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SIU Director’s Report - Case # 18-PVI-080

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Mandate of the SIU

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.

Information restrictions

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.

Mandate engaged

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 56-year-old female on March 13, 2018.

The Investigation

Notification of the SIU

On March 14, 2018, at 11:00 p.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury. The OPP reported that on March 13, 2018, at 11:21 a.m., the Complainant was driving her pickup truck on Kirkland Street East when she collided with a police vehicle with two police officers in it. The involved vehicles sustained significant damages and the police officers were transported to the hospital for minor injuries. The Complainant did not sustain any injuries as a result of the collision. OPP collision reconstructionist responded to the scene and investigated the motor vehicle collision.

On March 14, 2018, at 10:20 p.m., WO #2 went to the Complainant’s residence to serve her with a provincial offences notice. The Complainant told WO #2 that she went to the hospital a few hours after the collision and was diagnosed with a concussion.

The Team

Number of SIU Investigators assigned: 5

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Not Interviewed

CW #2 provided a statement to the OPP which was reviewed by the SIU. The SIU tried to contact CW #2 but was unsuccessful.

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Not interviewed, but notes received and reviewed

Subject Officers

SO Interviewed, and notes received and reviewed



Incident Narrative

On March 13, 2018, at around 11:20 a.m., the SO and the Complainant were involved in a motor vehicle collision in Kirkland Lake. The SO was driving an unmarked police vehicle on Duncan Avenue South, approaching Kirkland Street. The conditions were slippery and the SO had reduced his speed to approximately 20 km/h. The Complainant was driving behind him in a pickup truck and, as the SO began to execute a left turn onto Kirkland Street, the Complainant’s vehicle struck the unmarked police vehicle on the driver’s side door, causing damage to both vehicles. After the collision, the Complainant asked WO #1, who was a passenger in the police vehicle, why they had initially signaled as if they were turning to the right. The SO was transported to a hospital and diagnosed with a concussion. The Complainant was also later diagnosed with a concussion.

Evidence

The Scene

The scene was located at the intersection of Duncan Avenue South and Kirkland Street West in Kirkland Lake.

Duncan Avenue South is a two-lane paved asphalt road that permitted vehicular movement in south and north bound directions with a posted speed limit of 40 km/h.

Kirkland Street West is a two-lane paved asphalt road that permitted vehicular movement in east and west bound directions with a posted speed limit of 50 km/h. Kirkland Street East turns into Kirkland Street West after it intersects with Duncan Avenue South. The intersection is controlled by two stop signs located on Kirkland Street East and Kirkland Street West.

The OPP collision reconstructionist attended the scene and made a digital photographic record of the scene, took measurements and completed scale drawings of the scene relevant to the incident. The scene depicted that the road conditions were wet and slippery and that there was a significant amount of snow on the roadway.

Communications Recordings

The SIU received and reviewed the communications recordings related to the incident from the OPP. The communications recordings depicted conversation between WO #1 and the 911 operator. WO #1 told the operator that he was in a unmarked police vehicle with the SO and they were involved in a motor vehicle collision with another vehicle [later identified as the Complainant’s vehicle]. WO #1 told the operator that none of the people involved in the collision sustained any injuries and requested that a sergeant attend the scene.

WO #3 arrived at the scene and told the dispatcher that the SO had sustained injuries and that the Complainant did not have any injuries.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP Kirkland Lake Detachment:

  • A List of Civilian Witnesses;
  • Damage to Vehicle and Property Report;
  • Event Chronology Report;
  • General Occurrence Report;
  • List of Involved Officers and their Roles;
  • Motor Vehicle Accident Report;
  • Notes of the SO, WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, and WO #7;
  • OPP Collision Reconstruction Report;
  • OPP Communication Recordings;
  • The Complainant’s OPP Statement;
  • CW #2’s OPP Statement;
  • Technical Collision / Reconstruction Report 24 hrs Notification Report; and
  • Supplementary Occurrence Report.

OPP Collision Reconstructionist Report

The SIU received and reviewed the collision report authored by WO #5 and WO #6. The collision reconstructionist report depicted the following:

The SO’s vehicle was northbound on Duncan Avenue South turning left to travel westbound on Kirkland Street West. The Complainant’s pickup truck struck the SO’s vehicle’s driver’s side area as it travelled through the intersection. This can be confirmed by the damage sustained by the pickup truck to its front right bumper and on the driver’s side area of the SO’s vehicle.

Relevant Legislation

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.

Analysis and Director's Decision

This decision relates to an injury sustained by the Complainant on March 13, 2018, in Kirkland Lake after her vehicle hit an unmarked police vehicle operated by the SO, an OPP officer. Both vehicles were travelling northbound on Duncan Avenue South, with the SO’s travelling in front of the Complainant’s pickup truck. It is alleged that the SO initially signaled that he was turning right onto Kirkland Street but changed the signal and turned left. The Complainant’s pickup truck was unable to stop and struck the driver’s side of the unmarked police vehicle, causing the Complainant to sustain a concussion. For the reasons that follow, I am unable to find that the SO’s driving meets the threshold required for dangerous driving and therefore have no reasonable grounds to believe he committed a criminal offence in connection with the Complainant’s injury.

The SIU interviewed the Complainant, the Complainant’s doctor, the SO and two witness officers. The OPP’s Collision Reconstructionist Report was also obtained and reviewed. While there are some differences in the witness statements, the majority of the evidence is consistent and the facts surrounding the collision are clear.

On March 13, 2018, at around 11:20 a.m., the SO was driving northbound in an unmarked police vehicle on Duncan Avenue South, approaching Kirkland Street. Duncan Avenue is a two-lane asphalt road with a posted speed limit of 40 km/h. WO #1 was also in the vehicle, sitting in the front passenger seat. The road conditions were slippery and, as a result, the SO was driving at approximately 20 km/h. The Complainant was driving behind him in her pickup truck. The SO began to execute a left turn onto Kirkland Street West when the Complainant’s truck struck the unmarked police vehicle on the driver’s side door, causing damage to both vehicles. The SO and WO #1 were transported to Kirkland District Hospital where the SO was diagnosed with a concussion. Following the collision, the Complainant was also diagnosed with a concussion.

It is alleged that the collision resulted from the SO’s poor signaling and that the unmarked police vehicle initially signaled to the right, but then signaled to the left as the Complainant approached the intersection. The SO did not say that he signaled right and said he activated his left turn signal as he approached the intersection. He proceeded to turn left at the intersection and then the collision occurred. He said that after the collision, the Complainant told him that she was looking down for a moment before she realized how close she was to the SO’s vehicle. I am inclined to believe that the SO initially signaled right before he changed his signal and turned left. WO #1 was not paying attention to how the SO signaled, but he said that the Complainant asked him after the collision why they initially signaled to the right. This would be a strange thing to ask if it did not in fact occur.

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 manner of 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.” Beatty also made it clear that 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.

In these circumstances, I am unable to conclude that the SO’s driving was dangerous to the public or amounted to a marked departure from the standard of care that a reasonable driver would observe in the SO’s circumstances. The SO appropriately slowed the speed of his vehicle to 20 km/h to reflect the poor road conditions. Whether the SO changed his signal from right to left before turning left, the SO’s driving was otherwise unremarkable. If he did in fact change his signaling, I infer that he simply signaled incorrectly before he changed his signal and turned left. Assuming it occurred, the changing of signal direction may have confused the Complainant, but such an act does not meet the threshold for objective dangerousness, let alone constitute a marked departure of the standard of care. Moreover, I have doubts that this act alone could have contributed to the collision and the resulting bodily harm. The Complainant was legally required to leave enough room between her truck and the police vehicle so that she could react to unforeseen conditions. I believe, therefore, that the collision was the result of her following too closely given the slippery road conditions.

In sum, the SO’s manner of driving was unremarkable and I am simply unable to form grounds to believe he committed a criminal offence. No charges will issue and the file will be closed.



Date: January 25, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit