SIU Director’s Report - Case # 18-OVI-154
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Contents:
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.
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 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.
- 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 24-year-old male (the Complainant) on May 25, 2018.
“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 24-year-old male (the Complainant) on May 25, 2018.
The Investigation
Notification of the SIU
At approximately 9:35 p.m. on May 25, 2018, the London Police Service (LPS) notified the SIU of the Complainant’s serious injury.LPS reported that at approximately 6:58 p.m., on that same date, the subject officer (SO) saw the Complainant driving a motorcycle. The SO thought that the Complainant was a wanted party. The SO activated his roof lights and made a U-turn, but the motorcycle took off. The motorcycle ended up crashing through a fence on Brydges Street. The SO drove past the collision scene without seeing it. The SO then returned to the area due to a 911 call from citizens reporting the collision.
The scene was held. The Complainant was at the hospital and had reportedly lost a finger and had chest injuries. The police vehicle was at LPS Headquarters. There was no indication that the police vehicle made contact with the motorcycle.
The Team
Number of SIU Investigators assigned: 3 Number of SIU Forensic Investigators assigned: 2
SIU Forensic Investigators (FI) attended and examined the police vehicle but found no evidence of contact between the police vehicle and the motorcycle.
Complainant:
24-year-old male interviewed, medical records obtained and reviewedWitness Officers
WO #1 Interviewed, notes received and reviewedWO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
Subject Officers
The SO Interviewed, notes received and reviewed Evidence
The Scene
The collision occurred at the Plymouth Church property located at 1437 Brydges Street in the City of London. The property is on the southeast corner of Brydges Street and Cornish Street. The property is bordered by a combination of a chain link fence and a wooden fence. The collision occurred east of a driveway situated on the south side of Brydges Street. The location of the crash scene as seen from Brydges Street. The motorcycle went through the fence behind the bush at the corner of the fence.
The portion of the fence that was damaged.
The motorcycle when it came to rest after crashing through the fence into the church parking lot.
Scene Diagram
Physical Evidence
Global Positioning System (GPS) Data
GPS data was obtained from the LPS for the police vehicle operated by the SO on May 25, 2018. The data revealed that the police vehicle made a U-turn at 1255 Brydges Street, traveled 800 metres eastbound, and then passed the area of the collision at 1437 Brydges Street. Brydges Street did not have a posted speed limit, therefore, the speed limit was 50 km/h as outlined by the Highway Traffic Act, section 128(1)(a). The police vehicle reached a maximum speed of 60.7 km/h between 1255 Brydges Street and 1437 Brydges Street. The police vehicle did not stop at the collision scene. The police vehicle traveled to a residential area east of the collision scene and later returned to the collision scene.
Forensic Evidence
No submissions were made to the Centre of Forensic Sciences.
Video/Audio/Photographic Evidence
Closed Circuit Television (CCTV) at 1437 Brydges Street
1437 Brydges Street had three external cameras mounted on the commercial building. There was no clock on the video, but the timer counted off the time from 00:00 minutes, until it ended at 25:48 minutes into the video.
CCTV on LTC Bus
On Friday May 25, 2018, at approximately 18:57:00 hours, bus 108 was westbound on Brydges Street and travelling at 46 km/h. It had a CCTV system which recorded the following (the recording was in the 24 hour clock, beginning at 1857:03 hours, or 6:57:03 p.m.):
Audio Recording
The audio recording was of the bus operator, who returned to the driver’s compartment in an excited state, after the collision. The driver told his dispatcher about the collision and its location. He also stated that the motorcycle had passed him doing approximately 100 km/h.
Communications Recordings
The communications audio recordings and the detailed call summary for the MVC provided by the LPS were found to mirror each other. The sequence of the audio recording is summarized as follows:
A broadcast from the SO advising that he observed a male (identified as someone other than the Complainant) on a motorcycle eastbound on Brydges Street from Hale Street. The motorcyclist was wearing a helmet, a red, white and black jacket, and shorts. He was on a black motorcycle. The SO “flipped around” (made a U-turn) and the motorcycle was gone.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the LPS:
The SIU obtained and reviewed the following materials and documents from other sources:
Scene Diagram
Physical Evidence
Global Positioning System (GPS) Data
Forensic Evidence
No submissions were made to the Centre of Forensic Sciences.Video/Audio/Photographic Evidence
Closed Circuit Television (CCTV) at 1437 Brydges Street
- At 00:07 minutes, a London Transit Commission (LTC) bus entered the camera view at the top of the screen and travelled westbound on Brydges Street;
- At 00:14 minutes, a motorcycle entered the frame from the east and collided with a wooden privacy fence located at 1437 Brydges Street. A small section of the fence was shattered and the motorcycle came to rest on asphalt pavement within the private lot. The driver of the motorcycle was not visible on this camera angle;
- At 00:33 minutes, a marked LPS police vehicle drove eastbound on Brydges Street, without its roof lights activated;
- At 01:55 minutes, civilians approached on Brydges Street and ran towards the area where the motorcycle had collided with the fence;
- At 02:45 minutes, a lone male [later identified as the Complainant] walked into the fenced lot from Brydges Street;
- At 3:52 minutes, two unknown civilians entered the lot and searched for the Complainant;
- At 4:08 minutes, the camera view opened and displayed three camera angles on one screen;
- At 4:14 minutes, the two civilians walked the Complainant back from the wall of the building;
- At 4:25 minutes, the first LPS police vehicle arrived on scene;
- At 4:35 minutes, two uniformed police officers [later identified as WO #1 and the SO] jumped over a chain link fence and entered the lot;
- At 4:41 minutes, the Complainant stood with WO #1, the SO, and the civilians;
- At 4:45 minutes, the Complainant sat down on the grass. WO #1 and the SO, along with two civilians, stood over the Complainant;
- At 5:50 minutes, WO #1 walked towards the damaged motorcycle and returned into view;
- At 6:22 minutes, three uniformed police officers and two civilians stood watch over the Complainant;
- The Complainant was lying on his back with his hands at his side and moving about; the Complainant was not handcuffed;
- At 7:45 minutes, a London Fire Department (LFD) vehicle arrived on Cornish Street;
- At 8:25 minutes, Emergency Medical Services (EMS) arrived on scene. The Complainant remained on his back with his arms moving about.
- At 9:42 minutes, LFD staff treated the Complainant while he lay on the grass;
- At 10:17 minutes, EMS staff jumped the chain link fence and ran towards the Complainant; the Complainant received treatment from EMS and LFD personnel;
- At 13:20 minutes, a backboard was handed over the fence by LFD staff;
- At 15:30 minutes, a stretcher was brought to the rear grass area by EMS and LFD staff and the Complainant was placed on the backboard;
- At 16:50 minutes, the Complainant was moved to the stretcher by two EMS and three LFD members;
- At 18:20 minutes, the stretcher was rolled towards the fence and awaited the arrival of the EMS vehicle;
- At 19:00 minutes, LPS officers examined the motorcycle; and
- At 21:47 minutes, the EMS vehicle was driven from the scene and an LPS police vehicle followed.
CCTV on LTC Bus
- At 18:57:03 hrs, the forward camera showed an eastbound motorcycle which passed the bus at a high rate of speed. No police vehicles were in view of the camera;
- At 18:57:06 hrs, the bus operator called out, “Oh my God!” and the bus immediately slowed and stopped;
- At 18:57:18 hrs, a uniformed police vehicle approached from the east with a civilian vehicle in front of it. The police vehicle appeared to be attempting to pass the civilian vehicle; and
- The police vehicle [believed to be driven by the SO] approached the bus with its roof lights activated.
Audio Recording
Communications Recordings
The communications audio recordings and the detailed call summary for the MVC provided by the LPS were found to mirror each other. The sequence of the audio recording is summarized as follows:A broadcast from the SO advising that he observed a male (identified as someone other than the Complainant) on a motorcycle eastbound on Brydges Street from Hale Street. The motorcyclist was wearing a helmet, a red, white and black jacket, and shorts. He was on a black motorcycle. The SO “flipped around” (made a U-turn) and the motorcycle was gone.
- An unknown officer said that the male misidentified by the SO as the motorcyclist was wanted;
- WO #3 and WO #2 were dispatched to an MVC at 1434 Brydges Street. A pedestrian was struck;
- An unknown police officer said a motorcycle went through a fence and he was not sure if it was related to the broadcast made by the SO;
- An unknown police officer said he was on scene;
- WO #1 requested officers respond “code one for now”;
- An unknown police officer said the LFD was at the scene;
- WO #2 said that the male who had been on the motorcycle said he thought the motorcycle was stolen. WO #2 said the male was not the person misidentified by the SO;
- WO #2 requested that the SO make his way to the collision where the Complainant was located;
- The SO said he was by the motorcycle and witnesses had advised him that the Complainant had wandered away from the location of the motorcycle;
- The Complainant’s identity was confirmed by way of a photograph; and
- The Complainant was confirmed to be a wanted party.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the LPS:- Call Hardcopy;
- Detailed Call Summary;
- Police Radio Transmissions Recording;
- General Occurrence Report;
- Motor Vehicle Collision Report;
- Scene Photos;
- Note of WOs #1-3 and the SO;
- Procedure: Suspect Apprehension Pursuits;
- Screen Capture Showing Direction of the SO's Vehicle; and
- Written Statements of WOs #1-3 and the SO.
The SIU obtained and reviewed the following materials and documents from other sources:
- Medical Records of the Complainant related to this incident, obtained with his consent;
- CCTV Footage from 1437 Brydges Street; and
- CCTV Footage from an LTC bus.
Incident Narrative
The circumstances surrounding this event are clear on the information gathered in the SIU’s investigation, which included statements from the Complainant, the SO and several witness officers who arrived at the scene following the accident, as well as GPS data from the SO’s cruiser and video recordings that captured important parts of the incident, such as the actual collision. At about 7:00 p.m. of the day in question, the SO was on patrol in his cruiser in the area of Brydges Street and Highbury Avenue when he observed a motorcyclist whom he believed was wanted by the police. The Complainant was that motorcyclist, but he was not the person the SO had in mind. The officer maneuvered his vehicle in behind the Complainant eastbound on Brydges Street with the intention of stopping him, but quickly lost sight of the motorcycle as it sped through a bend in the road. The Complainant had noticed the cruiser and accelerated in an effort to avoid apprehension. Though he was not the suspect in question, he had a number of outstanding warrants and was operating a stolen motorcycle. As the Complainant proceeded east, reaching speeds estimated at 100 km/h, he lost control of the motorcycle and crashed into a fence of a property on the southeast corner of the Brydges and Cornish Streets intersection. The SO was still looking for the motorcycle at the time of the collision. In fact, some 20 seconds after the crash, he drove past the collision site without seeing it. Shortly thereafter, the officer was alerted to the incident via his radio and made his way to the scene where he instructed the Complainant to sit down pending the arrival of paramedics.
Nature of Injuries / Treatment
On May 25, 2018, while at the hospital, the Complainant had X-ray and Computerized Tomography (CT) scans performed, and was diagnosed with a number of injuries, including multiple arm and hand fractures, the loss of his right index finger and a lacerated liver.
The Complainant underwent surgery and was discharged on May 29, 2018.
Nature of Injuries / Treatment
On May 25, 2018, while at the hospital, the Complainant had X-ray and Computerized Tomography (CT) scans performed, and was diagnosed with a number of injuries, including multiple arm and hand fractures, the loss of his right index finger and a lacerated liver.The Complainant underwent surgery and was discharged on May 29, 2018.
Relevant Legislation
Section 249, Criminal Code -- Dangerous operation of motor vehicle 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.
Analysis and Director's Decision
The Complainant suffered serious injuries when he crashed the motorcycle he was operating in the evening of May 25, 2018 in London. The subject officer had observed the Complainant and followed him in his cruiser just before the collision in question. For the reasons that follow, there are no reasonable grounds to believe the officer committed a criminal offence in connection with the Complainant’s injuries.
The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 249(3) of the Criminal Code (presently, section 320.13(2)). 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 exercised in the circumstances: R. v. Beatty, [2008] 1 SCR 49. The SO cannot be said to have caused or contributed to the Complainant’s loss of control of the motorcycle that resulted in its collision with the fence. Aside from serving as the impetus for the Complainant’s flight down Brydges Street, the officer had quickly lost sight of the motorcycle and was nowhere near it when the crash occurred. It was the Complainant’s conduct, and most emphatically his speed, that was solely to blame for the collision. Aside from that, the evidence shows that the SO made judicious use of his emergency equipment as he endeavoured to navigate traffic around him, did nothing to imperil motorists and pedestrians in the area, and operated his cruiser at reasonable speeds throughout - never exceeding 60 km/h on Brydges Street, which is governed by a 50 km/h speed limit. On this record, it is apparent that the SO conducted himself at all times within the limits of care prescribed by the criminal law and there is therefore no basis upon which to proceed with criminal charges in this case. The file is closed.
Date: May 23, 2019
Original signed by
Joseph Martino
Interim Director
Special Investigations Unit
The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 249(3) of the Criminal Code (presently, section 320.13(2)). 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 exercised in the circumstances: R. v. Beatty, [2008] 1 SCR 49. The SO cannot be said to have caused or contributed to the Complainant’s loss of control of the motorcycle that resulted in its collision with the fence. Aside from serving as the impetus for the Complainant’s flight down Brydges Street, the officer had quickly lost sight of the motorcycle and was nowhere near it when the crash occurred. It was the Complainant’s conduct, and most emphatically his speed, that was solely to blame for the collision. Aside from that, the evidence shows that the SO made judicious use of his emergency equipment as he endeavoured to navigate traffic around him, did nothing to imperil motorists and pedestrians in the area, and operated his cruiser at reasonable speeds throughout - never exceeding 60 km/h on Brydges Street, which is governed by a 50 km/h speed limit. On this record, it is apparent that the SO conducted himself at all times within the limits of care prescribed by the criminal law and there is therefore no basis upon which to proceed with criminal charges in this case. The file is closed.
Date: May 23, 2019
Original signed by
Joseph Martino
Interim Director
Special Investigations Unit
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.