SIU Director’s Report - Case # 22-OVD-249
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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 the serious injuries of a 31-year-old man (Complainant #1), the death of a 57-year-old man (Complainant #2), the serious injury of a 20-year-old man (Complainant #3), and the death of a 38-year-old man (Complainant #4).
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 31-year-old man (Complainant #1), the death of a 57-year-old man (Complainant #2), the serious injury of a 20-year-old man (Complainant #3), and the death of a 38-year-old man (Complainant #4).
The Investigation
Notification of the SIU
On September 25, 2022, at 11:57 p.m., the Hamilton Police Service (HPS) notified the SIU of a fatal motor vehicle collision. The HPS advised that on September 25, 2022, at 10:51 p.m., the Subject Official (SO) was driving a plain door Identification Unit police vehicle northbound on John Street South when he observed a vehicle being driven erratically. At the intersection of John Street South and Forest Avenue, the vehicle stopped, and the SO stopped and exited his vehicle. The vehicle took off and, at the intersection of John Street South and Augusta Street, was involved in a two-vehicle collision - civilian on civilian. There were two people in the uninvolved vehicle who were deceased.
The Team
Date and time team dispatched: 09/26/2022 at 1:06 a.m.Date and time SIU arrived on scene: 09/26/2022 at 1:55 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 3
Number of SIU Collision Reconstructionists assigned: 1
Affected Persons (aka “Complainants”):
Complainant #1 31-year-old male; interviewed; medical records obtained and reviewed
Complainant #2 57-year-old male; deceased
Complainant #3 20-year-old male; interviewed; medical records obtained and
reviewed
Complainant #4 38-year-old male; deceased
The Complainants were interviewed between September 26, 2022, and October 11, 2022.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Official (WO)
WO InterviewedThe witness official was interviewed on September 28, 2022.
Evidence
The Scene
SIU investigators arrived at the scene at 1:55 a.m.John Street South at Charlton Avenue East was a four-lane traffic signal-controlled intersection, with two through lanes and a left-turn lane for northbound vehicle traffic, and a single southbound lane. Charlton Avenue East intersected in an east/west direction.
The next intersection travelling northbound on John Street South was Forest Avenue, which was a four-lane traffic signal-controlled intersection with two lanes for each of northbound and southbound traffic. Forest Avenue intersected in an east/west direction.
The next intersection travelling northbound on John Street South was Young Street, the location of the fatal crash. The traffic signal-controlled intersection had two lanes for each of northbound and southbound traffic. Young Street intersected in an east/west direction.
The distance from John Street South and Charlton Avenue East to the intersection of John Street South and Young Street where the motor vehicle collision occurred was approximately 180 metres (Google Maps).
John Street South was a mix of residential and commercial properties, and included a hospital.
Scene Diagram
Expert Evidence
Crash Data Retrieval (CDR) Data
CDR data downloads were completed on a HPS Dodge Caravan and a Ford Escape. The results were analyzed by a SIU technical collision and reconstruction expert, with the following results. HPS Dodge Caravan
No event was recovered. The data retrieved were consistent with the observations made, specifically, that the vehicle had sustained no collision damage.
Ford Escape
Between five seconds before the collision and two seconds before the collision, the Ford increased its speed from 61 km/h to 92 km/h. The accelerator pedal was engaged 100 percent full, and the brake was off.
Between one second before the collision and the actual collision, the speed of the Ford increased from 100 km/h to 107 km/h. The accelerator pedal decreased from 100 percent full to 87 percent full. The brakes were not applied.
The driver, Complainant #3, was wearing his seat belt and there was minimal steering input beyond straight.
Video/Audio/Photographic Evidence [1]
Scene Photographs
Photographed at the scene by Halton Regional Police Service (HRPS) was the HPS Dodge Caravan, which was parked across the southbound lane of John Street South just north of Young Street. Complainant #3’s heavily damaged Ford Escape had rolled north from the crash site into the parking lot of Intact Insurance. A SIU forensic investigator also took photographs of the scene.
Figure 1 – Photograph of the Ford Escape, the SO’s vehicle and collision debris
Figure 2 – Photograph of the Ford Escape
Figure 3 – Photograph of the SO’s vehicle
Figure 4 – Photograph of a Hyundai Sonata
Hamilton Street Railway Company (HSR) In-bus Camera
A HSR bus was equipped with an on-board camera and was travelling northbound on John Street South. At 10:50:33 p.m., two vehicles were captured northbound on John Street South, south of the intersection of Charlton Avenue East. A white van [now known to be a HPS Dodge Caravan being driven by the SO] was in the curb lane, while a dark SUV [now known to be a Ford Escape being driven by Complainant #3] was in the centre lane.
At 10:50:42 p.m., the SO’s police vehicle slowly moved forward into the centre lane and stopped on an angle in a northwest direction in front of Complainant #3’s vehicle [believed to be an attempt to block the vehicle in].
At 10:50:45 p.m., Complainant #3’s Ford Escape travelled around the SO’s Dodge Caravan by maneuvering into the left turn lane of John Street South and entered the intersection on a red traffic signal.
The SO followed Complainant #3 through the intersection on a red traffic signal.
Complainant #3 continued north in the oncoming (southbound) lane of John Street South at a high rate of speed.
The SO’s vehicle brake lights illuminated once he passed through the intersection and he slowed. He drove to the next intersection of Forest Avenue where he stopped for a red traffic signal.
At 10:50:59 p.m., Complainant #3’s Ford Escape entered the intersection of Young Street where it collided with a westbound vehicle [now known to be a Hyundai Sonata being driven by Complainant #1].
At 10:51:10 p.m., the SO’s vehicle passed through the intersection of Forest Avenue and continued north on John Street South. The vehicle drove north in the curb lane with brake lights visible as it reached the crash scene.
The distance from the commencement of the interaction at John Street South and Charlton Avenue East to the scene of the crash at John Street South and Young Street was approximately 180 metres according to Google Maps. The time from the commencement of the interaction to the crash was 17 seconds (10:50:42 p.m. to 10:50:59 p.m.).
Video Footage from Business #1
The camera captured a southeast view of the intersection of John Street South and Forest Avenue. At 10:50:51 p.m., Complainant #3’s Ford Escape was northbound in the southbound lanes of John Street South travelling at a high rate of speed. It passed through the intersection of Forest Avenue and continued northbound.
At 10:51:03, the SO’s vehicle was northbound on John Street South in the curb lane and passed through the same intersection of Forest Avenue.
A second security camera captured an easterly view of John Street South, just north of the intersection of Forest Avenue.
At 10:50:53 p.m., Complainant #3’s Ford Escape was northbound on John Street South in the northbound centre lane.
At 10:51:07 p.m., the SO’s vehicle was northbound on John Street South in the curb lane.
Video Footage from Business #2
At 10:50:56 p.m., the aftermath of the collision between Complainant #3’s Ford Escape and Complainant #1’s Hyundai Sonata was captured. After the impact, the Ford Escape continued north on John Street South and into the parking lot of Intact Insurance, located just north of Young Street. At 10:51:15 p.m., the SO’s police vehicle was northbound on John Street South in the curb lane and stopped behind the Ford Escape in the southbound lanes of John Street South.
Video Footage from Business #3
The footage was reviewed; it did not capture images of evidentiary value.Video Footage from Business #4
The footage was reviewed; it did not capture images of evidentiary value.Video Footage from Business #5
The footage was reviewed; it did not capture images of evidentiary value. HPS Police Communications
At 10:51:33 p.m., the SO asked police dispatch to get a couple of police officers to John Street South and Young Street as he had observed a motor vehicle collision with what was believed to be an impaired driver.At 10:52:46 p.m., the SO advised that a man [believed to be Complainant #3] had left the scene of the collision and he provided a description.
Additional radio communications involved requests for Emergency Medical Services and Hamilton Fire Department, and police efforts to secure the scene.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the HPS between September 27, 2022, and December 5, 2022:- Motor Vehicle Collision Report;
- Sudden Death Report – Complainant #4;
- Sudden Death Report – Complainant #2;
- Computer-aided Dispatch printout;
- Case File Synopsis;
- General Report;
- CDR data download – Ford Escape;
- Event Chronology;
- Notes-the WO;
- Witness statement;
- Communications recordings; and
- HRPS scene photographs.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Medical records for Complainant #3;
- Medical records for Complainant #1;
- HSR In-bus Camera Video; and
- Video footage from Business #1, Business #2, Business #3, Business #4, and Business #5.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, which included interviews with a civilian and police eyewitness, and video footage that captured the incident in parts. As was his legal right, the SO declined an interview with the SIU and the release of his notes.
At about 10:50 p.m. of September 25, 2022, Complainant #3 was driving a Ford Escape SUV northbound on John Street South, stopped behind some traffic at a red light at the Charlton Avenue East intersection. Beside him, in the curb lane, was a HPS van. The SO was operating the van. His passenger in the front seat was the WO. The officers had observed the Ford Escape occasionally drifting out of its lane as they made their way around the Jolley Cut and then northwest along Arkledun Avenue and onto John Street South. Deciding they would speak to the driver, the SO maneuvered his van such that it came to stop at a northwest angle in front of the Escape.
Realizing that he was being stopped by the police, Complainant #3 entered into the left-turn lane to his left and accelerated northwards past the intersection on a red light. He continued to accelerate travelling north in the southbound lanes of John Street South and was upwards of a 100 km/h as he approached and entered the Young Street intersection, again, on a red light.
Complainant #1 was operating a Hyundai Sonata travelling west on Young Street through the John Street South intersection. In the backseat were two passengers – Complainant #2 and Complainant #4. Their vehicle was T-boned by Complainant #3’s Ford Escape.
The SO had followed the Escape through the red light at Charlton Avenue East, after which he decelerated and continued to make his way north at moderate speeds. He stopped for a red light at the Forest Avenue intersection and then continued north on a green light towards the crash site, arriving about 20 seconds after the collision had occurred.
Complainant #2 and Complainant #4 lost their lives in the collision. Complainant #1 suffered multiple fractures. Complainant #3 was diagnosed with a fracture to the right wrist.
At about 10:50 p.m. of September 25, 2022, Complainant #3 was driving a Ford Escape SUV northbound on John Street South, stopped behind some traffic at a red light at the Charlton Avenue East intersection. Beside him, in the curb lane, was a HPS van. The SO was operating the van. His passenger in the front seat was the WO. The officers had observed the Ford Escape occasionally drifting out of its lane as they made their way around the Jolley Cut and then northwest along Arkledun Avenue and onto John Street South. Deciding they would speak to the driver, the SO maneuvered his van such that it came to stop at a northwest angle in front of the Escape.
Realizing that he was being stopped by the police, Complainant #3 entered into the left-turn lane to his left and accelerated northwards past the intersection on a red light. He continued to accelerate travelling north in the southbound lanes of John Street South and was upwards of a 100 km/h as he approached and entered the Young Street intersection, again, on a red light.
Complainant #1 was operating a Hyundai Sonata travelling west on Young Street through the John Street South intersection. In the backseat were two passengers – Complainant #2 and Complainant #4. Their vehicle was T-boned by Complainant #3’s Ford Escape.
The SO had followed the Escape through the red light at Charlton Avenue East, after which he decelerated and continued to make his way north at moderate speeds. He stopped for a red light at the Forest Avenue intersection and then continued north on a green light towards the crash site, arriving about 20 seconds after the collision had occurred.
Complainant #2 and Complainant #4 lost their lives in the collision. Complainant #1 suffered multiple fractures. Complainant #3 was diagnosed with a fracture to the right wrist.
Relevant Legislation
Section 320.13 (1) Criminal Code – Dangerous operation causing bodily harm or death
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.
(3) 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 the death of another person.
Section 144(1), Highway Traffic Act – Traffic Control Signals and Pedestrian Control Signals
144 (1) In this section,
“emergency vehicle” means,
(a) a vehicle while used by a person in the lawful performance of his or her duties as a police officer, on which a siren is continuously sounding and from which intermittent flashes of red light or red and blue light are visible in all directions, or(b) either of the following vehicles, on which a siren is continuously sounding and from which intermittent flashes of red light are visible in all directions:
(i) a fire department vehicle while proceeding to a fire or responding to, but not while returning from, a fire alarm or other emergency call, or(ii) an ambulance while responding to an emergency call or being used to transport a patient or injured person in an emergency situation;
Sections 144(18) and 144(20), Highway Traffic Act – Red Light Exemption
144 (18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.
144 (20) Despite subsection (18), a driver of an emergency vehicle, after stopping the vehicle, may proceed without a green indication being shown if it is safe to do so.
Analysis and Director's Decision
In the evening of September 25, 2022, there occurred a motor vehicle collision in Hamilton that took the lives of two people and seriously injured two others. As HPS officers had tried to stop the driver of one of the two vehicles involved in the collision moments prior, the SIU was notified of the matter 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 the SO committed a criminal offence in connection with the incident.
The offence that arises for consideration is dangerous driving causing bodily harm and dangerous driving causing death contrary to sections 320.13(2) and 320.13(3) of the Criminal Code. As offences of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, the offences are 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 his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
The SO was engaged in the lawful exercise of his duties when, having observed a vehicle being operated carelessly, he decided to stop it for investigation.
Having made that decision, I am satisfied that the officer comported himself with due care and regard for the safety of the public when Complainant #3 fled from the scene of the stop. While the officer ought not have proceeded through the red light at Charlton Avenue East - his vehicle was not sounding a siren or displaying emergency lights, as required by virtue of subsections 144(1) and 144(20) of the Highway Traffic Act - there is no evidence that the transgression actually endangered other users of the road. Nor is there evidence that the SO contributed to Complainant #3’s reckless driving en route to the scene of the crash. The officer quickly aborted any notion of a pursuit after the Charlton Avenue East intersection, reduced his speed, adhered to the rules of the road, and was well back of the Young Street intersection when the collision happened.
In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law during his brief interaction with Complainant #3
and his Ford Escape, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 23, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offence that arises for consideration is dangerous driving causing bodily harm and dangerous driving causing death contrary to sections 320.13(2) and 320.13(3) of the Criminal Code. As offences of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, the offences are 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 his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
The SO was engaged in the lawful exercise of his duties when, having observed a vehicle being operated carelessly, he decided to stop it for investigation.
Having made that decision, I am satisfied that the officer comported himself with due care and regard for the safety of the public when Complainant #3 fled from the scene of the stop. While the officer ought not have proceeded through the red light at Charlton Avenue East - his vehicle was not sounding a siren or displaying emergency lights, as required by virtue of subsections 144(1) and 144(20) of the Highway Traffic Act - there is no evidence that the transgression actually endangered other users of the road. Nor is there evidence that the SO contributed to Complainant #3’s reckless driving en route to the scene of the crash. The officer quickly aborted any notion of a pursuit after the Charlton Avenue East intersection, reduced his speed, adhered to the rules of the road, and was well back of the Young Street intersection when the collision happened.
In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law during his brief interaction with Complainant #3
and his Ford Escape, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 23, 2023
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.