SIU Director’s Report - Case # 20-PVD-243
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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 the death of a 35-year-old man (the “Complainant”) after he was struck by a vehicle driven by an Ontario Provincial Police (OPP) officer.
“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 the death of a 35-year-old man (the “Complainant”) after he was struck by a vehicle driven by an Ontario Provincial Police (OPP) officer.
The Investigation
Notification of the SIU
On September 29, 2020, at 12:44 a.m., the OPP contacted the SIU and reported the following. On September 29, 2020, at 12:05 a.m., the Subject Officer (SO) was operating a marked OPP cruiser number on Highway 12, Midland. As she approached the intersection of Jones Road on a green light, two men crossed in front of her vehicle, one of whom – the Complainant – she struck. The SO immediately went to the aid of the Complainant. Emergency Medical Services (EMS) responded and relieved the SO. The paramedics worked on the Complainant. The Complainant was pronounced deceased at 12:22 a.m. The Complainant’s friend, Civilian Witness (CW) #3, was not injured and remained at the scene, which was held.
The Team
Number of SIU Investigators assigned: 4 Number of SIU Forensic Investigators assigned: 2
Number of SIU Collision Reconstructionists assigned: 1
Four SIU investigators, one accident reconstructionist and two forensic investigators (FIs) were dispatched to investigate the incident.
One civilian witness was interviewed.
Four witness officers were originally designated on September 29, 2020, and interviewed on October 1, 2020. A fifth witness police officer was designated based on information obtained from the witness officer interviews.
The subject police officer gave the SIU an interview.
A canvass of the scene was conducted to obtain video from business premises, but none was obtained.
A collision reconstruction report was completed.
Complainant:
35-year-old male, deceasedCivilian Witnesses
CW #1 Not interviewed (Next-of-kin)CW #2 Not interviewed (Next-of-kin)
CW #3 Interviewed
Witness Officers
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
Subject Officers
SO Interviewed, but declined to submit notes, as is the subject officer’s legal right. Evidence
The Scene
The scene was in the intersection of Jones Road, which ran north/south, and Highway 12, which ran east/west. A black Ford Explorer with subdued OPP markings was stopped on the eastbound lane and faced west. Damage was noted to the cruiser at the right front and windscreen. 
Figure 1 - The SO's police cruiser.
Debris was noted in the intersection eastbound lanes, which included glass fragments, personal items (including glasses) and vehicle parts.
The body of the Complainant lay on his back across a cement curb.
Scene Diagram
Expert Evidence
Summary of Collision Reconstruction Report
In the area of this collision, Highway 12 was a four-lane paved asphalt road, which permitted two lanes of eastbound and two lanes of westbound vehicular movement. The opposing lanes were delineated with a concrete median and solid yellow paint marks near the centre of the road. The lanes which permitted travel in the same direction were delineated with intermittent white paint marks.
Jones Road was a two-lane paved asphalt road with one northbound and one southbound lane delineated with a solid yellow painted line near the centre of the road. At the approach to Highway 12 there was an additional left turn lane delineated with a solid white paint mark and left turn arrows on the roadway. Jones Road intersected at a near right angle on the south side of Highway 12.
The intersection was controlled by traffic signals and white painted stop bars. The eastern portion of the intersection possessed a white painted pedestrian crosswalk and pedestrian signals. Both roads were bordered by concrete curbs. Highway 12 was the primary road and Jones Road was the secondary road.
A primary road traffic signal remained green unless the sensing loop in the secondary road detected that a motor vehicle was waiting on or near the loop. Once that occurred, the secondary road would receive a green light. Because there were no vehicles on or near the Jones Road sensing loop during this on-scene investigation, the traffic signal for Highway 12 remained green. For this reason, the traffic signals for Highway 12 likely remained green at the time of the collision.
The measured grade was essentially level at the intersection.
Highway 12 was essentially 24.3 metres wide with the lanes ranging from 2.9 metres to 4.0 metres wide. A concrete centre median measured 1.3 metres wide on the east side of the intersection and 1.1 metres wide on the west side of the intersection. Jones Road was 12.6 metres wide with lanes ranging from 3.3 metres to 5.5 metres wide.
Artificial lighting was located on the southeast corner of the intersection 17.3 metres east of the east edge of the pavement of Jones Road and 0.8 metres north of the south edge of the pavement of Highway 12. Artificial lighting was also located on the northwest corner of the intersection 33.8 metres west of the east edge of the pavement of Jones Road and 23.4 metres north of the south edge of the pavement of Highway 12.
The posted speed limit traveling east on Highway 12 approaching Jones Road was 60 km/h, down from 80 km/h at a point about 254 metres west of the area of impact (AOI) on Highway 12.
A 2015 Ford Explorer bearing the markings of an OPP cruiser was unoccupied and faced west on the north side of the eastbound curb lane of Highway 12, immediately east of Jones Road. There was minor damage to the right front corner and lower right windshield. The approximate centre of mass was located 23.0 metres east of the east edge of the pavement of Jones Road and 3.5 metres north of the south edge of the pavement of Highway 12. There were no tire marks on the roadway. The centre of mass of the Complainant’s body was located 20.4 metres east of the east edge of the pavement of Jones Road and 0.7 metres south of the south edge of the pavement of Highway 12. The head was to the southwest on the grass, south of Highway 12, and the feet to the northeast on the eastbound curb lane of Highway 12.
A black paint chip was located 6.1 metres west of the east edge of the pavement of Jones Road and 4.6 metres north of the south edge of the pavement of Highway 12. This was the best evidence of the AOI. It was 23.7 metres from the southeast streetlight and 32.7 metres from the northwest streetlight. Three windshield glass shards were located immediately southwest of the paint chip. Headlight lens were located on the eastbound curb lane of Highway 12, between the black paint chip and the Complainant’s body. A black bandana was located 13.2 metres east of the east edge of the pavement of Jones Road and 1.3 metres north of the south edge of the pavement of Highway 12.
The OPP cruiser had no roof lights and it was examined at the scene. The engine was running, and the headlights were activated and functioning, and the emergency blue and red lights flashed in all directions. The Setina push bar in front of the grill was pushed rearward and to the left. There was dust scuffing on the leading edge of the front ground effect air scoop. It measured 72 cm to 92 cm, to the left of the right side of the vehicle, and 30 cm to 35 cm, above the ground. The right side of the front ground effect was cracked. The right headlight lens was smashed, and pieces were strewn about the scene. The width of a fresh dent on the hood extended from the right edge of the vehicle to 37 cm to the left of the right edge. The dent followed a path from the leading edge of the hood in line with the right headlight, rearward 84 cm, to the base of the right side of the windshield, the full length of the hood. The windshield was cracked with the centre of the damage 48 cm to the left of the right edge of the vehicle and 118 cm above the ground. The total diameter of the windshield spider web like damage was 40 cm. A hair was lodged in the centre of the damaged area. The height of the roofline was 1.62 metres above the ground and 1.8 metres rearward of the leading edge of the front bumper. There was minor dent damage to the right side of the roof at the windshield and a 2 cm strip of plastic moulding next to the dent was lifted upward. All tires were Goodyear in make and Eagle in model. They were the automobile manufacturer recommended size of 245/55R18. The tire inflations ranged from 34 to 35 psi. The tread depth was 8 mm on all tires.
The odometer indicated 253,636 kilometres. The windshield was clean. The police radio was tuned to 10P535.5 on loud volume. The Panasonic mobile tablet was seized by an SIU Forensic Investigator, with the intention of taking it to Orillia OPP Information Technology Services for a download. All the windows were up, and there was nothing remarkable about the interior. The driver’s seatbelt was loose in the retention housing and there was no mark on the belt. No airbag had deployed.
The airbag control module (ACM) for the Ford Explorer captured an event at ignition cycle 2,232. This event was downloaded at ignition cycle 13,031. Further to this inconsistency the lateral force to the left side of the vehicle was greater than the longitudinal force. This evidence thereby disqualified the recorded event as being related to this event. The change in velocity forces were too insignificant to activate the non deployment of the ACM for this collision.
The global positioning system (GPS) information from the SO’s police vehicle showed that the SO’s Ford Explorer was driven eastbound on Highway 12, from the area of Highway 93, towards the scene. At 12:03:26 a.m. of September 29, 2020, the police vehicle travelled at 90 km/h in an 80 km/h zone, two kilometres from the AOI. At 12:04:47 a.m., the police vehicle travelled at 89 km/h in a 60 km/h zone, 170 metres from the AOI. At 12:04:51 a.m., the police vehicle travelled at 79 km/h in a 60 km/h zone, 68 metres from the AOI. At 12:04:53 a.m., the police vehicle travelled at 76 km/h in a 60 km/h zone, 25 metres from the AOI. At 12:04:55 a.m., the police vehicle travelled at 72 km/h, 10 metres beyond and east of the AOI.
The AOI would have been slightly to the north and west of the resting location of the black paint chip, therefore, the calculations slightly underestimated the speed of the OPP cruiser. The measured distance from the black paint chip to the centre of mass of the Complainant’s body was 26.9 metres. Using the Collins formula, the calculated speed was 61.9 km/h at the area of impact. The area of impact speed from the GPS was between 72 km/h and 76 km/h. The Collins formula speed was lower because not all of the force from the police vehicle was transferred into the body. The speed at impact was between 72 km/h, which was just before impact, and 76 km/h, which was just after impact. There was no GPS data for the exact moment of impact. Considering the AOI was more than likely a little further northwest of the black paint chip it is reasonable to assume that the pedestrian throw distance was slightly underestimated; therefore, the calculated impact speed would be slightly underestimated.
According to GPS data, the OPP cruiser was driven eastbound on Highway 12 and approached Jones Road in the passing eastbound lane. According to GPS data, the police vehicle travelled in excess of 90 km/h in an 80 km/h zone but slowed without braking to the mid-70 km/h range when it entered the 60 km/h zone and approached the intersection of Jones Road. According to the configuration of the signal loop, the traffic signal was likely green for Highway 12. There is evidence that the Complainant walked across the intersection of Highway 12 and Jones Road to the south side of Highway 12. There were two streetlights diagonal to each other at the intersection. The Complainant wore a black garbage bag on his torso, dark blue shirt, dark blue work pants, a black bandana on his head and work boots. According to the black paint chip and the three shards of glass in the centre of the eastbound curb lane, the collision likely occurred near the south side of the passing eastbound lane of Highway 12 at the centre of Jones Road. The right front corner of the OPP cruiser impacted the Complainant in wrap trajectory fashion. The autopsy photos indicated trauma to the right side of the body; the right side of the Complainant’s body was struck by the leading edges of the OPP cruiser. He was thrust onto the hood and his forehead impacted the lower passenger side of the windshield. A portion of his body impacted the roof line on the passenger side. The Complainant was thrust southeast for 26.9 metres and came to rest, head to the south on the grass and feet to the north on the eastbound curb lane of Highway 12, east of Jones Road. The resting location and debris field of headlight lens was consistent with the Complainant walking southeast at the time of impact. The OPP cruiser was driven further eastbound for less than 100 metres, braked and turned around returning to the scene. It was stopped about 28 metres east of the AOI. There was no evidence of pre-impact braking.
Video/Audio/Photographic Evidence
On September 29, 2020, a canvass was conducted of the business premises in the area of the intersection of Highway 12 and Jones Road. The purpose was to obtain any video camera footage of the activity in the intersection. Four businesses were attended; however, none of the businesses had cameras that recorded the intersection at the time of the collision. [1]
Communications Recordings
0n September 29, 2020, at 12:05:06 a.m., the SO advised her communications that she had struck a pedestrian, who had walked across the road in the intersection of Highway 12 and Jones Road. The pedestrian was unresponsive, and she had started CPR. Other audio files consisted of the dispatch of other police units and EMS to the scene. The files consisted of the notifications of supervisory and administrative staff, and the arrival of police units on scene, the arrangements for the closure of the road, the securing of the scene, the notification of the coroner and SIU, and the subsequent arrival of same. EMS arrived on scene at 12:11:00 a.m., and the Complainant was reported as deceased at 12:22:00 a.m.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
The body of the Complainant lay on his back across a cement curb.
Scene Diagram
Expert Evidence
Summary of Collision Reconstruction Report
Jones Road was a two-lane paved asphalt road with one northbound and one southbound lane delineated with a solid yellow painted line near the centre of the road. At the approach to Highway 12 there was an additional left turn lane delineated with a solid white paint mark and left turn arrows on the roadway. Jones Road intersected at a near right angle on the south side of Highway 12.
The intersection was controlled by traffic signals and white painted stop bars. The eastern portion of the intersection possessed a white painted pedestrian crosswalk and pedestrian signals. Both roads were bordered by concrete curbs. Highway 12 was the primary road and Jones Road was the secondary road.
A primary road traffic signal remained green unless the sensing loop in the secondary road detected that a motor vehicle was waiting on or near the loop. Once that occurred, the secondary road would receive a green light. Because there were no vehicles on or near the Jones Road sensing loop during this on-scene investigation, the traffic signal for Highway 12 remained green. For this reason, the traffic signals for Highway 12 likely remained green at the time of the collision.
The measured grade was essentially level at the intersection.
Highway 12 was essentially 24.3 metres wide with the lanes ranging from 2.9 metres to 4.0 metres wide. A concrete centre median measured 1.3 metres wide on the east side of the intersection and 1.1 metres wide on the west side of the intersection. Jones Road was 12.6 metres wide with lanes ranging from 3.3 metres to 5.5 metres wide.
Artificial lighting was located on the southeast corner of the intersection 17.3 metres east of the east edge of the pavement of Jones Road and 0.8 metres north of the south edge of the pavement of Highway 12. Artificial lighting was also located on the northwest corner of the intersection 33.8 metres west of the east edge of the pavement of Jones Road and 23.4 metres north of the south edge of the pavement of Highway 12.
The posted speed limit traveling east on Highway 12 approaching Jones Road was 60 km/h, down from 80 km/h at a point about 254 metres west of the area of impact (AOI) on Highway 12.
A 2015 Ford Explorer bearing the markings of an OPP cruiser was unoccupied and faced west on the north side of the eastbound curb lane of Highway 12, immediately east of Jones Road. There was minor damage to the right front corner and lower right windshield. The approximate centre of mass was located 23.0 metres east of the east edge of the pavement of Jones Road and 3.5 metres north of the south edge of the pavement of Highway 12. There were no tire marks on the roadway. The centre of mass of the Complainant’s body was located 20.4 metres east of the east edge of the pavement of Jones Road and 0.7 metres south of the south edge of the pavement of Highway 12. The head was to the southwest on the grass, south of Highway 12, and the feet to the northeast on the eastbound curb lane of Highway 12.
A black paint chip was located 6.1 metres west of the east edge of the pavement of Jones Road and 4.6 metres north of the south edge of the pavement of Highway 12. This was the best evidence of the AOI. It was 23.7 metres from the southeast streetlight and 32.7 metres from the northwest streetlight. Three windshield glass shards were located immediately southwest of the paint chip. Headlight lens were located on the eastbound curb lane of Highway 12, between the black paint chip and the Complainant’s body. A black bandana was located 13.2 metres east of the east edge of the pavement of Jones Road and 1.3 metres north of the south edge of the pavement of Highway 12.
The OPP cruiser had no roof lights and it was examined at the scene. The engine was running, and the headlights were activated and functioning, and the emergency blue and red lights flashed in all directions. The Setina push bar in front of the grill was pushed rearward and to the left. There was dust scuffing on the leading edge of the front ground effect air scoop. It measured 72 cm to 92 cm, to the left of the right side of the vehicle, and 30 cm to 35 cm, above the ground. The right side of the front ground effect was cracked. The right headlight lens was smashed, and pieces were strewn about the scene. The width of a fresh dent on the hood extended from the right edge of the vehicle to 37 cm to the left of the right edge. The dent followed a path from the leading edge of the hood in line with the right headlight, rearward 84 cm, to the base of the right side of the windshield, the full length of the hood. The windshield was cracked with the centre of the damage 48 cm to the left of the right edge of the vehicle and 118 cm above the ground. The total diameter of the windshield spider web like damage was 40 cm. A hair was lodged in the centre of the damaged area. The height of the roofline was 1.62 metres above the ground and 1.8 metres rearward of the leading edge of the front bumper. There was minor dent damage to the right side of the roof at the windshield and a 2 cm strip of plastic moulding next to the dent was lifted upward. All tires were Goodyear in make and Eagle in model. They were the automobile manufacturer recommended size of 245/55R18. The tire inflations ranged from 34 to 35 psi. The tread depth was 8 mm on all tires.
The odometer indicated 253,636 kilometres. The windshield was clean. The police radio was tuned to 10P535.5 on loud volume. The Panasonic mobile tablet was seized by an SIU Forensic Investigator, with the intention of taking it to Orillia OPP Information Technology Services for a download. All the windows were up, and there was nothing remarkable about the interior. The driver’s seatbelt was loose in the retention housing and there was no mark on the belt. No airbag had deployed.
The airbag control module (ACM) for the Ford Explorer captured an event at ignition cycle 2,232. This event was downloaded at ignition cycle 13,031. Further to this inconsistency the lateral force to the left side of the vehicle was greater than the longitudinal force. This evidence thereby disqualified the recorded event as being related to this event. The change in velocity forces were too insignificant to activate the non deployment of the ACM for this collision.
The global positioning system (GPS) information from the SO’s police vehicle showed that the SO’s Ford Explorer was driven eastbound on Highway 12, from the area of Highway 93, towards the scene. At 12:03:26 a.m. of September 29, 2020, the police vehicle travelled at 90 km/h in an 80 km/h zone, two kilometres from the AOI. At 12:04:47 a.m., the police vehicle travelled at 89 km/h in a 60 km/h zone, 170 metres from the AOI. At 12:04:51 a.m., the police vehicle travelled at 79 km/h in a 60 km/h zone, 68 metres from the AOI. At 12:04:53 a.m., the police vehicle travelled at 76 km/h in a 60 km/h zone, 25 metres from the AOI. At 12:04:55 a.m., the police vehicle travelled at 72 km/h, 10 metres beyond and east of the AOI.
The AOI would have been slightly to the north and west of the resting location of the black paint chip, therefore, the calculations slightly underestimated the speed of the OPP cruiser. The measured distance from the black paint chip to the centre of mass of the Complainant’s body was 26.9 metres. Using the Collins formula, the calculated speed was 61.9 km/h at the area of impact. The area of impact speed from the GPS was between 72 km/h and 76 km/h. The Collins formula speed was lower because not all of the force from the police vehicle was transferred into the body. The speed at impact was between 72 km/h, which was just before impact, and 76 km/h, which was just after impact. There was no GPS data for the exact moment of impact. Considering the AOI was more than likely a little further northwest of the black paint chip it is reasonable to assume that the pedestrian throw distance was slightly underestimated; therefore, the calculated impact speed would be slightly underestimated.
According to GPS data, the OPP cruiser was driven eastbound on Highway 12 and approached Jones Road in the passing eastbound lane. According to GPS data, the police vehicle travelled in excess of 90 km/h in an 80 km/h zone but slowed without braking to the mid-70 km/h range when it entered the 60 km/h zone and approached the intersection of Jones Road. According to the configuration of the signal loop, the traffic signal was likely green for Highway 12. There is evidence that the Complainant walked across the intersection of Highway 12 and Jones Road to the south side of Highway 12. There were two streetlights diagonal to each other at the intersection. The Complainant wore a black garbage bag on his torso, dark blue shirt, dark blue work pants, a black bandana on his head and work boots. According to the black paint chip and the three shards of glass in the centre of the eastbound curb lane, the collision likely occurred near the south side of the passing eastbound lane of Highway 12 at the centre of Jones Road. The right front corner of the OPP cruiser impacted the Complainant in wrap trajectory fashion. The autopsy photos indicated trauma to the right side of the body; the right side of the Complainant’s body was struck by the leading edges of the OPP cruiser. He was thrust onto the hood and his forehead impacted the lower passenger side of the windshield. A portion of his body impacted the roof line on the passenger side. The Complainant was thrust southeast for 26.9 metres and came to rest, head to the south on the grass and feet to the north on the eastbound curb lane of Highway 12, east of Jones Road. The resting location and debris field of headlight lens was consistent with the Complainant walking southeast at the time of impact. The OPP cruiser was driven further eastbound for less than 100 metres, braked and turned around returning to the scene. It was stopped about 28 metres east of the AOI. There was no evidence of pre-impact braking.
Video/Audio/Photographic Evidence
On September 29, 2020, a canvass was conducted of the business premises in the area of the intersection of Highway 12 and Jones Road. The purpose was to obtain any video camera footage of the activity in the intersection. Four businesses were attended; however, none of the businesses had cameras that recorded the intersection at the time of the collision. [1]Communications Recordings
0n September 29, 2020, at 12:05:06 a.m., the SO advised her communications that she had struck a pedestrian, who had walked across the road in the intersection of Highway 12 and Jones Road. The pedestrian was unresponsive, and she had started CPR. Other audio files consisted of the dispatch of other police units and EMS to the scene. The files consisted of the notifications of supervisory and administrative staff, and the arrival of police units on scene, the arrangements for the closure of the road, the securing of the scene, the notification of the coroner and SIU, and the subsequent arrival of same. EMS arrived on scene at 12:11:00 a.m., and the Complainant was reported as deceased at 12:22:00 a.m.Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:- The SO – Provincial Police Academy Student Transcript;
- Airbag Module Download for the SO’s OPP cruiser;
- Communications recordings;
- Computer-assisted Dispatch for the occurrence;
- E-Mail from the OPP regarding the SO;
- E-Mail from the OPP regarding Vehicle Examination (x2);
- General Occurrence Report;
- Motor Vehicle Collision Report;
- Notes of the witness officers;
- GPS data from the SO’s cruiser; and
- Police Orders - OPP Vehicles.
Incident Narrative
The following scenario emerges from the information collected by the SIU, which included statements from the SO and a civilian eyewitness. Forensic examination of the scene and items of evidence, resulting in a reconstruction of the collision, was also key to understanding what happened. Just after midnight of the day in question, the Complainant was in the company of his friend, CW #3, on Highway 12 near its intersection with Jones Road, Midland. They were walking after an evening of drinking.
At about the same time, the SO was on patrol and operating a police SUV with subdued markings, traveling east on Highway 12 toward Jones Road. As she approached and entered the intersection, the officer felt her vehicle strike something. The SO travelled a short distance further eastward, whereupon she made a U-turn and returned to the intersection traveling west in the eastbound lanes of Highway 12. She had struck the Complainant, whose unconscious body lay on the ground on the southeast corner of the intersection.
The SO radioed that she had struck a pedestrian and proceeded to render aid to the Complainant. CW #3 was close by and distraught. Other officers from the nearby OPP Southern Georgian Bay Detachment were on scene and performing CPR on the Complainant within minutes. Attending paramedics took over the Complainant’s care but he could not be resuscitated. The Complainant was declared dead at the scene at about 12:22 a.m.
The front passenger side of the SO’s vehicle struck the Complainant’s right side in and around the eastbound passing lane of Highway 12 near the centre of Jones Road. The Complainant was walking diagonally toward the southeast corner of the intersection at the time. The SO had entered the intersection on a green light.
Cause of Death
The pathologist at autopsy attributed the Complainant’s death to blunt force trauma to the head.
At about the same time, the SO was on patrol and operating a police SUV with subdued markings, traveling east on Highway 12 toward Jones Road. As she approached and entered the intersection, the officer felt her vehicle strike something. The SO travelled a short distance further eastward, whereupon she made a U-turn and returned to the intersection traveling west in the eastbound lanes of Highway 12. She had struck the Complainant, whose unconscious body lay on the ground on the southeast corner of the intersection.
The SO radioed that she had struck a pedestrian and proceeded to render aid to the Complainant. CW #3 was close by and distraught. Other officers from the nearby OPP Southern Georgian Bay Detachment were on scene and performing CPR on the Complainant within minutes. Attending paramedics took over the Complainant’s care but he could not be resuscitated. The Complainant was declared dead at the scene at about 12:22 a.m.
The front passenger side of the SO’s vehicle struck the Complainant’s right side in and around the eastbound passing lane of Highway 12 near the centre of Jones Road. The Complainant was walking diagonally toward the southeast corner of the intersection at the time. The SO had entered the intersection on a green light.
Cause of Death
Relevant Legislation
Section 128(13)(b), 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 causing death
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.
(3) 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 the death of another person.
Analysis and Director's Decision
The Complainant was struck and killed by a police vehicle in the early morning of September 29, 2020. The driver of the police vehicle, 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 Complainant’s death.
The offence that arises for consideration is dangerous driving causing death contrary to section 320.13(3) of the Criminal Code. The offence is premised, 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: R. v. Roy (2012), 281 CCC (3d) 433 (SCC); R. v. Beatty, [2008] 1 SCR 49. While close to the line, I am satisfied that the evidence falls short of reasonably establishing that the SO’s conduct transgressed the limits of care prescribed by the criminal law.
The environmental conditions at the time of the incident were poor and called for extra caution from motorists. The late hour and heavy rain in the area combined to significantly reduce visibility on the roadway. Despite this, GPS data associated with the SO’s cruiser established that she was traveling in excess of the speed limit as she approached the intersection – as high as 98 km/h in an 80 km/h zone two kilometres west of Jones Road and 89 km/h in a 60 km/h zone about 170 metres from the intersection. While police officers in their police vehicles engaged in the lawful performance of their duties may exceed the speed limit pursuant to section 128(13) of the Highway Traffic Act, the officer was not responding to any call for service at the time and there was simply no need to drive as quickly as she was. The SO’s failure to slow her speed, in my view, compromised her ability to react to events in front of her given the prevailing weather and figured prominently in her failure to take note of the Complainant on the roadway.
Beyond that, there is evidence that the SO’s full attention was not on the roadway ahead of her. She says that she was distracted to an extent by another pedestrian crossing the road in the area of the intersection just before she struck the Complainant, and suggests the pedestrian in question was CW #3. However, there is contrary evidence indicating that CW #3 was behind and to the west of the Complainant at the time of the collision, and not in the intersection, as the SO asserts. I am unable to resolve this conflict in the evidence. However, I would note that the SO’s evidence, even if accepted, would not absolve her of some level of responsibility for the collision. Particularly in light of the weather conditions, her full focus ought to have been on the roadway in her path and not off to the side, as she suggests was the case.
Notwithstanding the officer’s indiscretions, there are enough extenuating considerations such as to render the SO’s driving something less than a marked departure from a reasonable level of care. The speeds, while high, were not significantly above the speed limits. Moreover, the evidence indicates that the officer’s vehicle slowed as it approached Jones Road: 79 km/h in a 60 km/h zone about 70 metres from the collision site and 76 km/h some 25 metres from the point of impact. The fact that the Complainant had a black garbage bag draped over his body as protection from the rain and was crossing against a red light must also be taken into account. Not only is it reasonable to infer that the SO would not have been expecting to see a pedestrian in her path, seeing the Complainant would have been made more difficult given his dark clothing.
In the final analysis, while there are reasonable grounds to believe that the SO, particularly with respect to her speed in bad weather and lighting conditions, operated her cruiser in a dangerous fashion, I am not satisfied that the officer’s transgressions on balance rose to the level of criminal conduct. Accordingly, there is no basis to proceed with criminal charges in this case.
Date: December 14, 2020
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offence that arises for consideration is dangerous driving causing death contrary to section 320.13(3) of the Criminal Code. The offence is premised, 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: R. v. Roy (2012), 281 CCC (3d) 433 (SCC); R. v. Beatty, [2008] 1 SCR 49. While close to the line, I am satisfied that the evidence falls short of reasonably establishing that the SO’s conduct transgressed the limits of care prescribed by the criminal law.
The environmental conditions at the time of the incident were poor and called for extra caution from motorists. The late hour and heavy rain in the area combined to significantly reduce visibility on the roadway. Despite this, GPS data associated with the SO’s cruiser established that she was traveling in excess of the speed limit as she approached the intersection – as high as 98 km/h in an 80 km/h zone two kilometres west of Jones Road and 89 km/h in a 60 km/h zone about 170 metres from the intersection. While police officers in their police vehicles engaged in the lawful performance of their duties may exceed the speed limit pursuant to section 128(13) of the Highway Traffic Act, the officer was not responding to any call for service at the time and there was simply no need to drive as quickly as she was. The SO’s failure to slow her speed, in my view, compromised her ability to react to events in front of her given the prevailing weather and figured prominently in her failure to take note of the Complainant on the roadway.
Beyond that, there is evidence that the SO’s full attention was not on the roadway ahead of her. She says that she was distracted to an extent by another pedestrian crossing the road in the area of the intersection just before she struck the Complainant, and suggests the pedestrian in question was CW #3. However, there is contrary evidence indicating that CW #3 was behind and to the west of the Complainant at the time of the collision, and not in the intersection, as the SO asserts. I am unable to resolve this conflict in the evidence. However, I would note that the SO’s evidence, even if accepted, would not absolve her of some level of responsibility for the collision. Particularly in light of the weather conditions, her full focus ought to have been on the roadway in her path and not off to the side, as she suggests was the case.
Notwithstanding the officer’s indiscretions, there are enough extenuating considerations such as to render the SO’s driving something less than a marked departure from a reasonable level of care. The speeds, while high, were not significantly above the speed limits. Moreover, the evidence indicates that the officer’s vehicle slowed as it approached Jones Road: 79 km/h in a 60 km/h zone about 70 metres from the collision site and 76 km/h some 25 metres from the point of impact. The fact that the Complainant had a black garbage bag draped over his body as protection from the rain and was crossing against a red light must also be taken into account. Not only is it reasonable to infer that the SO would not have been expecting to see a pedestrian in her path, seeing the Complainant would have been made more difficult given his dark clothing.
In the final analysis, while there are reasonable grounds to believe that the SO, particularly with respect to her speed in bad weather and lighting conditions, operated her cruiser in a dangerous fashion, I am not satisfied that the officer’s transgressions on balance rose to the level of criminal conduct. Accordingly, there is no basis to proceed with criminal charges in this case.
Date: December 14, 2020
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The SIU was able to obtain information that the Complainant and CW #3 attended a restaurant prior to the collision and obtained a copy of their bills. The bills showed that the two men shared a pitcher of Rickards Red beer and each had two white sambuca drinks. The two men were very nice and polite. The server watched them leave through the front door and they did not wear any garbage bags when they left. They had a backpack with them, but she did not know what was in it. She did not give them any garbage bags. It rained very heavily when they left, and she did not watch them after they left through the front doors. [Back to text]
Note:
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