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SIU Director’s Report - Case # 19-OVD-015

Contents:

News Releases for this Case:

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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 the serious injury of a 28-year-old man (Complainant #1) and the death of a 29-year-old man (Complainant #2).

The Investigation

Notification of the SIU

On January 16, 2019, at 4:54 p.m., the Greater Sudbury Police Service (GSPS) contacted the SIU and reported the following:

On January 15, 2019 at about 11:49 p.m., a patrol sergeant positioned at a Tim Hortons Drive-Thru, saw a vehicle driving in a reckless manner in the parking lot. The vehicle left the parking lot and travelled southbound on Municipal Road 80. The sergeant made a radio broadcast to other police officers and advised them to make observations for a vehicle approaching their direction. A police officer saw the vehicle traveling southbound on Municipal Road 80 and initiated a pursuit. At 11:52 p.m., a patrol sergeant terminated the pursuit. The Automated Vehicle Location (AVL) data showed that the police cruiser had slowed to 29 mph. The police officer then broadcast over the radio that the car needed to be stopped.

At 11:53:34 p.m., the AVL data fixed to the police cruiser showed an increased speed to 60 mph.

At 11:54 p.m., the fleeing vehicle struck another vehicle, south of Valleyview Road on Municipal Road 80. The driver of the fleeing vehicle, Complainant #2, was taken to Health Sciences North (HSN) by ambulance and not expected to survive. The scene was processed by GSPS and next of kin had been notified.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Collision Reconstructionists assigned: 1

Three SIU investigators and one SIU Collision Reconstructionist were assigned to investigate the incident. SIU investigators attended HSN and conducted an audio recorded interview of Complainant #1. SIU investigators were unable to interview Complainant #2 due to his critical condition and Complainant #2 later succumbed to his injuries. The SIU conducted an analysis of AVL data provided by GSPS and an analysis of closed-circuit television (CCTV) footage specific to the incident.

Complainants

Complainant #1 28-year-old male interviewed, medical records obtained and reviewed
Complainant #2 29-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

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


Incident Narrative

The material events preceding the collision are clear on the evidence gathered by the SIU and can be summarized in short order. Complainant #2’s vehicle had come to the attention of the SO and his partner, WO #1, at about 9:20 p.m. of the day in question when it was observed speeding on Municipal Road 80 some four kilometres south of the site of the collision. The officers had thoughts of pursuing the vehicle, but abandoned the idea as the vehicle quickly disappeared from view. WO #1 broadcast what they had observed over the police radio.

At about 11:50 p.m., WO #2 was on patrol in his fully parked SUV when he observed an Audi being operated recklessly in the parking lot of the Tim Hortons in Hanmer. Surmising that this was the same vehicle the SO and WO #1 had earlier observed, the officer attempted but was unable to ascertain the vehicle’s licence plate marker as it was snow covered. WO #2 followed the Audi as it exited the parking lot onto Municipal Road 80 and watched as it travelled west at a high rate of speed. He decided not to pursue Complainant #2 given the speed at which the Audi was traveling and the roadway conditions, which were snowy and slippery with moderate traffic. Instead, WO #2 gave notice over the police radio to the SO and WO #1, who were stationary in their fully marked police sedan on Dominion Drive facing west just east of Municipal Road 80, that the Audi was headed in their direction.

About a minute or so after WO #2’s transmission, the SO and WO #1 observed Complainant #2’s Audi travel south past their location at speeds grossly in excess of the 70 km/h speed limit. The officers pulled onto Municipal Road 80 and gave chase for a short period, reaching a top speed of approximately 133 km/h, before pulling back as WO #2 came on the radio to caution against a pursuit and upon discovering that the vehicle they had in their sights was not the Audi in question. Meanwhile, Complainant #2 continued south at speeds well in excess of the speed limit until he lost control of his Audi, travelled into the northbound lanes of Municipal Road 80 and struck Complainant #1’s northbound vehicle just south of the Valleyview Road intersection. The SO and WO #1 arrived shortly after the collision, followed by WO #2, and did what they could to render assistance to Complainant #1 and Complainant #2. With the arrival of paramedic and fire service personnel, the injured parties were extracted from their vehicles and taken to hospital.

Evidence

The Scene

The scene was located just south of Valleyview Road on Municipal Road 80 in Greater Sudbury. Municipal Road 80 is described as a four lane roadway with a centre turn lane and no center barrier in the median. The scene was not examined by the SIU but instead examined and processed by members of the GSPS under the authorization of the SIU.

Video/Audio/Photographic Evidence


CCTV from Regional Road 80:


The SIU investigator reviewed the video footage of the CCTV camera from a business located on Regional Road 80 (also known as Old Highway 69), Val Caron, in relation to this incident. The camera view faced towards the intersection of Regional Road 80 and Regional Road 15 (known as Main Street).

The video reviewed has a recorded date stamp of January 15, 2019, five minutes in duration commencing at 11:50:00 p.m., and concluding at 11:55:00 p.m. It was dark outside with good artificial lighting illuminating the intersection and both streets visible from the camera. The road surface was lightly covered with fresh snow and there appeared to be light to moderate snow falling. The intersection was controlled by functioning traffic signals and the vehicular traffic on the roadway appeared to be minimal. The posted speed limit for north and southbound vehicular traffic on Regional Road 80 at this location was 60 km/h.

Summary of Video:

11:52:05 p.m. - A silver coloured vehicle travelled southbound on Regional Road 80 and through the intersection on a green traffic signal continuing southbound. This vehicle was traveling at a very high rate of speed in comparison to other vehicles that had travelled past previously. The vehicle quickly went out of sight and in the investigator’s opinion was traveling well in excess of 100 km/h;

11:52:10 p.m. - A white coloured pickup truck exits the business parking lot turning right to travel southbound on Regional Road 80 and continues through the intersection;

11:52:19 p.m. - A large dark coloured SUV style vehicle travelled southbound on Regional Road 80 and continued through the intersection on a green traffic signal. This SUV vehicle appeared to be traveling quickly, estimated by the investigator at around 100 km/h;

11:52:43 p.m. - A white coloured fully marked police vehicle travelled southbound on Regional Road 80 towards the intersection. The roof mounted emergency lighting was on and the brake lights were illuminated as the police vehicle approached the intersection. The traffic signal for southbound vehicular traffic was red at the intersection. The police vehicle slowed, estimated to around 30 km/h, did not come to a full stop and proceeded southbound through the intersection against a red traffic signal. As the police vehicle was just south of the intersection the emergency lighting was turned off and the police vehicle continued southbound going out of view at 11:52:58 p.m. A small dark coloured vehicle was northbound on Regional Road 80 at the intersection in the left turn lane and turned left traveling westbound on Main Street after the traffic signal turned to green at 11:52:54 p.m. A city bus was traveling northbound on Regional Road 80 and continued northbound through the intersection at the same time. None of these vehicles were impacted by the movement or actions of the police vehicle and no vehicles were observed to take any evasive action as a result of the police vehicle traveling through the intersection;

11:54:00 p.m. - A large white coloured SUV, which appeared to be a marked police vehicle, travelled southbound on Regional Road 80 through the intersection on a green traffic signal and continued southbound out of sight at 11:54:09 p.m. There was no emergency lighting activated on this vehicle. This vehicle appeared, in the investigator’s opinion, to be traveling at about 80 km/h; and

The recorded video concludes at 11:55:00 p.m., with the remainder of light vehicular traffic traveling in normal fashion.

Communications Recordings

The following is a summary of the police communication recordings amongst members of the GSPS involved in the incident.

On Tuesday, January 15, 2019, at 11:49:43 p.m., WO #2 provided a radio broadcast stating, “I think your silver Audi is going to be heading your way. Just pulling out of the Tim Hortons, he is flying down that way.”

At 11:52:23 p.m., the SO or WO #1 broadcast, “We’re at MR80 and Dominion and that silver Audi went southbound, yeah, and he’s well in excess of over 100 kilometres an hour probably over the speed limit.”

At 11:52:45 p.m., WO #2 broadcast “Yeah, guys we won’t pursue that. Maybe on video we can get his plate number from Hortons, that’s where he came out of.”

At 11:53:14 p.m., the SO or WO #1 broadcast, “14, can you just let urban know if they have anybody available because he needs to be stopped. It’s a two door Audi. It’s a longer looking car with dark rims, dark grey, like a dark aluminum wheel or what, and long sleek LED tail lights on the back. This thing, it’s going fast so obviously if you see it, follow really kind of [inaudible].”

At 11:54:03 p.m., the SO or WO #1 continued, “14, we’re just south of Valleyview, it looks like a 10-50 here. The driver of the Audi is snoring, just breathing. Headquarters, just to advise, the driver of the Audi has a beer in the centre console. The marker for the Audi is [states licence plate]. One driver is conscious. The other is not. The one in the Audi is not.”

At 11:57:33 p.m., GSPS communications responded, “Ten Four. One EMS dispatched from the Val Caron station, they shouldn’t be long. The other one’s coming from new Sudbury.”

AVL Evidence


The following is an analysis of the AVL data received from the GSPS for Police Vehicle #1 and Police Vehicle #2 cross-referenced with information derived from the police event chronology and the CCTV video footage captured from a business on Regional Road 80 in Val Caron.

Police Vehicle #1, a fully marked Chevrolet Tahoe, was operated by WO #2, and fully marked Police Vehicle #2 was operated by the SO with WO #1 as a passenger.

The supplied AVL data for GSPS Police Vehicle #1 and Police Vehicle #2 contained data for Tuesday January 15, 2019, for the hours of 11:45 p.m. to 12:00 a.m. The investigator made an analysis aimed at estimating the distances between the Audi, operated by Complainant #2, and the lead GSPS police vehicle operated by the SO, at points during the incident.

In the analysis of the video, the Audi comes into view at 11:52:05 p.m. and continues southbound on Regional Road 80 going out of view very quickly. The investigator estimated the speed of the Audi well in excess of 100 km/h. The posted speed limit for Regional Road 80 in this area is 60 km/h. A fully marked police vehicle with emergency equipment activated comes into view on the video at 11:52:43 p.m., slows before the intersection to a speed of around 30 km/h, and proceeds through it against a red traffic signal. The police vehicle continues southbound going out of view at 11:52:58 p.m.

From the analysis of the time stamps on the video there is a 38 second differential between the Audi and the police vehicle operated by the SO when they first come into view on the recording.

The investigator has reviewed the AVL data for GSPS Police Vehicle #2 and analyzed the data between time stamps of 11:52:47 p.m. to 11:54:20 p.m. The police vehicle comes into view in the video recording at 11:52:43 p.m. and the AVL data indicates Police Vehicle #2 was traveling at 74 km/h at 11:52:47 p.m. The data shows the police vehicle slows to 32.2 km/h at 11:52:55 p.m., which would have been the time the SO proceeded through the intersection against the red traffic signal. The investigator has confirmed from the data that the minimum speed Police Vehicle #2 attained while traveling through the intersection was around 32 km/h which is consistent with the investigator’s opinion of the police vehicle speed of around 30 km/h from viewing the video. An analysis was done with 24 time stamps and speeds from the AVL data. The investigator averaged the speed of Police Vehicle #2 based on these 24 time/speed stamps with a result of an average speed of 76.7 km/h between 11:52:47 p.m. and 11:54:20 p.m. At 11:54:20 p.m., the speed of Police Vehicle #2 was zero indicating the SO’s possible arrival time at the scene of the collision.

The investigator also analyzed the AVL data and determined the maximum speed of Police Vehicle #2 was 132.8 km/h at time stamp of 11:52:16 p.m. In the analysis around this time frame it appears Police Vehicle #2 accelerated to this speed then slowed considerably before reaching the intersection of Regional Road 80 and Main Street. The investigator has reviewed the synopsis report of witness officer, WO #1. WO #1 in his interview with SIU investigators stated that they saw a silver coloured vehicle southbound on Regional Road 80 and the SO activated the emergency lighting and accelerated up to this vehicle. They realized this vehicle was not in fact the silver coloured Audi and the SO deactivated the emergency lighting and slowed. This is consistent with the AVL data.

The AVL data was analyzed for GSPS Police Vehicle #1, operated by WO #2. At time stamp of 11:54:00 p.m. when the SUV comes into view in the CCTV footage it is traveling at a speed of 64 km/h. Police Vehicle #1 attained a maximum speed of 92.8 km/h at time stamp 11:52:43 p.m.

The investigator confirmed through Google Earth the posted speed limit for southbound Regional Road 80 is 70 km/h, changing to 60 km/h at Yorkshire Drive. Yorkshire Drive is 1.4 km north of the intersection of Regional Road 80 and Main Street.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the GSPS:
  • Chronology;
  • Communications recordings;
  • AVL data;
  • Notes of WO #1 and WO #2;
  • Statement of CW #1, CW #2, CW #3 and an additional civilian witness; and
  • Witness List.

Relevant Legislation

Section 320.13, Criminal Code – Dangerous operation of motor vehicles, vessels and aircraft

320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.

(3) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes the death of another person.

Section 128(13), Highway Traffic Act – Police vehicles and speeding

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

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

Section 144(20), Highway Traffic Act – Emergency vehicles and red lights

144(20) Despite subsection (18), a driver of an emergency vehicle, after stopping the vehicle, may proceed without a green indication being shown if it is safe to do so. 

Analysis and Director's Decision

At about 11:54 p.m. of January 15, 2019, an Audi vehicle being operated by Complainant #2 slammed into Complainant #1’s Mitsubishi Lancer, resulting in serious injuries to both drivers. The collision occurred in the northbound lanes of Municipal Road 80 in Greater Sudbury just south of its intersection with Valleyview Road. On January 19, 2019, Complainant #2 passed away when he was removed from life support at the hospital. The SO of the GSPS, the subject of the SIU’s investigation, had been engaged in a brief attempt to pursue Complainant #2’s vehicle just prior to the collision. For the reasons that follow, I am satisfied he did nothing that would warrant criminal charges in relation to this matter.

The offence that arises for consideration in this case is that of dangerous driving contrary to section 320.13 of the Criminal Code. The offence is predicated on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. While there are elements of the SO’s conduct that give cause for some concern, I am satisfied on balance that the manner in which the officer operated his police vehicle fell within the limits of care prescribed by the criminal law. At a speed upwards of 130 km/h, the top speed reached by the SO during his aborted pursuit, the officer was traveling at about twice the speed limit, a fact of some import given the snowy and slippery conditions at the time. That said, it bears reiterating that the officer quickly reduced his speed in concert with WO #2’s admonition that the Audi not be pursued. The officer’s velocity is also mitigated to an extent by section 128(13)(b) of the Highway Traffic Act (HTA), which while it does not provide an officer carte blanche to exceed the speed limit without regard to public safety considerations, does allow an officer to speed where the officer is in the lawful performance of his or her duty. The SO was clearly in the exercise of his duty at the time. It is also evident that the officer failed to come to a stop before proceeding south on Municipal Road 80 through the red light at Main Street. Pursuant to section 144(20) of the HTA, the officer was obliged to come to a complete stop before traveling safely through the red signal, and he ought to have done so. On the other hand, it should be noted that there is no indication that the SO ever actually endangered by the manner of his driving, including at the Main Street intersection, any third party motorists or pedestrians along Municipal Road 80. Nor did the officer put undue pressure on Complainant #2. In fact, the evidence indicates that the SO was at all times a fair distance behind the Audi, allowing Complainant #2 every opportunity to reduce his speed and adopt a safer course. Indeed, it may well be that Complainant #2 was at no point even aware of the SO’s presence.

In the final analysis, in the context of the SO’s short-lived engagement in this matter, notable for his brief pursuit of the Audi at high speeds that was quickly terminated, I have no reasonable grounds to believe that the officer either caused or contributed to the collision in question, or otherwise drove dangerously in violation of the Criminal Code.


Date: April 3, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) Section 320.11 of the Criminal Code defines a conveyance as “a motor vehicle, a vessel, an aircraft or railway equipment.” [Back to text]