SIU Director’s Report - Case # 20-OVD-181
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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 54-year-old Daniel Bertini (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 the death of 54-year-old Daniel Bertini (the “Complainant”).
The Investigation
Notification of the SIU
On July 24, 2020, at 8:45 a.m., York Regional Police (YRP) contacted the SIU and reported the following.On July 24, 2020, at approximately 7:10 a.m., the Subject Officer (SO) was doing static radar on Keele Street by 16th Sideroad in King Township. A vehicle travelling on Keele Street was captured on radar going 125 km/h and accelerated past the police cruiser. The SO activated his emergency lighting and turned his cruiser around to pursue the speeding vehicle. The vehicle was nowhere in sight. The SO continued on Keele Street for a distance and came upon a collision at Cavell Avenue.
The vehicle had left the road and was in the ditch. Some construction workers nearby came to assist. They located a male and thought it was the driver, but then determined that the individual was wearing cycling attire and realized that he had been struck by the car while riding his bicycle. They continued to search for the driver.
At 9:27 a.m., YRP called the SIU to advise that the driver had been located and was being detained. YRP had Identification and Reconstruction officers on standby at the scene. All vehicles were still at scene.
The Team
Number of SIU Investigators assigned: 6 Number of SIU Forensic Investigators assigned: 3
Number of SIU Collision Reconstructionist assigned: 1
Complainant:
Daniel Bertini 54-year-old male, deceasedCivilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
Witness Officers (WO)
WO #1 InterviewedWO #2 Notes reviewed, interview deemed not necessary
WO #3 Notes reviewed, interview deemed not necessary
Subject Officer
SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.Evidence
The Scene
The collision occurred in the area of the intersection of Keele Street and Cavell Avenue. Keele Street runs in a general north south direction. There is one paved lane in each direction. A double solid centre line separates the north and south lane. There are white fog lines on the edge of the roadway. There are narrow uneven gravel shoulders followed by shallow ditches with high banked tree-lined woods on the edges of the roadway. The area is wooded with sparse houses set back from the roadway on either side of the roadway. The roadway is relatively straight but hilly with a posted speed limit of 60 km/h.
Cavell Avenue runs west from Keele Street. The roadway is paved and the intersection is controlled with a stop sign for eastbound traffic at the intersection with Keele Street. The intersection has an overhead flashing light, with an amber flashing light for Keele Street and red for Cavell Avenue.
A Honda Accord was orientated in an easterly direction on its roof and in the east ditch area of Keele Street. The vehicle had extensive front end damage as well as roof damage. There was heavy intrusion damage to the right rear door area.
Tire marks indicated the vehicle was being operated southbound on Keele Street, descending a hill. As the vehicle approached the intersection with Cavell Avenue, the vehicle curved to the left crossing the northbound lane of Keele Street, striking the raised dirt hill on the east side of Keele Street. The vehicle continued in a southerly direction spraying dirt and vehicle debris. The vehicle struck the east ditch and continued in a southerly direction to its resting spot. A pair of black bicycle riding shoes were in the east side ditch as was a black bicycle tool pack and bicycle components. All the air bags had deployed. The speedometer registered 100 km/h with the RPM gauge registering 5,800 RPM.
A 2018 Tarmac Specialized bicycle was oriented in a northerly direction on its right side and in the east ditch of Keele Street and north of the above-mentioned Honda. The bicycle had extensive damage with the front forks, handlebars and frame all heavily damaged. The front damaged tire and rim were located on the southeast corner of Keele Street and the driveway to 14695 Cavell Avenue. The black bicycle riding shoes were in the east ditch and north of the driveway.
A 2014 4-door Ford Police Interceptor (Taurus) displayed subdued graphics as designed by the YRP. The vehicle was oriented in a southeast direction across Keele Street and south of the Honda Accord. The vehicle was running with its emergency lighting equipment on. The vehicle was equipped with a forward-facing radar antenna (mounted in the left front dash area) and an antenna in the right rear deck area facing the rear window. The Genesis Directional monitor for the two radar antennas was mounted on the front dash and right of the front antenna. There was a Decatur Electronics handheld radar unit on the front right seat. The radar was displaying a locked measurement of 125 km/h. There did not appear to be any fresh collision damage to this vehicle.
Mr. Bertini was found in the east ditch. He was located north of the overturned Honda. His feet were to the east with his upper body to the west. Mr. Bertini was dressed in black/green/white bicycle riding clothing with black socks and black gloves. He had extreme heavy trauma to all his body.
Figure 1 – CW #6’s Honda Accord
Scene Diagram
Physical Evidence
Summary of the SO’s In-car Camera (ICC) Footage
7:28:51 a.m.: The SO turns on his emergency lighting and begins to move forward.
7:28:54 a.m.: The southbound black car passes the SO and the SO makes a U-turn and drives south on Keele Street following the black car. The black car is not in sight as the SO continues.
7:29:36 a.m.: The SO passes a dump truck that is pulled over on the right shoulder (at the driveway of 14740 Keele Street) with its emergency lights flashing.
7:29:44 a.m.: The SO passes two men on the right side of the road, pointing south.
7:30:08 a.m.: The SO passes two vehicles going northbound and stops on the right shoulder of Keele Street in front of a 70 km/h speed sign. The SO asks the dispatcher to call a PS (Patrol Sergeant) and possibly a reconstructionist. He indicates the incident involves a rollover on Keele Street with a vehicle that was doing 125 km/h, and notes that the vehicle rolled over into the eastbound ditch.
7:31:37 – 7:31:46 a.m.: The SO gets out of his police cruiser and walks over to the rolled vehicle. He gives an update indicating that it looks like the driver was ejected from the vehicle and the incident involved a fatality.
Summary of ICC Footage – CW #6’s Arrest
The second officer asks, “Was there anyone else in your vehicle that could be missing or hurt, that’s all we’re worried about.” CW #6 does not comment. The officer asks CW #6 about his condition and confirms CW #6’s name. The second officer informs CW #6 the EMS (Emergency Medical Services) was on the scene.
A paramedic asks CW #6 if he had any medical problems and CW #6 shakes his head, no. The paramedic asks what happened and CW #6 shakes his shoulders, “I don’t know, I have no comment right now.” The paramedic notices fresh blood on CW #6’s nose and asks if that happened today. CW #6 replies, “Not today, no.”
The paramedic asks CW #6, “Do you want us to check you out, did you get injured, apparently you were in a car accident.” CW #6 says, “I’m okay, no comment.”
The second officer tells CW #6, “Okay, man, if you feel like you need to go to the hospital, just let me know okay.” The officer informs the dispatcher he is driving to four district.
Forensic Evidence
SIU Reconstructionist Conclusions
It was sunny, the atmosphere was clear, and the roads were dry. The posted speed limit was 60 km/h and the road was hilly.
The maximum speed which the SO drove was slightly over 104 km/h for a matter of seconds, but for the most part was between 32 km/h and 89 km/h.
The Honda was operated at a calculated speed of about 151 km/h just before it descended and approached Cavell Avenue about 1.0 kilometre south of where it had been travelling 125 km/h. Due to its excessive speed, it began to rotate counter-clockwise and the right rear tire entered onto the west side gravel shoulder. The Honda Accord continued southeast, crossing into the northbound lane, while rotating out of control and slowing down.
The right rear passenger door of the Honda Accord impacted Mr. Bertini, who was riding his bicycle northbound and uphill on the east side of the northbound lane of Keele Street at Cavell Avenue.
The front of the Honda Accord mounted an embankment on the east side of Keele Street across from Cavell Avenue. After being out of control for some 59 metres, the right wheels of the Accord furrowed into the embankment and it rotated clockwise about its longitudinal axis while rotating counter-clockwise about its vertical axis.
The Honda Accord became airborne at 93 km/h and travelled an additional 28 metres southeast over the gravel driveway at 14695 Cavell Avenue.
Mr. Bertini and his bicycle were thrown southeast. The bicycle was broken into many pieces and the pieces were strewn about the southeast path of the bicycle.
The Honda Accord landed on its roof on the west bank of the east ditch and slid an additional 22 metres southeast to the centre of the east ditch coming to rest facing east on its roof.
It is unknown precisely how Mr. Bertini was positioned in relation to the Honda Accord as it was moving, but Mr. Bertini came to rest underneath it in the east ditch.
Video/Audio/Photographic Evidence
The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following sources:- Closed-circuit Television (CCTV) footage from a residence on Keele Street; and
- Photographs taken by CW #7.
Summary of the CCTV Footage from a Residence on Keele Street
At 7:28:52 a.m., the police cruiser turns on its emergency lights and begins to move forward from the north shoulder.
At 7:28:53 – 7:28:57 a.m., a dark car going south on Keele Street passes the police cruiser. The police cruiser completes its turn and goes south on Keele Street with emergency lights activated.
Police Communications Recordings
Summary of YRP Communication Recordings
The SO noted the man was ejected from this vehicle and it looked like he was deceased.
The SO noted that a bicycle found in the area could have been struck in the collision. There was blood on it. The driver was under arrest.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the YRP:- Crash Data Retrieval;
- Detailed Call Summary;
- General Occurrence Hardcopy;
- Global Positioning System (GPS) Data Spreadsheet-the SO’s cruiser;
- Notes-WO #2;
- Notes-WO #1;
- Notes-WO #3;
- Pursuit and Radar Procedures;
- Training Record-the SO (driving and radar);
- Unit History-the SO;
- Accused’s Charges;
- List of Civilian Witnesses;
- Communication Recordings;
- GPS Data Video-the SO’s cruiser;
- ICC footage of the transport of CW #6 by YRP;
- ICC footage from the SO’s cruiser; and
- Radar screen shots.
Materials obtained from Other Sources
The SIU obtained and reviewed the following records from non-police sources:- CCTV footage from a residence on Keele Street;
- Photographs taken by CW #7; and
- York Emergency Medical Services Incident and Ambulance Call Reports.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU, which included interviews with the SO and several civilian eyewitnesses. The investigation was also assisted by video recordings captured by the cruiser’s ICC and forensic examination of the scene. Just before 7:30 a.m. on July 24, 2020, a black Honda Accord was traveling southward in the southbound lane of Keele Street. Just north of Dearbourne Avenue, the Honda passed a police cruiser which was stationary facing north by the side of the northbound lane. Inside the cruiser, performing speed enforcement on southbound traffic, was the SO. He had clocked CW #6 traveling at 125 km/h and decided to pull him over for a speeding infraction.
The SO activated his emergency lights, executed a U-turn and began to pursue the Honda for a short distance before realizing he would not be able to catch up to the vehicle. The Honda’s speed increased to upwards of 150 km/h after passing the cruiser. The officer turned off his lights and reduced his speed as the Honda crested a hill in the road and disappeared from view.
At about the same time, the driver of the Honda lost control of the vehicle in the area of Cavell Avenue, veered into the northbound lane and struck a cyclist traveling north by the side of the road. Mr. Bertini was the cyclist. He was killed instantly as a result of the impact.
Following the impact with Mr. Bertini and his bicycle, the Honda struck an embankment by the side of the road and was sent airborne for a distance before coming to rest in the east ditch of Keele Street south of Cavell Avenue.
As the SO approached Cavell Avenue, he was directed to the site of the collision by a number of civilians in the area. The officer approached the wreckage, positioned his cruiser to block traffic, and exited to investigate what had occurred. Lying a short distance from the vehicle was Mr. Bertini. The driver of the Honda had left the scene.
CW #6 was later discovered walking a short distance from the collision scene. He was arrested as the suspected driver of the Honda and taken into custody.
Cause of Death
The preliminary cause of death was determined to be “Blunt force injuries.”
The SO activated his emergency lights, executed a U-turn and began to pursue the Honda for a short distance before realizing he would not be able to catch up to the vehicle. The Honda’s speed increased to upwards of 150 km/h after passing the cruiser. The officer turned off his lights and reduced his speed as the Honda crested a hill in the road and disappeared from view.
At about the same time, the driver of the Honda lost control of the vehicle in the area of Cavell Avenue, veered into the northbound lane and struck a cyclist traveling north by the side of the road. Mr. Bertini was the cyclist. He was killed instantly as a result of the impact.
Following the impact with Mr. Bertini and his bicycle, the Honda struck an embankment by the side of the road and was sent airborne for a distance before coming to rest in the east ditch of Keele Street south of Cavell Avenue.
As the SO approached Cavell Avenue, he was directed to the site of the collision by a number of civilians in the area. The officer approached the wreckage, positioned his cruiser to block traffic, and exited to investigate what had occurred. Lying a short distance from the vehicle was Mr. Bertini. The driver of the Honda had left the scene.
CW #6 was later discovered walking a short distance from the collision scene. He was arrested as the suspected driver of the Honda and taken into custody.
Cause of Death
Relevant Legislation
Sections 219 and 220, Criminal Code -- Criminal negligence causing death
219 (1) Every one is criminally negligent who
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and(b) in any other case, to imprisonment for life.
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 July 24, 2020, while riding his bicycle north on Keele Street in King City, Daniel Bertini was mortally injured when he was struck by a southbound vehicle. As the southbound vehicle had been briefly pursued by a YRP cruiser just prior to the collision, the SIU was notified and commenced an investigation. The driver of the cruiser – 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 Mr. Bertini’s death.
The offences that arise for consideration are dangerous driving causing death and criminal negligence causing death contrary to sections 320.13(3) and 220 of the Criminal Code, respectively. The former is predicated, in part, on conduct that that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is a more serious offence and requires a finding that the conduct in question constitutes a marked and substantial departure from a reasonable level of care. In the instant case, the issue is whether the SO was derelict in the manner in which he operated his cruiser during his short pursuit of the Honda and, if so, whether his dereliction caused or contributed to the collision that took Mr. Bertini’s life and was sufficiently wanting as to attract criminal sanction. In my view, there are no reasonable grounds in the evidence to believe that the SO transgressed the limits of care prescribed by the criminal law.
The evidence establishes that the SO conducted himself professionally and with due care and regard for public safety. He was in the lawful execution of his duties performing speed enforcement when he clocked the Honda traveling at 125 km/h, more than twice the 60 km/h speed limit. In the circumstances, the SO was within his rights to initiate a pursuit for a serious traffic infraction. The evidence indicates he did so safely, activating his emergency lights as the Honda approached his location and performing a U-turn to travel south on Keele Street. The SO briefly reached a speed in excess of 100 km/h, which is not surprising as he attempted to make up ground on a speeding vehicle. However, the officer quickly realized the Honda was too far ahead and, in my view, wisely shut down the pursuit. By the time of the collision, the cruiser was well back of the Honda Accord in distance and time. There is no suggestion on this record that the SO unduly fueled the Honda driver’s reckless driving or otherwise prevented the driver from slowing the vehicle and adopting a safer course. Tragically, the Honda continued at speed, striking and killing Mr. Bertini whose only fault was being in the wrong place at the wrong time.
In the result, as I am satisfied on the aforementioned-record that the SO comported himself at all times within the law in the course of a very brief pursuit of the Honda, there is no basis for proceeding with criminal charges against the officer. The file is closed.
Date: February 1, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offences that arise for consideration are dangerous driving causing death and criminal negligence causing death contrary to sections 320.13(3) and 220 of the Criminal Code, respectively. The former is predicated, in part, on conduct that that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is a more serious offence and requires a finding that the conduct in question constitutes a marked and substantial departure from a reasonable level of care. In the instant case, the issue is whether the SO was derelict in the manner in which he operated his cruiser during his short pursuit of the Honda and, if so, whether his dereliction caused or contributed to the collision that took Mr. Bertini’s life and was sufficiently wanting as to attract criminal sanction. In my view, there are no reasonable grounds in the evidence to believe that the SO transgressed the limits of care prescribed by the criminal law.
The evidence establishes that the SO conducted himself professionally and with due care and regard for public safety. He was in the lawful execution of his duties performing speed enforcement when he clocked the Honda traveling at 125 km/h, more than twice the 60 km/h speed limit. In the circumstances, the SO was within his rights to initiate a pursuit for a serious traffic infraction. The evidence indicates he did so safely, activating his emergency lights as the Honda approached his location and performing a U-turn to travel south on Keele Street. The SO briefly reached a speed in excess of 100 km/h, which is not surprising as he attempted to make up ground on a speeding vehicle. However, the officer quickly realized the Honda was too far ahead and, in my view, wisely shut down the pursuit. By the time of the collision, the cruiser was well back of the Honda Accord in distance and time. There is no suggestion on this record that the SO unduly fueled the Honda driver’s reckless driving or otherwise prevented the driver from slowing the vehicle and adopting a safer course. Tragically, the Honda continued at speed, striking and killing Mr. Bertini whose only fault was being in the wrong place at the wrong time.
In the result, as I am satisfied on the aforementioned-record that the SO comported himself at all times within the law in the course of a very brief pursuit of the Honda, there is no basis for proceeding with criminal charges against the officer. The file is closed.
Date: February 1, 2021
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.