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SIU Director’s Report - Case # 18-OCI-168

Contents:

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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 a serious injury sustained by 21-year-old woman.

The Investigation

Notification of the SIU

On June 5, 2018, at 1:05 p.m., the Waterloo Regional Police Service (WRPS) reported an injury to the Complainant.

Reportedly, on June 5, 2018, at 1:00 p.m., a team of five plainclothes police officers, members of the Break and Enter and Auto Theft (BEAT) unit, were doing surveillance on a stolen Lincoln Continental car on Weber Street in Kitchener and were awaiting the return of the suspect. Two people [now determined to be the Complainant and Civilian Witness (CW) #3] approached the stolen vehicle. CW #3 was arrested almost immediately whereas the Complainant fled on foot to evade the police.

The Complainant ran down a foot path and into traffic on Weber Street. Weber Street was a four-lane roadway with two-way traffic. At some point the Complainant ran or jumped into a utility trailer being pulled by a Ford pickup truck.

As a direct result of her actions the Complainant suffered a compound fracture to one of her legs and was taken to Grand River Hospital (GRH) in Kitchener for treatment.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 2

Complainant:

21-year-old female interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed


Subject Officers

SO #1 Did not submit to interview or provide notes, as is the subject officer’s legal right
SO #2 Did not submit to interview or provide notes, as is the subject officer’s legal right


Evidence

The Scene

Weber Street East goes in an east-west direction. While travelling westbound approaching the scene, the roadway curved to the right. The paved surface was in good repair and pavement markings were clear and visible. There were four vehicles within the confines of the secured scene. The scene was photographed by SIU Forensic Investigators (FIs) as well as mapped and video recorded.

Scene Diagram

Scene diagram

Physical Evidence

Blood stain evidence was collected from the roadway in the westbound centre lane, from the right rear corner of the trailer, from the right rear fender and the right railing of the trailer. Further blood stain evidence was collected from the right fender of the trailer, the left tire of the mower and the floor of the trailer.

Personnel effects belonging to the Complainant were collected from the trailer. SIU FIs also collected biological tissue believed to be that of the Complainant from the right rear post structure of the trailer.

Video/Audio/Photographic Evidence

On June 5, 2018, the SIU obtained the closed circuit television (CCTV) recordings from a nearby business.

A person [believed to be the Complainant] was standing at the passenger side of the Lincoln Continental. A short time later a second person [believed to be CW #3] walked towards the passenger side of the Lincoln.

A white pick-up truck was driving west on Weber Street East. The pick-up truck was towing a low sided aluminum trailer carrying an orange backhoe. The pick-up truck and trailer were in lane two. A silver coloured hatchback car is also travelling west in the curb lane beside the pick-up truck. The silver hatchback [now determined to be a WRPS Toyota surveillance police cruiser] stopped in the curb lane and the driver’s door opened. The pick-up truck continued westbound and out of camera view.

A person wearing blue pants and a black top exited the silver hatchback and stood in lane two in front of a westbound car. Eventually the person gets back into the silver hatchback and positions the car facing south blocking westbound traffic lanes.

A light coloured vehicle parked in the Briarfield Retirement Residence parking lot with the front portion pointed towards the passenger side of the Lincoln. A person [now determined to be CW #3] is forced to the ground by plainclothes police officers at the driver’s side of the stolen Lincoln.

A plainclothes police officer wearing a police vest stood in lane two of the eastbound lanes. A gold unmarked WRPS Ford Taurus police cruiser with emergency lights on arrived and blocked westbound traffic lane two. A uniformed police officer exited the unmarked police cruiser

Communications Recordings

The communications recordings had no bearing on this matter as they did not speak to how the Complainant sustained her injury.

Materials obtained from Police Service

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

  • Communications Recordings;
  • Notes of all witness officers;
  • Pictures of WO #5’s notes;
  • Procedure - Use of Force;
  • Procedure - Arrest; and
  • Procedure - Prisoner Care and Control.

Medical Evidence

On June 5, 2018, at about 4:40 p.m., the Complainant was transported to hospital and admitted. She was diagnosed and treated for a fracture of her left leg.

Incident Narrative

The facts of this matter are not in dispute. On June 5, 2018, the Complainant was in possession of a stolen vehicle which was parked in a parking lot across the street from the Howard Johnson Hotel. Unbeknownst to her, the BEAT unit of the WRPS had received information about the stolen vehicle, located it and set up surveillance in the area. WO #2, WO #4, and Subject Officer (SO) #2 were waiting in an unmarked van positioned next to the stolen vehicle and other BEAT members were positioned throughout the area.

At around noon, the Complainant and CW #3 returned to the stolen vehicle. CW #3 approached the driver’s side and the Complainant approached the passenger’s side. Before opening the door, the Complainant looked at the unmarked van and made eye contact with WO #4 who was sitting in the driver’s seat. WO #1, the officer in charge, observed the Complainant looking at the van, believed she might flee and ordered the BEAT unit to arrest them.

WO #2, WO #4, and SO #2 exited the undercover van. WO #2 and WO #4 grabbed CW #3, who resisted arrest, was taken to the ground and handcuffed.

As CW #3 was arrested, the Complainant decided to run away from the officers. She ran from the officers down a pedestrian footpath connecting the parking lot and Weber Street. SO #1 an SO #2 pursued her on foot.

WO #5 was driving west on Weber Street when he heard WO #4 advise over the police radio that the Complainant was running in his direction. He saw the Complainant on the footpath, looking over her shoulder as she ran. WO #5 stopped in the curb lane and honked his horn to get her attention. He was concerned she would run into traffic and she did, almost being hit by a westbound vehicle.

The Complainant stopped briefly in the middle of the street as a pickup truck towing a utility trailer passed her. In an effort to evade police, she jumped into the trailer. As she did so, she struck the left side of her body and her head on the trailer. The Complainant did not successfully escape because the man driving the truck, CW #1, immediately stopped driving after she jumped into the trailer.

SO #1 and SO #2 approached the Complainant as she sat in the trailer. She had blood on her face and an obvious injury to her leg. Paramedics were called and she was transported to the hospital by ambulance.

Relevant Legislation

Section 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.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Analysis and Director's Decision

On June 5, 2018, the Complainant fractured her leg when she tried to evade police officers in Kitchener by jumping into a utility trailer being towed by a moving vehicle. Two WRPS officers pursued the Complainant on foot before she jumped into the trailer, and were designated as subject officers. For the following reasons, it is clear that neither subject officer committed a criminal offence in relation to the Complainant’s injury.

It is clear that no force was used on the Complainant during the course of her arrest and the only offence to consider in these circumstances is criminal negligence causing bodily harm contrary to s. 221 of the Criminal Code. Criminal negligence is a high threshold. It is defined by s. 219(1) of the Criminal Code which states that “[e]very one is criminally negligent who, in doing anything, or 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.” The Court of Appeal for Ontario in R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.) further clarified that criminal negligence does not require proof of intention or deliberation. Indifference is sufficient to make out criminal negligence if the conduct amounted to a marked and substantial departure from the standard of a reasonable person and the person “either recognized and ran an obvious and serious risk to the lives and safety of others or, alternatively, gave no thought to that risk.”

In this case, there is no evidence that the subject officers’ conduct meets the high threshold required to make out criminal negligence. Police officers are authorized to apprehend those they may lawfully take into custody, and SO #1 and SO #2 had seen the Complainant about to enter a stolen vehicle and were within their rights in attempting to arrest her. Similarly, I can find no fault in the officers engaging her in a short foot pursuit even if it was towards Weber Street. Weber Street has a modest speed limit (50 km/h) and a sidewalk and, as a result, I do not believe chasing the Complainant in that direction posed an obvious risk to her life or safety. This is not a situation where the officers were funneling the Complainant to an area where she had no choice but to enter the roadway if she wanted to flee. In fact, the evidence indicates they were some distance behind her when she chose to enter Weber Street. On this record, it is clear that the Complainant entered the roadway and then jumped into the trailer on her own accord. As such, I am unable to find this conduct is a departure from the standard of a reasonable person (let alone a marked and substantial departure). Nor do I believe the subject officers’ conduct demonstrated a wanton or reckless disregard to the Complainant’s life or safety. I am therefore unable to form reasonable grounds to believe SO #1 or SO #2 committed a criminal offence in relation to the Complainant’s injuries, and the file will be closed.


Date: May 31, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit