Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release 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 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the death of a 36-year-old man (Complainant) on October 13, 2017.

Notification of the SIU

At approximately 11:15 p.m. on Friday, October 13, 2017, the Hamilton Police Service (HPS) notified the SIU of the Complainant’s death.

The HPS reported that the Complainant had contacted his father, CW #3, by cellular telephone and told him he had been at a party and someone had put something into his drink. The Complainant indicated that he was walking somewhere in Ancaster and was disoriented.

The SO was driving west on the Lincoln Alexander Parkway (LAP) when he observed the Complainant standing on the median near the Highway 403 exit. The Complainant ran across the LAP and was struck by a transport truck. The Complainant was transported to the hospital where he was pronounced dead.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 2

Number of SIU Accident Reconstructionists: 1

Complainant:

36-year-old male, deceased

Note: A complainant is an individual who was involved in some form of interaction with police, during the course of which she or he sustained serious injury, died or is alleged to have been sexually assaulted.

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

Subject Officers

SO Declined interview or to provide notes, as is the subject officer’s legal right, but provided a written statement.

Note: A subject officer is a police officer whose conduct appears, in the Director’s opinion, to have caused the death or serious injury under investigation.

Subject officers are invited, but cannot be legally compelled, to present themselves for an interview with the SIU and they do not have to submit their notes to the SIU pursuant to Ontario Regulation 267/10 of the Police Services Act.

The Scene

The scene was located on the LAP in Ancaster, approaching the Rousseaux Street exit on the left and the Highway 403 exits on the right. It was dark out, but there was artificial lighting in the area. The roads were dry and the atmosphere was cool and damp.

Scene Diagram

Expert Evidence

SIU Reconstructionist Report

Shortly after 9:00 p.m. on October 13, 2017, just prior to the collision in question, the Complainant was on foot in the area of the median that separates the Highway 403 off ramps from the Rousseaux Street off ramp of the LAP or on the Rousseaux Street off ramp of the LAP. The LAP is designated a controlled access highway with security fencing on both sides and the speed limit is posted at 90 km/h. It was dark with some artificial lighting, the roads were dry and the atmosphere was cool and damp. At the same time, the SO was with his cruiser some distance west of the Complainant on the right shoulder of the LAP when he asked the HPS dispatcher to have the Complainant walk towards his cruiser. Within seconds the Complainant proceeded northbound across the Rousseaux Street off ramp just west of the bullnose. He was struck by the right front fender of an unknown westbound vehicle on the Rousseaux Street off ramp, which did not remain at the scene. The Complainant continued northbound into the passing westbound lane of the LAP. At the same time and at a calculated speed range of 77 to 87 km/h, a 2015 Freightliner tractor trailer unit was driven westbound in the passing westbound lane by CW #2. The Complainant’s full body was impacted by the front grill of the tractor trailer and he was thrust northwest with his body coming to rest in the westbound lane of the LAP. CW #2 applied the brakes to the tractor trailer and turned to the left, bringing the tractor trailer to rest facing west between the solid white paint marks of the Rousseaux Street off ramp bullnose. The SO reported the incident to his dispatcher and with activated emergency roof lighting, blocked off the passing and center westbound lanes of the LAP just east of the Complainant’s body.

Video/Audio/Photographic Evidence

Surveillance video from the Billy Bee Variety Store revealed the Complainant in the store from approximately 7:53 p.m. speaking on his cellular phone and purchasing a soft drink.

Communications Recordings

HPS Communication Recordings & Computer Aided Dispatch (CAD)

The SIU obtained and reviewed the audio communication recordings and the event chronology report from the HPS, which depicted the following:

8:42:34 p.m. CW #3 placed a 911 call to the Ontario Provincial Police (OPP) which was transferred to the HPS. CW #3 and his wife were speaking to the Complainant via cellular telephone. CW #3 told the call taker that his son, the Complainant, was somewhere in Ancaster in a disoriented state

. The Complainant told CW #3 that he thought someone had put something into his drink. CW #3 told the call taker they had been on the telephone for a half hour with the Complainant trying to figure out where he was located before calling the police for help. CW #3 said the Complainant was walking on a bike path near Highway 403.

8:50:07 p.m. The SO is dispatched to the area of Highway 403 in Ancaster.

8:54:44 p.m. CW #3 tells the dispatcher that the Complainant could see a sign for Highway 403 to Toronto.

8:55:23 p.m. CW #3 tells the dispatcher that the Complainant can see the Costco.

9:00:07 p.m. The SO is in the area on Highway 403 in Ancaster.

9:04:00 p.m. CW #3 tells the dispatcher that the Complainant can now see the Home Depot and there is also construction in the area. The dispatcher advises that the Complainant could be at Rousseaux.

9:04:14 p.m. CW #3 tells the dispatcher that the Complainant is walking on the roadway.

9:04:31 p.m. CW #3 tells the dispatcher that the Complainant can see the police.

9:05:14 p.m. The SO tells the dispatcher to have the Complainant walk towards him.

9:05:24 p.m. The SO requests an ambulance.

9:05:45 p.m. The SO reports that the Complainant ran across the road and got hit.

Cause of Death

The post-mortem examination was performed on October 14, 2017. The attending pathologist reported that the Complainant died as a result of multiple blunt force trauma to his head and torso.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HPS:

• Computer Aided Dispatch (CAD) Event Chronologies (x4)
• Notes of WOs #1 and #2
• Written Statements of the SO, and WOs #1 and #2
• Police Transmission Communications Recordings, and
• 911 Call Recording

The SIU obtained and reviewed the following materials and documents from other sources:

• Still photos of the Complainant in the Billy Bee Variety Store from their surveillance footage

Sections 219 and 220, Criminal Code - Criminal negligence Causing Death

219 (1) Every one is criminally negligent who

1. in doing anything, or
2. in omitting to do anything that it is his duty to do

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, “duty” means a duty imposed by law.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

1. where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years, and
2. in any other case, to imprisonment for life

On October 13, 2017, at approximately 8:00 p.m., the parents of the Complainant received a telephone call from him reporting that he believed that someone had spiked his drink and he was lost and disoriented somewhere in the Ancaster area unable to make his way home. After speaking to their son for some time, at approximately 8:42 p.m., the Complainant’s parents made a 911 call in the hope that police could locate and assist their son.

At 8:50 p.m., the SO was dispatched to the area of Highway 403 in Ancaster. While the SO searched for the location of the Complainant, the police operator remained on the line with his parents, who were relaying what their son was saying. This information, in turn, was being conveyed to the responding officers, including the SO.

At approximately 9:00 p.m., CW #1, an employee of the City of Hamilton Road Maintenance Department observed the Complainant sitting on a concrete barrier on his right as CW #1 was driving westbound on Rousseaux Street west of the LAP/Highway 403 junction. CW #1 observed the Complainant to be speaking on his cellular phone. CW #1 described the area as being dark and the posted speed limit on the LAP was 80 km/h.

CW #1 returned to the area shortly thereafter and observed the Complainant walking eastbound towards the LAP, approximately 200 yards ahead of where he had last seen him. CW #1 stopped his motor vehicle near the Complainant and asked him if he was okay and told him that he was going to get hurt. He saw the Complainant speaking on his cellular phone and heard him tell someone on the phone, “I’m talking to them now.” CW #1 described the Complainant as coherent and not appearing either intoxicated or mentally unstable, but possibly annoyed.

In or around the same time, another motorist, CW #5, who was driving eastbound on Rousseaux Street approaching the LAP, saw the Complainant on his left walking eastbound on the median over the Highway 403 overpass towards the LAP. CW #5 described the Complainant as being approximately 200 yards from the LAP and talking on his cellular phone. CW #5 indicated that the Complainant appeared to be walking normally. At the time of CW #5’s observations of the Complainant, he did not observe any police vehicles in the area.

Shortly after 9:00 p.m., the SO was driving westbound on the LAP towards the Rousseaux Street and Highway 403 split when he observed the Complainant walking east on the centre median, talking on his cell phone. The SO stopped his police cruiser on the right shoulder of the LAP and exited his vehicle, calling out to the Complainant. He received no response, with the Complainant continuing to walk eastbound. The SO then activated his roof lights and siren to attempt to attract the Complainant’s attention. The SO re-entered his cruiser and began to drive backwards in order to come closer to the Complainant, but decided that that was unsafe and stopped. The SO again exited his cruiser, whereupon he was advised by the police operator that the Complainant had told his parents that he could see the police cruiser. The SO advised the dispatcher to relay to the Complainant that he should walk towards the cruiser.

At around this time, CW #2 was driving his transport trailer in the westbound lanes of the LAP. It was his intention to exit onto Highway 403 westbound towards Brantford. When he was approximately one mile from the Rousseaux Street and Highway 403 exits, he saw the SO’s police cruiser with its emergency lighting system activated. CW #2 described the area as dark, with some artificial lighting in the centre median and a lot of vehicular traffic. As CW #2 approached the exits, he merged into the left lane and slowed. He observed a vehicle ahead of him merging onto the Rousseaux Street exit and suddenly brake hard. CW #2 also braked.

As CW #2 passed the vehicle which was now to his left on the Rousseaux Street exit, the driver of the vehicle again applied his brakes. CW #2 saw the Complainant dash in a northerly direction from the front of the vehicle into the vehicle lanes of the LAP. The right front fender of the vehicle ahead of CW #2 struck one of the Complainant’s feet, causing the Complainant to spin and face CW #2 in his lane. As the Complainant was only one to two feet in front of the front of CW #2’s truck, CW #2 was unable to avoid striking him. The front grill of CW #2’s tractor trailer struck the Complainant, and he tumbled and fell to the roadway on his stomach. CW #2 stopped and parked on the median between the Rousseaux Street exit and the Highway 403 west exit. CW #2 advised that the driver who had initially struck the Complainant did not stop.

CW #2 observed a marked police cruiser stopped with its emergency lights activated approximately one and a half tractor trailer lengths ahead of CW #2. The police cruiser then activated its siren and made a U-turn, parking on Rousseaux Street facing eastbound, not far from where the Complainant was lying on the roadway. CW #2 advised that he and the SO both ran toward the Complainant at the same time.

The SO, in his written statement, advised that he told the police operator to tell the person speaking with the Complainant to have him come back towards his cruiser. As the SO was returning to his cruiser, he heard a loud bang and could see smoke coming from the front of a tractor trailer. When the SO could no longer see the Complainant, he realized that he must have been struck. The SO re-entered his cruiser and drove eastbound on the LAP against traffic to the location where the Complainant was lying in the roadway, in the second lane from the centre, where the SO used his police cruiser to block traffic. He notified the police operator that he required both an ambulance and other units at his location to assist.

The SO, and WO #1 and WO #2 (arriving shortly after the call for assistance), provided life saving measures to the Complainant until the ambulance arrived and paramedics took over. The Complainant was then transported to hospital, where he was pronounced dead at 10:10 p.m.

The only criminal charge open for consideration on these facts would be one of criminal negligence causing death contrary to s. 220 of the Criminal Code. As an offence of penal negligence, it is premised in part on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. Clearly, there is little, if anything, to be criticized with the manner in which the SO conducted himself as he attempted to find the Complainant and ensure his safety. He successfully located the Complainant within minutes of being dispatched to the scene. Once there, the officer called out to the Complainant across the highway. Receiving no response, the SO turned on his emergency lights to attract the Complainant’s attention. That action would also have placed some, if not all, motorists in the vicinity on notice that they should approach the scene with an added degree of caution. At some danger to his own wellbeing, the SO proceeded to reverse his cruiser along the shoulder of the highway to get closer to the Complainant, but quickly abandoned that effort, wisely in my view, given the public safety risks inherent in the maneuver. Immediately after the collision, the SO approached the Complainant on the roadway with his cruiser, positioned it so as to protect the Complainant from passing traffic and, with other responding officers, began to render first aid pending the arrival of paramedics.

The only possible objection with the SO’s conduct on the night in question lies with his decision to ask the police operator to have the Complainant’s parents tell their son to move towards the cruiser; by that time, it had become apparent that the Complainant was aware of the officer’s presence across the highway. Shortly thereafter, that direction having in fact been conveyed by the Complainant’s parents, the Complainant made his way onto the highway and was fatally struck by a westbound tractor trailer. Was it wise to suggest that the Complainant do something that could conceivably place him in harm’s way from the fast moving traffic around him, knowing as the officer did that the Complainant was not in a right frame of mind and may have been having trouble seeing? Probably not. That said, it is unclear whether the Complainant actually received or specifically acted on that direction. Moreover, it is not clear that it was the SO’s intention that the Complainant cross the highway; it is equally likely, in my view, that the SO had simply wanted the Complainant to make his way west along the median toward the cruiser (and not across the highway) to facilitate communication between the two.

In the final analysis, given the mitigating circumstances associated with the SO’s singular indiscretion, if it be such, and weighed against the professionalism with which the officer otherwise approached his task, I am satisfied on balance that the SO exercised a level of care in his dealings with the Complainant that fell well within the limits prescribed by the criminal law. Consequently, there are no reasonable grounds to believe the SO committed a criminal offence in connection with the Complainant’s tragic death and this file is closed.

Date: August 7, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit