SIU Director’s Report - Case # 22-PVI-297
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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 section 14 (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 an 82-year-old woman (the “Complainant”).
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 an 82-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU [1]
On November 16, 2022, at 12:58 p.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information. At 12:00 p.m., on November 16, 2022, an OPP fully marked police vehicle collided with the Complainant as she crossed the street. The Subject Official (SO) had been travelling westbound on St. Clair Boulevard when he turned southbound onto St. Clair Parkway, Sarnia, and struck the Complainant. The Complainant was transported to Sarnia General Hospital-Bluewater Health (SGH-BH) by Lambton County, Emergency Medical Services (EMS), with a suspected fractured leg.
The Team
Date and time team dispatched: 11/16/2022 at 1:38 p.m.Date and time SIU arrived on scene: 11/16/2022 at 4:28 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
82-year-old female; interviewed; medical recordsobtained and reviewed
The Complainant was interviewed on November 25, 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 November 18 and 24, 2022.
Subject Official
SO Interviewed; notes received and reviewed The subject official was interviewed on December 5, 2022.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed between November 18 and 22, 2022.
Evidence
The Scene
The events in question occurred in and around the intersection of St. Clair Boulevard and St. Clair Parkway, Corunna.On November 16, 2022, at 4:28 p.m., a SIU forensic investigator arrived at the scene of the incident. The SO’s OPP police vehicle - a Dodge Charger - was in the southbound lanes of St. Clair Boulevard just south of the southern crosswalk of the intersection. There was blood and a bloody paper towel on the pavement at the front of the police vehicle. There was a small dent on the hood along with what appeared to be a short hair.
The scene was photographed, and a Total Station device was used to measure the scene.
Figure 1 – The SO’s police vehicle at the scene
Figure 2 – The intersection of St. Clair Boulevard and St. Clair Parkway
Scene Diagram
Video/Audio/Photographic Evidence [2]
The SIU obtained surveillance video from Ken’s Minimart located at the southeast corner of the intersection, and a dash-camera video from CW #4, which was recorded immediately after the motor vehicle collision. A video re-enactment recording was obtained from the OPP along with Global Positioning System (GPS) data and a copy of the communications recordings.
GPS Data – the SO’s Police Vehicle
The following is a summary of the information derived from the GPS data about the speed and directionality of the SO’s cruiser.- At 10:24:53 a.m., the vehicle was stopped westbound on St. Clair Boulevard, just east of the east crosswalk at St. Clair Parkway.
- At 10:24:55 a.m., the vehicle was mobile at 14.49 km/h on a slight southbound angle, westbound on the east side of the east crosswalk.
- At 10:24:57 a.m., the vehicle was mobile at 24.15 km/h on a slight southbound angle, westbound on the east side of the intersection.
- At 10:24:59 a.m., the vehicle was mobile at 11.27 km/h in a southwest direction in the middle of St. Clair Parkway, just north of the south crosswalk.
- At 10:25:01 a.m., the vehicle was stopped in the middle of St. Clair Parkway on a southwest angle inside the south crosswalk.
Ken’s Mini Mart – Video Footage
Ken’s Mini Mart was situated on the southeast corner of the intersection located at St. Clair Parkway and St. Clair Boulevard at 572 St. Clair Parkway, Corunna. The following is a summary of the footage captured of the events in question by a camera at this location. On November 16, 2022, at 10:24:08 a.m., the Complainant was walking eastbound towards the southwest corner of the intersection located at St Clair Boulevard and St. Clair Parkway.
At 10:24:16 a.m., the Complainant stood at the intersection and waited. It was difficult to determine the colour of the traffic lights due to distance. Traffic on St. Clair Parkway moved northbound and southbound through the intersection. It appeared that the traffic light was red for eastbound and westbound traffic on St. Clair Boulevard. The pedestrian crosswalk signals were not visible due to the distance and quality of the video.
At 10:24:26 a.m., a fully marked OPP police vehicle [now known to be operated by the SO] stopped on St Clair Boulevard and faced west at the intersection.
At 10:24:51 a.m., northbound and southbound traffic on St. Clair Parkway stopped at the intersection. The Complainant started to walk eastbound across St. Clair Parkway, within the marked pedestrian crosswalk.
At 10:24:55 a.m., the police vehicle turned left to go southbound on St. Clair Parkway.
At 10:24:58 a.m., without an attempt to slow or stop, the front bumper of the police vehicle struck the Complainant’s left leg area. The collision caused the Complainant to roll onto the hood of the police vehicle. The police vehicle stopped in the crosswalk facing southbound on St. Clair Parkway; the Complainant was thrown from the hood. The Complainant landed on the roadway approximately three metres to the south of where the police vehicle had stopped.
At 10:25:04 a.m., the SO exited his police vehicle and walked to where the Complainant lay on the roadway. The SO and the Complainant were blocked from camera view by a minivan.
At 10:25:34 a.m., the SO returned to his police vehicle.
At 10:25:51 a.m., a woman [now known to be CW #2] exited her vehicle and went to assist the Complainant.
At 10:26:54 a.m., the SO returned to where the Complainant was and remained with her until the video ended.
Communications Recordings
On November 16, 2022, at 10:25 a.m., the SO made a broadcast regarding a motor vehicle collision between his police vehicle and a pedestrian, the Complainant. The collision had occurred at the intersection of St. Clair Parkway and St. Clair Boulevard, Corunna. The SO requested that WO #3 attend the scene. At 10:27 a.m., WO #2 was en route to the scene.
At 10:31 a.m., EMS arrived and transported the Complainant to SGH-BH.
At 10:51 a.m., WO #3 arrived at the scene. WO #3 requested that a police officer attend the hospital to check on the Complainant’s injuries.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between November 21, 2022, and March 9, 2023:- Record of computer-assisted dispatch;
- GPS data;
- Dashcam footage from CW #4;
- Statement - CW #1;
- Notes-WO #1;
- Notes-the SO;
- Notes-WO #3;
- Notes-WO #2;
- Tablet messaging;
- Communications recordings; and
- Motor Vehicle Collision Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Ambulance Call Report from Lambton County EMS;
- Video footage from Ken’s Mini Mart; and
- Medical records.
Incident Narrative
The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.
In the morning of November 16, 2022, the Complainant was present at the southwest corner of the intersection of St. Clair Boulevard and St. Clair Parkway, Corunna, waiting at the traffic signal. When the lights turned green and a ‘walk’ symbol was displayed, the Complainant walked onto the crosswalk to travel eastward across St. Clair Parkway. The Complainant had not made it very far when she was struck by a police vehicle.
The SO was operating the police cruiser. He had been waiting at a red light for westbound traffic on St. Clair Boulevard intending to turn left when the light turned green and he embarked on his turn. The officer brought his vehicle to a stop quickly after the collision.
The Complainant rolled onto the hood of the cruiser on impact, and was then propelled off the hood several metres down the road as the vehicle came to a stop. She had suffered serious fractures of her left leg.
The Complainant was taken in ambulance from the scene to hospital, where her injuries were diagnosed and treated.
In the morning of November 16, 2022, the Complainant was present at the southwest corner of the intersection of St. Clair Boulevard and St. Clair Parkway, Corunna, waiting at the traffic signal. When the lights turned green and a ‘walk’ symbol was displayed, the Complainant walked onto the crosswalk to travel eastward across St. Clair Parkway. The Complainant had not made it very far when she was struck by a police vehicle.
The SO was operating the police cruiser. He had been waiting at a red light for westbound traffic on St. Clair Boulevard intending to turn left when the light turned green and he embarked on his turn. The officer brought his vehicle to a stop quickly after the collision.
The Complainant rolled onto the hood of the cruiser on impact, and was then propelled off the hood several metres down the road as the vehicle came to a stop. She had suffered serious fractures of her left leg.
The Complainant was taken in ambulance from the scene to hospital, where her injuries were diagnosed and treated.
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.
Analysis and Director's Decision
The Complainant was struck and seriously injured by a police vehicle in Corunna on November 16, 2022. In the ensuing SIU investigation of the incident, the driver of the cruiser – 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 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 his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
There is little doubt that the SO is responsible for the collision. The Complainant had the right-of-way and the officer was legally obligated to refrain from turning left until he could do so safely.
That said, I am unable to reasonably conclude on the evidence that the officer’s conduct amounted to a marked departure from a reasonable standard of care in the circumstances. He says that he simply did not see the Complainant and believed his path was clear as he travelled into the crosswalk. I am left to take the SO at his word as there is nothing in the evidence, aside from the collision itself, to suggest that the officer was distracted when he ought not have been. For example, the evidence indicates he was not engaged at the time with his mobile workstation. The SO says that the spotlight and radar mounts inside his vehicle may have impeded his vision. In different circumstances, that evidence might attract criminal sanction if the officer was aware of the sightline obstructions and had done nothing to rectify the situation. There is insufficient evidence of that having happened in this case. In the final analysis, I am satisfied that the officer’s indiscretion may fairly be characterized as a momentary lapse of attention, which, as the case law makes clear, will generally not be enough to ground criminal lability.
In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law with respect to the collision he caused, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: March 10, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
There is little doubt that the SO is responsible for the collision. The Complainant had the right-of-way and the officer was legally obligated to refrain from turning left until he could do so safely.
That said, I am unable to reasonably conclude on the evidence that the officer’s conduct amounted to a marked departure from a reasonable standard of care in the circumstances. He says that he simply did not see the Complainant and believed his path was clear as he travelled into the crosswalk. I am left to take the SO at his word as there is nothing in the evidence, aside from the collision itself, to suggest that the officer was distracted when he ought not have been. For example, the evidence indicates he was not engaged at the time with his mobile workstation. The SO says that the spotlight and radar mounts inside his vehicle may have impeded his vision. In different circumstances, that evidence might attract criminal sanction if the officer was aware of the sightline obstructions and had done nothing to rectify the situation. There is insufficient evidence of that having happened in this case. In the final analysis, I am satisfied that the officer’s indiscretion may fairly be characterized as a momentary lapse of attention, which, as the case law makes clear, will generally not be enough to ground criminal lability.
In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law with respect to the collision he caused, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: March 10, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [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.