehicle was parked behind his vehicle.
As the audio started, WO #1 and the Complainant were talking about the Complainant’s injured left knee. The Complainant said his kneecap was separated and it was his own stupidity. The SO replied, “I’ll give you that.” The Complainant said he did pull over and an officer said fail to stop. The Complainant mentioned the warrants he could think of but believed that they had already been looked after. WO #1 said, “I tried to speak to you,” and then pointed down the roadway. WO #1 asked about his ex-girlfriend and said that the warrant was from when he was with her. The SO told the Complainant the warrant had been there for about a month now. The SO asked why the Complainant would run into the side of the police vehicle for that. WO #1 told the Complainant he did not know he was running until he saw the tires go flying. The audio was turned off.
At 3:09 p.m., the EMS arrived. The audio was turned on as the paramedics were approaching on foot. The SO told the paramedics the Complainant was “biking hard” down Elm Street and hit the side of his police vehicle. As the Complainant was talking to the paramedics, he turned to the SO and asked how fast he was going. The SO said, “I don’t know man, fast enough.” The Complainant estimated he was doing about 50 km/h and the SO said, “Probably pretty close.”

Police Communications

On May 11, 2021 at 2:55 p.m., officers located the Complainant in the area of Fifth and Elm.
At 2:57 p.m., the Complainant was in custody.
The SO, WO #1, and WO #2 attended the scene. WO #1 requested an ambulance for the Complainant. The Complainant had an injured, possibly broken leg.
At 3:22 p.m., WO #2 and WO #1 were at the hospital with the Complainant.
At 3:53:21 p.m., the Complainant had an X-ray and, at 4:23:44 p.m., the Complainant had a CT scan.
At 5:11:30 p.m., the Complainant was charged with a Controlled Drugs and Substances Act offence and fail to stop under the Highway Traffic Act.
At 6:10 p.m., a sergeant released the Complainant on an appearance notice and summons.

Materials Obtained from Police Service

The SIU obtained the following records from the STPS between May 17, 2021, and July 26, 2021:

• Arrest Warrant – the Complainant;
• BWC Footage;
• BWC Pilot Project Policy;
• Communication recordings;
• Computer-Assisted Dispatch Event Details;
• Facebook Screenshot of Comment;
• General Occurrence Report;
• Google Maps GPS Files;
• GPS data;
• Mobile Data Terminal Car to Car Communications;
• Notes and Will Say of WO #3 and WO #4;
• Notes of WO #1 and WO #2;
• Policy – Arrest
• Police – Prisoner Care and Control; and
• Policy – Use of Force.

The material events in question are clear and may be briefly summarized. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the afternoon of May 11, 2021, the Complainant, while riding a bicycle, came to the attention of STPS officers on patrol. One of them – WO #1 – had stopped him briefly to assess his bicycle’s compliance with the Highway Traffic Act. Shortly after that engagement, WO #1 checked the Complainant against police records and learned that he was wanted on an arrest warrant for breach of a condition of his release. That information was broadcast to the other officers in the area.

The SO was among the officers who came to learn of the Complainant’s warrant. While eastbound on Elm Street in his police SUV, the SO observed the Complainant cycling on the north sidewalk. He pulled his cruiser to a stop over the sidewalk ahead of the Complainant and exited. The Complainant, having initially cycled past the cruiser, turned back to speak with the SO. Their conversation lasted a few seconds before the Complainant resumed his travel eastward.

By this time, the Complainant knew that the police were looking to take him into custody. He accelerated eastward, this time on the south sidewalk of the road, came upon and travelled around another police cruiser that had stopped ahead of him, and transitioned back onto the north sidewalk.

The cruiser was being driven by WO #2. With her was police cadet, WO #4. WO #4 exited the vehicle and started after the Complainant on foot.

The SO travelled past WO #2’s cruiser and ahead of the Complainant. Just east of Hepburn Avenue, the officer pulled onto, and stopped on, the boulevard and north sidewalk of the road in front of 194 Elm Street. The Complainant approached the cruiser and, attempting to maneuver around it, struck the rear driver’s side of the vehicle. The impact sent him tumbling.

Shortly after the Complainant’s collision with the cruiser, the SO and WO #1, the latter having also pursued the Complainant in his cruiser immediately behind the SO, handcuffed the Complainant. As it was clear that the Complainant had suffered an injury, paramedics were called to the scene.

The Complainant was transported to hospital and diagnosed with fractures of his left kneecap.

Section 320.13, Criminal Code – Dangerous operation causing bodily harm

 

On May 11, 2021, the Complainant sustained a serious injury in the course of his arrest by STPS officers. One of the arresting officers – 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 Complainant’s arrest and injury.

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 one of penal negligence and is therefore not made out on the basis of any departure from the level of care that a reasonable person would have exercised in the circumstances. Rather, what is required, in part, is a marked deviation from a reasonable level of care. In the instant case, the issue is whether there was a want of care on the part of the SO that caused or contributed to the collision and/or was sufficiently egregious to attract criminal sanction. In my view, there was not.

The officers, including the SO, were in the lawful execution of their duties as they sought to take the Complainant into custody. At the time of the incident, there was a warrant in effect authorizing the Complainant’s arrest for failing to comply with a release order.

I am further satisfied that the SO did not transgress the limits of care in the manner in which he used his vehicle to aid in the Complainant’s apprehension. By the time the SO decided to pull his cruiser in a northeast orientation across the sidewalk and boulevard to block his path of travel, the Complainant had given clear indication that he was not about to stop for the police. Seconds earlier, he had passed WO #2’s cruiser on the south side of the street. And police and civilian witnesses remarked at how fast the Complainant was pedaling. In the circumstances, I am unable to reasonably conclude that the tactic the SO adopted was an unreasonable one given that the Complainant was on a bike and unlikely to be caught by police officers on foot. Nor does it appear that the maneuver was performed recklessly. In this regard, the evidence indicates that the officer left the Complainant sufficient space to come to a complete stop ahead of the cruiser had he been so inclined. As it turns out, the bicycle the Complainant was riding did not have functioning brakes, but the SO could not have known that. Moreover, there is no suggestion of any undue speed, or third-party motorists or pedestrians, having had to take evasive action as a result of what the officer did.

For the foregoing reasons, while I accept that the Complainant’s fractured knee was the result of his impact with the SO’s cruiser, there are no reasonable grounds to believe that he caused or contributed to the collision by way of conduct that was criminal in nature. Accordingly, there is no basis for proceeding with criminal charges against the officer, and the file is closed.


Date: September 8, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit