SIU Director’s Report - Case # 22-OVI-294
Warning:
This page contains graphic content that can shock, offend and upset.
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 injury of a 31-year-old man (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 injury of a 31-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On November 11, 2022, at 1:06 p.m., the Kingston Police (KP) notified the SIU of an injury to the Complainant.According to the KP, on November 11, 2022, at approximately 2:00 a.m., the Subject Official (SO) was conducting proactive spot checks in the area of Montreal Street, Kingston. At that time, a Volkswagen Tiguan being driven by the Complainant approached the spot check and stopped approximately 100 metres short. When KP officers motioned for the Complainant to move towards them, he accelerated to approximately 20 km/h and drove through the spot check. A KP officer followed the Complainant with the vehicle emergency lighting and siren activated, attempting to get him to stop. The Complainant made no attempt to stop, and the KP officer disengaged and made no attempt to pursue the vehicle. Approximately five minutes later, KP officers located the Volkswagen Tiguan at the corner of Montreal Street and Queen Street where it had collided with a building.
The Complainant was transported to Kingston General Hospital (KGH) where he was diagnosed with a partially collapsed lung.
The Team
Date and time team dispatched: 11/11/2022 at 2:10 p.m.Date and time SIU arrived on scene: 11/11/2022 at 2:43 p.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Number of SIU Collision Reconstructionists Assigned: 1
Affected Person (aka “Complainant”):
31-year-old male; interviewedThe Complainant was interviewed on November 17, 2022.
Civilian Witness
CW Interviewed The civilian witness was interviewed on January 11, 2023.
Subject Official
SO Interviewed; notes received and reviewedThe subject official was interviewed on December 6, 2022.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Notes reviewed, interview deemed not necessary
The witness officials were interviewed on November 23, 2022.
Evidence
The Scene
The events in question occurred along a stretch of Montreal Street between 734 Montreal Street, where police had organized a compliance checkpoint, to the intersection of Montreal Street and Queen Street, where a vehicle crashed into the business at 46 Montreal Street.Montreal Street was an asphalt road with one lane for northbound and one lane for southbound vehicle traffic. There were shoulders, curbs and sidewalks on the east and west sides, and the speed limit was 50 km/h.
SIU investigators did not attend the scene as there was nothing of evidentiary value sought or anticipated to be present.
Forensic Evidence
The KP provided the SIU the Global Positioning System (GPS) data for the SO’s and WO #1’s police vehicles. The data, summarized below, were analyzed by a SIU Collision Reconstructionist.
GPS Data
At 1:16:10 a.m., the SO’s police vehicle was stopped near 734 Montreal Street and had been there for 38 minutes. At 1:17:33 a.m., WO #2 and WO #1 were westbound on Queen Street towards Montreal Street.
At 1:17:52 a.m., the SO was on Montreal Street just north of Queen Street. As per Google Earth, that was about 2.1 kilometres south of the checkpoint. He had been driving for 138 seconds, and during that time his average speed was 67 km/h, and his maximum recorded speed was 110 km/h.
At 1:18:28 a.m., the SO was stationary on Queen Street just west of Montreal Street.
Video/Audio/Photographic Evidence [2]
The SIU obtained audio and video records of relevance from KP. The records were requested by the SIU on November 11, 2022, and received by the SIU on November 23, 2022. The following is a summary of the pertinent recordings.Video Footage – Address on Montreal Street
The video captured Montreal Street. The video time-stamps were reported by the provider to be ahead of actual time. At 1:21:54 a.m., the Complainant’s Volkswagen Tiguan was southbound on Montreal Street at a high rate of speed. The Tiguan passed the video frame in two seconds, which was estimated at more than double that of the six unrelated vehicles captured prior.
At 1:21:57 a.m., the SO’s police vehicle was southbound on Montreal Street following the Volkswagen Tiguan. No emergency lighting was activated and the vehicle was travelling at a speed slower than the Complainant.
At 1:22:25 a.m., a second KP vehicle [believed to be either of Officer #1 or Officer #2] travelled southbound on Montreal Street with no emergency lights activated.
At 1:22:28 a.m., a third KP vehicle [believed to be either of Officer #1 or Officer #2] travelled southbound on Montreal Street with no emergency lights activated.
Communications Recordings
The SO made an inaudible transmission and a siren was heard. Fifteen seconds later, the SO advised dispatch that the Complainant’s vehicle was believed to be southbound on Montreal Street, and that he (the SO) was stopping and disengaging. There was no siren audible.
Fourteen seconds later, the SO advised downtown police officers that the Complainant’s vehicle had probably made it to Queen Street.
Forty-five seconds later, WO #2 and WO #1 advised they were at Queen Street and Montreal Street.
WO #2 and WO #1 advised that the Complainant had crashed his vehicle into a building and they had him in custody.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the KP between November 18 and December 12, 2022:- Record of Computer-assisted Dispatch Summary;
- Platoon Duty Roster;
- General Order - Suspect Apprehension Pursuits;
- Notes - SO;
- Notes - WO #1;
- Notes - WO #2;
- Notes - WO #3;
- Motor Vehicle Collision Report;
- Platoon Unit Status Report;
- Scene photographs;
- GPS data from the vehicles of the SO, WO #2 and WO #1;
- Video footage from business; and
- Communications recordings.
Incident Narrative
The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.
In the early morning hours of November 11, 2022, the SO was among a group of KP officers manning a seatbelt compliance checkpoint in the area of 734 Montreal Street. At about 1:15 a.m., the officer observed a vehicle that had been travelling south towards the checkpoint when it came to a stop about a hundred metres north of his location. With the use of his flashlight, the SO signaled at the driver to resume his travel towards the checkpoint.
The Complainant was the operator of the vehicle – a Volkswagen Tiguan. At the sight of the SO, he continued south at moderate speed towards and then past the checkpoint, after which he picked up his speed.
Satisfied that the Complainant had failed to stop as directed, the SO entered his cruiser by the side of the road and accelerated after the Tiguan. His emergency lights activated, the officer planned to stop the Complainant. When the SO had neared to between 30 and 50 metres of the Complainant, he activated his siren. The Complainant continued to accelerate on Montreal Street. In the area of the Joseph Street intersection, the SO gave up the chase – he shut off his emergency equipment and slowed.
The Complainant continued at speed on Montreal Street, failed to negotiate a right-hand turn onto Queen Street, and crashed into the wall of a business at the southwest corner of the intersection.
Officers in the area of the collision – WO #1 and WO #2 – heard the SO’s broadcast of a vehicle fleeing on Montreal Street towards Queen Street, and were the first officers at the site of the crash. WO #1 arrested the Complainant and placed him in a police cruiser.
The Complainant was taken from the scene in ambulance to hospital, and reportedly diagnosed with a collapsed lung.
In the early morning hours of November 11, 2022, the SO was among a group of KP officers manning a seatbelt compliance checkpoint in the area of 734 Montreal Street. At about 1:15 a.m., the officer observed a vehicle that had been travelling south towards the checkpoint when it came to a stop about a hundred metres north of his location. With the use of his flashlight, the SO signaled at the driver to resume his travel towards the checkpoint.
The Complainant was the operator of the vehicle – a Volkswagen Tiguan. At the sight of the SO, he continued south at moderate speed towards and then past the checkpoint, after which he picked up his speed.
Satisfied that the Complainant had failed to stop as directed, the SO entered his cruiser by the side of the road and accelerated after the Tiguan. His emergency lights activated, the officer planned to stop the Complainant. When the SO had neared to between 30 and 50 metres of the Complainant, he activated his siren. The Complainant continued to accelerate on Montreal Street. In the area of the Joseph Street intersection, the SO gave up the chase – he shut off his emergency equipment and slowed.
The Complainant continued at speed on Montreal Street, failed to negotiate a right-hand turn onto Queen Street, and crashed into the wall of a business at the southwest corner of the intersection.
Officers in the area of the collision – WO #1 and WO #2 – heard the SO’s broadcast of a vehicle fleeing on Montreal Street towards Queen Street, and were the first officers at the site of the crash. WO #1 arrested the Complainant and placed him in a police cruiser.
The Complainant was taken from the scene in ambulance to hospital, and reportedly diagnosed with a collapsed lung.
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 216 (1), Highway Traffic Act -- Power of Police Officer to Stop Vehicles
216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.
Analysis and Director's Decision
The Complainant was seriously injured in a motor vehicle collision in Kingston on November 11, 2022. As the vehicle he was operating had been briefly pursued by a KP officer prior to the collision, the SIU was notified of the incident and initiated an investigation. The 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 Complainant’s injury.
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.
The SO was in the lawful execution of his duties when he attempted to pull the Complainant over at the checkpoint and then pursued him when he failed to stop. Motorists are under a legal obligation to stop when directed to do so by a police officer by virtue of section 216(1) of the Highway Traffic Act. The officer had cause to believe that the Complainant had committed an offence under the Act, and was within his rights in deciding he would attempt to stop him for the infraction.
In the course of the brief pursuit that followed, there is no indication that the SO failed to comport himself with due care and regard for public safety. While the officer accelerated to a speed of about 110 km/h to catch up to the Complainant, he did so with emergency equipment on and over a short period of time. Moreover, there is no evidence that the SO’s speed endangered other users of the roadway. Within a reasonable amount of time, when it became clear that the Complainant was not going to stop, the SO acted prudently in discontinuing the pursuit and decelerating. By that time, the officer had travelled a total distance of no more than about 650 metres. He was well back in time and distance at the time of the collision.
In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law in his engagement with the Complainant, 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.
The SO was in the lawful execution of his duties when he attempted to pull the Complainant over at the checkpoint and then pursued him when he failed to stop. Motorists are under a legal obligation to stop when directed to do so by a police officer by virtue of section 216(1) of the Highway Traffic Act. The officer had cause to believe that the Complainant had committed an offence under the Act, and was within his rights in deciding he would attempt to stop him for the infraction.
In the course of the brief pursuit that followed, there is no indication that the SO failed to comport himself with due care and regard for public safety. While the officer accelerated to a speed of about 110 km/h to catch up to the Complainant, he did so with emergency equipment on and over a short period of time. Moreover, there is no evidence that the SO’s speed endangered other users of the roadway. Within a reasonable amount of time, when it became clear that the Complainant was not going to stop, the SO acted prudently in discontinuing the pursuit and decelerating. By that time, the officer had travelled a total distance of no more than about 650 metres. He was well back in time and distance at the time of the collision.
In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law in his engagement with the Complainant, 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.