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SIU Director’s Report - Case # 19-PVI-236

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 28-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 24, 2019, at 2:35 p.m., the Ontario Provincial Police (OPP) notified the SIU of a motorist being injured in a motor vehicle collision.

According to the OPP, at approximately 11:20 a.m. that morning, the OPP received a complaint regarding a vehicle being driven erratically on Highway 11 near Matheson. An OPP officer spotted the vehicle travelling southbound on Highway 11 at 162 km/h in a 90 km/h zone. The officer did not activate any emergency equipment. He stopped at the side of the road and began turning his police vehicle around. The civilian vehicle continued southbound at high speed and was soon involved in a head-on collision with a tractor-trailer, just south of Matheson.

The driver of the civilian vehicle, the Complainant, was airlifted to Health Sciences North Hospital (HSNH) in Sudbury with undetermined serious injuries; the truck driver, Civilian Witness (CW) #2, was not injured.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned:

SIU investigators travelled to the HSNH in Sudbury to obtain an update regarding the Complainant’s injuries. The SIU investigators arrived in Sudbury at 8:25 p.m. The Complainant had been placed in an induced coma, according to nursing staff.
SIU forensic investigators (FIs) were dispatched to the scene but were not expected to arrive for quite some time. The SIU agreed to allow an OPP Technical Traffic Collision Investigation (TTCI) team to process the scene as part of their criminal investigation related to the Complainant’s driving. SIU FIs arrived on scene at 12:20 a.m. September 25, 2019.

The SIU FIs photographed aspects of the scene and then allowed the OPP TTCI team to complete their scene examination. The vehicles involved in the collision, and the involved OPP vehicle, were examined by the SIU later that morning.

The SIU FIs also canvassed businesses along Highway 11 to identify any security camera recordings that might have captured the events.

Complainant:

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


Civilian Witnesses [1]

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


Subject Officers

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


Evidence

The Scene

Motorists travelling southbound on Highway 11 toward Matheson are travelling in a southeast orientation. Just west of Matheson, Highway 11 curves to the left and southbound motorists are then travelling eastbound.

The Town of Matheson is situated just north of Highway 11. At an intersection due south of Matheson, Highway 101 travels north from Highway 11 and serves as the main thoroughfare into Matheson.

East of the intersection, Highway 11 soon curves to the right and southbound motorists are then again travelling in a southeast orientation. The collision involving the Complainant’s BMW sedan and CW #2’s tractor-trailer occurred on this curve in the roadway.

Forensic Evidence


Global Positioning Satellite (GPS) Data from the SO’s vehicle


According to the GPS Gate data for the SO’s vehicle, at 11:23 a.m. he was stopped on Highway 11 west of Matheson. At 11:24 a.m., he was travelling eastbound on Highway 11 at 142 km/h, still west of Matheson. As he approached the intersection of Highway 11 and Highway 101, south of Matheson, he started to slow. By 11:27 a.m., he was stopped at the scene of the collision.

Video/Audio/Photographic Evidence


Video from Highway 11


A business was located on the south side of Highway 11, southeast of the intersection of Highway 11 and Highway 101. A security camera mounted on the front of the store recorded traffic travelling along Highway 11.

At 11:23 a.m., the SO’s OPP SUV [2] can be seen travelling westbound on Highway 11; he then turns onto northbound Highway 101 and enters the Town of Matheson.

At 11:25 a.m., the SO is seen travelling southbound on Highway 101 from Matheson and turning westbound onto Highway 11.

At 11:32:29 a.m., a black BMW sedan travelling eastbound on Highway 11 passed the store. At 11:32:59 a.m., the SO’s OPP SUV travelled eastbound past the store. The emergency lights on the SO’s vehicle did not appear to be active.

Police Communications Recordings and Computer-Aided Dispatch Record

At 11:15 a.m., a woman reported a dark BMW with dark tinted windows was travelling behind her and was being driven recklessly; she had to apply her brakes to slow the BMW because he was very close behind her and was swerving in the lanes. At the time of the call the BMW had pulled over to the shoulder of the highway near the Monteith OPP station. [3] As the caller spoke to the OPP, she reported that the BMW had pulled back onto the highway and was continuing toward Matheson.

The caller reported that after the driver of the BMW pulled over, he accessed the back seat of the car for a brief period and then continued toward Matheson. The OPP call-taker told her they had a unit patrolling the area and they would try to get that unit into position.

The dispatcher advised patrol units they had a traffic complaint regarding a dark BMW with dark tinted windows and a male driver that was tailgating and swerving in the lanes. The dispatcher reported the driver had briefly pulled over, but was then back on the highway. The SO said he would look for the vehicle.

At 11:25 a.m., the SO reported he had located the vehicle, travelling at 162 km/h and swerving on the highway. The motorist was varying his speeds as the SO followed him. The SO asked if there was a Kirkland Lake unit ahead that could assist. The dispatcher asked him to confirm he had not yet attempted to stop the vehicle. The SO reported they were just coming into Matheson and the vehicle was far ahead of him and had been slowing down but it looked to be speeding up again. The dispatcher advised the SO there was another officer heading out from the detachment.

At 11:28 a.m., the SO reported there was a collision south of Matheson, just entering the 90 km/h zone. He reported it appeared to be the same vehicle he had observed earlier.

The SO asked that the fire department be dispatched as smoke was starting to come from the vehicle. The SO reported a passerby was helping with the BMW driver, while the SO was retrieving his fire extinguisher.

The dispatcher reported the Complainant was a suspended driver in Ontario for various reasons but did have a valid Quebec driver’s licence.
Another OPP officer asked the SO if there was a possible 253 (impaired driving charge). The SO responded it was possible, given the motorist’s actions prior to the collision.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Copies of civilian witness audio-recorded statements (CW #1 and CW #2);
  • Copy of an OPP interview of CW #3, a civilian witness;
  • Copy of the recorded radio and telephone communications;
  • Synopsis of Cautioned Statement (OPP interview of the Complainant);
  • Event Details report;
  • General Report;
  • GPS Data;
  • Notes of witness officers;
  • Occurrence Summary Reports;
  • OPP Media Release regarding incident – issued September 24, 2019;
  • Supplementary Occurrence Report; and
  • Technical Collision Reconstruction Report.

Materials obtained from Other Sources

The SIU received a copy of the Complainant’s medical records from HSNH and the security camera recordings from a store located at Highway 11, in Matheson.

Incident Narrative

The material events in question are apparent on the weight of the evidence collected by the SIU in the course of its investigation, which included statements from the Complainant, several independent civilian eyewitnesses, and CCTV footage depicting the movement of the SO’s police cruiser and the Complainant’s BMW in the moments before the collision. At about 11:15 a.m. on September 24, 2019, the OPP received a 911 call from a motorist complaining of the reckless driving of a motor vehicle behind her on Highway 11. Officers patrolling in the area were advised of the 911 call over the radio.

At about 11:25 a.m., the SO reported that he had located the vehicle, which was travelling at 162 km/h and swerving on the road. The officer followed the BMW as it travelled east past Matheson on Highway 11. About two minutes later, the Complainant failed to negotiate a rightward bend in the road, travelled into the westbound lane of the highway, and struck a tractor-trailer. The SO arrived at the scene shortly after the collision.

The Complainant’s vehicle ended up in a ditch by the roadway. He was taken to hospital and subsequently diagnosed with multiple bodily traumas. The truck driver – CW #2 – did not suffer any injuries.

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 

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

In the morning of September 24, 2019, the Complainant seriously injured himself when the vehicle he was driving – a black BMW – struck a tractor-trailer on Highway 11 just south and east of Matheson, Ontario. The SO had been following the Complainant at a distance when the collision occurred. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injuries.

The only criminal offence that arises for consideration as far as the potential liability of the SO is concerned is dangerous driving contrary to section 320.13(1) 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. There is no basis in the evidence to reasonably conclude that the SO transgressed the limits of the law in the way he operated his cruiser. For starters, it bears noting that the SO was always well back of the BMW in distance and time throughout his limited engagement with the vehicle. In fact, the evidence indicates he did not arrive at the collision scene until about 30 seconds after the BMW struck the tractor-trailer. In the circumstances, there is nothing to suggest the SO pushed the Complainant at any point or otherwise contributed to the Complainant’s loss of control. On the contrary, it appears that the Complainant was unaware of the presence of a police vehicle behind him. Moreover, though the SO reached a top speed in excess of 140 km/h as he endeavoured to keep pace with the Complainant’s BMW on Highway 11, there is no indication that the officer’s speed ever actually endangered other motorists on the roadway. Finally, I am satisfied that the SO was engaged in the lawful course of his duty as he briefly followed the Complainant’s vehicle following a 911 call reporting its erratic operation. That being the case, the officer’s speed was mitigated to an extent by section 128(13)(b) of the Highway Traffic Act, which, while it does not provide an officer free rein to exceed the speed limit without regard for public safety considerations, does allow an officer to speed where she or he is in the lawful performance of duty.

In the result, as I am satisfied that the SO operated his cruiser lawfully throughout his brief engagement with the Complainant’s BMW, there are no grounds for proceeding with charges in this case and the file is closed.


Date: April 20, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) The civilian witnesses were interviewed by the OPP. [Back to text]
  • 2) The GPS data from the SO’s vehicle confirms it was his vehicle observed in the recording. [Back to text]
  • 3) Approximately 15 minutes northwest of Matheson. [Back to text]