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 motor vehicle collision and resulting death of a 19-year-old man on September 3, 2016 in Hamilton.

Notification of the SIU

The SIU was notified of the incident on September 30, 2016, when Civilian Witness (CW) #1 left a telephone message with the SIU, which was returned on October 1, 2016, at 1:52 p.m.

CW #1 told the SIU that the Complainant had died on September 2, 2016, in a motorcycle collision at the intersection of Main Street East and James Street South in downtown Hamilton. CW #1 said that the Hamilton Police Service (HPS) lead investigator [now known to be Witness Officer (WO) #2] told him that the Complainant had been driving very fast, and that the police did not contribute to the fatal collision. However, CW #1 said that three men told him that the police had been pursuing the Complainant, prior to the collision. CW #1 pointed out that the motorcycle that the Complainant was riding had no license plate, and the deceased had no ownership or insurance documents. As a result, the family members of the deceased were suspicious about what they had been told by the HPS.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Number of SIU Collision Reconstructionists assigned: 1

Complainant

19-year-old male, deceased

Civilian Witnesses

CW #1 Interviewed[1]

CW #2 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

Additionally, the notes from 10 other, non-designated officers were received and reviewed[2].

Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.

Physical Evidence

Global Positioning System (GPS) for the SO’s Cruiser

It was discovered that the GPS in the SO’s cruiser was not functioning properly on September 3, 2016, at the time of the incident. The radio services found that the modem’s configuration had been lost. This is a relatively common failure, and results in position reports not being forwarded to the Computer Aided Dispatch system. Restoring the modem’s configuration will likely correct the problem.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. HPS provided scene photos as well as surveillance videos received from the parking lot and garage at 1 and 25 Main Street, Hamilton.

1. Video of Parking Lot and Garage at 1 and 25 Main Street, (C10 1 Main St E) Main and James

• The video camera is situated on a building on the southwest corner of the intersection of Main Street West (Main Street West became Main Street East on the other side of this intersection) and James Street South, looking down into the intersection
• The southwest quadrant of the intersection was obscured by the building
• There was no time stamp on the video but there was a running time at the bottom
• Investigators used the display of the running time to make the following observations:
  • 0:00:28 – Traffic light for eastbound Main Street West traffic was green. The pick-up truck driven by a non-designated civilian witness involved in the collision (pick-up truck driver) pulled up to a red light travelling southbound on James Street South in the centre of three lanes. Another vehicle [now known to be occupied by the HPS collision witnesses (HPS Witness Driver and Passenger)] which was travelling the same direction as the pick-up truck driver but in the curb lane, stopped directly beside the pick-up truck driver at the stop line
  • 0:00:46 – The traffic light for eastbound Main Street West turned red
  • 0:00:50 – The pick-up truck driver accelerated into the intersection. The HPS Witness Driver entered the intersection slower than the pick-up truck driver. A vehicle travelling northbound also entered the intersection
  • 0:00:55 – The motorcycle being operated by the Complainant was on its side sliding through the intersection (collision occurred out of view of the camera). The HPS Witness Driver stopped across the eastbound lanes of Main Street West as the collision had just occurred directly in front of his vehicle. The motorcycle came to rest just east of the intersection in the centre of five lanes facing east
  • 00:01:01 – The HPS Witness Driver pulled forward consistent with moving out of the way of approaching eastbound traffic
  • 0:01:08 – A vehicle travelling southbound on James Street South pulled up to the intersection and stopped at the stop line and a person exited and went towards the location where the Complainant was lying. Only the front driver’s side corner of the vehicle was visible. It was not possible to determine the make and model of the vehicle
  • 0:01:23 – The traffic light for eastbound Main Street West turned green
  • 0:01:30 – Flashing lights could be seen on the surrounding buildings consistent with the presence of a police cruiser at the scene (about 35 seconds had elapsed since the collision)
  • 0:01:42 – Other eastbound traffic proceeded slowly into the intersection, and
  • 0:02:00 – The clip ended

2. Video of Parking Lot and Garage at 1 and 25 Main Street, (C11 1 Main St W) Parking Lot, West View

• The video camera is situated on a building on the southwest corner of the intersection of Main Street West and James Street South, looking down onto a parking lot on the south side of the road and the eastbound lanes of Main Street West from MacNab Street South and approaching James Street South:
  • 0:00:51 – The motorcycle being operated by the Complainant travelled eastbound east of MacNab Street South
  • 0:01:17 – The police vehicle being operated by the SO travelled eastbound through the intersection of MacNab Street South followed by several vehicles, and
  • 0:02:00 – The clip ended

3. Video of Parking Lot and Garage at 1 and 25 Main Street, (C12, C13 25 Main St W) McNabb St North View

• The video camera is situated on a building on the south side of Main Street West looking at the traffic light controlled intersection of Main Street West and MacNab Street South:
  • 0:00:38 – The traffic light for MacNab Street South turned green; The motorcycle being operated by the Complainant is not seen on video (not picked up by motion sensor);
  • 0:01:03 – The traffic light for MacNab Street South turned amber
  • 0:01:06 – The traffic light for MacNab Street South turned red
  • 0:01:13 – The police vehicle being operated by the SO travelled eastbound through intersection of MacNab Street South followed by numerous vehicles, and
  • 0:01:51 – The clip ended

4. Video of Parking Lot and Garage at 1 and 25 Main Street, (C57 25 Main St W) MacNab Street South and Main St, East View

• The video camera is situated on a building on the south side of Main Street West looking at the eastbound lanes of Main Street West between MacNab Street South and James Street South:
  • 0:00:45 – The motorcycle being operated by the Complainant travelled eastbound just east of MacNab Street South
  • 0:00:46 – The motorcycle brake light activated
  • 0:00:48 – The motorcycle is at James Street South, collision occurred
  • 0:01:13 – The police cruiser is eastbound just east of MacNab Street South, followed by other eastbound traffic
  • 0:01:19 – The police cruiser arrived at the collision scene at James Street South, and
  • 0:01:50 – The clip ended

Expert evidence

SIU reconstructionist report

The SIU Traffic Reconstructionist reviewed the video camera footage which assisted him in compiling his report.

Using the times from the surveillance video and measurements from Google Maps, the SIU Reconstructionist made the following observations:

• The distance from the collision scene at Main Street West and James Street South, to the point at which the motorcycle and the police cruiser were seen on video #4, was approximately 100 metres;
• At a high rate of speed, the Complainant drove through a red light at Main Street West and MacNab Street South
• In between MacNab Street South and James Street South, the Complainant travelled approximately 100 metres in three seconds, therefore he was travelling approximately 119 km/h
• The police cruiser entered the intersection of Main Street West and MacNab Street South on a fresh green signal
• The police cruiser being operated by the SO travelled past a point on Main Street West just east of MacNab Street, 25 seconds after the motorcycle had passed the same point
• The SO arrived at the scene 31 seconds after the collision occurred
• If the SO was travelling 50 km/h (the speed limit, and the speed at which the traffic lights are sequenced for), he would have been 417 metres west of the collision when the collision occurred, and
• The distance from the collision scene to the intersection of Main Street West and Bay Street South, is approximately 400 metres

The time/distance calculations are consistent with a finding that the police vehicle being operated by the SO was west of the intersection of Main Street West and Bay Street South, when the motorcycle being operated by the Complainant collided with the pick-up truck being operated by the pick-up truck driver at Main Street West and James Street South.

Route travelled by motorcycle to collision scene

Materials obtained from Police Service

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

• Communications recordings
• HPS Total Station video
• HPS scene photos
• WO #2’s Final Report
• Email re further info-GPS Data Request-Oct 27, 2016
• Event Chronology
• Fatal Factors Charts, the Complainant
• Fatal Factors Charts –Non-Designated Witness
• Log of Communications Recordings
• Non-Designated Witness - Video Scribed
• Mechanical Inspection Request – pick-up truck
• Mechanical Inspection Request - motorcycle
• Motor Vehicle Collision Report
• Notes of WO #1 and WO #2
• Notes of 10 non-designated officers
• Occurrence Details Report (Motor Vehicle Collision Niche Reports)
• Property Release Form - Helmets and Clothing
• Scale Diagram by WO #2
• Supplementary Occurrence Reports by non-designated officers
• Unit History for the SO’s cruiser (GPS Data Request HPS)
• Unit History
• Vehicle Release – pick-up truck (unsigned)
• Will State / prepared statements of 3 non-designated officers
• Will State / prepared statements of WO #1
• Witness Statement of CW #2
• Witness Statements of the HPS Witness Driver and Passenger

At approximately 2:00 a.m. on September 3, 2016, the Complainant was driving a newly purchased motorcycle without a licence plate, eastbound across Main Street West in Hamilton. The Complainant was travelling at a high rate of speed and did a wheelie when he caught the attention of the SO and WO #1, who were parked in a marked HPS cruiser facing east on Main Street West.

As the Complainant approached the cruiser, he slowed and passed it in the middle lane. The SO pulled in behind the motorcycle at the red light at the intersection of Main Street West and Queen Street South. When the light turned green, the Complainant sped eastbound on Main Street West, but then stopped for a red light at the intersection of Main Street West and Hess Street South. The Complainant weaved his way to the front of the stopped vehicles, and when the light turned green, the Complainant sped away again. The SO did not pursue the Complainant.

The Complainant continued across Main Street West at a high rate of speed, and ran the red light at the intersection of Bay Street South and Main Street West, as well as the next two red lights. At the intersection of Main Street West and James Street South, the Complainant again sped into the intersection against the red light, and struck a pick-up truck that was travelling southbound on a green light. The Complainant had struck the pick-up truck’s passenger side rear quarter panel. After the collision, the Complainant and his motorcycle skidded across the intersection on the ground, and came to rest just east of the intersection.

Emergency Medical Services (EMS) attended and the Complainant was taken to the hospital, but was declared deceased at 3:01 a.m.

Section 249, Criminal Code - Dangerous operation of motor vehicles, vessels and aircraft

249 (1) Every one commits an offence who operates

1. a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place...

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Section 5, Ontario Regulation 267/10 under the Ontario Police Services Act - SIU as lead investigator

5. The SIU shall be the lead investigator in the investigation of the incident and shall have priority over any police force in the investigation.

In the early morning hours of September 3, 2016, the Complainant, a 19-year-old male, was operating a recently purchased motorcycle, without plates, at a high rate of speed across Main Street West in Hamilton. At the intersection of Main Street West and James Street South, the Complainant ran the red light, and collided with a pick-up truck. The Complainant died as a result of the collision.[3] The driver of the pick-up truck was uninjured. At the time of impact, a marked HPS cruiser being driven by the SO was travelling 400 metres behind the Complainant. The SO witnessed the collision at the intersection of Main Street West and James Street South and immediately activated the emergency lights of the police cruiser. The issue is whether there are reasonable grounds to believe that the actions of the SO were responsible for the fatal collision.

Main Street West travels through downtown Hamilton. The events leading up to the fatal collision of the Complainant covered nine city blocks along Main Street West, starting at Locke Street South and travelling through Queen Street South, Hess Street South, Caroline Street South, Bay Street South, Summers Lane (which only runs north off Main Street West), MacNab Street South and ending at James Street South.

On September 3, 2016, at approximately 2:00 a.m., the SO and WO #1 were in a marked HPS cruiser parked on the south side of Main Street South, just west of Ray Street South. The speed limit on Main Street is 50 km/h. Both police officers heard a sound of a motorcycle coming towards them travelling east along Main Street West. Looking in their rearview mirrors, both police officers saw the headlight of a motorcycle rise and dip doing a “wheelie” stunt.[4] When the motorcycle slowed down as it passed the police cruiser, the SO pulled in behind it and both vehicles stopped at the red light at Queen Street South. Both police officers observed that the motorcycle did not have a licence plate attached. The motorcycle weaved its way to the front of the vehicles; stopped at the red light; and, when the light turned green, quickly accelerated. Both officers simultaneously concluded that a pursuit was not warranted under all the circumstances. The motorcycle stopped for the red light at the intersection at Hess Street South. The SO pulled in behind the motorcycle, which was several cars ahead of the police cruiser. The Complainant weaved his way to the front of the stopped vehicles, and, when the light turned green, he quickly accelerated on Main Street West. The SO subsequently observed that the Complainant had already passed Caroline Street South and was travelling towards Bay Street South. The SO estimated that the speed of the Complainant was between 130-140 km/h.

CW #2 was also travelling along Main Street West at the time. He first heard the motorcycle approaching from behind at a high rate of speed. CW #2 noted that the motorcycle did not have a licence plate. CW #2 stopped at the red light at the intersection at Bay Street South. CW #2 saw a marked HPS police cruiser that was also stopped at the red light. When the light turned green, CW #2 saw the police cruiser activated its lights. CW #2 did not see the motorcycle again until he arrived at the intersection of James Street South and Main Street West. CW #2 saw the motorcycle on the road; observed the Complainant lying on the ground; and, saw the SO kneeling beside the Complainant.

As the motorcycle passed through Bay Street South, both the SO and WO #1 saw the red light camera flash, indicating that the motorcycle had disobeyed the red signal at that intersection. The SO continued driving with the traffic flow at 45 km/h. The SO observed the Complainant disobey the red lights at Summer Lane as well as MacNab Street South and estimated the speed of the motorcycle to be between 130 to 140 km/h. The SO and WO #1 stopped at the red light on Bay Street South and both police officers observed the headlight of the motorcycle flying out of control approximately 30 to 40 feet [9.14 to 12.19 metres] above the street. The SO immediately activated the police cruiser’s emergency lights and proceeded towards the collision scene at a safe reasonable speed. While en route the SO stopped at a red light at Summers Lane and Main Street West which he estimated to be approximately 400 metres away from the accident location. When the SO arrived at the collision scene, he saw the Complainant lying unconscious on the roadway; he immediately commenced first aid and called for the attendance of EMS. WO #1 directed and re-routed traffic away from the scene. WO #1 noticed that the pick-up truck involved in the collision had a dent in its passenger side rear quarter panel.

Cameras from nearby businesses recorded the Complainant and the SO as they approached the intersection of Main Street West and James Street South. Although the video recordings did not capture the collision, it did reveal that the Complainant was travelling towards the intersection at James Street with activating brake lights; and, that the Complainant ran the red light at the intersection of Main Street West traffic and James Street South immediately prior to the collision. Other additional video recordings showed the pick-up truck entering the intersection at James Street South on a green light. In addition, video recordings show the Complainant sliding through the intersection on his motorcycle and coming to rest just east of the intersection. The SO arrived approximately 31 seconds after the collision.

WO #2, the HPS officer-in-charge of the scene as well as the traffic re-constructionist, estimated that the Complainant was travelling at a minimum speed of 100 km/h at the moment of impact. This is consistent with the higher speeds observed by CW #2 and the SO before the collision as well as with the video showing the brake lights of the Complainant being activated immediately prior to sliding through the intersection. The SO was approximately 400 metres from the collision at the time of impact which is also consistent with the observations of CW #2 and consistent with the observed rate of speed of the SO on the video recordings as well as with his time of arrival at the collision scene. In addition, overall the calculations of WO #2 corroborated and reinforced the evidence of both the SO and CW #2.

The Complainant was in possession of $10, 000 which obviously raises concerns about his possible participation in illegal activity. There is no evidence, however, that either the SO or WO #1 had any idea who the person on the motorcycle was when it passed their cruiser that night. Nor is there any evidence that they were aware that the person on the motorcycle was involved in any illegal activity beyond driving at a high rate of speed with no plates.

Efforts were made by the SIU to locate the two individuals that CW #1 identified as potential witnesses: the first, who was reported to have been on a motorcycle with or near the Complainant at the time of the collision; and a second, who was said to have been in a Ford vehicle in the Hess Village area minutes before the collision. CW #1 told investigators that he did not know the two men very well, and did not expect them to come forward. The phone number provided for the first man was called by SIU investigators on a number of occasions over a two day period without any response, and without any ability to leave a message. No other evidence surfaced that suggested there was a second motorcycle at or near the scene at the time of the collision. In the end result, the best efforts of the SIU investigators were unsuccessful. If these two individuals were in fact witnesses to the events on Main Street West, by the time the SIU became involved in the investigation, there were no further means of identifying or contacting them. Unfortunately, the hearsay evidence of both these two men conveyed to CW #1 has little evidentiary weight.

Based on the above information gathered by SIU investigators, it is abundantly clear that the Complainant was speeding on his motorcycle across Main Street West in the early morning hours prior to his being aware of police presence at Ray Street South and Main Street West. Remarkably, once the police presence was obvious to the Complainant, he slowed down; passed the marked police cruiser; and proceeded undeterred at a significantly high rate of speed. It is also clear that when the SO activated his lights at Bay Street and Main Street West, it was clearly his intent to arrive at the accident scene as safely as possible over a distance of approximately 400 metres.

The offence that arises for consideration is dangerous operation of a motor vehicle causing death contrary to s. 249 of the Criminal Code. As cases like R. v. Beatty, [2008] 1 S.C.R. 49, and R. v. Roy, [2012] 2 S.C.R. 60, have made clear, the liability standard is a high one and will not be made out unless the impugned driving amounts to a marked departure from the standard of care that a reasonable person would have exercised in all of the circumstances. In this case the weather was clear and the roads were dry. The driving of the SO on Main Street West, from Ray Street South to James Street South, and, the activation of the emergency lights of the police cruiser at Bay Street after the collision occurred, indicates that there is absolutely no evidence that the SO, at any point, was engaged in the pursuit of the Complainant. Given the high rate of speed and lack of licence plate, one may question why the SO did not pursue the Complainant earlier. It is significant that in full compliance with the HPS Suspect Apprehension Pursuit Policy, both the SO and WO #1 stated that they purposely avoided a chase because of the inherent dangers of motorcycle chases. The Complainant, however, continued to operate his motorcycle at a high rate of speed, calculated to be 119 km/h, approaching the James Street South intersection.

There is no dispute that the death of the Complainant was a tragic and unfortunate loss. After a thorough review of the evidentiary record, however, I have concluded that the actions of the SO did not cause the excessive speeding of the Complainant. The police cruiser driven by the SO at Ray Street South was in front of the Complainant, who was observed by both police officers to complete a “wheelie” on his motorcycle. The Complainant continued to speed excessively above the posted speed limit as well as run a series of red lights after he passed the police cruiser. Moreover, when one considers the significant distance between the two vehicles on Main Street West, there is nothing to suggest that the SO in any way needlessly fueled the dangerous driving of the Complainant. On the contrary, given that he knew that a police cruiser was behind him on Main Street West, it is apparent that while the Complainant had every opportunity to desist from his reckless driving, at no point did he do so.

It is my opinion that the SO was not involved in a police pursuit. At no point did the SO signal to the Complainant to stop his motorcycle prior to the collision after which the emergency lights of the police cruiser were activated. Nor did the SO at any point engage in the sort of aggressive driving which might suggest that he was trying to catch and stop the Complainant. In the final analysis, I am therefore, satisfied on reasonable grounds on the record that the actions exercised by the SO fell well within the limits prescribed by the criminal law. Accordingly, there are no grounds for proceeding with charges in this case.

Date: November 29, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] On October 6, 2016, the SIU learned from CW #1 that two individuals were potential witnesses in the investigation. The first was reported to have been on a motorcycle with or near the Complainant at the time of the collision. The second was said to have been in a Ford vehicle in Hess Village minutes before the collision. On October 11, 2016, CW #1 told the SIU that he did not know the two men very well. He believed them to be drug dealers and did not expect them to come forward. The first man supposedly had a phone number, which was called by the SIU over a two day period. No one answered, nor was there a message centre related to the phone. No other evidence surfaced that suggested there was a second motorcycle at or near the scene at the time of the collision. [Back to text]
• 2) [2] The notes of ten other HPS officers were reviewed. The officers’ participation in the incident was peripheral. Some of the officers were involved in scene security at the collision scene, one attended the post-mortem examination, others interviewed civilian witnesses, or assisted WO #2 in reconstructing the collision scene, and one was present for the removal of the vehicles involved in the incident. [Back to text]
• 3) [3] The Complainant was transported by ambulance to the hospital, accompanied by the SO, and was subsequently pronounced dead at 3:01 a.m. [Back to text]
• 4) [4] WO #1 believed the wheelie was performed at Locke St. S. and Main St. W. [Back to text]