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SIU Director’s Report - Case # 19-OVI-211

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 an 87-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 2, 2019, at 12:30 p.m., the Windsor Police Service (WPS) notified the SIU of an injury to the Complainant. The WPS understood that at 9:30 a.m., on the same date, the Complainant was operating a motorized mobility scooter in the intersection of Wyandotte Street East and McDougall Street when his scooter collided with a marked WPS cruiser operated by the Subject Officer (SO). The Complainant was taken to the Windsor Regional Hospital where he was treated for a serious head injury.

The Team

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

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed


Subject Officers

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


Evidence

The Scene

Scene diagram

Expert Evidence

SIU Reconstructionist Conclusions

  • At approximately 9:27 a.m., September 2, 2019, the SO was driving a WPS Dodge Charger cruiser southbound on McDougall Street in Windsor, Ontario;
  • The weather was clear, and the roads were dry;
  • At Wyandotte Street East he turned left (eastbound) and the front of his cruiser came into collision with the Complainant who was crossing Wyandotte Street East northbound on a medical motorized scooter within the marked pedestrian crosswalk; and
  • The Complainant and his scooter were pushed in an easterly direction by the front of the WPS cruiser and all of them came to a stop a short distance east of the area of impact.

Video/Audio/Photographic Evidence

A closed-circuit television City of Windsor Traffic Camera positioned at the intersection of Wyandotte Street East and MacDougall Street captured the incident in its entirety. It depicted the following for September 2, 2019:

  • 9:30:00 a.m., Wyandotte Street East is depicted with traffic flowing east and west. The Complainant is seen operating his mobility scooter westbound on the south sidewalk of Wyandotte Street East;
  • 9:30:18 a.m., the Complainant stopped at the crosswalk at McDougall Street. The traffic light is green for east and westbound traffic on Wyandotte Street;
  • 9:30:56 a.m., traffic light changes to red for east and westbound traffic on Wyandotte Street;
  • 9:31:03 a.m., the Complainant enters the roadway in the designated crosswalk heading northbound across Wyandotte Street;
  • 9:31:08 a.m., the Complainant is struck in the crosswalk by a WPS cruiser. The WPS cruiser had been southbound on McDougall Street and turned left onto Wyandotte Street heading east bound; and
  • 9:32:26 a.m., the SO is out of his cruiser assisting the Complainant.

Police Communications Recordings

  • 9:28:51 a.m.: The SO requests emergency medical services (EMS) and a sergeant to Wyandotte and McDougall Streets, reports he was involved in a motor vehicle collision with a pedestrian.
  • 9:29:17 a.m.: WPS communications telephones EMS communications requesting attendance.
  • 9:29:23 a.m.: Unidentified officer asks the SO if he is alright. The SO responds he is okay and needs support.
  • 9:30:20 a.m.: WPS communications telephones Windsor Fire Service requesting attendance.
  • 9:30:43 a.m.: WO #1 broadcasts to officers to shut down all traffic.
  • 9:31:24 a.m.: WO #1 broadcasts traffic is under control and no additional officers are required.
  • 9:56:06 a.m.: WO #4 advises that he is at WPS Headquarters with the SO.
  • 9:59:00 a.m.: A civilian contacts communications via telephone and reported he witnessed the collision.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the WPS:
  • Communications;
  • Detailed Call Summary;
  • Dispatch Information Case;
  • General Occurrence-Civilian Witness Contact Information;
  • GPS Data;
  • Mobile Data Terminal messages (x6)
  • Motor Vehicle Accident Report-WO #4;
  • Narratives of WO #1, WO #2, WO #3, WO #4 and WO #5 (including Canvass Report);
  • Notes of all witness officers; and
  • Witness Statements from five civilian witnesses.

Materials obtained from Other Sources

The SIU also obtained and reviewed the following from other sources:
  • Video recording from City of Windsor traffic camera; and
  • Video recording from pawn shop at intersection of Wyandotte Street East and McDougall Street.

Incident Narrative

The facts in question are not in dispute and may be summarized in short order. At about 9:30 a.m. on September 2, 2019, the Complainant was operating his motorized scooter traveling west on the south sidewalk of Wyandotte Street East approaching the southeast corner of the Wyandotte Street East and McDougall Street intersection. The intersection was controlled by traffic light signals. The Complainant waited for a period of time at a red light and then proceeded into the crosswalk when the light in his direction turned green. At the same time, the SO had embarked on a left-hand turn while south on McDougall intending to travel east on Wyandotte Street East. The cruiser struck the Complainant and his scooter in the crosswalk.

Following the collision, the SO stepped out of his cruiser and approached the Complainant to render assistance. Paramedics arrived at the scene and took the Complainant to hospital, where his head injury was diagnosed.

Relevant Legislation

Sections 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 320.13, Criminal Code – Dangerous operation causing bodily harm

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

The Complainant was crossing a roadway in Windsor on September 2, 2019 when he was struck by a marked WPS cruiser. The collision resulted in a serious head injury to the Complainant. The SO was the driver of the police cruiser. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injury.

The offences that arise for consideration 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. Both crimes are offences of penal negligence and are predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. It is apparent that the Complainant did nothing wrong to cause or contribute to the collision. He had the right-of-way on a green light and was entitled to expect that traffic around him would yield pending his safe passage across the crosswalk. As a motorist on the highway, the SO was legally obliged pursuant to the Highway Traffic Act to refrain from turning left until it was safe to do so and yield to pedestrians lawfully within a crosswalk. He clearly failed in these duties. The question is whether the SO’s transgressions ran afoul of the limits of care prescribed by the criminal law. In my view, they did not.

In cases like R. v. Beatty, [2008] 1 SCR 49 and R. v. Roy, [2012] 2 SCR 60, the Supreme Court of Canada expressed its reluctance to brand as criminal driving conduct that amounts to a momentary lapse in judgement. One can only infer from the evidence that the SO simply did not see the Complainant making his way through the crosswalk; the video that captured the incident does not show the cruiser braking until after the collision. How it is that the SO failed to see the Complainant remains unknown. Perhaps he was distracted by something or other. Be that as it may, I am unable to reasonably conclude that the SO’s singular indiscretion represents a marked deviation from a reasonable level of care in the circumstances. In arriving at this assessment, I note that the prevailing environmental conditions at the time of the collision did not call for heightened care on the part of motorists in the area; the roadway was dry and the weather was clear at the time. Moreover, there is no indication of excessive speed on the part of the SO as he travelled toward the intersection and then entered into the turn.

In the result, while I accept that the SO is responsible for the regrettable collision that resulted in the Complainant’s injury, I am not satisfied on reasonable grounds that the officer’s conduct was sufficiently wanting to attract criminal liability. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: November 18, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit