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SIU Director’s Report - Case # 19-PVI-129

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 75-year-old man (Complainant #1), a 62-year-old woman (Complainant #2) and a 37-year-old man (Complainant #3).

The Investigation

Notification of the SIU

On June 11, 2019, at 2:20 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to Complainant #1.

The OPP advised that on June 11, 2019, an unmarked police cruiser, driven by the Subject Officer (SO) and his passenger, Complainant #3, collided with a civilian vehicle driven by Complainant #1 on Golf Links Road in the area of the Thunder Bay Regional Health Sciences Centre (TBRHSC). The police officers were engaged in surveillance training.

Complainant #1 was taken to the TBRHSC and diagnosed with having a broken bone in his neck. Complainant #3 suffered a broken arm and leg.

At the time of the reporting Thunder Bay Police Service (TBPS) was processing the scene.
 

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainants

Complainant #1 75-year-old male interviewed, medical records obtained and reviewed
Complainant #2 62-year-old female interviewed, medical records obtained and reviewed
Complainant #3 37-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
WO #3 Interviewed
WO #4 Interviewed
Complainant #3 Interviewed

Additionally, the notes from 11 other officers were received and reviewed.


Subject Officers

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


Evidence

The Scene

The scene of this investigation was Golf Links Road and Donald Caddo Drive, the west entrance to TBRHSC. Golf Links Road travelled in a north and south direction with Donald Caddo Drive intersecting from the east at a “T” intersection. Golf Links Road was a paved multi-lane roadway with two lanes for each direction of travel. There was a left turn lane at the intersection with Donald Caddo Drive for southbound traffic to turn into the hospital. 

Donald Caddo was a two-lane roadway with a left turn lane for traffic to turn onto Golf Links Road and travel southbound from the exit.

Figure 1 – The intersection of Donald Caddo Drive and Golf Links Road where the collision occurred.

Figure 1 – The intersection of Donald Caddo Drive and Golf Links Road where the collision occurred.

Road surfaces for both roadways were in good repair and level. Pavement markings for Golf Links Road were visible but faded. Pavement markings for Donald Caddo Drive were in good repair. There was a posted stop sign for vehicles exiting the hospital onto Golf Links Road.

There were two vehicles within the confines of the secured area as follows:


Civilian Vehicle


A 2015 Cadillac SRX4, Brown. This vehicle was orientated in a south and westerly direction at the northeast corner of the intersection. There was extensive front end collision damage to this vehicle and the airbags had been deployed. A large fluid trail beginning at the centre of the intersection led to the final resting point of this vehicle.

Figure 2 - Complainant #1 and Complainant #2's 2015 Cadillac SRX.

Figure 2 - Complainant #1 and Complainant #2's 2015 Cadillac SRX.


Police Vehicle


A 2015 Nissan Maxima, Blue. This vehicle was orientated north in the west ditch area of Golf Links Road just north of the intersection. There was extensive front end collision damage to this vehicle and the airbags had been deployed. Tire-marks beginning at the centre of the intersection travelled in a north westerly direction towards the resting point of this vehicle. A large debris field was present along with scrapes and gouges near the centre of the intersection.

Figure 3 - The SO and Complainant #3's 2015 Nissan Maxima.

Figure 3 - The SO and Complainant #3's 2015 Nissan Maxima.

SIU Forensic Investigative Services (FIS) investigators attended TBPS Headquarters in Thunder Bay to witness and assist at the mechanical inspections of both involved vehicles.

FIS investigators returned to the scene and conducted further photography showing perspective and overall views during daylight hours. They also filmed a video showing traffic flow on Golf Links Road for approximately eight minutes. A perspective view of a vehicle turning left from Donald Caddo Drive onto Golf Links Road was also recorded.

Scene diagram

Forensic Evidence


Mechanical Inspection of Civilian Vehicle


On June 12, 2019, at 1:05 p.m., a police officer with the TBPS examined a 2015 Cadillac SRX4 Brown registered to Complainant #1. The officer did not locate any mechanical defects that would have caused or contributed to a loss of control of the Cadillac SUV.

Mechanical Inspection of the Police Vehicle


On June 12, 2019 at 4:02 p.m., a police officer with the TBPS examined a blue 2015 Nissan Maxima. The officer did not locate any mechanical issues or defects with the vehicle that would have caused or contributed to a loss of control of the Nissan Maxima.

Video/Audio/Photographic Evidence

A video recording of a portion of the incident was captured by a camera from a building on Golf Links Road, Thunder Bay. The video recording occurred between 10:00 a.m. and 11:20 a.m., on June 11, 2019 and showed the following:

  • At 10:59:50 a.m., the Nissan Maxima drove through the plaza parking lot towards Golf Links Rd;
  • Three seconds later, the Nissan exited the plaza to head north on Golf Links Road;
  • At 11:00:01 a.m., the Nissan was in the centre lane heading northbound on Golf Links Road;
  • Eight seconds behind the Nissan was WO #1 driving a grey Ford F150;
  • At 11:00:02 a.m., the Nissan was just south of the bus stop situated on the east sidewalk directly in front of the Thunder Bay Paediatrics Centre at 1260 Golf Links Road [1]; and
  • At 11:00:16 a.m., an unknown vehicle pulled over to the side of the road upon seeing the collision scene.

Communications Recordings

The communications recordings were reviewed, and it was determined they had no relevancy in this case since they did not address how or why the collision occurred.

Expert Evidence

SIU Reconstruction Report Summary

Event Data Recorder (EDR) – Nissan

The following is a summary of the pertinent information recorded by the Nissan EDR.

1) The Nissan EDR recorded 5 seconds of pre-impact data, in 0.5 second increments.
2) At 5 seconds before impact, the Nissan was initially traveling 118 km/h.
3) The vehicle sped up to a maximum speed of 122 km/h at 3.5 seconds before impact.
4) The Nissan slowed to 119 km/h at 2.5 seconds before impact, which was when the brakes were first activated.
5) Heavy braking occurred about 1.0 second before impact.
6) Hard steering to the left occurred about 1.0 second before impact.
7) At impact the Nissan was traveling about 76 km/h.
8) The driver and right front passenger seatbelts were buckled.


EDR – Cadillac 

The following is a summary of the pertinent information recorded by the Cadillac EDR.

1) The Cadillac EDR recorded 5 seconds of pre-impact data in 0.5 second increments.
2) At 5 seconds before impact, the Cadillac was stopped and idling.
3) At 3.5 seconds before impact, the Cadillac’s throttle was engaged.
4) At 3.0 seconds before impact, the Cadillac started to accelerate forward.
5) At 0.5 seconds before impact, the Cadillac reached a maximum speed of 25 km/h.
6) The driver and right front passenger seatbelts were buckled.


Events Leading up to Impact

The SIU reconstructionist was able to determine the position and speed of the vehicles as they approached one another in the 3 seconds before impact, as shown in the diagrams in Figure 4.

Figure 4. Sequence of diagrams showing the movement of the vehicles in the 3 seconds before impact.

Figure 4. Sequence of diagrams showing the movement of the vehicles in the 3 seconds before impact.

From this sequence of events, it is clear the Nissan was located about 90 m to the south of the Cadillac when the Cadillac driver started to accelerate into a left turn. Complainant #1 was stopped, presumably waiting for a gap in traffic, prior to him accelerating forward. About 1 second after the Cadillac started to enter the intersection, the driver of the Nissan started to brake. About 1 second after that (which is equivalent to 1 second before impact) the Nissan driver started to steer hard to the left. At this point in time the Nissan’s brakes were fully engaged. Approximately 1 second later the vehicles collided. The speed of the Nissan was recorded as being 76 km/h at impact. The last pre-impact data point on the Cadillac’s EDR was 0.5 seconds before impact and it recorded the speed as 25 km/h. If one extrapolates the acceleration profile of the Cadillac for an additional 0.5 seconds, its speed at impact would have been about 30 km/h. 

In terms of Complainant #1’s actions, the SIU Reconstructionist considered the hypothetical situation with the police vehicle initially traveling the speed limit (60 km/h) instead of approximately 120 km/h. Based on calculations, the police vehicle was about 100 m to the south when Complainant #1 started to accelerate into his left turn. Using the same acceleration profile for the Cadillac as recorded on its EDR, it would take under 4 seconds for the Cadillac to fully clear the northbound lanes. In the case of the police vehicle traveling 120 km/h, it took about 3 seconds to reach the point of impact. If the police vehicle was traveling 60 km/h, it would have taken about 6 seconds to reach the point of impact. Since the SIU Reconstructionist would expect the Cadillac to have cleared the northbound lanes in under 4 seconds, the Cadillac vehicle would have cleared the path of the Nissan with over 2 seconds to spare. In other words, if Complainant #1 made his decision to start his left turn under the assumption northbound traffic was traveling about the speed limit, he could have completed his turn well before northbound traffic arrived at the intersection. 


Conclusions

SIU Reconstructionist’s analysis of this collision yields the following conclusions:

1) The police vehicle (Nissan) was initially traveling northbound on Golf Links Road.
2) The Cadillac was initially stopped at the exit from TBRHSC intending to turn left (south) onto Golf Links Road.
3) The physical evidence was consistent with the recorded data downloaded from the Nissan EDR and the Cadillac EDR.
4) According to the Nissan EDR, it was initially traveling 118 km/h, accelerated up to 122 km/h and then braked to 76 km/h at impact.
5) The Nissan EDR also recorded a hard-steering input to the left about 1 second before impact.
6) According to the Cadillac EDR, it was initially stopped. About 3 seconds before impact, the driver started to accelerate into the intersection. The EDR recorded a speed of 25 km/h for the Cadillac about 0.5 seconds before impact. Extrapolating the recorded data for the last 0.5 seconds results in the Cadillac traveling about 30 km/h at impact.
7) The Nissan was located about 100 m away when the Cadillac started to accelerate into the intersection.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP and TBPS:
  • Computer-Assisted Dispatch (CAD) - Event Details;
  • Communication Recordings;
  • Crime Scene Continuity Register;
  • Letter re USB of files-Jul 2, 2019;
  • Notes of 11 undesignated officers;
  • TBPS CAD-Event Information;
  • TBPS Crash Data Retrieval (CDR) and Airbag Control Module (ACM) Nissan;
  • TBPS CDR and ACM Cadillac;
  • TBPS Mechanical Exam-Cadillac;
  • TBPS Mechanical Exam-Nissan;
  • TBPS Motor Vehicle Collision Report;
  • TBPS Reconstruction field notes;
  • TBPS SOKKIA Drawings;
  • TBPS Supplementary Report (x6); and
  • TBPS Vericom (Drag Factors).

Materials obtained from Other Sources

The SIU also obtained the following records from other sources:

  • Medical records of complainants; and
  • Video recording captured by surveillance camera.

Incident Narrative

The material events in question are clear on the weight of the evidence collected by the SIU, which included statements from Complainant #1, Complainant #2, Complainant #3 and several eyewitnesses to the crash, both police and civilian. The investigation further benefitted from a review and analyses of video recordings from cameras that captured vehicular traffic, including the Nissan, just prior to the collision, and information derived from data retrieved from the involved vehicles related to their speeds and location in the five seconds prior to impact. At about 11:00 a.m. on June 11, 2019, Complainant #1 was operating a Cadillac SUV west on Donald Caddo Drive. With him in the front passenger seat was Complainant #2. Complainant #1 brought his vehicle to a stop at a stop sign at the roadway’s intersection with Golf Links Road intending to make a left turn. Complainant #1 then accelerated forward. His vehicle had made it as far as the middle of Golf Links Road when its front driver’s side was struck by the front passenger side of a Nissan Maxima traveling north.

The collision propelled Complainant #1’s SUV toward the northeast corner of the Golf Links Road and Donald Caddo Drive intersection, where it came to a rest. The Nissan Maxima continued north and west, ending up in a ditch just north of the intersection. The injured parties – Complainant #1, Complainant #2 and Complainant #3 – were taken to the TBRHSC nearby – where their injuries were diagnosed. Complainant #1 suffered a fractured vertebra and Complainant #2 sustained an ankle fracture. Complainant #3 suffered a fracture to his left shinbone and left middle finger.

The driver of the Nissan Maxima, the SO, was involved in a mobile surveillance training exercise at the time of the incident. On this particular day, he and other police officers participating in the training were tracking a pickup truck with officers in it playing the role of suspects in a break and enter of homes. The exercise took the SO and others north on Golf Links Road from Oliver Road. Three-and-a-half seconds prior to the point of impact with Complainant #1’s SUV, the SO was traveling at 122 km/h. Observing Complainant #1’s SUV turning in front of him, the SO braked and steered to the left in a futile effort to avoid the collision. At the time of impact, the SO’s Nissan Maxima had slowed to 76 km/h.

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

Complainant #1 and Complainant #2 were involved in a motor vehicle collision with a Nissan Maxima on June 11, 2019 in Thunder Bay. The driver of the Nissan was a police officer – the SO. Complainant #1 and Complainant #2 were each seriously injured in the collision, as was the passenger in the Nissan, Complainant #3. On my assessment of the evidence, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the accident.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. The offence is predicated, in part, on conduct that amounts to a marked departure from a reasonable level of care; simple negligence will not suffice: R. v. Beatty, [2008] 1 SCR 49. While the SO’s speed is certainly subject to scrutiny and perhaps even criticism, it fell short, in my view, of rendering the officer’s conduct a marked deviation from a reasonable level of care in the circumstances. At twice the 60 km/h speed limit on Golf Links Road, I accept that the SO’s speed represented a danger on the roadway to other traffic in the area. It was also a paramount factor in the accident that occurred. Had the officer been driving at or near the speed limit, for example, the forensic evidence developed by the SIU suggests Complainant #1 would likely have cleared the intersection and completed his turn before the arrival of the police vehicle.

On the other hand, the impact of the SO’s speed in the liability analysis is mitigated by several considerations. For starters, under section 128(13)(b), police vehicles used in the lawful performance of a police officer’s duties are exempt from the governing speed limits. While the SO was not responding to an emergency call for service, he was operating a police vehicle and engaged in a bona fide training activity at the time of the crash; he was clearly in the exercise of official duties and therefore captured by the protection of the provision. This is not to suggest that the SO was free to speed as he wished without regard for public safety. It does mean, however, that some allowance must be made for the officer’s speed as he was participating in a training exercise that reasonably contemplated occasional spurts of acceleration beyond the speed limit in order to keep pace with the subject vehicle.

The SO’s speed must also be understood in the context of what in other respects appears to have been safe and prudent driving on the part of the officer. While the case law establishes that excessive speed alone may in the appropriate circumstances constitute dangerous driving (R. v. Richards (2003), 174 CCC (3d) 154 (Ont. C.A.)), the courts have also made clear their reluctance to base criminal liability for the offence on singular or isolated lapses in judgement: Beatty, supra. The evidence indicates that the SO reached a top speed on Golf Links Road of 122 km/h for a short period of time before he started to decelerate in advance of Complainant #1’s left-turning SUV. There is no suggestion in the evidence of any other indicia of dangerous driving or protracted speeding in the manner with which the SO was operating the police vehicle.

Another important part of the context were the surrounding conditions at the time of the incident. The roadway was dry and in good repair, the weather was clear, visibility was good, and vehicular traffic was light to moderate in what was a semi-rural stretch of roadway lined with a number of businesses and a hospital on one side of the road. There was a sign warning northbound motorists of a construction zone up ahead and the need to merge into a single lane. However, as the sign was only 200 metres or so before the collision site and the construction zone was well north of the incident scene, I am not persuaded that this factor tips the liability analysis one way or the other. On this record, I am satisfied that the risks inherent in the speeds at which the SO travelled north along Golf Links Road were not unduly exacerbated by the environment around him.

In the final analysis, when one weighs the totality of the evidence on both sides of the ledger, I am unable to reasonably conclude on balance that the SO’s conduct, and his speed in particular over a stretch of road under 400 metres in length, was so wanting in the circumstances that it transgressed the limits of care prescribed by the criminal law. Consequently, there are no grounds for proceeding with criminal charges against the officer

notwithstanding his role in the collision that resulted in injuries to his partner on the day, Complainant #3, and to Complainant #1 and Complainant #2. The file is closed.


Date: February 10, 2020

Original signed by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) This bus stop is just south of the light standard shown in Figure 4, which is a sequence of diagrams produced by the SIU Reconstructionist. [Back to text]