SIU Director’s Report - Case # 23-PVI-363
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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 injuries of a 42-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 42-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On September 4, 2023, at about 1:04 a.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.On September 3, 2023, at about 10:10 p.m., an all-terrain vehicle (ATV) was pulling a trailer with a man – the Complainant – riding on the open trailer. The ATV was observed in the area of French Bay Road in Saugeen First Nation where an officer attempted to stop it for a Highway Traffic Act (HTA) offence. When the vehicle failed to stop, the officer discontinued his attempt to stop and reported the incident. A short time later, an OPP officer in the area of the community centre located at 47 French Bay Road moved his OPP cruiser halfway across French Bay Road and activated his emergency lighting. The ATV avoided the OPP cruiser, but the trailer struck the cruiser. The Complainant flew off the trailer and was seriously injured. Firearms and ammunition contained within the vehicle/trailer were strewn about due to the collision. The driver and passenger of the ATV fled but were subsequently arrested. They had not been seriously injured. The Complainant was taken via Air Ornge to London Health Sciences Centre (LHSC) hospital for his injuries.
The Team
Date and time team dispatched: 09/04/2023 at 3:39 a.m.Date and time SIU arrived on scene: 09/04/2023 at 6:02 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
Number of SIU Reconstructionists: 1
Affected Person (aka “Complainant”):
42-year-old male; interviewed; medical records obtained and reviewed
The Complainant was interviewed on September 6, 2023.
[Note: An affected person (complainant) is an individual who was involved in some form of interaction with an official or officials, during the course of which the individual sustained serious injury, died, was reported to have been sexually assaulted, or was shot at by a firearm discharged by an official.]
42-year-old male; interviewed; medical records obtained and reviewed
The Complainant was interviewed on September 6, 2023.
[Note: An affected person (complainant) is an individual who was involved in some form of interaction with an official or officials, during the course of which the individual sustained serious injury, died, was reported to have been sexually assaulted, or was shot at by a firearm discharged by an official.]
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
The civilian witnesses were interviewed on September 4, 2023, and September 8, 2023.
Subject Officials (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on October 6, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Notes reviewed, interview deemed not necessary
The witness officials were interviewed on September 8, 2023.
Evidence
The Scene
The events in question transpired on a stretch of roadway beginning on French Bay Road a distance north of 47 French Bay Road and ending at the site of a motor vehicle collision on French Bay Road by 47 French Bay Road, Saugeen First Nation.
On September 4, 2023, SIU forensic investigators were sent to 47 French Bay Road, Saugeen First Nation, arriving on scene at 7:15 a.m. The weather was clear and hot, and the roads were dry.
French Bay Road ran in a general north-south direction. The location was rural with a brush and forest on the east side. On the west side of the roadway was James Mason Memorial Centre, which was located a distance west of the roadway. There were two driveways that ran west from the roadway into the parking lot of the Memorial Centre. This section of French Bay Road was paved with a posted speed limit of 40 km/h. There were very narrow dirt/gravel shoulders on either edge of the roadway. On the east side of the road was a grass-lined ditch before the start of the forest. There were no overhead streetlights.
A broken black long gun butt was located in a ditch and between the left rear tire of an ATV and front left of a damaged trailer.
At 1:45 p.m., SIU forensic investigators attended OPP Chatsworth and photographed two firearms reportedly found at the site of the motor vehicle collision: a Remington carbine rifle and a Canuck shotgun with a modified barrel.
Scene Diagram
Expert Evidence
Collision Reconstruction
A SIU reconstructionist reviewed the notes and findings submitted by an OPP reconstructionist and Traffic Collision Investigator. The SIU reconstructionist noted the involved vehicles were an ATV reportedly driven by CW #1, and a 2018 Dodge Charger police vehicle, operated by the SO. The ATV reportedly had a passenger sitting behind the driver and was towing a flat-bed trailer which had a passenger as well. The ATV travelled southbound on French Bay Road. The police vehicle was in the north driveway of the James Mason Memorial Cultural & Recreation Centre heading east. The cruiser travelled east as the ATV approached its location and there resulted a collision between the vehicles. The ATV was redirected to the southeast and came to rest in a grass ditch to the east of the roadway.
At the time of the SIU’s arrival on scene, the police vehicle was stopped in the southbound lane in line with the north driveway to the community centre. It faced southeast. The ATV was in the grass ditch to the east of the road about 47 metres south of the area of impact. The trailer was in the grass as well, just behind the ATV. Two tire marks were documented adjacent to the police vehicle. The westernmost tire mark led to the left front tire of the police vehicle. The second mark was in a diagonal direction oriented in a northwest-southeast direction and located about one metre east of the curved mark.
Figure 1 - Annotated photograph showing the tire marks (yellow) and the vehicle final rest positions
Vehicle Description – Dodge Charger Police Vehicle
The vehicle was identified as a marked OPP 2018 Dodge Charger 4-door sedan. The OPP cruiser sustained damage to the front end and to the left front corner area. The bumper was torn off its anchor and forced to the right. A right-foot shoe was found embedded in the plastic bumper fascia. The images in Figure 2 depict the damage to the police vehicle.
The cruiser’s air bags did not deploy in the collision.
Figure 2 - Photographs showing the damage to the front end and left side of the police vehicle. The embedded shoe is highlighted with a white circle in theop photograph.
Vehicle Description – ATV
The ATV was considered a two-up ATV, meaning it had a driver seat with a passenger seat behind it. To the rear of the passenger seat was a storage box mounted to the rear rack of the ATV.
The ATV sustained damage to the right side extended from the rear of the right front wheel well to the right rear corner. The right front and right rear wheels were deflated. There was some dirt and foliage embedded along the left side of the ATV with some minor scuffing.
Vehicle Description – ATV Trailer
The ATV was towing a flatbed trailer at the time of the crash. The trailer appeared to be a home-made, single axle, steel frame flatbed trailer with a plywood bed. The front portion of the trailer frame was severely bent and distorted, and the hitch connection was torn off from the frame. The plywood bed was damaged. The image in Figure 3 depicts the damage to the trailer.
Figure 3 - Photograph of the damage to the trailer
Analysis - Point of Impact and Engagement
The point of impact and vehicle engagement were determined based on the road evidence and the damage to the vehicles. The left side at the front corner of the OPP cruiser was damaged, while the right side of the ATV and the right front corner of the trailer were damaged. A distinct imprint was noted on the left side of the OPP cruiser, behind the left front wheel well, that suggested it was contacted with the right front corner of the trailer.
The image in Figure 4 depicts the approximate orientation of the vehicles at impact.
Figure 4 - Image showing the approximate point of impact between the ATV and the OPP cruiser
Analysis - Impact Speed
The SIU reconstructionist calculated the approximate speeds of the vehicles based on their post-impact trajectory. After the impact, the OPP cruiser rotated about 70 degrees and moved about 3.5 metres to the south before coming to rest. Both tires were steered sharply to the right, which suggested the vehicle was steering to the right at impact. The tire mark that ended underneath the left front tire of the OPP cruiser was curved and set in a diagonal direction. This suggested the OPP cruiser was moving slowly forward when it was struck. Based on the angle of the tire mark and the distance from impact to final rest, the OPP cruiser was likely travelling between 5 to 10 km/h when it was struck.
The ATV travelled about 47 metres south from impact to final rest. There was a tire mark to the east of the police tire mark which was likely created by the ATV or trailer post-impact. This tire mark measured 2.6 metres in length, so it only captured the early-stage movement of the ATV/trailer.
The SIU reconstructionist used the rotation of the OPP cruiser to estimate the impact speed of the ATV. Essentially, the greater the rotation of the OPP cruiser, the faster the ATV was travelling when it struck the left front corner of the OPP cruiser. The precise pre-impact orientation of the OPP cruiser was unknown; however, as per above, given the geometry of the ATV and trailer and the damage to the police vehicle, it was estimated the police vehicle rotated about 70 degrees post-impact. This amount of rotation suggests the ATV was travelling about 60 km/h. This is an estimate only, as the exact weight of the ATV and trailer and the occupants on-board are unknown.
Analysis - Pre-Impact Events
There is insufficient evidence to determine the pre-impact events other than immediately before impact. The OPP cruiser was moving forward slowly, between 5 to 10 km/h, and steering to the right just before impact. The ATV was travelling roughly 60 km/h southbound towing the trailer just before impact. The vehicles collided with the front of the OPP cruiser contacting the right side of the ATV. The ATV was then redirected to the southeast. The OPP cruiser began to rotate due to the impact. The trailer’s right front corner then collided with the left wheel well area of the OPP cruiser. The ATV and trailer continued southeast, exiting the east side of the road into the grass and trees, coming to rest about 47 metres south of the point of impact.
Video/Audio/Photographic Evidence [2]
In-car Camera System (ICCS) Footage
On September 14, 2023, the SIU received footage of recordings from the witness officials’ OPP cruisers. None of the ICCS footage showed the interaction between the ATV and the SO’s OPP cruiser.Communications Recordings and Computer-assisted Dispatch (CAD) Report
On October 16, 2023, the SIU received the communications recordings and CAD report. On September 3, 2023, at 9:33 p.m., WO #1 reported a ‘fail to stop’ on the east side of French Bay Road. An ATV was towing an oversized trailer. WO #1 discontinued following, pulled over, and gave his mileage.
Subsequent communications were in relation to a motor vehicle collision outside the community centre on French Bay Road.
Materials Obtained from Police Service
The SIU obtained the following records from the OPP Grey Bruce County Detachment between September 6, 2023, and December 11, 2023:- General Occurrence Report;
- CAD report;
- Communications recordings;
- Motor Vehicle Collision Report;
- Scene diagram;
- Scene measurements;
- ATV vehicle examination;
- Notes of WO #2;
- Notes of WO #1;
- Notes of WO #6;
- Noes of WO #3;
- Notes of WO #4;
- Notes of WO #5;
- Scene photographs; and
- ICCS footage.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources: - Medical records for the Complainant from LHSC, Victoria Hospital, received October 5, 2023;
- Medical records from Grey Bruce Health Services for the Complainant, received September 13, 2023; and
- Medical records from Grey Bruce Health Services for CW #1, received September 13, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.
In the evening of September 3, 2023, an ATV towing an oversized flatbed trailer was travelling south on French Bay Road. CW #1 was operating the ATV. His passenger in the back seat was CW #2. The Complainant was seated on the trailer. As they approached the James Mason Memorial Culture & Recreational Centre, 47 French Bay Road, just north of Service Road, a police cruiser pulled out in front of them at a slightly offset right-angle. CW #1 attempted to maneuver around the cruiser via the northbound lane, but failed to clear the vehicle. The right side of the ATV impacted the front driver’s side of the cruiser. CW #1 lost control of the ATV and crashed into the ditch on the east side of the road about 50 metres south of the point of impact.
The SO was operating the cruiser. Moments before the collision, the officer, stopped in the parking lot of the community centre west of French Bay Road, had heard WO #1 broadcast that the ATV had failed to stop for him. WO #1 had intended to cite the operator of the ATV for several HTA infractions, including the size of the trailer. Observing the ATV travelling towards him, the SO decided to attempt a stop of the vehicle. He maneuvered his cruiser into its path of travel in the southbound lane, leaving the northbound lane clear. The officer’s vehicle was still moving in a southeast direction at between 5 and 10 km/h when the collision occurred, first, with the ATV and, second, with the trailer.
The Complainant was thrown from the trailer and suffered serious injuries, including multiple rib fractures. He was taken to hospital and treated.
CW #1 and CW #2 did not suffer any serious injury in the collision. They attempted to flee after the crash but were located and arrested by the SO.
In the evening of September 3, 2023, an ATV towing an oversized flatbed trailer was travelling south on French Bay Road. CW #1 was operating the ATV. His passenger in the back seat was CW #2. The Complainant was seated on the trailer. As they approached the James Mason Memorial Culture & Recreational Centre, 47 French Bay Road, just north of Service Road, a police cruiser pulled out in front of them at a slightly offset right-angle. CW #1 attempted to maneuver around the cruiser via the northbound lane, but failed to clear the vehicle. The right side of the ATV impacted the front driver’s side of the cruiser. CW #1 lost control of the ATV and crashed into the ditch on the east side of the road about 50 metres south of the point of impact.
The SO was operating the cruiser. Moments before the collision, the officer, stopped in the parking lot of the community centre west of French Bay Road, had heard WO #1 broadcast that the ATV had failed to stop for him. WO #1 had intended to cite the operator of the ATV for several HTA infractions, including the size of the trailer. Observing the ATV travelling towards him, the SO decided to attempt a stop of the vehicle. He maneuvered his cruiser into its path of travel in the southbound lane, leaving the northbound lane clear. The officer’s vehicle was still moving in a southeast direction at between 5 and 10 km/h when the collision occurred, first, with the ATV and, second, with the trailer.
The Complainant was thrown from the trailer and suffered serious injuries, including multiple rib fractures. He was taken to hospital and treated.
CW #1 and CW #2 did not suffer any serious injury in the collision. They attempted to flee after the crash but were located and arrested by the SO.
Relevant Legislation
Section 320.13, 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.
Sections 219 and 221, Criminal Code -- Criminal Negligence Causing Bodily Harm
219 (1) Every one is criminally negligent who
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or(b) an offence punishable on summary conviction.
Analysis and Director's Decision
The Complainant was seriously injured in a motor vehicle collision with an OPP cruiser on September 3, 2023, on the lands of the Saugeen First Nation. The SIU was notified of the incident and initiated an investigation, naming the driver of the OPP cruiser – the SO – 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 and the Complainant’s injuries.
The offences that arise for consideration are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to sections 320.13(2) and 221 of the Criminal Code, respectively. Both require something more than a simple want of care to give rise to liability. The former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is premised on even more egregious conduct that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the neglect constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the question is whether there was any want of care on the part of the SO, sufficiently serious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
The SO was within his rights in seeking to stop the ATV. The vehicle had minutes earlier failed to stop for WO #1 for HTA offences and the officer was entitled to pursue an investigation of those offences by stopping CW #1 when the opportunity presented itself.
With respect to the manner in which the SO operated his cruiser, I am also satisfied the evidence falls short of establishing a marked departure from a reasonable standard of care in the circumstances. The liability analysis essentially boils down to whether the SO, in positioning his cruiser in front of the ATV’s path of travel, left CW #1 sufficient time and space to either bring the ATV to a safe stop or avoid a collision. The officer says that he did just that, namely, that he maneuvered the cruiser into the southbound lane well ahead of the ATV, leaving the northbound lane unblocked. On the other hand, there is evidence in which it is alleged that the cruiser purposefully drove into the ATV as CW #1 attempted to travel around it. The forensic evidence is equivocal on the issue. On the one hand, it seems the SO’s cruiser was not at a complete stop at the point of contact, but was travelling slowly between 5 and 10 km/h. On the other hand, in evidence that detracts from the suggestion that the collision would have been avoided had the officer not travelled into the northbound lane, it appears clear that the SO had, in fact, left the northbound lane available to CW #1. On this record, I am unable to reasonably conclude with any confidence that the evidence alleging a purposeful impact is any likelier to be closer to the truth that the SO’s evidence.
For the foregoing reasons, I am not satisfied on reasonable grounds that the SO transgressed the limits of care prescribed by the criminal law via-a-vis the events culminating in his collision with the ATV operated by CW #1. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 2, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offences that arise for consideration are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to sections 320.13(2) and 221 of the Criminal Code, respectively. Both require something more than a simple want of care to give rise to liability. The former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is premised on even more egregious conduct that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the neglect constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the question is whether there was any want of care on the part of the SO, sufficiently serious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
The SO was within his rights in seeking to stop the ATV. The vehicle had minutes earlier failed to stop for WO #1 for HTA offences and the officer was entitled to pursue an investigation of those offences by stopping CW #1 when the opportunity presented itself.
With respect to the manner in which the SO operated his cruiser, I am also satisfied the evidence falls short of establishing a marked departure from a reasonable standard of care in the circumstances. The liability analysis essentially boils down to whether the SO, in positioning his cruiser in front of the ATV’s path of travel, left CW #1 sufficient time and space to either bring the ATV to a safe stop or avoid a collision. The officer says that he did just that, namely, that he maneuvered the cruiser into the southbound lane well ahead of the ATV, leaving the northbound lane unblocked. On the other hand, there is evidence in which it is alleged that the cruiser purposefully drove into the ATV as CW #1 attempted to travel around it. The forensic evidence is equivocal on the issue. On the one hand, it seems the SO’s cruiser was not at a complete stop at the point of contact, but was travelling slowly between 5 and 10 km/h. On the other hand, in evidence that detracts from the suggestion that the collision would have been avoided had the officer not travelled into the northbound lane, it appears clear that the SO had, in fact, left the northbound lane available to CW #1. On this record, I am unable to reasonably conclude with any confidence that the evidence alleging a purposeful impact is any likelier to be closer to the truth that the SO’s evidence.
For the foregoing reasons, I am not satisfied on reasonable grounds that the SO transgressed the limits of care prescribed by the criminal law via-a-vis the events culminating in his collision with the ATV operated by CW #1. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 2, 2024
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) 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.