RunnersCruiser and motorbikeCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 19-OVD-314

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 the death of a 68-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 31, 2019 at 8:50 p.m., the York Regional Police (YRP) reported the following:

On December 31, 2019 at about 7:16 p.m., a police officer was conducting radar on Major Mackenzie Drive, near Highway 48. A vehicle travelling east on Major Mackenzie Drive approached at a high rate of speed. The police officer tried to stop the vehicle, but it did not stop.

The police officer decided to go after the vehicle to try and catch up to it, but the police officer lost sight of the vehicle. The vehicle crashed into a second vehicle at Ninth Line and Elgin Mills Road. The driver of the second vehicle was pronounced dead.

The Team

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

Complainant:

68-year-old male, deceased


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
WO #6 Notes reviewed, interview deemed not necessary


Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.



Evidence

The Scene

The Subject Officer (SO) was driving east on Major Mackenzie Drive, just east of Kennedy Road, when she noticed Civilian Witness (CW) #1’s vehicle speed past her. Major Mackenzie Drive was a four-lane roadway at this point with two lanes travelling east and two lanes travelling west. The posted speed limit was 70 km/h. From Major Mackenzie Drive to Markham Road, Major Mackenzie Drive was predominantly surrounded by open fields and sections of residential homes on the south side of the road.
The collision scene was at Elgin Mills Road and Ninth Line, which was about 8.4 kilometres northeast of where the SO first saw CW #1’s vehicle. Elgin Mills Road had one lane that travelled east and one lane that travelled west. Ninth Line had two lanes that travelled north and two lanes that travelled south. The posted speed limit on Ninth Line was 70 km/h. The area was predominantly surrounded by farmers’ fields and the intersection was controlled by traffic lights. The collision between the Complainant’s vehicle and CW #1’s vehicle took place on Ninth Line, south of Elgin Mills Road.

SIU forensic investigators did not attend the scene of the collision.

Forensic Evidence


Call History / Global Positioning Satellite (GPS)/Automatic Vehicle Locator (AVL) Data Summary


Data from the cruiser that the SO was operating on December 31, 2019 showed her in the area of Kennedy Road, just south of Major Mackenzie Drive, at about 7:12 p.m. At 7:14 p.m., the SO’s cruiser was travelling east on Major Mackenzie Drive at about 62 km/h. At 7:14:11 p.m., the cruiser’s speed was 106 km/h travelling east on Major Mackenzie Drive. The SO’s speed dropped to about 102 km/h. At 7:14:48 p.m., her speed reached 114 km/h and then dropped to 97 km/h.

At 7:15:09 p.m., the SO passed McCowan Road, still travelling east on Major Mackenzie Drive, at about 104 km/h. At 7:15:31 p.m., the SO’s speed was 89 km/h until she reached Markham Road at about 7:16:24 p.m., when her speed was about 66 km/h.

According to the Call History, CW #2 called in a collision at Elgin Mills Road and Ninth Line at 7:20 p.m. At this time, the SO’s cruiser was in the area of Ressor Road on Major Mackenzie Drive travelling within the speed limit. At about 7:21:39 p.m., the SO made a U-turn and began travelling west on Major Mackenzie towards Ninth Line. At about 7:24:35 p.m., the SO arrived in the area of Ninth Line, just south of Elgin Mills Road, and the cruiser remained there until the AVL/GPS data ended at about 7:46 p.m.

Post Mortem and Toxicology Reports Summary


On January 2, 2020, a post-mortem examination was performed on the Complainant. Upon completion of the examination, the forensic pathologist concluded that the Complainant died due to blunt force neck trauma that resulted in a fracture of the C2 vertebra with associated cervical spinal cord injury. The results of a toxicology examination resulted in no significant findings.

Video/Audio/Photographic Evidence


The SO’s In-Car Camera System (ICCS) Video Footage Summary


YRP provided the ICCS video footage from the SO’s cruiser for the night of December 31, 2019. There were two sets of videos: one captured CW #1’s vehicle passing the SO’s cruiser; and, the other was of the SO arriving at the collision scene. 

Video One

At 7:13:58 p.m., the SO’s cruiser was travelling east on Major Mackenzie Drive at 57 km/h. At 7:14:00 p.m., a white-coloured vehicle [now known to have been driven by CW #1] passed the SO’s cruiser in the centre lane at a much higher rate of speed. Five seconds later, the SO moved to the centre lane of the road and increased her speed to about 107 km/h. At 7:14:24 p.m., as the SO approached an intersection, she decreased her speed to about 97 km/h and activated the emergency equipment. At 7:14:30 p.m., the SO was travelling at 104 km/h, but CW #1’s vehicle was no longer in sight. At 7:15 p.m., the SO approached an intersection and slowed her speed to about 90 km/h. CW #1’s vehicle was not in sight. At 7:15 p.m., the SO turned off the emergency equipment and stopped the cruiser.

Video Two

At 7:21 p.m., the SO was driving on a country road with no surrounding traffic when she activated the emergency lights and made a U-turn. [It is now known that the SO was driving east on Major Mackenzie Drive and approaching Reesor Road, when she placed herself on the call of the collision that was reported by CW #2.] At 7:24:48 p.m., the SO arrived at the scene and Witness Officer (WO #1) and WO #2 could be seen in the open field.

Police Communications Recordings

YRP provided a 911 communications recording for December 31, 2019, which was approximately three minutes in length. A woman [now known to be CW #2] can be heard on the recording advising that she and her sister [now known to be CW #3] had seen two cars flip over at Ninth Line and Elgin Mills Road. About two minutes into the conversation, sirens could be heard in the background and CW #2 confirmed that police officers had arrived.

YRP also provided a radio communication recording for December 31, 2019, which was approximately one minute and 18 seconds in length. On this recording, the SO can be heard advising the dispatcher that a car [now known to be CW #1’s vehicle] had flown past her at about 120 km/h on Major Mackenzie Drive. She indicated that she tried to stop the vehicle, but it just took off.

About 20 seconds later, the SO advised that CW #1’s vehicle was approaching McCowan Road and it had continued east on Major Mackenzie Drive past Markham Road. The SO indicated at this time that she had lost sight of CW #1’s vehicle.

At 43 seconds, the dispatcher advised WO #1 and WO #2 to attend the intersection of Elgin Mills Road and Ninth Line for a report of a collision in which two vehicles had flipped over and the people were not responding.

About one minute into the recording, the SO could be heard advising the dispatcher to place her on the call. WO #1 and WO #2 could be heard advising that one person [now known to be the Complainant] was not responding while another person [now known to be CW #1] was awake and breathing. The dispatcher advised that Emergency Medical Services were on their way and WO #2 advised that the fire department was needed.

At about two minutes and 15 seconds into the recording, WO #2 advised that they were starting CPR and that the man [now known to be the Complainant] was vital signs absent.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the YRP:
  • Call History (x2);
  • Communications recordings;
  • 911 Call Summary;
  • YRP breath test results;
  • General Occurrence Hardcopy;
  • General Occurrence Hardcopy-CW #3 Interview;
  • General Occurrence Hardcopy-Witnesses and Vehicle Information;
  • Notes of witness officers;
  • The GPS/AVL data associated with the SO’s cruiser;
  • ICCS video footage from the SO’s cruiser; and
  • YRP officers at the motor vehicle collision.

Materials obtained from Other Sources

Also received and reviewed was the toxicology and post mortem results for the Complainant.

Incident Narrative

The material events in question are uncontested on the evidence collected by the SIU. The SO was on patrol traveling east on Major Mackenzie Drive on December 31, 2019, when she observed CW #1’s vehicle speed past her in the middle lane of the roadway shortly after Kennedy Road. The officer decided to pick up her speed and soon activated her emergency lights and siren intending to stop CW #1’s vehicle for speeding. Over the course of the next minute or so, the SO reached speeds upwards of 110 km/h but was unable to close the gap on CW #1 beyond four to five car lengths. In fact, the distance between their vehicles eventually increased to the point that the officer lost sight of CW #1’s vehicle in the area of Markham Road, prompting her to turn off her lights and siren, slow down and disengage.

There is no evidence that CW #1 was ever aware of the cruiser behind him. He continued to speed eastward toward Ninth Line, where he turned left to travel north. Within seconds of doing so, he had collided with the Complainant’s vehicle.

The SO continued east on Major Mackenzie Road East and was in the area of Reesor Road when she heard of the collision over her radio and doubled-back to render assistance. With the assistance of WO #1, she pulled the Complainant out of his wreck and began to administer CPR. Arriving paramedics took over the Complainant’s care. Unfortunately, he could not be saved and was declared deceased at the scene.

Relevant Legislation

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.

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 officers’ duties.

Analysis and Director's Decision

At about 7:20 p.m. of December 31, 2019, the Complainant was driving his vehicle north on Ninth Line approaching Elgin Mills Road East when he was rear-ended by a vehicle behind him. The vehicle was being driven by CW #1. Minutes earlier, he had sped past the SO’s marked cruiser on Major Mackenzie Drive East. The officer followed CW #1 briefly intending to stop his vehicle but disengaged in the area of Markham Road. The collision caused both CW #1 and the Complainant’s vehicles to roll over into the ditch on the east side of Ninth Line, resulting in the Complainant’s death. 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 only offence that arises for consideration is dangerous driving contrary to section 320.13(1) of the Criminal Code. The offence is one of penal negligence and is therefore predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. There is no indication in the evidence of the SO transgressing the limits of care prescribed by the criminal law. I accept that CW #1 passed the officer’s vehicle at speeds well over the 70 km/h speed limit on Major Mackenzie Drive. Accordingly, the officer was within her rights in seeking to stop the vehicle for a speeding infraction. The SO’s speed was itself over the speed limit, but not only was it countenanced under section 128(13) of the Highway Traffic Act, there is no evidence to suggest it imperiled vehicular and pedestrian traffic in the area, of which there was little given the rural nature of the area. Advisedly, the SO used her emergency lights and siren for most of the engagement, and called off her pursuit when it appeared she was losing ground and had lost sight of CW #1. On this record, there is no case for any want of care on the part of the officer sufficient to ground criminal liability.
The Complainant’s death was needless and tragic. While the SO is a part of that sad story because of the efforts she made to resuscitate him at the scene and pull over the driver moments before he caused the collision that took the Complainant’s life, there are no grounds to believe that the officer acted other than professionally throughout. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: May 19, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit