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SIU Director’s Report - Case # 18-OVI-340

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 sustained by a 29-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 25, 2018, at 5:09 a.m., the Guelph Police Service (GPS) notified the SIU of the life-threatening injuries sustained by the Complainant subsequent to a single vehicle collision in an industrial area of Guelph that occurred half an hour prior. The GPS reported that a police officer had followed a suspect vehicle seen leaving the area of a disturbance on Bagot Street at about 4:15 a.m. that morning. The vehicle travelled north on Silvercreek Parkway at a high rate of speed and left the roadway, struck a pole and disintegrated. The Complainant was ejected from the vehicle and propelled into a marshy ditch over 100 feet from the scene. He was transported to Guelph General Hospital (GGH) with severe head injuries and fractures.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned (inc. collision reconstructionist):

Complainant:

29-year-old male not interviewed, [1] medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 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


Subject Officers

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


Evidence

The Scene

The SO became aware of the suspect Mazda while near Bagot Street investigating a disturbance. He then drove north to Willow Road, and then westbound on Willow Road. He turned northbound on Silvercreek Parkway to 392 Silvercreek Parkway, the scene of the collision. The total distance travelled was precisely 3.0 kilometres.

Silvercreek Parkway at the intersection of Campbell Road is entirely commercial/industrial. The posted speed limit was 60 km/h, with a single yellow centre line separating the roadway. Silvercreek Parkway runs north and south and the roadway was wet from a moderate rainfall.

Tire marks were visible on the roadway and soft shoulder on the west side of Silvercreek Parkway. These tire marks led up to the utility/light standard in front of 392 Silvercreek Parkway. There was fresh damage to the pole.

The damaged Mazda vehicle was separated into two main pieces. The rear section of vehicle was resting in a grassy ditch/culvert area southwest of the utility/light standard in front of 392 Silvercreek Parkway and was burned out. Burn residue was visible in the ditch/culvert south of where the rear section of vehicle was resting. Debris and personal property were scattered throughout the grassy ditch/culvert. The front section of the Mazda was resting on its roof on a grassy portion southwest of utility/light standard (southwest corner of Silvercreek Parkway and Campbell Road) and additional debris was visible on the roadway northeast of the vehicle pieces.


Tire marks are visible leading up to a damaged utility pole. The rear half of the Mazda rests in the foreground with scorch marks on the ground nearby. The front half of the Mazda rests on its roof in the background. Vehicle debris scatters the area.

Figure 1 - Tire marks are visible leading up to a damaged utility pole. The rear half of the Mazda rests in the foreground with scorch marks on the ground nearby. The front half of the Mazda rests on its roof in the background. Vehicle debris scatters the area.

Gouges were visible in different areas of the grassy ditch/culvert. A mark was visible from the vehicle pieces to a second ditch/culvert located on the north side of Campbell Road. A bent road sign (60 km/h sign) was resting on the paved portion of Campbell Road.

Scene Diagram

Scene diagram

Physical Evidence


Complainant’s vehicles

The Complainant was driving a 2005 Mazda 3, four door sedan. The front and rear licence plates differed and were both listed as stolen.


Police Vehicle

The SO was operating a marked police vehicle, a 2017 Ford Police Interceptor. The odometer reading was 61810 kilometres. The emergency lighting system and siren worked properly and no fresh damage was visible on the vehicle. The cruiser was extensively examined by the SIU Collision Reconstructionist.

Video/Audio/Photographic Evidence

The SIU located and obtained a videotape from a camera directed to the southwest on the northwest corner of 347 Silvercreek Parkway. The camera captured vehicular movement on Silvercreek Parkway from the railroad crossing north to a point perpendicular to the northwest corner of the building where the camera was attached.

Expert Evidence [2]

The following table reports the landmarks from south to north (left to right side on the screen), the distances between them and the time when each vehicle’s headlights lined up with the landmark. Distance calculations are from the centre of the northbound lane of Silvercreek Parkway. The average speed of each vehicle between the landmarks is reported and in the SO’s vehicle’s table, the time which the SO’s vehicle was behind the Mazda 3 is reported. The Mazda collided with a pole immediately after passing through the video camera parameter north.

MAZDA 3

Mazda 3

The SO’s Vehicle

Subject officer's vehicle

Both vehicles traveled more slowly between the first and second tree and this is likely because they are traveling over a railroad track between those landmarks. Furthermore, both vehicles decelerate on the right side or northerly portion of the video. It is possible that the driver of the Mazda was beginning to experience vehicle control problems at that point and the SO was slowing as he approached the collision scene.

Forensic Evidence


The Global Positioning System Data - the SO

The following is an abridged version of a report on the entire speed recordings for the SO:

  • From Bagot Street to Willow Road, a 50 km/h zone, the SO reached a maximum speed of 82 km/h for six seconds. The remainder of the speeds on Bagot Street never exceeded a top speed of 64 km/h. Time on Bagot Street to Willow Road was 47 seconds.
  • The SO turned left at the intersection of Willow Road and travelled west. Willow Road was a 60 km/h zone. The SO’s speeds on Willow Road to Silvercreek Parkway, in five second intervals were: 84 km/h, 84 km/h, 79 km/h, 72 km/h, 74 km/h, 74 km/h, 58 km/h and 29 km/h.
  • Once at Silvercreek Parkway, the SO turned right to travel north on Silvercreek Parkway which was a 60 km/h zone. His speeds in five second intervals to the collision scene were: 87 km/h, 89 km/h, 89 km/h, 84 km/h, 72 km/h, 68 km/h, 64 km/h, 66 km/h, 58 km/h, 32 km/h and 10 km/h.

Communications Recordings

At 4:37:16 a.m., the SO, who had been near Bagot Street investigating a disturbance, broadcast that he was trying to catch up to a vehicle seen leaving the area of the disturbance. He advised that the vehicle was not stopping and that it was, “taking off.” The SO then reported that the vehicle did not stop for the stop sign at Willow Road for the left (westbound) turn. The dispatcher at that point called for units to assist.

At 4:38:06 a.m., the SO reported the Mazda vehicle was travelling at a high rate of speed when passing Applewood Crescent. The SO commented that he was following only, and not in pursuit. At 4:38:40 a.m., the SO broadcast that he was at Greengate Road and the Mazda was ahead on Silvercreek Parkway. Precisely 30 seconds later, the SO reported the collision. The time elapsed from the moment the SO first aired his encounter with the Mazda until the collision was one minute and 54 seconds.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the GPS:
  • CAD-Call Event Details report;
  • Disclosure Log dated December 4, 2018;
  • Disclosure Log dated November 26, 2018;
  • General Report;
  • GPS Disclosure Letter dated November 28, 2018;
  • iTracker GPS coordinates for November 25, 2018;
  • iTracker GPS coordinates NoTrack dated November 25, 2018;
  • iTracker Report (GPS map) dated November 25, 2018 for all other GPS units;
  • iTracker Report (GPS map) for the SO dated November 25, 2018;
  • Motor Vehicle Collision Report; and
  • Notes of the witness officers.

Incident Narrative

The material circumstances surrounding this incident may be summarized in short order. Shortly after 4:30 a.m., the SO was responding to investigate a disturbance near Bagot Street. As he arrived on Bagot Street, the officer saw the Complainant’s vehicle leaving the scene north toward Willow Road and decided to follow it for possible involvement in the disturbance call. With his cruiser’s emergency lights activated, the SO followed the Complainant west on Willow Road from Bagot Street as the Complainant began to pick up speed. The officer accelerated as well but continued to lose distance to the Complainant as they approached Silvercreek Parkway North, where both vehicles turned to head north.

As the Complainant approached Campbell Road, he lost control of his vehicle traveling around 130 km/h, whereupon it entered into the grassy ditch on the west side of the roadway and struck a utility pole. The collision split the vehicle in two and jettisoned the Complainant onto the ground outside. The SO arrived at the scene of the collision and immediately reported what had occurred. The Complainant was transported to hospital where he was diagnosed with a traumatic brain injury and multiple fractures.

Relevant Legislation

Section 128(13), 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.

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

The Complainant was seriously injured on November 25, 2018, when the vehicle he was driving slammed into a utility pole in front of 392 Silvercreek Parkway North in Guelph. The Complainant was being pursued by the SO in his police vehicle at the time. 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 collision resulting in the Complainant’s injuries.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 249(3) of the Criminal Code. [3] Liability under the provision is predicated, in part, on conduct that deviates markedly from a reasonable level of care in the circumstances. On the record as established by the SIU investigation, there are no reasonable grounds, in my view, to believe that the SO ran afoul of the limits prescribed by the criminal law during his engagement with the Complainant. The officer was within his rights in seeking to investigate the Complainant as his vehicle was seen in the area of a reported assault. He activated his cruiser’s emergency lights and began to follow the Complainant but was never able to get near him as the Complainant accelerated to reach significant speeds. It is true that the SO also increased his speed in excess of the speed limits on Bagot Street, Willow Road and then Silvercreek Parkway North. However, the officer was for the most part only moderately over the relevant speed limits and had licence to do so pursuant to section 128(13) of the Highway Traffic Act. While officers are not entitled under that provision to speed as they wish without regard for public safety considerations, there is no evidence that the SO imperiled any motorist or pedestrian along the pursuit route. That would include the Complainant, who was so far ahead of the officer – at the front end of a 40 second interval between the vehicles as he approached the site of the collision – that he had every opportunity to bring his vehicle to a safe stop or a safer speed had he been so inclined. On this record, I am unable to reasonably conclude that the SO drove dangerously in breach of the criminal law as he engaged the Complainant. Accordingly, there are no grounds for proceeding with charges in this case and the file is closed.


Date: September 13, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The SIU was unable to interview the Complainant due to his severe brain injury as a result of the collision. [Back to text]
  • 2) This evidence is premised on an examination of the video collected from 347 Silvercreek Parkway. The video was not time stamped and the times listed refer to the video’s time. [Back to text]
  • 3) Presently, section 320.13(2). [Back to text]