SIU Director’s Report - Case # 24-OVI-326

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Mandate of the SIU

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.

Information Restrictions

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.

Mandate Engaged

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 a 21-year-old man (the “Complainant”).

The Investigation

Notification of the SIU[1]

On July 29, 2024, at 12:59 a.m., the Niagara Parks Police Service (NPPS) contacted the SIU with the following information.

On July 28, 2024, at approximately 10:40 p.m., a NPPS officer was operating a marked cruiser in the vicinity of Kitchener Street and Stanley Avenue in Niagara Falls when a collision occurred with an E-bike (electronic bicycle) occupied by two men. Both men were transported to hospital. The operator of the E-bike, the Complainant, sustained a fracture to his right leg, while the passenger was not seriously injured.

The Team

Date and time team dispatched: 2024/07/29 at 2:07 a.m.

Date and time SIU arrived on scene: 2024/07/29 at 4:15 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

Number of SIU Collision Reconstructionists assigned: 1

Affected Person (aka “Complainant”):

21-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on July 29, 2024.

Civilian Witness (CW)

CW Interviewed

The civilian witness was interviewed on July 31, 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 on September 17, 2024.

Evidence

The Scene

The events in question transpired in and around the intersection of Kitchener Street and Stanley Avenue, Niagara Falls.

Scene Diagram

Scene Diagram

Physical Evidence

Stanley Avenue was oriented in a north-south direction. There were two traffic lanes in each direction with a centre turn lane. The posted speed limit was 50 km/h. The roadway was paved with visible lane markings and raised concrete curbs. There were pedestrian sidewalks on either edge of the roadway and overhead streetlights that illuminated the roadway. The area was commercial.

Kitchener Street was oriented in a general east-west direction. The intersection at Stanley Avenue was offset, with Kitchener Street on the west side of Stanley Avenue located south of Kitchener Street on the east side of Stanley Avenue. There was one marked traffic lane in each direction on Kitchener Street. Traffic on each side of Kitchener Street was controlled by a stop sign at Stanley Avenue. There were pedestrian sidewalks on either edge of the roadway.

A 2018 Ford Explorer SUV, a marked NPPS Fleet vehicle, was found oriented in a northerly direction in the northbound curb lane of Stanley Avenue, within the intersection at Kitchener Street. The unit had collision damage to the front left (driver’s) side and the hood.

Figure 1 - Marked NPPS fleet vehicle with collision damage to the driver’s side and the hood

Figure 1 - Marked NPPS fleet vehicle with collision damage to the driver’s side and the hood

A black E-bike was also found within the intersection, oriented in an easterly direction and on its left side. The E-bike had collision damage to the front end and to the left side. The pedals of the E-bike were not on the vehicle at the time of the collision.

Scrapes in the roadway commenced under the NPPS vehicle and continued in a northerly direction to the E-bike. A pizza box with scattered pizza slices littered the roadway. A helmet was also near the overturned E-bike.

Figure 2 - Intersection at Stanley Avenue and Kitchener Street, Niagara Falls, showing the locations of the NPPS vehicle and the E-bike

Figure 2 - Intersection at Stanley Avenue and Kitchener Street, Niagara Falls, showing the locations of the NPPS vehicle and the E-bike

Forensic Evidence

SIU Reconstruction

On July 30, 2024, a SIU collision reconstructionist attempted to download the ‘crash data retrieval’ data from the police vehicle operated by the SO. The collision reconstructionist determined there was no event data recorded by the airbag control module in the vehicle. The SIU collision reconstructionist commented that result was to be expected, given the limited amount of damage sustained by the SO’s vehicle.

Global-positioning System (GPS) Data – The SO’s Cruiser

The vehicle tracking data from the cruiser operated by the SO revealed he was briefly stopped on Stanley Avenue, at 10:39:18 p.m. The SO’s vehicle then reached a speed of 38.3 km/h (at 10:40:08 p.m.). At 10:40:38 p.m., the SO’s vehicle was stopped.

Video/Audio/Photographic Evidence[2]

Video Footage – Business #1

Traffic at and around the time of the events in question on Stanley Avenue was moderate, but northbound traffic had come to a stop (for a red traffic signal at Highway 420, north of the intersection).

At 10:39:24 p.m., July 28, 2024, the Complainant’s E-bike was captured travelling eastbound on Kitchener Street, approaching Stanley Avenue.

At 10:39:30 p.m., the E-bike stopped at Stanley Avenue, with northbound traffic blocking the intersection.

At 10:40:04 p.m., northbound traffic came to a stop again, while southbound traffic lanes were clear. The NPPS vehicle operated by the SO was travelling in the northbound passing lane and came to a stop behind the line of stopped vehicles.

At 10:40:05 p.m., the SO pulled into the northbound curb lane and accelerated.

At 10:40:07 p.m., as southbound traffic cleared the intersection, the E-bike operated by the Complainant started to cross Stanley Avenue.

At 10:40:10 p.m., the E-bike entered a space between vehicles in the northbound passing lane traffic and continued towards the northbound curb lane.

At 10:40:12 p.m., the SO’s northbound NPPS vehicle collided with the eastbound E-bike, throwing the Complainant and the CW from the E-bike.

Video Footage – Business #2

The recording was consistent with the footage from Business #1. The recording captured the SO coming to a stop behind traffic in the northbound passing lane. The SO then pulled into the northbound curb lane and accelerated. As the SO approached the intersection at Kitchener Street, the E-bike operated by the Complainant travelled eastbound across Stanley Avenue and entered the northbound curb lane, where it was struck by the vehicle operated by the SO.

Materials Obtained from NPPS

Upon request, the SIU received the following materials from the NPPS between July 31, 2024, and September 24, 2024:

  • Notebook entries - WO #3;
  • Notebook entries - WO #1;
  • Notebook entries - the SO;
  • Notebook entries - WO #2;
  • Radio communications recordings; and
  • Video footage obtained from Business #2.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the Niagara Regional Police Service between July 29, 2024, and July 31, 2024:

  • General Occurrence Report;
  • Computer-aided Dispatch Report;
  • GPS tracking data - NPPS vehicle;
  • Radio communications recordings; and
  • Scene photographs.

Materials Obtained from Other Sources

The SIU obtained the following records from the following other sources between July 29, 2024, and August 14, 2024:

  • The Complainant’s medical records from Niagara Health – Niagara General site;
  • Video recording from Business #2; and
  • Video recording from Business #1.

Incident Narrative

The material events, clear on the evidence collected by the SIU, may briefly be summarized. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

In the evening of July 28, 2024, the Complainant was operating an E-bike eastbound on Kitchener Street approaching Stanley Avenue. The CW was a passenger on the bike. The Complainant came to a stop at the intersection and waited for southbound traffic to clear. His intention was to continue across Stanley Avenue onto Kitchener Street, which was offset slightly to the north. With a break in the southbound traffic, the Complainant travelled onto Stanley Avenue and entered onto the northbound lanes of Stanley Avenue between two vehicles stopped in the passing lane. He continued into the curb lane and was struck by a northbound cruiser.

The SO was operating the cruiser. The officer stopped following the collision to render assistance.

The Complainant was taken to hospital and diagnosed with a broken right leg.

Relevant Legislation

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.

Analysis and Director’s Decision

The Complainant was seriously injured in a crash involving a NPPS cruiser on July 28, 2024. The SIU was notified of the incident and initiated an investigation naming 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 Complainant was obliged to only proceed through the intersection when it was safe to do so and to yield to traffic with the right-of-way. His failure to yield to the SO’s cruiser, which was proceeding lawfully at safe speeds northbound in the curb lane, caused the collision. On this record, there is no suggestion of any want of care on the part of the SO sufficient to attract criminal liability.

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

Date: November 26, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit

Endnotes

  • 1) Unless otherwise specified, the information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s findings of fact following its investigation. [Back to text]
  • 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]

Note:

The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.