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 serious injuries reportedly sustained by a 25-year-old man following attendance at a police station on November 11^th, 2017.

Notification of the SIU

At approximately 12:02 a.m. on Sunday, November 12^th, 2017, the Ontario Provincial Police (OPP) reported a vehicle injury to the Complainant occurring in the town of Strathroy.

The OPP reported that the Complainant had injured himself earlier at an incident in Strathroy. He was taken to the hospital where he was treated by the nursing staff, who received the assistance of members of the Strathroy-Caradoc Police Service (SCPS). After he was treated he was released and left the hospital with his grandmother and sister.

The Complainant later attended the closed OPP Middlesex Detachment. The SO spoke to him briefly. The Complainant left the Detachment while not in the presence of the SO and ran in front of a civilian vehicle where he was struck by the vehicle and critically injured.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 2

Investigators attended the scene at the OPP Detachment in Strathroy and examined and photographed the area. A Total Station measurement was completed.

Complainant:

25-year-old male, unable to be interviewed due to nature of injuries

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

WO #5 Interviewed, notes received and reviewed

WO #6 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, notes received and reviewed

On the evening of Saturday, November 11^th, 2017, the Complainant was at a residence in Strathroy. The Complainant and six other individuals present were highly intoxicated. The Complainant became injured when he either punched a window or was pushed into a window during an altercation and he sustained a serious laceration to his left hand. As a result, 911 was called by someone inside the residence.

At approximately 8:47 p.m., the SCPS received a medical assist call to the residence, related to the Complainant. WO #4, WO #6 and WO #5 were dispatched to the residence. Upon arrival, the officers were met with resistance from the Complainant who was refusing medical treatment from EMS, who were on scene. It became apparent that the Complainant was too intoxicated to care for himself and, despite his objections, he was carried out of the residence by the officers and placed on a stretcher.

The Complainant calmed down once outside the residence, and was transported to hospital. Once at the hospital, the Complainant had sufficiently calmed down to allow the SCPS police officers to leave him in the emergency department to be dealt with by nursing staff. Once at the SCPS station, CW #2 was contacted and advised that the Complainant had been injured and taken to the hospital.

CW #2, along with CW #1, went to the hospital at approximately 11:00 p.m. where they picked up the Complainant after he had received stitches to his left hand and had been discharged. Once in the company of his family, the Complainant again became agitated. CW #2 was driving northbound along Centre Road[1] in Strathroy, when she felt she could not control the Complainant and she pulled into the parking lot of the Strathroy OPP Detachment.

The Complainant went to the front door and began banging on the door, while CW #2 and CW #1 remained at the vehicle and called 911. The OPP Detachment was closed, but the SO was inside. The SO heard the Complainant banging on the door and she went to investigate. The SO answered the door and saw that the Complainant was bleeding and agitated and, after a brief discussion, the SO told him to wait at the door while she went inside the Detachment to retrieve her gloves. The Complainant returned to CW #2’s vehicle and decided that he was not waiting, and he walked across the parking lot and headed towards Centre Road, where he disappeared out of view and into the darkness.

At approximately 11:25 p.m., CW #3 and CW #4 were driving northbound on Centre Road in the vicinity of the OPP Detachment; there was no artificial lighting and it was dark. The Complainant was most likely walking in the middle of Centre Road and CW #3 did not see him. CW #3’s vehicle was traveling at highway speeds when he struck the Complainant.

CW #2 and CW #1 were still at their vehicle when they saw a vehicle pass by the OPP Detachment and then they heard a thud.

CW #3 was unsure what had happened but believed he had hit something, so he pulled onto the right shoulder of Centre Road and stopped.

Shortly after, the SO came out of the Detachment and was notified by CW #2 that the Complainant had walked onto the roadway and may have been struck by a vehicle. The SO entered a cruiser and drove out of the parking lot and onto Centre Road, where she saw the Complainant lying in the middle of the roadway. The SO then blocked the roadway as best she could with her cruiser.

Nature of Injuries/Treatment

The Complainant was initially transported by ambulance to the local hospital and then later to a second hospital for treatment. He was diagnosed with multiple brain bleeds and a broken right femur. His eyes were not reactive to light, he had nerve shearing[2] and a shunt[3] was inserted into his head. One month after the incident, he remained in hospital in a coma with his breathing being assisted. He is unlikely to recover.

The Scene

The incident occurred just north of the OPP Detachment at 28444 Centre Road in Strathroy. This is a posted 60 km/h, straight and level, two lane roadway. The road was dry without street lights. A paved shoulder lined the west side of the road. A gravel shoulder lined the east side. A Buick motor vehicle was located on scene, parked on the east shoulder with fresh damage to the left side of the hood and bumper. The left headlight was broken. Debris from the broken headlight lay in the northbound lane. There was a black running shoe, a wallet, and a small pool of blood in the southbound lane near the centre line.

The Detachment was on the east side of the road south of the collision. The parking lot of the Detachment is on the north side of the building surrounded by grass. There were two sets of footprints in light snow on the grass between the parking lot and the Detachment. They were not identifiable and the direction of travel could not be determined. The collision was about 160 metres from the front door of the Detachment. There was no video surveillance at the Detachment.

Scene Diagram

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

On November 22^nd, 2017, the SIU attended the hospital where the Complainant had originally been seen prior to his attendance at the OPP Detachment, and requested a copy of the surveillance video for the evening of November 11^th, 2017. According to a security officer, a warrant would be needed for the SIU to receive a copy of the video; however, the officer was prepared to allow the SIU to “view” the video. The following is a summary of the video:

• On Saturday, November 11^th, 2017, at 10:22 p.m., the Complainant arrived at the triage area of the hospital on an ambulance stretcher. He lay on his right side and had a bandaged left hand. He appeared settled and cooperative. The Complainant was wheeled to a treatment room and was cooperative throughout, and
• At 10:23 p.m., the Complainant was escorted to a washroom by a nurse. He did not require assistance to walk. At 10:58 p.m., CW #2 entered the treatment room and at 11:04 p.m., the Complainant exited the room, walked to the end of the hallway, and returned to his room. He was slightly unsteady on his feet but easily walked without falling or requiring assistance. At 11:07 p.m., the Complainant left the room after being treated, followed shortly afterwards by CW #2

Communications Recordings

Summary of the OPP Communications Recording

The OPP communications recording for this incident was obtained and reviewed.

• On Saturday, November 11^th, 2017 at 11:17:08 p.m., the SO told communications that there was a person knocking at the front door of the detachment and she was investigating. A short time later, the SO stated that the Complainant had been dropped at the detachment by his grandmother and it appeared to be a family dispute. She told communications that the Complainant had blood on his shirt. Other police officers were assigned to assist the SO at the detachment
• At 11:20:55 p.m., the SO told Communications to dispatch an ambulance as she had located the Complainant in the ditch in front of the Rona store next to the detachment. The SO then immediately corrected the location of the Complainant as being in the roadway on Centre Road. She stated he appeared to have been struck by a vehicle. The SO was excited and yelled, “EMS right now! Expedite London! Expedite!” She updated the Complainant’s condition and stated he was breathing, had a head injury and a broken leg, and was unresponsive, and
• Several other OPP units were dispatched to assist at the collision which included the supervisor, WO #3

Materials obtained from Police Service

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

• SCPS Background Event Chronologies and Event Registers
• SCPS Occurrence Summary and Event Details
• SCPS Event Details
• OPP Event Details and Unit History
• OPP General Occurrence Report
• Supplementary Occurrence Report
• OPP Notes of WO #s 1-3, an undesignated officer, and the SO
• SCPS Notes and Written Statements of WO #s 3-6 and an undesignated officer
• OPP Witness Statement from CW #s 1-4
• SCPS Witness Statement from another civilian, and
• OPP Communication recordings of the incident

Additionally, surveillance video was examined from the hospital where the Complainant had originally been treated.

Sections 219 and 221, Criminal Code - Criminal negligence Causing Bodily Harm

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.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

On November 11^th, 2017, Strathroy-Caradoc Police Service officers were dispatched to a disturbance at a residence in Strathroy. Upon arrival, they observed that the Complainant had apparently suffered an injury to his hand and was too intoxicated to consent to medical treatment. As a result, a decision was made to forcibly remove the Complainant from the premises and turn him over to paramedics for medical treatment as he appeared incapable of caring for himself. The Complainant was then transported by ambulance to hospital, where he was left in the care of medical personnel and his injury was sutured. Police then left to return to other duties. Once the Complainant had been treated, the hospital contacted CW #2 and she attended to drive him home.

CW #2 attended with CW #1 and picked the Complainant up at hospital and began to drive him home. As they were driving on Centre Road, the Complainant became agitated and CW #2 stopped at the OPP detachment which was closed for the night. The Complainant got out of the car, approached the detachment, and knocked on the door.

At the time of the Complainant’s arrival, the SO was alone at the detachment, as the detachment was closed to the public for the night. Upon hearing the banging at the door, at 11:17:08 p.m., the SO notified communications that there was a person knocking at the front door of the detachment and she was going to investigate. This is confirmed by the police communications recording. The SO then went to the door of the detachment where she observed CW #2’s vehicle running in the parking lot and the Complainant at the door. The SO indicated that when she asked the Complainant what was going on, he told her that his grandmother thought he was too drunk and that he should be in the police cells. The SO advised that she did not immediately note any obvious signs that the Complainant was indeed intoxicated, but she did observe blood on his shirt and she asked the Complainant to wait outside the door while she went to get her gloves. This is confirmed by the communications recording wherein the SO is heard to report that the Complainant had been dropped at the detachment by his grandmother and that it appeared to be a family dispute. She is further heard to report on the recording that the Complainant had blood on his shirt.

The SO advised that it was her intention at that time to retrieve her rubber gloves and then bring the Complainant into the detachment to investigate what she believed to be a family dispute. When the SO returned to the front door 15-20 seconds later, the Complainant was no longer at the door. The SO asked CW #1 where the Complainant had gone and CW #1 pointed north toward Centre Road. The SO called out to the Complainant to return, without response.

At the time that the Complainant was walking on Centre Road, CW #3 was driving his car, with CW #4 as a passenger, on Centre Road northbound towards his home. There was no other traffic on the road at that time. CW #3’s motor vehicle then struck the Complainant. CW #3 immediately backed up and found the Complainant lying in the centre of the roadway. The Complainant was unresponsive.

Within one to two minutes of the collision, the SO was seen to drive out of the detachment and onto the roadway. The SO drove towards CW #3’s motor vehicle, activated her emergency lights, and radioed for an ambulance. This is confirmed by the communications recording wherein the SO is heard to request that an ambulance be immediately dispatched as she had located the Complainant in the roadway on Centre Road and that he appeared to have been struck by a vehicle. The SO’s voice appears excited as she yelled repeatedly that emergency medical personnel were required immediately. She updated the Complainant’s condition indicating that he was breathing but appeared to have a head injury and a broken leg and he appeared unresponsive.

During the course of this investigation, four civilian and seven police witnesses, including the subject officer, were interviewed. Additionally, investigators had access to the communications recording, the notes and prepared statements of the SO and several WOs, and the statements taken from all civilian witnesses by the OPP. All of the evidence is consistent with the above sequence of events; there is no dispute as to the facts. At the time of writing this decision, the Complainant was in hospital on life support and could not be interviewed.

The only criminal charge open for consideration on these facts would be one of criminal negligence causing bodily harm contrary to s.221 of the Criminal Code. There is no dispute that the serious injuries suffered by the Complainant were not directly attributable to the actions of the SO, the only question being whether or not the SO failed in her duty when she left the Complainant at the door of the detachment while she went to retrieve her rubber gloves. Specifically, the question to be posed is whether the SO omitted to do anything that it was her duty to do and, in failing to do so, showed a wanton or reckless disregard for the life or safety of the Complainant (s.219 of the Criminal Code: definition of criminal negligence).

There are numerous decisions of the higher courts defining the requirements to prove an offence of criminal negligence; while most relate to offences involving driving, the courts have made it clear that the same principles apply to other behaviour as well. In order to find reasonable grounds to believe that the SO committed the offence of criminal negligence causing bodily harm, one must first have reasonable grounds to believe that she had a duty toward the Complainant which she omitted to carry out, and that omission, pursuant to the decision of the Supreme Court of Canada in R. v. J.F. (2008), 3 S.C.R. 215, represented ‘a marked and substantial departure from the conduct of a reasonably prudent person in circumstances’ where the SO ‘either recognized and ran an obvious and serious risk to the life’ of the Complainant ‘or, alternatively, gave no thought to that risk’. The courts have also made clear that the risk of bodily harm to the Complainant must have been foreseeable to the SO (R. v. Shilon (2006), 240 C.C.C. (3d) 401 Ont. C.A.)

While the OPP does not have any established policy with respect to the obligations of an officer who is manning a closed OPP station when a member of the public attends seeking assistance, it is clear on all of the evidence that the SO had every intention of dealing with the Complainant and investigating his situation. This is confirmed by her transmission to the communications centre at the time that the Complainant banged on the detachment door.

The SO attended and briefly spoke to the Complainant and, observing him to have blood on his shirt, determined it prudent to first obtain her rubber gloves and advise communications of the situation. On this evidence, I cannot find that the SO’s actions, which caused a delay of some 15-20 seconds and which appeared advisable in the circumstances, amounted to an omission to carry out her duties, were I to find that she indeed had any duty to deal with the Complainant, which is unclear, nor did it amount to ‘a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances’.

Furthermore, I find that the actions of the Complainant, in then walking away from the detachment and onto the roadway where he was struck by CW #3’s motor vehicle, would not have in anyway been foreseeable to the SO, and there is no evidence that she ‘either recognized and ran an obvious and serious risk to the life of the Complainant or, alternatively, that she gave no thought to that risk’.

Rather than reasonable grounds to believe that the SO showed a wanton and reckless disregard for the life or safety of the Complainant, it appears that she was in fact actively seeking to assist him, she simply was not willing to do so without first ensuring her own safety by both donning her protective gloves and by advising communications of the situation in order that other officers could be contacted to assist. Furthermore, once the SO learned that the Complainant had been struck by a passing vehicle, she immediately went to his aid and asked communications to expedite medical assistance.

In all of these circumstances, I cannot find reasonable grounds to believe that the SO’s actions satisfy any of the elements required in order to pursue a charge under s.221 of the Criminal Code in that she neither omitted to carry out any duty to act, nor did her actions amount to a marked and substantial departure from the conduct of a reasonably prudent person in her circumstance, she did not show a wanton or reckless disregard for the life or safety of the Complainant, and his subsequent injuries were totally unforeseeable in the circumstances. On all of the evidence, it appears that the tragic injuries suffered by the Complainant were as a result of his voluntary actions in walking on the roadway where he was subsequently unfortunately struck by a passing motorist and there is no causal connection between the actions of the SO and the injuries to the Complainant. On this record, I can find no basis for the laying of criminal charges and none shall issue.

Date: March 21, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Addendum

On January 18, 2018, the Complainant in this case passed away, a fact which came to the SIU’s attention on August 15, 2018 as the lead investigator reached out to the deceased’s grandmother to notify the family of the results of the SIU’s investigation. I had earlier concluded the investigation by way of a report to the Attorney General dated March 21, 2018, in which I indicated there were no grounds to proceed with criminal charges against the subject officer in connection with what were then believed to simply be the Complainant’s serious injuries (see Director’s Report to the Attorney General, File No. 17-PVI-333). We now know that the Complainant’s death, the result of aspiration pneumonia (in combination with poly trauma and cerebral trauma), was directly attributable to the brain injury he sustained in the course of the incident giving rise to the SIU’s investigation.

In view of these findings, I have considered whether they in any way alter my ultimate conclusion that there were no grounds for proceeding with charges against the subject officer, and determined they do not. More specifically, while section 220 of the Criminal Code should have been the provision for consideration instead of section 221, I am satisfied that the fact that a death occurred instead of simply bodily harm in no way changes the criminal negligence liability analysis in this case.

It is also apparent that the file number in this case should read “17-PCD-333”, instead of “17-PVI-333”, to reflect the fact that the investigation ultimately involved a “custody death”, not a “vehicle injury”.

Accordingly, in order to correct and complete the record in respect of this matter, this addendum should be appended to the Director’s Report to the Attorney General dated March 21, 2018, previously submitted to your office.

Date: September 20, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Centre Road is also known as Highway 81. [Back to text]
• 2) [2] The brain’s long connecting nerve fibres are severed due to the shift of the brain during trauma. [Back to text]
• 3) [3] A drain used to relieve pressure inside the cranial space. [Back to text]