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SIU Director’s Report - Case # 19-PVI-167

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 46-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 19, 2019, at 11:55 p.m., the Ontario Provincial Police (OPP) reported the following:

On July 19, 2019, at 8:50 p.m., an Essex County OPP police officer saw a motorcycle make an abrupt lane change and then decided to follow it. While the police officer followed the motorcycle, he activated his emergency lights and siren and notified the communications centre. When the motorcycle disobeyed a stop sign, the police officer disengaged and stopped.

Shortly after, the police officer was notified that the motorcycle had struck a parked car on Amy Croft Drive at Marina Grove Crescent. The motorcycle was the same one that had failed to stop for the police officer.

The driver of the motorcycle, the Complainant, was taken to Windsor Regional Hospital (WRH), where he was diagnosed with a broken pelvis.

The Team

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

Complainant:

46-year-old male not interviewed


On July 20, 2019, SIU investigators attended WRH to speak with the Complainant. Upon arrival, investigators found the Complainant had been sedated. On July 22, 2019, SIU investigators attended WRH and found the Complainant awake. The investigators were advised by the Complainant’s family that he would not be providing a statement. On July 30, 2019, SIU investigators attended WRH but learned that the Complainant had checked himself out on July 23, 2019. Investigators text messaged the Complainant’s girlfriend but could not arrange an interview with the Complainant.
On August 7, 2019, a letter was couriered to the Complainant’s residence asking if he would provide a statement to the SIU and asking him to advise of his intentions by August 16, 2019. The Complainant did not contact the SIU

Civilian Witnesses

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

Witness Officers

WO #1 Notes reviewed, interview deemed not necessary
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary

The notes of the witness officers were reviewed. The notes revealed that these officers had attended the scene at the intersection of Amy Croft Drive and Marina Grove Crescent, after the motorcycle that the Complainant was driving had collided with a parked vehicle.


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The area in which the SO first saw the motorcycle that the Complainant was driving was County Road 22 and Manning Road. County Road 22 was a four-lane roadway. Two lanes travelled west, and two lanes travelled east. Manning Road was also a four-lane roadway with two lanes that travelled north and two lanes that travelled south. The area was occupied by many commercial buildings and restaurants.

There was a shopping plaza located on the south side of Amy Croft Drive which had four driveways into the plaza parking lot.

As Amy Croft Drive continued east, it approached a road called Marina Grove Crescent. Just east of Amy Croft Drive and Marina Grove Crescent, on the south side, was an open field or park area. Along the south sidewalk and adjacent grassy areas of Amy Croft Drive were yard-waste paper bags that were open and scattered. Across the street from 214 Amy Croft Drive was a parked grey-coloured Ford Focus. This vehicle was parked facing east along the south curb of Amy Croft Drive. There was collision damage to the rear and passenger side of the vehicle and a pile of bloody clothing by the damaged area.

There were gouge marks in the grassy boulevard along the south side of the street, one long gouge west of the vehicle and numerous smaller gouges east of the vehicle.

A green-coloured Harley-Davidson Heritage Softail motorcycle was lying on its side just in front of the vehicle, with its gas tank torn off, and a motorcycle helmet was lying on the curb nearby. The helmet was scuffed in places, but relatively undamaged and intact. There was damage to the handlebars and the rear fender area of the motorcycle.

There was a driveway on the south side of the street just west of the Ford Focus and a tire scuff mark was noted on the curb just east of this driveway.

Figure 1 – The scene on Amy Croft Drive where the Ford Focus was located with collision damage to the rear, passenger side. The Complainant’s motorcycle was located in front of the vehicle.

Figure 1 – The scene on Amy Croft Drive where the Ford Focus was located with collision damage to the rear, passenger side. The Complainant’s motorcycle was located in front of the vehicle. 

Communications Recordings


911 / Communication Recordings Summary


The following is a summary of the OPP communications 911 recordings on July 19, 2019:

At 8:55 p.m., the SO notified the OPP dispatcher that a motorcycle [now known to have been driven by the Complainant] failed to stop. The motorcycle was a green-coloured Harley Davidson with a licence plate which returned as a black Harley Davidson registered to someone in Windsor; the validation tag had expired. About 52 seconds later, a male’s voice [now known to be WO #1] interrupted the call to ask the SO if he had terminated. The SO said he did and was parked. WO #1 asked for the SO’s mileage, which the SO advised was 12040 kms. Soon after, the dispatcher interrupted the call and advised she believed that the same motorcycle was involved in a single vehicle collision near 214 Amy Croft Drive. The SO advised that he was heading to the scene.

At 8:57:27 p.m., a man [now known to be CW #3] called 911 to advise that he was driving near a four-way stop sign on Amy Croft Drive when a motorcycle [now known to have been driven by the Complainant] flew past him and did not stop at the four way stop sign. As CW #3 proceeded on Amy Croft Drive, near St. Andrew’s Church, he came across the motorcycle, which had crashed. CW #3 explained the motorcycle was “toast” and that the Complainant was wedged under a car near 214 Amy Croft Drive. The Complainant was conscious and in pain and had his helmet on. The call was transferred to EMS. As CW #3 was on the phone, approximately two minutes later, he stated that a police officer [now known to be the SO] had arrived.

Forensic Evidence


Global Positioning System (GPS) Summary


On July 19, 2019, the SO was operating a fully marked Chevrolet Tahoe cruiser. Below is a summary of the GPS data that were collected from that cruiser:

On July 19, 2019, starting at about 8:52 p.m., the SO drove onto County Road 22 [1] from Banwell Road at about 60 to 70 km/h. The SO drove east on County Road 22 for about a minute, at which point he accelerated to about 100 km/h.

At about 8:53 p.m., the SO approached the intersection of County Road 22 and Lesperance Road; at that time his speed slowed to about 95 km/h. Several seconds later, the SO’s speed increased to about 122 km/h when he approached the intersection of County Road 22 and Sylvester Drive.

At about 8:54 p.m., the SO approached the intersection of County Road 22 and Manning Road, where his speed slowed to about 10 km/h. At 8:54:33 p.m., the SO turned onto Manning Road from County Road 22. At 8:54:45 p.m., the SO turned right or east from Manning Road onto Amy Croft Drive. He stopped for about 10 seconds and then accelerated east on Amy Croft Drive. [2] The SO travelled east on Amy Croft Drive at a speed of 118 km/h for about 10 seconds between Manning Road and Commercial Boulevard.

At 8:55 p.m., the SO was travelling slowly, at about 46 km/h, east on Amy Croft Drive, just east of Commercial Boulevard. Between 8:55:36 p.m. and 8:57:54 p.m., the SO was stopped on Amy Croft Drive. [3]

At 8:58 p.m., the SO resumed travelling east on Amy Croft Drive at low speeds. At 8:59:11 p.m., the SO was in the area of Amy Croft Drive and Marina Grove Crescent. 
 

Analysis


  • The SO arrived at the collision scene about one minute and 44 seconds after the 911 call was received regarding the collision;
  • If the Complainant had exceeded the speed limit and disobeyed traffic controls on Amy Croft Drive from Commercial Boulevard to the collision scene, the Complainant could have crashed less than 30 seconds after the SO notified the dispatcher the Complainant had failed to stop for him;
  • Unless the exact time of the collision was known, it would not be possible to determine the exact location of the SO when the collision occurred using the GPS data;
  • The SO arrived at the collision scene about three minutes and 46 seconds after he notified the dispatcher that the Complainant had failed to stop for him; and
  • It could not be determined from this analysis if, from the location at which the SO was stopped when the collision occurred, the SO could or would have been able to witness the Complainant crash.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Email from OPP re cruiser being removed from scene;
  • GPS Data
  • Intake Reports;
  • General Occurrence Report;
  • Motor Vehicle Collision Report;
  • Supplementary Report;
  • Notes of witness officers and the SO;
  • Will Say of Technical Analyst (x2);
  • Witness Statements of CW #1, CW #2, CW #3 and four other civilians;
  • Communication recordings; and
  • Written statement of civilian witness.

Incident Narrative

The following events emerge from the evidence collected by the SIU, which included statements from the SO and three civilian eyewitnesses, GPS data associated with the SO’s cruiser, and the police communication recordings.

After querying the plate of the motorcycle being operated by the Complainant, the SO observed the Complainant to turn left onto Manning Road and then right onto Amy Croft Drive, each time at, or below, the speed limit. The SO followed at a distance of approximately 250 to 300 metres. Once the Complainant drove past the second entrance of the plaza on Amy Croft Drive, the SO activated his emergency lighting system in order to signal to the Complainant that he wished him to stop. The Complainant, in turn, began to accelerate and pull away from the SO. The SO also accelerated and closed the gap between the two vehicles to approximately 50 to 60 metres, at which point he activated his siren. The SO had increased his speed to approximately 100 km/h and maintained that speed for a matter of seconds, but when he saw the Complainant drive through a stop sign without stopping, and around a vehicle attempting to make a left turn onto Amy Croft Drive from Commercial Boulevard, the SO turned off his siren and pulled over to the curb to terminate the pursuit. He was of the view that it was unsafe to continue to pursue the motorcycle as it was entering a residential area.

The SO radioed the dispatcher at 8:55 p.m. and advised that a motorcycle had failed to stop for him. When the communications sergeant queried whether the SO was in pursuit, the SO confirmed that he was not and that he was parked. This evidence is confirmed by the GPS data from the police vehicle operated by the SO.

CW #3 observed the Complainant drive through a stop sign at a four-way stop intersection, without stopping and at a high rate of speed, following which he was involved in a collision with a parked motor vehicle. He called 911 at 8:57 hours and the call immediately went out over the radio causing the SO to respond. Approximately two minutes later, or almost four minutes after the SO reported that he had pulled over and stopped, CW #3 reported that the first police officer was now arriving at the scene. That officer was the SO.

According to the GPS data from the police vehicle operated by the SO, while attempting to stop the Complainant, his speed increased to 122 km/h while he was travelling on County Road 22, and to 118 km/h on Amy Croft Drive, which speed he maintained for 10 seconds, before slowing and finally coming to a full stop.

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 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.


Analysis and Director's Decision

On July 19, 2019, the Complainant was operating a motorcycle in the area of County Road 22 and Manning Road, in Essex County, when he was observed by an OPP Officer, the SO. The SO queried the Complainant’s licence plate, on his in-car police computer, and discovered that it both had an expired permit and was registered to a motorcycle that did not match the description of the motorcycle to which it was attached at the time. The SO decided to stop the motorcyclist to investigate. Shortly thereafter, the Complainant was involved in a collision. As a result of the Complainant’s refusal to either provide a statement or to consent to the release of his medical records, the SIU is unaware of the exact nature of his injuries. However, based on the length of time of his subsequent hospital stay and information provided by his girlfriend and mother, it appears the Complainant was seriously injured and suffered fractures of his back and pelvis.

The offence that arises for consideration in this case is that of dangerous driving contrary to section 320.13(1) of the Criminal Code. The offence is predicated on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. I am satisfied on balance that the manner in which the officer operated his police vehicle fell within the limits of care prescribed by the criminal law. At a speed upwards of 120 km/h, the SO was traveling well over the speed limit. That said, it bears noting that the officer quickly pulled to the shoulder and terminated the pursuit when it became clear to him that the Complainant was not going to stop for the officer. The officer’s velocity is also mitigated to an extent by section 128(13)(b) of the Highway Traffic Act. While the provision does not provide an officer carte blanche to exceed the speed limit without regard to public safety considerations, it does allow an officer to speed where the officer is in the lawful performance of his or her duty. The SO was clearly in the exercise of his duty at the time. Furthermore, it should be noted that there is no indication that the SO ever actually endangered, by the manner of his driving, any third-party motorists on either County Road 22 or on Amy Croft Drive. In fact, as soon as the SO observed the Complainant to fail to stop at a stop sign, he determined that it would be unsafe for him to engage in a vehicular pursuit and he slowed and then pulled over to the side of the road. The SO had only maintained his top speed of 118 km/h on Amy Croft Drive for 10 seconds before pulling over.

Unfortunately, the fact that the SO abandoned his efforts to stop and investigate the Complainant for a Highway Traffic Act infraction failed to alter the Complainant’s dangerous driving. He continued to drive at extremely high speeds and without regard for the posted stop signs, until he eventually crashed into a parked motor vehicle causing his injuries. Ultimately, it appears clear that the Complainant crashed his motor vehicle as a result of his own reckless and dangerous driving, and therefore was the author of his own misfortune.

In the final analysis, in the context of the SO’s short-lived engagement in this matter, notable for his brief pursuit of the motorcycle at high speeds, which was quickly terminated when the SO determined that it was unsafe to continue, I have no reasonable grounds to believe that the officer either caused or contributed to the collision in question, or otherwise drove dangerously in violation of the Criminal Code.


Date: March 30, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The posted speed limit on County Road 22 was 80 km/h. [Back to text]
  • 2) The posted speed limit in the area of Amy Croft Drive and Commercial Boulevard was 40 km/h. [Back to text]
  • 3) According to the communications recordings, the SO notified the communications centre of what just occurred. CW #3 called 911 to report the collision at about 8:57 p.m. [Back to text]