SIU Director’s Report - Case # 20-OCI-334
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Contents:
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.
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 Privacy Act
Pursuant to section14 (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 serious injuries sustained by a 39-year-old man (the “Complainant”).
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 serious injuries sustained by a 39-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On December 3, 2020, at 10:37 a.m., the Windsor Police Service (WPS) notified the SIU of an injury to the Complainant. The WPS advised that on December 2, 2020, at 1:53 p.m., WPS officers were involved in a pursuit with a vehicle in the area of Cabana Road and Longfellow Avenue, which was called off. At 2:00 p.m., approximately two kilometres from the terminated pursuit, the WPS responded to a single car collision in the area of Northwood and Totten Streets. [1] The Complainant was found passed out in the driver’s seat and was arrested for Impaired Driving. While the Complainant was being transported to the station in a prisoner wagon, the transporting official became concerned with the breathing of the Complainant. The wagon was stopped and while checking on the Complainant’s well-being, the Complainant tried to escape. The officer had to restrain the Complainant and return him into the wagon. He was taken to hospital and diagnosed with a fracture to the L2 vertebra and a herniated disc. The doctor indicated that the injury might have been the result of the collision.
The Team
Date and time team dispatched: 12/03/2020 at 11:18 a.m.Date and time SIU arrived on scene: 12/04/2020 at 1:00 p.m.
Number of SIU Investigators assigned: 2
Affected Person (aka “Complainant”):
39-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed in early December 2020.
Civilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
Civilian witnesses were interviewed between December 7, 2020 and January 7, 2021.
Subject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right. The SO was interviewed in mid-December 2020.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
Witness officials were interviewed between December 9, 2020, and January 28, 2021.
Investigative Delay
As there were several events that could have caused the injury to the Complainant, the medical records were needed to get more details about the injury. Due to COVID-19, the medical records took 15 days to arrive at the SIU, after which holidays caused further delay. There was also a delay in interviewing WO #3 and WO #4, due to the possibility of them being subject officials. Their notes were provided and were detailed, but they were interviewed in late January 2021, to confirm information provided.Evidence
The Scene
The referral to the SIU was made almost a day after the pursuit; therefore, there was no scene for examination. The Complainant’s injury might have occurred in the prisoner compartment of a police prisoner transport vehicle.
Forensic Evidence
The WPS provided the Global Positioning System (GPS) data for a WPS Dodge Durango driven by WO #4. The WPS were only able to provide GPS data for the WPS Dodge Durango, as it was GPS enabled; WO #3’s WPS vehicle had no emergency lighting or siren. At 1:54 p.m., WO #4 was at Cassandra and Kennedy Drives, and turned onto Cabana Road West at about 1:55 p.m., reaching a top speed of 86 km/h, before stopping at Cabana Road West and Dougall Avenue at about 1:56 p.m. In his SIU interview, WO #4 indicated that he pursued the Complainant for about 20 seconds, but discontinued and pulled over after the Complainant would not stop and accelerated. The GPS data were not detailed enough to confirm this, but the data did show the length of the pursuit was less than one minute.
WO #4 stopped for 18 seconds before proceeding northwest on Dougall Avenue, reaching a top speed of 96 km/h. At about 1:58 p.m., he stopped at Dougall Avenue and West Grand Boulevard. This time he stopped for 30 seconds, after which he did a U-turn and went back in a southeast direction on Dougall Avenue. WO #4 indicated in his interview that he was trying to locate the Complainant. He remained in that area until about 2:03 p.m.
The 911 call for the motor-vehicle collision (MVC) where the Complainant struck a traffic pole was at about 2:03 p.m. It was also at the intersection of Northway Avenue and Tecumseh Road West, which Google Maps puts as 7.6 kilometres from where WO #4 stopped.
Video/Audio/Photographic Evidence
The SIU searched for and/or obtained audio, video and/or photographic records of relevance, as set out below.WPS Prisoner Transport Van Video
On December 2, 2020, the Complainant was involved in an MVC. The WPS dispatched a prisoner transport van to attend the MVC and transport the Complainant to the WPS detention unit due to charges. The SO arrived and placed the Complainant in the WPS prisoner transport van, which was equipped with audio and video. WPS provided this video to the SIU on December 12, 2020, but due to technical issues getting the video player (Genetec) to work, it was not until January 4, 2021 that the video clip could be reviewed.
The video showed that on December 2, 2020, at about 2:45 p.m., the SO opened the rear of the prisoner transport van to have the Complainant enter the rear prisoner compartment. The SO did a field search first before allowing the Complainant to enter. The field search took two minutes in which time the Complainant did not complain of injury while being searched; he stood the whole time.
At about 2:47 p.m., the Complainant entered the rear compartment on his own and sat down on his own. For the next minute, he contorted his body to try and get the handcuffs under his buttocks and to the front but was unsuccessful. While being transported he pushed against the opposing bench seat to move his position and raised and lowered his legs; he did not display any signs of pain while doing this.
At about 2:57 p.m., the Complainant slowly leaned his upper body to the left with his feet still straight out. Near 2:58 p.m., he opened his eyes, looked around and then appeared to fall back to his left, this time slipping off the bench. The words, “He’s fallen,” can be heard, believed to be from the SO. The Complainant was still awake, moving around on the floor of the prisoner transport van.
At about 2:59 p.m., the SO opened the rear compartment and asked the Complainant if he was okay. The Complainant was awake and moving around on the floor, but did not respond to the SO, who repeatedly asked the Complainant if he was okay.
The Complainant, still in handcuffs behind his back, slid his legs and moved himself towards the SO, who advised the Complainant to stay put. The SO radioed for back up to assist him. The Complainant moved far enough to put his legs past the entrance stairs with the SO telling him not to. The Complainant ignored the SO, saying something indiscernible, and continued out of the prisoner transport van to exit completely. The SO had to grab the Complainant’s coat to keep him from falling, and he assisted in standing the Complainant up straight. The door to the rear compartment was closing obstructing the camera view. As the door closed, the Complainant did not seem steady on his feet and began to fall forward with the SO holding onto his coat. The audio was running, and the Complainant could be heard saying, “Get away from me.”
At about 3:00 p.m., another WPS unit arrived, believed to be WO #2. She went out of camera range as well. Within seconds, two more WPS units attended the scene.
At about 3:01 p.m., the SO closed the rear of the prisoner transport van. From his SIU interview, it was learned that the ambulance service was very backed up and it was decided to transport the Complainant to the hospital directly given he was in some sort of medical distress. Accordingly, at about 3:06 p.m., the Complainant was loaded into a smaller side prisoner compartment for his safety. He walked to the side compartment on his own, in handcuffs behind his back. He got into the side compartment, climbing a stair to gain entrance, and sat on his own. He made no complaint of injury. It was apparent that he had urinated on himself. The SO told him that they were taking him to the hospital.
At about 3:11 p.m., the SO was parked at the Windsor Regional Hospital (WRH) and opened the side compartment. The Complainant got out on his own and walked with the SO.
Timeline of December 2, 2020
1:44 p.m.: WO #3 saw the Ford Escape driving at a high rate of speed on Longfellow Avenue. The licence plate number was queried on CPIC (Canadian Police Information Centre) and an entry indicated the vehicle was involved in a theft of gas in London earlier that day. 1:54 p.m.: WO #4 was contacted to initiate a traffic stop. WO #3 operated a surveillance unit with no emergency lighting or siren.
1:55 p.m.: WO #4, driving an unmarked Dodge Durango, followed behind the Complainant and activated his emergency lighting and siren on Cabana Road West travelling eastbound, just past Longfellow Avenue. The Complainant accelerated and fled at a high rate of speed by going into the oncoming (westbound) lane of traffic near Dougall Avenue. WO #4 pulled over to the shoulder of Cabana Road West and discontinued. WO #3 was watching from a distance and lost sight of the Complainant at the intersection of Cabana Road and Dougall Avenue.
2:00 p.m. (approximately): A hit and run collision occurred between a Ford Escape and a blue Mitsubishi. This happened near the on-ramp to the EC Row Expressway and Dougall Avenue. [2] The investigating officer attended the hit and run and the scene where a Ford Escape was located. There was blue paint transfer on the Ford Escape and it was in the WPS official’s report that the Ford Escape caused the damage to the blue Mitsubishi. [3]
2:03 p.m.: A 911 call for an MVC at Northway Avenue and Tecumseh Road West. [4] CW #2 reported that a Ford Escape drove into a traffic pole. The driver was out of the vehicle and refused to speak to anyone. CW #2 believed the Complainant was impaired.
2:07 p.m.: WO #2 was dispatched to attend.
2:09 p.m.: The EMS were at the scene. The Complainant told them they were not needed and they cleared.
2:11 p.m.: WO #2 was at the scene.
2:16 p.m.: WO #3 heard of the MVC at 2:03 p.m., and the vehicle and licence plate matched the one he had been involved with. He updated WO #2 with grounds to arrest the Complainant with dangerous operation of a motor vehicle.
2:18 p.m.: WO #1 was dispatched to the scene of the MVC.
2:20 p.m.: WO #1 arrived. WO #2 arrested the Complainant for dangerous driving and driving while impaired.
2:23 p.m.: The Complainant was wanted on an outstanding warrant and a request went to dispatch for a prisoner transport van, which the SO drove at that time.
2:28 p.m.: WO #3 arrived at the scene. He checked the Ford Escape and located drugs (stimulants) and alcohol, both open and closed. The vehicle was blocking the intersection so it was towed.
2:40 p.m.: The SO and the prisoner transport van were at the scene.
2:46 p.m.: WO #4 attended the scene.
2:51 p.m.: The SO began to transport the Complainant to the WPS detention unit.
2:54 p.m.: WO #2 was en route to WPS detention unit.
2:56 p.m.: The SO was at Wyandotte Street West and Crawford Avenue. There was a broadcast: “Male passed out in back and tried to take off, now crying.” The SO broadcast he needed assistance.
2:57 p.m.: WO #1 arrived at Wyandotte Street West and Crawford Avenue. His notes indicated the word ‘Seizure’ and that the Complainant urinated on himself (the Complainant had a medical disorder). As well, he indicated the Complainant had no visible injuries and was not complaining of any injury.
2:58 p.m.: WO #2 arrived at Wyandotte Street West and Crawford Avenue.
3:00 p.m.: A comment was made that ambulance would be holding.
3:07 p.m.: The SO and WO #1 began to head to the WRH.
3:12 p.m.: The SO was at the WRH. The ambulance was cancelled.
Materials Obtained from Police Service
The SIU reviewed the following records from the WPS between December 7 and December 10, 2021:- Computer-assisted Dispatch (x2);
- Civilian Witness statements (x2);
- MVC photographs;
- Narrative of WOs and an undesignated officer; and
- Notes of WOs.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from WRH:- The Complainant’s medical records.
Incident Narrative
The following scenario emerges on the evidence collected by the SIU, which included interviews with the Complainant and the SO, as well as video recordings of parts of the Complainant’s time in custody. At about 1:55 p.m. of December 2, 2020, WO #4 initiated a pursuit of a Ford Escape SUV being operated by the Complainant eastbound on Cabana Road West. Police had information that the vehicle had been involved in a theft of gasoline earlier that day.
The pursuit began just east of Casgrain Drive and was discontinued in the area of Dougall Avenue, less than a kilometre and a minute after it had begun.
The Complainant proceeded north on Dougall Avenue from Cabana Road West and was involved in a minor motor vehicle collision with another vehicle in the area of the on-ramp to the EC Row Expressway. He continued at speed from that location and found himself traveling north on Northway Avenue toward Tecumseh Road West, where he crashed into a traffic signal light pole in the centre median.
WO #2 was the first officer to arrive at the scene of the collision. The officer proceeded to arrest the Complainant at about 2:15 p.m. for impaired driving and dangerous driving.
Shortly before 3:00 p.m., the SO arrived at the scene operating a prisoner transport vehicle. The Complainant was placed in the prisoner compartment of the vehicle and sat on a bench for transport to the detention unit. Within minutes of their departure from the scene, the Complainant lost consciousness and fell from the bench. Observing this from the vehicle’s cameras, the SO pulled over at the intersection of Wyandotte Road and Crawford Avenue to check on the Complainant.
The SO broadcast that he needed assistance at his location and other officers arrived. When it became apparent that an ambulance would be some time in coming, the officers decided to take the Complainant to hospital in the transport vehicle.
At hospital, the Complainant was suspected of having passed out, the result of a seizure. It was further found that he had an acute fracture in the lumbar area.
The pursuit began just east of Casgrain Drive and was discontinued in the area of Dougall Avenue, less than a kilometre and a minute after it had begun.
The Complainant proceeded north on Dougall Avenue from Cabana Road West and was involved in a minor motor vehicle collision with another vehicle in the area of the on-ramp to the EC Row Expressway. He continued at speed from that location and found himself traveling north on Northway Avenue toward Tecumseh Road West, where he crashed into a traffic signal light pole in the centre median.
WO #2 was the first officer to arrive at the scene of the collision. The officer proceeded to arrest the Complainant at about 2:15 p.m. for impaired driving and dangerous driving.
Shortly before 3:00 p.m., the SO arrived at the scene operating a prisoner transport vehicle. The Complainant was placed in the prisoner compartment of the vehicle and sat on a bench for transport to the detention unit. Within minutes of their departure from the scene, the Complainant lost consciousness and fell from the bench. Observing this from the vehicle’s cameras, the SO pulled over at the intersection of Wyandotte Road and Crawford Avenue to check on the Complainant.
The SO broadcast that he needed assistance at his location and other officers arrived. When it became apparent that an ambulance would be some time in coming, the officers decided to take the Complainant to hospital in the transport vehicle.
At hospital, the Complainant was suspected of having passed out, the result of a seizure. It was further found that he had an acute fracture in the lumbar area.
Relevant Legislation
Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm
219 (1) Every one is criminally negligent who
(a) in doing anything, or(b) 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.
Analysis and Director's Decision
On December 2, 2020, the Complainant was diagnosed with a compression fraction of the spine while in the custody of the WPS. Prior to being arrested that date, the Complainant had been involved in an aborted police pursuit and two motor vehicle collisions. The SO was identified as the subject official for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.
It remains unclear when precisely the Complainant sustained his compression fracture. The medical evidence leaves open the possibility that it could have been inflicted in either of the two motor vehicle collisions that preceded his arrest or his collapse to the floor in the prisoner transport vehicle. Indeed, it could be that the injury occurred in the days prior to December 2, 2020. Be that as it may, I am satisfied that there is an insufficient causal connection between the motor vehicle collisions (assuming the injury happened in one or the other of those events) and the police pursuit of the Complainant’s SUV. The pursuit, which was brief in distance and duration, had been discontinued well before the first of these collisions occurred - several minutes had elapsed from the moment of pursuit termination. Thus, as far as the SIU’s jurisdiction is concerned, the inquiry is focused on the possibility that the Complainant was injured in the prisoner transport vehicle.
The offence that arises for consideration in this context is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. Liability for the offence is predicated, in part, on conduct that amounts to a marked and substantial departure from a reasonable level of care in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which the SO exercised custody over the Complainant that contributed to the Complainant’s injury and was so derelict as to attract criminal sanction. In my view, there was not.
The bottom line is that the Complainant’s collapse in the prisoner transport vehicle is likely on the evidence to have been the result of a seizure brought about by a medical disorder. There is no evidence that the SO drove the prisoner transport vehicle in a reckless or dangerous fashion. Moreover, the evidence indicates that the officer was quick to realize that the Complainant was in medical distress and that he did what he could in the time before medical attention was secured for the Complainant to care for him, including transporting him to hospital when it appeared that the ambulance would be delayed.
In the result, whether the Complainant was injured in the course of his dealings with police on the day of his arrest, there is no evidence that police conduct caused his compression fracture or otherwise transgressed the limits of care prescribed by the criminal law. Accordingly, there is no basis for criminal charges in this case and the file is closed.
Date: March 22, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
It remains unclear when precisely the Complainant sustained his compression fracture. The medical evidence leaves open the possibility that it could have been inflicted in either of the two motor vehicle collisions that preceded his arrest or his collapse to the floor in the prisoner transport vehicle. Indeed, it could be that the injury occurred in the days prior to December 2, 2020. Be that as it may, I am satisfied that there is an insufficient causal connection between the motor vehicle collisions (assuming the injury happened in one or the other of those events) and the police pursuit of the Complainant’s SUV. The pursuit, which was brief in distance and duration, had been discontinued well before the first of these collisions occurred - several minutes had elapsed from the moment of pursuit termination. Thus, as far as the SIU’s jurisdiction is concerned, the inquiry is focused on the possibility that the Complainant was injured in the prisoner transport vehicle.
The offence that arises for consideration in this context is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. Liability for the offence is predicated, in part, on conduct that amounts to a marked and substantial departure from a reasonable level of care in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which the SO exercised custody over the Complainant that contributed to the Complainant’s injury and was so derelict as to attract criminal sanction. In my view, there was not.
The bottom line is that the Complainant’s collapse in the prisoner transport vehicle is likely on the evidence to have been the result of a seizure brought about by a medical disorder. There is no evidence that the SO drove the prisoner transport vehicle in a reckless or dangerous fashion. Moreover, the evidence indicates that the officer was quick to realize that the Complainant was in medical distress and that he did what he could in the time before medical attention was secured for the Complainant to care for him, including transporting him to hospital when it appeared that the ambulance would be delayed.
In the result, whether the Complainant was injured in the course of his dealings with police on the day of his arrest, there is no evidence that police conduct caused his compression fracture or otherwise transgressed the limits of care prescribed by the criminal law. Accordingly, there is no basis for criminal charges in this case and the file is closed.
Date: March 22, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Later determined to be at Tecumseh Road West and Northway Avenue. [Back to text]
- 2) When considering the fastest route between Cabana Road and Dougall Avenue, and the scene, EC Row Expressway came up as the fastest route. It is believed that the Complainant fled from the pursuit and entered EC Row Expressway, hitting a car en route and fleeing. It is unclear if the Complainant sustained an injury during this MVC. [Back to text]
- 3) Photographs supporting this were included from WPS. [Back to text]
- 4) The MVC was 7.6 kilometres or 11 minutes by usual driving speed from the last sighting of the Complainant at Cabana Road and Dougall Avenue [source Google Maps]. [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.