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 motor vehicle collision that occurred between a 29-year-old female and an unmarked Ontario Provincial Police (OPP) vehicle on July 29, 2016.

Notification of the SIU

On July 29, 2016, at 3:55 p.m., OPP notified the SIU that on July 29, 2016, at 3:00 p.m., a vehicle being operated by the Complainant was driving northbound on Highway 400 at Highway 401, lost control and struck the rear of an OPP cruiser proceeding in the same direction. Both vehicles then struck a highway barrier.

The Complainant was taken to hospital for treatment of a broken wrist and chest pains. The OPP officer was taken to hospital for observation. An OPP Staff Sergeant advised that Highway 400 northbound was completely shut down at the scene.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and processed the involved vehicles. They documented the relevant scenes associated with the incident by way of notes, photography, and measurements.

Complainant:

29-year-old female, not interviewed[1], medical records obtained and reviewed

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed

The Scene

The scene was located on the Highway 400 northbound entrance ramp over Highway 401 in Toronto. At this location, Highway 400 consisted of three northbound lanes[2] and one merge lane going westbound to Highway 401. The roadway was paved asphalt with paved shoulders and concrete highway barriers running north and south along the sides of the ramp. The posted speed limit was 100 kilometres per hour (km/h).

Scene Diagram

Expert Evidence

OPP Motor Vehicle Collision Report:

The Complainant’s vehicle[3] was located on the northbound ramp of Highway 400 and faced west toward a concrete highway barrier. The Complainant’s vehicle had damage to the front end and there were tire marks on the roadway leading to the barrier. The SO’s unmarked OPP police cruiser[4] was located on the ramp facing south toward the Complainant’s vehicle. There was damage to the front end and left rear door of the cruiser and there were tire marks on the road leading to the concrete barrier.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications Recordings

There were no 911 calls.

The communications recordings made on July 29, 2016, between 2:48 p.m. and 4:00 p.m., were obtained from the OPP and revealed the following:

• At 2:48:23 p.m., the SO advised the police dispatcher that another car had sideswiped her. The SO was on Highway 400 northbound at Highway 401 and the SO requested the fire department and a supervisor attend the scene
• At 2:48:47 p.m., the SO informed the dispatcher that she “is a little beat-up but okay”
• At 2:49:19 p.m., multiple police units advised the dispatcher they were en route to the scene
• At 2:50:09 p.m., the SO advised the dispatcher that an ambulance was needed for the driver [now determined to be the Complainant] of the other vehicle
• At 2:52:57 p.m., an OPP police unit requested all northbound lanes on Highway 400 at Highway 401 be blocked off
• At 2:54:30 p.m., an OPP officer informed the dispatcher that the Complainant was complaining of a chest and hand injury and the airbags in her car had deployed
• At 2:56:15 p.m., the dispatcher requested an update on the SO’s injuries
• At 2:56:39 p.m., an OPP officer requested the on duty Traffic Sergeant be notified
• At 2:58:04 p.m., an OPP officer informed the dispatcher that the SO was fine with minor injuries. An ambulance was dispatched for the SO and Complainant
• At 3:16:30 p.m., the duty officer was advised by the dispatcher about the incident, and
• At 3:36:35 p.m., an OPP officer informed the dispatcher the SO and the Complainant were being transported to the hospital in separate ambulances

Contact with the Complainant

On July 29, 2016, SIU investigators met with the Complainant at the hospital. At the time, the Complainant declined to be interviewed by the SIU. SIU investigators called the Complainant several times after that date and messages left by the investigator were not returned. On August 2, 2016, SIU investigators attended the residence of the Complainant but there was no answer. On August 23, 2016, the SIU sent correspondence to the Complainant requesting an interview with her to facilitate a full investigation. On August 26, 2016, the Complainant contacted the SIU and advised she would provide an interview after she had spoken with her counsel. An SIU investigator called the Complainant several times after that date but the calls were unanswered and messages left by the investigator were not returned. On September 19, 2016, SIU investigators attended the residence of the Complainant twice. Both times her door was not answered. On September 20, 2016, an SIU investigator contacted counsel for the Complainant, requesting an interview with her. The investigator was advised counsel for the Complainant would respond to the request for an interview within a week. On October 6, 2016 an SIU investigator contacted the office again and was told that counsel was unavailable.

On October 12, 2016 an SIU investigator was contacted by counsel to arrange an interview with the Complainant. The SIU investigator replied and provided several suitable dates. No response was received from counsel afterwards. On October 27, 2016, a SIU investigator sent an email to counsel’s office requesting an interview with the Complainant. Counsel’s legal assistant advised the SIU that the Complainant declined an interview with the SIU.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP Aurora (Highway Safety Division/Headquarters):

• Disclosure Letter
• Communications recordings
• Field Notes relating to four non-designated OPP Vehicle Reconstruction officers
• General Occurrence Report
• Interview Report of CW #2 and CW #3
• Motor Vehicle Collision Report
• Occurrence Summary
• Supplementary Occurrence Report - summary of involvement of non-designated OPP Scenes of Crime Officer
• Supplementary Occurrence Report – Motor Vehicle Collision, and
• Vehicle Damage Report.

On July 29, 2016, at approximately 2:45 p.m., the SO was patrolling Highway 400 in an unmarked police SUV. At the time, the SO was travelling northbound in lane three, which was clear of any other vehicle. The Complainant was driving her black Honda and also travelling northbound, but in lane one. CW #1 was her passenger. The SO observed the Complainant to her left. CW #2 and CW #3 were also travelling northbound, in their truck, in lane two.

For no apparent reason, the Complainant abruptly moved from lane one, across lane two, and collided with the SO’s police vehicle in lane three. As a result of the collision, the SO’s police SUV and the Complainant’s Honda struck the concrete highway barrier on the northbound ramp of Highway 400. Airbags were deployed in both vehicles.

The SO notified the OPP communications of the collision, exited her police vehicle and approached the Complainant. The Complainant was complaining of a sore wrist and pain to her chest, so an ambulance was requested. The SO and Complainant were both transferred to the hospital. The Complainant was diagnosed with a displaced oblique fracture of her right wrist.

Section 249(1), 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

Section 249(3), Criminal Code - Dangerous operation causing bodily harm

249 (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 July 29, 2016, at approximately 3:00 p.m., the SO, an OPP Constable of the Highway Safety Division of the Aurora Detachment, was on highway patrol in an unmarked police vehicle when she was involved in a collision with a motor vehicle being operated by the Complainant. As a result, both the Complainant and the SO were transported to the hospital in separate ambulances. The Complainant was diagnosed as having sustained a displaced oblique fracture of the right wrist.

During the course of the investigation into this matter, the SIU interviewed three civilian witnesses and the SO. The Complainant, despite many opportunities to do so, ultimately declined, on the instructions of her lawyer, to attend an interview with the SIU investigators. The SIU investigators had access to and reviewed specifically the motor vehicle collision report, the vehicle damage report and the additional evidentiary documentation in the possession of the OPP related to this matter.

CW #1, the passenger in the Complainant’s vehicle, could not recall any details of the incident beyond his location in the car, the road conditions and the weather. He could not recall the highway they were on, or anything about the Complainant’s driving.

In his statement to police, CW #3 recalled that he was in the front passenger seat of a motor vehicle driving northbound. He described the traffic flow as not busy. At one point, he heard CW #2 say, “Oh my God!” which drew his attention to a black car travelling in the lane to the left of their vehicle which was subsequently known to be driven by the Complainant. CW #3 immediately observed the black car veer across two lanes of traffic and come into contact with the rear driver’s side area of a black SUV being operated by the SO traveling in the third lane of traffic. CW #3 did not recall seeing the black car signal its lane changes prior to the maneuver. However, he observed that as soon as the vehicle struck the unmarked police cruiser, both vehicles swerved to the left and struck the concrete highway barrier.

In his statement to police, CW #2 was the driver of the motor vehicle in which CW #3 was the passenger. He was driving northbound on Highway 400 from Jane Street. He advised that the lane in which he was driving was the middle lane of traffic. He observed the traffic flow to be light and there were no vehicles travelling ahead of him in his lane. CW #2 recalled seeing a motor vehicle in the lane to his left, subsequently known to be the Complainant. CW #2 also observed a black SUV, being operated by the SO, on the right side in lane three. The car driven by the Complainant had activated its right turn signal. CW #2, in anticipation, reduced the speed of his vehicle. At that instant, the vehicle driven by the Complainant veered across the two lanes of traffic directly in front of CW #2 and struck the driver’s side of the SO’s police vehicle in lane three. CW #2 witnessed both vehicles swerve to the left and strike the concrete barrier.

The SO stated that on July 29, 2016, she was operating a fully unmarked black Ford SUV, which was not equipped with an in-car camera. The SO was patrolling Highway 400 for moving violations and described the traffic flow as moderate; the weather was hot; the sun was shining; and the roads were dry and clear with good visibility at the time immediately prior to the collision. The speed of the flow of traffic was in the range of 110 to 115 km/h and the posted speed limit was 100 km/h. The SO, who was travelling at 120 km/h, indicated that the on board computer terminal was not illuminated; that she was not responding to any calls; that her attention was focused on the road as well as other drivers; and, that she was travelling northbound in lane three which was clear of any other vehicles. The SO caught a glimpse of the Complainant’s vehicle to her left. She observed that motor vehicle abruptly moved from lane one, across lane two, and collided with her Ford SUV behind the driver’s door. She described the action of the Complainant’s vehicle as an “in control” maneuver that occurred as she was approaching the Highway 401 exit ramp. As a result of the contact, the police vehicle of the SO spun perpendicular to the concrete barrier; struck the west concrete highway barrier on the northbound ramp of Highway 400 head on; caused the air bag to deploy; and caused her vehicle to bounce off the barrier travelling backwards.

On a review of all of the evidence, it is my conclusion that there is no dispute with respect to the facts surrounding this accident. The version of events as set out by the SO is confirmed and corroborated by two independent witnesses, CW #2 and CW #3, whose evidence was, in my opinion, consistent, credible, and reliable. On the contrary, it is my opinion that CW #1 was overall an unreliable witness.

It was the last minute maneuver by the Complainant, who was driving her vehicle on the northbound ramp of Highway 400, to unexpectedly veer across two lanes of traffic which directly resulted in the collision with the rear driver’s side door of the police cruiser of the SO. It is very fortunate that she did not strike CW #3’s vehicle and that there were very few motor vehicles in the immediate vicinity at the time of the accident or the damage could have been much greater.

The question that I must decide is whether anything in the interactions of the SO with the Complainant prior to the collision amounted to dangerous driving causing bodily harm contrary to s. 249 of the Criminal Code. Pursuant to the decisions in R. v. Roy, [2012] 2 S.C.R. 60; and R. v. Beatty, [2008] 1 S.C.R. 49, s. 249 jurisprudence requires a marked departure from the standard of care that a reasonable person would have exercised in the SO’s position and establishes a high threshold for criminal liability. In this case, other than her speed there is no indication that the SO departed from the standard of care of a reasonable officer.

Reviewing the evidentiary record, the SO was driving fully within her own lane of traffic at speeds that accorded with the general flow of traffic on the Highway 400 ramp. The SO made no abrupt or unsafe maneuvers prior to her vehicle being struck by the Complainant. The SO was alert and safely in complete control of her police cruiser at all times. In fact, it is my conclusion that the cumulative evidence indicates that the Complainant directly caused the accident as a result of her attempt to maneuver across three lanes of traffic in order to access the Highway 400 ramp without sufficient time or preparation. It is my opinion that there are no reasonable grounds to believe that the SO drove dangerously and no charges will issue.

Date: September 18, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] After several attempts by Investigators, the Complainant declined to be interviewed by the SIU. [Back to text]
• 2) [2] Identified in the OPP Motor Vehicle Collision Report diagram as L1, L2 and L3. [Back to text]
• 3) [3] Identified in the OPP Motor Vehicle Collision Report diagram as V1. [Back to text]
• 4) [4] Identified in the OPP Motor Vehicle Collision Report diagram as V2. [Back to text]