SIU Director’s Report - Case # 20-PVI-340
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that 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 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries sustained by a 35-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries sustained by a 35-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On December 5, 2020, at 0046 hrs, the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury.According to the OPP, around midnight, OPP officers [now known to be the Subject Official (SO) and Witness Official (WO) #4] had a Reduce Impaired Driving Everywhere (RIDE) sobriety check lane set up on the westbound off-ramp from Highway 401 at Highway 33 [now known to by County Road 33]. A westbound Toyota RAV4 sport utility vehicle (SUV) [now known to be operated by the Complainant] entered the off-ramp from the westbound lanes of Highway 401. The Complainant had apparently observed the RIDE check lane where the SO and WO #4’s police vehicle was stationary with emergency lights on and turned around and went westbound on Highway 401. The SO and WO #4 turned off their emergency lights and went to look for the RAV4. They travelled westbound and went as far as the ‘ONroute’ rest stop [now known to have actually been County Road 40] to search for the SUV. They did not see the vehicle. They returned to the RIDE check lane and approximately 10 minutes later, Hastings-Quinte Paramedic Services (H-QPS) reported that they had responded to a collision at the Highway 401 and County Road 40 off-ramp. Paramedics found the Complainant had been ejected from the SUV. It appeared that the Complainant lost control of the SUV on the off-ramp and left the roadway rolling several times. At the time of notification, the Complainant was en route to Kingston General Hospital (KGH) with severe lacerations to his face and a collapsed lung [now known to have been serious life-threatening head, orthopedic and internal injuries].
The Team
Date and time team dispatched: 12/05/2020 at 1:21 a.m.Date and time SIU arrived on scene: 12/05/2020 at 3:30 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators (FIs) assigned: 2
Number of SIU Collision Reconstructionists assigned: 1
Affected Persons (aka “Complainants”):
The Complainant 35-year-old male interviewed on January 14, 2021Civilian Witnesses
CW #1 Next-of-Kin; not interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Not interviewed; declined
CW #6 Interviewed
CW #7 Next-of-Kin; not interviewed
The civilian witnesses were interviewed between December 6, 2020 and December 17, 2020.
Subject Officials
SO Declined interview Witness Officials
WO #1 Interviewed WO #2 Notes reviewed; interviewed deemed unnecessary
WO #3 Notes reviewed; interviewed deemed unnecessary
WO #4 Interviewed
The witness officials were interviewed between January 11, 2021 and January 15, 2021.
Evidence
The Scene
SIU investigators were dispatched at 1:21 a.m., and began arriving at the scene at 3:30 a.m.The scene was at the westbound, Highway 401 off-ramp at County Road 40 that adjoins the westbound, Highway 401 on-ramp for County Road 40. A single motor vehicle [now known to have been operated by the Complainant] was upright and resting in a ditch near the curved portion of the on-ramp. The front of the vehicle was facing northwest. A large debris field was strewn across the roadway. The vehicle’s sunroof was in the debris field.
Five, heavily gouged areas were visible in the grassy area east of where the vehicle was resting. Tire marks were visible from the westbound off-ramp near the Exit 522 sign, travelling through the grassy area to where the vehicle was resting. It was dark; there was no artificial, overhead street lighting. The pavement was moist, possibly from overnight fog. Road markings were visible.
A 30 km/h off-ramp speed sign was posted near the Exit 522 sign. The ambient temperature was approximately 0° Celsius. Coloured traffic cones placed earlier by local emergency services personnel were resting near the above-mentioned tire marks and gouges. There was extensive damage to all parts of the vehicle, including the roof.
Scene Diagram
Forensic Evidence
Global Positioning System (GPS) – the SO’s cruiser
The GPS data show the SO’s vehicle stationary at the RIDE check lane at 10:54:09 p.m. About 13 minutes later, at 11:07:25 p.m., the SO, with WO #4 in the front passenger seat of the SO’s vehicle, were westbound starting their search for the Complainant’s SUV that had turned away from their RIDE check lane and gone westbound on Highway 401.
By 11:07:41 p.m., the SO was traveling fully westbound at 85 km/h and, by 11:08:27 p.m. [approximately 46 seconds later and 1.88 kilometres west of their RIDE check lane], the SO had achieved a speed of 179 km/h.
By 11:08:39 p.m. [approximately 12 seconds later], the SO was on the off-ramp for westbound Highway 401 traffic at County Road 40 traveling at 114 km/h, and reducing his speed as he drove past the bent metal lane delineator post, the gouge marks in the median, the debris field with the Complainant in it, and the Complainant’s SUV upright in the weeds at the west edge of the on-ramp at County Road 40 for westbound Highway 401 traffic.
The SO’s speed decreased eventually to 2 km/h as he patrolled the off-ramp to its end at the traffic light-controlled intersection of the off-ramp and County Road 40, where at 11:09:06 p.m., the SO went north to the carpool parking lot searching, according to WO #4, for the Complainant’s SUV before returning to their RIDE check lane.
Crash Data Recorder (CDR) Data – the Complainant’s vehicle
According to the scaled diagram completed by an SIU FI, the second most westerly large gouge in the grassy area of the scene was centred 13.2 metres east of the east edge of the County Road 40 to westbound Highway 401’s on-ramp. This area was 36.2 metres east of the resting location of the RAV4, and 36.4 metres west of the east edge of the eastbound Highway 401 to County Road 40 off-ramp. This gouge mark was where the most recent event occurred as the slide-to-stop from 88 km/h to zero km/h, over 36.2 metres in three seconds, calculates to a co-efficient of friction of 0.83, which was reasonable.
Event Record Summary at Retrieval
Expert Evidence
SIU Reconstructionist’s Findings
Video/Audio/Photographic Evidence
The SIU searched for and/or obtained audio, video and/or photographic records of relevance, as set out below. Police Communications Recordings
There were numerous OPP Provincial Communications Centre ">PCC radio communications with and from police officers, including WO #1, responding to the collision scene and, after their arrival, efforts to establish the identity of the vehicle owner and operator as well as lane closure/diversion equipment/services.
One police officer was heard cautioning responding officers to be careful as there was “shear ice” on the Dickson bridge.
At eight minutes into the audio recording, a police officer [believed to be WO #1] reported, “Two of my guys [meaning the SO and WO #4] were doing the RIDE program on one of the 401 off-ramps, vehicle turned around – the one that’s involved here in the collision, turned around on the ramp, took off on them, they attempted to block the vehicle, never activated any emergency equipment, and the guy, ah, this is the collision.” WO #1 went on to report that the Complainant had serious head trauma and collapsed lungs, that he needed a Traffic Sergeant and SIU Liaison.
The OPP Provincial Communications Centre ">PCC operator asked for location information regarding the RIDE lane and WO #1 reported that it was about two kilometres from the collision scene. He added that he did not believe the SO caught up to the RAV4 as it was going so fast, and that he was pretty sure the SO and WO #4 got off Highway 401 at County Road 40 and “didn’t see him”.
At ten minutes and 20 seconds into the recording, with the SO providing information to WO #1 to relay to the OPP Provincial Communications Centre ">PCC operator, WO #1 offered to pass his radio (or telephone) to the SO to speak directly with the operator. The operator interrupted WO #1 saying he probably should not do that, and WO #1 agreed with her. WO #1 reiterated that there were no emergency lights activated at any point. WO #1, in speaking with the SO (heard in the background), told the operator, “They go off here [at County Road 40] and didn’t see the vehicle on the other side of the highway.”
A OPP Provincial Communications Centre ">PCC operator requested confirmation that only the Complainant was involved and that there was no one else ejected/involved. This was confirmed.
Materials Obtained from Police Service
The SIU obtained the following records from the OPP:- 24 Hour Notification – Technical Collision Investigator (TC) report;
- Communications audio recordings;
- Computer Aided Dispatch (CAD) activity report;
- CDR-2T3BK32V69W005161_ACM data from the Complainant’s vehicle;
- Email from OPP regarding further disclosure dated December 16, 2020
- General Report;
- GPS data from the SO’s vehicle;
- Motor Vehicle Collision Report (MVCR) number;
- Notes of all WOs;
- OPP Property Report- cellular telephone;
- OPP Scene Diagrams;
- OPP Technical Collision Investigator field notes;
- OPP training record – WO #4 transcript;
- OPP training record – the SO’s transcript;
- RIDE Program - Police Orders;
- Supplementary Reports (x2);
- Suspect Apprehension Pursuit - Police Orders;
- Scene photographs;
- Vehicle examination field notes relevant to Toyota RAV4; and
- Witness statement of CW #6.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Medical Records – the Complainant;
- Ambulance Call Report;
- Scene photographs taken by CW #3; and
- Scene photographs taken by a civilian.
Incident Narrative
The material events in question are clear on the evidence gathered by the SIU and may be briefly summarized. Shortly after 11:00 p.m. of December 4, 2020, the Complainant, operating a Toyota RAV4 SUV, was traveling west on Highway 401 in the Trenton area. He exited the highway at the County Road 33 off-ramp and came upon an OPP police cruiser, facing west on the shoulder of the ramp. Outside the cruiser were two OPP officers conducting a RIDE spot check. They signaled the Complainant to pull over and stop. The Complainant slowed, performed a U-turn on the ramp, entered onto the on-ramp for Highway 401 westbound traffic off of County Road 33, and accelerated away.
The SO and his partner, WO #4, were the officers at the spot check. Suspecting the Complainant might be impaired and had acted to evade the spot check, the officers entered the cruiser, maneuvered onto the same on-ramp for westbound traffic on the highway, and set after the Toyota RAV4. The SO was driving.
Believing the vehicle they were pursuing might be one up ahead in the distance, exiting onto County Road 40, the SO picked up his pace and followed suit. Catching up to the vehicle on the County Road 40 off-ramp and noting it was not the SUV in question, the officers continued north onto County Road 40 searching the area for the RAV4. After a period, they returned back to their original location at County Road 33.
The Complainant had in fact exited off Highway 401 at the County Road 40 off-ramp some time prior to the officers’ arrival at the location. As he entered a right-bend in the road, the Complainant lost control of his vehicle. The RAV4 left the roadway onto a berm and travelled past the on-ramp for westbound Highway 401 traffic, rolling over in the process and coming to rest on its wheels in an area just west of the ramp’s shoulder. The Complainant had been ejected from his vehicle and came to rest a short distance south of the RAV4.
Several motorists in the area came upon the wreckage and the Complainant’s body, and stopped to render assistance. They contacted 911 and waited for emergency responders to arrive. The fire department and paramedics were the first on the scene followed shortly by a police presence.
Hearing of the collision, the SO and WO #4 returned to the area where they performed traffic duties. From their vantage point, they could see that the RAV4 involved in the wreck was the same vehicle that had taken off on them. They reported this information to their superiors.
The Complainant was taken from the scene to hospital. He was diagnosed with life-threatening brain, orthopedic and multiple other internal injuries.
The SO and his partner, WO #4, were the officers at the spot check. Suspecting the Complainant might be impaired and had acted to evade the spot check, the officers entered the cruiser, maneuvered onto the same on-ramp for westbound traffic on the highway, and set after the Toyota RAV4. The SO was driving.
Believing the vehicle they were pursuing might be one up ahead in the distance, exiting onto County Road 40, the SO picked up his pace and followed suit. Catching up to the vehicle on the County Road 40 off-ramp and noting it was not the SUV in question, the officers continued north onto County Road 40 searching the area for the RAV4. After a period, they returned back to their original location at County Road 33.
The Complainant had in fact exited off Highway 401 at the County Road 40 off-ramp some time prior to the officers’ arrival at the location. As he entered a right-bend in the road, the Complainant lost control of his vehicle. The RAV4 left the roadway onto a berm and travelled past the on-ramp for westbound Highway 401 traffic, rolling over in the process and coming to rest on its wheels in an area just west of the ramp’s shoulder. The Complainant had been ejected from his vehicle and came to rest a short distance south of the RAV4.
Several motorists in the area came upon the wreckage and the Complainant’s body, and stopped to render assistance. They contacted 911 and waited for emergency responders to arrive. The fire department and paramedics were the first on the scene followed shortly by a police presence.
Hearing of the collision, the SO and WO #4 returned to the area where they performed traffic duties. From their vantage point, they could see that the RAV4 involved in the wreck was the same vehicle that had taken off on them. They reported this information to their superiors.
The Complainant was taken from the scene to hospital. He was diagnosed with life-threatening brain, orthopedic and multiple other internal injuries.
Relevant Legislation
Section 320.13, Criminal Code – Dangerous operation of a conveyance
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 December 4, 2020, the Complainant rolled his SUV, suffering serious injuries in the process. As his vehicle had turned away from an OPP RIDE spot check moments earlier, the SIU was notified and commenced an investigation. The SO, one of the officers manning the spot check, was identified as the subject official 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 injuries.
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 and substantial departure from a reasonable level of care in the circumstances. In the instant case, the issue is whether there was any want of care in the manner in which the SO operated his cruiser that caused or contributed to the collision involving the Complainant and/or was sufficiently egregious to attract criminal sanction. In my view, there was not.
The SO was engaged in the discharge of his lawful duties when, upon seeing the Complainant’s RAV4 performing a U-turn away from his RIDE spot check, he entered his cruiser with his partner and sped after the vehicle. The officer had good reason to believe at that point that the Complainant was driving while impaired and had acted to avoid detection. The situation clearly called for further investigation and the SO was within his rights in seeking to stop the Complainant’s SUV.
Thereafter, there is insufficient evidence to conclude that the SO comported himself without due care and regard for public safety as he travelled the two-and-a-half kilometres or so from the RIDE spot check to County Road 40 on Highway 401. It is true that the officer reached incredible speeds in that short distance. According to the GPS data, the cruiser sped westward at speeds upwards of 150 km/h for much of that length of highway, topping out at 179 km/h. By any objective measure, those speeds are inherently dangerous, particularly as the cruiser did not have its emergency lighting activated to give other motorists some advance warning of its presence. That said, the risks associated with the SO’s speeds were to an extent mitigated by what he was trying to accomplish, namely, catch up with another speeding vehicle with a possible impaired driver at the wheel, and the brevity of the engagement. The same is true of the fact that there would have been little traffic on the roadway given the time of day and the absence of any evidence of motorists having had to take evasive action around the cruiser. As for the environmental conditions, these, in my view, were relatively neutral: though some witnesses made mention of fog, poor visibility does not appear to have been a factor.
In the result, aside from perhaps setting the stage for the Complainant’s ill-advised flight from a RIDE spot check and the collision that ensued not much more than a minute later, there are no reasonable grounds to believe that the SO’s conduct was causally connected to the crash in any manner that transgressed the limits of care prescribed by the criminal law. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Date: April 3, 2021
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. The offence is predicated, in part, on conduct that amounts to a marked and substantial departure from a reasonable level of care in the circumstances. In the instant case, the issue is whether there was any want of care in the manner in which the SO operated his cruiser that caused or contributed to the collision involving the Complainant and/or was sufficiently egregious to attract criminal sanction. In my view, there was not.
The SO was engaged in the discharge of his lawful duties when, upon seeing the Complainant’s RAV4 performing a U-turn away from his RIDE spot check, he entered his cruiser with his partner and sped after the vehicle. The officer had good reason to believe at that point that the Complainant was driving while impaired and had acted to avoid detection. The situation clearly called for further investigation and the SO was within his rights in seeking to stop the Complainant’s SUV.
Thereafter, there is insufficient evidence to conclude that the SO comported himself without due care and regard for public safety as he travelled the two-and-a-half kilometres or so from the RIDE spot check to County Road 40 on Highway 401. It is true that the officer reached incredible speeds in that short distance. According to the GPS data, the cruiser sped westward at speeds upwards of 150 km/h for much of that length of highway, topping out at 179 km/h. By any objective measure, those speeds are inherently dangerous, particularly as the cruiser did not have its emergency lighting activated to give other motorists some advance warning of its presence. That said, the risks associated with the SO’s speeds were to an extent mitigated by what he was trying to accomplish, namely, catch up with another speeding vehicle with a possible impaired driver at the wheel, and the brevity of the engagement. The same is true of the fact that there would have been little traffic on the roadway given the time of day and the absence of any evidence of motorists having had to take evasive action around the cruiser. As for the environmental conditions, these, in my view, were relatively neutral: though some witnesses made mention of fog, poor visibility does not appear to have been a factor.
In the result, aside from perhaps setting the stage for the Complainant’s ill-advised flight from a RIDE spot check and the collision that ensued not much more than a minute later, there are no reasonable grounds to believe that the SO’s conduct was causally connected to the crash in any manner that transgressed the limits of care prescribed by the criminal law. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Date: April 3, 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.