SIU Director’s Report - Case # 20-OVI-239
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Contents:
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.
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 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.
- 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 injuries a 46-year-old man (the “Complainant”) suffered.
“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 injuries a 46-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
The SIU was notified of the incident by the Durham Regional Police Service (DRPS) on September 27, 2020 at 5:39 a.m. DRPS reported that just after midnight, DRPS police officers attended the town of Beaverton to look for a suspicious vehicle. While there, police officers saw an all-terrain vehicle (ATV) without a licence plate. A police officer spoke with the ATV’s driver, the Complainant, and advised the Complainant to walk the ATV home. Instead, the Complainant drove behind the cruiser and sped off on his ATV. The ATV struck a curb and flipped over. The Complainant was taken to Orillia’s Soldiers’ Memorial Hospital (OSMH) by Durham Emergency Medical Services, where the Complainant was diagnosed with fractures to his shoulder and ribs.The Team
Number of SIU Investigators assigned: 3Number of SIU Forensic Investigators assigned: 2
Complainant
46-year-old male, interviewed, medical records obtained and reviewed
Witness Officers
WO #1 Interviewed, and notes received and reviewed
WO #2 Interviewed, and notes received and reviewed
WO #2 Interviewed, and notes received and reviewed
Subject Officers
SO Interviewed, and notes received and reviewed
Evidence
The Scene
The scene was located on the north side of Simcoe Street, about eight metres east of Mara Road, Beaverton. Marks led from the intersection to the sidewalk, and a strike against the curb was visible due to green paint marks on the sidewalk. Evidence that the ATV had flipped bottom up and struck the entrance door to a business was present. White-coloured paint was noted on the ATV as well as damage from the brick wall. The ATV was unlicensed and had damage to its top and left front sides.Photographs of the scene were completed, and measurements were taken with a Total Station.
The SIU examined the DRPS Ford pickup truck and DRPS Ford Explorer and there was no damage noted to either police vehicle.
Scene Diagram
Video/Audio/Photographic Evidence
The SIU canvassed the area for video and/or audio recordings, and photographic evidence, and was able to locate the following sources:- Video footage from a business on Mara Road.
Closed-circuit Television (CCTV) Footage from a Business on Mara Road
The camera was mounted on the exterior side of the business. The camera captured the intersection of Mara Road at Simcoe Street. The video was dated September 27, 2020 and time stamped. There was no audio.From the time counter at the bottom of the video, at 0004:57 minutes, a white pick-up truck drove westbound on Simcoe Street with its roof lights activated. The pick-up truck [now known to be a police vehicle driven by WO #1 passed Mara Road and stopped on Simcoe Street. The pick-up truck was obscured by the foliage of a tree, but the roof lights could still be seen through the foliage. The roof lights remained stationary. The pick-up truck remained stationary for approximately three to five seconds. A dark-coloured vehicle [now known to be a Ford Explorer, police ghost vehicle, driven by the SO] approached from the east, westbound on Simcoe Street. As the SO approached the intersection, an ATV [driven by the Complainant] accelerated past WO #1’s stopped pick-up truck and attempted to turn northbound onto Mara Road. As the ATV approached, the SO turned the SO’s vehicle sharply to the south in the eastbound lanes of Simcoe Street. The ATV was last seen as it mounted the curb on Simcoe Street and was going out of the video’s view. The Ford Explorer remained in a stopped position on Simcoe Street and WO #1’s pickup truck made a U-turn on Simcoe Street and drove towards the ATV. There was no indication of contact between either police officer’s vehicle and the ATV.
Communications Recordings
On September 27, 2020 at 12:07 a.m., the police received a 911 call. The caller saw a silver-coloured Mazda four-door sedan driving up and down the street in the area of North Street at York Street in Beaverton. The vehicle, which had a lone female occupant, went up and down the street, reversed, and made U-turns.At 12:09 a.m., WO #1 and the SO were dispatched to attend the area of Mara Road at Simcoe Street, Beaverton. At 12:18 a.m., WO #1 broadcast that an ambulance was required on Mara Road at Simcoe Street for a man [now known to be the Complainant] who had just crashed an ATV. At 12:19 a.m., an unknown unit requested a sergeant to attend Mara Road at Simcoe Street in Beaverton.
At 12:19 a.m., an unknown unit stated that the Complainant was conscious and breathing and was about 40 years of age.
At 12:41 a.m., a police officer advised that the Complainant was to be taken to OSMH with possible head injuries.
At 01:54 a.m., WO #2 was on scene, and, at 7:39 a.m., the SIU was on scene.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from DRPS:- Computer-assisted Dispatch Call;
- Motor Vehicle Collision Report;
- Occurrence Report;
- Photos of Scene;
- Communications Recordings;
- DRPS SIU Disclosure Memo (x2);
- DRPS Directive - Suspect Apprehension Pursuits;
- Notes-SO;
- Notes-WO #1; and
- Notes-WO #2.
Materials obtained from Other Sources
The SIU also received and reviewed the Complainant’s medical records, Ambulance Call Reports, and video recordings from a business on Mara Road in Beaverton.
Incident Narrative
The events are easy to reconstruct given the accounts of the SO, WO #1, WO #2 and the Complainant, and a review of police communications recordings and CCTV footage. On September 27, 2020, at 12:09 a.m., DRPS uniformed police officers WO #1 and the SO were dispatched to Simcoe Street in downtown Beaverton regarding a suspicious silver-coloured Mazda. It had been reported at 12:07 a.m. that the Mazda had driven numerous times up and down Simcoe Street. WO #1 drove in a fully marked police vehicle westbound on Simcoe Street. At 12:19 a.m., as he approached Mara Road, he observed a vehicle travelling towards him down the centre of the roadway. The headlights of the vehicle were close together and were revealed to belong to an ATV, which was driven by the Complainant.
WO #1 activated the police vehicle’s emergency lighting and the Complainant stopped the ATV facing eastbound in the southern curb lane of Simcoe Street. WO #1’s police vehicle stopped westbound on Simcoe Street in the eastbound passing lane, with the driver’s window next to the driver’s side of the ATV. WO #1 was suspicious that the ATV could be stolen. WO #1 told the Complainant to turn off the engine; however, the Complainant revved his engine and accelerated eastbound. At the same time, the SO drove his police vehicle westbound on Simcoe Street in the eastbound passing lane.
As the SO got close to the rear of WO #1’s police vehicle, the ATV made a sharp left in front of the SO’s police vehicle, which caused the SO to turn to the left. The SO’s police vehicle ended up facing in a southwest direction in the eastbound lanes of Simcoe Street. The Complainant lost control and the ATV mounted the northern curb of Simcoe Street and struck a building. The Complainant was ejected, landed on his left side, and sustained a fractured left scapula and four fractured left ribs.
The Complainant later told the SO at the hospital that he had driven off because he had not wanted to get a ticket.
There was no indication that the Complainant was impaired.
The ATV was discovered to have lacked a licence plate when the Complainant had been driving it.
WO #1 activated the police vehicle’s emergency lighting and the Complainant stopped the ATV facing eastbound in the southern curb lane of Simcoe Street. WO #1’s police vehicle stopped westbound on Simcoe Street in the eastbound passing lane, with the driver’s window next to the driver’s side of the ATV. WO #1 was suspicious that the ATV could be stolen. WO #1 told the Complainant to turn off the engine; however, the Complainant revved his engine and accelerated eastbound. At the same time, the SO drove his police vehicle westbound on Simcoe Street in the eastbound passing lane.
As the SO got close to the rear of WO #1’s police vehicle, the ATV made a sharp left in front of the SO’s police vehicle, which caused the SO to turn to the left. The SO’s police vehicle ended up facing in a southwest direction in the eastbound lanes of Simcoe Street. The Complainant lost control and the ATV mounted the northern curb of Simcoe Street and struck a building. The Complainant was ejected, landed on his left side, and sustained a fractured left scapula and four fractured left ribs.
The Complainant later told the SO at the hospital that he had driven off because he had not wanted to get a ticket.
There was no indication that the Complainant was impaired.
The ATV was discovered to have lacked a licence plate when the Complainant had been driving it.
Relevant Legislation
Section 320.13, Criminal Code – Dangerous operation causing bodily harm
320.13 (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.
Section 7(1)(b), Highway Traffic Act – Permit requirements
7 (1) No person shall drive a motor vehicle on a highway unless,
(b) there are displayed on the vehicle, in the prescribed manner,
(i) number plates issued in accordance with the regulations showing the number of the permit issued for the vehicle, or(ii) number plates described in subsection (7.2) if the vehicle is an historic vehicle and the Ministry has issued a currently validated permit for it;
Section 130 (1) Highway Traffic Act – Careless driving
130 (1) Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway.
Section 191.8 (1) Highway Traffic Act – Off-road vehicles on highways regulated by regulations, by-laws
191.8 (1) No person shall drive an off-road vehicle on a highway except in accordance with the regulations and any applicable municipal by-laws.
Analysis and Director's Decision
In the early morning of September 27, 2020, two police officers from the DRPS, investigating reports of suspicious motor vehicle activity on Simcoe Street in Beaverton, interacted with the Complainant, who was driving an ATV. The Complainant’s ATV crashed, and the Complainant suffered four broken ribs on his left side and a broken scapula. One of the officers was identified as the subject officer for purposes of the SIU investigation. The other, WO #1, was identified as a witness officer. Based upon my consideration of the evidence, there are no reasonable grounds to believe that either officer committed a criminal offence during their encounter with the Complainant.
Before any further consideration of whether the officers’ actions amounted to the crime of dangerous operation of a motor vehicle causing bodily harm contrary to section 320.13 (2) of the Criminal Code, it is useful to consider what grounds the SO and WO #1 had for stopping the Complainant. The SO and WO #1 could have stopped the Complainant either for driving an ATV on a highway, contrary to section 191.8 (1) of the Highway Traffic Act, or for driving a motor vehicle on a highway without a number plate, contrary to section 7 (1) (b) of the Highway Traffic Act. A case can also be made that the Complainant, by driving in the centre of the roadway at night, was engaging in careless driving contrary to section 130 (1) of the Highway Traffic Act. For this reason, I am satisfied that the vehicle stop was lawful.
Even a lawful stop by police, however, can become associated with unlawful behaviour – such as dangerous operation of a conveyance causing bodily harm. Such a situation, however, cannot be said to have arisen here. Neither police officer, when interacting with the Complainant, drove above any speed limits, engaged in any pursuit of the Complainant, or created a blockade with their police car into which the Complainant had no choice but to collide. Rather, both police officers were very careful to align their vehicles so that the Complainant could go around their vehicles. The Complainant chose to do this rather than stop, and, in doing so, crashed.
For these reasons, there are no grounds for proceeding with criminal charges in this case, and the file is closed.
Date: December 21, 2020
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Before any further consideration of whether the officers’ actions amounted to the crime of dangerous operation of a motor vehicle causing bodily harm contrary to section 320.13 (2) of the Criminal Code, it is useful to consider what grounds the SO and WO #1 had for stopping the Complainant. The SO and WO #1 could have stopped the Complainant either for driving an ATV on a highway, contrary to section 191.8 (1) of the Highway Traffic Act, or for driving a motor vehicle on a highway without a number plate, contrary to section 7 (1) (b) of the Highway Traffic Act. A case can also be made that the Complainant, by driving in the centre of the roadway at night, was engaging in careless driving contrary to section 130 (1) of the Highway Traffic Act. For this reason, I am satisfied that the vehicle stop was lawful.
Even a lawful stop by police, however, can become associated with unlawful behaviour – such as dangerous operation of a conveyance causing bodily harm. Such a situation, however, cannot be said to have arisen here. Neither police officer, when interacting with the Complainant, drove above any speed limits, engaged in any pursuit of the Complainant, or created a blockade with their police car into which the Complainant had no choice but to collide. Rather, both police officers were very careful to align their vehicles so that the Complainant could go around their vehicles. The Complainant chose to do this rather than stop, and, in doing so, crashed.
For these reasons, there are no grounds for proceeding with criminal charges in this case, and the file is closed.
Date: December 21, 2020
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.