Cruiser and motorbikeCruiser accidentRunners
thick blue gradient line

SIU Director’s Report - Case # 19-OVI-083

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 serious injuries sustained by two men, ages 22 and 26 (Complainant #1 and Complainant #2, respectively).

The Investigation

Notification of the SIU

On April 20, 2019, at 4:00 a.m., the Waterloo Regional Police Service (WRPS) called to report an injury to an unknown man. At 4:56 a.m., the WRPS advised that a second man was also struck and had suffered serious injuries. The WRPS advised that at 3:08 a.m., WRPS officers responded to a fight and gunshots fired in the area of King and Hickory Streets in Waterloo. One of the arriving cruisers ran over a man on the roadway. The man was vital signs absent (VSA) and taken to Grand River Hospital. Cardiopulmonary Resuscitation had been performed en route and a pulse had been obtained. The second man had a fractured leg and head injury. The scene was being held.

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned:

Complainant:

Complainant #1 22-year-old male interviewed, medical records obtained and reviewed
Complainant #2 Not interviewed due to medical condition


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 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, which occurred on King Street North and about 85 metres north of Hickory Street West, King Street North is a four-lane paved road which permits two lanes of northbound and two lanes of southbound vehicular traffic. The opposing lanes are delineated with a solid yellow paint line near the centre of the road and the lanes permitting travel in the same direction are delineated with intermittent white paint marks. The edges of the road are bordered by concrete curbs and sidewalks. Artificial street lighting is located on the east side of the road and residual artificial lighting was provided by dense residential development located on both sides of the road. This collision occurred at the south edge of a high-rise apartment building known as 315 King Street North. The posted speed limit of 50 km/h was not posted but presumed under section 128(1)(a) of the Ontario Highway Traffic Act.

Scene Diagram

Forensic Evidence


GPS Data Associated to the SO’s Cruiser on April 20th 2019, from 3:08 a.m. to 3:15 a.m.

GPS Data Associated to the SO’s Cruiser

Expert Evidence

The SIU Reconstructionist attended the scene on April 20, 2019, at 7:08 a.m. The scene was examined, and there was no roadway evidence which could be attributed to this collision; however, there was physical evidence consisting of medical paraphernalia, keys on a lanyard, cell phones, a purse, right and left shoes, an orthotic, and rings. There was also a pool of fresh vomit on the west sidewalk. There were splinters of wood throughout the scene and a shiny piece of plastic which could not be attributed to this collision.

On scene there was a 2015 blue and white coloured Ford Taurus bearing the markings of the WRPS, which was unoccupied. Its engine was not running, and it was facing south straddling the two southbound lanes of King Street North. There was minor damage and blood smear on the left front bumper. This vehicle was seized from the scene by the SIU and on April 23, 2019 it was examined by the SIU. The lower front bumper was cracked and the dust was freshly removed from the surface 80 cm to the right of the left side of the vehicle and 20 to 50 cm above the ground. The air deflector under the damaged section of the front bumper was indented in concave fashion. The underside of the right “Setina” push bar upright was freshly scraped 20 cm above the ground and thin fabric pieces about 2 cm long were attached to it. Similar fabric pieces were amongst portions of the lower front bumper in the area of the crack. What appeared to be blood smear was evident amongst the leading edge of the front bumper in the area of the crack. What appeared to be finger smears 10 cm wide were located on top of the left side cross member of the push bar, left of the siren. A fabric impression was located on the left bumper above the left front wheel well. The driver’s mirror was scratched on the leading side and the mirror was dislodged from the housing. There was nothing remarkable regarding the interior. No airbag deployment had occurred. All the emergency lighting functioned flashing blue and red for 360 degrees. Using a poly light, no fabric or blood evidence could be located on the underside of the vehicle. The Airbag Control Module (ACM) was downloaded through the data link connector. The data limitation sheet indicated that a change of velocity of 8 km/h within 150 metres must be achieved before the recording trigger threshold is met. There was no recorded data in the ACM as this threshold had not been met.

There was also a 2016 grey coloured Honda Accord EX. This vehicle was unoccupied, its engine was not running, and it was facing north in the passing northbound lane of King Street North. This vehicle was examined at the scene. There was a significant fresh dent to the driver’s door of this vehicle from 1.43 metres to 2.08 metres rearward of the leading edge of the front bumper and 25 cm to 67 cm above the ground. There was also a scratch on the leading edge of the left side of the front bumper.

A 2018 blue and white colored Ford Explorer was at the scene bearing the markings of the WRPS. There was no fresh damage to this vehicle.

A 2013 red coloured Chevrolet Camaro was unoccupied with engine not running facing south in the passing southbound lane of King Street North also between the WRPS vehicles. There was no fresh damage to this vehicle.

Historical weather data from Environment Canada reports that in Kitchener-Waterloo, Ontario at 3:00 a.m. Saturday April 20, 2019 the temperature was 4.1 degrees Celsius and the dew point was 2.9 degrees Celsius. The winds were out of the northeast at 21 km/h. It was raining but visibility was 16.1 kilometres.

The SIU Reconstructionist has personally performed testing of pedestrian visibility under these circumstances and has determined that motorist visibility of pedestrians is generally not possible until the motorist is a few metres from the pedestrian. This makes collision avoidance very difficult.

The SIU’s Reconstructionist assessment of the collision yields the following conclusions. At approximately 3:15 a.m., on Saturday, April 20, 2019, the SO was operating a WRPS marked cruiser southbound in the passing lane of King Street North in Waterloo, Ontario. The emergency equipment on his cruiser was not activated. It was cold and raining with wet roads and the visibility was moderately poor. There was ambient lighting from street lights and residences in the area which were reflected on the wet road. At the driveway of 315 King Street North, Complainant #2 was lying head to the west in the passing southbound lane near the centre line. He was dressed in light colored blue jeans, white running shoes and a dark top. Complainant #1 was standing to the southwest of Complainant #2 and he was bent forwards leaning over him. Complainant #1 was dressed in dark clothing including a dark coat. CW #2’s Honda Accord was stopped facing north in the passing lane of King Street North about six metres south of Complainant #2. The low beam headlights and flashing emergency lights were active on CW #2’s vehicle creating a negative contrast to Complainant #2 and Complainant #1 for southbound motorists. At a speed range of 43 to 54 km/h and without pre-impact braking the front bumper of the SO’s cruiser impacted both Complainant #1 and Complainant #2. The left side of Complainant #2 was struck and he was rotated counter clockwise then thrust southbound coming to rest some 22 metres south of the estimated area of impact and in the passing northbound lane of King Street North near the centre line. Complainant #1 was thrust in the air and he came to rest in the centre of King Street North against the driver’s door of CW #2’s vehicle, some six metres south of the estimated area of impact. Complainant #1 and Complainant #2 received serious injuries from this collision.

Video/Audio/Photographic Evidence

The video was obtained from the Preston House, located at 315 King Street, where there were cameras in the lobby and main entrance. The salient points recorded by the cameras are summarized:
  • 3:06:24 a.m., the video began, the roadway appeared wet but it is was not raining;
  • 3:06:27 a.m., a white sedan was shown travelling northbound on King Street;
  • 3:07:00 a.m., a man wearing a hoodie and jeans stopped on King Street, looked southbound and then continued walking northbound;
  • 3:07:27 a.m., a person wearing dark clothing walked southbound on the sidewalk, carrying an umbrella which was open;
  • 3:07:31 a.m., a dark sedan was seen travelling northbound on King Street;
  • 3:08:06 a.m., a dark vehicle was seen travelling southbound on King Street, it does not appear to be a WRPS vehicle;
  • 3:08:21 a.m., a vehicle with writing on the side was seen travelling northbound on King Street. It may be a taxi;
  • 3:08:45 a.m., a white sedan was seen travelling northbound on King Street;
  • 3:08:53 a.m., a dark vehicle was seen travelling northbound on King Street;
  • 3:09:52 a.m., a dark vehicle was seen travelling northbound on King Street;
  • 3:10:08 a.m., what appeared to be a WRPS cruiser was travelling northbound on King Street. No emergency lighting can be seen;
  • 3:10:10 a.m., what appeared to be a WRPS cruiser was travelling northbound on King Street. No emergency lighting can be seen;
  • 3:10:38 a.m., what appeared to be a red Camaro is seen travelling northbound on King Street.

A civilian witness recorded two videos on his cellular phone. The following is a summary of the videos:
  • The recording shows street lights on and a male lying across the centre southbound lane of King Street North [later learned to be Complainant #2]. There is a group of five males standing and arguing/pushing around on the west side of the street; there are two females on the east side of the street. One male crosses over to the east side of the street to the females. As he does so a car southbound on King Street North slows down, pulls into the northbound centre lane and continues southbound on King Street North. One male walks towards Complainant #2, lying on the street. A car southbound slows, turns into the centre northbound lane and continues south. The four males arguing walk out to Complainant #2 and look. One of the males walks over to the females on the east sidewalk and the other males walk southbound on King Street North on the street. One of the males then turns and walks north in the southbound centre lane towards Complainant #2 and the video stops;
  • The second video taken by the civilian witness begins with two WRPS cruisers stopped in the southbound lanes of King Street North. Both police cruisers do not have any emergency lighting activated. Five seconds after the civilian witness began this second video, the emergency lights of both WRPS police cruisers are activated. Two females walk onto the road from the east curb. A police officer wearing a green raincoat gets out of the second southbound police cruiser (SUV) and runs to Complainant #2 who was lying on the street in the northbound centre lane of King Street North some distance behind a car that was stopped north of him. As the second police officer was approaching Complainant #2, the SO gets out of the first police cruiser and walks over to Complainant #2. Two women then walked out onto the street from the east curb yelling at the police officers.

Another civilian witness recorded the incident with his cell phone. The following is a summary of the approximately 55 second video:
  • There is no time stamp on the video;
  • At 00:00:14, the video comes into focus, showing King Street North. There is a grey vehicle stopped in the northbound lane, with its head lights on and four-way hazard flashers on. In close proximity, slightly ahead of the grey vehicle, two people can be seen on the roadway;
  • At 00:00:16, the civilian pans in a northbound direction and two vehicles are seen travelling southbound;
  • At 00:00:20, the first southbound vehicle strikes the two individuals, and keeps on travelling southbound. A female can be heard screaming and the civilian say, "Oh my fucking God";
  • At 00:00:23, the first vehicle, recognizable as a WRPS cruiser, comes to a halt a distance past the grey vehicle, and the second WRPS comes to a halt roughly where the two people had been positioned;
  • At 00:00:33, the first cruiser’s lights activate;
  • At 00:00:34, the first cruiser’s driver’s door opens;
  • At 00:00:37, WO #4, dressed in a yellow high visibility jacket, and the SO, dressed in regular uniform, move towards Complainant #2, who is now a distance behind the grey vehicle;
  • At 00:00:45, WO #4 is bending over at Complainant #2; and
  • The video ends.

Communications Recordings


Civilian calls to 911

  • At 3:07:48 a.m., CW #6 called 911 to report there were a lot of kids fighting on the roadway on King Street, in front of the Preston House, and she heard two gunshots, and there was a kid on the road, in front of 315 King Street. She saw a vehicle leaving and heading towards McDonalds on Columbia. She then reported a police car didn't see the body and ran over somebody.
  • At 3:07:58 a.m., CW #4 called 911 and reported someone was getting jumped outside of his house on King Street, a guy was unconscious on the ground and another guy getting jumped. The unconscious male was moving a little, knocked unconscious in the middle of King Street. A black car was leaving the area heading north bound on King Street. He saw a police car on King Street, he told the dispatcher if the cop turned around, CW #4 then says, "Oh my God the cop just fucking ran over him."
  • At 3:08:20 a.m., a male called 911 and reported hearing 5 shots on King Street, and a fight going on at King Street and Hickory Street. There was a white car and two fights going on, the man was still lying on the road, a lot of people were on the road, the white hatchback was going towards King and University from Preston House.
  • At 3:09:23 a.m., another male called 911 to report he saw someone getting beat up on the street on Hickory and King. He saw four or five people beating up a single […], unknown injuries. Unable to give a description but there were some men and women.
  • At 3:10:05 a.m., a male, believed to be CW #2, called 911 to report someone got hit on King Street in front of Preston House, and that someone was helping him. An ambulance was needed right away, and a muffled collision could be heard. CW #2 reported that someone just got hit on the road again.


Police Radio Transmissions

  • At 3:08:56 a.m., the WRPS dispatcher asks if there are any units that can clear for a “930” at King and Hickory;
  • At 3:09:18 a.m., the dispatcher reported gunshots heard, a male on the ground unconscious, two officers affirm, dispatcher followed up with two gunshots heard and lots of people on the road;
  • At 3:09:46 a.m., dispatcher reported a white hatchback involved currently on King headed southbound towards University;
  • At 3:10:01 a.m., the SO asked where that hatchback was headed. The dispatcher advised King and University; and
  • At 3:10:24 a.m., the SO got on the radio, reported something inaudible, then a muffled collision was heard, and the SO reported he just hit somebody on the road here.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the WRPS:
  • CAD Dispatch Details;
  • Communications Tape:
  • Note re-recording by CW #8 emailed to WRPS;
  • Notes of all witness officers;
  • Vehicle Data- GPS for two WRPS Cruisers;
  • Vehicle Data- Raw Data – Location Routing Trace for two WRPS Cruisers;
  • Vehicle Inspection Report; and
  • Witness Statements of 12 civilian witnesses.

Incident Narrative

The material events in question are clear, as far as they go, based on the information collected by the SIU in its investigation. Shortly after 3:00 a.m., the police received a 911 call reporting that gunshots had been heard in the area of King Street North and Hickory Street West. 911 callers further reported that there were people fighting and an unconscious male lying on the road in front of 315 King Street North. Complainant #2 was the unconscious male. He had been assaulted and was lying unresponsive in the southbound lanes of King Street North. His friend, Complainant #1, was trying to pull him off the road but was not having any success doing so.

The SO was among the officers dispatched to the area. He travelled south on King Street North from Columbia Street in his cruiser. He came upon Complainant #1 and Complainant #2 on the roadway and struck them flush with the front of his cruiser. The collision propelled Complainant #2 south down King Street North, where he eventually came to rest in the northbound lanes. Complainant #1 was sent careening into another vehicle that was parked in the vicinity along the east curb of King Street North. The SO exited his cruiser following the collision and rendered first aid to Complainant #2. Both Complainant #2 and Complainant #1 were taken to hospital; the former sustained debilitating injuries, the latter a fractured leg.

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 128(13), Highway Traffic Act – Police vehicles and speeding

128(13) The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,

(b) a police department vehicle being used in the lawful performance of a police officer’s duties.

Section 320.13, Criminal Code – Dangerous operation of a conveyance (e.g. motor vehicles, etc.)

320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.


Analysis and Director's Decision

Complainant #1 and Complainant #2 were struck and seriously injured by a WRPS cruiser in the early morning of April 20, 2019. The officer operating the cruiser was the SO. For the reasons that follow, there is no basis in my view to proceed with criminal charges against the SO.

The offences that arise for consideration on this record are criminal negligence causing bodily harm and dangerous driving causing bodily harm contrary to sections 221 and 320.13(2) of the Criminal Code, respectively. As offences of penal negligence, liability under both sections is predicated, in part, on conduct that deviates markedly from a reasonable level of care in the circumstances. While there are aspects of the SO’s conduct that are apt for legitimate criticism, I am not persuaded on reasonable grounds that the manner in which he drove was so substandard as to attract criminal liability. It was dark at the time, visibility was not ideal and the roadway was wet. Given the prevailing environmental conditions, it is arguable that the SO ought to have travelled slower than the 60 km/h speed the data downloaded from his cruiser’s GPS unit indicated he was generally doing as he approached the point of impact. The reduced speed would have afforded him a greater reaction time to avoid potential objects on the roadway, particularly as information broadcast over the radio had indicated the presence of persons on the street. It is also apparent that the SO’s emergency lights and siren were not on as he travelled south on King Street toward the collision site. Had they been, pedestrians in the area may have had greater advance warning of the cruiser approaching in their direction and taken steps to ensure their safety.

On the other hand, there are a number of important extenuating circumstances that must be considered. While the SO was traveling in excess of the 50 km/h speed limit, he was clearly engaged in the course of his duties and therefore exempt from the speed limitation under section 128(13) of the Highway Traffic Act. While the section does not confer carte blanche on police officers to speed as they wish, the SO’s speed was only moderately above the limit and certainly not such as to demonstrate a complete disregard for the safety of the public. Further mitigating the SO’s liability were the serious nature of the incident to which he was responding, involving a report of gunshots in the area and the need for a police response that was sooner rather than later, and the unusual position of Complainant #1 and Complainant #2 on the roadway, one lying down and the other bent over him trying to pull him to safety. With respect to the latter, it is reasonable to infer that the SO may well have moderated his driving had he been specifically advised that there was a person lying flat on the roadway. As it was, it appears that only general information was broadcast over the police radio relating to persons on the street. Weighed in the balance, I am satisfied on reasonable grounds that these factors are such as to render the SO’s arguably careless driving something less than a marked departure from what one would expect of a reasonable person in the circumstances.

It remains a mystery as to why the SO did not see Complainant #1 and Complainant #2 and take action to avoid striking them. Other southbound motorists had in fact seen Complainant #2 lying on the roadway and were able to safely maneuver around him. Perhaps the officer was distracted or momentarily incapacitated at the time for one reason or another. Be that as it may, on the basis of what is known from the SIU investigation, I am unable to reasonably conclude that the officer committed a criminal offence notwithstanding the serious injuries he caused. Accordingly, the file is closed.



Date: August 14, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit