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SIU Director’s Report - Case # 18-OVI-262

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 20-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 2, 2018 at 8:15 a.m., the London Police Service (LPS) reported that on September 2, 2018, at 12:22 a.m., an officer responded to a call for a suspicious man in the area of Leroy Ave. in London. The officer heard a bump on his cruiser. When the officer got out to look, he saw the Complainant at the front passenger side of his cruiser with blood on his head. The Complainant was taken to the London Health Sciences Centre (LHSC) where X-rays and a CT scan showed he had no fractures. However, he received six stitches to his left arm and a large number of stitches to his head area. The LPS described the stitches to the Complainant’s head as significant wounds which will leave permanent scars. 
 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW Unable to be interviewed, but provided statement by phone.

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed


Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

In the area of this collision, Leroy Avenue is a two-lane paved asphalt road which permits one lane of eastbound and one lane of westbound vehicular movement. The lanes are not delineated with paint marks. Leroy Avenue is 8.4 metres wide and connects with Taylor Street in the west and Elliott Street to the east. Leroy Avenue is 135 metres long between these streets.

There are street lights on the south side of Leroy Street, located between the houses at 701 and 703, 705 and 707, and 709 and 711. There are old growth trees planted on the north and south side of Leroy Avenue, and the foliage of the trees blocks out the light emitted by the street lights.

Scene Diagram

Scene diagram

Expert Evidence

SIU Reconstructionist Report

The SIU reconstructionist’s assessment of the collision concluded that on Sunday, September 2, 2018, at about 12:22 a.m., the Subject Officer (SO) was operating a marked Ford Explorer eastbound on Leroy Avenue in London, Ontario. The atmosphere was clear, the roads were dry, and visibility was darkened by obscured street lighting. It is unknown if the cruiser’s headlights were on. Part way down Leroy Avenue, the outside sidewall of the right front tire of the cruiser came into collision with some part of the Complainant in the eastbound lane close to the centre of the road. The left side of the Complainant’s head was scraped eastbound on the asphalt for 0.5 metres. The Complainant received lacerations to his left arm, left knee, left foot, and right hand that cannot be sourced to a specific cause, but some or all could be road rash. The SO’s cruiser came to rest 8.7 metres east of the area of impact. The Complainant then went to the cruiser and opened the right front passenger door depositing blood on the outside and inside of the door. At some point, the Complainant smeared blood on the right front door of the cruiser as it was driven past him or when he walked up to it. The Complainant received a serious injury from this collision.

Communications Recordings

The SIU requested, received and reviewed 41 communications voice files related to this investigation. The following is a summary of the salient points of all recordings:


Recording 1

  • The 911 operator answers a call and there is a hang up;
  • The 911 operator calls the number back, and speaks to a resident on Leroy Ave;
  • A male complains that a tall white male, who is wearing bright clothing, is walking up and down peoples’ driveways and the male has a flash light;
  • The male describes the male as looking really hammered;
  • The male is not sure if the male is attempting to find an address or if he is going through cars.


Recording 2

  • Male 1 voice “I got a male here, he’s out on the ground, on Leroy Ave, can you send EMS here code 1, he’s bleeding here very badly”;
  • Female dispatcher “10-4”;


Recording 3

  • Male 1 Voice “Go ahead”
  • Male 2 voice “Hey [SO], is he bleeding from the head or does it look like he’s fallen or been assaulted or what’s the detail?”
  • Male 1 voice, “Yeah, he’s laying down on the ground, you might as well come here, he’s got a wound to his head, he’s passed out in the middle of the road, I’m not sure how he got here.”
  • Male 2 voice, “10-4, I think he got other units in that area so let’s look at securing that scene at this point and I will make my way there.”
  • Female dispatcher, “[other units] are on their way.”

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the LPS:
  • Detailed Call Summaries (x3);
  • General Occurrence Hardcopy (incl statements by the CW, WO #1, WO #2 and WO #3);
  • GPS Data Table- the SO; and
  • Track Data in GPS Gate.

Incident Narrative

The collision occurred at about 12:22 a.m. of the day in question on Leroy Avenue, east of Taylor Street. The SO was in the area responding to a report of a person walking up and down driveways with a flashlight. The Complainant was that person. He was significantly inebriated at the time and trying to find a residence. At one point, just after midnight, the Complainant had laid down on the roadway and appeared to be using his mobile phone, prompting a motorist to navigate around him. The SO turned onto Leroy Avenue from Taylor Street and proceeded east along the roadway a short distance when the right front tire of his vehicle made contact with the Complainant, who was lying across the roadway at the time. The SO felt the impact, quickly stopped his vehicle and arranged for an ambulance to attend the scene.

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.

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

In the early morning hours of September 2, 2018, the SO of the LPS struck the Complainant with his police SUV. The collision resulted in serious lacerations to his head and left elbow. 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 offences that arise for consideration are criminal negligence causing bodily harm and dangerous driving causing bodily harm contrary to sections 221 and 249(3) [1] of the Criminal Code, respectively. Both offences are 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; R v F(J), [2008] 3 SCR 215. The SO was acting in the course of his duties as he made his way onto Leroy Avenue to investigate a report of a possible prowler in the area. The officer travelled a short distance at modest speed - in the neighbourhood of 20 km/h - east on Leroy Avenue when his vehicle collided with the Complainant. The road was dry and in good repair, and there appears to have been no other motorists in the vicinity. What remains unknown is whether the police vehicle’s headlights were on at the time. If not, visibility in the area would have been significantly compromised, particularly as the street lighting was all but obscured by the trees lining the roadway. It is also unclear why the SO did not see the Complainant on the road when another motorist had been able to and managed to maneuver around him only moments earlier. It may be that the Complainant was no longer using his mobile phone, the light from which may have alerted the earlier motorist to his presence, but this is sheer speculation. Be that as it may, the officer had no reason to suspect that someone might take the sort of unusual action adopted by the Complainant, which knowledge might have necessitated greater precautions as he travelled on Leroy Avenue. In the final analysis, I am satisfied on this record that it would be unreasonable to conclude that the SO transgressed the limits of care prescribed by the criminal law. Accordingly, this file is closed.


Date: July 25, 2019




Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) Presently, section 320.13(2) of the Criminal Code. [Back to text]