SIU Director’s Report - Case # 20-PVI-156
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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 a serious injury sustained by a 36-year-old man (the “Complainant”).
“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 36-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On June 27, 2020, at 9:43 p.m., the Ontario Provincial Police (OPP) notified the SIU of a motor vehicle collision, in which a civilian driver was injured, that occurred on June 27, 2020 at 8:14 p.m. and involved an OPP cruiser. The location of the collision was Newport Road south of Old Greenfield Road.
The Team
Number of SIU Investigators assigned: 4 Number of SIU Forensic Investigators (FIs) assigned: 2
The scene was photographed by SIU FIs and the vehicles were inspected. The scene was also measured using a Sokkia Total Station device for forensic mapping purposes.
Based on information received from the OPP, the Subject Officer (SO) was designated.
Complainant:
36-year-old male interviewed, medical records obtained and reviewedCivilian Witnesses
CW Interviewed Witness Officers
WO #1 InterviewedWO #2 Interviewed
WO #3 Not interviewed, but notes received and reviewed
Subject Officers
SO Interviewed, and notes received and reviewedEvidence
The Scene
There were tire marks 70 metres south of the intersection of Old Greenfield Road on Newport Road. The tire marks entered the east ditch of Newport Road and were visible for 250 metres up to where a Cadillac was oriented on its roof in a southerly direction.Scene Diagram
Forensic Evidence
Global Positioning System (GPS) Data
Google Earth images showed the intersection of Newport Road and Old Greenfield Road as a four way stop controlled by stop signs. The roadway appeared to be well travelled asphalt. There was a posted 80 km/h speed limit for north and south vehicular traffic on Newport Road. There was a posted 60 km/h speed limit sign south of the intersection of Greenfield Road along Newport Road after a left-hand curve in the roadway. The area was a primarily rural setting with agricultural land.
Crash Data Retrieval
From the analysis of the speeds, the position of the throttle, the engine rpm’s and the brake switch, it appears the operator of the Cadillac was off the accelerator and off the brake pedal four seconds prior to “time zero” and the engine rpm of the vehicle was just above idle. It appears the vehicle was decelerating under its own engine power with no application of the throttle.
There was no event recorded for the SO’s police vehicle.
Communications Recordings
The radio communications were reviewed and revealed that the first radio communication recording was from the SO announcing that he had a fail to stop. He reported the location as Newport Road south of Old Greenfield Road and indicated that the vehicle was in the ditch on its roof on top of the driver. He further announced that he had not lit the vehicle up, and noted that he had to check on the male.The SO requested the fire department because the vehicle was on the driver’s arm.
Materials Obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:- Event Details;
- Notes of the WOs and SO;
- Communications recordings;
- GPS Data
- Occurrence Report;
- OPP Collision Report;
- OPP List of involved Officers; and
- Incident Summary.
Incident Narrative
While there is discrepancy in the evidence, the following scenario emerges on the clear weight of the reliable evidence. In the evening of the day in question, the Complainant, in the company of the CW, was driving south on Newport Road. At the same time, the SO was stationary in a police cruiser in the area of Newport Road and River Road. The officer was on duty checking the validity of motor vehicle licence plates on the roadway.
The two crossed paths at about 8:14 p.m. as the Complainant brought his vehicle to a stop at the stop sign for Newport Road southbound traffic at the River Road intersection. As he continued through the intersection, the SO ran a licence check and learned that the licence plates had been reported missing and were not supposed to be affixed to the vehicle the Complainant was driving. Not sure whether he had accurately recorded the licence marker, the SO pulled onto the southbound lane of Newport Road with the intention of closing the distance with the Complainant’s vehicle to double-check the licence marker.
The Complainant picked up his speed as he approached the next stop sign at Old Greenfield Road and travelled past the intersection without stopping. The SO continued to pursue the Complainant as he too approached Old Greenfield Road, slowed at the stop sign, and continued south on Newport Road past the intersection.
About 70 metres south of Old Greenfield Road, the Complainant lost control of his vehicle while attempting to negotiate a leftward curve in the road at speed. His vehicle entered the east ditch of Newport Road where it travelled a further 250 metres before crashing and ending up on its roof.
The SO arrived at the crash site within seconds and called for the fire department and an ambulance as the Complainant was trapped inside the vehicle. A tow truck arrived at the scene and lifted the vehicle off of the Complainant’s arm, allowing him to be removed from the wreckage.
The Complainant was transported to hospital and diagnosed with fractures of the left arm. The CW was fortunate to have escaped the collision without serious injury.
The two crossed paths at about 8:14 p.m. as the Complainant brought his vehicle to a stop at the stop sign for Newport Road southbound traffic at the River Road intersection. As he continued through the intersection, the SO ran a licence check and learned that the licence plates had been reported missing and were not supposed to be affixed to the vehicle the Complainant was driving. Not sure whether he had accurately recorded the licence marker, the SO pulled onto the southbound lane of Newport Road with the intention of closing the distance with the Complainant’s vehicle to double-check the licence marker.
The Complainant picked up his speed as he approached the next stop sign at Old Greenfield Road and travelled past the intersection without stopping. The SO continued to pursue the Complainant as he too approached Old Greenfield Road, slowed at the stop sign, and continued south on Newport Road past the intersection.
About 70 metres south of Old Greenfield Road, the Complainant lost control of his vehicle while attempting to negotiate a leftward curve in the road at speed. His vehicle entered the east ditch of Newport Road where it travelled a further 250 metres before crashing and ending up on its roof.
The SO arrived at the crash site within seconds and called for the fire department and an ambulance as the Complainant was trapped inside the vehicle. A tow truck arrived at the scene and lifted the vehicle off of the Complainant’s arm, allowing him to be removed from the wreckage.
The Complainant was transported to hospital and diagnosed with fractures of the left arm. The CW was fortunate to have escaped the collision without serious injury.
Relevant Legislation
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
On June 27, 2020, the Complainant fractured his left arm when he lost control of his vehicle and crashed into a ditch. As the Complainant was being pursued by an OPP officer prior to the collision, the SIU was notified and commenced an investigation. The OPP officer in question – the SO – was identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the incident.
The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. Liability for the offence is predicated, in part, on conduct that amounts to a marked deviation from the level of care that a reasonable person would have exercised in the circumstances: R v Beatty, [2008] 1 SCR 49; R v Roy (2012), 281 CCC (3d) 433 (SCC). In my view, there is insufficient evidence to reasonably conclude that the SO transgressed the limits of care prescribed by the criminal law.
The SO was in the lawful execution of his duty performing traffic enforcement when he ran a check on the Complainant’s licence plates and learned that they were unlawfully affixed to the vehicle. Wishing to confirm he had correctly recorded the licence marker, the SO acted reasonably in accelerating after the Complainant’s vehicle to close the distance. It is true that the SO reached speeds upwards of 160 km/h as he travelled southward on Newport Road but his speed as such transpired over a matter of seconds and was not without cause given the fact that the Complainant was himself accelerating away from the officer at the time. Moreover, given the GPS data suggesting that the SO slowed to an extent as he came upon the stop sign at Old Greenfield Road, the little to no traffic on the roadway at the time, the rural setting and the favourable environmental conditions, I am satisfied that the SO had due regard for public safety as he drove after the Complainant.
There is some evidence that the Complainant was pushed by the SO into operating his vehicle in a dangerous fashion. Specifically, this evidence indicates that the Complainant’s vehicle failed to stop at the Old Greenfield Road stop sign because the SO was right on its tail and the vehicle could not stop without a possible collision with the cruiser. In addition, this evidence indicates that the SO even pulled up alongside the driver and passenger side of the Complainant’s vehicle as they travelled south of Old Greenfield Road, and that it may have been a bump by the cruiser that caused the vehicle to go into the ditch.
While I am cognizant of the need to avoid weighing the strength of competing evidence beyond threshold considerations, I am satisfied that it would be unsafe and unwise to rest charges on the more inculpatory evidence without corroboration. For example, this evidence also indicated that the engagement with the officer lasted about two to three minutes. However, the forensic evidence establishes that the SO drove south on Newport Road for no longer than about 24 seconds. I appreciate that estimates of time may be mistaken in the context of highly dynamic events, but it seems to me that the inculpatory evidence is so faulty as to cast doubt on its credibility. This evidence also indicates that the SO had managed to position his cruiser alongside the driver and passenger side of the Complainant’s vehicle in the moments before he drove into the ditch. The forensic evidence, however, strongly suggests that this sequence of events could not have occurred in that manner. In similar vein, it is telling that this account was not supported by a civilian eyewitness.
In his account of the incident, the SO was well back of the Complainant’s vehicle, and in fact had lost sight of the vehicle as it travelled through the curve in the roadway only to see it again after it had flipped over and come to rest in the ditch. There is nothing in the forensic evidence to cast doubt on his rendition of events.
In the result, there are no reasonable grounds in the aforementioned-record to believe that the SO, in the context of an engagement that lasted no more than about 24 seconds and approximately one kilometre, comported himself other than in accordance with the criminal law. Consequently, there is no basis for proceeding with criminal charges against the officer, and the file is closed.
Date: December 21, 2020
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. Liability for the offence is predicated, in part, on conduct that amounts to a marked deviation from the level of care that a reasonable person would have exercised in the circumstances: R v Beatty, [2008] 1 SCR 49; R v Roy (2012), 281 CCC (3d) 433 (SCC). In my view, there is insufficient evidence to reasonably conclude that the SO transgressed the limits of care prescribed by the criminal law.
The SO was in the lawful execution of his duty performing traffic enforcement when he ran a check on the Complainant’s licence plates and learned that they were unlawfully affixed to the vehicle. Wishing to confirm he had correctly recorded the licence marker, the SO acted reasonably in accelerating after the Complainant’s vehicle to close the distance. It is true that the SO reached speeds upwards of 160 km/h as he travelled southward on Newport Road but his speed as such transpired over a matter of seconds and was not without cause given the fact that the Complainant was himself accelerating away from the officer at the time. Moreover, given the GPS data suggesting that the SO slowed to an extent as he came upon the stop sign at Old Greenfield Road, the little to no traffic on the roadway at the time, the rural setting and the favourable environmental conditions, I am satisfied that the SO had due regard for public safety as he drove after the Complainant.
There is some evidence that the Complainant was pushed by the SO into operating his vehicle in a dangerous fashion. Specifically, this evidence indicates that the Complainant’s vehicle failed to stop at the Old Greenfield Road stop sign because the SO was right on its tail and the vehicle could not stop without a possible collision with the cruiser. In addition, this evidence indicates that the SO even pulled up alongside the driver and passenger side of the Complainant’s vehicle as they travelled south of Old Greenfield Road, and that it may have been a bump by the cruiser that caused the vehicle to go into the ditch.
While I am cognizant of the need to avoid weighing the strength of competing evidence beyond threshold considerations, I am satisfied that it would be unsafe and unwise to rest charges on the more inculpatory evidence without corroboration. For example, this evidence also indicated that the engagement with the officer lasted about two to three minutes. However, the forensic evidence establishes that the SO drove south on Newport Road for no longer than about 24 seconds. I appreciate that estimates of time may be mistaken in the context of highly dynamic events, but it seems to me that the inculpatory evidence is so faulty as to cast doubt on its credibility. This evidence also indicates that the SO had managed to position his cruiser alongside the driver and passenger side of the Complainant’s vehicle in the moments before he drove into the ditch. The forensic evidence, however, strongly suggests that this sequence of events could not have occurred in that manner. In similar vein, it is telling that this account was not supported by a civilian eyewitness.
In his account of the incident, the SO was well back of the Complainant’s vehicle, and in fact had lost sight of the vehicle as it travelled through the curve in the roadway only to see it again after it had flipped over and come to rest in the ditch. There is nothing in the forensic evidence to cast doubt on his rendition of events.
In the result, there are no reasonable grounds in the aforementioned-record to believe that the SO, in the context of an engagement that lasted no more than about 24 seconds and approximately one kilometre, comported himself other than in accordance with the criminal law. Consequently, there is no basis for proceeding with criminal charges against the officer, 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.