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 of a 71-year-old woman and the death of a 94-year-old woman, resulting from a vehicle collision on November 7, 2016.

Notification of the SIU

The SIU was notified of the incident by the Brantford Police Service (BPS) on November 7, 2016 at 11:38 a.m. BPS reported a vehicle death and injury that occurred that morning.

The BPS reported that at 10:43 a.m. that morning, the Subject Officer (SO) was looking for Civilian Witness (CW) #9 regarding a stabbing incident. When the SO went to a residence to look for CW #9, he saw two men, one of whom he believed was CW #9, enter a vehicle and drive away. The SO followed the vehicle and attempted a traffic stop at the intersection of Icomm Drive and Colborne Street. The vehicle fled west on Colborne Street and drove over a bridge. At the intersection with Gilkison Street, the vehicle struck another civilian vehicle with two occupants aboard [now known to be Complainant #1 and Complainant #2]. One of the occupants of the other civilian vehicle was without vital signs while the other had minor injuries. Both occupants were taken to the hospital.

The team

Number of SIU Investigators assigned: 7

Number of SIU Forensic Investigators assigned: 3

Number of SIU Collision Reconstructionists assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, video and measurements. The Forensic Investigators attended and recorded the post-mortem examination.

Complainant #1:

94-year-old female, deceased

Complainant #2

71-year-old female interviewed, medical records obtained and reviewed

Civilian witnesses

CW #1 Not interviewed[1]

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Not interviewed[2]

CW #10 Interviewed

CW #11 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

Subject Officer

SO Declined interview and to provide notes, as is the subject officer’s legal right.[3]

The scene

The collision occurred at the southeast corner of the intersection of Colborne Street West at Gilkison Street in the City of Brantford.

The weather was clear, visibility was good and the roads were dry at the time of the collision.

The intersection is a traffic light controlled intersection with a posted speed limit of 50 km/h on Colborne Street West. The roadway was asphalt-paved with two lanes of travel in each direction for east and westbound traffic on Colborne Street West. There were concrete curbs and sidewalks at all sides of the intersection and no concrete or otherwise structured islands separating opposing directions of traffic on either road.

Both the Nissan[4] and the Honda[5] sustained front end damage consistent with a frontal collision. The front driver and passenger airbags deployed on both vehicles, as did the passenger side curtain airbags on the Nissan.

Examination of the Honda revealed evidence that the right rear seat belt, where Complainant #1 was seated, was engaged at the time of the collision.

Scene diagram

Forensic evidence

SO’s GPS Data

The GPS data download from the unmarked Chevrolet Impala driven by the SO revealed that at 10:41:32 a.m., the vehicle reached a speed of 84 km/h as the SO drove on Icomm Drive, past the Brantford Casino. The SO slowed to 29 km/h 20 seconds later as he turned left onto Colborne Street West. Another ten seconds later, he had accelerated to 92 km/h as he drove over the Lorne Bridge. Five seconds later, the SO slowed to 72 km/h. Another five seconds later, he slowed to 50 km/h. A further five seconds later he slowed to 23 km/h.

Expert evidence

Post-mortem examination

A post-mortem examination was conducted on Tuesday, November 8, 2016, in Hamilton. The pathologist determined the cause of death to Complainant #1 to be multiple traumas. The post-mortem report was received on July 3, 2017.

SIU collision reconstruction

The SIU collision reconstruction report concluded that that the Honda, operated by CW #3, was travelling at 32 to 33 km/h at the time of the collision while the Nissan, operated by CW #9, was travelling at 50 to 51 km/h.

The collision reconstruction investigation further revealed that the Nissan was travelling at an average speed of 131 km/h before crossing into the oncoming eastbound lane of Colborne Street West. It then travelled at an average speed of 64 km/h for 54 metres before the collision.

The SO’s vehicle was determined to be travelling at an average speed of 87 km/h just prior to the collision.

BPS collision reconstruction

The BPS collision investigation concluded that the Nissan, operated by CW #9, approached the intersection at about 96 km/h before slowing to a minimum speed of 52 km/h to turn left at Gilkison Street. CW #3’s Honda was travelling at about 55 km/h when it was struck by the Nissan.

The SO’s vehicle was not involved in the collision.

The BPS collision investigator concluded that CW #9 was solely responsible for the collision, the subsequent injuries and Complainant #1’s death.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. CCTV video footage was received from several sources, including a store and an apartment building located at the intersection of Colborne Street West and Gilkison Street, as well as the Brantford Casino.

CCTV video from store at intersection

The collision was captured by two surveillance cameras positioned at the store at the southwest corner of Colborne Street West and Gilkison Street.

The video recordings revealed that as the Nissan approached the intersection at Gilkison Street, it crossed the marked centre line of the road and entered the left eastbound lane, appearing to turn left onto southbound Gilkison Street. At that time, the Honda, occupied by CW #3, Complainant #2 and Complainant #1, was travelling east on Colborne Street West. As the Honda drove through the intersection, the Nissan turned left ahead of it. The two vehicles collided in the right, curb lane of eastbound Colborne Street West, in line with the right curb lane of northbound Gilkison Street. The collision occurred at 11:26:27 a.m. on the recording.

The SO’s Chevrolet Impala entered camera view as the collision occurred, while a civilian vehicle drove between the SO’s car and the Nissan. The Chevrolet Impala’s emergency lights were not activated as it approached, but appeared to activate after the car came to a stop.

In examining the video recordings, the SIU collision reconstruction revealed that the SO’s car was about 54 metres behind (east) of the Nissan at the time of the collision.

The SO’s car came to a stop at the scene about eight seconds after the collision.

CCTV from Apartment Building at Intersection

The apartment building on Ford Court, situated at the southeast corner of Colborne Street West and Gilkison Street, had several surveillance cameras oriented toward the intersection. The camera recording the front parking lot captured images of CW #9 fleeing toward the building and being apprehended.

CW #9 entered the field of view at 10:46:18 a.m. as he ran toward the building with the SO and CW #6 in pursuit. At 10:46:25 a.m., CW #9 fell to the ground at the concrete walkway beside the driveway. The SO and CW #6 arrived at his position about two seconds later. The SO restrained and handcuffed CW #9 as CW #6 stood by. Both men brought CW #9 to his feet and escorted him back toward the scene.

The collision was not captured by this camera.

Communications Recordings

The radio recordings captured the SO reporting the collision and requesting additional police officers and an ambulance to attend.

When asked if this was something he just came across, the SO replied:

Yea I tried to uh conduct a traffic stop. The vehicle took off. I did not pursue the vehicle and uh it turned up, came up Gilkison, went to turn left and lost control and uh hit a pole. There’s a second car involved. It was not a, not a pursuit at that time, I had deactivated my equipment.

In a subsequent recorded telephone call the SO made to the Staff Sergeant, the SO said he was investigating a stabbing and had information that the suspect was at a residence. The SO set up in the area but was too far from the residence to identify two males he saw exit the residence and enter a vehicle. He followed the car as he queried the licence plate and tried to conduct a traffic stop at the corner of Brant Avenue and Colborne Street. He continued to advise the following:

The vehicle turned left on a green light. It was driving fine. And then I activated my emergency, my lights for it to pull over. And it was on the Lorne Bridge. At that time it sped up and went in the wrong lane. I deactivated all my equipment. And then the vehicle continued up Colborne West and went to turn left on Gilkison on a green light. It hit another vehicle and then struck a pole and the driver fled on foot. And then I arrested him out front of Lorne Towers and it’s my suspect from the stabbing.

Materials obtained from Police Services

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

• communications recordings
• video interviews of CW #2, CW #3, CW#4, CW #6 and CW #9
• transport audio interview of CW #2
• phone call to duty office (staff sergeant) audio
• scene and post mortem photos
• arrest report - CW #9
• arrest warrant - CW #9
• BPS history with CW #9
• BPS interview synopsis - CW #9
• disclosure log - Nov 9, 2016
• dispatch from computer aided dispatch details
• GPS data from the SO’s vehicle
• mechanical report - Honda (V1)
• mechanical report - Nissan (V2)
• notes of WO #1, WO #2, WO #3, WO #4 and WO #5
• occurrence report
• procedure-apprehension pursuits
• re-construction report
• training record-suspect apprehension pursuit - the SO, and
• prepared witness statement - the SO

Upon request the SIU also obtained and reviewed the following materials from the Ontario Provincial Police (OPP):

• property report re Brantford Casino footage (correct timeframes), and
• property report re Brantford Casino footage (incorrect time frames)

During the morning of November 7^th, 2016, the SO was conducting surveillance on a residence associated with CW #9 with a view to arresting CW #9 on an outstanding warrant for Assault with a Weapon. The SO observed two men exit the residence and enter a Nissan. The SO was unable to identify the men from where he was located, but followed the Nissan and approached the vehicle in order to make a traffic stop. The SO activated his emergency lighting system and siren to signal to CW #9, the driver of the Nissan, to stop. CW #9 refused to stop and accelerated instead, trying to evade the SO. The SO subsequently de-activated his emergency lighting system and siren.

CW #9 drove at a high rate of speed into a traffic intersection and failed to negotiate a left turn onto Gilkison Street. The Nissan collided head on with a Honda, being driven by CW #3 with Complainant #1 and Complainant #2 as passengers, as it entered the intersection of Gilkison Street.

CW #9 ran from the scene on foot but was arrested by the SO a short distance away. CW #2, a passenger in the Nissan, was located on the curb just outside the Nissan.

Complainant #1 and Complainant #2 were conscious at the time, but clearly injured. An ambulance was called but Complainant #1 became unresponsive before it arrived. Both women were transported to hospital. Complainant #1 was pronounced dead at the hospital at approximately 11:20 a.m. Complainant #2 suffered a broken sternum, a broken bone in her back and two broken bones in her left hand.

Sections 219-221, Criminal Code - Criminal negligence

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

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.

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

(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;…

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(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.

On November 7^th, 2016 at approximately 10:40 a.m., the SO attempted a traffic stop of a Nissan motor vehicle which he believed may have been operated by CW #9, for whom he had an outstanding arrest warrant for Assault with a Weapon. CW #9 refused to stop his motor vehicle when signaled to do so and, instead, sped up and was involved in a head on collision with a Honda operated by CW #3 and with passengers Complainant #2 and Complainant #1. Complainant #2 sustained a broken sternum, a broken bone in her back and two broken bones in her left hand; Complainant #1 was pronounced dead at hospital at 11:20 a.m. A post mortem performed indicated cause of death as multiple trauma.

During the course of this investigation, investigators interviewed nine civilian witnesses, as well as Complainant #1, and five police witnesses. CW #9, the driver of the motor vehicle involved in the collision, and the SO both declined to provide a statement, as they are legally entitled to do. Additionally, investigators reviewed the radio communications recordings and log, CCTV footage from a number of different locations that depicted either the collision or the subsequent foot pursuit and arrest of CW #9, the GPS data downloaded from the SO’s vehicle, the accident reconstruction report, a recorded conversation between the SO and the Staff Sergeant immediately after the incident and a prepared witness statement prepared by the SO. During the aftermath of the collision, the SO, in the course of his duties, briefed the Staff Sergeant and WO #4 as to what led up to the collision, those statements, along with his written prepared witness statement and his comments as recorded on the communications recordings, are all internally consistent and are also consistent with the observations of all civilian witnesses, the CCTV footage and the GPS data. There appears to be no dispute as to the facts.

On November 7^th, 2016, the SO was attempting to locate CW #9 as he had an outstanding warrant for his arrest for Assault with a Weapon and wished to execute that warrant. At approximately 10:20 a.m., the SO set up surveillance at an address associated with CW #9 and observed two males exit the address and enter a Nissan. The SO was not situated close enough to identify either male, but decided to follow the vehicle. After some distance, with the Nissan driving properly and at normal speeds, the SO attempted a traffic stop by first activating his emergency lighting system, and, when that was unsuccessful, he gave a quick burst of his siren in order to get the attention of the driver of the Nissan. The Nissan continued to travel in the same manner as previously, causing the SO to activate his siren continuously while his emergency lighting was still activated. The SO advised that as soon as he activated his siren continuously, he observed the Nissan to accelerate and drive around a car in front of it. This evidence is confirmed by a civilian witness.

The SO observed the Nissan to then drive along the yellow painted median in the middle of Colborne Street West and it was evident to him that the car was not going to stop. The SO advised that he then immediately de-activated his emergency lighting system and siren as he did not wish to engage in a vehicle pursuit out of concern for public safety. The SO advised that he deactivated his emergency lighting and siren as soon as the Nissan accelerated and went to overtake CW #11’s vehicle. This is confirmed by various witnesses at the collision scene who observed the SO arriving seconds after the collision without lights or sirens.

The SO observed the Nissan continue westbound on Colborne Street West at a speed which he estimated as approximately 80 km/h in a 50 km/h zone. The accident reconstruction report put the speed of the Nissan at 131 km/h while travelling on Colborne Street West prior to the collision.

The SO, in his statement, indicated that he was still on the Lorne Bridge when he observed the Nissan approach the intersection with Gilkison Street; the traffic signal was green for Colborne Street West traffic. The SO observed the Nissan attempt to make a left turn onto Gilkison, lose control and it appeared to him that it struck a pole at the southeast corner head on. The SO then stopped his vehicle at the collision scene and turned on his emergency lighting. Civilian witnesses observed the Nissan strike the Honda, which was lawfully in the intersection proceeding eastbound on Colborne Street West. They also observed the SO’s vehicle arrive after the collision and then activate the emergency lighting after it came to a stop.

The CCTV footage reveals that the SO did not arrive at the collision scene until eight seconds after the collision and the Accident Reconstruction Report reveals that while CW #9 was travelling at an average rate of speed of 131km/h on Colborne Street West, before crossing into the oncoming lane of traffic, the SO was following at a substantially slower speed, travelling at an average speed of 87 km/h prior to the collision.

On a preponderance of the evidence, it is clear that the SO attempted a vehicle stop of CW #9’s motor vehicle by activating his lights and sirens, but as soon as it became clear that CW #9 was not going to stop, but instead accelerated and passed another vehicle in its path, the SO de-activated all emergency equipment with the intent of following, but not pursuing, the Nissan motor vehicle. All of the evidence from all sources is consistent with this scenario which is further confirmed by the SO’s arrival, as depicted on the CCTV footage, some eight seconds after the collision.

On this evidence then, it is clear that although the SO was not involved in the collision which resulted in the death of Complainant #1 and the serious injuries to Complainant #2, his attempt to stop CW #9 was the impetus which led CW #9 to speed and drive dangerously, thereby causing the ultimate collision between his motor vehicle and that of CW #3. The relevant consideration, however, is whether or not the SO’s driving rose to the level required for charges either of dangerous driving causing death and bodily harm and/or criminal negligence causing death and bodily contrary to sections 249 and 220-221 of the Criminal Code respectively. Such offences are predicated on conduct that amounts to a marked departure from a reasonable level of care in the circumstances. The decision of the Supreme Court of Canada in R. v Beatty, [2008] 1 S.C.R. 49, sets out the law with respect to section 249 in that it requires that “the driving be dangerous to the public, having regard to all of 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” and the driving must be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”; while the offences under ss.220-221 requires “a marked and substantial departure from the standard of a reasonable driver in circumstances” where the accused “showed a reckless disregard for the lives and safety of others” (R. v Sharp (1984), 12 C.C.C.(3d) 426 (Ont. C.A.)).

I find that there is no evidence that the SO’s driving created a danger to other users of the roadway. At no time did he interfere with any other traffic, the environmental conditions were good and he used his emergency equipment prudently, activating his roof lights and siren in an attempt to make a traffic stop, but then immediately deactivating all emergency equipment as he was concerned that might cause a situation dangerous to the public. At no time is there any evidence, that once CW #9 made his decision to flee, that the SO engaged in a police pursuit; instead, it is clear on all of the evidence that the SO maintained a substantial distance while following the Nissan, as is evidenced by the civilian witnesses as well as the CCTV footage camera, and followed at a far lesser rate of speed than that of the Nissan.

Ultimately, I find that CW #9 unwisely chose to try to outrun police and in doing so, he fled at a dangerous rate of speed and carried out reckless maneuvers with no regard for other people using the road. On all of the evidence, CW #9 chose to drive in the oncoming lane of traffic and collided with CW #3’s vehicle and then lost control of his vehicle while driving without concern for those around him and at excessive rates of speed while trying to make good on his escape.

I find on this evidence that the driving of the SO, in following CW #9’s motor vehicle, does not rise to the level of driving required to constitute “a marked departure from the norm” and even less so “a marked and substantial departure from the norm” and I am unable to establish that there was a causal connection between the actions of the SO and the motor vehicle collision that caused Complainant #2’s injuries and Complainant #1’s death. The officer did nothing to exacerbate the Nissan driver’s pattern of reckless driving; the SO cannot be held responsible for CW #9’s driving behavior when CW #9 made the conscious decision to attempt to evade police and drive in the manner that he did.

In the final analysis, I am satisfied on this record that the SO was acting lawfully when he first attempted to stop the Nissan in an attempt to execute his warrant and that his conduct thereafter fell within the limits of care prescribed by the criminal law. Accordingly, there are no grounds for proceeding with charges against the officer.

Date: October 23, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] CW #1 was an employee of the store from which SIU investigators secured a closed circuit television (CCTV) video recording. She did not witness the collision. [Back to text]
• 2) [2] CW #9 was facing criminal charges from the incident at the time and his counsel advised him not to consent to an interview with the SIU. [Back to text]
• 3) [3] The SIU received the SO’s written statement that was provided to BPS investigators on the day the incident occurred. [Back to text]
• 4) [4] Occupied by CW #2 and CW #9. [Back to text]
• 5) [5] Occupied by Complainant #1, Complainant #2 and CW #3. [Back to text]