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 71-year-old man (the “Complainant”) suffered.

Notification of the SIU

On November 24, 2021, at 10:32 p.m., the Ontario Provincial Police (OPP) reported a collision involving a police vehicle driven by the Subject Official (SO) and a pedestrian.

Reportedly, on November 24, 2021, at approximately 5:20 p.m., the SO was operating a marked cruiser on Low Street in Picton. He was stopped at the intersection of Low Street and Maitland Street. A pedestrian was crossing the street in front of the cruiser and was subsequently struck as the cruiser entered the intersection.

Emergency Medical Services (EMS) responded and transported the pedestrian to Prince Edward County Memorial Hospital (PECMH).

At approximately 10:00 p.m., it was determined that the pedestrian had suffered a broken arm. The OPP advised that the OPP never held the scene, as they had completed their investigation prior to the determination of the seriousness of the injury to the pedestrian.

The Team

Date and time team dispatched: 11/24/2021 at 11:31 p.m.

Date and time SIU arrived on scene: 11/25/2021 at 8:07 a.m.

Number of SIU Investigators assigned: 4

The Scene

The SIU was contacted by the OPP on November 24, 2021, at 10:32 p.m., approximately five hours and 12 minutes after the incident had occurred. In response, SIU forensic investigators attended on November 25, 2022, at 5:30 p.m. As investigators arrived at the intersection of Maitland and Low Streets, they noted it was a cross intersection, with Maitland Street oriented north-south, and Low Street oriented east-west. Both roadways were two-way traffic, and there were no painted lines on the paved surfaces. The roadways were lit with light poles; the lighting was adequate, but not very bright. There were stop signs controlling traffic on Low Street, with Maitland Street being a through-street. There was a concrete sidewalk on the west side of Maitland Street, and there was a light pole exactly at the northwest corner. There was also a water drain grate at the same location. The scene was photographed.


Figure 1 – Google Maps depiction of the intersection



Figure 2 – The intersection of Maitland and Low Streets


Figure 3 – Front right corner of the SO’s vehicle

Forensic Evidence

OPP Global Positioning System (GPS) Data

At the request of the SIU, the police service provided GPS data for the OPP vehicle operated by the SO on November 24, 2021, beginning at 4:50:09 a.m. and concluding at 10:00:00 p.m.

Beginning at about 5:08:30 p.m., the SO was stopped at Low Street and Maitland Street for one minute and 55 seconds.

At about 5:10:25 p.m., the SO’s patrol vehicle was recorded traveling at 14 km/h, after which the vehicle was recorded stationary for a period of time.

Video/Audio/Photographic Evidence [1]

The SO’s Vehicle – Photographs taken by the WO

The Complainant was impacted by the police cruiser driven by the SO and had to place his right hand on the hood of the police vehicle to afford protection from the vehicle. There were clear scuff marks on the right front of the vehicle between the headlight and the front grill where his body contacted the cruiser and removed existing dirt. The WO took the photos of the supporting evidence (where contact was made) while the police vehicle was parked at PECMH.


Figure 4 – Photograph taken by WO of the scuff marks found on the right front of the SO’s vehicle

OPP Communications Audio Recordings

The SIU requested and received the following communications recordings relating to the collision.

There was an in-car transmission commencing at 5:15 p.m. from the patrol vehicle operated by the SO, requesting that the WO call him on his cellular telephone.

The communications operator advised the SO that the Provincial Operations Centre was requesting the name and date of birth of the injured person, the Complainant. This information was provided by the SO.

A telephone call commenced at 5:19 p.m., where the WO advised communications that a new occurrence relating to the collision involving the SO would have to be generated. The WO then advised that he was heading to the hospital to see the SO.

The communications centre advised that the WO was assigned to the call as a supervisor and that they had no indication of injuries to the SO; however, the Complainant was injured. A sergeant advised the communications centre to relay the SO’s log-on information to the WO.

The communications centre was advised by a different sergeant that he had attended PECMH and that he would be relieving the WO on site. The WO advised that he would be contacting the SIU as the Complainant’s arm was broken.

The sergeant received a telephone call from the WO describing what the SO had told him transpired. The WO described that dirt had been scuffed on the front of the SO’s patrol vehicle where the Complainant had contacted the vehicle. The WO further indicated that the Complainant’s injury was consistent with the SIU mandate and that he had spoken to the Complainant personally.

The sergeant again contacted the communications centre with an update advising further information relayed from the WO that the Complainant had sustained a broken elbow and was awaiting X-rays.

Materials Obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP between December 1 and 13, 2021:

• Photographs taken by the WO;
• Communications Audio Recordings;
• Duty Roster-Shift Schedule;
• Event Chronology Report;
• GPS Data;
• Motor Vehicle Collision Report;
• Notes-the WO;
• Officer List;
• Computer-assisted Dispatch Details;
• Phone Details-the SO; and
• Instructions for Using Google Earth for Viewing KMZ Files.

Materials Obtained from Other Sources

The SIU received the following records from other sources between November 29, 2021, and December 13, 2021:

• PECMH medical records of the initial treatment and diagnosis of the Complainant; and
• Kingston Health Sciences Centre records regarding the follow-up surgery of the Complainant.

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

In the late afternoon of November 24, 2021, the Complainant was walking his dog south on the east side of Maitland Street when he came upon the roadway’s intersection with Low Street. He waited momentarily at the intersection for a marked police SUV, stopped facing east on Low Street at the Maitland Street stop sign, to clear the intersection. When the cruiser remained stopped, the Complainant decided to cross Low Street.

The SO was operating the police SUV. Having come to a stop at the stop sign, the officer used the opportunity to recover the remote control of his cruiser’s radar unit that had fallen below the centre console area, after which he accelerated into the intersection. The officer had not seen the Complainant crossing south in front of his path of travel as he entered the intersection and swerved to the left at the last second to avoid striking him.

The front passenger side of the cruiser collided with the Complainant, who had just about cleared the intersection when he was struck. The impact sent the Complainant tumbling to the ground, falling over the concrete curb at the southeast corner of the intersection.

The SO exited his vehicle to check on the Complainant. At the Complainant’s suggestion, he would eventually take the Complainant home to retrieve his health card before transporting him to hospital.

The Complainant was diagnosed with fractures of a rib and the upper left arm.

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

The Complainant was struck and seriously injured by an OPP cruiser in Prince Edward County on November 24, 2021. The SIU initiated an investigation and identified the driver of the cruiser – the SO – as the 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 and the Complainant’s injuries.

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 exercised in the circumstances. In the instant case, the issue is whether there was any want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.

To be clear, I am satisfied that the SO failed in his duty of care toward the Complainant. The Complainant had the right of way at the intersection, and it was incumbent on the SO to refrain from crossing the intersection until he could do so safely. How or why exactly the SO missed seeing the Complainant is unclear – the evidence suggests he may have been temporarily distracted by his efforts to retrieve something that had fallen by the centre console of his vehicle. The Complainant was, however, clearly there to be seen, and the fact that the SO failed to see him in time to avoid a collision suggests strongly that the officer was wanting in the operation of his motor vehicle at the intersection.

That said, the case law establishes that singular or momentary lapses of attention will generally be insufficient to ground criminal liability for dangerous driving: see R. v. Beatty [2008] 1 SCR 49; R. v. Roy [2012] 2 SCR 60. I am satisfied that the SO’s want of care is fairly characterized as momentary inattention to what was happening in front of his cruiser. There is nothing in the evidence, for example, to suggest careless driving in the moments preceding the collision. In the circumstances, while the officer’s indiscretions may give rise to civil liability or liability under the Highway Traffic Act, they do not constitute a marked departure from a reasonable standard of care.

For the foregoing reasons, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law in connection with the Complainant’s serious injuries. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: March 24, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit