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 a serious injury sustained by a 57-year-old male on September 5, 2017.

Notification of the SIU

On September 12, 2017, at 12:00 p.m., a member of the Ontario Provincial Police (OPP) notified the SIU of the serious injury reported by the Complainant arising from a motor vehicle collision on September 5, 2017.

The OPP member reported that on September 5, 2017, at 2:45 a.m., a patrolling police officer attempted to stop a vehicle for a driving offence. The vehicle failed to stop and the officer initiated a brief pursuit before it was terminated by the communications supervisor. A few minutes later, the communications dispatcher broadcast about a collision involving two vehicles in Wasaga Beach. The Complainant was the driver of one of those vehicles.

Police were dispatched to the scene and spoke to the Complainant when they got there. He told them that the vehicle that had collided with him from behind had fled the scene. The vehicle that had left the scene precisely matched the description of the previously pursued vehicle. The Complainant did not have an apparent injury at the time, but notified the OPP one week later that he had been diagnosed with a concussion.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant:

57-year-old male, interviewed, medical records obtained and reviewed

Civilian Witnesses

CW Interviewed

Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right

The subject officer was the only OPP police officer designated at the outset of the investigation. However, it was later learned that another officer arrived later at the scene of the collision, spoke briefly to the Complainant, and then left to locate the suspect vehicle. This officer was not designated as a witness or subject officer because he was not involved in the pursuit.

On September 5, 2017, at 2:44 a.m., the SO attempted to stop the CW for a driving offence. The SO reported to his communications Sergeant that the CW’s vehicle had run two red lights and was not stopping for him. The SO turned on his siren and followed the CW. At 2:46 a.m., the SO said that his speed was 120 km/h but that he had reduced his speed to 80 km/h. The SO turned onto a different road and said that there was no traffic. At 2:47 a.m., the SO said his speed was 75 km/h. When asked for the reason of the pursuit, the SO said, “The truck pulled out from the Dart tavern at a very high speed. Ran the first light and then a second red light.” The communications Sergeant confirmed that there was no evidence of criminal behaviour and then advised the SO to terminate the pursuit. At 2:48 a.m., the SO confirmed that he had pulled over.

It is alleged that the CW, shortly after the pursuit was terminated, rear-ended the Complainant’s vehicle, causing him a serious injury.

Communications Recordings

September 5, 2017

• (0244 hrs) The SO: Just a marker please. (the CW’s license plate number) Not stopping so far. Two red lights
• (0245 hrs) Dispatch: 10-4. Registered owner is the SO. Location?
• The SO: (siren sound) (provides location)
• Dispatcher: Speed?
• (0246 hrs) The SO: 120. Now down to 80
• Dispatcher: Location?
• The SO: (updates location)
• Dispatcher: Traffic?
• The SO: No traffic
• (0247 hrs) Dispatcher: Speed?
• The SO: 75
• Communications Sergeant: Reason for pursuit please
• The SO: The truck pulled out from the Dart tavern at a very high speed. Ran the first light and then a second red light
• Communications Sergeant: 10-4. Any criminal behaviour?
• The SO: Just fail to stop
• Communications Sergeant: 10-4. Terminate, pull over and advise mileage
• (0248 hrs) The SO: 10-4. 5083. Pulled over. (No siren sound) (The SO then described the truck and gave the last direction of travel.)

The total time elapsed was five minutes and 15 seconds.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from Huronia West OPP Detachment:

• Arrest Report (CW)
• CAD data for cruiser for the undesignated officer
• AVL data for the SO and the undesignated officer
• Google earth map with pursuit route
• GPS data table for the SO and undesignated officer
• Medical records for the Complainant
• OPP Motor Vehicle Collision Report, and
• Communications Recordings

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

249 (1) Every one commits an offence who operates

(a) 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…

(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(13)(b) Highway Traffic Act of Ontario – Speed Limit Exemption for Emergency Vehicles

128(13) The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,

1. a fire department vehicle while proceeding to a fire or responding to, but not returning from, a fire alarm or other emergency call
2. a police department vehicle being used in the lawful performance of a police officer’s duties; or
3. an ambulance while responding to an emergency call or being used to transport a patient or injured person in an emergency situation.

The SO engaged the CW in a brief suspect apprehension pursuit in the middle of the night at Wasaga Beach. A short time after the pursuit was terminated, the CW’s vehicle allegedly rear-ended another vehicle causing serious injuries to the other driver. The SO declined to make a statement to SIU investigators and the only information about the SO’s manner of driving comes from his radio communications and the AVL/GPS data from his vehicle. For the reasons that follow, I have no reasonable grounds to believe that the SO committed a criminal offence in relation to the incident.

The only relevant criminal charge that could apply in these circumstances is dangerous driving causing bodily harm contrary to s. 249(3) of the Criminal Code. The test for dangerous driving is twofold. The accused’s manner of driving, viewed objectively, must be “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place in 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.” The driving must also demonstrate a marked departure from the standard of care a reasonable person would observe in the accused’s circumstances (R. v. Beatty, [2008] 1 S.C.R. 49). On this evidence, I am unable to find the SO’s driving was objectively dangerous. While the SO’s speed reached upwards of 120 km/h in an 80 km/h zone, s. 128(13)(b) of the Highway Traffic Act allows police officers to speed in the lawful execution of their duties. The SO, later during the pursuit, also reduced his speed to as low as 75 km/h. Having regard to the circumstances, including the time of night and the lack of traffic, his speed alone would be insufficient to establish dangerous driving. Nor does the SO’s conduct amount to a departure from the standard of care of a reasonable police officer – let alone a marked departure. The SO was acting in accordance with his duties as a police officer when he attempted to stop the CW for two serious breaches of the HTA, he followed OPP policy on suspect apprehension pursuits, and terminated the pursuit as soon as he was directed to by the communications Sergeant.

Furthermore, there is absolutely no evidence that the SO’s driving contributed to the collision and the resulting bodily harm. The AVL/GPS data from the SO’s vehicle demonstrates that he was 5.9 km from the site of the collision when it occurred. Because the pursuit had been terminated for some time and the SO’s vehicle was far from the collision, I am unable to conclude that the pursuit contributed in any way to the collision.

As there is no evidence that the SO’s driving was objectively dangerous, amounted to a marked departure from the standard of a reasonable police officer, or contributed to the Complainant’s injuries, I am satisfied that there are no reasonable grounds to believe the SO committed an offence. No charges will issue and the case will be closed.

Date: July 6, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit