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 the serious injuries sustained by a woman as a result of a collision with a police vehicle on October 9, 2017.

Notification of the SIU

At approximately 1:01 p.m. on October 9, 2017, the Durham Regional Police Service (DRPS) reported a motor vehicle collision at Rossland Road and Harwood Avenue in the Town of Ajax between a police cruiser and a vehicle driven by a woman with a young passenger. The names were unknown at the time. The police officer and the woman were taken to hospital where the woman was diagnosed with fractured ribs and the officer was diagnosed with a fractured ankle.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 2

Number of SIU Collision Reconstructionist assigned: 1

Complainant:

70-year-old female, unable to be interviewed due to the nature of her injuries, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

WO #5 Interviewed, notes received and reviewed

WO #6 Interviewed, notes received and reviewed

WO #7 Interviewed, notes received and reviewed

WO #8 Notes reviewed, interview deemed not necessary

After a review of WO #8’s notes, it was apparent she only maintained a traffic point at Harwood Avenue North and Biggs Drive following the collision, as a result of which she was not interviewed.

Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

Nature of Injury/Treatment

The Complainant, CW #1, and the SO, were all injured in the collision, and were transported to hospital by ambulance. The Complainant, who was the most seriously injured, was diagnosed with a fractured pelvis and a brain injury, CW #1 sustained a soft tissue injury, and the SO was diagnosed with torn tendons in his right ankle. The Complainant did not completely recover from her injury and has been in and out of hospital, and is now convalescing at a nursing home.

The Scene

In the area of the collision, Harwood Avenue is a paved asphalt road which permits two lanes of northbound and two lanes of southbound vehicular movement. The lanes are delineated with intermittent white paint marks. Harwood Avenue intersects Rossland Road at near right angles. Concrete medians divide the opposing lanes at both approaches to Rossland Road. The intersection is controlled by functioning traffic signals, white painted stop bars, pedestrian signals, and white painted pedestrian crosswalks. Artificial lighting is located throughout the intersection but is a moot issue as this collision occurred in daylight hours. At 11:08 a.m., the temperature was 17.0 degrees Celsius and the dew point was 15.0 degrees Celsius. The winds were out of the north/northeast at 9.3 km/h and it was overcast. Visibility was 14.5 kilometres. There had been light rain most of the morning up until 10:00 a.m.

The posted speed limit on Harwood Avenue, south of the intersection with Rossland Road, is 60 km/h and is reduced to 50 km/h north of the intersection.

The speed limit on Rossland Road is 60 km/h.

Harwood Avenue facing north approaching Rossland Road.

Tim Hortons and Shell Station on southeast corner of Harwood Avenue and Rossland Road.

The police cruiser came to rest in the southbound Harwood Avenue lanes of traffic. The Kia came to rest on the grass and sidewalk on the northwest corner.

Rossland Road facing west in the westbound lanes approaching Harwood Avenue.

Scene Diagram

Physical Evidence

The Complainant’s vehicle.

The police cruiser.

Forensic Evidence

On Monday October 9, 2017, the SIU Forensic Investigators and a Reconstructionist attended the scene of the collision. The scene was photographed, video recorded and mapped with the use of a Sokkia Total Station. The SIU located the SO’s cruiser facing northeast, positioned in the westbound lanes of Rossland Road. The complete front end of the cruiser was crushed with the greatest depth of crush measured at 20 cm at the right front. The cruiser’s airbag control module (ACM) was downloaded at the scene at 7:35 p.m. The driver’s seat belt status was “unbuckled.” The pre-crash data was recorded in half-second increments up to 5.0 seconds before ‘time zero’, or the time at which the airbags deployed. The cruiser’s speed was gradually reduced from 82 km/h to 77 km/h with throttle ranging from 12 to 34 percent and no brake switch active from 5.0 to 1.0 seconds prior to ‘time zero’. At half a second before ‘time zero’, the brake switch was active and the speed was reduced to 62 km/h.

The Complainant’s 2016 Kia Soul was located on the grassy area of the northwest boulevard of the Rossland Road and Harwood Avenue intersection. The Kia vehicle had sustained extensive damage to the driver’s side and the rear passenger side wheel was broken off. The ACM from the Complainant’s vehicle was removed from the scene and then downloaded on October 10, 2017. The recorded ACM data indicates the driver and passenger safety seat belt status was “on”. The speed of the Kia was 70 km/h, 5.0 seconds before ‘time zero’, 71 km/h, 4.5 seconds before ‘time zero’, 68 km/h, 1 second before ‘time zero’, and 66 km/h at ‘time zero’. Over this period of time the accelerator pedal was reduced from 20 percent to zero percent and there was no brake application at all.

No submissions were made to the Centre of Forensic Sciences.

Expert Evidence

SIU Reconstructionist Conclusion

An assessment of the collision yields the following conclusions:

At approximately 11:26 a.m., on Monday, October 9, 2017, the atmosphere was clear and it had stopped raining one and a half hours prior to the collision.

The Complainant was operating a Kia vehicle westbound in the westbound through lane of Rossland Road in the Town of Ajax. The Complainant entered the intersection with Harwood Avenue at about 68 km/h. CW #1 was seated in the front passenger seat. Both were wearing their seatbelts. At almost the same time, the SO was operating a DRPS vehicle northbound in the passing northbound lane of Harwood Avenue. The SO entered the same intersection at about 77 km/h. The SO was not wearing his seatbelt. The speed limit on both of the roads that the SO and Complainant were traveling on is posted at 60 km/h. The SO applied his brakes and at a speed slightly less than 62 km/h, the cruiser’s front end came into collision with the left front fender, wheel axle, and driver’s door of the Complainant’s Kia motor vehicle. The Kia vehicle did not brake or steer to try to avoid the collision. The Kia vehicle rotated slightly counterclockwise and became partially airborne in a northwest direction coming to rest facing southeast on the west sidewalk of Harwood Avenue.

The collision reconstruction in itself could not assist with the determination of the colour of the traffic signal status in this controlled intersection at the time of the collision.

Video/Audio/Photographic Evidence

On October 9, 2017, the SIU canvassed the Regional Municipality of Durham requesting any and all video recorded by a traffic control camera visible on a utility pole in the vicinity of the Rossland Road and Harwood Avenue intersection. According to a supervisor in the Traffic Engineering Department, the said camera was not recording at the time of the collision due to the incident occurring on a statutory holiday. The cameras only record when staff is present to monitor what is being recorded.

On October 9, 2017, the SIU canvassed several businesses located at the intersection of Harwood Avenue and Rossland Road for video. Three of the businesses had video, none of which assisted with determining what colour the traffic light was at the time of the collision.

Shell Station, 999 Harwood Avenue North, Ajax

The Shell station is located at the southeast corner of Harwood Avenue and Rossland Road. The video was recorded by one exterior CCTV camera which faced northeast and captured a portion of Rossland Road. The video did not have a time stamp. A gray/silver vehicle (believed to be the Complainant’s Kia vehicle) can be seen traveling westbound on Rossland Road.

Tim Hortons, 989 Harwood Avenue North, Ajax

This business is located on the southeast corner of the intersection of Harwood Avenue and Rossland Road just south of the Shell gas station. The video was recorded by one exterior CCTV camera which faced southwest and captured a portion of Harwood Avenue. At 11:24:59 a.m., a marked DRPS cruiser can be seen traveling north on Harwood Avenue in the centre lane.

Hazmasters, 651 Harwood Avenue North, Ajax

This business is located on Harwood Avenue approximately 700 metres south of Rossland Road and south of both the Shell Gas Station and the Tim Hortons. This video was recorded from one exterior CCTV camera which faced northwest and captured a portion of Harwood Avenue. At 11:26:24 a.m., a marked DRPS cruiser travelled north on Harwood Avenue in the centre lane.

Communications Recordings

Police Communication Recordings (Summary)

On October 9, 2017, at 11:25:36 a.m., the Durham Region 911 system received its first call related to the collision involving the SO and the Complainant. The caller requested that an ambulance and the fire department attend for a police car and two other vehicles which collided in the Harwood Avenue and Rossland Road intersection.

Over the next minute and a half, a number of other calls were received reporting the collision. At 11:26:33 a.m., the SO used his police radio to report that he was involved in a collision with another vehicle. The dispatchers had issues getting complete information from the SO, as it sounded like the SO was speaking to someone on scene at the same time he was speaking to the dispatcher.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the DRPS

• Notes of WO #s 1-8
• GPS/Automatic Vehicle Locator (AVL) data from the SO police vehicle
• 911 Call Recordings, and
• Police Transmissions Communication Recording

The SIU obtained and reviewed the following materials and documents from other sources:

• Medical records for CW #1 relating to this incident
• ACM data from both vehicles
• CCTV video footage from three business in the area of the collision, and
• Ambulance Call Report

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 plae

(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.

Section 128, Highway Traffic Act – Rate of Speed

128 (1) No person shall drive a motor vehicle at a rate of speed greater than,

1. 50 kilometres per hour on a highway within a local municipality or within a built-up area
2. despite clause (a), 80 kilometres per hour on a highway, not within a built-up area, that is within a local municipality that had the status of a township on December 31, 2002 and, but for the enactment of the Municipal Act, 2001, would have had the status of a township on January 1, 2003, if the municipality is prescribed by a regulation
3. 80 kilometres per hour on a highway designated by the Lieutenant Governor in Council as a controlled-access highway under the Public Transportation and Highway Improvement Act, whether or not the highway is within a local municipality or built-up area
4. the rate of speed prescribed for motor vehicles on a highway in accordance with subsection (2), (5), (6), (6.1) or (7)
5. the maximum rate of speed set under subsection (10) and posted in a construction zone designated under subsection (8) or (8.1); or
6. the maximum rate of speed posted on a highway or portion of a highway pursuant to section 128.0.1 2005, c.26, Sched. A, s. 17 (1); 2006, c. 11, Sched. B, s. 6 (2); 2006, c. 32, Sched D, s. 4 (1)

(13) The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,

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

Section 144 (18), Highway Traffic Act – Fail to Stop at Red Light

144 (18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.

On October 9, 2017, at approximately 11:25 a.m., the Complainant was operating her motor vehicle, a Kia Soul, travelling westbound on Rossland Road approaching its intersection with Harwood Avenue in the Town of Ajax. CW #1 was her front seat passenger. The posted speed limit on Rossland Road in this area was 60 km/h. The ACM data from the Kia motor vehicle revealed that the Complainant was driving at 70 km/h, 5 seconds prior to impact, 71 km/h, 4.5 seconds prior to impact, 68 km/h, 1 second prior to impact, and 66 km/h at the point of impact. While the ACM data revealed that the accelerator pedal was reduced from 20 percent to zero during this time, indicating that the Complainant had removed her foot from the accelerator prior to impact, she at no point applied her brakes.

At roughly the same time, the SO of the DRPS was operating his police vehicle northbound on Harwood Avenue approaching its intersection with Rossland Road in the Town of Ajax. The posted speed limit on this portion of Harwood Avenue was 60 km/h. The ACM data from the SO’s police cruiser revealed that he was driving at 82 km/h, 5 seconds prior to impact and slowed to 77 km/h, 1 second prior to impact. At 0.5 seconds prior to impact, the SO applied his brakes and his vehicle’s speed was registered at 62 km/h.

As the Kia Soul and the police cruiser entered the intersection, they collided in the westbound lanes of Rossland Road and the northbound lanes of Harwood Avenue. The front of the police cruiser collided with the left front fender, wheel axle and driver’s door of the Kia and propelled it into a counterclockwise rotation. The Kia came to rest straddling the sidewalk and grassy boulevard northwest of the intersection. The cruiser came to rest facing northeast within the intersection at its northern end. Each of the vehicles’ occupants was transported to hospital and diagnosed with the following injuries: the Complainant suffered a brain injury and fractured pelvis; CW #1 was left with a soft tissue injury; and, the SO sustained torn tendons in his right ankle.

While there is always the possibility, however remote, that the traffic signal malfunctioned, in the absence of any such evidence it appears obvious that either the Complainant or the SO entered the intersection against a red traffic signal. However, I am unable on the evidence collected in the investigation to say with any confidence which of the parties ran the red light. There was conflict on this point in the witness evidence and no video recordings from security cameras in the area which were able to shed any light on the colour of the traffic control signals at the intersection of Rossland Road and Harwood Avenue at the time of the collision. As far as the SO’s potential criminal liability is concerned, therefore, one is essentially left to consider what to make of the fact that he was exceeding the speed limit in the moments leading to the collision.

The only offence that arises for serious consideration in this case is that of dangerous driving causing bodily harm pursuant to section 249(3) of the Criminal Code. The offence is not made out unless the driving in question can be said to amount to a marked departure from the level of care that a reasonable person would have observed in the circumstances. In my view, there are no reasonable grounds to believe the SO’s driving leading to the collision transgressed the limits prescribed by the criminal law. Aside from the fact that the SO’s speed exceeded the 60 km/h speed limit on Harwood Avenue as he approached the intersection, there appears to have been nothing objectionable with the manner in which the officer was operating the police cruiser. Nor does there appear to have been in the environmental conditions that prevailed at the time any warrant for added caution. The day was sunny and visibility was good, vehicular and pedestrian traffic in the area was less than usual because of the holiday and, while it had rained earlier, the roads seem to have been dry throughout the events in question. Finally, there is evidence to suggest the SO was alert and aware of his surroundings around the time of impact; his statement that he applied the cruiser’s brakes immediately upon seeing the Kia vehicle in his peripheral vision is confirmed by the data downloaded from his cruiser ACM.

Turning to the SO’s speed, it is fair to say that there appears to have been no need or reason for the officer to have exceeded the speed limit, of which he was well aware. While officers operating police vehicles in the course of their duties are exempt from complying with the speed limit under the Highway Traffic Act, this of course does not provide them free rein to speed as they wish. Like other motorists, police officers must operate their vehicles having due regard for the public’s safety in light of the circumstances, such as the nature of the duty being performed at the time, the condition of the roads and other relevant considerations. By traveling upwards of 20 km/h above the speed limit as he approached the Harwood Avenue and Rossland Road intersection, the SO left himself a smaller margin that he might otherwise have enjoyed traveling at a lower speed to react to the Kia vehicle crossing his path and perhaps take action to avert a collision. On the other hand, it bears noting that the officer’s speed was not grossly in excess of the speed limit and was tempered by the fact there was little to no pedestrian and vehicular traffic along Harwood Avenue.

On balance, I am satisfied on this record that the SO comported himself within the limits of care prescribed by the criminal law. While the officer’s speed may legitimately attract scrutiny, it was not such as to render his driving in and around the time of the collision a marked departure from the standard a reasonable person would have exercised in the circumstances. For these reasons, there are no reasonable grounds in my view for proceeding with charges in this case, and the file is closed.

Date: August 3, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit