SIU Director’s Report - Case # 23-OVI-005

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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 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. 
Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 
  • 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 35-year-old man (the “Complainant”).

The Investigation

Notification of the SIU [1]

On January 5, 2023, at 12:10 a.m., the Thunder Bay Police Service (TBPS) contacted the SIU with the following information.

On January 4, 2023, at approximately 5:23 p.m., a TBPS police officer attempted to stop a vehicle for a Highway Traffic Act (HTA) violation on Walsh Street, near the intersection of Franklin Street South. The vehicle began to pull over, but then suddenly accelerated through the stop sign at Walsh Street East and Sprague Street. The police officer disengaged and pulled over to call-in his vehicle odometer reading. Approximately two minutes later, the fleeing vehicle was involved in a collision at Mary Street and Brown Street, about two kilometres away from where the pursuit had been terminated. Witnesses advised that a man and a woman, occupants of the vehicle, had fled the scene on foot. They were pointed out to the responding police officers and subsequently arrested. The man was determined to have been the driver. He was transported to the hospital with facial injuries. The TBPS Traffic Unit and Identification Services had investigated the collision and cleared the scene. When TBPS learned that the driver, the Complainant, had suffered facial fractures and was going to require surgery, the service reported the incident to the SIU.
 

The Team

Date and time team dispatched: 01/05/2023 at 8:01 a.m.

Date and time SIU arrived on scene: 01/05/2023 at 9:09 a.m.

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
 

Affected Person (aka “Complainant”):

35-year-old male; declined an interview


Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

The civilian witnesses were interviewed between January 7 and 10, 2023.

Subject Official (SO)

SO Declined interview and to provide notes, as is the subject official’s legal right


Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Not interviewed; notes received and reviewed
WO #6 Not interviewed; notes received and reviewed

The witness officials were interviewed between January 6 and 12, 2023.


Evidence

The Scene

The event in question transpired over a stretch of roadway in Thunder Bay starting in the area of Walsh Street East and Franklin Street South, proceeding west along Walsh Street East until Kingsway Avenue, south on Kingsway Avenue until Mary Street East, and finally west on Mary Street East / Mary Street West until the site of a motor vehicle collision at the intersection of Mary Street West and Brown Street.

Mary Street was a two-lane roadway with one eastbound lane and one westbound lane. Brown Street was also a two-lane roadway with one northbound lane and one southbound lane. The intersection was controlled by a four-way stop sign.

The speed limit was posted on Mary Street and Brown Street as 40 km/h.


Figure 1 –Aerial photograph of the scene

Figure 1 –Aerial photograph of the scene

Expert Evidence


TBPS Technical Collision Report

A Hyundai travelled westbound on Mary Street West and approached the intersection of Brown Street. A Cadillac, which had stopped at the stop sign, began to proceed southbound on Brown Street, through the intersection of Mary Street West. A Ford pick-up was stopped and faced eastbound on Mary Street West at the intersection of Brown Street. The Hyundai failed to stop for the stop sign on Mary Street West at the intersection of Brown Street, and collided with the Cadillac. The Hyundai then collided with the Ford pick-up.

The roadway was dry and clear, and its markings visible, at the time of the collision. Visibility was clear with no view obstructions for any involved drivers.

A mechanical inspection of the Hyundai indicated that the vehicle was in good working order and functioning properly.


Figure 2 – Photograph of the Hyundai

Figure 2 – Photograph of the Hyundai

Video/Audio/Photographic Evidence [2]

The SIU obtained body-worn camera (BWC) footage for all the responding police officers, which included the SO.

The in-car camera system (ICCS) video for the SO’s cruiser was also obtained.

Global Positioning System (GPS) data for the cruiser were obtained along with the communications recordings.
 

BWC Footage - The SO

On January 4, 2023, starting at about 5:21:21 p.m., the SO’s BWC was activated with audio and video. The officer drove a police vehicle along a residential roadway - Walsh Street - behind a small dark sedan - a Hyundai.

Starting at about 5:21:51 p.m., the SO activated his emergency equipment and the Hyundai pulled over to the side of the road. The Hyundai stopped for a second and then accelerated forward and sped away.

Starting at about 5:22:08 p.m., the SO broadcast that the Hyundai had taken off and he was following.

Starting at about 5:22:27 p.m., the SO broadcast that he was westbound on Walsh Street at Sprague Street and the Hyundai had failed to stop for a stop sign. The SO advised he had discontinued the pursuit and provided his mileage. In the distance, at Walsh Street and Kingsway Avenue, he saw the Hyundai almost collide with a vehicle.

Starting at about 5:22:42 p.m., the SO moved forward without his emergency equipment activated. He advised that in the distance he had seen the Hyundai almost hit another vehicle. The SO drove at what appeared to be a moderate speed and broadcast that he believed the Hyundai had turned left at the street after the railway tracks [now known to be Hall Place]. The dispatcher requested the reason the SO wanted to stop the Hyundai apart from the fact it had failed to stop for the stop sign. The SO advised that the vehicle had been operated in two lanes, and it was unconfirmed if the driver was licensed or insured.

The SO stopped for a red light on Walsh Street at Kingsway Avenue. He then proceeded at a moderate speed through the intersection and over a set of railway tracks.

Starting at about 5:23:57 p.m., the SO turned left onto Hall Place, which was a small cul-de-sac on the south side of Walsh Street. The Hyundai was not found in the cul-de-sac and the SO advised dispatch that the Hyundai had probably travelled southbound on Kingsway Avenue. The dispatcher then broadcast the registration information for the Hyundai, which was not stolen.

The SO exited Hall Place, turned right onto Walsh Street, crossed the railway tracks and, at about 5:24:46 p.m., turned right to proceed southbound on Kingsway Avenue at a moderate speed without emergency equipment activated.

Starting at about 5:26:09 p.m., the dispatcher broadcast that there had been a motor vehicle collision at Mary Street and Brown Street. Three people had fled one of the vehicles involved in the collision. The SO activated his emergency equipment and passed several vehicles on Kingsway Avenue. Starting at about 5:26:23 p.m., he turned right onto Mary Street.

Starting at about 5:26:36 p.m., the SO drove westbound on Mary Street and stopped at the intersection of Brown Street, at which time he broadcast that the vehicle involved in the collision was the one he had tried to stop.

The SO spoke to a bystander - CW #3 - and stood at the southeast corner of Brown Street and Mary Street. The SO asked CW #3 where they went, and CW #3 pointed southbound on Brown Street and said they went down to Brock Street.

The SO drove south on Brown Street with his emergency equipment activated and turned right onto Brock Street. Starting at about 5:27:18 p.m., he broadcast that two of the suspects were walking westbound on the sidewalk in front of an address on Brock Street, on the south side of the road. A man - CW #2 - whose truck had been struck, followed the suspects. The SO shouted at the two suspects to stop. They did not do so; the officer exited his police vehicle. The male suspect - the Complainant - stopped and the female passenger continued to walk. The Complainant was bleeding from the facial area.

Starting at about 5:27:29 p.m., the SO handcuffed the Complainant with his hands behind his back, after which he placed the Complainant in the rear passenger compartment of his vehicle. The police vehicle could be seen for the first time. It was an unmarked, dark-coloured SUV with emergency equipment activated.

Starting at about 5:27:35 p.m., at a distance, CW #2 was seen to stop the female passenger, with no physical force. She walked back to the SO on the sidewalk, and he handcuffed her with her hands behind her back. The SO then placed her into the rear passenger compartment of his police vehicle.

ICCS Footage – The SO’s Cruiser

The footage essentially depicted the same pertinent imagery as that captured by the SO’s BWC.
 

GPS Data – The SO’s Cruiser

Starting at about 5:22 p.m., the cruiser travelled westbound on Walsh Street, between Norah Street and Franklin Street, at a speed of 44 km/h.

Starting at about 5:23 p.m., the cruiser travelled westbound on Walsh Street, west of Sprague Street, at a speed of 33 km/h.

Starting at about 5:24 p.m., the cruiser was in the cul-de-sac of Hall Place, south of Walsh Street.

Starting at about 5:25 p.m., the cruiser travelled southbound on Ford Street, which was a continuation of Kingsway Avenue, between Christina Street and Mary Street, at a speed of 51 km/h.

Starting at about 5:26 p.m., the cruiser travelled westbound on Mary Street, west of Edward Street, at a speed of 26 km/h.

Starting at about 5:26 p.m., the cruiser was stopped at Mary Street and Brown Street.

Starting at about 5:27 p.m., the cruiser was stopped facing westbound on Brock Street from Brown Street.

The cruiser had covered a distance of four kilometres.

Communications Recordings

On January 4, 2023, at 5:22:08 p.m., the SO broadcast that a Hyundai had taken off on him after he had tried to stop it.

Starting at about 5:22:27 p.m., the SO broadcast that he was westbound on Walsh Street at Sprague Street, and the Hyundai had failed to stop for a stop sign. The SO advised he had discontinued the pursuit and that he had observed at a distance, at the intersection of Walsh Street and Kingsway Street, the Hyundai almost hit a vehicle.

Starting at about 5:22:42 p.m., the SO advised that, in the distance, he had seen the Hyundai almost hit another vehicle. The SO broadcast that he believed the Hyundai had turned left at the street after the railway tracks [now known to be Hall Place]. The dispatcher requested the reason the SO wanted to stop the Hyundai apart from the fact it had failed to stop for the stop sign. The SO advised that the vehicle had been driven in two lanes, and it was unconfirmed if the driver was licensed or insured.

Starting at about 5:23:57 p.m., the dispatcher advised that the car was not stolen and was a Hyundai. The SO advised dispatch that the Hyundai had probably travelled southbound on Kingsway Avenue.

Starting at about 5:26:09 p.m., the dispatcher broadcast that there had been a motor vehicle collision at Mary Street and Brown Street. Three people had fled one of the vehicles involved in the collision.

Starting at about 5:26:36 p.m., the SO broadcast that he had arrived at Mary Street and Brown Street, and that one of the involved vehicles in the collision was the one he had tried to stop.

Starting at about 5:27:18 p.m., the SO broadcast that two of the suspects were walking westbound on the sidewalk in front of an address on Brock Street, on the south side of the road.

Starting at about 5:27:29 p.m., the SO advised dispatch that he had arrested a man [now known to be the Complainant], who was bleeding from the face, and placed him in his police vehicle.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TBPS between January 7, 2023, and February 7, 2023:
  • CW #3 - video footage;
  • Daily Roster - Day Shift-January 4, 2023;
  • Event Chronology;
  • General Report - the SO;
  • GPS data – the SO’s cruiser;
  • Motor Vehicle Collision Report;
  • Notes – WO #1;
  • Notes – WO #2;
  • Notes – WO #4;
  • Notes – WO #5;
  • Notes – Officer #1;
  • Occurrence History Report;
  • Supplementary Report-the SO;
  • Supplementary Report-Officer #2;
  • Supplementary Report-WO #2;
  • Supplementary Report-Officer #3;
  • Supplementary Report-Officer #4;
  • Technical Collision Report;
  • BWC footage;
  • Communications recordings;
  • ICCS footage;
  • Overhead video of scene;
  • Scene diagram and photographs;
  • Policy - Pursuits;
  • Witness Statement - CW #3; and
  • Witness Statement - CW #1.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from other sources:
  • Superior North Emergency Medical Services - Ambulance Call Report.

Incident Narrative

The material events in question, clear on the evidence collected by the SIU, may briefly be summarized. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

At about 5:22 p.m. of January 4, 2023, the SO, while travelling west on Walsh Street East in the area of Franklin Street South, initiated a pursuit of a Hyundai vehicle. He had observed it travelling over roadway lane markings and had decided to stop it for a possible HTA offence. The officer activated his emergency lights, followed the Hyundai, and watched as it pulled over to the side of the road and momentarily stopped before it accelerated away from the cruiser westward on Walsh Street East.

The SO broadcast what had occurred and accelerated after the Hyundai. Shortly thereafter, the officer saw the Hyundai disregard a stop sign at Sprague Street, after which he broadcast that he had discontinued the pursuit. About 30 seconds had elapsed from the moment the Hyundai had picked up its speed to flee.

Continuing westbound on Walsh Street East, the SO travelled over the train tracks west of Kingsway Avenue and turned left onto Hall Place, where he believed he had seen the Hyundai turn onto. Not finding the Hyundai there, and surmising that it must have turned left to travel south on Kingsway Avenue, the officer maneuvered onto Kingsway Avenue and travelled south still looking for the vehicle.

The Complainant was the driver of the Hyundai. He had, in fact, turned left to travel south on Kingsway Avenue, thereafter turning right onto Mary Street where he travelled west. The Complainant entered the intersection of Brown Street, making no attempt to come to a stop at the stop sign, and struck a southbound vehicle. Following that collision, the Hyundai travelled a further short distance and struck a pick-up truck that was stopped on Mary Street West facing east at the Brown Street stop. News of the collision was received by the TBPS via 911 calls at about 5:25 p.m.

On hearing a broadcast regarding the collision, the SO made his way to the intersection of Mary Street West and Brown Street where he confirmed that the Hyundai was the vehicle he had been following. The officer learned that the Hyundai’s occupants had left the collision site walking southbound. He drove south on Brown Street and located the Complainant on Brock Street West, taking him into custody without incident. [3]

The Complainant was taken from the scene in ambulance to hospital. He was reportedly diagnosed with facial fractures.

Relevant Legislation

Section 320.13 (2), Criminal Code – Dangerous operation causing bodily harm

320.13 (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 seriously injured in a motor vehicle collision in Thunder Bay on January 4, 2023. As the vehicle he was operating had briefly been pursued by a TBPS officer moments before the collision, the SIU was notified of the incident and initiated an investigation. The TBPS 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.

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.

I am unable to conclude on the evidence that the SO acted unlawfully in seeking to stop the Complainant and the Hyundai he was driving. He had apparently seen the vehicle travelling over roadway lane markings, and was within his rights in wanting to investigate a potential Highway Traffic Act infraction.

With respect to the events that followed, the evidence does not give rise to any apparent want of care on the part of the SO. The decision to initiate and then terminate the pursuit occurred within a matter of seconds, during which time there is no indication of conduct on the part of the officer amounting to a danger on the roadway. Thereafter, the evidence indicates that the SO comported himself with due care and regard for public safety as he continued to drive along the path that the Hyundai had taken at moderate speeds. He was nowhere near the Hyundai when it entered into the Mary Street West and Brown Street intersection and struck two other vehicles.

In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care in connection with the series of events that culminated in the collision involving the Complainant’s Hyundai, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: May 3, 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]
  • 3) A female passenger inside the Hyundai was also located and taken into custody without incident. [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.