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SIU Director’s Report - Case # 18-OVI-231

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 serious injuries sustained by a 73-year-old woman (the “Complainant”).

The Investigation

Notification of the SIU

On August 3, 2018, at 5:50 p.m., the York Regional Police (YRP) notified the SIU of an injury. The YRP understood that two YRP officers [now known to the Subject Officer (SO) and Witness Officer (WO) #1] were working a paid duty directing traffic at a construction site at the signalized intersection of Major Mackenzie Drive and Kennedy Road in Markham. As the officers were issuing directions to motorists at the intersection, a vehicle travelling southbound on Kennedy Road [now known to be operated by the Complainant] collided with a second vehicle travelling westbound on Major Mackenzie Drive West [now known to be operated by Civilian Witness (CW) #1]. As a result of the collision, the Complainant was taken to the Markham-Stouffville Hospital (MSH) where she was treated for a fractured sternum.

The Team

Number of SIU Investigators assigned: 4
 

Complainant:

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


Civilian Witnesses

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

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed

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


Subject Officers

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


Evidence

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the YRP:
  • A copy of Detailed Call Summary;
  • A copy of the Motor Vehicle Collision (MVC) Report;
  • Notes of all witness officers and two undesignated officers;
  • A copy of YRP MVC Diagram; and
  • A copy of YRP Witness Statement of CW #1 and CW #3.

Incident Narrative

With important exception, much of what occurred leading to the collision is clear on the weight of the evidence collected in the SIU investigation. In the morning of the day in question, CW #1 was driving westbound on Major Mackenzie Drive East when he brought his vehicle to a stop at the road’s intersection with Kennedy Road. There was construction underway at the intersection and the westbound left turn and passing lanes had been closed. CW #1 was stopped against a red light and thought the SO, one of two officers monitoring and controlling traffic at the intersection at the time, signaled for him to drive forward through the red light. As he did so, CW #1’s vehicle struck the Complainant’s van, which was travelling south on Kennedy Road through the intersection on a green light.
Following the collision, CW #1 exited his vehicle and blamed the SO for having directed him to move forward. The SO denied that he had done so, explaining, rather, that he had intended him to remain stopped. The Complainant was taken to hospital and diagnosed with a fractured sternum.

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

Analysis and Director's Decision

On August 3, 2018, the Complainant was driving her minivan southbound on Kennedy Road in Markham when she travelled into the intersection with Major Mackenzie Drive East and collided with a westbound vehicle. Two paid duty officers were in the intersection at the time, including the SO. For the reasons that follow, I am satisfied there are no reasonable grounds to believe the SO committed a criminal offence in connection with the collision.

The offence that arises for consideration in this case is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is predicated, in part, on conduct that represents a marked and substantial departure from a reasonable level of care in the circumstances. While the evidence is disputed on this point, I am inclined to believe, on the weight of the record, that the SO was in fact directing CW #1 through hand gestures to proceed across the intersection. If in fact that is what occurred, the SO’s conduct was careless and perhaps even negligent, but I remain unpersuaded that it rose to the level of criminal negligence. There is no evidence to suggest that the subject officer had been less than diligent in his duties at the intersection prior to the collision. At most, the collision was the result of a momentary lapse of attention on the part of the SO, who failed to ensure that southbound traffic had come to a stop before directing westbound traffic into the intersection. In the circumstances, I am not satisfied on reasonable grounds that the SO’s singular indiscretion, if it be such, amounted to a marked and substantial departure from the level of care that a reasonable person would have observed. Accordingly, I have no grounds for proceeding with charges in this case and the file is closed.


Date: August 1, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit