Director's Report Details

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.

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. 

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.

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 a 75-year-old man (Complainant #1), a 62-year-old woman (Complainant #2) and a 37-year-old man (Complainant #3).

Notification of the SIU

On June 11, 2019, at 2:20 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to Complainant #1.

The OPP advised that on June 11, 2019, an unmarked police cruiser, driven by the Subject Officer (SO) and his passenger, Complainant #3, collided with a civilian vehicle driven by Complainant #1 on Golf Links Road in the area of the Thunder Bay Regional Health Sciences Centre (TBRHSC). The police officers were engaged in surveillance training.

Complainant #1 was taken to the TBRHSC and diagnosed with having a broken bone in his neck. Complainant #3 suffered a broken arm and leg.

At the time of the reporting Thunder Bay Police Service (TBPS) was processing the scene.

The Scene

The scene of this investigation was Golf Links Road and Donald Caddo Drive, the west entrance to TBRHSC. Golf Links Road travelled in a north and south direction with Donald Caddo Drive intersecting from the east at a “T” intersection. Golf Links Road was a paved multi-lane roadway with two lanes for each direction of travel. There was a left turn lane at the intersection with Donald Caddo Drive for southbound traffic to turn into the hospital. 

The material events in question are clear on the weight of the evidence collected by the SIU, which included statements from Complainant #1, Complainant #2, Complainant #3 and several eyewitnesses to the crash, both police and civilian. The investigation further benefitted from a review and analyses of video recordings from cameras that captured vehicular traffic, including the Nissan, just prior to the collision, and information derived from data retrieved from the involved vehicles related to their speeds and location in the five seconds prior to impact. At about 11:00 a.m. on June 11, 2019, Complainant #1 was operating a Cadillac SUV west on Donald Caddo Drive. With him in the front passenger seat was Complainant #2. Complainant #1 brought his vehicle to a stop at a stop sign at the roadway’s intersection with Golf Links Road intending to make a left turn. Complainant #1 then accelerated forward. His vehicle had made it as far as the middle of Golf Links Road when its front driver’s side was struck by the front passenger side of a Nissan Maxima traveling north.

The collision propelled Complainant #1’s SUV toward the northeast corner of the Golf Links Road and Donald Caddo Drive intersection, where it came to a rest. The Nissan Maxima continued north and west, ending up in a ditch just north of the intersection. The injured parties – Complainant #1, Complainant #2 and Complainant #3 – were taken to the TBRHSC nearby – where their injuries were diagnosed. Complainant #1 suffered a fractured vertebra and Complainant #2 sustained an ankle fracture. Complainant #3 suffered a fracture to his left shinbone and left middle finger.

The driver of the Nissan Maxima, the SO, was involved in a mobile surveillance training exercise at the time of the incident. On this particular day, he and other police officers participating in the training were tracking a pickup truck with officers in it playing the role of suspects in a break and enter of homes. The exercise took the SO and others north on Golf Links Road from Oliver Road. Three-and-a-half seconds prior to the point of impact with Complainant #1’s SUV, the SO was traveling at 122 km/h. Observing Complainant #1’s SUV turning in front of him, the SO braked and steered to the left in a futile effort to avoid the collision. At the time of impact, the SO’s Nissan Maxima had slowed to 76 km/h.

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

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

Section 320.13, Criminal Code – Dangerous operation causing bodily harm

Complainant #1 and Complainant #2 were involved in a motor vehicle collision with a Nissan Maxima on June 11, 2019 in Thunder Bay. The driver of the Nissan was a police officer – the SO. Complainant #1 and Complainant #2 were each seriously injured in the collision, as was the passenger in the Nissan, Complainant #3. On my assessment of the evidence, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the accident.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. The offence is predicated, in part, on conduct that amounts to a marked departure from a reasonable level of care; simple negligence will not suffice: R. v. Beatty, [2008] 1 SCR 49. While the SO’s speed is certainly subject to scrutiny and perhaps even criticism, it fell short, in my view, of rendering the officer’s conduct a marked deviation from a reasonable level of care in the circumstances. At twice the 60 km/h speed limit on Golf Links Road, I accept that the SO’s speed represented a danger on the roadway to other traffic in the area. It was also a paramount factor in the accident that occurred. Had the officer been driving at or near the speed limit, for example, the forensic evidence developed by the SIU suggests Complainant #1 would likely have cleared the intersection and completed his turn before the arrival of the police vehicle.

On the other hand, the impact of the SO’s speed in the liability analysis is mitigated by several considerations. For starters, under section 128(13)(b), police vehicles used in the lawful performance of a police officer’s duties are exempt from the governing speed limits. While the SO was not responding to an emergency call for service, he was operating a police vehicle and engaged in a bona fide training activity at the time of the crash; he was clearly in the exercise of official duties and therefore captured by the protection of the provision. This is not to suggest that the SO was free to speed as he wished without regard for public safety. It does mean, however, that some allowance must be made for the officer’s speed as he was participating in a training exercise that reasonably contemplated occasional spurts of acceleration beyond the speed limit in order to keep pace with the subject vehicle.

The SO’s speed must also be understood in the context of what in other respects appears to have been safe and prudent driving on the part of the officer. While the case law establishes that excessive speed alone may in the appropriate circumstances constitute dangerous driving (R. v. Richards (2003), 174 CCC (3d) 154 (Ont. C.A.)), the courts have also made clear their reluctance to base criminal liability for the offence on singular or isolated lapses in judgement: Beatty, supra. The evidence indicates that the SO reached a top speed on Golf Links Road of 122 km/h for a short period of time before he started to decelerate in advance of Complainant #1’s left-turning SUV. There is no suggestion in the evidence of any other indicia of dangerous driving or protracted speeding in the manner with which the SO was operating the police vehicle.

Another important part of the context were the surrounding conditions at the time of the incident. The roadway was dry and in good repair, the weather was clear, visibility was good, and vehicular traffic was light to moderate in what was a semi-rural stretch of roadway lined with a number of businesses and a hospital on one side of the road. There was a sign warning northbound motorists of a construction zone up ahead and the need to merge into a single lane. However, as the sign was only 200 metres or so before the collision site and the construction zone was well north of the incident scene, I am not persuaded that this factor tips the liability analysis one way or the other. On this record, I am satisfied that the risks inherent in the speeds at which the SO travelled north along Golf Links Road were not unduly exacerbated by the environment around him.

In the final analysis, when one weighs the totality of the evidence on both sides of the ledger, I am unable to reasonably conclude on balance that the SO’s conduct, and his speed in particular over a stretch of road under 400 metres in length, was so wanting in the circumstances that it transgressed the limits of care prescribed by the criminal law. Consequently, there are no grounds for proceeding with criminal charges against the officer
 
notwithstanding his role in the collision that resulted in injuries to his partner on the day, Complainant #3, and to Complainant #1 and Complainant #2. The file is closed.


Date: February 10, 2020

Original signed by

Joseph Martino
Director
Special Investigations Unit