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SIU Director’s Report - Case # 19-OVI-010

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 48-year-old man.

The Investigation

Notification of the SIU

On January 10, 2019 at 12:55 p.m., the York Regional Police (YRP) notified the SIU of a vehicle collision resulting in serious injuries to the Complainant.

According to the YRP, at approximately noon the Subject Officer (SO) stopped a vehicle for stunt driving on Highway 407 at Jane Street. The driver of the stopped vehicle, the Complainant, was in the rear of the SO’s cruiser parked on the shoulder of the highway when the SO’s cruiser was rear-ended by another vehicle. The Complainant was transported to Sunnybrook Health Sciences Centre with a suspected spinal injury.

The Team

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

Complainant:

48-year-old male, medical records obtained and reviewed

The Complainant declined to provide a statement but made a statutory declaration outlining his evidence.


Civilian Witnesses

CW #1 Interviewed, medical records obtained and reviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed 

Witness Officers

WO #1 Not interviewed, but notes received and reviewed
WO #2 Not interviewed, but notes received and reviewed
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

The notebook entries of the above-mentioned witness officers were reviewed. Their notes reflected their observations and involvement upon arriving at the scene. None of the witness officers were present at the time of the collision.


Subject Officers

SO #1 Interviewed, and notes received and reviewed


Evidence

The Scene

Approaching the scene from the east, approximately one kilometre away there is a slight incline travelling westbound on Highway 407. Once at the apex of that incline the highway is then even, and visibility is unobstructed. In the area of the Jane Street overpass, Highway 407 is flat. It is a multi-lane highway, with five lanes for westbound traffic and paved shoulders on the north and south edges of the highway.

The collision occurred in the rightmost lane of westbound traffic (referred to as the fifth lane, or Lane 5) just west of the Jane Street overpass. The posted speed limit in the area is 100 km/h.

Weather recorded at nearby Buttonville Airport at the time of the collision was cold and windy, with visibility rated at 24 kilometres prior to the collision.

A 2016 white Ford Explorer bearing the YRP markings was found unoccupied, facing westbound on the paved north shoulder of Highway 407. The complete rear of the vehicle was severely crushed, with the greatest crush to the left side.


The SO's YRP Ford Explorer after it sustained severe damage as a result of being rear-ended.
Figure 1 - The SO's YRP Ford Explorer after it sustained severe damage as a result of being rear-ended.


A 2005 black GMC Yukon Denali was unoccupied facing northeast in the rightmost westbound lane of Highway 407. The GMC Yukon front end was crushed, with most of the crush damage to the right side. The maximum crush was measured at about 40 cm deep at the bumper.


CW #1's GMC Yukon Denali after it rear-ended the SO's vehicle.
Figure 2 - CW #1's GMC Yukon Denali after it rear-ended the SO's vehicle.


A York Auto tow truck was parked facing west on the north shoulder, just east of the GMC Yukon. Attached to the rear of the York Auto tow truck was a Honda Odyssey van. Neither of those vehicles were damaged or appeared to be directly involved in the collision.

Three separate fresh gouge marks in the roadway (green in the diagram) started at a point approximately 110 metres west of the Jane Street overpass and 2.1 metres south of the north fog line of Highway 407. The gouge marks were the best indication of the area of impact and were likely made by the under carriage of both vehicles during downward compression as the front of the GMC Yukon impacted the rear of the YRP Ford Explorer, near the centre of the rightmost westbound traffic lane of Highway 407.


The undamaged tow truck and vehicle that were also on the scene. The yellow evidence marker "1" in the foreground indicates the first gouge in the concrete and is the best indication of the area of impact for the collision.
Figure 3 - The undamaged tow truck and vehicle that were also on the scene. The yellow evidence marker "1" in the foreground indicates the first gouge in the concrete and is the best indication of the area of impact for the collision.

Scene Diagram

Scene diagram

Forensic Evidence

The airbag control module from the SO’s police vehicle, the YRP Ford Explorer, was downloaded. The pre-crash data indicated that from “time zero” (approximately the time of impact) to five seconds before time zero the speed of the YRP Ford Explorer was 0 km/h. The transmission gear selection was in “Drive” for the five seconds prior to time zero. At time zero, the accelerator pedal was placed from 0.0 to 100 percent and the brake was placed from “On” to “Off.” All of the data at time zero are the result of the SO’s actions at the time of the collision.

The airbag control module from the Denali was downloaded on January 11, 2019. Although there should have been deployment of the airbags, no airbag had deployed in the vehicle. No data was recorded by the airbag control module.

Expert Evidence

The SIU collision Reconstructionist determined:
  • At approximately 12:00 p.m. on January 10, 2019, the SO was the operator of a marked YRP Ford Explorer. The Complainant was seated in the rear of that vehicle;
  • The YRP Ford Explorer was stopped facing west in the far right live westbound lane of Highway 407, approximately 110 metres west of Jane Street, with the emergency lighting activated;
  • It was a cold, clear sunny day and visibility was good;
  • At a speed range of 113 km/h to 120.7 km/h, a GMC [Yukon] Denali operated by CW #1 was driven westbound in the far right live westbound lane of Highway 407 approaching the YRP Ford Explorer;
  • Slightly left of the centre of the lane, the front of the GMC Denali impacted the rear of the YRP Ford Explorer;
  • The YRP Ford Explorer was pushed westbound at about 55 km/h in the far right live westbound lane for a short distance then continued westbound along the paved north shoulder, coming to rest some 70 metres west of the area of impact;
  • The GMC [Yukon] Denali rotated clockwise and came to rest facing northeast across the far right live westbound lane and the paved north shoulder, some 30 metres west of the area of impact; and
  • The Complainant sustained serious injuries from this collision.

In-Car Camera System (ICCS) Footage

On January 10, 2019, the SO entered Highway 407 at Yonge Street and he travelled westbound in the third lane from the leftmost traffic lane, Lane 3. In the area of Keele Street, a westbound van travelling in Lane 1 passed by the SO. The SO moved over to the leftmost lane and accelerated.

The SO followed the Complainant’s Honda Odyssey minivan in the leftmost westbound lane of Highway 407. The SO’s speed was approximately 140 km/h as he maintained his distance behind the Complainant, but the Complainant started to move ahead of the SO and the SO accelerated, reaching a speed of 162 km/h. The Complainant did not slow or indicate in any way he was aware of the SO’s marked YRP vehicle behind him, and he continued to drive at that speed as he travelled up an incline in the highway toward the Jane Street overpass.

The Complainant then applied his brakes and moved to the right, at which point the SO activated his emergency lights and siren. The Complainant then pulled onto the right shoulder of the highway, with the SO pulling in behind him, just west of the Jane Street overpass.

The SO approached the Complainant’s vehicle and the SO’s in-car camera system microphone recorded the Complainant explaining he was on his way to work. The SO commented the Complainant’s driving was “pretty extreme.” The SO then returned to his vehicle with the Complainant’s credentials. The video recording stopped at 10:56 a.m., after the SO requested a tow truck.

At 11:13 a.m., the video recording resumed and by then the Complainant’s van was on tow truck “dolly wheels.” At 11:18 a.m., the Complainant exited his vehicle and entered the rear passenger side of the SO’s vehicle. The in-car camera system indicated the SO’s “rear flasher” and “rotary” lights were active. The amber lights atop the tow truck were also operating.

The Complainant stated that he had been going to the area of Pine Valley Drive and Steeles Avenue, and the SO offered to drop him off there. The SO explained to the Complainant that he intended to wait for the tow truck operator, as the tow truck operator would be a little safer with the police cruiser behind him.

At 11:23 a.m., the SO reversed. At 11:24 a.m., as tow truck operator CW #4 was working along the driver side of the Complainant’s van, a vehicle passed by at high speed in the fifth lane of traffic, within feet of CW #4. At 11:26 a.m., the SO pulled halfway into the fifth lane of traffic, straddling the fog line between the shoulder and the fifth lane of traffic. The SO told the Complainant he was free to call for a taxi, or the SO could call for a taxi, or they could wait. The SO then commented it looked like the tow operator was almost done. The Complainant responded, “Alright” or “I’ll wait.”

At 11:28 a.m., the Complainant’s van started to rise up at the front, indicating the tow truck was lifting the vehicle. The SO reversed and then pulled completely into the live (fifth) lane of traffic. He sounded his siren for four seconds, as a large transport truck passed by the left side of his vehicle. The SO then pulled up alongside the front of tow truck, stopped and reversed back to the area approximately adjacent to the front of the Complainant’s van. At 11:30 a.m., the SO asked CW #4, “Are you good?” The video recording stopped immediately after he asked that question. The in-car camera software indicated the SO’s emergency lighting system was active while he was in the lane of traffic.

GPS Data

The GPS data from the SO’s vehicle recorded data at five second intervals. The data did not assist in determining the SO’s movements immediately prior to impact. It generally documented the SO stopped at the side of the road.

Communications Recordings

Civilian Witness (CW) #3 called 911 to report a police vehicle had just been rear-ended by a vehicle travelling 80 to 100 km/h. CW #3 reported he was approximately 100 metres away from the scene when the collision happened.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the YRP:
  • A copy of the related radio and telephone communications;
  • GPS data from the SO’s vehicle;
  • A video playback of the SO’s GPS coordinates plotted on a map;
  • The in-car camera recordings from the SO’s vehicle;
  • Call history - motor vehicle collision;
  • Call history - traffic stop - prior to collision;
  • MDT Messages by the SO;
  • Notes of all designated witness officers; and
  • Procedure - Traffic Management, Enforcement and Road Safety.

The SIU also received the following documents from the OPP:
  • OPP Interview Reports – CW #1, CW #2, CW #3 and CW #4.

Incident Narrative

The material facts in issue are apparent on the information gathered in the SIU’s investigation. The weather was clear, traffic was light to moderate, and the roads were dry and in good repair. The SO, on duty and traveling west on Highway 407, observed a Honda Odyssey van speeding ahead of him. The Complainant, the driver of the van, was on his way to work. The officer accelerated to about 160 km/h in an effort to keep pace with the van. Just west of the Jane Street overpass, the Complainant began to slow down as the SO activated his emergency lights and siren. Both vehicles maneuvered to the north shoulder of the highway where they came to a stop, the van in front of the police vehicle. The SO exited his SUV, approached the passenger side of the van and advised the Complainant that he would be charged with stunt driving and speeding under the Highway Traffic Act (HTA). A tow truck arrived at the scene, positioned itself in front of the Complainant’s van on the shoulder and began to hook up the Honda Odyssey. The Complainant was escorted to the police vehicle and took a seat in the back passenger side as the officer prepared his tickets. The officer offered to call the Complainant a taxi, but he opted to wait until the officer was ready to drive him to a location off the highway. Shortly thereafter, the SO decided to position his vehicle on the live lane of traffic beside the tow truck and the Honda van. He did so to provide a safety buffer to the tow truck operator as he continued with his work. Within minutes, a GMC Denali SUV operated by CW #1, traveling west in the northern most lane of the highway, slammed head on with the rear of the police vehicle, propelling it west toward the shoulder, where it came to rest. The Complainant was seriously injured, resulting in a complete loss of sensation from the chest down.

Relevant Legislation

Section 219 and 221, Criminal Code -- Criminal negligence causing bodily harm

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years

Section 320.13(2), Criminal Code – Dangerous operation causing bodily harm

320.13 (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.


Analysis and Director's Decision

At about 11:30 a.m. of January 10, 2019, the Complainant suffered catastrophic injuries while in the back seat of a marked YRP SUV. The injuries were the result of a collision between the police vehicle and a civilian motorist on Highway 407 west of Jane Street. For the reasons that follow, I am satisfied that there are no reasonable grounds to believe that the SO, the operator of the police vehicle in question, committed a criminal offence in connection with the collision and the Complainant’s injuries.

The offences that arise for consideration on this record are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to sections 320.13(2) and 221 of the Criminal Code, respectively. Both offences are 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. I accept that the SO was acting with the safety of the tow truck operator in mind when he moved his vehicle off the highway shoulder onto a live lane of traffic. The question is whether, in so doing, he placed the Complainant in peril in a dangerous or criminally negligent manner within the terms of the criminal law. In my view, there are no reasonable grounds to so believe. No doubt, the SO’s decision placed his cruiser at greater risk of a collision with motorists traveling past the scene at the side of the highway. On the other hand, the SO had his full emergency lighting activated at all times and could reasonably expect that his cruiser would be noticed well in advance by motorists traveling toward his vehicle. Indeed, it is clear that motorists in the vicinity were alerted to the SO’s location in good time and took steps to change lanes safely. Under the terms of the HTA, CW #1 was legally obligated to do so as well, but for some reason appears not to have noticed the police SUV in the lane in front of him until he smashed into it. On this record, I am satisfied on balance that the SO conducted himself within the limits of care prescribed by the criminal law. Accordingly, there are no reasonable grounds for concluding that the SO caused or contributed to the Complainant’s injuries in a manner giving rise to criminal liability, and the file is closed.


Date: June 25, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit