Director's Report Details

SIU Director’s Report - Case # 21-OVI-427

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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 serious injuries of a 53-year-old woman (“Complainant #1”), a 55-year-old woman (“Complainant #2”) and a 35-year-old man (“Complainant #3”).

The Investigation

Notification of the SIU

On December 28, 2021, at 7:10 p.m., the Brantford Police Service (BPS) contacted the SIU and reported the following.

On December 28, 2021, at approximately 5:58 p.m., a BPS police officer had observed a vehicle on Wayne Gretzky Parkway travelling with no headlights on. The police officer activated his emergency lights and pulled the vehicle over. As the police officer exited his cruiser, the vehicle drove away. The police officer did not pursue the fleeing vehicle. The fleeing vehicle was involved in a collision a short distance away at the intersection of Grey Street and Wayne Gretzky Parkway. The female occupants in the fleeing vehicle suffered multiple fractures and were taken to hospital.

The Team

Date and time team dispatched: 12/28/2021 at 7:15 p.m.

Date and time SIU arrived on scene: 12/28/2021 at 9:02 p.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Number of SIU Collision Reconstructionists Assigned: 0

Affected Persons (aka “Complainants”):

Complainant #1 53-year-old female; interviewed; medical records obtained and reviewed
Complainant #2 55-year-old female; interviewed; medical records obtained and reviewed
Complainant #3 35-year-old male; interviewed; medical records obtained and reviewed

The Complainants were interviewed between December 29, 2021, and January 6, 2022.

Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed

The civilian witnesses were interviewed between December 28 and 31, 2021.

Subject Official (SO)

SO Declined interview, as is the subject official’s legal right; notes received and reviewed

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed

The witness officials were interviewed on January 12, 2022.

Evidence

The Scene

The incident took place in the intersection of Wayne Gretzky Parkway at Grey Street. Wayne Gretzky Parkway travelled in a north and south direction, and was a four-laned paved roadway with left turn lanes and a centre median at the intersection. Grey Street travelled in an east and west direction and intersected at Wayne Gretzky Parkway. Grey Street was a two-laned roadway with left turn lanes. The intersection was controlled with traffic signals. An area of impact had been identified in the northeast quadrant of the intersection. The Lexus operated by Complainant #1 had collided with the front passenger side of a Volkswagen.

There were three vehicles present within the confines of the scene, as follows:

Vehicle 1 – BPS Ford Explorer
The vehicle was a marked police cruiser displaying graphics adopted by the BPS. The vehicle was equipped with emergency lighting and siren. The vehicle was orientated in a northerly direction in the northeast quadrant of the intersection. There was no collision damage to the vehicle that would suggest contact with another vehicle.

Vehicle 2 – Lexus
The vehicle was orientated east at the northeast corner of the intersection off the roadway. There was heavy front-end collision damage to the vehicle.

Vehicle 3 – Volkswagen
The vehicle was orientated west in the northbound lanes of Wayne Gretzky Parkway north of the intersection. There was heavy front-end damage to the vehicle.


Figure 1 – Collision scene


Figure 2 – Lexus


Figure 3 – Volkswagen

Scene Diagram

Forensic Evidence

Automatic Vehicle Locator (AVL) / Global Positioning System (GPS) Data – the SO’s Cruiser

The SO travelled eastbound on Colborne Street before turning northbound onto Wayne Gretzky Parkway. The SO remained stopped approximately 160 metres north of Colborne Street for approximately one minute. The SO’s police cruiser subsequently moved northbound. He reached a top speed of 82 km/h and maintained an average speed of 49.5 km/h. The posted speed limit for the area was 60 km/h. There was one traffic control between the initial traffic stop and the collision scene. The colour of that traffic control light could not be ascertained.

The SO continued northbound on Wayne Gretzky Parkway until he reached Grey Street, the intersection at which the collision occurred. He arrived at the intersection at 5:59:00 p.m. [1]

Video/Audio/Photographic Evidence [2]

911 Call

  • At 5:58:13 p.m., an unidentified woman reported that she could see that a collision had occurred in the intersection of Grey Street and Wayne Gretzky Parkway. The collision involved two vehicles and one of the vehicles was on fire.

Police Radio Communications

  • At 5:56:51 p.m., an officer, believed to be the SO, reported that he was at Elgin and Grey.
  • At 5:56:59 p.m., the officer reported that a car had taken-off on him.
  • At 5:57:07 p.m., the dispatcher asked for a direction of travel.
  • At 5:57:19 p.m., the SO advised, “Northbound,” and then indicated that one of the vehicles was on fire.
  • At 6:00:46 p.m., the SO advised he had one person in custody.

Video Footage from Residence #1

The following is a summary of footage captured by an exterior residential camera.
  • It was dark outside; however, there was artificial lighting.
  • At 5:55:23 p.m., a white SUV travelled northbound in the curb lane on Wayne Gretzky Parkway. The SUV did not have its headlights or taillights activated.
  • The SUV was followed by a marked black police cruiser with its emergency lights activated.
  • At 5:55:30 p.m., the white SUV stopped, and the police cruiser stopped behind it, about one to two car lengths away.
  • At 5:55:55 p.m., the white SUV started to drive forward slowly and, at 5:56:06 p.m., exited the frame. The police cruiser remained where it was.
  • At 5:56:39 p.m., the police cruiser drove northbound out of view.
 

Video Footage from Residence #2

The following is a summary of footage captured by an exterior residential camera.
  • The weather was clear, it was dark outside, and the roads were dry.
  • At 5:57:12 p.m., a white SUV travelled northbound on Wayne Gretzky Parkway, and entered the right side of the frame. It appeared to be in the curb lane. At 5:57:14 p.m., it exited the left side of the frame quickly. It was believed the vehicle after the white SUV was the police cruiser operated by the SO - it was noted to be approximately seven seconds behind the SUV as the SUV appeared to be accelerating and creating more distance between them. The police cruiser did not have its emergency equipment activated and appeared to travel much slower than the SUV.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the BPS between January 3, 2022, and February 2, 2022:
  • Computer-assisted Dispatch Details;
  • AVL/GPS data associated with the SO’s cruiser;
  • 911 Call;
  • Radio Communications;
  • Interview-CW #2;
  • Interview-CW #4;
  • Interview-Complainant #3;
  • Video Footage from Residence #1 and Residence #2;
  • Motor Vehicle Collision Report;
  • Notes-Officer #1 (x3);
  • Notes-the SO;
  • Notes-WO #1; and
  • Notes-WO #2.

Materials Obtained from Other Sources

The SIU received the following records from other sources between January 5, 2022, and February 3, 2022:
  • Medical Record-Brant Community Healthcare – Complainant #3;
  • Medical Record-Hamilton Health Sciences Centre – Complainant #2; and
  • Medical Record-Hamilton Health Sciences Centre – Complainant #1.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, and may be summarized in short order. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

At about 6:00 p.m. of December 28, 2021, Complainant #3 was operating a Volkswagen south on Wayne Gretzky Parkway approaching Grey Street. As his intention was to travel east on Grey Street, Complainant #3 maneuvered into the left-turn lane and proceeded into the intersection on an advance green-arrow. Midway through his turn, his vehicle was struck by a Lexus SUV travelling north through the intersection at speed.

Behind the driver’s wheel of the Lexus was Complainant #1. Her passenger in the front seat was Complainant #2. Moments prior, with Complainant #2 driving, the Lexus had been pulled over south of Chatham Steet by a marked police SUV operated by the SO. The officer had observed the Lexus travelling without its headlights or rear lights activated, and decided to investigate the apparent traffic infraction. As the vehicles were stationary along the east curb of Wayne Gretzky Parkway, the officer running a check on the licence plate, Complainant #2 and Complainant #1 exited the Lexus and switched seats.

Following the switch, Complainant #1 began to accelerate north away from the cruiser, first slowly and then with increasing speed. By the time she reached Grey Street, about half-a-kilometre from where the vehicle had been stopped, Complainant #1 had reached a speed estimated by some witnesses to have been as high as 80 km/h. She entered the intersection on a red light without stopping, and struck the front of Complainant #3’s vehicle.

Complainant #3’s vehicle came to rest in the northbound lanes of Wayne Gretzky Parkway facing west north of the intersection. The Lexus SUV ended off the roadway in the northeast quadrant of the intersection.

Each of the three parties involved suffered fractures.

The SO arrived at the intersection within seconds of the impact. Having observed the Lexus drive off from the location of the traffic stop, the officer had initially attempted to catch-up following an initial pause, but quickly disengaged when he realized the Lexus would not stop. He observed the collision at the intersection as he was slowing to pull over, and continued northward to render assistance to the parties.

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.

Section 62 (1), Highway Traffic Act -- Lamps required on all motor vehicles except motorcycles

62 (1)  When on a highway at any time from one-half hour before sunset to one-half hour after sunrise and at any other time when, due to insufficient light or unfavourable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 150 metres or less, every motor vehicle other than a motorcycle shall carry three lighted lamps in a conspicuous position, one on each side of the front of the vehicle which shall display a white or amber light only, and one on the rear of the vehicle which shall display a red light only.

Analysis and Director's Decision

Complainant #1, Complainant #2 and Complainant #3 were seriously injured in a motor vehicle collision in Brantford on December 28, 2021. As one of the vehicles had been stopped by a police officer moments before the collision, the SIU was notified and initiated an investigation. The SO was identified 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 incident.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. Simple negligence in the operation of a motor vehicle is not enough to give rise to liability for the offence. Rather, what is required, in part, is 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 on the part of the SO in the manner in which he conducted himself, sufficiently egregious to attract criminal sanction, that contributed to the collision in question. In my view, there was not.

The SO was in the lawful discharge of his duty when he pulled over the Lexus in connection with an apparent Highway Traffic Act infraction. It was dark and the lights on the vehicle were not on, as they should have been pursuant to section 62(1) of the Highway Traffic Act.

Thereafter, there is nothing in the evidence to suggest that the SO failed to comport himself with due care and regard for public safety. The officer did reach a speed of 82 km/h, exceeding the 60 km/h speed limit in the area, but that was only for a brief period of time as he attempted but then quickly aborted any notion of a pursuit. During that time, there is no evidence to indicate that other users of the roadway were imperiled by the SO’s cruiser. Nor is there any reason to think that the officer unduly pushed or fueled Complainant #1’s reckless driving – he was a fair distance from the intersection at the time of the collision. On this record, it is apparent that Complainant #1, and Complainant #1 alone, is responsible for the series of events that culminated in the motor vehicle collision at the intersection.

In the result, as I am not satisfied that the SO transgressed the limits of care in his engagement with Complainant #2 and Complainant #1’s Lexus, there are no grounds for proceeding with charges against the officer. The file is closed.


Date: April 26, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) There was a discrepancy between the arrival time on the GPS vehicle data and the radio communications. [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.