SIU Director’s Report - Case # 22-PVI-132
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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.
- 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 a 44-year-old man, a 38 year-old woman and a 3-year old child (“Complainant #1”, “Complainant #2”, and “Complainant #3”, respectively) suffered.
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 a 44-year-old man, a 38 year-old woman and a 3-year old child (“Complainant #1”, “Complainant #2”, and “Complainant #3”, respectively) suffered.
The Investigation
Notification of the SIU
On May 20, 2022, at 5:25 p.m., the Ontario Provincial Police (OPP) notified the SIU of injuries that had been sustained by the Complainants. According to the OPP, on May 20, 2022, at 8:25 a.m., the Subject Official (SO) with the OPP Organized Crime Unit was operating an unmarked police vehicle when he witnessed a traffic infraction. He went after the vehicle, operated by Complainant #1, to identify the licence plate of Complainant #1’s vehicle. Complainant #1's vehicle crested a hill and collided head-on with a Dodge Dart driven by the Civilian Witness (CW) #1. The SO identified himself on scene as a police officer.
A passenger in Complainant #1’s vehicle was airlifted to Sunnybrook Health Sciences Centre. At the hospital, it was determined that Complainant #2 had suffered five broken ribs, a broken sternum, a broken shoulder, a broken right femur, and broken toes in her right foot. A passenger in CW #1’s vehicle, a child (Complainant #3), was airlifted to the Hospital for Sick Children in Toronto having suffered a broken right arm. CW #1 and her son were taken to Peterborough Regional Health Centre, treated for minor injuries, and released.
The Team
Date and time team dispatched: 05/20/2022 at 6:00 p.m.Date and time SIU arrived on scene: 05/20/2022 at 6:21 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Persons (aka “Complainants”)
Complainant #1 Declined an interviewComplainant #2 Interviewed
Complainant #2 3-year-old child; not interviewed
Complainant #2 was interviewed on June 15, 2022.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
The civilian witnesses were interviewed between May 21, 2022, and June 17, 2022.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Not interviewed; notes received and reviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Interviewed
The witness officials were interviewed between May 26, 2022, and June 8, 2022.
Evidence
The Scene
The scene was located on Buckhorn Road (County Road 23) in Selwyn Township about 230 metres north of 11th Line and about 1.2 kilometres south of Selwyn Corner at 12th Line. Buckhorn Road was a two-lane highway. One lane of traffic went northbound, and the other lane of traffic went southbound.A blue Dodge Dart driven by CW #1 was in the northbound traffic lane of Buckhorn Road. The Dodge Dart was facing southbound and had severe front-end damage. A black Audi S3 was in the grass on the east side of Buckhorn Road and facing west. The Audi was severely damaged as well.
Figure 1 –Photo of collision scene
Forensic Evidence
No submissions were made to CFS.No GPS data was available for the SO’s police cruiser.
Expert Evidence
The following is a summary of the OPP collision reconstruction report, dated May 31, 2022.Background
The weather was clear and dry at the time of the collision, and was not a factor. The collision occurred during the daylight hours and lighting was not a factor. The posted speed limit for Buckhorn Road was 80 kilometres per hour (km/h).The Audi was being driven southbound on Buckhorn Road by a male driver, Complainant #1, with a lone female passenger, Complainant #2. The Dodge was being driven northbound on Buckhorn Road by a female driver, CW #1, with two child passengers in the rear.
North of the collision area, the road markings indicated that only northbound traffic was permitted to make overtaking maneuvers, indicated by a solid/dashed centre line. For southbound traffic on Buckhorn Road, there was a crest of a hill to the north of the collision area. This crest would have obstructed southbound traffic from seeing northbound vehicles temporarily.
Analysis
An analysis of the Airbag Control Module (ACM) within the Audi determined that the vehicle was travelling 165 km/h 5 seconds prior to the collision and between 154 - 137 km/h when the collision occurred. An analysis of the ACM within the Dodge determined that the vehicle was travelling 86.2 km/h 5 seconds prior to the collision and between 57.8 - 53.6 km/h when the collision occurred.The ACM analysis also showed there was no braking from the driver of the Audi until approximately 0.5 seconds prior to the collision, and that the driver of the Dodge began to apply the brakes about 1.3 seconds prior to the collision.
The Collision
The vehicles struck each other head-on, slightly offset from centre, within the east shoulder of Buckhorn Road, between Selwyn Road and the 11th Line of Smith. The offset (passenger side to passenger side) nature of the collision caused the Dodge to rotate approximately 180 degrees. It came to rest mostly in the northbound lane of Buckhorn Road, facing south. The force of the impact caused the engine of the Dodge to be completely dislodged, and it was deposited onto the ground slightly in front of the Dodge. The Audi continued southbound post-collision, rotating through the east side shoulder and ditch. As it struck the east side of the ditch, the Audi created a large divot of disturbed dirt
in the grass. As it continued rotating and travelling south, the Audi left two furrowed tire marks in the grass on the east side of the ditch, as well as various vehicle components and fluids. The Audi rolled laterally in the grass at the end of the tire gouges, causing deformation to the right side of the roof, as well as detaching the sunroof assembly. The Audi came to rest in the grassy area east of the ditch, facing approximately northwest.
The passenger of the Audi, Complainant #2, was trapped in the vehicle and emergency personnel had to remove the right-side doors and the right side “B” pillar to gain access.
Figure 2 – Photo of dislodged vehicle parts dislodged
Figure 3 – Photo of damaged Audi
Figure 4 – Photo of damaged Dodge Dart
Materials Obtained from Police Service
Upon request, the SIU obtained the following materials from the OPP between May 25, 2022, and September 13, 2022:- Event Details report;
- General Report;
- Involved Persons List;
- Notes – WO #2;
- Notes – WO #1;
- Notes- WO #5;
- Notes- WO #4;
- Notes- WO #3;
- Communications recordings;
- Collision Reconstruction Report;
- Policy-Suspect Apprehension Pursuit;
- Scene photos;
- Scale scene diagrams; and
- Statement from Complainant #1.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources: - Photos received from CW #1;
- Photos received from CW #4; and
- Medical records-Peterborough Regional Health Centre.
Incident Narrative
The evidence collected by the SIU, including interviews of civilian and police witnesses, gives rise to the following scenario. As was his legal right, the SO declined an interview with the SIU and to authorize the release of his notes.
In the morning of May 20, 2022, Complainant #1 was operating an Audi S3 southbound on Buckhorn Road from Line Road 17. In the passenger seat with him was an acquaintance, Complainant #2. They had started their journey southbound passing several vehicles in the northbound lane. These vehicles included one, and possibly a second, school bus.
The driving behaviour of the Audi caught the attention of an off-duty officer, the SO. Operating an unmarked police pick-up truck southbound on Buckhorn Road, the officer began to chase after Complainant #1, also passing vehicles on the single southbound lane.
The pair continued south for a distance at speed. About a couple of hundred metres north of 11 Line, unable to re-enter the southbound lane after passing one or more vehicles, Complainant #1 collided head-on with a northbound motorist, CW #1. The collision sent the Audi careening into the grassy ditch east of the roadway, where it came to a stop. CW #1’s vehicle came to a rest on the road, still in the northbound lane.
Firefighters, paramedics and police officers responded to the scene.
The persons in the vehicles were each sent to hospital. Complainant #2 suffered multiple fractures across her body. Complainant #3 (CW #1’s 3-year-old son) suffered a fractured right arm. Complainant #1 was reportedly diagnosed and treated for an undisclosed serious injury.
Complainant #1 was arrested for dangerous driving causing bodily harm.
In the morning of May 20, 2022, Complainant #1 was operating an Audi S3 southbound on Buckhorn Road from Line Road 17. In the passenger seat with him was an acquaintance, Complainant #2. They had started their journey southbound passing several vehicles in the northbound lane. These vehicles included one, and possibly a second, school bus.
The driving behaviour of the Audi caught the attention of an off-duty officer, the SO. Operating an unmarked police pick-up truck southbound on Buckhorn Road, the officer began to chase after Complainant #1, also passing vehicles on the single southbound lane.
The pair continued south for a distance at speed. About a couple of hundred metres north of 11 Line, unable to re-enter the southbound lane after passing one or more vehicles, Complainant #1 collided head-on with a northbound motorist, CW #1. The collision sent the Audi careening into the grassy ditch east of the roadway, where it came to a stop. CW #1’s vehicle came to a rest on the road, still in the northbound lane.
Firefighters, paramedics and police officers responded to the scene.
The persons in the vehicles were each sent to hospital. Complainant #2 suffered multiple fractures across her body. Complainant #3 (CW #1’s 3-year-old son) suffered a fractured right arm. Complainant #1 was reportedly diagnosed and treated for an undisclosed serious injury.
Complainant #1 was arrested for dangerous driving causing bodily harm.
Relevant Legislation
Section 320.13 (1) Criminal Code – Dangerous operation causing bodily harm or death
320.13 (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
Complainant #2, Complainant #1 and Complainant #3 were seriously injured in a motor vehicle collision on May 20, 2022. As one of the vehicles involved in the collision was being pursued at the time by a police vehicle, the SIU was notified and initiated an investigation. The driver of the police vehicle – the SO – was identified as a subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the collision and resultant injuries.
The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, the offence is predicated, 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. In the instant case, the issue is whether there was a want of care in the manner in which the SO operated his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
There are features of the SO’s conduct that are subject to legitimate scrutiny. Seemingly concerned with the manner in which Complainant #1 was driving, in particular, his overtake of a school bus in an opposing lane of traffic, the off-duty officer took it upon himself to accelerate after the Audi even though he was operating an unmarked police vehicle and, therefore, prohibited from pursuing a motor vehicle by virtue of OPP policy. He did so at speed and while himself overtaking cars on the single lane roadway.
On the other hand, the SO, as witness to Complainant #1’s aggressive driving, was arguably within his rights under the regulation [1] governing police pursuits in pursuing the Audi for the purpose, as he indicated in post-incident utterances to another individual at the scene, of ascertaining the vehicle’s licence plate marker. Whether the SO ought to have discontinued the pursuit at some point earlier than the collision is also arguable given Complainant #1’s risky driving. Be that as it may, there is no evidence of third-party motorists having had to take evasive action to avoid the officer’s vehicle. Nor is there reliable evidence that the SO left Complainant #1 no option other than to continue to dangerously pass other vehicles. Complainant #2 says that the SO’s vehicle was so close to the Audi moments before the collision that she was concerned the officer was about to bump them. Her evidence, however, is undermined to an extent by the accounts of other motorists on the roadway. It is also undercut by what appears to be an effort to minimize Complainant #1’s culpability in the matter. For example, Complainant #2 made a point of noting that the centre line was dotted in the area of Complainant #1’s last overtake just before the collision, thereby allowing Complainant #1’s maneuver in the opposing lane of traffic. In fact, it was not. She also failed to mention vehicles other than the school bus that Complainant #1 had passed in the opposing lane of traffic before the SO’s involvement. That evidence came from other motorists.
In the final analysis, when the SO’s indiscretions are weighed in the balance with the extenuating considerations, I am unable to reasonably conclude that the officer transgressed the limits of care prescribed by the criminal law. As such, there is no basis for proceeding with charges in this case. The file is closed.
Date: September 16, 2022
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. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, the offence is predicated, 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. In the instant case, the issue is whether there was a want of care in the manner in which the SO operated his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
There are features of the SO’s conduct that are subject to legitimate scrutiny. Seemingly concerned with the manner in which Complainant #1 was driving, in particular, his overtake of a school bus in an opposing lane of traffic, the off-duty officer took it upon himself to accelerate after the Audi even though he was operating an unmarked police vehicle and, therefore, prohibited from pursuing a motor vehicle by virtue of OPP policy. He did so at speed and while himself overtaking cars on the single lane roadway.
On the other hand, the SO, as witness to Complainant #1’s aggressive driving, was arguably within his rights under the regulation [1] governing police pursuits in pursuing the Audi for the purpose, as he indicated in post-incident utterances to another individual at the scene, of ascertaining the vehicle’s licence plate marker. Whether the SO ought to have discontinued the pursuit at some point earlier than the collision is also arguable given Complainant #1’s risky driving. Be that as it may, there is no evidence of third-party motorists having had to take evasive action to avoid the officer’s vehicle. Nor is there reliable evidence that the SO left Complainant #1 no option other than to continue to dangerously pass other vehicles. Complainant #2 says that the SO’s vehicle was so close to the Audi moments before the collision that she was concerned the officer was about to bump them. Her evidence, however, is undermined to an extent by the accounts of other motorists on the roadway. It is also undercut by what appears to be an effort to minimize Complainant #1’s culpability in the matter. For example, Complainant #2 made a point of noting that the centre line was dotted in the area of Complainant #1’s last overtake just before the collision, thereby allowing Complainant #1’s maneuver in the opposing lane of traffic. In fact, it was not. She also failed to mention vehicles other than the school bus that Complainant #1 had passed in the opposing lane of traffic before the SO’s involvement. That evidence came from other motorists.
In the final analysis, when the SO’s indiscretions are weighed in the balance with the extenuating considerations, I am unable to reasonably conclude that the officer transgressed the limits of care prescribed by the criminal law. As such, there is no basis for proceeding with charges in this case. The file is closed.
Date: September 16, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) O. Reg. 266/10 – “Suspect Apprehension Pursuits” [Back to text]
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.