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 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 64-year-old woman (“Complainant #1”) and an 80-year-old woman (“Complainant #2”).

Notification of the SIU

The Team

The Scene

Scene Diagram

Route taken by police vehicles to the scene

On October 21, 2022, a SIU forensic investigator and a collision reconstructionist video-recorded and photographed the route the investigation revealed police officers drove pre-collision, beginning at the DRPS 19 District, 1710 Kingston Road, Pickering. WO #3 and WO #2 exited the west driveway of the police facility onto Brock Street, and travelled southbound to the intersection at Kingston Road. They turned left (eastbound) onto Kingston Road West, [1] which was a six-lane roadway (two eastbound, two westbound, and two dedicated buses-only lanes and bicycle lanes). The speed was posted at 60 km/h. The area was primarily populated by businesses on both sides of the roadway. There were overhead streetlights on both sides of the roadway. There was a 60 km/h speed sign at 0.3 kilometres of the route.

The police vehicles crossed the Kingston Road West intersection with Bainbridge Drive. That intersection was controlled with overhead traffic signals. The road then curved to the right near its intersection with Southview Drive.
The next intersection, at Notion Road, was controlled with overhead traffic signals at one kilometre into the route and the road narrowed to two eastbound and two westbound paved lanes. There were streetlights on the north side of the roadway.

At 1.1 kilometres of the route, the police vehicles passed a sign indicating that one was entering Ajax and a speed limit sign that 50 km/h had begun. They crossed over a bridge to the intersection of Elizabeth Street, controlled with overhead traffic lights, 1.3 kilometres into the route. Just past that intersection was a second 50 km/h speed limit sign.

At 1.6 kilometres of the route, Kingston Road West intersected with Linton Avenue on the left (north) and Randall Drive on the right (south).

The route culminated at the collision scene - 1.7 kilometres from 19 District DRPS.

There were no sight impediments to obscure oncoming eastbound traffic at the west end of the traffic island at the scene of the collision.

The distance from 19 District to the scene of collision was 1.7 kilometres. The time to travel that distance, respecting speed limits, traffic, and signal lights, was three minutes and 25 seconds. [2]

Physical Evidence

Vehicle Examinations

Police Vehicle

The SO’s DRPS vehicle was a 2021 white Dodge Charger 4-door marked with the graphics adopted by the service and equipped with roof-top emergency lighting. It had extensive front right collision damage. The collision damaged the filaments and bulbs of the right front headlight system. It had a push-bar on the front that was also severely damaged in the collision. The vehicles driver’s side air bag and knee bag had deployed as had the front passenger air bag and both passenger side air bags.

The emergency lighting and vehicle lighting was checked and, except for the right front corner equipment, the lighting functioned as designed. The siren and horn were tested and operated as designed. The check engine light was active as was the low windshield washer level light. It was equipped with a Panasonic Toughbook in the centre console.

An expert mechanical examination of the vehicle was conducted by a certified mechanic. That process was photographed, and video-recorded. The examination found the vehicle had a broken front right ball joint.


Figure 3 – Front end of the SO’s vehicle

Civilian Vehicle

CW #4 drove a Lexus ES350, 4-door sedan. That vehicle had extensive collision damage to the right rear corner, and the rear bumper and housing was detached from the vehicle. Both right side air bags had deployed. The left rear seatbelt was extended and locked. The vehicle’s lighting system and horn were checked and found to function as designed.

An expert mechanical examination of the vehicle was conducted by a certified mechanic. That process was photographed, and video-recorded. It was in good working order except for the collision damage.


Figure 4 – The Complainants’ vehicle

Forensic Evidence

GPS/AVL

The police vehicle driven by the SO was equipped with a GPS receiver. The SIU secured a copy of the GPS data in the form of an mp4 video file two minutes and 29 seconds long. The video was a moving screen capture of playback from the GPS data and displayed the time, location, and speed of the police vehicle between 7:20 p.m. (prior to when the SO started to back-up WO #4) and 7:27 p.m., when he started that way. The SO drove eastbound along Kingston Road West, to just west of Church Street, where, at about 7:29 p.m., the collision occurred.

The SIU secured GPS data in the form of a pdf document with 11 points of GPS data from 7:27:06 p.m., to 7:29:31 p.m., as the SO drove southbound on Brock Road, turned left, and drove eastbound on Kingston Road West, in response to the radio call.

On October 28, 2022, additional GPS data were retrieved from the GPS equipment in the vehicle itself. About 50 points of GPS were revealed from 7:27:05 p.m. to 7:31:57 p.m.

Between 7:27:05 p.m., and 7:27:29 p.m., the SO was stationary on Brock Road, at Kingston Road West, in the southbound left turn lane, consistent with being about four cars back from the intersection’s stop line. At 7:27:35 p.m., he accelerated to 15 km/h, southbound, in the left turn lane about three cars back from the stop line. At 7:27:41 p.m., he travelled at 10 km/h, southbound just north of the stop line. At 7:27:46 p.m., he reached 56 km/h, eastbound on Kingston Road West, just east of Brock Road, consistent with having just made a left turn from Brock Road and being in the left-most lane. [3] At 7:27:52 p.m., he reached 99 km/h, eastbound about 175 metres east of Brock Road, in the passing lane. At 7:27:58 p.m., he reached 100 km/h eastbound at the traffic light-controlled intersection of Bainbridge Drive. At 7:28:04 p.m., he reached 85 km/h, about halfway between Bainbridge Drive, and Southview Drive, where there were two eastbound lanes. The SO’s position was consistent with driving in the passing lane or in the common centre left turn lane. At 7:28:10 p.m., he reached 82 km/h, just east of Southview Drive. At 7:28:15 p.m., he was at 92 km/h approaching the traffic light-controlled intersection at Notion Road. At 7:28:20 p.m., he drove at 52 km/h, about 30 metres east of Notion Road. At 7:28:25 p.m., he travelled at 89 km/h, about 135 metres east of Notion Road, in the passing or common centre left turn lane, about even with the “Welcome Ajax” sign, the “Pickering Village” sign, and the speed limit sign indicating that a 50 km/h limit had begun. At 7:28:31 p.m., he reached 93 km/h, about 75 metres west of the traffic light-controlled intersection of Elizabeth Street, in the passing lane. At 7:28:36 p.m., he drove at 53 km/h, eastbound on Kingston Road West, at Elizabeth Street. At 7:28:42 p.m., he was at 88 km/h, about halfway between Elizabeth Street and Linton Avenue/Randall Drive. At 7:28:47 p.m., he had accelerated to 119 km/h, about 50 metres east of Linton Avenue/Randall Drive, in the passing lane. At 7:29:07 p.m., he was down to 114 km/h, about 56 metres west of the eastbound stop line at Kingston Road West’s intersection with Church Street (a traffic light-controlled intersection) in the general area of the collision scene. By 7:29:12 p.m., he was stationary 56 metres west of the Kingston Road West and Church Street intersection. That was post collision.

The SO drove 1.6 kilometres in about 81 seconds.

The evidence collected by the SIU, including interviews with police and civilian eyewitnesses, video footage that captured the incident in parts, and data recovered from the involved vehicles relating to their speeds and movements, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the evening of October 1, 2022, CW #4 was operating a Lexus sedan travelling west on Kingston Road west of the Church Street intersection. With him in the front passenger seat was his wife – Complainant #2. His sister-in-law – Complainant #1 – was seated in the rear driver-side seat. They were intending to turn left about 80 metres west of the intersection into a plaza that housed the Mumbay Grill. CW #4 slowed in the westbound passing lane opposite the driveway into the plaza, waited for an eastbound vehicle to clear his location, and started into his turn. The Lexus was straddling the two eastbound lanes when its rear passenger-side was struck by a marked police cruiser.

The operator of the cruiser – the SO – was travelling eastward at speed in the passing lane at the time of the collision. He was en route to a scene involving a male who had cut himself with a knife and was threatening suicide. The intention was to arrive quickly in order to assist a relatively new officer – WO #4 – at a call for service involving a weapon. At five, four, three and two seconds prior to impact, the SO was travelling at 116, 118, 116 and 116 km/h, respectively. At one second prior to impact, about 38 metres from the site of the collision, the officer was travelling at 96 km. He was down to 73 km/h at about the point of impact. These speeds were recorded within a stretch of roadway governed by a 50 km/h speed limit. The cruiser’s emergency lights were active throughout.

Following the collision, the Lexus came to rest facing northeast in the eastbound lanes of Kingston Road, opposite the plaza. The cruiser continued east a distance and came to a stop on Kingston Road before the Church Street intersection.

CW #4, Complainant #2 and Complainant #1 were transported to hospital from the scene. Complainant #1 was diagnosed with multiple fractures and other internal injuries. Complainant #2 was initially discharged from hospital without a serious injury diagnosis but was eventually found to have suffered broken ribs. CW #4 was fortunate to have escaped serious injury.

Section 320.13 (1) Criminal Code – Dangerous Operation Causing Bodily Harm

Section 128(13), Highway Traffic Act – Police Vehicles and Speeding

(b) a police department vehicle being used in the lawful performance of a police officer’s duties.

Complainant #1 and Complainant #2 were seriously injured in a motor vehicle collision in Ajax on October 1, 2022. As their vehicle had been struck by a DRPS cruiser, the SIU was notified and initiated an investigation. The driver of the cruiser, the SO, was identified as the 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.

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 aspects of the SO’s conduct that are subject to legitimate scrutiny. Chief among these is the officer’s speed - within a range of about 114 to 120 km/h – less than ten seconds and under 200 metres from the scene of the collision. At that speed, the officer’s cruiser constituted a danger on the roadway - it was more than twice the speed limit (almost two-and-a-half times at points) as it headed towards a traffic light-controlled intersection (Church Street) across a developed area of town with a number of commercial establishments on both sides of Kingston Road. The officer also neglected to make continuous use of his siren, which would have served to give pedestrians and motorists in the area some added notice of his presence, direction of travel, and speed. These factors, I am satisfied, contributed in some measure to the collision with CW #4’s Lexus. For example, the SO’s speed effectively foreclosed his ability to come to a stop before the point of impact as CW #4 turned in front of him. Lastly, the SO was not responding to a situation requiring his presence as soon as possible. There was no suggestion, for example, that the person who had threatened suicide had also threatened others. And the officer on scene – WO #4 – had broadcast that he would wait for the arrival of additional officers before approaching the person.

Though the SO’s conduct created significant risks to public safety, however, I am satisfied that it fell short of constituting a marked departure from a reasonable standard of care when weighed in the balance with several extenuating considerations. Officers operating cruisers engaged in the execution of their duties are exempt from the speeding limitations by virtue of section 128(13)(b) of the Highway Traffic Act. This does not mean that police officers are free to speed as they wish without regard to public safety risk factors. It does mean, however, that an officer’s training in high-speed driving and law enforcement interests must figure into the public safety calculus. In the instant case, the officer might better have thought of the need to speed as he did given the nature of the call and his environment, but I am unable to dismiss his concerns out of hand. WO #4 was a new officer with little experience dealing with a potentially volatile situation involving a knife, and it was open for the SO to believe that he might need help sooner rather than later. It is also true that the SO had his emergency lights on as he approached CW #4, who was intending to turn left. CW #4 was under a twin legal duty in the circumstances - to refrain from turning left until he could do so safely, and to yield to police. It remains unclear why CW #4 did not see the officer’s emergency lights - other motorists had seen the SO and pulled over to let the officer pass. Be that as it may, the officer would have had reason to believe that CW #4 had seen him and would maintain his position until the cruiser passed his location. Finally, the SO’s indiscretions, if they be such, occurred over a relatively short period of time – under ten seconds and 200 metres. I do not say that the officer’s speed amounted to a momentary lapse of judgement, which the cases suggest will only exceptionally amount to a marked departure. It would seem the SO intended to accelerate to the speeds he did and did so over a significant amount of time. However, it does bear noting that the SO’s conduct during this time represented a relatively small part of the officer’s overall driving en route to the scene of the collision.

For the foregoing reasons, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law in connection with the collision that occurred with CW #4’s vehicle. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: February 7, 2023


Electronically approved by

Joseph Martino
Director
Special Investigations Unit