SIU Director’s Report - Case # 22-PVI-149
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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.
- 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 a 24-year-old woman (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On June 6, 2022, at 8:53 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information. On June 6, 2022, at 1:15 a.m., the Subject Official (SO) was engaged in speed control enforcement with a ‘light detecting and ranging device’ (LIDAR) on the Queen Elizabeth Way (Queen Elizabeth Way), southbound at Mountain Road, Niagara Falls. A black vehicle drove through the LIDAR at 133 km/h in a 100 km/h zone. The SO attempted to stop the vehicle, and the vehicle stopped in the second live driving lane. The SO attempted to direct the vehicle to the shoulder, which it started to do before it fled at a high rate of speed out of sight. The SO pulled over to the shoulder and stopped. She then advised communications that a black vehicle had fled, and she was not pursuing.
A short time later, a 911 call indicated that there had been a single vehicle collision on the off-ramp of the Queen Elizabeth Way at Thorold Stone Road. The collision was approximately one kilometre from the SO’s location. The 911 caller indicated that there were two women standing near the vehicle, which was a black Lexus SUV.
Paramedics responded and the occupants of the Lexus, the Complainant and Civilian Witness (CW) #1, were transported to the Greater Niagara General Hospital (GNGH). CW #1 was not seriously injured. The Complainant had multiple fractures to her back and ribs. The Complainant was to be transferred to the Hamilton General Hospital.
The Complainant and CW #1 told Witness Official (WO) #1 and WO #2 that they had fled from the police prior to the collision.
The vehicle was registered to a person in Scarborough.
The Team
Date and time team dispatched: 0 6/06/2022 at 10:23 a.m.Date and time SIU arrived on scene: 06/06/2022 at 11:27 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
24-year-old female; interviewedThe Complainant was interviewed on June 15, 2022.
Civilian Witnesses
CW #1 Not Interviewed CW #2 Interviewed
The civilian witness was interviewed on June 8, 2022.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed between June 7 and 10, 2022.
Evidence
The Scene
The scene was located on the Thorold Stone Road off-ramp from southbound Queen Elizabeth Way, Niagara Falls.Video/Audio/Photographic Evidence [2]
Global Positioning System (GPS) Data for the SO’s Cruiser
The following is a summary of the pertinent information derived from the GPS data associated with the SO’s cruiser.At 1:12:16 a.m., the cruiser was stopped southbound, at the bottom of the ramp that led from Mountain Road, Niagara Falls, to the Queen Elizabeth Way, just before it began to accelerate southbound reaching a top speed of 122 km/h.
At 1:13:14 a.m., the cruiser was again at a stop about 1.45 kilometres north of the Thorold Stone Road off-ramp.
At 1:13:38 a.m., the cruiser was again southbound on Queen Elizabeth Way travelling at 121 km/h. It continued to accelerate reaching a top speed of 137 km/h before again coming to a stop at 1:14:04 a.m. The cruiser was about 560 metres north of the Thorold Stone Road off-ramp at this location.
At 1:25:03 a.m., the cruiser was again southbound on Queen Elizabeth Way travelling below the speed limit.
At 1:25:35 a.m., the cruiser was at a stop on the off-ramp to Thorold Stone Road.
Figure 1 – Google Earth image of SO’s route with added GPS data points
Police Communications Recordings
The following is a summary of the pertinent police communications recordings.On June 6, 2022, at approximately 1:13 a.m., the SO advised dispatch that she was involved in a ‘fail to stop’ incident. She was Fort Erie-bound (southwest) on the Queen Elizabeth Way at the Thorold Stone Road exit. She advised dispatch the vehicle that had failed to stop was a black vehicle [now known to be a Lexus]. It had stopped in a live lane of traffic but then fled when she pulled up beside it.
At 1:14 a.m., the SO was asked to call WO #4 at the Provincial Communications Centre. The SO spoke to WO #4 about the ‘fail to stop’. The SO explained that she had attempted to stop a Lexus going 133 km/h on the Queen Elizabeth Way, Fort Erie-bound. The SO was approximately 100 metres past the Mountain Road exit when she had attempted to stop it. The Lexus stopped in the second live lane of traffic. The SO opened her window and instructed the driver to pull over to the shoulder. The driver responded, “Yah okay sorry.” The Lexus started to pull over, and she followed when the Lexus then drove off. The SO subsequently pulled over and radioed dispatch to advise of the ‘fail to stop’, providing her mileage.
At 1:18 a.m., Emergency Medical Services (EMS) called dispatch to advise them that a citizen [now known to be CW #2] had reported a motor vehicle collision. The collision was off the exit ramp for Thorold Stone Road.
At 1:20 a.m., the SO called dispatch to see if she could attend the scene of the motor vehicle collision as she was 1.5 or 2 kilometres from the collision. The SO was told by WO #4 to stay put until he had assessed the situation.
At 1:22 a.m., WO #4 cleared the SO to attend the scene of the collision. WO #2 also attended the scene. There was a conversation between dispatch and WO #4, in which he indicated he had not yet spoken to the SO about distances, but he felt she did nothing wrong. The SO did not believe the ‘fail to stop’ and the motor vehicle collision involved the same vehicles. The two female passengers advised the SO that the driver was a woman and had fled on foot. [3]
A call was made to the NRPS to request the assistance of a canine unit.
WO #3 and WO #1 attended the scene and were instructed to attend the GNGH to await any medical updates on the Complainant and CW #1. The injuries reported were not life-threatening or life-altering. CW #1 had cuts and scrapes to her face and head, and the Complainant complained of back pain.
The canine unit lost the track at a point where a taxi picked up the driver.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between June 8 and 20, 2022:- Computer-assisted Dispatch (CAD) report;
- Ontario Police College Basic Constable Training Program 2015 - Student Evaluation – the SO;
- Police Orders - Suspect Apprehension Pursuits Memo 2015 signed by the SO;
- Suspect Apprehension Pursuit Memo 2017 signed by the SO;
- Notes- WO #3;
- Notes- WO #4;
- Notes- WO #1;
- Notes- WO #2;
- Communications recordings;
- GPS data;
- Motor Vehicle Collision Report;
- Statement of CW #2;
- Supplementary Reports; and
- The SO’s E-Learn Transcript.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Ambulance Call Report from Niagara EMS; and
- Dash-cam video from CW #2.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may briefly be summarized. As was her legal right, the SO declined an interview with the SIU or to authorize the release of her notes.
At about 1:12 a.m. of June 6, 2022, a Lexus vehicle was speeding southbound on the Queen Elizabeth Way towards Mountain Road, Niagara Falls. In the vehicle were two women, including the Complainant, and a male driver. As they passed Mountain Road, a marked police cruiser, which had been stopped on the southbound on-ramp to the highway, followed after them activating its emergency roof lights. The driver slowed, and may have stopped, the Lexus in a live lane of traffic. At the instruction of the officer, who had pulled over to the vehicle’s passenger side, the driver agreed to pull onto the shoulder. Within moments, however, the Lexus accelerated away from the officer.
The officer was the SO. She had been conducting speed enforcement when she clocked the Lexus doing 133 km/h in the 100 km/h zone. As the vehicle fled from her, the officer gave chase briefly before de-activating her lights and coming to a stop by the side of highway.
At about the same time as the cruiser was coming to a stop, the Lexus had failed to negotiate the exit on the Thorold Stone Road off-ramp and left the roadway southward into a field of grass and bushes where it crashed to a stop. The driver exited the vehicle and fled the scene.
First responders were dispatched to the scene, located the two female passengers, and transported them to hospital. The Complainant had suffered multiple rib and spine fractures, and a broken right arm. The other passenger – CW #1 – had not sustained any serious injuries.
Relevant Legislation
Section 320.13 (1) Criminal Code – Dangerous operation causing bodily harm
Analysis and Director's Decision
The Complainant was seriously injured in a car crash on June 6, 2022. As the vehicle she was in had briefly been pursued by an OPP officer, the SIU was notified of the incident and initiated an investigation. The OPP officer – 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 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. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, 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 observed 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 her cruiser, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
The SO was in the lawful execution of her duties when, having detected the Lexus travelling well over the speed limit, she endeavoured to pull it over. The driver had committed a speeding infraction and the officer was within her rights in attempting to enforce the traffic laws. I am also unable to conclude that the SO’s decision to initiate a pursuit of the Lexus when it fled was unlawful. There was very little traffic on the roadway such that a brief pursuit was not likely to engage public safety considerations. Add to this that it is unclear whether the officer had identified the vehicle at the time, which, had she, would have countenanced against a pursuit.
I am also satisfied that the SO comported herself with due care and regard for public safety during the course of pursuit. Though she had reached a speed at one point of almost 140 km/h, that speed was momentary and did not place at risk any motorists – there were none. The officer also had her emergency lights on throughout the brief pursuit, and quickly discontinued the chase after about one kilometre and under a minute. By that time, it would appear the Lexus was well ahead of the cruiser and out of sight.
For the foregoing reasons, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law. As such, there is no basis for proceeding with charges in this case. The file is closed.
Date: October 4, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) CW #1 could not be located. [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]
- 3) The SIU was unable to identify the driver of the Lexus. [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.