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 the serious injury a 26-year-old man (the “Complainant”) suffered.

Notification of the SIU

On October 26, 2021, at 10:45 p.m., the Ottawa Police Service (OPS) notified the SIU of an injury to the Complainant.

OPS advised that at 8:30 p.m. of the same date, an OPS police officer was responding to an armed robbery at the Shoppers Drug Mart at 1642 Merivale Road, Nepean. As the police officer was entering the mall, his police cruiser struck the Complainant. The Complainant was taken to the Ottawa Civic Hospital (OCH) and diagnosed with a brain bleed. The scene was secured, and video evidence was reportedly available at the mall.

The Team

Date and time team dispatched: 10/26/2021 at 11:29 p.m.

Date and time SIU arrived on scene: 10/27/2021 at 12:16 a.m.

Number of SIU Investigators assigned: 3

The Scene

On October 27, 2021, at 2:56 a.m., a SIU Forensic Investigator attended the Merivale Mall. The scene was protected by OPS police officers and involved a driving lane in a parking lot with a curb and sidewalk along the edge. This area was near a marked pedestrian crossing and stop line leading to a set of mall doors immediately north of Shoppers Drug Mart.

A marked OPS police vehicle faced south parked between the crossing and the doors to Shoppers, against the curb. The police vehicle was a white Ford Explorer, 4-door SUV. The SUV police vehicle had obvious damage to the front hood and left side of the windshield. There were slight scuffs along the side of the left fender, a small ripple on the front left side of the hood, a broken windshield - left side near the bottom, and a broken spotlight on the left A-pillar. Debris from the police vehicle’s spotlight was scattered beside and to the left front of the police vehicle. The windshield wipers on the police vehicle were stopped partially up on the windshield.

The scene and police vehicle were photographed, and a short video was recorded.


Figure 1 – The scene


Figure 2 – Front left corner of the SO’s police vehicle

Forensic Evidence

Global Positioning System (GPS) Data for the SO’s OPS Vehicle

According to GPS data associated with the SO’s cruiser at the time of the events in question, on October 26, 2021, at 8:40 p.m., the SO drove an OPS police vehicle - a white, fully marked Ford Explorer SUV, eastbound on Baseline Road. The SO’s highest speed on Baseline Road was 121.6 km/h in a 60 km/h zone at 8:40 p.m.

Just before the intersection of Baseline Road and Merivale Road, the SO travelled at 51.1 km/h. The SO turned right onto Merivale Road and travelled southbound to the Merivale Mall entrance. This was a commercial shopping area and the roads were well marked and illuminated, with a speed limit of 60 km/h. The SO continued to drive southbound on Merivale Road, at one point reaching a top speed of 99.8 km/h in a 60 km/h zone at 8:41 p.m. Just before the entrance to Merivale Mall, the SO slowed his police vehicle.

In the parking lot, at 8:42 p.m., he travelled at 22.5 km/h. Shortly thereafter, the police vehicle was stopped on the roadway of the mall.

Video/Audio/Photographic Evidence [1]

Review of Closed-circuit Television (CCTV) Footage-Merivale Mall Security

CCTV video footage was obtained from the Merivale Mall on October 27, 2021. The video was 15 minutes and 50 seconds in duration. The footage was of October 26, 2021.

The video depicted the parking lot, a sidewalk and some businesses in the background across Merivale Road. The area was illuminated with lamp posts in various positions throughout the parking lot. The pavement of the parking lot was wet as it had rained.

At 8:42:18 p.m., the Complainant was seen to walk through the parking lot westbound, towards the Shoppers Drug Mart. He wore dark clothing and dark shoes, and walked with his hands in his jacket pocket. A fully marked OPS SUV (operated by WO #1) came into view from north to south at 8:42:39 p.m., along the front of the buildings. The Complainant walked westbound across the main driveway, north of the crosswalk. WO #1’s SUV drove south out of camera view.

At 8:42:45 p.m., the Complainant walked out of camera view, and the headlights of a vehicle, later found to be a fully marked OPS SUV operated by the SO, could been seen to drive south into camera view from the north. The Complainant was seen to be thrown from the front left side of the police vehicle.

At 8:42:48 p.m., the SO’s police vehicle immediately stopped on the south side of the crosswalk and the officer exited his police vehicle. The Complainant’s body could not be seen. WO #2 walked into camera view from the south.

Neither WO #1 nor the SO had their emergency lights activated as they entered the view of the camera.

There were numerous cars parked in the parking lot at the time of the incident and some civilians could be seen watching the police officers tend to the Complainant.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and three civilian eyewitnesses. The investigation was also assisted by video recordings from a security camera that captured the incident in parts, and GPS data associated with the speed and directionality of the SO’s cruiser.

At about 8:40 p.m. of October 26, 2021, the SO, operating a marked police SUV, was in the parking lot of the Merivale Mall. He had travelled to the area with other officers following a call to police from the Shoppers Drug Mart at the mall about a robbery in progress. The suspect was reportedly demanding drugs and had indicated he was in possession of a gun. The SO drove south down the access road east of the mall businesses towards the Shoppers Drug Mart.

At the same time, the Complainant was walking west in the parking lot approaching the access road, just north of the crosswalk in front of the entrance to Planet Fitness, north of the Shoppers Drug Mart. He crossed the single northbound lane of the crosswalk and was entering onto the southbound lane when he collided with the front driver’s side of the SO’s SUV.

The impact sent the Complainant southward and airborne a short distance. He came to rest by the rear driver’s side of the SO’s SUV, which the officer had brought to a stop quickly after the collision just south of the crosswalk.

The SO exited his vehicle to render assistance to the Complainant.

Paramedics attended and transported the Complainant to hospital where he was diagnosed with internal head injuries.

Section 320.13 (1) Criminal Code – Dangerous operation causing bodily harm

The Complainant was seriously injured in a motor vehicle collision in Ottawa on October 26, 2021. As he had been struck by an OPS cruiser, the SIU was notified and initiated an investigation. The SO was identified as a subject official. The investigation is now concluded. 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 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 in which the SO operated his cruiser, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision between the officer’s vehicle and the Complainant. In my view, there was not.

The SO was in the lawful discharge of his duty as he travelled to the site of the collision. He was responding to a high priority call at the Shoppers Drug Mart in Merivale Mall involving a reported armed robbery in progress.

As for the officer’s driving in the parking lot, I am unable to reasonably conclude that the SO failed to comport himself with due care and regard for public safety. If the officer drove somewhat in excess of what might be considered reasonable in a parking lot in ordinary circumstances (22.5 km/h), these were not ordinary circumstances - the SO was responding to a serious call for service in which speed was of the essence. The fact that the SO also did not have his emergency lights activated in the parking lot – limiting the notice pedestrians and motorists in the vicinity had of his presence – is also mitigated by the nature of the call for service; the responding officers would not have wanted to tip off a possible suspect in the Shoppers Drug Mart of their arrival. It should also be noted that the Complainant crossed the access road north of the crosswalk that was designated for that purpose.

It remains unclear at the end of the investigation why neither the SO nor the Complainant appear to have taken any steps to avoid the collision. Be that as it may, the most that may be said about the officer’s apparent failure to detect the Complainant and alter his driving to prevent an impact is that it amounted to a momentary lapse of attention. This, as the case law makes clear, is not enough to 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: February 23, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit