SIU Director’s Report - Case # 23-PVI-296
Warning:
This page contains graphic content that can shock, offend and upset.
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 injuries of a 59-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 of a 59-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On July 28, 2023, at 9:36 a.m., the Ontario Provincial Police (OPP), Kawartha Lakes Detachment, notified the SIU of an injury to the Complainant. According to the OPP, on July 28, 2023, at 2:30 a.m., the Subject Official (SO) was transporting the Complainant to the Kawartha Lakes OPP Detachment from the Kawartha Lakes Police Service as he had just completed a Drug Recognition Evaluation (DRE). The SO lost control of his vehicle at Greenfield Road and Harvest Street in Kawartha Lakes and was involved in a single motor vehicle collision. The Complainant was transported to Ross Memorial Hospital (RMH) in Lindsay and diagnosed with several facial fractures. He had also received eight staples to the front of his head and fifteen staples to the back.
The Team
Date and time team dispatched: 07/28/2023 at 10:13 a.m.Date and time SIU arrived on scene: 07/28/2023 at 12:30 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Number of SIU Collision Reconstructionists: 1
Affected Person (aka “Complainant”):
59-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on July 29, 2023.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal right Evidence
The Scene
The events in question commenced on a stretch of roadway travelling north on Greenfield Road towards the intersection of Harvest Street, Lindsey, and continued to a point 38 metres north of the intersection.Greenfield Road was a two-lane roadway with a posted speed limit of 50 km/h. At the intersection at Harvest Street, Greenfield Road turned ninety degrees to the right.
On July 28, 2023, a SIU forensic investigator attended the scene and took photographs. There was no physical evidence to collect.
A collision reconstruction was completed by the SIU.
Figure 1 – Path of the cruiser into the grass area
Figure 2 – Path of the cruiser in the grass area
Figure 3 – The SO’s cruiser
Forensic Evidence
Global Positioning System (GPS) Data – The SO’s Cruiser
The OPP provided SIU investigators with the GPS data from the involved police vehicle. This was examined by both SIU collision reconstructionist and included in his report. [2] Expert Evidence
SIU Collision Reconstruction Report
On July 28, 2023, a SIU collision reconstructionist attended the location of the collision, and conducted an investigation with the following findings.There were tire marks on the west gravel shoulder, and a pair of tire marks on the asphalt just south of a grass edge. The tire marks continued through the grass leading to two large divots in the grass field. The second divot marked the vehicle’s final resting position.
Figure 4 – Aerial photograph of the area of the collision
Figure 5 – The vehicle’s path towards and into the grass field
The police vehicle was equipped with an Event Data Recorder, which recorded pre-impact data. At six seconds before impact, the police vehicle was traveling at about 90 km/h. It headed northbound on Greenfield Road, and was 75 metres from the Harvest Street intersection and about 50 metres from the beginning of the right curve ahead. At four seconds before impact, the police vehicle travelled about 90 km/h, and was about 25 metres from the intersection. It was in the right curve of the road; however, there was no steering input from the driver. At three seconds before impact, the police vehicle travelled about 90 km/h, and was in the intersection at Harvest Street about ten metres from the grass edge to the north of the curve of the road. The left tires of the vehicle had just ridden over the west gravel shoulder of Greenfield Road. At two seconds before impact, the police vehicle exited the road and was about ten metres into the grass field. The vehicle travelled about 72 km/h at this time, and the driver started to brake aggressively along with some minor steering to the left. At one second before impact, the police vehicle struck the ground at the first divot. The vehicle travelled about 55 km/h at this time. At impact, the vehicle was traveling about 26 km/h, and had traveled about 40 metres into the field.
The driver was driving northbound on Greenfield Road at a constant speed of about 90 km/h. The vehicle’s cruise control was on and set at 22% throttle (about 90 km/h). The driver continued northbound, failing to navigate the right turn in the road. After the vehicle’s left tires rode over the west gravel shoulder at the intersection with Harvest Street, the driver applied the brakes aggressively. The vehicle continued north with its undercarriage contacting the ground twice before coming to rest.
The movement and response of the driver suggest he fell asleep at the wheel and was woken up by the left tires contacting the gravel shoulder.
OPP Collision Reconstruction Report
The OPP provided SIU investigators the collision reconstruction report completed by their officers. SIU investigators reviewed the report and found it to contain similar information to that provided in the SIU collision reconstruction report.
Video/Audio/Photographic Evidence [3]
In-car Camera (ICC) Footage
[4]On August 1, 2023, the OPP provided the SIU with the ICC footage from the SO’s police vehicle. There were two videos capturing the front of the vehicle facing the road and the rear seat of the vehicle.
On July 28, 2023, at 4:06:39 a.m., the video opened with a view of a county road and the Complainant placed in the back seat.
At 4:15:17 a.m., the SO informed the Complainant he was under arrest for impaired operation and possession of a controlled substance.
At 4:23:20 a.m., the SO departed en route to the Peterborough Detachment and arrived at 5:05:11 a.m. Both individuals went inside the station.
At 6:06:40 a.m., the SO and the Complainant re-entered the police vehicle. The Complainant no longer had handcuffs on. He did not put on his seat belt.
At 6:08:41 a.m., the SO departed the police station. While en route, the SO had a phone conversation regarding the negative DRE and possession charges. The phone call ended at 6:21:30 a.m. A couple of times after this phone call, the vehicle drifted onto the wrong side of the road. The SO yawned a couple of times.
At 6:41:14 a.m., the SO turned left onto Greenfield Road and travelled northbound. The Complainant drifted in and out of sleep in the back seat.
At 6:41:46 a.m., the road curved at a sharp angle to the right and the SO’s police vehicle continued straight into the bush at the crest of the curve. The vehicle travelled through the bushes and stopped. The Complainant reached out with his arms against the front seats. He was thrown forward out of his seat and struck his head against the Plexiglas and front seats. He ricocheted backward, flew forward, and struck his face again on the Plexiglas and front seats. He was flung backward and landed on his face on the back seat. He was thrown in the air again and fell facedown onto the back seat. The SO said, “You, okay?” The Complainant did not respond and groaned gutturally for several minutes. The SO made a phone call and said, “(Inaudible) I was just in a crash.” He explained, “… I just wasn’t paying attention. I’m literally on Greenfield Road. Yea, this guy is going to need one, he’s making noises, you okay, sir? Oh, he’s bashed his head good.” The SO continued, “Oh man, yea, I just drove off … I was just in an accident, I think I might have, I wasn’t paying attention, I lost my glasses. I have a prisoner with me.” The Complainant sat up and blood covered his face. The SO informed an officer, “I’m going to tell you right now, I wasn’t on my phone or anything … (inaudible).” An officer performed first-aid on the Complainant.
At 6:50:43 a.m., the Complainant was led from the police vehicle. He walked to the rear of the police vehicle on his own.
At 6:51:05 a.m., the SO said, “It’s my fault, I’m sorry.”
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between July 31, 2023, and August 28, 2023:- ICC footage;
- Information derived from computer-assisted dispatch;
- Crash Data Retrieval data – the SO’s cruiser;
- Occurrence Reports;
- GPS – the SO’s cruiser;
- Collision Reconstruction Report;
- Towing information;
- Notes – Officer #1;
- Notes – Officer #2; and
- Notes – Officer #3.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between August 9 and 29, 2023:- The Complainant’s medical records from Sunnybrook Heath Sciences Centre and RMH.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and video footage that captured the incident in parts, 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 morning of July 28, 2023, the Complainant was in the rear seat of a cruiser being operated by the SO. The officer – having earlier arrested the Complainant for impaired driving and transported him to the OPP Peterborough Detachment for a ‘drug recognition evaluation’ – was taking him to the OPP Kawartha Lakes Detachment on drug possession charges. The SO travelled north on Greenfield Road and was within 300 metres of the detachment when he lost control of the cruiser. He had failed to negotiate a right turn on the road at its intersection with Harvest Street. The cruiser travelled across Harvest Street and crashed into a field on the north side of the road.
The Complainant was not wearing a seatbelt. His body was propelled back and forth inside the rear compartment of the cruiser as it travelled over the uneven terrain of the field and came to a stop. Taken to hospital, the Complainant was diagnosed with serious injuries, including a broken clavicle and facial fractures.
In the morning of July 28, 2023, the Complainant was in the rear seat of a cruiser being operated by the SO. The officer – having earlier arrested the Complainant for impaired driving and transported him to the OPP Peterborough Detachment for a ‘drug recognition evaluation’ – was taking him to the OPP Kawartha Lakes Detachment on drug possession charges. The SO travelled north on Greenfield Road and was within 300 metres of the detachment when he lost control of the cruiser. He had failed to negotiate a right turn on the road at its intersection with Harvest Street. The cruiser travelled across Harvest Street and crashed into a field on the north side of the road.
The Complainant was not wearing a seatbelt. His body was propelled back and forth inside the rear compartment of the cruiser as it travelled over the uneven terrain of the field and came to a stop. Taken to hospital, the Complainant was diagnosed with serious injuries, including a broken clavicle and facial fractures.
Relevant Legislation
Section 320.13 (1) Criminal Code – Dangerous operation causing bodily harm
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
The Complainant was seriously injured in a single-vehicle car crash in Lindsey on July 28, 2023. He was in custody at the time seated in the backseat of a police cruiser. The driver – the SO – was identified as the subject official in the ensuing SIU investigation of the incident. 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 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. 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.
While there are aspects of the SO’s driving that are subject to scrutiny, I am unable to reasonably conclude that the officer transgressed the limits of care prescribed by the criminal law. For example, it appears that the SO was travelling well over the 50 km/h speed limit - about 90 km/h - as he approached Harvest Street heading north on Greenfield Road. There was no need for the officer to be travelling at that speed. It also seems the cruiser drifted onto the wrong side of the road on a couple of occasions as the officer made his way to the Kawartha Lakes OPP Detachment. That may well have been the result of fatigue. Indeed, fatigue appears to have been the reason the SO failed to negotiate the turn in the road. The officer’s utterances post-collision and the forensic evidence indicating that he made no attempt to steer his vehicle would suggest as much. On the other hand, there is no indication of any other questionable driving by the SO as he made his way to his destination. Nor does it appear, given the minimal traffic on the roadway at that time of day, that any third-party motorist was actually endangered by the officer’s speed or temporary incursions into the wrong lane of traffic. In the short, the proximate cause of the collision seems to have been a momentary lapse of care. On this record, if the SO’s driving fell short at times, I am not satisfied with any confidence that it was markedly below a reasonable standard of care in the circumstances.
In the result, there is no basis for proceeding with criminal charges in this case.
Date: November 24, 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.
While there are aspects of the SO’s driving that are subject to scrutiny, I am unable to reasonably conclude that the officer transgressed the limits of care prescribed by the criminal law. For example, it appears that the SO was travelling well over the 50 km/h speed limit - about 90 km/h - as he approached Harvest Street heading north on Greenfield Road. There was no need for the officer to be travelling at that speed. It also seems the cruiser drifted onto the wrong side of the road on a couple of occasions as the officer made his way to the Kawartha Lakes OPP Detachment. That may well have been the result of fatigue. Indeed, fatigue appears to have been the reason the SO failed to negotiate the turn in the road. The officer’s utterances post-collision and the forensic evidence indicating that he made no attempt to steer his vehicle would suggest as much. On the other hand, there is no indication of any other questionable driving by the SO as he made his way to his destination. Nor does it appear, given the minimal traffic on the roadway at that time of day, that any third-party motorist was actually endangered by the officer’s speed or temporary incursions into the wrong lane of traffic. In the short, the proximate cause of the collision seems to have been a momentary lapse of care. On this record, if the SO’s driving fell short at times, I am not satisfied with any confidence that it was markedly below a reasonable standard of care in the circumstances.
In the result, there is no basis for proceeding with criminal charges in this case.
Date: November 24, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) Documented in “Expert Evidence” section. [Back to text]
- 3) 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]
- 4) The time-stamps on the ICC footage appear to be about four hours ahead of actual time. [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.