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 injury sustained by a 37-year-old woman following a motor vehicle collision that occurred on September 12, 2017.

Notification of the SIU

On September 13, 2017, at 5:30 p.m., the Ontario Provincial Police (OPP) notified the SIU of the apparent serious injury sustained by the Complainant subsequent to a motor vehicle collision that had occurred in the early afternoon of September 12, 2017.

The OPP reported that on September 12, 2017, at 12:15 p.m., a vehicle driven by the Complainant on Highway 12 was struck from behind by a vehicle registered to the OPP and driven by an off-duty OPP police officer. At the time of the collision, the Complainant indicated that she had not suffered an injury. The Complainant notified the OPP the next day and advised that she had since been examined at hospital and had been diagnosed with having a mild concussion.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence.

Complainant

37-year-old female interviewed, medical records obtained and reviewed

Witness officer

WO Interviewed

Subject officer

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

The scene

The collision occurred on Highway 12 westbound, 50 metres east of the east curb of Medonte Sideroad 2. The roadway was in good repair and consisted of one lane each for east and west traffic. The area was canvassed for witnesses and/or video to no avail.

Scene diagram

Forensic evidence

According to the OPP Professional Standards Branch (PSB), the involved OPP vehicle was a Land Rover. The vehicle is only used for undercover and covert surveillance projects and is not equipped with any police identifiers, including communications equipment. The SO had been using the Land Rover for such activities prior to the collision. He had completed his shift that day and was on his way home with the vehicle when he collided with the Complainant.

PSB isolated the vehicle and held it for the SIU in a compound in Orillia. An SIU forensic investigator photographed and examined the OPP Land Rover and the Complainant’s Toyota on September 14, 2017. The SIU was unable to download any telemetry from the Land Rover because of equipment issues. The OPP verified that, they too, could not access the information in the Land Rover’s computer; in order to do so, a technician from Land Rover would have had to attend.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP (Barrie and Southern Georgian Bay Detachment):

• Motor Vehicle Collision Report
• notes of the WO, and
• photos of involved OPP police vehicle

Just after noon on September 12^th, 2017, the Complainant was driving southbound on Highway 12 when she slowed down for a vehicle in front of her. The SO, who was driving behind the Complainant, was unable to bring his vehicle to a complete stop and collided with the rear end of the Complainant’s vehicle.

After colliding with the Complainant’s vehicle, the SO contacted the OPP communications centre and advised them of the collision.

The following day, the Complainant attended the hospital where she was diagnosed with a concussion.

Sections 219 and 221, Criminal Code - Criminal negligence

219 (1) Every one is criminally negligent who

1. in doing anything, or
2. 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.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

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

(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…

(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.

On September 12^th, 2017, an off-duty police officer, the SO of the OPP Barrie Detachment, was driving an undercover police vehicle at approximately 12:15 p.m., travelling southbound on Highway 12, 50 metres east of the Medonte 2 Sideroad, in the Village of Coldwater. The SO was off-duty and was driving the undercover vehicle to his residence after having completed his shift. The Complainant was also operating her motor vehicle southbound on Highway 12 when she had to abruptly slow for a vehicle in front of her. The SO, who was driving behind the Complainant, struck her vehicle. The SO contacted the WO, of the Southern Georgian Bay OPP Detachment, where the collision had occurred, and advised him that he had been travelling on Highway 12 when he saw a vehicle in front of him apply their brakes. He was unable to slow in time and struck the rear of the Complainant’s vehicle. He accepted full responsibility for the collision. The Complainant attended hospital the following day and was diagnosed with a concussion.

On all of the evidence, including the statements made by the SO both to the Complainant and to the WO, it is beyond dispute that the SO was at fault in the rear-ending of the Complainant’s motor vehicle and he acknowledged this at the time. A breach of the Highway Traffic Act, however, does not necessarily equate with reasonable grounds to believe that a criminal offence has been committed. The question to be determined is whether or not there are reasonable grounds to believe that the SO committed a criminal offence, specifically, whether or not his driving rose to the level of being dangerous and therefore in contravention of s.249(1) of the Criminal Code and did thereby cause bodily harm contrary to s.249(3), or if he was criminally negligent contrary to s.219 of the Criminal Code and did thereby cause bodily harm contrary to s.221.

Pursuant to the Supreme Court of Canada in R v. Beatty, [2008] 1 S.C.R. 49, s.249 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 and the driving must 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”; while the offence under s.221 requires “a marked and substantial departure from the standard of a reasonable driver in circumstances” where the accused “showed a reckless disregard for the lives and safety of others” (R. v. Sharp (1984), 12 C.C.C. (3d) 426 (Ont. C.A.)).

On all of the evidence, it is clear that I have reasonable grounds to believe that the SO, immediately prior to the collision, was following the vehicle of the Complainant too closely and, as such, was unable to stop in time when the vehicle in front of him abruptly slowed, and he collided with her vehicle. Other than the collision itself, there is no evidence whatsoever of the SO’s driving, and certainly no evidence that the SO’s driving was such that it would constitute “a marked departure from the norm” and even less so “a marked and substantial departure from the norm” nor is there any evidence that he exhibited “a reckless disregard for the lives and safety of others”.

Clearly, a breach of the Highway Traffic Act does not, in and of itself, rise to the level of driving required to make out a criminal offence, and while the SO was responsible for the collision and the Complainant’s subsequent injury, I cannot find reasonable grounds to believe that any criminal offence was committed here. With respect to charges under the Highway Traffic Act, that is not within my mandate and I will leave that to the Commissioner of the OPP to pursue charges, if he deems it appropriate.

Date: November 16, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit