Cruiser accidentRunnersCruiser and motorbike
thick blue gradient line

SIU Director’s Report - Case # 18-PVI-365

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 75-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On November 25, 2018, at 7:41 p.m., the Ontario Provincial Police (OPP) notified the SIU that there had been an OPP-involved collision. The three passengers of the civilian vehicle were taken to the Collingwood General & Marine Hospital (CGMH).

The OPP reported that a two-vehicle collision occurred at 6:00 p.m., on County Road 42 (CR 42) outside of Creemore, involving a police cruiser driven by the Subject Officer (SO) of the OPP (Wellington Detachment) and a civilian vehicle with three occupants. All four involved parties were taken to the CGMH and treated for minor injuries. The driver of the 2008 Pontiac G5 was the Complainant, and his passengers were in the front seat [Civilian Witness (CW) #3] and in the backseat.

On December 17, 2018, the Complainant and CW #3 advised the OPP that they suffered fractures to ribs and breast bones. [1] On December 18, 2018, the OPP reported the injuries to the SIU.

The Team

Number of SIU Investigators assigned: 5

Complainant:

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


Civilian Witnesses

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

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The area of the collision was a two-lane paved asphalt road which permitted one lane of northbound and one lane of southbound vehicular movement. The lanes were delineated with a solid yellow paint mark near the centre of the road and white painted fog lines along the edge. The road was bordered by gravel shoulders.

Side Road 3 & 4 Nottawasaga intersected Airport Road (CR 42) and it permitted east/west vehicular movement. Side Road 3 & 4 Nottawasaga was controlled with stop signs at Airport Road. The posted speed limit was reduced from 80 km/h to 60 km/h some 90 metres south of the intersection.

Forensic Evidence


Summary of the Global Positioning System (GPS) / Airbag Control Module (ACM) Reports


The ACM data indicated the speed of the police cruiser was reduced with braking from 92 km/h one second prior to time zero to 59 km/h at time zero and it travelled a calculated distance of 21.16 metres. No data were reported during the last 19 seconds pre-collision. The reported GPS speeds were similar to the airbag control module data 5 seconds prior to the collision.

Expert Evidence


Summary of the OPP Reconstructionist’s Report


The Ford (the SO’s vehicle) was northbound on CR 42 and was travelling at approximately 98 km/h 5 seconds and 126 metres back from the area of impact. The speed limit was an 80 km/h zone, but changed to a 60 km/h zone approximately 87.26 metres back from the area of impact. The Ford was travelling at approximately 96 km/h 85.93 metres and approximately 4 seconds back from the area of impact within the 60 km/h zone. The Pontiac (the Complainant’s vehicle) was travelling southbound on County Road 42 and was travelling approximately 43 km/h 5 seconds and 40.30 metres back from the area of impact. The Pontiac was slowing and had its brakes activated from 5 seconds to 2 seconds pre-impact. The Pontiac had slowed from 43 km/h 5 seconds pre-impact to 14 km/h 2 seconds pre-impact and was travelling at 14 km/h 1 second pre-impact. The Pontiac’s brake was off in the last second pre-impact. The Pontiac turned left into the path of the Ford. The Ford applied the brakes approximately 0.9 seconds pre-impact. The Ford was travelling at approximately 92 km/h when it applied the brakes. The right front corner of the Pontiac struck the front of the Ford, as the Pontiac was turning left in front of the Ford. The Pontiac was turning left across the northbound lane towards the southeast corner south of the intersection.

Police Communications Recordings

The SO reported to the communication centre he was switching over to a Huronia call centre. The SO reported 10-50 (vehicle accident) just south of Avening Airport Road: “The airbags deployed on my car. The other vehicle, occupants are getting out.” The dispatcher asked if “10-52 (ambulance) required?” and the SO said to call the ambulance as a precaution: “There’s a head on. Vehicle turning in front of me. I’m just getting out of my cruiser here checking on the other drivers.”

The SO reported, “Three occupants in the other vehicle. A young girl as well in the back seat. Ambulance can check her out, but everybody seems to be okay. Everybody is out of the vehicle walking around.” The dispatcher confirmed the ambulance was attending.

The dispatcher asked the SO about his injuries and he said, “Just a sore wrist. Everything else okay.”

WO #2 told the dispatcher, “I’m going to be transporting him (the SO) to Collingwood General and Marine. Medics gave him clearance for me to take him. Just get him checked out and can sort the damage to the cruiser.”

Multiple telephone conversations occurred between the Orillia Communication, ambulance and WO #2 in regards to the motor vehicle accident involving an OPP cruiser. The Emergency Medical Services was provided a location of the accident: “It’s Avening. The little town of Avening. We have a cruiser that’s been involved in a car accident with a head on collision. And the other vehicle. I guess there’s three occupants. I believe one of them is a child and all three parties are out of the vehicle, but I don’t know if the officer is injured or not. I’m just waiting to hear back from him.”

A telephone conversation took place between the Orillia Communications Centre and Traffic Control in regards to the SO’s reason to be in the area of the accident. The dispatcher said, “So what’s the, their (sic) being pretty quiet or pretty careful about what they are putting on the occurrence. What a, what are the, what’s the nuts and bolts of it?” Traffic Control replied, “Well, when I got a hold of WO #2, he couldn’t even give me too much ‘cause he said, he said “I’m literally rolling up on-scene” and he’s asking questions for me but it is a minor PI but airbag, airbags deployed and a member of the public which just meets, meets our criteria. I was just going to say, nobody is seriously injured, but paramedics are sort of attending to a couple people there. One guy. The guy had chest pains from the seat belt they figure. The officer had the sore wrist and taking him to the hospital.” They discussed if the SIU had to be notified: “So having said that, I mean, if something, something is, is minimal as a broken arm for example can be enough to trigger an SIU mandate.”

WO #2 phoned the communications centre and said he was transporting the SO to the hospital, “Yeah, so I’m just en route to the hospital with the SO. The, his sergeant, there is major damage to the cars, probably a write off.”

The Orillia Communications Centre contacted an OPP Inspector, “Yeah, but a basically head-on collision between a traffic cruiser and a civilian car, the car had three occupants. All four have gone to hospital. The three civilians by ambulance. The officer by cruiser.”

WO #2 updated the Orillia Communications Centre: “Regarding injuries, the last I’ve gotten is basically the driver of the other vehicle had some x-ray on his chest because of his chest pain so no results or anything yet. I’m going to be going home hopefully in an hour.”

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • Background Event Chronology;
  • Communication recordings;
  • Collision Reconstruction Report - Huronia West;
  • Event Log (Unit History);
  • General Occurrence Report;
  • GPS Data;
  • GPS Download (x4);
  • Motor Vehicle Collision Report (x2);
  • Notes of witness officers;
  • Communication recordings;
  • OPP Airbag Control Module (ACM) data re subject officer’s cruiser and the Complainant’s vehicle; and
  • OPP GPS Data (use Google Earth).

Incident Narrative

The facts in question are easy to discern based on the information collected by the SIU thanks to statements provided by the SO, the Complainant and CW #3, as well as data downloaded from the involved vehicles. At approximately 5:30 p.m. on November 25, 2018, the Complainant was driving a Pontiac G5 sedan with his wife, CW #3, in the front passenger seat and a child in the back. They were traveling south on CR 42, south of Avening, as they approached the roadway’s intersection with Side Road 3 & 4 Nottawasaga. Intending to turn left onto Side Road 3 & 4 Nottawasaga, the Complainant slowed down and activated his turn signal. At the same time, the SO was driving north on CR 42 toward Side Road 3 & 4 Nottawasaga en route to the OPP Huronia West Detachment. The Complainant turned, and the front passenger side of the Complainant’s vehicle was struck by the police cruiser in the course of the left turn, propelling it toward the northeast corner of the intersection where it came to rest facing northeast. The SO’s cruiser also came to rest facing northeast and south of the Complainant’s vehicle.

Paramedics attended following the collision and transported the Complainant and his family to the hospital. The Complainant was diagnosed with a fractured sternum and rib.

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.

Analysis and Director's Decision

In the evening of November 25, 2018, the Complainant was injured in a motor vehicle collision south of Avening, Ontario. His vehicle collided with an OPP fully marked cruiser being operated by the SO. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the collision.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 249(3) [2] of the Criminal Code. As a crime of penal negligence, liability under the provision is predicated, in part, on conduct that deviates markedly from a reasonable level of care in the circumstances: R. v. Beatty, [2008] 1 SCR 49. There is a heavy onus on drivers to ensure that they embark on left-hand turns only when it is safe to do so. Clearly, the evidence indicates that the Complainant fell short in that duty. In the circumstances, the lion’s share of the responsibility for the collision lies with the Complainant. This is not to suggest, however, that the SO was entirely faultless.

If liability is to be found in the SO’s conduct, it rests with the officer’s speed as he approached the intersection of CR 42 and Side Road 3 & 4 Nottawasaga. Five seconds prior to the point of impact, and in an area on CR 42 where the speed limit changes from 80 km/h down to 60/h, the evidence indicates that the SO was traveling close to 100 km/h. About four seconds and some 85 metres from the point of impact, the SO was travelling about 96 km/h. Observing the vehicle turning in front of him, the SO applied the brakes and slowed his vehicle from about 92 km/h one second prior to impact to 59 km/h at the point of impact. The SO candidly acknowledges that he would have had a greater chance of avoiding the collision had his speed been lower. Moreover, there was no reason why the SO was driving as fast as he was; he was simply on his way to the police detachment for administrative purposes. On the other hand, there is no evidence of any distracted driving on the part of the SO (the officer had seen the Complainant’s vehicle well in advance) or that the officer had imperiled any motorists prior to the collision. In fact, there was little in the prevailing environmental conditions at the time that would have exacerbated the risk inherent in the officer’s speeds; traffic appears to have been light to non-existent at the time, the roads were in good condition, the weather was fairly clear, and visibility was good albeit it was dark. Weighed in the balance, I am unable to reasonably conclude on this record that the officer’s singular indiscretion regarding his speed is enough to transgress the limits of care prescribed by the criminal law.

In the final analysis, as the SO’s conduct did not in my view amount to a marked departure from a level of care that a reasonable person would have observed, there are no grounds to proceed with charges in this case.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The SIU later learned that only the Complainant sustained injuries in the collision. [Back to text]
  • 2) Presently, section 320.13(2). [Back to text]