Director's Report Details

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.

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: 

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 of a 23-year-old man (“Complainant #1”) and a 22-year-old woman (“Complainant #2”).

Notification of the SIU

On August 23, 2022, at 12:33 p.m., the York Regional Police (YRP) notified the SIU of an injury to Complainant #1.

The Scene

The collision occurred beside a private driveway, with the area of impact in the northbound lane of Dufferin Street.

Complainant #1 was driving a 2018 Audi A3.

The SO was driving a 2021 Dodge Charger.

Both vehicles were black in colour.

Traffic in the area was not controlled by any signs or traffic signal light. It was daylight. The road was straight and level with pavement markings that were not obscured or faded.

The front right corner of the SO’s police vehicle impacted the rear left quarter panel of the 2018 Audi, operated by Complainant #1.




Figure 1 – Photo of the SO’s vehicle (frontal damage)

Expert Evidence

The following is a summary of the conclusions reached by a SIU collision reconstructionist.

Technical Collision Investigation

The SO was southbound with his emergency equipment activated. He attempted to pass a motor vehicle on the left by crossing the centre line into the northbound lane. Complainant #1 was also southbound and attempting to make a left turn into a driveway in front of the SO’s cruiser. The SO was unable to avoid a collision and the police vehicle struck the driver’s side of Complainant #1’s vehicle, which rolled over into the ditch.

Crash Data Recorder Report

On August 30, 2022, the air bag control module (ACM) of the SO’s police vehicle was downloaded by a member of the YRP Major Collision Investigation Unit. Though the air bags did not deploy during the collision, a “non-deployment event” was captured which indicated the following.

Between four and five seconds prior to the collision, the SO drove at a rate of speed of 92 km/h and 87 km/h. The accelerator pedal was not applied. The brake was on. Three seconds prior to the collision, the SO drove at a rate of speed of 79 km/h. The accelerator pedal was applied at 21 percent and the brake was on. Two seconds prior to the collision the SO drove at a rate of speed of 80 km/h. The accelerator pedal was applied at 87 percent and the brake was off. At 1.1 seconds prior to the collision, the SO applied the brakes. The anti-lock brake system activated. When the collision occurred, the SO was driving at a rate of speed of 58 km/h. The brake was on.

On September 29, 2022, the ACM of Complainant #1’s Audi was downloaded by the YRP. An air bag deployment event was captured which indicated the following.

During the time between four seconds prior to the collision and one second prior to the collision, Complainant #1 slowed from 65 km/h to 21 km/h. The brake pedal was applied. The accelerator pedal was not activated. Starting at about two seconds prior to the collision, Complainant #1 began to steer to the left. One second prior to the collision, Complainant #1 took his foot off the brake pedal. He applied the accelerator pedal 100 percent and increased his speed to 23 km/h at about the time of impact. Neither Complainant #1 nor his front seat passenger, Complainant #2, were wearing their seat belts.

Findings

The SO drove, with his flashing emergency lights and siren activated, eastbound on 17th Side Road and then southbound on Dufferin Street at a rate of speed exceeding the posted speed limit.

At a residential driveway, Complainant #1 braked and slowed preparing to turn left into a private driveway. CW #2 braked and slowed behind him. The SO approached CW #2’s Tesla. The SO braked and slowed. Northbound vehicles moved to the right towards the gravel shoulder consistent with yielding the northbound lane to the SO. The SO had his flashing emergency lights and siren activated. In addition, he sounded his air horn. He accelerated and crossed over the centre line marking to pass CW #2 and Complainant #1.
The SO began to pass CW #2 and was presented with Complainant #1 in the northbound lane turning left across his intended path southbound. The SO immediately applied the brakes hard but was unable to avoid a collision.

Forensic Evidence

Global Positioning System (GPS) Vehicle Data – Police Cruiser

The following is a summary of the information derived from the GPS data.

Between 3:15 p.m. to 3:18 p.m., the SO was stationary on 17th Side Road about 1.3 kilometres west of Dufferin Street. At 3:19 p.m., the SO drove eastbound on 17th Side Road at 91 km/h and then 89 km/h to Dufferin Street. His average speed was 86 km/h in the posted 50 km/h zone.

At 3:20 p.m., the SO drove southbound on Dufferin Street, about 1.2 kilometres, at speeds recorded as 95 km/h, 118 km/h, 116 km/h, and then 83 km/h. He maintained an average speed of 92 km/h in the posted 80 km/h zone.

At 3:20:53 p.m., the SO was stationary at the scene of the collision where he remained.

Video/Audio/Photographic Evidence [1]

Police Communications

At 3:22:25 p.m., Complainant #2 called 911 to report a motor vehicle collision involving a police vehicle. She further reported that the involved police vehicle “T-boned” their vehicle, causing their vehicle to flip as they attempted a left turn into their residence, travelling about 30 km/h. She further requested assistance for a man - Complainant #1 - stuck in a vehicle.

At 3:30:36 p.m., a woman called 911 to report a two-vehicle collision with rollover on Dufferin Street north of King. One of the involved vehicles was a Dodge Charger, which had its emergency lights activated. The woman reported that a man [now known to be Complainant #1] had been extricated from a vehicle and a police officer was tending to him.

The woman learned that Complainant #2 and Complainant #1 were the only two occupants of the vehicle and were turning when the police vehicle struck their vehicle. She believed Complainant #2 and Complainant #1 were injured.

Tesla Dash Cam Video

On August 25, 2022, at 1:30 p.m., the SIU received from the YRP a copy of the footage from the Model 3 Telsa operated by CW #2. The 59 seconds-long recordings contain footage from the front and rear-facing cameras, as well as the camera to the left or driver’s side.


Tesla Front Camera

The material events in question are clear on the evidence collected by the SIU, including interviews with Complainant #1, Complainant #2 and the SO, statements from civilian eyewitnesses, and video footage that captured the incident.

At about 3:20 p.m. of the day in question, Complainant #1 was operating an Audi sedan southbound on Dufferin Street. In the passenger seat was his partner – Complainant #2. They had had lunch out and were heading back to their residence. They approached the home and Complainant #1 activated his turn signal, slowed down, almost to a complete stop, before starting into a left-hand turn across the northbound lane towards his driveway. As Complainant #1 did so, the driver’s side of his vehicle was struck by a southbound cruiser.

The SO was attempting to pass southbound traffic, including the Audi, en route to the scene of an ‘impaired driver’ call for service. The officer had been conducting traffic enforcement on 17th Side Road between Keele Street and Dufferin Street when he was dispatched to attend the call. There was some urgency to get there quickly as officers already on scene were said to be fighting with the impaired driver and having difficulty securing him in handcuffs. His emergency equipment activated, the SO travelled east on 17th Side Road and then south on Dufferin Street. Seeing northbound vehicles pulling to the side of the road on his advance, the officer had just overtaken a southbound vehicle in the northbound lane when he was confronted by Complainant #1’s Audi turning left into his path.

The collision sent the Audi careening in a southeast direction and caused it to flip. It eventually came to a rest in the ditch on the east side of the road south of Complainant #1’s residence. Complainant #1 was pinned by the vehicle and unable to get out until the officer, with the help of other civilians arriving to render assistance, were able to lift the vehicle sufficiently to free him. Complainant #2 was able to crawl through a rear window that had been smashed out by the SO with his baton.

Complainant #1 and Complainant #2 were transported to hospital. The former was diagnosed with a fractured hip and concussion. The latter had suffered a concussion.

Section 320.13 (1) Criminal Code – Dangerous operation causing bodily harm

On August 22, 2022, Complainant #1 and Complainant #2 were seriously injured in a motor vehicle collision in Aurora. The vehicle they occupied had been struck by a YRP cruiser. The driver of the YRP vehicle – the SO – was identified as the subject official in the ensuing SIU investigation. 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.

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.

The SO was in the execution of his lawful duties at the time of the incident. He had been dispatched to the scene of a reported struggle of some sort between officers and an impaired driver. Not knowing exactly what was going on, the officer was entitled to respond with some speed.

With respect to the officer’s speed, while high at times, they did not unduly jeopardize public safety, nor was it a significant factor in the collision itself. The SO exceeded the speed limit, travelling for a period at upwards of 90 km/h on 17th Side Road (a 50 km/h zone) and 118 km/h on Dufferin Street (an 80 km/h zone). He did so, however, with his emergency equipment activated, in dry and clear conditions with only moderate roadway traffic, and without any evidence that his speeds caused other traffic to take evasive action. By the time he was southbound approaching the scene of the collision, the SO was travelling between 80 and 90 km/h.

The SO’s overtaking maneuver is subject to legitimate scrutiny, but here too any criticisms of the officer’s conduct fall short of establishing that he failed to comport himself with due care and regard for public safety. It does not appear that Complainant #1 did much wrong in connection with the collision. He slowed in his lane, activated his signal, and waited for traffic to clear before he embarked on his left-hand turn into his driveway. In the circumstances, it may be that the SO ought to have exercised greater care in ensuring that he could complete his overtake safely before attempting it. That said, the SO had his siren and emergency lights on, and had seen northbound traffic pull to the side. It also would have appeared to the SO, and did appear, that Complainant #1 was slowing in response to the officer’s presence behind him. It was only as Complainant #1 turned left that the SO realized he had misjudged the situation, but by then it was too late.

In the final analysis, when the totality of the SO’s conduct is weighed in the balance, there are no reasonable grounds to believe that the officer transgressed the limits of care prescribed by the criminal law. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: December 21, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit