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SIU Director’s Report - Case # 18-POD-270

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 the death of a 31-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 10, 2018, at 11:15 a.m., the Ontario Provincial Police Service (OPP) notified the SIU of the Complainant’s death.

The OPP reported that on September 9, 2018, at about 9:29 p.m., the OPP received a call to the area of Highways (Hwy) 407 westbound and 404 southbound, regarding an abandoned motorcycle on the highway ramp. The responding police officers arrived at 9:54 p.m. and checked the area. They did not locate the driver, found no obvious damage to the motorcycle and no indication that anyone may have been injured. The motorcycle was towed, and the police officers left the scene at 10:50 p.m.

At 11:12 p.m., the OPP received a call to the opposite highway ramp (407 eastbound to 404 northbound) regarding a man lying by the side of the road. The police officers attended and found the Complainant with obvious injuries. The Complainant told the police officers he had crashed his motorcycle. He stopped breathing and Witness Officer (WO) #2 began administering cardiopulmonary resuscitation (CPR) while the EMS (Emergency Medical Services) arrived. The Complainant was taken to the Mackenzie Richmond Hill Hospital (MRHH) and pronounced dead on September 10, 2018, at 1:30 a.m.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

Complainant:

31-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Not interviewed (Next-of-kin)
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
CW #10 Interviewed
CW #11 Interviewed
CW #12 Interviewed
  

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary
WO #9 Notes reviewed, interview deemed not necessary
WO #10 Notes reviewed, interview deemed not necessary
WO #11 Notes reviewed, interview deemed not necessary


Subject Officers

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


Evidence

The Scene

The area of this collision, the Hwy 407, is generally an eight-lane paved controlled access highway, which permits four lanes of eastbound and four lanes of westbound vehicular traffic. The Hwy 404 intersected at near right angles as an underpass of the Hwy 407 and is generally an eight-lane paved controlled access highway which permits four lanes of northbound and four lanes of southbound vehicular traffic. The posted speed limit on both highways is 100 km/h. The exits and entrances for vehicular traffic in each direction are facilitated with ramps, which have their individual advisory speeds posted. The ramp, which facilitated the westbound Hwy 407 to the southbound Hwy 404 movement, is a one lane paved road which permits westbound traffic. At the interchange with the Hwy 407, the westbound Hwy 407 to the southbound Hwy 404 ramp is bordered on both sides by a concrete barrier, which is 0.76 metres high.

There were tire marks, scrapes and fabric marks on the south side barrier. In the area of the fabric and scrape marks, there were scuff marks leading to a metal barrier that blocked off the top of an incline leading down to the Hwy 404 northbound lanes. There was a broken piece of plastic on the roadway. There was a mark indicating the position of the motorcycle on the far side of the Hwy 404, further down the ramp. There were stain marks from blood and flesh on the metal barrier. On the far side of the barrier, the long grass was matted down in a swath from the barrier down the hill to the Hwy 404 northbound lanes.

Scene Diagram

Scene diagram

Forensic Evidence


Summary of GPS Data for the police cruisers of SO, WO #2 and WO #3:


On September 9, 2018 at 9:53:51 p.m., WO #3 arrived at the westbound Hwy 407 north shoulder and at 10:00:54 p.m., he left the scene. At 11:32:12 p.m., WO #3 arrived at the northbound Hwy 404 ramp and on September 10, 2018, at 12:29:56 a.m., he left this scene.

On September 9, 2018 at 9:40:10 p.m., WO #2 was westbound on the westbound Hwy 407 to the southbound Hwy 404 ramp at 59 km/h; then, at 9:40:28 p.m., he stopped on the ramp. At 9:40:32 p.m., he continued westbound. At 9:48:47 p.m., he arrived at the westbound Hwy 407 north shoulder and at 10:19:04 p.m., he left the scene. At 11:26:24 p.m., he arrived at the northbound Hwy 404 ramp and left this scene on September 10, 2018 at 12:28:56 a.m.

On September 9, 2018 at 9:48:38 p.m., the SO arrived at the westbound Hwy 407 north shoulder and at 10:06:57 p.m., he left. At 11:34.20 p.m., he arrived at the northbound Hwy 404 ramp and left this scene on September 10, 2018 at 12:07:36 a.m. [1]

Expert Evidence


SIU Reconstructionist’s conclusions:


On September 9, 2018, between 9:19 and 9:20 p.m., the Complainant drove a 2008 Suzuki GSXR-600 motorcycle on Hwy 407 westbound at Kennedy Road/Warden Avenue at a high rate of speed. The road was dry, the atmosphere was clear and the temperature was mild.

The Complainant exited the Hwy 407 and while traveling westbound, he impacted the concrete barrier on the south side of the westbound Hwy 407 to the southbound Hwy 404 ramp. His body became airborne and traveled westbound over the concrete barrier, then struck a steel “Armco” guardrail, which was perpendicular to the concrete barrier. The Complainant fell westbound onto the grass, sliding down 8.3 metres to the east edge of the eastbound Hwy 407 to the northbound Hwy 404 ramp, which underpasses the Hwy 407. The unoccupied motorcycle continued westbound 230.7 metres between the bordering concrete barriers of the westbound Hwy 407 to the southbound Hwy 404 ramp, coming to rest in a grassed area between the westbound Hwy 407, and the westbound Hwy 407 to the southbound Hwy 404 ramp.

Video/Audio/Photographic Evidence


Summary of Hwy 407 Kennedy Road North Traffic Camera


Seven seconds after the video started, an approaching westbound motorcycle appeared in the centre of westbound Hwy 407 between car headlights.

Twelve seconds after the video started, the motorcycle passed to the right of the headlights of one westbound car in the passing lane of the Hwy 407, near the third light standard east of Kennedy Road.

According to the measuring tool on GoogleEarth, the first and second light standards east of Kennedy Road were 169 metres apart, in the east and west plain. The motorcycle was approximately perpendicular to the second light standard east of Kennedy Road, 16 seconds after the video started and was approximately perpendicular to the first light east of Kennedy Road, 18 seconds after the video started.

Using Windows Media Player as the playback program, the video moved at 14 to 16 frames per second. There were 36 frames measured, from when the motorcycle was approximately perpendicular to the second light standard east of Kennedy Road, to when it was approximately perpendicular to the first light standard east of Kennedy Road. The travel time between these light standards therefore calculated to 2.4 seconds. The calculations indicated the motorcycle was traveling 169 metres in 2.4 seconds or 70.4 metres per second or 253 km/h.


Summary of the scene video:


A group of vehicles with flashing red, blue and amber lights [now known to be the area where WO #4 and WO #1 were] were stopped in the eastbound off-ramp to the Hwy 404.

Two cars were stopped on the right side paved shoulder of the Hwy 407, just east of the northbound Hwy 404 to westbound Hwy 407 on ramp overpass. A motorcycle was lying on its left side and was facing south, between the westbound Hwy 407 to southbound Hwy 404 off- ramp and the westbound lanes of Hwy 407. The motorcycle was closer to the Hwy 407 on the south side of reflective delineators, between both cars on a patch of gravel amongst tall grass. The red tail light was on.

A woman [now known to be CW #2] walked eastbound to the support pillar of the Hwy 404, northbound to Hwy 407 westbound on-ramp and a man [now known to be CW #10] followed CW #2. They met just east of the motorcycle. Then, they walked westbound, along the north edge of the Hwy 407 and they looked to the north, into the tall grass west of the motorcycle.

A police cruiser with emergency lighting activated stopped on the right paved shoulder. CW #2 and CW #10 walked to the front passenger door of the police cruiser. A police officer [now known to be WO #2] met the both of them at the front of the police cruiser. A second police cruiser, with emergency lighting activated, parked behind WO #2’s police cruiser.

WO #2, CW #2 and CW #10 walked over to the front of the motorcycle, while a mini-van operated by CW #12 arrived. The SO joined the three in front of the motorcycle and they appeared to talk.

WO #2 met CW #12, while the SO used a flashlight to inspect the motorcycle. The SO used his flashlight to look east, in the grass from where the motorcycle came from. The SO drew a line with his flashlight from the east, following a path to the motorcycle.

A third police cruiser arrived [now known to be driven by WO #3]. CW #12 and WO #3 joined everybody else at the motorcycle. WO #3 and WO #2, armed with flashlights, looked along the south edge of the Hwy 407 westbound to the southbound Hwy 404 off-ramp a few feet on either side of the motorcycle. CW #10 and CW #2 left the scene.

WO #3 lifted the motorcycle and placed it on its kickstand. The SO used his flashlight to look in the tall grass, to the west of the motorcycle. The SO searched the grass, while walking westbound along the north shoulder of Hwy 407.

The SO walked back to the motorcycle and then, he walked eastbound on the westbound Hwy 407 to the southbound Hwy 404 ramp along the north side.

The SO drove the Hwy 407 westbound away from the scene, while WO #2 and WO #3 remained in their police cruisers at the scene.

A flatbed tow truck parked on the right shoulder in front of WO #2’s police cruiser. WO #3 reversed his police cruiser on the Hwy 407 eastbound.

Another flatbed tow truck parked in front of the first tow truck. Both tow operators got the motorcycle onto the flatbed truck. WO #2 walked to the rear of the tow truck and appeared to talk to the tow truck operators. WO #2 walked back to his police cruiser and drove away from the scene.

Police Communications Recordings

The OPP dispatcher transmitted that a caller thought there was a motorcycle crash into the right ditch, 407 west off-ramp to 404 southbound. The caller did not see anyone come out of the ditch area and there were lights coming from the ditch.

Unit #1 checked 407 west to 404 south, finding nothing. Unit #1 asked the dispatcher to call the caller back and make sure it is not westbound 407 to northbound 404 ramp. The dispatcher replied, she spoke to the caller. The caller had pulled over on the 407 westbound, just past the exit to the 404; she saw a motorcycle that had gone off the road, but did not see anyone with it.

Unit #1 will make his way back to 407 westbound and check for the driver and the motorcycle. Unit asked for exact location of the caller. The dispatcher said the caller was westbound on the right shoulder. Unit #1 asked the dispatcher to call 407 and ask them to check their cameras.

Unit #2 reported his arrival. Unit #1 asked for a tow for the motorcycle and for a VIN # check. The dispatcher said the check showed the vehicle as sold.

Unit #3 to Unit #4 asked to check 407 westbound off-ramp to the 404 southbound. Unit #4 checked 407 westbound to 404 southbound and 404 south to Steeles, negative.

Unit #1 spoke to the last owner of the motorcycle and it was sold about five years ago. The person who bought the motorcycle did not register it in his name.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • OPP Technical Analyst re GPS Data;
  • Email re Motorcycle Speed and Time with 407 Image -Sept 28, 2018;
  • Event Details (x2);
  • Communication recordings;
  • GPS Data (x6);
  • MVC Report;
  • Notes of witness officers;
  • Occurrence Details;
  • OPP Google Earth Representation of Scene;
  • Preliminary Report-HSD GTA Traffic Support Unit;
  • OPP Technical Collision Investigation Report;
  • Seizure and Disposition Report;
  • Sudden Death Report;
  • Supplementary Occurrence Reports; and
  • Training Record (CPR)-the SO.

Materials obtained from Third Parties

Upon request the SIU obtained and reviewed the following documents from the York Regional Paramedic Service and the MRHH:
  • Ambulance Call Report-York EMS;
  • Incident Report (x3);
  • LIFEPAK Report-York EMS; and
  • Medical Record-Mackenzie Richmond Hill Hospital.

Incident Narrative

The material events in question are relatively clear on the weight of the evidence collected by the SIU. The Complainant was traveling west on his motorcycle on Highway 407 sometime before 9:30 p.m. on September 9, 2018. Several kilometres before the Highway 404 interchange, the Complainant was travelling at speeds in excess of 200 km/h. As he entered onto the ramp that would lead him to the southbound lanes of Highway 404, the Complainant lost control of his motorcycle. The motorcycle struck the concrete barrier lining the south side of the ramp, east of Highway 404, and vaulted the Complainant into the air. The Complainant’s body then struck a metal guardrail at the top of the embankment along the ramp that connected the eastbound lanes of Highway 407 with the northbound lanes of Highway 404. The Complainant came to rest on the east shoulder of the ramp at the bottom of the embankment. His motorcycle, on the other hand, continued without an operator in a general westward direction for some 230 metres. It came to rest in a ditch west of Highway 404 between the north side of Highway 407 and the ramp leading westbound traffic onto the southbound lanes of Highway 404.

The Complainant’s motorcycle was noticed by CW #2, who contacted police. She was joined by another civilian, and the two searched the area for the motorcyclist.

WO #2 was the first officer to arrive at the location of the motorcycle and was quickly joined by WO #3 and the SO. They spoke with the two civilians, examined the motorcycle and began to search the area. Not finding anything of note in the vicinity of the vehicle, the SO directed WO #3 to drive in his cruiser west on Highway 407 and onto the Highway 404 southbound on-ramp looking for the motorcycle’s operator and any evidence of a collision. Nothing was found. Arrangements were made to have the motorcycle towed and the officers left the scene.

At about 11:10 p.m., a call was received by police from a motorist reporting a person – the Complainant - lying on the shoulder of the northbound ramp from eastbound Highway 407 to Highway 404, under the Highway 407 overpass. Officers responded to the scene and, with the help of an off-duty firefighter, rendered emergency first aid to the Complainant. The Complainant was rushed to hospital with the arrival of paramedics at around 11:17 p.m. Despite the resuscitative efforts of medical staff, the Complainant was pronounced deceased at 1:06 a.m. of September 10, 2018.


Cause of Death


The pathologist at the Complainant’s post-mortem examination attributed the Complainant’s death to “multiple blunt force injuries”.

Relevant Legislation

Sections 219 and 220, Criminal Code -- Criminal negligence causing death

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.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

Analysis and Director's Decision

In the evening of September 9, 2018, the Complainant crashed his motorcycle on the ramp leading from the westbound lanes of Highway 407 to the southbound lanes of Highway 404. The Complainant suffered grievous injuries in the collision and was pronounced deceased following his transport to hospital. Earlier that same evening, OPP officers, including the SO, were dispatched to the northwest corner of the Highways 407 and 404 interchange following reports of a motorcycle in a ditch. The motorcycle was the Complainant’s, but he was not located at the scene. Following a search of the area, the officers left the scene and arranged for the motorcycle to be towed. 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 Complainant’s death.

The offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. The offence is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised. In the circumstances of this case, the key question in the liability analysis is whether the officers and, in particular, the SO, did enough in their efforts to locate the Complainant when they attended at the site of the motorcycle. [2] The SO, WO #2 and WO #3 were immediately alert to the possibility of an injured motorcyclist and set about searching the area in the vicinity of the motorcycle on foot. Regrettably, their search area appears to have been confined to something less than 100 metres from the motorcycle’s location, during which they found nothing of note. Perhaps they should have widened their foot search, but their decision to not do so was in some respects understandable. They had examined the motorcycle and, coming to the conclusion that it was not badly damaged, appear to have assumed its rider had simply abandoned the vehicle. They had no reason to suspect the unusual sequence of events that saw the motorcycle travel, without an operator, more than 200 metres from the point of first impact across Highway 404, a fact that was only reinforced when WO #3 travelled the ramp in his cruiser and found nothing of note. Beyond the foot and cruiser searches that were performed, the officers also arranged from the scene to have the registered owner of the motorcycle contacted, and learned that he had sold the bike five years earlier. Ought the officers and the SO, the senior officer on scene, have done more? Perhaps. One can imagine that the Complainant might have been found, and medical care administered, far sooner than occurred had the officers expanded their search and/or brought other resources to bear to assist in their efforts, such as a police dog or aerial surveillance equipment. Be that as it may, when one weighs what the officers did against what more they might have done, I am unable to reasonably conclude that their conduct transgressed the limits of care prescribed by the criminal law. Accordingly, there are no reasonable grounds for proceeding with criminal charges against the subject officer.


Date: October 2, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The SIU Reconstructionist was not certain, but believed this to be the SO by a process of elimination. [Back to text]
  • 2) Because I believe it is dispositive of the liability questions in this case, I have decided to focus the analysis on a consideration of the standard of care prescribed by the criminal law vis-à-vis the search in question without dealing with the care afforded the Complainant by officers once he was discovered or the issue of causation. The former was not raised as a live issue on the record given the uncontested evidence of the prompt medical attention the Complainant received at the roadside. The latter involves difficult questions on the existence of a possible causal connection, sufficient in law, between the conduct of the officers conducting the search, and the Complainant’s injuries and death. [Back to text]