SIU Director’s Report - Case # 21-OVI-336
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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 a serious injury sustained by a 47-year-old man (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 a serious injury sustained by a 47-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On October 6, 2021 at 1:55 p.m., the Brantford Police Service (BPS) reported the following. On October 6, 2021 at 12:53 p.m., the Complainant was riding his bicycle in the area of Colborne Street and Echo Street in the City of Brantford. The Complainant was struck by a plainclothes police vehicle being driven by the Subject Official (SO). The Complainant was taken to the Brantford General Hospital where he was diagnosed with a compound fracture of an ankle.
The Team
Date and time team dispatched: 10/06/2021 at 2:13 p.m.Date and time SIU arrived on scene: 10/06/2021 at 4:30 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
47-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on October 6, 2021.
Civilian Witnesses
CW Not interviewed (Did not see incident)Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Not interviewed, but notes received and reviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on October 13, 2021.
Evidence
The Scene
The incident occurred at the intersection of Colborne Street and Echo Street. Colborne Street ran in an east and west direction. The incident area was designated as an eastbound one-way road. The road was paved with two eastbound lanes. Echo Street intersected and ran south from Colborne Street. The road was paved with one lane of travel in opposing directions; northbound traffic was controlled by a stop sign at Colborne Street.
There were two vehicles within the scene:
Dodge Grand Caravan
The vehicle was a BPS unmarked police vehicle. There were no markings or emergency lighting. The vehicle was orientated in a southeast direction. The vehicle had minimal collision damage to the front right bumper – scrapes and scuffing to the outer sidewall of the front right tire. There were fresh areas of scuffing on the front right fender and front right door.Electric modified bicycle
The bicycle was orientated in a southwest direction and on its right side. It was on the west side of Echo Street at the west curb and south of Colborne Street. The bicycle had scratches to the front left fork. Scratches were visible on the edge of the right handlebar. Scrapes were visible on the roadway leading to the bicycle from the southwest corner of the intersection. There was a small amount of blood under the bicycle.Scene Diagram
Video/Audio/Photographic Evidence [1]
BPS Radio Communications
The audio was sent in 53 segments, of a duration of no more than 30 seconds each, with the average lasting one to five seconds. The audio was date and time stamped. The first segment was stamped October 6, 2021, 12:52:21 p.m. until 1:11:57 p.m. It involved a call from an ambulance advising of a traffic collision at Colborne Street at Echo Street in Brantford. They requested police attendance. The SO requested an ambulance for a man [later identified as the Complainant]. The Complainant had a broken bone protruding from his right leg.
Closed-circuit Television (CCTV) Footage from Colborne Street
Camera 02- On October 6, 2021, at 12:50:30 p.m., the video started. The camera had a view of two eastbound lanes of travel on Colborne Street.
- The weather was clear and the roadway was dry.
- Designated street parking was available on either side of the two eastbound lanes on Colborne Street.
- At 12:51:27 p.m., a dark-coloured minivan [now known to be operated by the SO] travelled eastbound in the curb lane, and slowed down for stopped traffic ahead.
- At 12:51:36 p.m., as the SO accelerated, a cyclist [now known to be the Complainant] travelling in the same curb lane pushed forward.
- At 1:01:28 p.m., a marked BPS police vehicle [now known to be operated by WO #2 and WO #3] proceeded eastbound in the curb lane with its emergency lights activated.
- • At 1:10:59 p.m., the video ended.
Camera 04
- At 12:50:30 p.m., the video started. The camera had a view of the two eastbound lanes of travel on Colborne Street, facing Echo Street.
- At 12:51:31 p.m., the SO was travelling eastbound on Colborne Street in the curb lane.
- At 12:51:36 p.m., while the SO was in the process of making a right turn onto Echo Street, the Complainant collided with the front right pillar of the SO’s minivan.
- The SO’s turn signal did not appear to be activated.
- At 12:51:40 p.m., the Complainant moved clockwise and rested on the asphalt ground on his right leg.
- At 12:51:56 p.m., the SO exited his police vehicle and approached the Complainant, who was seated on the ground in the company of several bystanders.
- At 1:01:29 p.m., WO #2 and WO #3 parked their marked police vehicle behind the SO’s vehicle. Their emergency lights were activated.
- The SO approached WO #3 and they both walked in the direction of the Complainant. While the SO stood near the passenger door of his minivan, WO #3 tended to the Complainant.
- At 1:09:44 p.m., the Complainant was assisted off the ground by two responding paramedics to a stretcher.
- At 1:10:56 p.m., the video ended.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the BPS:- Event Chronology;
- BPS Communications;
- BPS Forensic Investigative Services Photos and Video;
- Notes of WOs; and
- Supplementary Report of WO #3.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Ambulance Call Report-Brantford Emergency Medical Services;
- Medical Record-Brant Community Healthcare; and
- CCTV from two addresses.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, and may briefly be summarized. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
At about 12:50 p.m. of October 6, 2021, the SO was operating an unmarked police minivan east on Colborne Street toward Echo Street. Travelling in the curb lane, the officer had momentarily slowed for traffic ahead of him before picking up his speed and attempting a right-hand turn onto Echo Street. As he entered into his turn, the passenger side of the minivan struck the Complainant.
The Complainant had been operating a motor-assisted bicycle east on Colborne Street. Just before Echo Street, the Complainant attempted to pass the SO’s minivan along its passenger side when he was struck by the vehicle turning right in front of him. The impact sent the Complainant tumbling from his bicycle.
The SO stopped his vehicle mid-way through his turn, exited and went to render assistance to the Complainant, as did some passersby.
An ambulance arrived at the scene and transported the Complainant to hospital. He was diagnosed with a fractured tibia.
At about 12:50 p.m. of October 6, 2021, the SO was operating an unmarked police minivan east on Colborne Street toward Echo Street. Travelling in the curb lane, the officer had momentarily slowed for traffic ahead of him before picking up his speed and attempting a right-hand turn onto Echo Street. As he entered into his turn, the passenger side of the minivan struck the Complainant.
The Complainant had been operating a motor-assisted bicycle east on Colborne Street. Just before Echo Street, the Complainant attempted to pass the SO’s minivan along its passenger side when he was struck by the vehicle turning right in front of him. The impact sent the Complainant tumbling from his bicycle.
The SO stopped his vehicle mid-way through his turn, exited and went to render assistance to the Complainant, as did some passersby.
An ambulance arrived at the scene and transported the Complainant to hospital. He was diagnosed with a fractured tibia.
Relevant Legislation
Section 320.13 (1) 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 a serious injury in a motor vehicle collision with a BPS vehicle on October 6, 2021. The driver of the vehicle – the SO – was identified as a 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. Liability for 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 exercised in the circumstances. In the instant case, the issue is whether there was a want of care in the manner of the SO’s driving that caused or contributed to the collision and was sufficiently egregious to attract criminal sanction. In my view, there was not.
It would appear that the SO is largely responsible for the collision that occurred with the Complainant’s motor-assisted bicycle. The video footage of the incident establishes that the officer failed to signal his turn. Had he done so, it might very well have been that the Complainant would have adjusted his behaviour to avoid colliding with the minivan. It is also reasonable to infer that the SO did not maintain a proper lookout as he approached the turn onto Echo Street. The very fact of the collision suggests as much.
That said, I am satisfied that the officer’s want of care is fairly characterized as a momentary lapse of attention. There is no indication in the evidence, for example, of any other indicia of unsafe driving on the part of the SO as he approached the Echo Street intersection. While perhaps sufficient to ground civil liability or liability under the Highway Traffic Act, neglectful conduct of this nature, the case law makes clear, is not enough to give rise to criminal liability: R. v. Roy, [2012] 2 SCR 60; R. v. Beatty, [2008] 1 SCR 49.
In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: February 3, 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. Liability for 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 exercised in the circumstances. In the instant case, the issue is whether there was a want of care in the manner of the SO’s driving that caused or contributed to the collision and was sufficiently egregious to attract criminal sanction. In my view, there was not.
It would appear that the SO is largely responsible for the collision that occurred with the Complainant’s motor-assisted bicycle. The video footage of the incident establishes that the officer failed to signal his turn. Had he done so, it might very well have been that the Complainant would have adjusted his behaviour to avoid colliding with the minivan. It is also reasonable to infer that the SO did not maintain a proper lookout as he approached the turn onto Echo Street. The very fact of the collision suggests as much.
That said, I am satisfied that the officer’s want of care is fairly characterized as a momentary lapse of attention. There is no indication in the evidence, for example, of any other indicia of unsafe driving on the part of the SO as he approached the Echo Street intersection. While perhaps sufficient to ground civil liability or liability under the Highway Traffic Act, neglectful conduct of this nature, the case law makes clear, is not enough to give rise to criminal liability: R. v. Roy, [2012] 2 SCR 60; R. v. Beatty, [2008] 1 SCR 49.
In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: February 3, 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.