SIU Director’s Report - Case # 22-PVI-305
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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 section 14 (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 injury of an 18-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 injury of an 18-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On November 22, 2022, the Ontario Provincial Police (OPP) advised the SIU of an incident involving an officer and a motor vehicle collision that had occurred earlier that day. At the time of the initial reporting, it was believed that the incident did not meet the SIU threshold to invoke its jurisdiction.On November 28, 2022, at 4:05 p.m., the OPP called back to advise the initial information they reported had been inaccurate. The OPP was now of the understanding that on November 22, 2022, at approximately 2:06 p.m., the Subject Official (SO) was travelling on Highway 89 at Wesson Road in the New Tecumseth area when a vehicle approached him in the oncoming lane travelling at an excessive speed. The SO did a U-turn and pursued the vehicle for approximately four kilometres. The pursued vehicle attempted to pass another vehicle on the right shoulder and crashed into a ditch. The driver of the vehicle was uninjured; however, the passenger had received a broken jaw because of the crash.
The Team
Date and time team dispatched: 11/28/2022 at 4:58 p.m.Date and time SIU arrived on scene: 11/29/2022 at 10:11 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Number of SIU Collision Reconstructionists
Assigned: 1
Affected Person (aka “Complainant”):
18-year-old male; interviewedThe Complainant was interviewed on December 7, 2022.
Civilian Witness (CW)
CW Not interviewed; declined Subject Official
SO Interviewed; notes received and reviewed The subject official was interviewed on December 29, 2022.
Witness Officials (WO)
WO #1 Not interviewed; notes received and reviewed WO #2 Interviewed
WO #3 Not interviewed; notes received and reviewed
WO #4 Interviewed
WO #5 Interviewed
The witness officials were interviewed between December 12 and 16, 2022.
Evidence
The Scene
The events in question occurred on a stretch of Highway 89, between the area of 9th Line and Wesson Road. The site of the collision was the ditch on the south side of Highway 89 several hundred metres west of Wesson Road, New Tecumseth / Essa. The scene was not held.
The image below was taken from Google Earth to depict the site of the motor vehicle collision.
Figure 1 – Google Earth aerial view of the location of the collision
SIU Reconstructionist Review of Global Positioning System (GPS) Data
On December 6, 2022, the OPP provided the SIU that GPS data associated with the SO’s cruiser. A SIU reconstructionist analyzed the data and reviewed the SO’s SIU interview, and arrived at the following observations. It was not possible, based on the GPS data, to reliably place the SO in a particular lane of east/west traffic on Highway 89 at each point of data. There were, however, GPS data points which appeared to be consistent with the SO having driven westbound in an eastbound lane.
On November 22, 2022, between 1:39 p.m. and 2:04 p.m., the SO travelled eastbound on Highway 89 from about Simcoe Road 10/Industrial Parkway (east of New Tecumseth / Alliston). The cruiser’s speeds were around 80 km/h, and the distance travelled was about seven kilometres. Highway 89 was straight with some moderate inclines / declines.
At 2:04 p.m., about 325 metres east of 9th Line, the SO slowed and executed a U-turn to drive westbound.
Referencing Google Maps, Highway 89 east of 9th Line had one lane for eastbound traffic and two lanes for westbound traffic (a westbound passing zone had commenced east of 10th Line/20th Sideroad). The speed limit was posted at 80 km/h. Highway 89 and 9th Line was a “T” intersection with a stop sign for 9th Line, and the right of way for Highway 89.
After the U-turn, the SO accelerated to 147 km/h just west of 9th Line for about 16 seconds. There followed at 29-second gap in the data that correlated to a distance of about 1.3 kilometres, suggesting that the SO travelled the distance at an average speed of 166 km/h. [1]
At about 2:05 p.m., the SO was travelling at 108 km/h, westbound on Highway 89, west of 8th Line, about halfway between 8th Line and 15th Sideroad. As per Google Maps, there was one lane for westbound traffic and two lanes for eastbound traffic (passing zone). Highway 89 and 15th Sideroad was a “T” intersection with a stop sign on 15th Sideroad, and the right of way for Highway 89.
For the next 16 seconds, the SO travelled westbound on Highway 89 between about 15th Sideroad and east of Simcoe Road 56 (distance of just over 800 metres), and accelerated to speeds of 132, 143, 154, 151, 153, 159, 164, 171, 175, 180, 184 and 192 km/h. There was one westbound lane and two eastbound lanes (eastbound passing zone). There was a downhill grade for westbound and an uphill grade for eastbound traffic. GPS data points appeared consistent with the SO driving westbound in the eastbound passing lane.
About 100 metres east of Simcoe Road 56, the SO reached a speed of 200 km/h. There was one westbound lane and two eastbound lanes. Highway 89 and Simcoe Road 56 was a “T” intersection with a stop sign on Simcoe Road 56, and the right of way for Highway 89.
For the next seven seconds, the SO continued westbound on Highway 89 between Simcoe Road 56 and just west of Wesson Road, at speeds of 198, 196, 193, 192, 190 and 187 km/h. The distance covered was about 375 metres. At Wesson Road there was one westbound lane and one eastbound lane with a right turn lane for eastbound traffic to turn south onto Wesson Road.
There followed another 28-second gap in the GPS data that would have covered westbound Highway 89 just west of Wesson Road to the collision scene, a distance of about 650 metres. The SIU reconstructionist was unable to calculate an average rate of speed for this segment of the interaction.
At about 2:06 p.m., the SO was stationary at the collision scene, about 500 metres east of 6th Line/10th Sideroad.
Overall, between 2:04:27 p.m. and 2:05:56 p.m., the SO had travelled westbound on Highway 89, from east of 9th Line to the collision scene, a distance of about 3.8 kilometres, in about 90 seconds. This calculated to an average speed of about 150 km/h, with the maximum recorded speed being 200 km/h.
Video/Audio/Photographic Evidence [2]
OPP Communications Recordings and Computer-assisted Dispatch (CAD) Report
On December 6, 2022, the OPP provided the SIU the communications recordings and CAD report. The CAD report characterized the ‘event type’ as a “Police Pursuit – Fail to Stop for Police”. It indicated that, at 2:06 p.m., November 22, 2022, the SO broadcast a vehicle rollover. The vehicle was said to have been upside down in a ditch. The SO indicated that the driver had taken off when he attempted to stop the vehicle on Highway 89, just east of the 10th Sideroad.
Emergency Medical Services was requested.
At 2:12 p.m., WO #4 arrived on scene and advised both occupants were out of the crashed vehicle.
The SO received a request from the communications centre to provide the duration and the end mileage of his police vehicle. No answer was provided.
The Complainant was transported to Stevenson Memorial Hospital in Alliston.
At 2:40 p.m., that CAD indicated that WO #5 of the communications centre had made a manual entry in the CAD which advised he had spoken with WO #2. WO #2 provided WO #5 with the end mileage for a police vehicle and that the reason for the stop was a speeding infraction. The Complainant was said to have suffered minor tooth injuries.
Internal OPP Telephone Call
On December 6, 2022, the SIU received a copy of a telephone call between WO #2 and WO #5 from the communications centre. At an unknown time on November 22, 2022, WO #5 at the communications centre received a call from WO #2 asking if he had all the information from the SO. WO #2 reported no OPP officer had been injured, nor was any OPP vehicle damaged. The driver of the suspect vehicle had lost a tooth (that individual is now known to be the Complainant). WO #5 asked the reason for the stop and was told the SO had been operating mobile radar eastbound on Highway 89 and had clocked a vehicle travelling at 140 km/h. The SO activated his emergency lighting and did a U-turn. The driver got caught up in traffic, and was driving in and out of traffic. The driver then tried to pass on the soft shoulder, lost control and rolled over. WO #5 inquired if there were any other charges than the Highway Traffic Act offence. WO #2 indicated possible ‘dangerous driving’. WO #5 replied, “That is all after the fact.”
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between December 6 and 29, 2022:- CAD Report;
- WO #3-notes;
- General Report;
- GPS data - the SO’s cruiser;
- Involved Officers Report;
- Involved Persons Report;
- WO #1-notes;
- WO #5-notes;
- Communications recordings;
- Recorded telephone call between WO #2 and WO #5;
- SO-notes;
- WO #4-notes;
- WO #2-notes; and
- Supplementary Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Simcoe County Paramedic records.
Incident Narrative
The evidence collected by the SIU, including an interview with the SO and GPS data that captured the officer’s speeds in the course of the events in question, gives rise to the following scenario.
In the afternoon of November 22, 2022, the SO was operating an unmarked police cruiser patrolling Highway 89 for traffic infractions. At about 2:04 p.m., while eastbound on the highway east of 9th Line, the officer’s forward-facing radar clocked a westbound Infiniti travelling at 140 km/h. The officer decided to stop the vehicle for a speeding offence. He slowed, executed a U-turn and accelerated west after the Infiniti.
The driver of the Infiniti was the CW. Her passenger was the Complainant. The CW was a suspended driver at the time of the incident, the result of a previous speeding infraction. The CW was apparently aware that a police vehicle was pursuing her, but she refused to stop. She continued at speed westbound on Highway 89 for a distance of about three-and-a-half kilometres, attempted to pass a vehicle on the north gravel shoulder of the roadway, lost control, and veered into the ditch south of the highway. The Infiniti rolled over before coming to a stop. The Complainant had suffered a fractured jaw in the process.
The SO pursued the Infiniti at significant speeds for much of their engagement, at times reaching speeds as high as 180 to 200 km/h for stretches of the pursuit. He was within several car lengths of the Infiniti when it lost control and crashed.
In the afternoon of November 22, 2022, the SO was operating an unmarked police cruiser patrolling Highway 89 for traffic infractions. At about 2:04 p.m., while eastbound on the highway east of 9th Line, the officer’s forward-facing radar clocked a westbound Infiniti travelling at 140 km/h. The officer decided to stop the vehicle for a speeding offence. He slowed, executed a U-turn and accelerated west after the Infiniti.
The driver of the Infiniti was the CW. Her passenger was the Complainant. The CW was a suspended driver at the time of the incident, the result of a previous speeding infraction. The CW was apparently aware that a police vehicle was pursuing her, but she refused to stop. She continued at speed westbound on Highway 89 for a distance of about three-and-a-half kilometres, attempted to pass a vehicle on the north gravel shoulder of the roadway, lost control, and veered into the ditch south of the highway. The Infiniti rolled over before coming to a stop. The Complainant had suffered a fractured jaw in the process.
The SO pursued the Infiniti at significant speeds for much of their engagement, at times reaching speeds as high as 180 to 200 km/h for stretches of the pursuit. He was within several car lengths of the Infiniti when it lost control and crashed.
Relevant Legislation
Section 320.13 (1) 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.
Section 128(13), Highway Traffic Act – Police Vehicles and Speeding
128(13) The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,
(b) a police department vehicle being used in the lawful performance of a police officer’s duties.
Analysis and Director's Decision
The Complainant was seriously injured in a motor vehicle collision on November 22, 2022. As the vehicle in which he was a passenger was being pursued at the time by an OPP cruiser, the SIU was notified of the incident and initiated an investigation. The driver of the OPP vehicle – 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 disconcerting. His speeds, substantially in excess of the 80 km/h speed limit, were inherently dangerous, topping out at one point at 200 km/h. The fact that the SO travelled at these speeds to stop a vehicle for a traffic offence – speeding – is also troubling. When those circumstances are coupled with the fact that the officer did so in apparent contravention of OPP policy forbidding unmarked vehicles from partaking in a pursuit, prohibiting pursuits for non-criminal offences, and requiring that pursuing officers broadcast their actions and the actions of the pursued vehicle to their communications centre, I am satisfied that the SO was not only in seeming breach of policy, but an objective danger to other users of the roadway.
Notwithstanding the SO’s serious indiscretions, however, I am not satisfied that the officer’s conduct departed markedly from a reasonable standard of care such as to render it criminal. Pursuant to section 128(13)(b) of the Highway Traffic Act, police officers engaged in the execution of their duties are exempt from the speed limitations. This does not mean that officers are free to speed as they wish – public safety is always their primary obligation. However, it is a mitigating factor in the reasonableness analysis required by the criminal law. It is also important to note that the SO had activated his emergency lights and, for the latter portion of the pursuit, his siren, and appears not to have caused other motorists to take evasive action. Finally, it is not entirely clear to what extent the SO’s driving had a causal impact on the crash. I accept that the CW drove recklessly in part, at least, to get away from the SO’s cruiser, but it is worth noting that she seems to have been engaged in a course of dangerous driving even before her run-in with the officer.
In the final analysis, when the SO’s driving behaviour is considered in its totality, there is insufficient evidence to reasonably conclude that the officer transgressed the limits of care prescribed by the criminal law. As such there is no basis for moving forward with charges in this case.
Date: March 9, 2023
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 aspects of the SO’s conduct that are disconcerting. His speeds, substantially in excess of the 80 km/h speed limit, were inherently dangerous, topping out at one point at 200 km/h. The fact that the SO travelled at these speeds to stop a vehicle for a traffic offence – speeding – is also troubling. When those circumstances are coupled with the fact that the officer did so in apparent contravention of OPP policy forbidding unmarked vehicles from partaking in a pursuit, prohibiting pursuits for non-criminal offences, and requiring that pursuing officers broadcast their actions and the actions of the pursued vehicle to their communications centre, I am satisfied that the SO was not only in seeming breach of policy, but an objective danger to other users of the roadway.
Notwithstanding the SO’s serious indiscretions, however, I am not satisfied that the officer’s conduct departed markedly from a reasonable standard of care such as to render it criminal. Pursuant to section 128(13)(b) of the Highway Traffic Act, police officers engaged in the execution of their duties are exempt from the speed limitations. This does not mean that officers are free to speed as they wish – public safety is always their primary obligation. However, it is a mitigating factor in the reasonableness analysis required by the criminal law. It is also important to note that the SO had activated his emergency lights and, for the latter portion of the pursuit, his siren, and appears not to have caused other motorists to take evasive action. Finally, it is not entirely clear to what extent the SO’s driving had a causal impact on the crash. I accept that the CW drove recklessly in part, at least, to get away from the SO’s cruiser, but it is worth noting that she seems to have been engaged in a course of dangerous driving even before her run-in with the officer.
In the final analysis, when the SO’s driving behaviour is considered in its totality, there is insufficient evidence to reasonably conclude that the officer transgressed the limits of care prescribed by the criminal law. As such there is no basis for moving forward with charges in this case.
Date: March 9, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Per the SIU reconstructionist calculations. [Back to text]
- 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [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.