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SIU Director’s Report - Case # 18-OVI-224

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 serious injuries sustained by four men, ages 31 (Complainant #3), 32 (Complainant #2), 40 (complainant #4) and 54 (Complainant #1).

The Investigation

Notification of the SIU

On July 24, 2018, at 6:45 p.m., the South Simcoe Police Service (SSPS) reported the following. On July 24, 2018 at 5:45 p.m., police officers were involved in a pursuit of a vehicle. The occupants were involved in a theft at the Cookstown Outlet Mall, Hwy 89 and Hwy 400.

The pursuit started at 10 Sideroad, Innisfil. The vehicle accelerated away from the cruiser. The officer in cruiser one asked for assistance of another cruiser. Cruiser two picked up the vehicle and pursued it south on 10 Sideroad into Bradford. The vehicle entered a Walmart parking lot then continued west on County Road 88 towards Hwy 400. The pursuit was terminated at 5:53 p.m. The vehicle was involved in a collision with a civilian vehicle at County Road 88, one kilometre east of Hwy 400. All three occupants of the pursued vehicle were taken to the South Lake Hospital in serious condition. The driver of the other vehicle was taken to the hospital with chest pains. The scene was secured.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 3

Complainants:

Complainant #1 54-year-old male interviewed, medical records obtained and reviewed
Complainant #2 32-year-old male interviewed
Complainant #3 31-year-old male interviewed, medical records obtained and reviewed
Complainant #4 40-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed

Witness Officers

WO Interviewed


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.



Evidence

The Scene

The SIU Forensic Investigators arrived on scene at 9:11 p.m. It was raining heavily and very dark in the area of the collision. The area was photographed and mapped with the use of a Sokkia Total Station. The SIU reconstructionist attended the scene.

County Road 88 runs in a general east west direction. The road is paved with lane markings present. There are two lanes in each direction. The shoulders are paved with deep grass lined drainage ditches on either side of the roadway. The area of the collision is a rural setting with no overhead lighting present.

A total of three vehicles were directly and indirectly involved:

1) A black 4-door GMC Envoy SUV. This vehicle was orientated in a northwest direction across the eastbound lanes of County Road 88 and had extensive rear end collision damage.

Rear end damage to the GMC Envoy SUV.

Figure 1- Rear end damage to the GMC Envoy SUV.


2) A black Ford F150 pickup truck. This vehicle was orientated in a northeast direction in the south side ditch. This vehicle had extensive left front end collision damage.

Front end damage to the black Ford150 pickup truck.

Figure 2 - Front end damage to the black Ford150 pickup truck.


3) A marked SSPS Ford Police Interceptor SUV. This vehicle was orientated in a northwest direction, across the centre lines that divide the east and westbound lanes of County Road 88. The SSPS cruiser was intact and had no evidence of collision damage.

The marked SSPC Ford Interceptor SUV which was undamaged.

Figure 3 - The marked SSPC Ford Interceptor SUV which was undamaged.

Scene Diagram

Scene diagram

Forensic Evidence


GPS Data for the SO’s Cruiser


The attached table contains the GPS data for the SSPS cruiser, for July 24, 2018, which was being operated by the SO during this incident. 

This table contains the GPS data for the SSPS cruiser, for July 24, 2018, which was being operated by the SO during this incident.

Video/Audio/Photographic Evidence


Summary of Security Video #1


The SIU received four videos from a business located on 8th Line in Bradford which recorded traffic movement along 10 Sideroad from July 24, 2018.

The first video shows a time stamp and commences at 5:14:01 p.m. and ends at 5:14:21 p.m.; the second starts at 5:14:23 p.m. and ends at 5:14:43 p.m.; the third video starts at 5:14:57 p.m. and ends at 5:15:14 p.m.; and, the fourth video starts at 5:15:17 p.m. and ends at 5:15:34 p.m.

The salient portion of the recordings relates to the fourth video. A grey Nissan [the driver later identified as CW #4] exited the parking lot and travelled north on 10 Sideroad. At 5:15:28 p.m., Complainant #4’s vehicle enters the camera’s view and appears to be travelling at a high speed with an activated left turn signal flashing as it travels southbound on 10 Sideroad leaving the view of the camera at 5:15:31 p.m. This camera operates on a motion detector for movements in the parking lot and as such the recording ended as CW #4 left the parking lot and does not capture any police cruisers following Complainant #4’s vehicle on 10 Sideroad.

Summary of Security Video #2


The SIU viewed a recorded video from a camera located on the west side of a business on Reagens Industrial Parkway showing the traffic on 10 Sideroad north of Highway 88 in Bradford.

The time stamped video starts at 5:17:00 p.m. and finishes at 5:19:00 p.m., and recorded Complainant #4’s vehicle travelling south on 10 Sideroad at high speed with an activated left turn signal flashing as it passes through the camera’s view. Approximately five seconds later an SSPS cruiser [later identified as the SO] passes through the camera’s view travelling southbound on 10 Sideroad with its emergency lights activated.

Dash Camera Video


The SIU received several dash camera videos recorded on July 24, 2018. The following is a summary of the salient points recorded on the videos.

  • 5:32:59 p.m., CW #2 stopped his vehicle in the left turn lane on Reagens Industrial Parkway and 10 Sideroad for a red light. He stopped his vehicle behind a red Toyota;
  • 5:33:19 p.m., a black SUV, being operated by Complainant #4 that was travelling southbound on 10 Sideroad, entered the intersection on a green light and continued southbound;
  • 5:33:26 p.m., a siren can be heard;
  • 5:33:30 p.m., a marked SSPS cruiser, that was operated by the SO, travelling southbound on 10 Sideroad approached the intersection and slowed. The cruiser had its emergency lights and siren activated. The traffic light was red for southbound traffic. The red Toyota in front of CW #2 entered the intersection;
  • 5:33:33 p.m., the red Toyota stopped quickly in the intersection and the SO’s cruiser proceeded through the intersection southbound;
  • 5:33:42 p.m., CW #2 made a left turn onto 10 Sideroad and followed the Toyota southbound. The SO’s cruiser can be seen in the distance;
  • 5:34:01 p.m., it is raining heavily;
  • 5:34:25 p.m., CW #2 stopped in the southbound curb lane of 10 Sideroad at Hwy 88 and then turned right;
  • 5:35:44 p.m., CW #2 passed the SO’s cruiser, which was parked on the westbound shoulder;
  • 5:36:06 p.m., CW #2 slowed down to stop behind a line of vehicles in both westbound lanes;
  • 5:36:10 p.m., the SO’s cruiser drove westbound in the eastbound centre lane passing CW #2 and passing the stopped westbound vehicles;
  • 5:36:25 p.m., CW #2 pulled into the curb westbound lane and stopped;
  • 5:40:03 p.m., a vehicle that was stopped ahead of CW #2 drove away and Complainant #1’s vehicle can be seen in the ditch on the south side of Hwy 88;
  • 5:44:11 p.m., CW #2 drove ahead and approached two SSPS cruisers, which were stopped, side by side, facing westbound;
  • 5:44:25 p.m., CW #2 proceeded westbound in the curb lane. Ahead and to his left was Complainant #4’s vehicle, it was stopped in the eastbound lanes of Highway 88, with heavy rear end damage.

Communications Recordings

The SIU received and reviewed the SSPS communications recording. The recording contains the dispatch of SSPS officers to the Tanger Outlets and a description and licence plate number of a suspect vehicle [later determined to be Complainant #4’s vehicle]. The recording contains officer transmissions from the WO, who reports seeing Complainant #4’s vehicle southbound, performing a U-turn, not engaging in a pursuit, disregarding the vehicle and going northbound to the Tanger Outlets.

The recording also contains the SO’s transmissions: he advised he had observations of Complainant #4’s vehicle on the 10 Sideroad; that he was lighting him up but he was not stopping; and speeds were 90 km/h and then at 80 km/h as he was approaching other traffic near Highway 88. The SO reported that Complainant #4 turned right onto Highway 88. The Communications Sergeant asked the SO his speed, and the SO advised 100 km/h and that Complainant #4 was passing traffic by going into the oncoming lane.

The Communications Sergeant directed the SO to pull over, terminate the pursuit and give the dispatcher as much information about the vehicle as possible, like if the suspect made it to Highway 400. The SO reported pulling over and stopping, and that visibility was very low. The SO reported his final mileage as 67,264.2 and that traffic was locked up ahead and stopping. He was not sure if there had been a collision, he was just going to check it out. The SO reported a stopped vehicle, there had been a collision and he needed other units, paramedics, and the road closed.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the SSPS:
  • Dispatch from Computer Aided Dispatch(CAD) Details;
  • GPS Data for Cruiser (the SO);
  • GPS Data for Cruiser (the WO);
  • List of Involved Officers;
  • Notes of the subject officer;
  • SSPS Email re Communications Recordings DVD; and
  • SSPS Witness Statement-CW #1.

Incident Narrative

The events in question are clear on the evidence collected by the SIU, which included statements from the occupants of the two vehicles involved in the collision, a number of civilian eyewitnesses who observed different parts of the police pursuit, a dash cam video recording of segments of the pursuit, data downloaded from the SO’s cruiser relating to his locations and speeds, and police radio communications. While the SO, as was his right, declined to be interviewed by the SIU, he did authorize the release of his notes. At about 5:00 p.m., SSPS was alerted to a theft of retail merchandise that had occurred at the Tanger Outlets at the intersection of Highways 400 and 89. A description of the suspects was provided, as well as the vehicle in which they had left the scene. The WO was on patrol in his cruiser and closest to the scene when he received word of the incident. He caught sight of the suspect vehicle traveling south on 10 Sideroad south of Highway 89. As the WO was traveling north, he pulled over to the side of the road, waited for traffic to clear and performed a U-turn to fall in behind the SUV. As he did so, the SUV accelerated and increased its distance from the police cruiser. In the area of Kilkenny Trail, the WO could no longer see the SUV and decided to terminate his engagement. He advised the police communications centre of his location and status, and began to drive north toward the Tanger Outlets.

The SO, who had also heard of the theft and fleeing vehicle, took a position on 10 Sideroad in the area of 9th Line and waited for the SUV to pass. As it did so, the SO maneuvered onto the roadway and began to follow the vehicle. The SUV was traveling in excess of the speed limit and pulled into the northbound lanes to pass a vehicle in front of it. The SO activated his emergency lights and siren and continued to pursue the SUV with the intention of stopping it. At the intersection of Reagens Industrial Parkway, the SO slowed at a red light and then proceeded through the light to continue his pursuit of the SUV. The cruiser and the SUV were separated by about ten seconds at this point.

The pursuit continued south toward Highway 88, where the SUV made a right turn to travel west. The SO followed, continued a short distance and then terminated his pursuit at the direction of a sergeant in the communications centre. The officer slowed and then stopped his vehicle on the shoulder of the road. The SO remained stationary for about a minute before continuing west; he had observed traffic slowing as it approached a hill on the road and suspected a motor vehicle collision had occurred. Indeed, it had. The driver of the SUV was involved in a collision with Complainant #1’s pickup truck about a kilometre east of Highway 400.

The occupants of the pickup truck and the SUV were all taken by ambulance to hospital with serious injuries.

Relevant Legislation

Section 219, 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 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 144, Highway Traffic Act -- Police vehicles and red lights

144 (18)  Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.

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

Analysis and Director's Decision

On July 24, 2018, Complainant #1 was traveling east in his pickup truck on Highway 88, approaching 10 Sideroad when his vehicle was struck by an SUV. The SUV, containing Complainant #2, Complainant #3 and Complainant #4, had been traveling west on Highway 88 and crossed into the eastbound lanes causing the collision. All four persons suffered serious injuries. Just prior to the collision, the SO of the SSPS had been in pursuit of the SUV. The officer was identified as the subject officer in the SIU investigation. For the reasons that follow, there are no reasonable grounds in my view to believe the SO committed a criminal offence in connection with the collision.

With respect to the SO’s potential criminal liability, the offences that arise for consideration are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to sections 249(3) [1] and 221 of the Criminal Code, respectively. Both offences are premised, 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. But for the officer’s indiscretion in failing to stop at one, and possibly two, red lights, I am unable to find fault with the manner in which the SO conducted the police pursuit in question. Though the officer exceeded the speed limit at points, travelling as fast as 110 km/h south on 10 Sideroad and 119 km/h west on Highway 88, he was engaged in the execution of his duties and therefore exempt from the speed limits (60 km/h and 80 km/h, respectively) pursuant to section 128(13) of the Highway Traffic Act. This section does not confer carte blanche on officers to speed as they wish; they must at all times tailor their conduct in light of their foremost duty, namely, the safety of the public. On this score, it is important to note that there is no evidence that other drivers were threatened by the manner in which the cruiser was operated, nor was it the case that the SO’s average speeds were grossly in excess of the speed limits. The SO had grounds to initiate the pursuit under O. Reg. 266/10, being possessed of information that the SUV’s occupants had committed thefts from the Tanger Outlets. He did so over a relatively short distance of about 4 kilometres during which he had his emergency lights activated, maintained a safe distance from the SUV throughout, and updated the police communications centre with respect to his location, speeds and the behaviour of the SUV. Turning west onto Highway 88, with the roads wet, heavy rain falling and visibility poor, the decision was made, reasonably in my view, to discontinue the pursuit. Regrettably, the SUV continued its flight and caused a collision with an uninvolved motorist.

On the aforementioned record, I am satisfied that the SO’s conduct fell within the limits of care prescribed by the criminal law. Pursuant to section 144(20) of the Highway Traffic Act, the officer ought to have come to a full stop before proceeding south on 10 Sideroad through the red light at Reagens Industrial Parkway. It may be, though it is not entirely clear on the evidence, that the SO also drove through a red light without stopping when turning right onto Highway 88. In both cases, the officer slowed his cruiser with his emergency lights and siren on and made sure it was safe to proceed before continuing through the intersections. Weighed in the balance with the totality of the SO’s driving behaviour, I am not satisfied on reasonable grounds that the officer’s want of care in this regard was sufficient to render his conduct a marked departure from a reasonable level of care in the circumstances. Consequently, there are no grounds for proceeding with criminal charges against the SO and the file is closed.



Date: August 19, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes