SIU Director’s Report - Case # 21-OVI-304
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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 serious injuries sustained by a 43-year-old woman (the “Complainant”).
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 serious injuries sustained by a 43-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU
On September 13, 2021, at 3:23 p.m., the Windsor Police Service (WPS) reported the following.On September 13, 2021, at 10:00 a.m., an officer was responding to a priority one call with lights and siren activated. A vehicle being driven by the Civilian Witness (CW), with the Complainant as passenger, had been in front on the cruiser. After hearing the lights and siren, the CW panicked and slammed on her brakes. As a result, the police cruiser struck her vehicle on Huron Church Road.
The Complainant was taken to the hospital and diagnosed with a fractured right wrist and nose. The police officer driving the cruiser had suffered a brain bleed.
The Team
Date and time team dispatched: 09/13/2021 at 4:13 p.m.Date and time SIU arrived on scene: 09/13/2021 at 5:55 p.m.
Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
43-year-old female interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 13, 2021.
Civilian Witnesses
CW Interviewed The civilian witness was interviewed on September 13, 2021.
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on October 1, 2021.
Evidence
The Scene
At 10:35 p.m., SIU forensic investigators attended the scene. The scene was more specifically located across from 1980 Huron Church Road.A WPS vehicle was blocking the middle and the passing lanes of northbound Huron Church Road. There were two vehicles in the passing lane just north of this blocking vehicle. Collision debris was scattered around these two vehicles. The curb lane was open to traffic as were the southbound lanes.
A maroon-coloured Chrysler Sebring was resting in the passing lane. The front left tire was in contact with the centre concrete median. Two distinct sets of tire markings were observed on the centre concrete median. These markings were most likely made by the left front tire of this vehicle.
There was damage observed on the right rear corner and the rear window was smashed. Smashed glass littered the area behind the Sebring.
A white-coloured marked WPS Ford SUV was to the side of the Sebring, straddling the passing lane and the middle lane. There was damage to the front left corner. Airbags had been deployed.
Both vehicles were pointing northbound.
Figure 1 - The front of the WPS Ford SUV and Chrysler Sebring.
Figure 2 - The rear of the WPS Ford SUV and Chrysler Sebring.
The weather was clear and lane markings were clearly visible.
SIU forensic investigators documented the scene with Total Station equipment and photography.
Scene Diagram
Forensic Evidence
WPS Vehicle Global Positioning System (GPS) Data
WPS provided GPS data for the WPS vehicle operated by the SO on September 13, 2021 from 9:45 to 10:15 a.m.- At 9:53:18 a.m., the vehicle is parked in the 1900 Block of Provincial Avenue at a business premise
- At 9:53:28 a.m., the vehicle is mobile northbound on Provincial Avenue. Provincial Avenue is a two-lane road with a 60 km/h speed limit that travels through a mostly retail/industrial area. It is known that the SO is responding to a priority call for a motor vehicle collision with injuries. Provincial Avenue turns into Division Road and becomes four lanes wide. The SO reaches a high speed of 103 km/h for a short period on Division Road. Division Road in turn becomes Howard Avenue and increases to six lanes with turning lanes. The speed limit remains at 60 km/h with the SO travelling at speeds between 33 and 76 km/h before entering onto the E.C. Row Expressway.
- At 9:56:58 a.m., the SO travels westbound on the four to six lane divided expressway at speeds up to 140 km/h in the posted 100 km/h area.
- At 9:58:38 a.m., the SO exits the E.C. Row Expressway at Huron Church Road and travels northbound. Huron Church Road is six lanes wide with a solid median dividing north and south traffic. The speed limit is posted as 60 km/h.
- At 9:58:58 a.m., the SO approaches Industrial Drive at a speed of 86 km/h. [It is known from the review of the City of Windsor traffic management camera at this intersection that the traffic light was green for north/south traffic.]
- At 9:59:08 a.m., the SO continues north at a speed of 85 km/h.
- At 9:59:18 a.m., the SO continues north at a speed of 77 km/h.
- At 9:59:28 a.m., the SO’s vehicle is stopped in front of 1980 Huron Church Road (known to have been the location of the collision with a vehicle operated by the CW).
Crash Data Retrieval (CDR) Report
The WPS provided the SIU the Bosch CDR data associated with the SO’s 2020 Ford police vehicle.The data indicated that at about five seconds prior to the collision, the SO travelled at about 77 km/h. The SO’s foot was on the accelerator pedal.
From about five seconds prior to the collision to about one second prior to the collision, with the accelerator pedal lightly depressed, the SO’s speed increased from about 77 km/h to 79 km/h.
At about one second prior to the collision, the SO removed his foot from the accelerator pedal. The police vehicle continued at about 79 km/h.
Just under one second prior to the collision, the SO steered to his right.
At about one-half second prior to the collision, the SO depressed the brake pedal. The police vehicle slowed from about 79 km/h to about 59 km/h.
The SO had the brake pedal depressed and the steering wheel turned to the right at impact.
The SO was not wearing his seatbelt when the collision occurred.
Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained video records of relevance, as set out below.Huron Church Road Closed-circuit Television (CCTV) Footage
At 9:59:14 a.m., a blue tractor and flatbed trailer combination carrying yellow construction equipment can be seen northbound in the curb lane (lane #3) of Huron Church Road. A white Ford pickup truck is in the centre lane (lane #2). A red car [known to have been driven by the CW] can be seen in the median lane (lane #1) one car length ahead of the pickup truck.At 9:59:16 a.m., the red vehicle of the CW begins to slow down and the two trucks begin to overtake her. A vehicle can be seen in lane #1 northbound closing the distance quickly to the CW’s vehicle [known to have been the WPS vehicle operated by the SO] with roof lights activated.
At 9:59:17 a.m., the CW’s vehicle comes to an abrupt stop in lane #1 with the SO’s vehicle approximately 30 to 45 metres to the south. The pickup truck and blue tractor trailer continue northbound. The WPS vehicle operated by WO #2 can be seen with emergency lights activated following the SO.
At 9:59:18 a.m., the SO attempts to move from lane #1 to lane #2 but collides with the passenger side rear of the CW’s vehicle with the driver’s side front corner of his vehicle. WO #2’s vehicle can be seen braking and then turning out to the right toward lane #2 to avoid the collision. There are two impacts visible between the CW’s vehicle and the centre median and with the SO’s vehicle before both vehicles come to rest.
At 9:59:21 a.m., WO #2 stops his vehicle in lane #3 after avoiding the collision.
At 9:59:47 a.m., WO #3 arrives at the collision scene.
The roads can be seen to be clear and dry. Traffic volumes appears to be light to medium.
A 60 km/h speed sign can be seen just north of the collision scene for southbound traffic.
City of Windsor Traffic Control Camera Video
At 9:58:38 a.m., a blue tractor trailer cab pulling a flat bed trailer with three yellow construction vehicles on the trailer approaches the green traffic light at Industrial Drive, northbound on Huron Church Road (truck is also seen in the CCTV video described above) in the curb lane (lane #3). A white pickup truck is beside the tractor trailer in the centre lane (lane #2) and a red vehicle [known to be operated by the CW] is in the far-left lane (lane #1).At 9:58:59 a.m., a white Ford Explorer with roof lights on [known to be the WPS operated by the SO] is northbound in lane #1 approaching the green light for northbound traffic.
At 9:59:01 a.m., a second WPS Ford Explorer with roof lights activated is seen northbound in lane #1 [known to be operated by WO #2] following the SO.
At 9:59:32 a.m., a white Dodge Charger WPS vehicle [known to be operated by WO #3] is observed northbound in lane #1.
The road conditions appear dry and good, and the weather is clear and sunny.
911 Calls
WPS provided copies of all 911 the recordings for the initial collision police officers were dispatched to attend.- At 9:51:20 a.m., male caller advises that there has been a motor vehicle collision in the 1800 block of Northway Avenue. A vehicle has driven into a field.
- At 9:52:06 a.m., a female caller advises of a motor vehicle collision on Northway Avenue. Two vehicles have collided, and one driver is trapped in his vehicle and not responding.
WPS Communications Recordings
WPS dispatch request WO #2 and units to respond to a motor vehicle collision with injuries at Quebec Street and Northway Avenue.WO #2, WO #3 and the SO acknowledge that they are responding.
There is an update indicating that a party is trapped in the vehicle. Windsor Fire and EMS are requested to respond.
WO #2 reports that the SO has been involved in a collision, and sirens can be heard in the background. WO #2 requests EMS to their location. A request is made for more members for traffic control.
WO #2 updates that a female has an injury to her nose.
WO #2 updates that another EMS will be needed for the SO as he has a scrape to his forehead.
WO #3 requests that other members be sent to the collision on Northway Avenue.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the WPS:- Event Chronology (x2);
- Witness Statements of the Complainant and the CW;
- Computer-assisted Dispatch Records (x2);
- CDR Report;
- GPS data for the SO’s vehicle;
- Communications recordings; and
- Notes of WO #3
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Medical Records – the Complainant– Windsor Regional Hospital; and
- Video Footage from the City of Windsor and a business of Huron Church Road.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant, a civilian eyewitness, and a video recording of the incident. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the morning of September 13, 2021, the Complainant was a passenger in a vehicle travelling north on Huron Church Road. The CW was driving the vehicle. While in the passing lane north of Industrial Drive, a convoy of three WPS cruisers, their emergency equipment activated, approached them from behind. A short distance north of Kenora Street, having seen a police cruiser behind her, the CW slowed and then stopped her vehicle in the passing lane. The cruiser collided with the rear of her vehicle, pushing it into the centre median curb.
The SO was operating the cruiser involved in the collision. He and two other officers, each in their own vehicles, were responding at the time to an emergency call for assistance involving a motor vehicle accident. The officer noticed the CW’s vehicle slow and stop in front of him, and unsuccessfully tried to avoid a collision by veering into the centre lane. The driver’s front side of the SO’s cruiser struck the passenger rear side of the CW’s vehicle.
The Complainant was taken to hospital from the scene and diagnosed with having suffered a broken nose and fractured right wrist in the collision. The SO sustained injury as well, reportedly, a brain bleed.
In the morning of September 13, 2021, the Complainant was a passenger in a vehicle travelling north on Huron Church Road. The CW was driving the vehicle. While in the passing lane north of Industrial Drive, a convoy of three WPS cruisers, their emergency equipment activated, approached them from behind. A short distance north of Kenora Street, having seen a police cruiser behind her, the CW slowed and then stopped her vehicle in the passing lane. The cruiser collided with the rear of her vehicle, pushing it into the centre median curb.
The SO was operating the cruiser involved in the collision. He and two other officers, each in their own vehicles, were responding at the time to an emergency call for assistance involving a motor vehicle accident. The officer noticed the CW’s vehicle slow and stop in front of him, and unsuccessfully tried to avoid a collision by veering into the centre lane. The driver’s front side of the SO’s cruiser struck the passenger rear side of the CW’s vehicle.
The Complainant was taken to hospital from the scene and diagnosed with having suffered a broken nose and fractured right wrist in the collision. The SO sustained injury as well, reportedly, a brain bleed.
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
The Complainant suffered serious injuries in a motor vehicle collision with a WPS cruiser on September 13, 2021. The driver of the cruiser – 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 premised, in part, on conduct 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 question is whether the SO caused or contributed to the collision by way of a want of care that was sufficiently egregious to attract criminal sanction. In my view, he did not.
The evidence does not establish that the SO failed markedly in his duty of care to other users of the roadway, including the Complainant. The officer was travelling over the speed limit while northbound on Huron Church Road, but only moderately so and for a legitimate purpose. He had been dispatched to a motor vehicle accident involving reported injuries, and time was of the essence. The SO also had his lights and siren on, giving those around him fair notice of his presence on the road. Nor does it appear that the officer was so close to the CW’s vehicle that an impact was inevitable with any kind of deceleration on her part. While it was predictable that the CW would bring her vehicle to a stop when approached by an emergency vehicle, it was less foreseeable that she would bring her vehicle to a sudden stop while the SO was only a short distance behind her. When she did that, despite the SO’s efforts to avoid a collision, the impact was largely unavoidable.
In the result, as I am unable to reasonably conclude on the aforementioned-record that the SO transgressed the limits of care prescribed by the criminal law, there are no grounds for proceeding with charges in this case. The file is closed.
Date: January 11, 2022
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 premised, in part, on conduct 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 question is whether the SO caused or contributed to the collision by way of a want of care that was sufficiently egregious to attract criminal sanction. In my view, he did not.
The evidence does not establish that the SO failed markedly in his duty of care to other users of the roadway, including the Complainant. The officer was travelling over the speed limit while northbound on Huron Church Road, but only moderately so and for a legitimate purpose. He had been dispatched to a motor vehicle accident involving reported injuries, and time was of the essence. The SO also had his lights and siren on, giving those around him fair notice of his presence on the road. Nor does it appear that the officer was so close to the CW’s vehicle that an impact was inevitable with any kind of deceleration on her part. While it was predictable that the CW would bring her vehicle to a stop when approached by an emergency vehicle, it was less foreseeable that she would bring her vehicle to a sudden stop while the SO was only a short distance behind her. When she did that, despite the SO’s efforts to avoid a collision, the impact was largely unavoidable.
In the result, as I am unable to reasonably conclude on the aforementioned-record that the SO transgressed the limits of care prescribed by the criminal law, there are no grounds for proceeding with charges in this case. The file is closed.
Date: January 11, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
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.