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SIU Director’s Report - Case # 19-OVI-205

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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 injuries that a 39-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On August 24, 2019, at 5:10 p.m., the Niagara Regional Police Service (NRPS) reported a vehicle injury to the Complainant. The NRPS advised that on August 24, 2019, at 12:40 p.m., the Subject Officer (SO) was conducting speed enforcement on Silver Street [also known as Regional Road 65] near Abingdon Road, in West Lincoln, when a motorcycle drove past at high speed. The SO notified the Witness Officer (WO), who was further down the road. When the motorcycle driver, the Complainant, saw the WO, he made a U-turn and drove back towards the SO, who placed his police cruiser across the road. The motorcycle struck the driver’s side front corner of the SO’s police cruiser and entered a ditch.

The Complainant was taken to West Lincoln Memorial Hospital (WLMH) and diagnosed with a separated shoulder and fractured finger. 

The Team

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

Four investigators, one forensic investigator, and one collision reconstructionist were assigned to this investigation. The scene was examined and photographed.

Investigators interviewed the Complainant and he provided an Authorization for Release of Medical Information.

A canvass was conducted for witnesses and closed-circuit television (CCTV) footage. No witnesses were identified, but CCTV footage was secured.

A video of the route relevant to this incident was recorded.

Following initial enquiries, one subject officer and one witness officer were designated.

Complainant:

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


Witness Officers

WO Interviewed


Subject Officers

SO Interviewed and submitted notes.


Evidence

The Scene

On August 24, 2019, at approximately 12:40 p.m., a collision between a motorcycle and a police vehicle occurred on Silver Street. The motorcycle was a late model Honda being driven by the Complainant, while the police vehicle was a 2019 Dodge Durango SUV being driven by the SO. Initially, the motorcycle was traveling westbound on Silver Street at a high speed. The motorcycle then completed a U-turn to head eastbound. The SO was westbound at the time and moved his vehicle to the south to block the eastbound lane. The motorcycle struck the front of the police vehicle.

The collision occurred at a residential driveway on Silver Street, which was a two-lane rural highway that runs nominally east/west. Opposing lanes are divided by a dashed yellow line and a white fog line runs along both outside edges of the lanes. The road was bordered by a small gravel shoulder followed by a grass ditch. The posted speed limit on Silver Street was 80 km/h.

The police vehicle was in the eastbound lane facing southwest while the motorcycle was lying on the grass lawn south of the ditch and east of the driveway. A single curved tire mark was noted along the south side of the eastbound lane that curved towards the driveway entrance. Scuff marks were also noted on the gravel and grass at the north edge of the driveway and the gravel/grass area to the east of the driveway entrance. There were also gouges in the grass lawn to the northwest of the motorcycle’s final rest position. Personal belongings and a helmet were found on the grass lawn to the east of the motorcycle.

Scene Diagram

Scene diagram

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following sources:
  • CCTV Footage from a residence on Silver Street; and
  • CCTV Footage from a business on Silver Street.

CCTV Footage from a Residence on Silver Street


This camera was located on the residential property adjacent to the west of the incident driveway. It was mounted in between the garage doors and facing north. The original video was analyzed. It was a Nest camera with a frame rate of 15 frames per second. The video did not have a time stamp.

The following observations were made:
  • A police cruiser enters the right side of the frame heading westbound at about 54 km/h. There was a white sedan following the police vehicle and a motorcycle behind the white car. The average speed of the motorcycle in this portion of the video was about 50 km/h. Since all three vehicles were traveling in a row, the lower speed of the motorcycle suggests they were slowing down at the time;
  • Approximately 26 seconds later, the motorcycle enters the left side of the frame heading eastbound at a speed of about 74 km/h; and
  • About 20 seconds later, the police cruiser enters the left side of the frame heading eastbound at a speed of approximately 70 km/h.


CCTV Footage from a Business on Silver Street


The business is located on Silver Street approximately 2.6 km east of the area of impact. The security camera was positioned on the upper east corner of the main building on the north side of Silver Street facing southwest. The video provided was a video recording of the camera output rather than an original copy of the security video. The recording was done at 30 frames per second and captured the time frame from 11:44:46 a.m. to 11:47:01 a.m.

The following key observations were made:
  • At 11:45:32 a.m., an eastbound motorcycle appears in the eastbound lane; it was travelling with traffic at an estimated speed of about 80 km/h;
  • At 11:46:15 a.m., a westbound police cruiser appears in the camera frame travelling westbound at approximately 93 km/h; and
  • At 11:46:56 a.m., a westbound motorcycle appears in the camera frame travelling westbound at about 160 km/h.

Communications Recordings

On August 24, 2019, at 12:38:14 p.m., the SO called the WO over the radio and told him there was a motorcycle coming up behind him travelling at 167 km/h. He asked the WO to try and stop the motorcycle.

At 12:39:42 p.m., the SO called his dispatch and requested an ambulance at an address on Silver Street as a motorcycle had come towards him and hit the front of his police cruiser. He reported that the Complainant was alert, conscious, breathing and smoking. The SO told the dispatcher that there had not been a pursuit.


Expert Evidence

Reconstruction Report


Involved Vehicle - Dodge Durango (police vehicle)

The involved police vehicle was a marked 2019 Dodge Durango SUV marked with ‘Supervisor’ for the NRPS. The Dodge sustained moderate front end damage to the front left bumper area, the front edge of the hood, and the left headlight. The damage included horizontal scuff marks to the front bumper surface.

Figure 1: Damage to the police vehicle caused by the collision.

Figure 1: Damage to the police vehicle caused by the collision.


The air bags did not deploy in this incident and no data was downloaded from the vehicle’s Event Data Recorder. The front wheels were turned sharply to the left.


Involved Vehicle - Honda Motorcycle

The involved motorcycle was an older model Honda. The VIN identification labels had been scraped off making it difficult to identify the year or model of the motorcycle. It appeared to be a mid-80s Honda CX motorcycle.

The motorcycle sustained moderate scraping damage to its left side and its front wheel was bent, with embedded grass and dirt in the wheel rim. The forward section of the handlebars and headlight area was also damaged and had embedded grass/dirt. The motorcycle was found lying on its right side.

Figure 2: The damaged motorcycle after the collision.

Figure 2: The damaged motorcycle after the collision.

Analysis


Point of Impact

The damage profiles observed on both vehicles was used to determine their orientation at impact. The left side of the motorcycle was damaged, as was the left front area of the Dodge. The tire mark at the scene and the fact that there was some damage to the leading edge of the hood indicates that the motorcycle was upright at impact.

A single curved tire mark leading up to the point of impact was left by the braking motorcycle. This mark aligned with a set of scrape marks on the driveway marking the post-impact movement of the motorcycle. 

Speed Analysis


Police Dodge Durango

The Dodge was either stopped or nearly stopped when the collision occurred. The Dodge moved up to approximately 0.5 metres from impact to final rest. Assuming that the Dodge was slowing between hard braking (0.4g) to full braking (0.8g), the Dodge was either stopped at impact or traveling up to about 10 km/h at impact. If the Dodge was stopped at impact, it is unknown how long the vehicle was stopped before being struck by the motorcycle.


Motorcycle

The motorcycle traveled about 12 metres from impact to final rest; it left marks on the road and grass just after impact. It then vaulted over the grass ditch before impacting the far side, coming to rest about 4 metres beyond where it impacted the far side of the ditch. The speed loss of the motorcycle, during the impact with the police vehicle, was difficult to quantify. It was a side-swipe type impact, meaning the vehicles slid past one another without reaching a common velocity. A crash test with a similar engagement as the incident collision found that the motorcycle in the crash test experienced a speed change of 46 km/h. If the incident motorcycle sustained a similar speed change when it collided with the Dodge, its pre-impact speed was between 73 to 80 km/h.

Finally, prior to the impact with the Dodge, the motorcycle left a curved tire mark on the road that measured 12 metres in length. Assuming full braking over the 12 metres, the motorcycle’s pre-brake speed was about 83 to 90 km/h. 

Reconstruction of Events Leading to the Crash


The following is an assessment of the sequence of events leading up to impact between the motorcycle and police vehicle, based on an analysis of the physical evidence and a review of the video footage:

In the business’s video, it is clear that the motorcycle was traveling at high speed heading westbound. At some point, it reached the westbound police vehicle ahead of it. At a point west of the residence on Silver Street with the video camera, the motorcycle completed a U-turn and proceeded to head eastbound. It was traveling about 74 km/h as it passed the residence and was accelerating up to about 83 to 90 km/h by the time it reached the residence’s driveway. While the motorcycle was completing these manoeuvres, the police SUV involved in the collision was traveling westbound heading towards the area of impact.

Assuming the westbound police SUV was initially traveling at 80 km/h as it approached the residence’s driveway, and that it braked aggressively while steering up until it came to rest, the police vehicle started to brake about 80 metres east of the driveway. The driver likely started to steer to the left about 20 metres east of the driveway. Depending on the Dodge’s speed at impact, the motorcycle would have been positioned about 100 metres west of the driveway when the police vehicle started to steer into the oncoming lane. If the Dodge came to a stop for a significant amount of time prior to impact, the motorcycle would have been farther away when the police officer decided to turn left into the eastbound lane.

Conclusions


Analysis of this collision yields the following conclusions:
  • The motorcycle was initially travelling at about 160 km/h westbound on Silver Street east of the driveway;
  • The motorcycle rider slowed as he reached a westbound police vehicle. The motorcycle rider completed a U-turn to the west of the driveway on Silver Street and then headed eastbound;
  • The police vehicle (Dodge SUV) was traveling westbound on Silver Street, east of the driveway, when the motorcycle was completing its U-turn;
  • The police Dodge SUV turned left into the oncoming (eastbound) lane;
  • The left front area of the motorcycle collided with the left front of the police Dodge SUV;
  • It is unknown whether the police Dodge SUV was stopped or still moving slowly when the impact occurred;
  • The motorcycle was traveling about 74 km/h when it was in front of the residence on Silver Street; and
  • The motorcycle was traveling about 83 to 90 km/h prior to the rider braking and colliding with the police Dodge SUV.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NRPS:
  • the NRPS policy dealing with Suspect Apprehension Pursuits;
  • the NRPS policy dealing with Traffic Enforcement;
  • the WO’s notes;
  • the SO’s notes;
  • NRPS Computer-Assisted Dispatch report; and
  • NRPS Radio Communications.

Materials obtained from Other Sources

Investigators also obtained and reviewed the following materials:
  • the Medical Report about the Complainant from WLMH;
  • CCTV footage from a residence on Silver Street; and
  • CCTV footage from a business on Silver Street.

Incident Narrative

On August 24, 2019, at approximately 12:01 p.m., the SO of the NRPS had his fully marked police SUV parked behind a sign on Silver Street, in West Lincoln, conducting speed enforcement with the assistance of a speed detection device. The Complainant was operating a motorcycle westbound on Silver Street when he came to the SO’s attention due to the high rate of speed at which he was travelling. The posted speed limit in the area was 80 km/h, the road was dry, and the weather conditions were clear and sunny. The SO stepped out and aimed his speed detection device at the motorcycle as it passed him, continuing westbound. The Complainant’s motorcycle registered on the SO’s device at a speed of 167 km/h. Shortly thereafter, the Complainant’s motorcycle struck the SO’s police SUV and the Complainant was ejected from the motorcycle.

After the Complainant was arrested, he was transported to hospital and diagnosed with having sustained a separated right shoulder, and a fracture to the third finger and thumb of his left hand.

The SIU’s investigation into the circumstances surrounding the Complainant’s injuries consisted of interviews with the Complainant; the SO; and, the WO. There were no independent witnesses to the event. In addition to the interview statements obtained, SIU investigators reviewed the CCTV footage from both a residence on Silver Street and a business on Silver Street, both of which captured a portion of the driving of the Complainant, as well as the police radio communications recordings, and the Complainant’s medical records related to this incident.

Once the SO had registered the speed at which the Complainant was traveling, and the Complainant had passed the SO’s location, the SO radioed the WO, who was operating a fully marked police vehicle ahead of the complainant on Silver Street, and advised him that the motorcycle would be approaching him from behind at a high rate of speed and asked him to stop the motorcycle. The SO then entered his police vehicle and traveled westbound on Silver Street to assist in the event that the WO stopped the Complainant. As the SO was not engaging the motorcycle in a pursuit, he did not activate the emergency lighting or siren on his police vehicle.

The WO, who was directly ahead of a civilian motor vehicle, which was ahead of the Complainant on his motorcycle, slowed his vehicle to approximately 20 km/h, forcing the vehicles behind him to slow as well. The WO then put his left arm out of the driver’s side window and motioned for the Complainant to pull over. Believing that the Complainant was stopping as directed, the WO stopped his police cruiser in the westbound lane, opened his driver’s door, and exited. The WO then pointed at the Complainant, who had come to a complete stop within about 20 metres of the WO, following which the WO yelled and motioned to the Complainant to pull over to the side of the road. Rather than pulling over, however, the Complainant made a U-turn, using the gravel shoulder of the roadway, and accelerated eastbound on Silver Street, putting him into the path of the SO’s police SUV. The WO remained at his location, still standing in the centre of the road. There was no other traffic on the road at that time.

The SO, who had stopped his police SUV approximately 200 metres to the east of where the Complainant had stopped his motorcycle, prior to making a U-turn, activated his emergency lighting system and turned his police vehicle across the eastbound lane of Silver Street, on an angle, in hopes of convincing the Complainant to pull over and stop. The SO, with his foot on the brake, prepared to put his vehicle into park and get out to deal with the Complainant. The Complainant, when he observed the SO stopped across the lane ahead, and being fully aware that the police SUV cruiser across the roadway was a police vehicle and that the police officers wanted him to stop, initially braked and slowed to approximately 40 km/h, but then decided that he was going to drive around the front of the police SUV, as he opined that there was sufficient room between the front of the cruiser and the side of the road to pass. The Complainant then accelerated and attempted to go around the front of the police SUV.

The motorcycle, after completing its U-turn and travelling eastbound back toward the SO’s police vehicle, was travelling at approximately 74 km/h as it passed an address on Silver Street. At around the same time, the SO had positioned his police SUV across the eastbound lane of traffic on an angle facing the driveway at an address on Silver Street east of the Complainant. By the time the Complainant reached the SO’s vehicle on Silver Street, his motorcycle had attained speeds of 83 to 90 km/h, when he began to brake, leaving a single curved tire mark along the south side of the eastbound lane, curving toward the driveway entrance. Scuff marks were also noted on the gravel/grass area to the east of the driveway entrance and there were gouges in the grass lawn to the northwest of the motorcycle’s final resting position.

Some evidence suggests that the police SUV nudged forward as the Complainant passed the front of the police vehicle, striking the Complainant’s motorcycle and causing the collision. However, the SO maintains that his vehicle was stationary when the Complainant attempted to pass, and that it was the impact that caused the SO’s foot to slip off the brake and the vehicle to move forward about 0.3 metres, before the SO was again able to stop the cruiser and put it into park. It was impossible to determine based on the forensic evidence if the SO’s police vehicle was fully stopped or only nearly stopped when the Complainant struck the driver’s side front corner of the police vehicle, after which the motorcycle veered to the right and entered the ditch on the east side of the driveway of an address on Silver Street, with the Complainant flying over the front of the motorcycle and landing on the grass on the south side of the ditch. It is of note, however, that the SO left the entire westbound lane of traffic clear, as well as (at least initially) leaving 0.3 metres north of the white line, marking the south edge of the roadway, and the shoulder, also clear for the motorcycle to pass, should the Complainant have decided not to come to a stop.

Relevant Legislation

Section 320.13 (2), 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 offence which arises for consideration in this case is that of 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 the level of care that a reasonable person would have exercised in the circumstances. While the collision between the SO’s police vehicle and the Complainant’s motorcycle would not have occurred had the SO not parked his cruiser across the eastbound lane of traffic, it was, in fact, the Complainant who was largely, if not solely, responsible for his collision with the SO’s police vehicle. Clearly, had the Complainant stopped his motorcycle, as he was legally obligated to do, rather than trying to go around the front of the SO’s vehicle, he would not have struck the front corner of the SO’s police vehicle.

It should further be noted that there were no other motorists on the roadway and, therefore, the SO’s maneuver did not endanger or interfere with traffic on Silver Street.

Finally, the question of whether the SO’s motor vehicle moved slightly forward while the Complainant was attempting to pass, thereby nudging the Complainant’s motorcycle and causing the collision or if it was the collision that caused the SO’s foot to be dislodged from the brake pedal and the cruiser to move forward after the fact of the collision remains unanswered. Since the police cruiser was not fully engaged in the collision, no crash data was generated by the vehicle and it is therefore impossible to know, with any degree of certainty, whether it was fully stopped or moving slowly at the time it was struck by the Complainant’s motorcycle. There is evidence, however, that undermines the reliability of the evidence suggesting that the SO drove his cruiser into the Complainant’s path. For example, the evidence suggesting the SO moved his vehicle into the Complainant’s path also suggests that the Complainant never applied his brakes or skidded as he approached the police vehicle; however, this is directly contradicted by the single curved tire mark along the south side of the eastbound lane, curving toward the driveway entrance, which was clearly made by the Complainant’s motorcycle as he braked when approaching the SO’s police vehicle. In the circumstances, I am unable to reasonably conclude that the SO intentionally drove his cruiser into the path of the motorcycle.

In the final analysis, given the SO’s very brief engagement with the Complainant in which the officer safely positioned his vehicle ahead of the Complainant’s path of travel in order to deter his continued flight from police and effect his lawful apprehension, I am satisfied that the officer did not transgress the limits of care prescribed by the criminal law. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: April 14, 2020

Electronically approved by


Joseph Martino
Director
Special Investigations Unit