Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into serious injuries sustained by a 34-year-old male during a motor vehicle collision on June 9, 2018.

Notification of the SIU

On June 10, 2018, at 12:29 a.m., the Ontario Provincial Police (OPP) reported the vehicle injury of the Complainant.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 2

Complainant:

34-year-old male interviewed

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed

Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.

On June 9, 2018, at around 10:00 p.m., the Complainant and the SO were involved in a motor vehicle collision at the intersection of Bruce County Road 3 and Bruce County Road 2 near Walkerton. The Complainant was operating a motorcycle northbound on Bruce County Road 3. The SO was driving southbound on Bruce County Road 3 and made a sudden left hand turn towards Bruce County Road 2 – travelling into the path of the Complainant. The Complainant was travelling at a speed slightly over the 80 km/h speed limit and was unable to stop. He collided with the side of the SO’s police cruiser, was propelled off his motorcycle and landed in the roadway. As a result of the collision, the Complainant sustained serious injuries. The SO says he did not see the Complainant and takes responsibility for the collision.

The Scene

Bruce County Road 3 was a paved asphalt road with one lane for southbound and one lane for northbound traffic. At the southbound approach to Bruce County Road 2 there was an additional left turn lane and at the northbound approach to Bruce County Road 2 there was an additional right turn lane, both of which are delineated with white painted turn arrows and solid white painted lines on the asphalt.

Bruce County Road 2 was a paved asphalt road which permits one lane of traffic westbound and one lane of traffic eastbound. It intersects with Bruce County Road 3 at near right angles. Bruce County Road 2 was controlled by regulatory stop signs at the intersection with Bruce County Road 3.

Both roads are delineated with a solid double yellow painted centre line, solid white painted fog lines and gravel shoulders.

Rural land is located on both sides of Bruce County Road 3 and 2.

In the area of the collision, the speed limit on both roads is not posted but presumed to be 80 km/h.

There were no pre-collision tire marks from either vehicle.

Scene Diagram

Physical Evidence

Involved Vehicles

A 2016 Ford Explorer bearing the OPP markings faced southeast across the northbound lane of Bruce County Road 3 at Bruce County Road 2. The right front fender, wheel assembly and axle were freshly damaged.

A 2012 BMW motorcycle was lying on its left side and faced southwest across the northbound lane of Bruce County Road 3 at Bruce County Road 2. The front wheel including the front forks were detached from the frame of the motorcycle. There was severe crush to the complete front end and the ends of the front forks were damaged. The front tire rim was bent in numerous places. The headlight assembly, radiator and windshield were detached.

MPS GPS Data for the SO’s Police Cruiser

The SIU obtained and reviewed the GPS data for OPP police cruiser driven by the SO. Just prior to impact with the Complainant’s motorcycle at around 9:53 p.m., the speed of the police cruiser was 24.15 km/h.

At 9:52:25 p.m., the SO’s police cruiser was at a standstill.

At 9:52:29 p.m., the police cruiser became mobile and steadily picked up speed reaching a maximum speed of 67.62 km/h at 9:52:39 p.m. From 9:52:43 p.m. to 9:52:51 p.m., shortly before the collision, the SO’s cruiser steadily decreased in speed from 62.79 km/h to 40.25 km/h. The speed limit where the collision occurred was 80 km/h.

Expert Evidence

Reconstructionist’s Assessment of the Collision

At around 9:53 p.m., on Saturday, June 9, 2018, the SO, operating a SUV with OPP markings, was southbound on Bruce County Road 3 and slowed his vehicle to make a left turn onto Bruce County Road 2. It was dusk, the atmosphere was clear and roads were dry.

The speed limit on Bruce County Road 3 is 80 km/h and is not posted in the area of the collision.

At the same time a 2012 BMW motorcycle driven by the Complainant was northbound in the northbound lane of Bruce County Road 3 approaching Bruce County Road 2.

According to a gouge mark, slightly left of centre in the northbound lane of Bruce County Road 3 and at a sideswipe angle, the front wheel of the motorcycle impacted the right front wheel and right fender of cruiser. The jammed speedometer needle suggested an impact speed closer to 70 km/h.

At a speed of 90 km/h (the believed initial speed of the Complainant), the Complainant and his motorcycle would have been visible for eight seconds after cresting the hill 200 metres south of the area of impact.

The Complainant’s motorcycle careened to the left, causing the right handlebar to strike the right side top of the police cruiser hood. As such the Complainant was thrust forward so that his helmet struck the right side of the windshield of cruiser. The Complainant became airborne and came to rest on the asphalt some 5.9 metres northwest of the area of impact. His motorcycle slid rearward and it came to rest about 2.2 metres southwest of the area of impact. Furthermore the cruiser also came to rest about 2.2 metres southeast of the area of impact indicating a slow impact speed. The pre-collision impact speed of the police cruiser could not be calculated. As a result of the collision the Complainant received serious injuries.

Communications Recordings

OPP Communication Recordings

The recordings were reviewed; however, they did not address how or why the collision occurred.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the South Bruce Detachment (OPP):

• Affidavit of OPP Technical Analyst re MDT Data (1)
• Affidavit of OPP Technical Analyst re MDT Data (2)
• CAD Event Details
• Communication Recordings
• Driver Training Transcript- the SO
• Event Details
• Maintenance Records for the SO’s OPP Police Cruiser
• MPS GPS Data for the SO’s OPP Police Cruiser (June 9, 2018)
• Occurrence Details
• Records Request Checklist, and
• Unit History for the SO’s police cruiser (June 9 2018)

Affidavit of OPP Technical Analyst[1]

A Technical Analyst with the OPP Technical Security and Infrastructure section searched the PCC London CAD database for all CAD messages sent or received during the time frame of June 9, 2018, from 6:00 p.m. to 10:30 p.m. According to the affiant, based on this timeframe there were no CAD messages sent by any call taker, dispatcher, officers (via MPS), or supervisors to or from the SO. Furthermore there were no messages sent or received by I/Netviewer during this timeframe.[2]

Maintenance Records for the OPP Police Cruiser

The SIU obtained and reviewed the most recent maintenance records for the SO’s police cruiser from August 2017 to May 2018. There was no indication the police cruiser was in any way deficient, mechanically or otherwise.

Section 249, Criminal Code - Dangerous operation of motor vehicles, vessels and aircraft

249 (1) Every one commits an offence who operates

1. a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place&hellip

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

The Complainant was operating his motorcycle on Bruce County Road 3 near Walkerton when the SO made a sudden left turn in front of his motorcycle. The Complainant, who had the right of way, was unable to stop and collided with the SO’s police vehicle. As a result of the collision, the Complainant sustained serious injuries and the SIU invoked its mandate. The SIU’s investigation into this incident included interviews with the Complainant, the SO, two civilian witnesses and one witness officer. OPP radio communications and GPS data from the SO’s vehicle were also obtained and reviewed. This evidence was overwhelmingly consistent and the factual circumstances surrounding the collision are accordingly clear. For the reasons that follow, I am unable to form grounds to believe that the SO committed a criminal offence in relation to the collision.

On June 9, 2018, just before 10:00 p.m., both the SO and the Complainant were travelling along Bruce County Road 3 near Walkerton. Bruce County Road 3 is a paved asphalt road with two lanes (one northbound and one southbound) and a speed limit of 80 km/h. The SO was operating a marked OPP vehicle southbound and the Complainant was operating a BMW motorcycle northbound. Both vehicles were approaching the intersection of Bruce County Road 3 and Bruce County Road 2, which contains additional lanes for turning traffic and is controlled by a stop sign facing traffic on Bruce County Road 2. A vehicle containing two civilian witnesses was waiting at the stop sign on Bruce County Road 2, facing westbound.

The SO’s vehicle was in the southbound lane, preparing to execute a left hand turn onto Bruce Country Road 2. The Complainant had the right of way at the intersection, but as he approached the intersection the SO suddenly completed the left turn in front of the Complainant’s motorcycle. The Complainant collided into the passenger side front wheel of the SO’s police vehicle and landed on the road.[3] The SO got out of his vehicle and told the Complainant not to move. The Complainant was transported to the hospital in Walkerton where he was diagnosed with serious injuries.

In circumstances such as these the only criminal charge that warrants consideration is dangerous driving causing bodily harm contrary to 249(3) of the Criminal Code. In R. v. Beatty, [2008] 1 S.C.R. 49, the Supreme Court of Canada indicated that this offence requires that “the driving be dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place.” In my opinion, this test is met by SO’s manner of driving because he moved into the path of oncoming traffic without leaving enough space to safely complete the turn. Bruce County Road 3, although a rural highway, has a posted speed of 80 km/h. Crossing into the path of oncoming traffic travelling at this speed presents a clear risk of danger to the public.

However, Beatty also made it clear that driving that presents a risk to the public, viewed on its own, is not enough to make out the criminal offence of dangerous driving. The manner of driving must also be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.” Only then can a driver be considered morally blameworthy to the point where he or she is deserving of a criminal conviction. This distinction was more recently explained in R. v. Roy, [2012] 2 S.C.R. 60, when the Supreme Court of Canada emphasized that:

Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy" (para. 34). The Chief Justice expressed a similar view: "Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving" (para. 71).

In these circumstances, there is simply insufficient evidence to infer a marked departure from the standard of care that a reasonable driver would observe in the SO’s circumstances. While it is clear that the left turn was dangerous, there is no evidence that the driving leading up to the turn was anything other than normal and prudent driving.[4] There is also no evidence that the SO was under the influence of any intoxicants or was otherwise distracted while driving.[5] The SO told the SIU that he did not see the Complainant before completing the left turn and I believe the SO.[6] I also find that the Complainant should have been visible to the SO.[7] Why the SO did not see the Complainant is unknown; however, there is no evidence that suggests more than a momentary lapse of attention. I am accordingly unable to find the SO’s manner of driving represents a marked departure from the standard of care.

In sum, while it is clear that the SO’s left turn created a risk of danger which had very significant consequences[8], there is simply insufficient evidence that the SO’s driving meets the high threshold required to find a marked departure from the standard of care. I am therefore unable to form grounds to believe the SO committed a criminal offence in relation to the collision and the file will be closed.

Date: September 25, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] This affidavit relates to systems that police officers use for communication. [Back to text]
• 2) [2] Meaning that the SO’s attention to his driving was not distracted by his either sending or receiving a CAD message just prior to the collision. [Back to text]
• 3) [3] The Complainant’s speedometer was found jammed at just under 70 km/h. [Back to text]
• 4) [4] The GPS data from the SO’s vehicle confirmed that he was not speeding. A minute prior to the collision, the SO drove at upwards of 67.62 km/h but slowed his vehicle to 40.25 km/h and then 24.15 km/h. [Back to text]
• 5) [5] None of the witnesses observed any signs of intoxication and it was confirmed that the SO was not sending or receiving a CAD message just prior to the collision. [Back to text]
• 6) [6] The SO presented as a reliable witness whose account of the incident was corroborated by the other witnesses. I believe he is credible because he candidly admitted that he violated the Highway Traffic Act despite being under no obligation to speak with the SIU. [Back to text]
• 7) [7] The SIU reconstructionist opined that, assuming the Complainant was travelling at about 90 km/h (his believed speed), the Complainant should have been visible for eight seconds after going over a hill about 200 metres south of the collision. [Back to text]
• 8) [8] And as even the SO concedes, amounts to an offence under the Highway Traffic Act. [Back to text]