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SIU Director’s Report - Case # 18-OVI-147

Contents:

News Releases for this Case:

French:

Mandate of the SIU

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.

Information Restrictions

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.

Mandate Engaged

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 sustained by a 25-year-old male (the Complainant) on May 19, 2018, when he was run over by a police vehicle.

The Investigation

Notification of the SIU

At approximately 4:30 a.m. on May 19, 2018, the Brantford Police Service (BPS) notified the SIU that the Complainant had been run over by a BPS police vehicle.

According to the BPS, on May 19, 2018 at approximately 1:53 a.m., BPS officers responded to an unrelated domestic assault call at a residence in the City of Brantford. When a police officer returned to his police cruiser, the Complainant went in front of the police cruiser. The police officer drove off and ran over the Complainant. A tow truck was called to lift the cruiser off of the Complainant.

After the Complainant was removed from under the police vehicle, an altercation occurred between him and the police officers. The Complainant was eventually controlled and was taken to hospital, where he was diagnosed as having suffered second degree burns to his back and buttocks, broken ribs, and other injuries. He was then transferred to a second hospital.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
 
The SIU immediately dispatched three investigators and two forensic identification investigators to the scene, which was then measured using a Total Station device, for forensic mapping.
An SIU investigator attended the hospital to speak to the Complainant and obtained from him signed consent for the release of his medical information from both hospitals he had attended.

Complainant:

25-year-old male, declined to be formally interviewed but provided some information regarding the circumstances around his injuries; medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes and written statement received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes and written statement received and reviewed
WO #4 Notes received and reviewed, interview deemed not necessary
WO #5 Notes and written statement received and reviewed, interview deemed not necessary
WO #6 Notes received and reviewed, interview deemed not necessary
WO #7 Notes received and reviewed, interview deemed not necessary
WO #8 Notes received and reviewed, interview deemed not necessary
WO #9 Notes and written statement received and reviewed, interview deemed not necessary
WO #10 Notes received and reviewed, interview deemed not necessary
WO #11 Notes and written statement received and reviewed, interview deemed not necessary

The notes of all witness officers were reviewed. Interviews were conducted with the witness officers who had pertinent information, as indicated by their notebook entries.


Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

This incident occurred on Market Street, just south of Chatham Street, in the City of Brantford. Walking southbound along the east sidewalk of Market Street, a person would encounter the following businesses;

  • 139 Market Street – Two Doors Down, a bar;
  • 135 Market Street – Brando’s, a bar;
  • 129 Market Street – Market Street Dental;
  • 125 Market Street – Stormy’s Variety, a small convenience store;
  • 121 Market Street – a private residence; and
  • 119 and 117 Market Street – An apartment building, with two entrances at the front. It was this apartment building to which the police had responded for the domestic assault complaint.

The SO had parked his police SUV on Market Street, blocking a laneway between Stormy’s Variety and the private residence at 121 Market Street. When the SO returned to his vehicle from the domestic assault investigation, he pulled forward and trapped the Complainant under his vehicle. The SO stopped his vehicle in front of Stormy’s Variety.

A push bar on the front of the SO’s police vehicle had crush damage to one of the cross members. That damage was reportedly caused by the tow truck that had been called to lift the police vehicle off of the Complainant.

Location of the involved police vehicle with exhibit markers indicating the location of the Complainant’s toque and cellphone.

Location of the involved police vehicle with exhibit markers indicating the location of the Complainant’s toque and cellphone.


Scene Diagram

Scene diagram

Prior Occurrence


The BPS had responded to previous incidents involving the Complainant. One similar occurrence took place on June 28, 2017, when employees from a commercial premises called the BPS to report a suspicious male pacing in front of the business. WO #11 had prepared a written statement relating to that incident. According to that report, when WO #11 pulled up in his police vehicle, the Complainant laid down on his back. WO #11 feared that the Complainant was placing himself in a very dangerous situation, by lying down in busy driveways where vehicles might not see him.

Forensic Evidence

Swabs were initially taken from the undercarriage of the SO’s police vehicle; however, it was determined that there was no need to submit those swabs to the Centre of Forensic Sciences as there was no issue with respect to the presence and identity of the male under the vehicle.

Video/Audio/Photographic Evidence


Market Street Dental Video


A surveillance video recording from the Market Street Dental office captured the Complainant walking toward the SO’s parked police vehicle. Unfortunately, there was a lamppost and a street sign between the camera and the SO’s vehicle and the obstruction was large enough that the Complainant disappeared from camera view once in front of the SO’s vehicle. The SO can then be seen moving in the driver’s seat, and his arm can be seen pulling down on the column-mounted transmission shifter.

At the same time, a motorist who had parked on the west side of the street, exited his vehicle, then started to walk across the street. [1]

The SO pulled forward slightly and the motorist started to wave his arms vigorously. The SO exited his police vehicle and looked underneath it. He then waved down an ambulance that had been parked behind him.

Communications Recordings

On May 19, 2018, the SO radioed the communications centre and reported an intoxicated male had climbed underneath his vehicle and the SO had rolled forward.

Materials obtained from Police Service

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

• BPS Total Station Drawing;
• Dispatch from CAD Details-(June 29, 2017);
• Dispatch from CAD Details-(May 19, 2018);
• List of Involved Officers;
• Notes of WOs #1-10;
• Written Statement of WOs #1, 3, 4, 5, and 9;
• Written Statement of WOs #11 (regarding an incident on June 28, 2017 involving the Complainant);
• Scene Photos;
• 911 Call Related to Initial Domestic Dispute Call; and
• Police Transmissions Recordings.

The SIU obtained and reviewed the following materials and documents from other sources:

• Video from the a commercial premises on Market Street;
• Fire department and firefighter incident reports;
• Medical records of the Complainant related to this incident, obtained with his consent; and
• The Ambulance Call Report from the County of Brant ambulance service.

Nature of Injuries/Treatment

The injuries sustained by the Complainant included a number of fractures, burns and abrasions.

Relevant Legislation

Section 219, Criminal Code -- Criminal negligence 

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.

Section 249, Criminal Code -- Dangerous operation of motor vehicles causing bodily harm

249    (1) Every one commits an offence who operates
(a) 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.

Incident Narrative

The events in question surrounding the injuries suffered by the Complainant are apparent based on the information collected by the SIU. That information included statements provided by the SO and two paramedics who were present at the scene at the time of the incident, as well as information provided by the Complainant’s sister and companion during the evening of May 18 and the early morning hours of May 19, 2018. It further included a review of police communications recordings and a prior similar incident involving the Complainant, forensic examination of the scene, and, critically, a number of informal statements made by the Complainant and CCTV footage of the incident from a nearby commercial premises.

On May 19, 2018, the SO of the BPS responded to a radio call to attend a residence on Market Street in the City of Brantford for a possible domestic dispute. While the SO was inside the residence responding to the call, unbeknownst to him, the Complainant, who had consumed a considerable amount of alcohol and who suffered from mental health issues, approached the SO’s police vehicle and lay down on the roadway in front of it. At approximately 1:50 a.m., the SO returned to his police vehicle and put the vehicle in motion. A person nearby observed that the Complainant was lying in front of the vehicle and ran over to the SO and notified him of the Complainant’s presence. Unfortunately, the SO’s police vehicle had already rolled forward and pinned the Complainant underneath it. A tow truck was called and the police vehicle was removed from on top of the Complainant, who then crawled out from under the police vehicle and was taken to hospital.

Analysis and Director's Decision

In my view, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injuries.

The offences that have to be considered in this case are those of criminal negligence causing bodily harm and dangerous driving causing bodily harm, contrary to sections 221 and 249(3) [2] of the Criminal Code, respectively. Both offences are predicated in part on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. The evidence establishes that the Complainant, for reasons relating to his inebriation and/or mental health issues at the time, intentionally lay down in front of the SO’s SUV in the darkness and did not make the officer aware of his presence. It is further clear that the SO, after concluding his business at the scene of another incident, entered his police SUV completely unaware of the Complainant’s precarious position and set the vehicle in motion, resulting in the Complainant’s injuries. Once the officer became aware of what had occurred, he acted immediately to render assistance to the Complainant by stopping and turning off his motor vehicle, checking under his vehicle with a flashlight to assess the Complainant’s condition, notifying nearby paramedics that the Complainant required assistance, and calling the dispatcher, who called for the fire department and a tow truck to lift the vehicle off of the Complainant. The question arises whether the officer could have acted in some way to avert the injuries that were caused to the Complainant. Theoretically, the SO might have personally inspected the front of his vehicle before setting it in motion. However, I note that the officer had no reason at the time to suspect that someone might take the sort of unusual and drastic action adopted by the Complainant. On this record, I am satisfied that the level of care exercised by the SO fell within the limits prescribed by the criminal law and that there are therefore no reasonable grounds for proceeding with criminal charges in this case.


Date: April 18, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) This motorist was later allowed to depart the scene by the BPS and the SIU was unable to identify him. [Back to text]
  • 2) Presently, section 320.13(2). [Back to text]