Director's Report Details

SIU Director’s Report - Case # 21-OVD-326

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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.

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. 
Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 
  •  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 death of a 51-year-old woman (the “Complainant”).

The Investigation

Notification of the SIU

On September 29, 2021, at 10:32 a.m., the Hamilton Police Service (HPS) notified the SIU of a fatality. The HPS advised that just after 9:00 a.m., on September 29, 2021, a HPS officer was flagged down regarding a minor vehicle collision at Gage Avenue and Cannon Street. A person pointed out that one of the vehicles was fleeing the scene westbound through a red light. The HPS indicated that the officers did not pursue, but the fleeing vehicle collided with another vehicle at Balsam Avenue and Maplewood Avenue. The driver of the fleeing vehicle (now known to have been stolen in Sarnia) had fled the scene on foot. The other driver was deceased at the scene.

The Team

Date and time team dispatched: 09/29/2021 at 11:28 a.m.

Date and time SIU arrived on scene: 09/29/2021 at 12:09 p.m.

Number of SIU Investigators assigned: 4
 
Number of SIU Forensic Investigators assigned: 2

Affected Person (aka “Complainant”):

51-year-old female, deceased

Civilian Witnesses

CW Interviewed

The civilian witness was interviewed on October 1, 2021.

Subject Officials

SO Interviewed, and notes received and reviewed

The subject official was interviewed on November 25, 2021.

Witness Officials

WO Interviewed

The witness official was interviewed on November 15, 2021.
 

Evidence

The Scene

On September 29, 2021, SIU forensic investigators arrived at Maplewood Avenue and Balsam Avenue South. A collision that had occurred at that intersection was being investigated by members of HPS.

The information provided to the SIU by the HPS was that there had been a minor collision between two civilian vehicles [1] at King Street and Gage Avenue, and that the driver of one of the vehicles had fled. The fleeing vehicle was subsequently involved in a collision with another vehicle at the intersection of Maplewood Avenue and Balsam Avenue South, resulting in the death of the driver of the third vehicle.

Forensic Evidence

The SIU requested, received and analyzed the Automatic Vehicle Locator (AVL)/Global Positioning System (GPS) data provided by the HPS from the police vehicle driven by the SO, on September 29, 2021, between about 9:09 and 9:10 a.m. The following is a summary of the pertinent data:
  • At about 9:09 a.m., the SO, westbound on King Street East, turned right to travel northbound on Gage Avenue North. Per witness information, the officer was known to have stopped and spoken briefly to the CW, whose vehicle had been struck by a pickup truck. The officer then drove northbound on Gage Avenue North between about 11 and 13 km/h for a distance of about 100 metres to Highland Avenue. He turned right onto eastbound Highland Avenue and drove about 160 metres, through the intersection of Fairview Avenue (no control signals for Highland Avenue; stop sign for traffic on Fairview Avenue), to East Bend Avenue North, where there was a stop sign.
  • At about 9:10 a.m., the SO’s speed was captured at 34 km/h on Highland Avenue about halfway between Fairview Avenue and East Bend Avenue North. Per Google Maps, as the speed limit did not appear to be posted in that area, the default speed limit would have been 50 km/h. There was a stop sign requiring eastbound traffic on Highland Avenue to stop at East Bend Avenue. The AVL/GPS data did not assist in determining if the SO had stopped. The SO turned right onto southbound East Bend Avenue North and travelled about 200 metres with his speed being captured about halfway down to King Street East at 63 km/h, again in what would appear to have been an area governed by a default speed limit of 50 km/h. At King Street East, where there was a stop sign requiring the SO to stop, he slowed sufficiently to have stopped, and then turned right and travelled westbound for about 160 metres back to Gage Avenue North. His speed was captured at about 56 km/h on King Street East. At Gage Avenue North, the SO turned right a second time. About 66 seconds after he had first turned onto Gage Avenue North from King Street East and spoken to the CW, the SO had returned to the same spot.
  • The SO’s maximum recorded speed during the 66 seconds it took him to drive northbound on Gage Avenue North, eastbound on Highland Avenue, southbound on East Bend Avenue, and westbound on King Street East, was 63 km/h. He had travelled a distance of about 670 metres, which calculated to an average speed of about 40 km/h.

Video/Audio/Photographic Evidence [2]

The HPS provided the SIU with audio files from the Communications Centre in relation to the traffic stop initiated by the SO of a black pickup truck on September 29, 2021. The files were not time or date stamped.

The following is a summary:

Dispatch Audio

At about 8:58 a.m., the SO and WO were dispatched to assist another police officer for a radio call involving a reportedly paranoid male armed with an axe on Cavell Avenue.
  • At about 9:05 a.m., a police officer arrived in the area of the radio call and said she would wait for the SO and WO.
  • At about 9:10 a.m., the SO said to the dispatcher in a single transmission, which was about 15 seconds in duration, “Unrelated control…[licence plate redacted]…fleeing from me…hit and run…it’s going to be unrelated…black pickup truck…one male driver with a hat…was pursuing…not anymore…he’s gone.” The dispatcher asked for the SO’s location and he said the pickup truck had gone westbound on King Street East west of Gage Avenue North and turned left on the first side street [now known to be Balsam Avenue South, the second side street]. The officer added, “I’m not following.” The SO clarified that the pickup truck had struck a civilian vehicle [now known to be a blue Toyota driven by the CW] and that the CW was on the phone with 911;
  • At about 9:12 a.m., the first police officer on the Cavell Avenue radio call told the dispatcher the situation there was under control and the person did not have a weapon at the moment.
  • At about 9:16 a.m., another police officer was requested to switch radio channels to assist at a collision at Balsam Avenue South and Maplewood Avenue.

King and Gage – Fail to Remain

In a six-minute long 911 call from the CW, she reported that a black pickup truck had struck her vehicle and had fled. The CW said she had tried to stop the police, but they would not help. She provided the licence plate of the pickup truck and a description of it.

Maplewood and Balsam 911 Calls

There were five audio files from separate callers to 911 reporting a collision at Balsam Avenue South and Maplewood Avenue. All callers requested police and ambulance services. It became apparent that one of the motorists involved in the collision – the Complainant - required extrication. Fire services were requested.

All callers from the area of Balsam Avenue South and Maplewood Avenue reported the driver of the pickup truck having fled the scene.

One caller said that she witnessed the pickup truck having raced past her house travelling southbound from Main Street East.

All but one of the 911 calls ended or were disconnected prior to the arrival of any emergency services.

At about five minutes into one of the calls, the caller reported hearing a siren approaching and then about another minute later reported a fire truck on scene. It was clear that no other emergency services, including the police, were on scene prior to the fire truck. It was apparent from listening to all the 911 calls that the fire truck was the first police, ambulance, or fire service vehicle on scene, and from the information provided by the 911 callers it was apparent the black pickup truck was not being pursued by the SO, or any other police vehicle, when it collided with the Complainant’s vehicle.

Summary of Video Canvass

The HPS provided the SIU with copies of surveillance videos obtained during their canvass of the area in relation to this incident. The following are summaries of the salient portions of the videos.

Business at Gage Avenue South
  • At about 9:06:00 a.m., a black pickup truck, which had just been involved in a collision with the CW’s vehicle, travelled westbound on King Street East and pulled up to the intersection at Gage Avenue North/South in the far right lane. The collision itself was not captured on the footage. King Street East was one way. The traffic signal light was not visible but the traffic on Gage Avenue South/North started to move as if the light had just changed to green.
  • At about 9:06:11 a.m., the pickup truck waited a few seconds for traffic and then slowly turned right from King Street East to Gage Avenue North, travelling out of view.
  • At about 9:06:16 a.m., a vehicle consistent in appearance with the CW’s vehicle followed the pickup truck and made the same turn, travelling out of view.
  • At about 9:07:09 a.m., a marked HPS SUV police vehicle travelling westbound on King Street East in the far right lane, slowed, and made the same turn onto Gage Avenue North, travelling out of view. The police officer operating this vehicle did not appear to have any involvement in the interaction under investigation.
  • At about 9:07:46 a.m., a HPS SUV [now known to be driven by the SO] travelling westbound on King Street East, turned right onto Gage Avenue North and travelled out of view. The emergency lights did not appear to be activated.
  • At about 9:07:49 a.m., a HPS SUV [now known to be driven by the WO] followed the SO and turned right, travelling out of view.
  • At about 9:08:40 a.m., the pickup truck travelled westbound on King Street East in the far left lane. It travelled at a much higher rate of speed than the other traffic. The truck travelled westbound straight through the Gage Avenue intersection. The pickup truck was seen to continue westbound, at a high rate of speed, in the far left lane past the intersection for a short distance, travelling out of view. It was not followed by a police vehicle.
  • At about 9:08:50 a.m., the SO travelled westbound on King Street East in the far right lane. He approached the intersection in the same manner he had done about a minute earlier. The emergency lights did not appear to be activated. The SO turned right, back onto Gage Avenue North.
  • At about 9:08:55 a.m., the WO travelled westbound on King Street East and turned right onto Gage Avenue North a short distance behind the SO.

Property #1 at Balsam Avenue South
  • At about 9:11:23 a.m., a pickup truck travelled southbound on Balsam Avenue South at a high rate of speed on the northbound side of the road. [Based on time and distance information, it was calculated that the average rate of speed of the pickup truck was about 107 km/h.]
  • No police vehicle followed the pickup truck.

Property #2 at Balsam Avenue South
  • The roads were clear and dry. The weather was sunny.
  • A dark-coloured vehicle (perhaps a pickup truck) was parked against the west curb directly in front of the residence. An orange-coloured pickup truck was parked in the driveway. A female resident was sitting on her front porch looking at her phone.
  • At about 9:10:56 a.m., the resident looked up to her left (to the north) and followed, with her head, the pickup truck as it entered the view of the camera.
  • At about 9:10:57 a.m., the pickup travelled quickly southbound past the residence and went out of view. It travelled on the northbound side of the road as it passed the parked vehicle (see screen capture below).
  • At about 9:11:00 a.m., the resident briefly put her head back down towards her phone. She then suddenly looked back up to her right (towards Maplewood Avenue). She bolted out of her seat and ran down her driveway, into the street, and towards Maplewood Avenue with her phone in her hand. Other residents came outside. Many people ran towards Maplewood Avenue.
  • The pickup truck was not being followed by a police vehicle.
  • [Based on time and distance information, it was calculated that the average speed of the pickup truck was about 87 km/h as it passed in front of the property.]
  • At about 9:24:32 a.m., a fire truck with its emergency lights flashing travelled southbound towards Maplewood Avenue.
  • At about 9:25:43 a.m., an ambulance travelled southbound towards Maplewood Avenue.
  • At about 9:38:25 a.m., the first police vehicle to travel past the property after the pickup truck was a HPS SUV that was not driven by either the SO or WO. It travelled southbound and then came back northbound about 20 seconds later.

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the HPS between October 6, 2021 and November 25, 2021:
  • Canvass Forms;
  • General Report (x2);
  • GPS data;
  • Event Chronology;
  • Communication Recordings;
  • Notes of the SO and WO; and
  • Witness Statement (x11).

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:
  • Photographs from the CW; and
  • Video footage from cameras in the vicinity of the incident.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, and may be briefly summarized.

In the morning of September 29, 2021, the SO was travelling west in a marked cruiser on King Street East on his way to a priority call for service involving potential weapons. Travelling in tandem behind him was the WO.

As the officers came upon Gage Avenue, turning right to travel north on the roadway, they came upon two vehicles that had been involved in a collision. The driver of one of the vehicles, the CW, was standing outside her Toyota as the SO pulled alongside. The CW explained what had happened to her, and the SO told her he and his colleague were on their way to another matter, and that she should call 911.

The other vehicle involved in the collision – a black pickup being operated by a white male – was directly in front of the Toyota. It had started to slowly move north on Gage Avenue ahead of the officers as the SO and WO resumed their travel north. The SO decided at that point to stop the vehicle as it appeared to be leaving the scene of an accident. The officer, with the WO in tow, followed the truck as it turned right onto Highland Avenue, after which the SO activated his emergency lights.

The truck failed to stop for the police. Instead, it started to pick up speed as it turned right to travel south on East Bend Avenue North from Highland Avenue. The SO and WO continued to pursue the truck for a short period, but eventually discontinued their efforts at a point on East Bend Avenue North.

The SO and WO turned right from East Bend Avenue North onto King Street East to resume their travel to the original call for service, again turning right (north) onto Gage Avenue. By this time, the truck, which had also turned to travel west on King Street East from East Bend Avenue North, had made its way onto Balsam Avenue South, disappearing from view.

The truck continued south on Balsam Avenue at highway speeds. It entered the intersection of the roadway with Maplewood Avenue, and struck another vehicle. The Complainant, an occupant of that vehicle, was tragically killed in that collision.

Relevant Legislation

Section 320.13, Criminal Code – Dangerous operation causing death

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.

(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.

Section 219 and 220, Criminal Code -- Criminal negligence causing death

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

Analysis and Director's Decision

On September 29, 2021, the Complainant was involved in a motor vehicle collision that took her life. As the vehicle she was in was struck by a pickup truck that HPS police officers had briefly tried to stop moments before the collision, the SIU was notified and initiated an investigation. The SO was identified as the subject official. 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 death.

The offences that arise for consideration are dangerous driving causing death and criminal negligence causing death contrary to sections 320.13(3) and 220 of the Criminal Code, respectively. The former is predicated, 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. The latter is intended for more serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. Liability is not made out unless the impugned conduct constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the issue is whether there was any want of care by the SO, in the course of his engagement with the pickup truck, that contributed to the fatal collision and was sufficiently egregious to attract criminal sanction. In my view, there was not.

There is nothing to suggest any indiscretions on the part of the SO in the course of his very brief pursuit of the pickup truck along Highland Avenue and East Bend Avenue North. The officer was within his rights in trying to stop the vehicle after it was seen to be leaving the scene of an accident. Thereafter, the evidence indicates that the SO comported himself with due care and regard for the safety of the public around him. He travelled at moderate speeds with his emergency lights activated and without imperiling traffic in the vicinity. I am also satisfied that his decision to discontinue the pursuit was reasonable. By that point, the pickup truck had accelerated to dangerous speeds and it was clear that it was not going to stop for the police.

It is highly regrettable that the driver of the pickup truck did not alter his dangerous driving after the pursuit was called off. Rather, he continued his flight unabated for another kilometre or so, despite the lack of a police presence behind him, en route to the site of the collision.

For the foregoing reasons, it is clear that the SO did not transgress the limits of care prescribed by the criminal law. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: January 27, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The CW and an unidentified male in a black pickup truck. [Back to text]
  • 2) 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.