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SIU Director’s Report - Case # 18-OVI-336

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 a 28-year-old man.

The Investigation

Notification of the SIU

On November 15, 2018, at 5:30 p.m., the Chatham-Kent Police Service (CKPS) notified the SIU of a motor vehicle collision involving a CKPS police cruiser and a pedestrian (the Complainant).

The CKPS reported that at 2:46 p.m., the Subject Officer (SO) was attempting to arrest the Complainant after a complaint of a purse snatching. The SO saw the Complainant on a bicycle and pursued him onto a grassy area near the rear of 53 McNaughton Avenue West in Chatham. The Complainant dismounted his bicycle and was struck by the SO’s police cruiser. He was taken to Chatham Kent Health Alliance (CKHA) where he was diagnosed with a fractured arm.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned:

Complainant:

28-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Notes reviewed, interview deemed not necessary


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The apartment at 53 McNaughton Avenue West is a three-storey building which is elongated in a north and south configuration. The paved entranceway from McNaughton Avenue West follows a north and south path on the west side of the building. A paved parking lot is located on the north side of the building. On the southeast edge of the rear parking lot the pavement ends in an east and west fashion bordering the north edge of a grassed passageway which extends southward towards McNaughton Avenue West on the east side of the apartment building.

In the area of this collision, the grassed passageway is 6.9 metres wide. It is bordered by the apartment building on the west side and a wood slat fence providing privacy to single unit homes on the east side. The grassed passageway is not designed for use by motorists. The grassed passageway slopes eastbound such that the elevation is higher at the apartment and lower at the wood slat fence. According to elevation readings during the scene mapping the wheels of the cruiser were 1.7 metres apart. Generally, throughout the scene, the left tire marks were 0.1 metres lower than the right tire marks. This calculates to a significant eastward descending grade of 5.8 percent.

Notwithstanding that this collision occurred in daylight hours, there is no artificial lighting illuminating the grassed passageway.

The CKPS cruiser was unoccupied with engine not running, facing south in the grassed passageway immediately east of the building at 53 McNaughton Avenue West. The approximate centre of mass was located 35.9 metres south of the south edge of the rear paved parking lot and 4.1 metres east of the east edge of the apartment building at 53 McNaughton Avenue West.

A grey Raleigh bicycle was positioned upright facing north on the west side of the wood slat fence. The approximate centre of mass was located 15.7 metres south of the south edge of the rear paved parking lot and 6.4 metres east of the east edge of the apartment building at 53 McNaughton Avenue West.

A tire mark leading to the right rear tire of the CKPS cruiser started at the south edge of the rear paved parking lot and 1.7 metres east of the east edge of the apartment building at 53 McNaughton Avenue West. The left tire mark followed the same path but to the left rear tire of the CKPS cruiser. The marks generally followed a southbound path, but they had an easterly curvature so that at one point the left tire mark came within 1.0 metre of the wood slat fence before ending further to the west at the left rear tire. Amongst the tire marks were thin tire marks believed to belong to a stretcher.


The grassy yard running behind 53 McNaughton Avenue West where the collision occured. Green and orange evidence markers mark the tire tracks of the CKPS cruiser (visible in the distance) which struck the Complainant.
Figure 1- The grassy yard running behind 53 McNaughton Avenue West where the collision occured. Green and orange evidence markers mark the tire tracks of the CKPS cruiser (visible in the distance) which struck the Complainant.


The exterior of a freshly damaged driver’s mirror was located 23.8 metres south of the south edge of the rear paved parking lot and 6.1 metres east of the east edge of the apartment building at 53 McNaughton Avenue West.

A black and white striped toque was located 23.8 metres south of the south edge of the rear paved parking lot and 5.1 metres east of the east edge of the apartment building at 53 McNaughton Avenue West. These last two items were located about 2.8 metres south of the area of impact.

A coniferous tree with branches close to the ground was centred 13.7 metres south of the south edge of the rear paved parking lot and 5.6 metres east of the east edge of the apartment building at 53 McNaughton Avenue West. As one travels southbound in the passageway objects located to the south of the coniferous tree are obstructed by its foliage.

A small deciduous tree with branches close to the ground was centred 23.3 metres south of the south edge of the rear paved parking lot and 6.1 metres east of the east edge of the apartment building at 53 McNaughton Avenue West. One of the branches on the west side was freshly snapped off and located to the east of the tree.

A second but small coniferous tree was centred 25.8 metres south of the south edge of the rear paved parking lot and 6.2 metres east of the east edge of the apartment building at 53 McNaughton Avenue West.

Scene Diagram

Scene diagram

Expert Evidence

The SIU reconstructionist came to the following conclusions:

  • The wet grass and soft soil of the passageway created decreased braking and steering abilities of CKPS cruiser. The location where the Complainant was seen to be lifting the bicycle over the fence was about 21.0 metres south of where the grassed passageway began.
  • After entering the grassed passageway CKPS cruiser moved slightly to the east towards the wood fence exacerbated by an eastward downward slope of 5.8 percent. The left side of CKPS cruiser brushed a coniferous tree 13.7 metres south of the beginning of the grassed passageway.
  • At a calculated speed between 20 to 29 km/h, about 21.0 metres south of the beginning of the grassed passageway, the left front corner of CKPS cruiser came into collision with the Complainant, thrusting him southbound for about 2.8 metres where he came to rest. After the front bumper impact, the Complainant impacted the driver’s side mirror of CKPS cruiser breaking off the exterior molding.
  • The driver’s door then impacted a small deciduous tree branch 23.3 metres south of the beginning of the grassed passageway. The driver’s door and damaged driver’s side mirror brushed against a second coniferous tree 25.8 metres south of the beginning of the grassed passageway.
  • The CKPS cruiser traveled about 17.0 metres after the front bumper impact with the Complainant before coming to rest some 35.9 metres south of the beginning of the grassed passageway.

Communications Recordings

Audio recordings between the CKPS dispatcher and the SO revealed the following:

  • At 2:45:37 p.m. the SO broadcast, “Dispatch, I’ve got that male at the 100 McNaughton, he’s taking off on me.”
  • At 2:46:20 p.m., in response to the dispatcher’s query to the direction of the suspect’s travel, the SO broadcast, “Last seen eastbound McNaughton.”
  • At 2:46:33 p.m. the SO broadcast, “Dispatch, I need an ambulance please to 100 McNaughton.”

56 seconds elapsed from the time the Complainant fled from the SO until the collision occurred. The time the SO first encountered the Complainant is not recorded.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the CKPS:
  • Automotive Service Records- the CKPS cruiser;
  • CAD Event Details Theft;
  • CAD Event Details-MVC;
  • Communications Recordings;
  • Duty Roster Report Nov 15 2018;
  • Event Chronology;
  • Niche Incident Summary;
  • Notes-the SO and all witness officers;
  • Procedure-POLICE DRIVING (MAR2013);
  • Procedure-SUSPECT APPREHENSION PURSUITS (OCT2015);
  • Theft General Occurrence Report;
  • Theft Victim Statement;
  • Theft Witness Statement;
  • Will Say of WO #1;
  • Will Say of WO #2;
  • Will State of the SO; and
  • Will State of WO #3.

Incident Narrative

The SIU’s investigation into this incident consisted of interviews with the Complainant, the SO, four civilian witnesses (CWs) and three witness officers (WOs), as well as a review of the police radio communications and CKPS officers’ notes. An SIU collision reconstructionist also attended the scene and prepared a report about the collision. Although there are some discrepancies between witness statements, the pertinent details about the collision are nevertheless clear on the weight of the reliable evidence.

The SO was operating a marked CKPS Dodge Charger that was equipped with snow tires. CW #2, a co-op student from Fanshawe College’s Law Enforcement Program, was his passenger during the incident. The SO reported that, at around 2:45 p.m., they learned that a male party wearing a hoodie who was riding a white bicycle had stolen a purse from an elderly woman. The suspect was reported to be nearby and fleeing in a westerly direction. The SO and CW #2 drove west on McNaughton Avenue West where CW #2 observed the Complainant, who was wearing a hoodie and riding a white bicycle with a white bag on its handlebars. CW #2 pointed the Complainant out to the SO as the potential suspect.

The SO and CW #2 followed the Complainant northbound up a long driveway at 99 McNaughton Avenue West. 99 McNaughton Avenue West is next to 53 McNaughton Avenue West, the address where the collision occurred. Both properties have long driveways that run north and south beside multi-unit buildings. The driveways run parallel and close to each other and are separated by a fence.

The SO attempted to stop the Complainant by activating his emergency lights and issuing a verbal command for him to pull over, but the Complainant did not appear to hear him. The SO sounded the air horn, and the Complainant changed direction and went through a gap in the fence separating 99 McNaughton Avenue West and 53 McNaughton Avenue West, disappearing from the SO and CW #2’s sight.

The SO believed the Complainant was the suspect who had stolen the purse because he matched the suspect’s description and was actively evading the police. He turned his vehicle around, drove back down the driveway and then proceeded northbound up the driveway of 53 McNaughton Avenue West. 53 McNaughton Avenue West has a parking lot at the rear that abuts a long, grassy yard that runs north and south behind the apartment building. It had been snowing and raining that day and the yard was very wet. When the SO and CW #2 reached the rear parking lot, they observed the Complainant in the grassy yard near a fence on the eastern border of the property. He was reportedly trying to lift his bicycle over his head and throw it over the fence. The SO was concerned that the Complainant would flee, so he drove off the paved parking lot and onto the grass. He said he did so at a speed of 15 km/h. The grass was heavily saturated with water and the SO lost control of the vehicle and was unable to stop, despite both “hammering” and tapping on the brakes. The vehicle slid forward and to the left, striking shrubs and bushes along the fence line before hitting the Complainant with the front driver’s side fender. The vehicle continued sliding past the Complainant for a short distance before coming to a rest. The SO immediately got out of the vehicle to attend to the Complainant, who was laying on his back, up against the fence.

The Complainant was eventually transported to the CKHA where he was diagnosed with serious injuries, including a fractured arm.

Relevant Legislation

Section 249, Criminal Code -- Dangerous operation of motor vehicles, vessels and aircraft

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

On November 15, 2018, the SO of the CKPS caused a serious injury to the Complainant when he hit him with a marked police vehicle. The collision occurred after the SO pursued the Complainant, who was riding a bicycle, to the rear parking lot of 53 McNaughton Avenue West. The Complainant was in the backyard of the property and the SO drove off the paved parking lot and onto the grass. The grass was saturated with water and the SO lost control of his vehicle, which slid into the Complainant. As a result, the Complainant fractured his arm.

In circumstances such as these, the criminal charge that warrants consideration is dangerous driving causing bodily harm contrary to s. 249(3) [1] of the Criminal Code. In R. v. Beatty, [2008] 1 S.C.R. 49, the Supreme Court of Canada indicated that this offence requires that “the driving be dangerous to the public, having regard to all of 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.” It may be that the SO’s manner of driving was dangerous because he drove onto an unstable surface in close range of the Complainant. The surface was not meant to be driven on and was unable on the day in question to provide the necessary traction for the SO to be able to control his vehicle.

However, Beatty also made it clear that driving that presents a risk to the public, viewed on its own, is not enough to make out the criminal offence of dangerous driving. The manner of driving must also be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.” Only then can a driver be considered morally blameworthy to the point where he or she is deserving of a criminal conviction. In these circumstances, there is simply insufficient evidence to conclude that the SO’s driving represented a marked departure from the standard of care that a reasonable person would observe in his position. The SO had reasonable grounds to believe that the Complainant had committed a theft contrary to s. 334 of the Criminal Code and therefore was not acting unreasonably by trying to stop him. There is no evidence that the SO’s manner of driving leading up to the moment he approached and entered the grass was anything other than normal and prudent driving. It is clear, based on the evidence including the collision reconstructionist report, [2] that the vehicle entered the grass at a low speed and that the SO attempted to stop the vehicle as soon as it started sliding but was unable to due to the swampy conditions. While the SO’s decision to drive onto the grass had serious consequences, I do not believe this decision alone is enough to meet the high threshold required to find a marked departure from a reasonable person. In the result, I am unable to form reasonable grounds to believe the SO committed a criminal offence in connection with the Complainant’s injuries and the file will be closed.


Date: June 28, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) Presently, section 320.13(2) of the Criminal Code. [Back to text]
  • 2) The SIU collision reconstructionist confirmed that the wet grass and soft ground conditions decreased the braking and steering abilities of the CKPS vehicle. The measured distance between the start of the grass and the point of impact with the Complainant was 21 metres, and the estimated speed upon which the SO entered the grassy yard was between 20 to 29 km/h. [Back to text]