Cruiser and motorbikeRunnersCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 18-TVI-118

Contents:

News Releases for this Case:

French:

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 serious injuries reportedly sustained by a 69-year-old man.

The Investigation

Notification of the SIU

On April 17, 2018, at 10:30 a.m., the Toronto Police Service [TPS] notified the SIU of a motor vehicle collision which caused injuries to someone who was not the Complainant, but the driver of a vehicle involved in a single motor vehicle collision at the scene.

The TPS reported that on April 17, at 7:42 a.m., the Subject Officer (SO) of the TPS Fraud Unit was travelling westbound on the 407 Express Highway when his unmarked police vehicle collided with the man’s vehicle near the Donald Cousens Parkway. The vehicle left the roadway and went down an embankment, landing on its roof. The man was taken to Sunnybrook Health Sciences Centre [SHSC] where he was diagnosed with fractures to his spine and ribs. Ontario Provincial Police [OPP] officers were already on the scene and were advised by TPS to stop processing the collision scene until SIU arrived.

It was later determined from the TPS that the man originally identified was not the Complainant in this investigation. The Complainant was properly identified.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 3 

Complainant:

69-year-old male interviewed


Civilian Witnesses

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

Witness Officers

WO #1 Interviewed
WO #2 Interviewed

Additionally, the notes from five other officers were received and reviewed.

Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene was in the westbound lanes of the 407 Express Toll Route adjacent to a railway overpass that was approximately 500 metres east of the Donald Cousens Parkway off-ramp.

At approximately 200 metres east of the railway overpass begins a series of tire marks, scrapes and gouges that tend to begin in the westbound curb lane and continued west towards the railway overpass. There was an impact site on the north edge cement barrier of the railway overpass.

A black Denali pickup truck was positioned north along the east side of the railway tracks. Damage to the guardrail above and a debris field created towards the black Denali pickup truck suggested this vehicle struck the north guardrail and travelled down the embankment to its resting point. There was complete collision damage to all sides of this vehicle. West of the railway overpass was a 2008 Pontiac G6 sedan. This vehicle was orientated west on the north shoulder of the highway west of the railway overpass bridge. There was collision damage to the driver’s side back corner, the passenger side front and passenger back corner of the vehicle.

Scene Diagram

Scene diagram

Expert Evidence

The following was the reconstruction report prepared by the SIU Reconstructionist:

On April 17, 2018, I was called out to a motor vehicle collision scene involving two vehicles, one of which was a Toronto Police Service (TPS) vehicle. The involved vehicles were a 2008 Pontiac G6 and a 2018 GMC Sierra 2500 pickup. The Pontiac was an undercover police vehicle driven by the SO. The pickup was being driven by the Complainant. Both vehicles were initially travelling westbound on Highway 407. The SO lost control of his vehicle and struck the Complainant’s pickup, causing it to leave the road and enter the embankment to the north of the highway.

Collision Scene


The collision location was the westbound lanes of Highway 407 just east of the Donald Cousens Parkway overpass (Figure 1). The scene was protected and both vehicles were still in their final rest positions at the time of my arrival. In addition, a third vehicle (a 2008 GMC pickup later identified as unrelated) was on scene. The involved pickup came to rest down the embankment, north of the highway, adjacent to the railroad tracks. The involved Pontiac came to rest on the south shoulder of the highway about 120 m west of the pickup.

Numerous tire marks were observed on the roadway to the east of the vehicle final positions. Damage was also noted to the guiderails north and south of the westbound lanes. There were tire marks observed on the road in the centre lane and the right lane, however, it appears as though these marks were unrelated to the collision. The relevant physical evidence is highlighted in Figures 2 and 3 below.


Figure 1. Aerial photograph showing the collision area.
Figure 1. Aerial photograph showing the collision area.


Figure 2. Aerial photograph with road evidence overlaid.
Figure 2. Aerial photograph with road evidence overlaid.


Figure 3. Photographs showing the damage to the south and north guiderails and the final rest position of the GMC pickup.
Figure 3. Photographs showing the damage to the south and north guiderails and the final rest position of the GMC pickup.

Environmental Data


I reviewed weather data recorded from a weather station located approximately 5 km northwest of the accident location. According to this weather data the ambient temperature was about -1°C between 7:00am and 8:00 am with no precipitation falling in the previous 6 hours.

2008 Pontiac G6 (Police Vehicle)


The police vehicle was an unmarked 2008 Pontiac G6. The vehicle sustained damage to two distinct areas, the left rear area and the right front area.

The left rear damage consisted of horizontal scraping to the quarterpanel and broken fragments of the left rear tire rim (see Figure 4). The height and pattern of the damage to the left quarterpanel was consistent with the height and side profile of the W-beam guiderail situated along the south side of the westbound lanes (top left in Figure 3).


Figure 4. View of the damage to the left rear of the Pontiac.
Figure 4. View of the damage to the left rear of the Pontiac.

The right front damage consisted of shallow denting of the right fender and the leading edge of the right front passenger door. The right front wheel was toed in at the top. There was a distinct semi-circular mark on the leading edge of the right front passenger door, indicative of tire contact (see Figure 5). The Pontiac was equipped with an Event Data Recorder (EDR), which I downloaded at the collision scene. My analysis of the Pontiac’s EDR is discussed in later sections of this report.


Figure 5. View of the damage to the right front area of the Pontiac. The white arrow highlights the semi-circular mark on the passenger door.
Figure 5. View of the damage to the right front area of the Pontiac. The white arrow highlights the semi-circular mark on the passenger door.

2018 GMC Sierra Pickup Truck


The involved pickup truck was identified as a black 2018 GMC Sierra 2500 pickup truck.

The pickup sustained damage to numerous areas of its exterior (see Figure 6), as follows:
  • Direct damage to the left front corner, including the fender, the corner of the bumper, and the left front wheel;
  • Direct damage to the left side, including removal of the driver door skin, complete removal of the left rear passenger door, and shallow denting to the left side of the truck bed;
  • Direct damage to the left rear corner, including a damaged left taillight.
  • Minor scratches to the right truck bed;
  • Complete removal of the right rear passenger door, however, this may have been done by emergency personnel; and
  • Direct damage to the right front corner, including damage to the fender and bumper.

In addition, the roof was removed which was likely done by emergency personnel. The pickup was equipped with an Event Data Recorder (EDR), which I downloaded at the collision scene. My analysis of the EDR is discussed in later sections of this report.



Image showing the damage to the pickup truck in its final rest position.


Figure 6. Images showing the damage to the pickup truck in its final rest position.
Figure 6. Images showing the damage to the pickup truck in its final rest position.

Analysis


My analysis focused on determining the sequence of events that led to the collision between the Pontiac and GMC pickup and the subsequent loss of control of the pickup. I relied on the EDR data to determine the movement of both vehicles, however, before doing so, I validated the EDR data with the available physical evidence.

There was some independent evidence that the Pontiac was initially in the westbound passing (left) lane and the GMC pickup was in the middle lane.

The Pontiac sustained two distinct impact; one to the right front area and the second to the left rear. The impact to the right front area included a semi-circular mark consistent with a tire imprint. For this to occur, the right front of the Pontiac likely collided with the left front of the GMC pickup with the pickup’s left front tire lining up with the lead edge of the Pontiac’s right front passenger door when they collided (see Figure 7).


Figure 7. Image showing the approximate location of the Pontiac and GMC pickup when they collided.
Figure 7. Image showing the approximate location of the Pontiac and GMC pickup when they collided.

After the initial collision, the Pontiac was redirected towards the southwest. The left rear of the Pontiac then struck the guiderail along the south edge of the westbound lanes. The GMC pickup was redirected towards the northwest. After crossing through the middle lane, the right lane, and entering the shoulder, the pickup mounted the snowbank and the guiderail along the north edge of the highway. This is shown in Figure 8.


Figure 8. Approximate position of the Pontiac when it struck the south guiderail. Approximate position of the GMC pickup when it struck and began to mount the north guiderail.
Figure 8. Approximate position of the Pontiac when it struck the south guiderail. Approximate position of the GMC pickup when it struck and began to mount the north guiderail.

Once the pickup began to mount the guiderail, the vehicle began to roll counter-clockwise (looking from back to front) as the right tires were elevated. The evidence on the guiderail and the damage to the left side of the pickup indicates the left side of the pickup slid along the top of the guiderail towards the bridge. The left rear passenger door then struck the concrete bridge leaving a clear imprint in the left rear passenger door. During this time, the damaged Pontiac continued westbound heading towards the right lane.


Figure 9. Approximate orientation of the pickup as it slid along the guiderail and struck the concrete bridge abutment. Estimated location of the Pontiac as it headed towards the right lane and its final rest position.
Figure 9. Approximate orientation of the pickup as it slid along the guiderail and struck the concrete bridge abutment. Estimated location of the Pontiac as it headed towards the right lane and its final rest position.

After the pickup struck the concrete bridge abutment, the pickup rolled down the steep grade to the north of the bridge, coming to rest upright on the grass slope adjacent to the railroad tracks. The Pontiac continued further west, coming to rest in the right lane approximately 120 m west of the GMC pickup. 

Event Data Recorders


Both vehicle were equipped with Event Data Recorders (EDR). I analyzed the recorded data and found that the information was consistent with the physical evidence and the expected movement of the vehicles.

The GMC pickup EDR recorded three events. The first event was a lateral impact to the left side. This is what would be expected due to the impact between the GMC pickup and the Pontiac. The second event was a partial rollover event, where the vehicle rolled about 120 degrees counter-clockwise. This follows the expected motion of the pickup as it mounted the guiderail and started to slide along its left side. The third event was a relatively severe front to back impact, consistent with the impact with the concrete abutment. However, it is also possible that this third event was from when the pickup struck the ground after falling off the bridge and coming to rest beside the railroad tracks.

The following table highlights the timing of the events, and the associated speeds during these collision events. It is clear from this table that the GMC pickup was initially traveling 100 km/h before it was struck by the Pontiac. The pickup driver then lost control and it headed towards the right and into the guiderail on the north side.

This table highlights the timing of the events, and the associated speeds during these collision events.

The Pontiac recorded one event. This event was an impact to the left front, consistent with the impact between the Pontiac and the GMC pickup. The EDR recorded the five seconds before this impact, as shown in the table below.

The Pontiac recorded one event. This event was an impact to the left front, consistent with the impact between the Pontiac and the GMC pickup. The EDR recorded the five seconds before this impact, as shown in the table below.

From the EDR data, is shows that the Pontiac was initially traveling 129 km/h. The driver then slowed to about 126 km/h. At this point the driver began to lose control. The speeds recorded in the next three seconds are unusual. First, it is impossible for a vehicle to slow from 126 km/h to 84 km/h in one second by braking alone. Second, at two seconds before impact, the vehicle speeds up to 93 km/h and then slows down to 89 km/h just before impact. In all likelihood, the Pontiac was out of control in these last three seconds. The brakes were being applied and the ABS was active. Therefore, the speed sensor, which measures the speed of the rotating tires was not measuring the actual speed of the vehicle at the time and may have been measuring the speed of a spinning tire. These last three speed data points are unlikely to be accurate. Based on the physical evidence, after four seconds before impact, the Pontiac driver lost control, braked heavily, struck the GMC and then the guiderail to the south, before partially regaining control and coming to rest to the west of the railroad tracks. 

Police Vehicle Loss of Control


On the morning on the collision, the outdoor temperature was just below zero. The EDR information is consistent with a vehicle losing control on an icy road. It appears from the data that the vehicle was initially traveling 129 km/h, the driver attempted to slow down and then began to lose control. Based on the times and speeds, the Pontiac driver lost control near the west end of the bridge that spans the Little Rouge Creek. Since the weather on the day of the accident was just below freezing, and bridges will often have icy conditions at near zero temperatures before solid sections of road, an icy road surface would explain the loss of control by the Pontiac driver. Similarly, the 1998 GMC pickup truck I observed on-scene, that was unrelated to this incident, likely lost control near the same section of bridge as the police vehicle. The damage to the unrelated pickup and tire marks left by this pickup followed a similar pattern and was within the same general area as where the Pontiac lost control. Once the right front of the police vehicle struck the left front of the Complainant’s pickup, the Complainant lost control of his truck.

Communications Recordings

The communications recordings of the events of April 17, 2018, regarding this event are consistent with the ICAD printouts and the radio communications. This data corroborated most of the statements of the involved civilian witnesses (CWs), OPP police officers and the OPP supporting documentation. Initially, the SO indicated he identified himself as TPS police officer while on the phone with the 911 operator. After reviewing the recordings the SO did not identify himself as a police officer during his phone conversation with the 911 operator. He identified himself only by his first and last name, the location of the collision and reported that he was not injured in the collision.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP and the TPS:

  • CAD Event Details;
  • General Report;
  • MVAC Report;
  • Notes of the SO, WO #1, WO #2 and five undesignated police officers;
  • OPP Photos;
  • OPP Witness Statement of CW #1, CW #2, CW #3 and the driver of the vehicle involved in the single motor vehicle collision; and
  • Email with information regarding possible Witnesses.

Incident Narrative

At about 6:30 a.m. of that day in question, the SO was in his vehicle – a Pontiac sedan - making his way west along Highway 407 toward the site of a police surveillance operation. As he approached a railway overpass at speeds upwards of 129 km/h, the SO lost control of the vehicle on roadway ice, causing it to slide into the Complainant’ pickup truck, and then back across the roadway, where it struck the centre guardrail. The Complainant was traveling west at about 100 km/h as he approached the site of the collision. The impact forced his pickup truck northward off the roadway, over the guardrail and down a hill toward railroad tracks, where it came to rest. Together with a number of civilian motorists who had witnessed the accident, the SO made his way down the embankment to check on the Complainant’s wellbeing. Emergency responders soon arrived, extricated the Complainant from his pickup truck and took him to hospital, where he was diagnosed and treated for a number of fractures.

Relevant Legislation

Section 128(13)(c), Highway Traffic Act – Police exempt from speeding provisions

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 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

In the morning of April 17, 2018, the Complainant suffered serious injuries when the pickup truck he was operating careened off the westbound lanes of Highway 407 and tumbled down an embankment, coming to rest near railroad tracks about 500 metres east of the Donald Cousens Parkway exit ramp. The Complainant’s vehicle had been directed off the roadway following its impact with an unmarked police vehicle driven by the SO. For the reasons that follow, there are no reasonable grounds in my view to believe that the SO committed a criminal offence in connection with the Complainant’s injuries.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to the section of the Criminal Code then in effect, namely, section 249(3) (presently, section 320.13(2)). The offence is predicated in part on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. It is clear that the SO was speeding at the time of the accident. Data downloaded from his vehicle indicates that the officer had reached a speed of 129 km/h several seconds before the collision. While police vehicles being used in the lawful performance of a police officer’s duty are authorized to exceed the speed limit pursuant to section 128(13)(b) of the Highway Traffic Act, an officer must always have due regard for public safety considerations. In this case, there does not appear to have existed any pressing reason for the officer to be traveling as fast as he was. The SO ought to have appreciated the potential for slippery road conditions and adjusted his speed accordingly. That said, there is no evidence that the officer was otherwise imperiling traffic around him by the manner of his driving. Moreover, it is important to note that the SO’s speed does not appear to have been grossly disproportionate to the speed of traffic around him – in the area of 100 to 115 km/h on the evidence of a number of motorists interviewed by the SIU (including the Complainant). Weighed in the balance, I am not satisfied on reasonable grounds that the officer’s indiscretion involving his speed is enough to render his conduct a marked departure from a reasonable level of care in the circumstances. Consequently, this file is closed.


Date: May 10, 2019




Joseph Martino
Interim Director
Special Investigations Unit