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SIU Director’s Report - Case # 19-PVI-067

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 a 63-year-old male (the “Complainant”).

The Investigation

Notification of the SIU

On April 3, 2019, at 4:45 p.m., the Ontario Provincial Police (OPP) Northeast Region notified the SIU of the serious injury sustained by the Complainant as a result of a collision with an OPP cruiser 20 minutes prior.

The OPP reported that at 4:25 p.m., on April 3, 2019, a marked OPP cruiser en route to a low priority call on Highway 101 broadsided a snowmobile operated by the Complainant. The Complainant was attempting to cross Highway 101 at the time. He suffered several fractures to his left leg requiring surgeries.

The Team

Number of SIU Investigators assigned: 2
 
On April 4, 2019, two SIU investigators initiated an investigation in Sault Ste. Marie where the Complainant had been transferred for surgery. Various materials and documents were requested and later received from the OPP Wawa Detachment and police designations were issued. The Complainant was interviewed later that day and his medical records were obtained with his consent. The Complainant’s wife was contacted by the SIU and supplied background information. 
 

Complainant:

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


Civilian Witnesses

CW #1 Not interviewed (Next-of-Kin)
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO Interviewed


Subject Officers

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


Evidence

Forensic Evidence


Global Positioning System (GPS) Data


The following data was obtained from the OPP GPS Gate Data Delivery. The report covers the movements of the subject officer’s police vehicle on Highway 101 to the scene of the collision. A total of 211 points are mapped on the Google Earth map but the following numbers indicate the police vehicle from point 168 (two kilometres from impact) to point 188 (the area of impact). The speed limit on Highway 101 changes from 90 km/h to 50 km/h and is noted at point 184, 450 metres from the scene.

Global Positioning System (GPS) Data

Crash Data Retrieval (CDR) Data


The CDR Report captured the police vehicle speed for the final five seconds before impact. At five seconds prior to impact, the police vehicle was traveling at about 116 km/h and continually decreased speed to the point of impact indicating that the police officer did not apply the accelerator from that point on. At the point of impact, the police cruiser was traveling at about 71 km/h.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP Wawa Detachment (Superior East):
  • Computer-Assisted Dispatch Event Details;
  • CDR Report;
  • GPS data associated with the SO’s cruiser;
  • Notes of the WO;
  • OPP Draft Diagrams;
  • Identification Number for the Mobile Work Station assigned to the SO’s cruiser;
  • Google Earth photograph of the scene;
  • Preliminary Photo-brief prepared for the SIU; and
  • The OPP Reconstruction Report.

Materials obtained from Other Sources

The SIU received the Complainant’s medical records from the Sault Area Hospital.

Incident Narrative

The circumstances surrounding the Complainant’s injuries are not in dispute. At about
4:00 p.m. on April 3, 2019, the Complainant, together with CW #2 and CW #3, had come off Wawa Lake on their snowmobiles and were stopped north of Highway 101 looking to cross south over the roadway into town. At the same time, the SO was in his cruiser travelling west along Highway 101 toward Wawa in response to a reported theft at a shop in town. As the officer negotiated a rightward bend in the road approaching the snowmobilers’ position, he observed the Complainant in his lane ahead of him and attempted to avoid a collision by swerving to the left. Moments prior, the Complainant had accelerated forward onto the roadway.

The impact between the vehicles occurred in the westbound lane of Highway 101 at the roadway’s intersection with Gladstone Avenue. The front passenger side of the cruiser struck the front left side of the snowmobile, sending it west and north until it came to rest on the westbound shoulder of the highway several metres from the point of impact. The Complainant was thrown from the snowmobile and landed on the roadway. The SO stopped his cruiser in the eastbound lane of the highway, exited and went to check on the Complainant. The officer sustained minor injuries in the collision, apparently the result of his cruiser’s airbag deployment.

Relevant Legislation

Section 128(13)(b), 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 320.13, Criminal Code – Dangerous operation causing bodily harm

320.13 (2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.


Analysis and Director's Decision

The Complainant was seriously injured on April 3, 2019 while on a snowmobile trip with a couple of friends. He was on his snowmobile attempting to cross Highway 101 in Wawa when he was struck by an OPP cruiser being operated by the SO. The Complainant was transported to hospital where he was treated for multiple fractures of his left leg. On my assessment of the evidence, 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 320.13(2) of the Criminal Code. As an offence of penal negligence, liability under the section rests on conduct that, in addition to being objectively characterized as dangerous, amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances: R. v. Beatty, [2008] 1 SCR 49; R. v. Sharp (1984), 12 CCC (3d) 428 (Ont. C.A.). While I have no doubt that the SO was driving dangerously in the moments before the collision, and that his dangerous driving was largely responsible for what occurred, I am of the view that the evidence falls just short of justifying criminal charges against the officer.

The central issue in the liability analysis is with the SO’s speed. While traveling west on Highway 101 some six kilometres from the scene of the collision, there was a pronounced increase in the officer’s velocity to about 136 km/h from 111 km/h eight seconds earlier, presumably in response to the theft call in Wawa. The SO continued apace westward at speeds between 121 km/h and 152 km/h over the course of the next five and a half kilometres, traveling for the most part at 140 km/h and above against a 90 km/h speed limit. Some 450 metres east of the collision site, there was a traffic sign for westbound motorists indicating a drop in the speed limit from 90 km/h to 50 km/h as the highway wound its way into the Town of Wawa. The SO appears to have entered this zone at about 138 km/h, thereafter decelerating to 113 km/h within a span of 250 metres. At the point of impact, a further 150 metres down the road, the SO was travelling at about 71 km/h.

I am satisfied that the SO’s speeds as he responded to the theft call, which were significantly in excess of the speed limits that governed the roadway over which he travelled, constituted a risk to traffic around him. I am further satisfied that the officer’s speed was the pivotal factor in the collision that occurred. The Complainant appears to have done little if anything wrong in relation to the accident, and I do not believe he saw the SO’s cruiser before entering the roadway. Travelling as fast as it was, it is conceivable that the cruiser would not have been visible to the Complainant until just before impact. On the other hand, the SO appears to have seen the Complainant’s snowmobile entering onto the roadway but was unable to avoid a collision owing, in my view, to the speed at which he was travelling.

Further aggravating the danger caused by the SO’s speed was the officer’s failure to activate his emergency lights and/or siren. He ought to have known, particularly as he crossed into the 50 km/h zone, that traffic around him would have little time to react to his cruiser given how fast it was going. In the circumstances, the officer ought to have activated his emergency lights and/or siren to alert the public as early as possible to his presence. One is left to speculate, reasonably in my view, that the Complainant might well have not ventured onto the roadway when he did had he been given advance notice of the cruiser via its siren or emergency lights.

Finally, when considering the inculpatory impact of the SO’s speed, it is important to bear in mind that a police officer’s foremost duty is at all times the preservation of life. It does a police officer no good if in responding to a call for service his or her conduct unduly endangers public safety. I fully appreciate that police officers are frequently faced with difficult choices with little time in which to make them, and that allowance must be made for less than exacting decisions made in the heat of the moment. That said, in the context of an officer who had travelled several kilometres over approximately three minutes before the collision occurred, it is difficult to countenance the persistence of the SO’s excessive speed to get to the scene of what was, after all, a property offence.

On the other side of the ledger, while one might question the wisdom of traveling as fast as the SO was to get to the scene of a reported theft, the fact remains that he was engaged in the execution of his duty and therefore exempt from the speed limits pursuant to section 128(13)(b) of the Highway Traffic Act. This is not to suggest that the SO had carte-blanche to speed as he wished without regard to public safety; however, quite apart from whether the SO paid sufficient heed to public safety as he sped westward on Highway 101, it is important to recognize that he was a police officer responding to the scene of a reported crime. In other words, if the officer’s conduct was ill-guided, it was not without rhyme or reason.

It is also true that most of Highway 101 over which the SO travelled in response to the reported theft was predominantly rural in nature with little development on either side of the road. It was only as the SO approached the Town of Wawa and the speed limit became 50 km/h for westbound traffic, some 450 metres from the collision scene, that the officer’s speed coalesced with the environment around him to create a clear and present danger of accident. In the circumstances, while I am unable to characterize the gravamen of the SO’s transgressions as fleeting or momentary, it was relatively short-lived – about half a kilometre and some 13 seconds.
The evidence further suggests that snowbanks on the shoulder of the highway, trees and shrubs on both sides of the snowmobile trail, and a “no parking” sign just east of the location where the Complainant attempted to cross the roadway may have obstructed his line of sight toward the approaching cruiser, thereby contributing to the accident. In fact, the obstructions may well have detracted from the SO’s sightlines as well. All of which is to suggest that the officer’s speed was likely not the only factor at play in the collision.

Lastly, it would not appear that the environmental conditions that prevailed at the time exacerbated the risks to public safety inherent in the SO’s speed. The roadway was dry and in fair condition, and visibility was good.

In the final analysis, while one may legitimately criticize the SO for the manner in which he operated his police cruiser in the moments leading to its collision with the Complainant and his snowmobile, I am unable to reasonably conclude that the officer’s conduct was so substandard as to amount to a marked deviation from a reasonable level of care. Accordingly, there are no grounds for proceeding with charges in this case and the file is therefore closed.


Date: February 5, 2020

Original signed by

Joseph Martino
Director
Special Investigations Unit