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 injury suffered by a 74-year-old female on September 12, 2016 at approximately 3:20 p.m. when she was struck by a police cruiser while she was crossing the road.

Notification of the SIU

The SIU was notified of the incident by the Hamilton Police Service (HPS) on September 12, 2016 at 6:05 p.m.

HPS notified the SIU that the Complainant was walking from the east side to the west side of King Street West while crossing Dundurn Street South when she was struck by a marked cruiser, driven by the Subject Officer (SO) traveling west on King Street West. The SO collided with the Complainant when she turned south onto Dundurn Street.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Number of SIU Collision Reconstructionists assigned: 1

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Not interviewed, but notes received and reviewed[1]

WO #3 Interviewed

WO #4 Not interviewed, but notes received and reviewed[2]

WO #5 Not interviewed, but notes received and reviewed[3]

WO #6 Interviewed

WO #7 Interviewed

Additionally, the notes and will-state from one other non-designated officer were received and reviewed.

Subject officer

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

The scene

King Street West had five lanes that all travelled westbound. The speed limit was 50 km/h. Dundurn Street South had three lanes that travelled northbound and two lanes that travelled southbound. The intersection was controlled by traffic signal lights which were functioning normally.

On the southwest corner of King Street West and Dundurn Street South was a commercial plaza. On the southeast corner there was a fast food restaurant. On the northeast corner there was a coffee shop and on the northwest corner there was a gas station.

There were marked pedestrian crosswalks on the south, east, and north sides of the intersection. The lane markings were in good condition.

The SO’s cruiser was parked in the south crosswalk, near the centre island of Dundurn Street South, approximately half way across the road. It was about 6.5 metres east of the southwest corner of the intersection. There were no tire marks found that could have been attributed to the collision.

Scene diagram

Expert evidence

SIU reconstructionist examination summary

The SO was driving west on King Street West to a motor vehicle collision that took place at Dundurn Street South and Main Street West. The cruiser’s rate of speed was approximately 50 km/h. The cruiser’s emergency lights and sirens were not activated;

• When the SO approached a green traffic light at the intersection of King Street West and Dundurn Street South, her rate of speed slowed down to approximately 38 km/h
• The Complainant was walking east across Dundurn Street South from the southwest corner of Dundurn Street South and King Street West
• The SO had the right to turn south onto Dundurn Street South on a green light if the way was clear
• The front passenger side of the SO’s cruiser struck the Complainant
• There is no physical evidence to suggest that the SO was driving at a high rate of speed
• There was no damage to the cruiser
• The road surface at the time of the collision was dry, and
• The physical evidence suggested that the SO failed to yield the right of way to the Complainant

Communications recordings

Radio communications recording summary

• On September 12, 2016, at approximately 3:13 p.m., the HPS dispatcher broadcast that there was a motor vehicle collision at the intersection of Dundurn Street South and Main Street West. The collision involved a bus and a car
• The SO was dispatched to the collision, and
• At approximately 3:30 p.m., the SO broadcast that she needed an ambulance and a supervisor to attend the intersection of King Street West and Dundurn Street South. The SO advised that she had struck a pedestrian [now known to be the Complainant] with her cruiser

Materials obtained from Police Service

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

• Automatic Vehicle Locator (AVL) data
• Event Chronologies
• Motor Vehicle Accident Report
• Motor Vehicle Collision Report
• Notes of WO #1, #2, #3, #4, #5, #6 and #7
• Notes and Will Say of Non-Designated Police Officer
• Occurrence Details Report
• Scene Of Crime Officer Report
• Unit History-Sept 12, 2016
• Vehicle Sign-out table-Sept 12, 2016
• Will Say Statements of WO #1, #2, #3, #4, #5, #6 and #7
• Witness Statement of Complainant, and
• Witness Statements of CW #1 and #2

On September 12^th, 2016 at approximately 3:00 p.m., the Complainant began to cross the intersection at King Street West and Dundurn Street South in the City of Hamilton. She had seven seconds remaining on the flashing crossing sign to complete the crossing. While crossing the intersection, the Complainant was struck by the passenger side door of a HPS vehicle being operated by the SO that was turning left on a green light.

The Complainant fell to the ground. The SO immediately stopped her vehicle and attended to the Complainant. Shortly after, other police officers and an ambulance arrived on the scene.

The ambulance transported the Complainant to hospital where it was determined that she had suffered a left tibial plateau (knee joint) fracture.

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&hellip

(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.

Sections 144(7), 144(22) and 144(28), Highway Traffic Act – Traffic control signals and pedestrian control signals

Section 144 (7) Yielding to pedestrians:

When under this section a driver is permitted to proceed, the driver shall yield the right of way to pedestrians lawfully within a crosswalk.

Section 144(22) Pedestrian crossing:

Where portions of a roadway are marked for pedestrian use, no pedestrian shall cross the roadway except within a portion so marked.

Section 144(28) Pedestrian Right of Way:

Every pedestrian who lawfully enters a roadway in order to cross may continue the crossing as quickly as reasonably possible despite a change in the indication he or she is facing and, for purposes of the crossing, has the right of way over vehicles.

On September 12^th, 2016 at approximately 3:00 p.m., a 74-year-old pedestrian, the Complainant, was crossing the intersection at King Street West and Dundurn Street South in the City of Hamilton when she was struck by a HPS vehicle being operated by the SO. The Complainant was taken to hospital where it was determined that she had suffered a left tibial plateau (knee joint) fracture.

During the course of this investigation, four civilian and four police witnesses were interviewed by investigators. The SO declined to provide a statement or to make her notebook available to the SIU, as was her legal right. Additionally, eight witness officers provided their notebooks for review and investigators had access to the communications recordings, the AVL data, the accident report and scene photos.

The collision reconstruction report indicated that the area where the collision occurred was a posted 50 km/h zone during daylight, the weather was clear, the pavement was dry, the road and road markings were in good condition and the traffic lights were in good working order. At the time of inspection, the police cruiser was situated in a position where it appeared it had been making a left turn from King Street West, which was a one way street westbound, onto Dundurn Street South. The vehicle apparently was attempting a left turn, not at a 90 degree angle, and the entire cruiser was stopped in the crosswalk with its front wheels situated on the edge of the crosswalk and its rear wheels fully in the crosswalk.

In the sketch prepared for the accident reconstruction report the Complainant is placed at approximately the centre of the road between the northbound and southbound lanes of Dundurn Street South, in the area of the centre road markings, when she was struck. Notes made by the Scenes of Crime Officer indicated that the cruiser was stopped in line with the median that separated northbound and southbound lanes of traffic on Dundurn Street South.

Pursuant to the provisions of the Highway Traffic Act (HTA), specifically ss. 144 (7), (22) and (28), it is clear that the onus was on the SO to yield the right of way to the Complainant, as it is further clear on the evidence of all of the civilian witnesses, that the Complainant had entered the intersection on a green light and was lawfully on the roadway at the time she was struck. The Complainant was almost halfway across the street when she was struck by the SO’s cruiser and there is no explanation for the SO failing to see the Complainant. The weather was clear, the road markings were in good condition and the SO was at all times operating her motor vehicle within the posted speed limit of 50 km/h. Pursuant to s. 144(22), the Complainant was properly within the portion of the roadway marked for pedestrian use and, pursuant to s. 144(28), she had lawfully entered onto the roadway on a green light and would have been entitled to complete crossing the street even if the light had changed mid-way, which it had not. It is clear on the evidence provided that at the time she was struck, the Complainant still had seven seconds with which to cross.

Whether or not it was prudent for a 74-year-old woman to attempt to cross five lanes of traffic in a situation where she felt she had to rush to get across the road safely is another matter altogether; suffice it to say, the law required the SO to ensure that the way was clear before she attempted her left turn and to yield the right of way to any persons lawfully crossing the street in the marked portion for pedestrians.

It is clear on all of the evidence that there are reasonable grounds to believe that the SO contravened one or more of the provisions of the HTA. The matter for consideration, however, is whether or not her driving rose to the level of criminal conduct and whether or not there are reasonable grounds to believe that the SO committed a criminal offence, specifically, whether or not the driving rose to the level of being dangerous and therefore in contravention of s.249(1) of the Criminal Code and did thereby cause bodily harm contrary to s.249(3).

The decision of the Supreme Court of Canada R .v. Beatty, [2008] 1 S.C.R. 49, states that s.249 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.

On a review of all of the evidence, it is clear that the SO was driving at a permissible rate of speed and was not exceeding the speed limit, the roads were dry and the weather was clear. Although, for whatever reason, the SO failed to make her left turn in safety and thus struck the Complainant, presumably due to a momentary lack of attention towards other users of the roadway, I cannot find that there is any evidence, other than the collision, that the driving by the SO rose to the level of driving required to constitute “a marked departure from the norm”. An accident alone is not sufficient for a finding of dangerous driving. As such, I find that there is insufficient evidence to form reasonable grounds to believe that a criminal offence has been committed and there is no basis for proceeding with criminal charges in this case.

Date: September 5, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #2 was not at the scene when the SO’s cruiser struck the Complainant; however, she arrived shortly after the incident and assisted with traffic control. [Back to text]
• 2) [2] WO #4 was not at the scene when the SO’s cruiser struck the Complainant; however, he arrived shortly after the incident and assisted with traffic control. [Back to text]
• 3) [3] WO #5 was not at the scene when the SO’s cruiser struck the Complainant; however, he arrived shortly after the incident and assisted with traffic control. [Back to text]