Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:

• The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
• Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
• Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
• Information that discloses investigative techniques or procedures.
• Information, the release of which is prohibited or restricted by law.
• Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.

Freedom of Information and Protection of Personal Privacy Act

Pursuant to section 14 (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 that 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 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

• The names of persons, including civilian witnesses, and subject and witness officials;
• 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

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

Other proceedings, processes, and investigations

Information may also have 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.

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the serious injury of an 83-year-old woman (the “Complainant”).

Notification of the SIU[1]

On February 7, 2024, at 12:01 a.m., the London Police Service (LPS) notified the SIU of an injury to the Complainant.

According to the LPS, on February 6, 2024, at 4:15 p.m., the Subject Official (SO), operating a fully marked SUV cruiser with emergency lights and siren activated, was driving to a medical distress call [baby not breathing] northbound on Wharncliffe Road South, approaching Horton Street. He entered the intersection on a red light and struck a vehicle proceeding westbound on a green light being operated by the Complainant. Initially, it was believed the Complainant had sustained no injuries. However, she attended London Victoria Hospital (LVH) as a precaution where, at 11:30 p.m., she was diagnosed with several fractured ribs.

The Team

Date and time team dispatched: 2024/02/07 at 5:45 a.m.

Date and time SIU arrived on scene: 2024/02/07 at 7:50 a.m.

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 2

Number of SIU Collision Reconstructionists assigned: 1

Affected Person (aka “Complainant”):

83-year-old female; interviewed; medical records obtained and reviewed

The Complainant was interviewed on February 8, 2024.

Civilian Witness (CW)

CW Interviewed

The civilian witness was interviewed on February 8, 2024.

Subject Official (SO)

SO Declined interview, as is the subject official’s legal right; notes received and reviewed

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed between March 5 and 13, 2024.

The Scene

The events in question transpired in and around the intersection of Wharncliffe Road South and Horton Street, London.

Wharncliffe Road South was aligned in a north-south direction and Horton Street was aligned in an east-west direction.

Physical Evidence

On February 7, 2024, SIU forensic investigators attended and examined the scene. Horton Street was a four-lane roadway with an additional left turn lane in the centre of the road for both directions. Wharncliffe Road South was a four-lane roadway and turned into a three-lane roadway at the intersection of Horton Street, as the northbound right lane became a right turn only lane.

The intersection was controlled by operational traffic light signals for traffic in every direction on both Wharncliffe Road South and Horton Street. The speed limit on Wharncliffe Road South was 50 km/h and the speed limit on Horton Street was 60 km/h.

Due to the layout of the roads and the surroundings, there were limited views of the intersecting roads by drivers approaching from the east and the south.

There was no physical evidence collected at the scene. SIU forensic investigators examined the two vehicles involved in the collision and took a series of photographs. The vehicle operated by the Complainant was a silver Chevrolet Cruz. The vehicle operated by the SO was a fully marked white Chevrolet Tahoe.

Expert Evidence

SIU Collision Reconstruction Findings

The SO’s police vehicle sustained damage to the front, primarily to the ‘push bumper’ mounted on the front. The force of the damage was across the front, from the passenger side towards the driver side. See Figure 1.

The sedan driven by the Complainant sustained damage to the driver side front quarter panel near the front wheel, and the driver door area. The force was from the driver’s side towards the centre of the car. See Figure 2.

No air bags were deployed from either vehicle during the collision.

Figure 1 - The SO’s police vehicle with damage to the front ’push bumper’

Figure 2 - The Complainant’s vehicle with damage to the driver side

The damage to the two vehicles was consistent with the front of the police vehicle having struck the driver side of the Complainant’s vehicle at about an angle of 90 degrees.

The location of impact was noted to be 11.5 metres north of the south curb of Horton Street West and 7.5 metres east of the west curb of Wharncliffe Road South. This was generally in the centre of Wharncliffe Road South, and generally in line with westbound through lane #1 (numbered from the centre outwards) of Horton Street.

The Crash Data Recorder (CDR) data from the Complainant’s vehicle indicated that she was travelling at about 60 km/h about five seconds prior to the collision. At the time of the collision, the Complainant was about ten percent on the accelerator pedal, the brakes were not applied, and the vehicle was at a rate of speed of 55 km/h. The CDR data suggested the Complainant did not take evasive action to avoid the collision. She drove at a relatively constant speed with no braking throughout the five seconds that preceded the collision.

The CDR data from the SO’s police vehicle indicated that the officer had the brake pedal applied and drove a rate of speed of 15 km/h about five seconds pre-collision. The police vehicle slowed to 10, 9, then 8 km/h in the following seconds. Three seconds prior to the collision, the accelerator was depressed 29 percent, thereafter, increasing to 59 percent. The rate of speed increased to 20 km/h. About one-half second before the collision, the brake pedal was re-applied and the rate of speed of the police vehicle was 27 km/h. The CDR data suggested the SO approached the intersection, slowed to 8 km/h, entered the intersection and reached about the middle of the intersection where he was involved in the collision, all within about five seconds.

Video/Audio/Photographic Evidence[2]

LPS Communications Recordings

At about 4:13 p.m., February 6, 2024, officers, including the SO, were dispatched to a priority one call for an infant not breathing. Approximately two minutes later, the SO requested that a supervisor attend the intersection of Wharncliffe Road and Horton Street for a departmental motor vehicle collision. The SO advised that the female driver of the other vehicle [known to be the Complainant] was alright and requested that an ambulance attend the scene.

Video Footage – Game Cycle – 79 Wharncliffe Road

The camera angle captured part of the intersection and was motion-activated. The camera stopped recording at 4:12:50 p.m. and began again at 4:17:24 p.m. (the collision occurred at 4:15 p.m.). The recording did show the weather conditions were good and the traffic volume was heavy.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the LPS between February 8, 2024, and May 6, 2024:

• LPS communications cecordings;
• LPS Computer-aided Dispatch Report;
• LPS Occurrence Report;
• LPS Motor Vehicle Collision Report;
• LPS Policy - Traffic and Motor Vehicle;
• Notes - the SO;
• Notes - WO #1;
• Notes - WO #2; and
• Notes - WO #3.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between February 9, 2024, and March 17, 2024:

• The Complainant’s medical records from LVH; and
• Video footage - .

The evidence collected by the SIU, including interviews with the Complainant and civilian witnesses, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

In the afternoon of February 6, 2024, the Complainant was driving west in the passing lane of Horton Street, approaching Wharncliffe Road South, in a Chevrolet Cruz. She entered the intersection on a green light at approximately 60 km/h and was at about the midway point of Wharncliffe Road South when the driver’s side of her vehicle was struck by a police cruiser head on. The Complainant’s vehicle came to rest a distance north and west of the point of impact.

The cruiser, its emergency lights and siren on, was being operated by the SO. The officer was northbound on Wharncliffe Road South en route to a call for service involving an infant in medical distress.

The officer exited his cruiser following the impact and went to check on the Complainant.

The Complainant was transported to hospital from the scene and diagnosed with multiple rib fractures.

Section 320.13, Criminal Code – Dangerous Operation Causing Bodily Harm

320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

Sections 144(18) and 144(20), Highway Traffic Act – Red light exemption

144 (18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.

144 (20) Despite subsection (18), a driver of an emergency vehicle, after stopping the vehicle, may proceed without a green indication being shown if it is safe to do so.

On February 7, 2024, the LPS contacted the SIU to report that the Complainant had been seriously injured in a motor vehicle collision with a police cruiser the day before. The SIU initiated an investigation naming the driver of the cruiser – the SO – the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the collision.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, the offence is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which the SO operated his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.

The SO was engaged in the execution of his lawful duties as he travelled northbound on Wharncliffe Road South towards the site of the collision. He had been dispatched to render service in relation to a call about an infant who had stopped breathing.

With respect to the officer’s driving, I am unable to reasonably conclude that the SO transgressed the limits of care prescribed by the criminal law as he approached and then entered the intersection where the collision occurred. When the officer decided to cross the intersection on a red light, he was obliged by virtue of section 144(20) of the Highway Traffic Act to first come to a full stop and then only proceed when it was safe to do so. The SO, the data suggest, did not come to a full stop. Nor does the evidence suggest he exercised maximum care as he travelled northbound through the intersection – the collision itself would tend to belie that proposition. That said, this was not an officer who accelerated headlong into the intersection. Far from it. First, the SO had his emergency lights and siren going. Second, if he did not completely stop, he had slowed to a virtual stop before entering the intersection. Lastly, the crash data indicate the SO proceeded carefully and at slow speed through the intersection to the point of impact. Why neither party seems to have seen each other until it was too late is a matter of conjecture, although it appears likely that sightline obstructions caused by landmarks and traffic in and around the intersection played a role. As for the rest of the officer’s driving, there is nothing of significant concern. He was on the wrong side of the road as he approached Horton Street, but this was not surprising given that time was of the essence and there was a need to circumvent traffic. Nor is there any evidence to suggest other roadway traffic was directly imperiled by the officer briefly entering into the wrong lane of traffic. On this record, it would appear, at most, that the collision was the result of a momentary lapse of attention. This, the case law makes clear, will generally not give rise to liability.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: June 6, 2024

Joseph Martino

Director

Special Investigations Unit