Director's Report Details

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.

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: 

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 30-year-old man (the “Complainant”).

Notification of the SIU [1]

On December 30, 2022, at 12:53 p.m., the Waterloo Regional Police Service (WRPS) notified the SIU of an injury to the Complainant.

According to the WRPS, on December 19, 2022, at 1:35 a.m., WRPS officers responded to 741 King Street West in Kitchener for a theft in progress. When Witness Official (WO) #1 arrived on scene, he saw the Complainant fleeing and a foot chase ensued. The Subject Official (SO) arrived on scene in his cruiser and used his cruiser to block the path of the fleeing Complainant. In the process, the cruiser slid on some ice striking the Complainant with the front driver’s quarter panel. The Complainant was arrested and transported to the Grand River Hospital (GRH) where he was diagnosed with no fractures or internal injuries and released back into the custody of police. The Complainant was released by police on an Undertaking. On December 23, 2022, the Complainant complained to his mother of chest pain and returned to the GRH for treatment. He was turned away. The Complainant then went to Cambridge Memorial Hospital where he was treated and diagnosed with five fractured ribs, a collapsed lung and internal bleeding. He was subsequently admitted to hospital and underwent surgery. The Complainant was released from hospital on December 27, 2022. On December 19, 2022, the SO’s cruiser was taken out of service and had undergone examination by WRPS Identification Services and Traffic Services.

The Scene

The scene was the front exterior of the Tim Hortons situated at 737 King Street West in Kitchener. The restaurant was located on the north side of King Street West just west of the intersection with Alexander Street and King Street West. The south side exit of Tim Hortons faced King Street West. Tim Hortons had one entrance into its parking lot which was off King Street West. The exit for the Tim Hortons drive-through flowed out onto King Street West just west of the parking lot entrance. Since the incident was not reported until a week after it occurred, SIU Forensic Investigators did not attend the scene and therefore no scene examination was conducted, and no diagram was produced.


Figure 1 - Scene photo taken by WRPS

The evidence collected by the SIU, including an interview with a police eyewitness and GPS data regarding the speed and directionality of the SO’s cruiser, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the early morning of December 19, 2022, the WRPS was notified by a security monitoring company of a theft in progress. The company had detected two individuals via their live cameras entering onto a construction site at 741 King Street West, Kitchener, and removing wire and other items. Officers were dispatched to the scene.
WO #1 was the first to arrive. He spotted one of the individuals – the Complainant – walking away from the construction site with his bike. He called out to the Complainant, but the Complainant refused to stop and crossed from the south to north side of King Street West. WO #1 followed him on foot and observed as the Complainant, once on the north side lanes of the road, climbed onto his bike and began to ride eastward in the westbound lanes.

At about this time, the SO was also responding to the area. He travelled south on Andrew Street, made a right turn onto King Street West, and saw the Complainant cycling towards him. Within moments, the Complainant’s bike and the driver’s side front of the SO’s cruiser collided. The SO’s cruiser went on to mount the north curb and come to a skidding stop beside the front entrance of a Tim Hortons restaurant. The Complainant and his bike had been pulled under the cruiser.

WO #1 approached the SO’s cruiser and freed the Complainant out from underneath the vehicle.

The Complainant was taken to hospital from the scene, and later discharged without a serious injury diagnosis. The Complainant attended a different hospital on December 23, 2022, and was diagnosed with multiple left-sided rib fractures and a hemothorax.

Section 221, Criminal Code -- Criminal negligence causing bodily harm

221 Every person who by criminal negligence causes bodily harm to another person is guilty of 

Section 320.13 (1) Criminal Code – Dangerous operation causing bodily harm

The Complainant was seriously injured in and around the time of his arrest by WRPS officers on December 19, 2022. One of the officers – the SO – was identified as the subject official in the ensuing SIU investigation. 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 arrest and injuries.

In the absence of statements from the SO and the Complainant, it is difficult to ascertain exactly what happened in the moments preceding the collision. Did the SO intentionally strike the Complainant and his bike? Did the Complainant, while travelling the wrong way in the westbound lanes of King Street West, fail to circumvent the SO’s westward cruiser and strike the vehicle? The latter seems as likely as the former, with the slippery road conditions playing a role to one extent or another in both scenarios. That being the case, I am unable to reasonably conclude that the SO transgressed the limits of care prescribed by the criminal law in connection with the collision that injured the Complainant.

The offences that arise for consideration are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to sections 320.13(2) and 221 of the Criminal Code, respectively. Regarding the former, 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. The latter offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.

The SO was in the execution of his duty as he responded to the scene of a reported theft in progress in order to assist in the apprehension of the suspects.

With respect to the SO’s driving as he turned onto King Street West and headed towards the point of impact with the Complainant, I am unable to reasonably conclude that he failed to comport himself with due care and regard for public safety. On the weight of the evidence, it appears that the SO was travelling at low speeds at this time – in the neighbourhood of about 10 km/h, according to WO #1. If the SO was unable to avoid a collision with an oncoming Complainant because of the slippery road conditions, I am not satisfied his failure was the result of criminal negligence or dangerous driving. He had only just turned onto King Street West and travelled no more than about 30 metres before the collision occurred, affording the officer little, if any, time in which he might have considered his options and adopted a different one.

In the result, while I accept that the Complainant’s injuries were incurred in his collision with the SO’s cruiser, there are no reasonable grounds to believe the SO’s conduct deviated markedly from a reasonable standard of care, much less that it did so in a marked and substantial way. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: April 28, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit