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SIU Director’s Report - Case # 18-PVI-193

Contents:

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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 39-year-old man.

The Investigation

Notification of the SIU

On June 29, 2018, at 9:45 p.m., the Ontario Provincial Police (OPP) reported that at 8:48 p.m., an OPP officer was operating mobile radar on Highway 6, south of Argyle St. S. in Caledonia when a motorcycle drove past in the opposite direction at high speed. The officer turned his cruiser around and the motorcycle went off the road and crashed. The driver was taken to Hamilton General Hospital (HGH) with a broken ankle. 

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 2 

Complainant:

39-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Written statement provided
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

At 10:38 p.m., the SIU’s lead Forensic Investigator arrived on Highway 6, just south of Argyle Road, where the OPP was maintaining scene security. Highway 6 travels primarily in a north and south direction, with Argyle Street intersecting from the east at a traffic light controlled intersection. Approximately 500 metres south of the intersection, the roadway curves to the left on level pavement. The roadway surface was in good repair and dry. The lanes of traffic were clearly marked and visible showing one lane in each direction and a right turn lane on the east side of the roadway for Argyle Street, prior to the intersection.

There were two vehicles within the confines of the secured area. A black 1987 Kawasaki motorcycle was lying on its right side in the east ditch approximately 30 metres south of the intersection. There was a single tire mark believed to be associated with the motorcycle’s path of travel that began on the pavement of the northbound lane and then entered the east shoulder of the highway and into the east ditch. The tire mark continued in the grassy area of the ditch to a gravel approach that covered a culvert in the east ditch. The tire mark suggested the motorcycle struck the south side of the approach and the culvert and then flew into the air and landed near the north side of the approach and culvert, where it came to rest.

The second vehicle was a marked OPP cruiser, a black 2016 Dodge Charger. The cruiser’s emergency lighting was activated upon the Forensic Investigator’s arrival. The siren was checked during the cruiser’s examination and found to be operational. The cruiser was positioned on the east shoulder of the highway, slightly south of the motorcycle. There was no damage to the cruiser to indicate a collision with the motorcycle had occurred.

The scene was photographed and the following mapped diagram was produced.

Scene Diagram

Scene diagram

Forensic Evidence

The OPP provided the SIU with a GPS data table from the SO’s cruiser. The chart contains the salient GPS points and associated speeds associated with the SO’s involvement with the Complainant on June 29, 2018. At 8:46:57 p.m., the SO stops his cruiser while pointed in a southbound direction. At 8:47:10 p.m., the SO commences his travel northbound, at a speed of 73.52 km/h and accelerates through to 8:47:39 p.m., where the SO is travelling at his highest speed, at a speed of 152.89 km/h, travelling northbound on Highway 6, north of the Fourth Line. At 8:48:09 p.m., the SO is in the vicinity of the Fifth Line and he reduces his speed to 99.78 km/h.

Communications Recordings

The following is a summary of the salient portions of the OPP communications recording:
  • The SO radioed to WO #3 advising that a motorcycle was heading his way, that it was travelling at a high rate of speed, and that the SO could not identify the make of the motorcycle or what the rider [now known to be the Complainant] was wearing;
  • WO #3 acknowledged the transmission;
  • WO #1 acknowledged the transmission;
  • The SO keyed his microphone and, in an agitated and frazzled voice, stated that the motorcycle was off the road. Parts of the transmission were indiscernible;
  • The SO stated he needed an ambulance “big time”. Parts of the transmission were indiscernible. [Communication branch staff identified the true time stamp at this point as being June 29, 2018, at 8:51.42 p.m.]
  • WO #1 asked the SO for a status/update on injuries; and
  • The SO stated that the Complainant had a busted or broken leg, and an ambulance was required at the intersection of Argyle St at Highway 6 in Caledonia. [Communication branch staff identified the true time stamp at this point as being June, 29, 2018 at 8:53:36 p.m.]

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • GPS Gate Data Table for the SO’s vehicle;
  • Notes of all witness officers;
  • Communication Tape;
  • Computer Aided Dispatch (CAD) report;
  • OPP Witness Statement of CW #2; and
  • Using KML files with Google Earth Chrome Instructions.

Nature of Injuries

The Complainant sustained a comminuted displaced fracture through the distal diaphysis of the tibia and fibula.

Incident Narrative

On June 29, 2018, at approximately 8:46 p.m., the SO of the Haldimand County Detachment of the OPP was on routine patrol in a marked police vehicle when he observed a motorcycle, operated by the Complainant, approaching him from the opposite direction on Highway 6 travelling at a high rate of speed. The SO clocked the motorcycle on his radar to be travelling at 119 km/h in a posted 80 km/h zone. The SO performed a U-turn and followed the Complainant’s motorcycle with the intention of performing a vehicle stop. According to the GPS data associated with the SO’s police cruiser, the SO increased his speed to 152.89 km/h, at its highest, in the area of Hwy 6, north of Fourth Line, in an attempt to catch up to the motorcycle. As the SO approached the crest of a hill, he activated his emergency lighting system and siren in order to alert other traffic of his presence and to signal to the Complainant to pull his motorcycle over. Despite the increase in his cruiser’s speed, the SO was unable to close the gap, estimated between 200 and 400 metres, between his police cruiser and the motorcycle as the Complainant was observed to also increase his speed. As the SO approached Fifth Line, when it became obvious that the Complainant was not going to stop his motorcycle, the SO deactivated his emergency lights and siren and reduced his speed to 99.78 km/h. He then radioed to alert another radar officer ahead that a motorcycle was heading his way travelling at a high rate of speed, before further reducing his speed to the posted speed limit. The SO continued northbound on Hwy 6 at the speed limit, losing sight of the motorcycle.

Meanwhile, the Complainant, still travelling at a speed of approximately 200 km/h and approaching Argyle Street, moved into the southbound lane of traffic in order to pass a northbound motorist, lost control of his motorcycle as he steered back into the northbound lane and drove into the ditch, striking a culvert and crashing his vehicle.

As the SO approached Argyle Street, he rounded a curve in the roadway and observed the Complainant’s motorcycle in the ditch, with other motorists having stopped to assist him. The SO reactivated his emergency lighting system and rendered assistance to the Complainant, who was obviously injured.

At no time did the SO’s police cruiser ever come into contact with the Complainant’s motorcycle, nor is there any evidence that the SO was directly responsible for the Complainant’s collision.

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.

Section 128(13)(b), 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.

Analysis and Director's Decision

The offence that arises for consideration in this case is that of dangerous driving contrary to section 249 (now s. 320.13) of the Criminal Code. 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. 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. While the officer reached a top speed of about 150 km/h, almost twice the posted speed limit, he only did so over the course of about eight seconds while attempting to catch up to the motorcycle. 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 in attempting to investigate an apparent speeding infraction. One might also question the wisdom of pursuing a motorcyclist for what was an HTA offence. That said, the pursuit was brief in duration and terminated by the officer as soon as it became evident that the Complainant was not about to stop. It should also be noted that there is no indication that the SO ever actually endangered any third party motorists on Hwy 6 by the manner of his driving. On the contrary, there is evidence that the officer’s use of his emergency lights and siren alerted other drivers in the area to pull over, thereby insulating them to an extent from the danger being created by the Complainant’s reckless driving. Nor did the officer put undue pressure on the Complainant. In fact, the evidence indicates that the SO was at all times a fair distance behind the motorcycle and had in fact discontinued the pursuit before the Complainant lost control of his motorcycle, allowing the Complainant every opportunity to reduce his speed and adopt a safer course of action had he been so inclined.

In the final analysis, in the context of the SO’s short-lived engagement in this matter, lasting about a minute over some two kilometres, there are no reasonable grounds in my view to

conclude that the officer caused or contributed to the Complainant’s injuries in any fashion that could attract criminal liability. Accordingly, this file is closed.


Date: June 6, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit