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SIU Director’s Report - Case # 20-OVI-011

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 the injury that a 29-year-old woman (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On January 22, 2020 at 10:40 a.m., a woman reported her daughter had been injured in a motor vehicle collision involving a Peterborough Police Service (PPS) vehicle.

The woman reported her daughter, the Complainant, was injured on October 23, 2019, [1] when a PPS cruiser struck the Complainant’s vehicle at the intersection of Clonsilla Avenue and Sherbrooke Street. The Complainant attended the Peterborough Regional Health Centre and was diagnosed as having suffered a concussion. The Complainant was, at the time of the notification to the SIU, receiving treatment from a concussion specialist.

The Team

Number of SIU Investigators assigned: 4

Complainants

Complainant: 29-year-old female interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

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


Evidence

The Scene

Sherbrooke Street is oriented in an approximate eastbound-westbound manner. There are two lanes of traffic in each direction. Clonsilla Avenue is oriented in a northeast-southwest orientation, intersecting Sherbrooke Street on an angle. Clonsilla Avenue also has two lanes of traffic flow in each direction. Traffic flow at the intersection of Sherbrooke Street and Clonsilla Avenue is controlled by traffic signals.

Expert Evidence


Opinion of SIU Collision Reconstructionist


The SIU Collision Reconstructionist determined there was no dispute regarding the colour of the traffic signals displayed at the intersection at the time of the collision. The SO and WO #4 were facing a red traffic signal as they travelled southbound on Clonsilla Avenue. The Complainant and other eastbound traffic entered the intersection on a green traffic signal.

The SIU Collision Reconstructionist determined there was no reason to believe the Complainant was travelling at anything other than a prudent speed, at or near the speed limit.

The most significant issue identified was whether the SO came to a complete stop and proceeded into the intersection only when safe to do so.

The SIU Reconstructionist determined the area of impact was consistent with the Complainant travelling eastbound in the curb lane while the SO, travelling southbound, entered the intersection in the southbound passing lane or the northbound passing lane.

The SIU Collision Reconstructionist was unable to determine with absolute confidence whether the SO came to a full stop prior to entering the intersection. He calculated an estimated speed for the SO, assuming that the SO came to a complete stop, and determined the crush damage to the Complainant’s vehicle suggested the SO was travelling at a higher speed. He determined it was the SO’s responsibility, under the Highway Traffic Act, to have yielded the right of way to the Complainant.

When the SO was interviewed by the SIU, he reported he had come to a complete stop and then accelerated to approximately 40 km/h before colliding with the Complainant’s vehicle. The SIU Collision Reconstructionist determined the SO’s estimate fell within the speed approximations the SIU had calculated, under the assumption the SO made a full stop at the intersection. The SIU Collision Reconstructionist determined there was no evidence to disprove the SO’s statement that he had made a full stop at the intersection.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Police Communications Recordings

WO #4 reported the SO had been involved in a collision. Other officers responded to the scene.

The communications recordings did not assist in further understanding the collision.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the PPS:
  • A copy of the radio and telephone communications recordings;
  • Event Details Report;
  • Motor Vehicle Collision Report;
  • Scene photographs;
  • Notes of the designated witness officers;
  • Occurrence Summary Report;
  • PPS Witness Statement – the Complainant;
  • PPS Witness Statement – All CWs except for CW #3;
  • PPS Witness Statement – SO;
  • PPS Witness Statement – WO #4; and
  • Vehicle maintenance log.

In response to an SIU request, PPS reported that they do not have a Global Positioning Satellite data system.

Materials obtained from Other Sources

In addition to the materials received from the PPS, SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records from the Peterborough Regional Health Centre; and
  • A Global News video report from their coverage of the collision.

Incident Narrative

The following scenario emerges on the weight of the evidence collected by the SIU in its investigation, which included interviews with the Complainant, the SO, a WO and several civilian eyewitnesses. In the evening of October 22, 2019, the Complainant was on her way home from work traveling in her Dodge Avenger eastbound on Sherbrooke Street. The Complainant approached and entered the roadway’s intersection in the curb lane, at moderate speed and with a green light. At the same time, the SO was operating a marked police SUV south on Clonsilla Avenue making his way to the scene of a call for service involving an incident with a knife. The SO entered the intersection on a red light and struck the driver’s side of the Complainant’s vehicle, propelling it in a southeasterly direction into a private driveway at the corner of the intersection, where it collided with a parked pickup truck.

Following the collision, the SO exited his vehicle, which came to a stop in the intersection, and went to check on the well-being of the Complainant. The Complainant was subsequently removed from her vehicle and attended hospital, where she was diagnosed with a concussion.

Relevant Legislation

Section 320.13 (2), Criminal Code – 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.


Section 144 (20), Highway Traffic Act – Traffic control signals and pedestrian control signals – Exception — emergency vehicle

144 (20) Despite subsection (18), a driver of an emergency vehicle, after stopping the vehicle, may proceed without a green indication being shown if it is safe to do so.

Analysis and Director's Decision

The Complainant suffered a concussion in a motor vehicle collision on October 22, 2019. The Complainant was traveling east on Sherbrooke Street in Peterborough when her vehicle was broadsided by a police cruiser proceeding south through the intersection at Clonsilla Avenue. The driver of the cruiser – the SO – was responding to a call for service at the time. 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 and the Complainant’s serious injury.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2). As an offence of penal negligence, simple negligence will not suffice to ground criminal liability. What is required, inter alia, is conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. In my view, there is insufficient evidence to reasonably establish that the SO transgressed the limits of care prescribed by the criminal law.

In the context of the instant case, one of the central issues is whether the SO came to a stop ahead of entering the intersection on a red light, as he was required to pursuant to section 144(20) of the Highway Traffic Act. The evidence on this question is discrepant. While the weight of the evidence suggests that the SO did in fact come to a full stop, there was evidence that the SO slowed down momentarily before driving through the red light, but did not stop.

In the final analysis, whether the SO came to a full stop or not, the very fact of a collision strongly suggests that the SO was not as diligent as he could have been while traveling through the intersection on a red light. This fact alone, however, is not sufficient to ground criminal liability. As the Supreme Court of Canada has made clear, momentary or isolated lapses of attention or care will rarely be enough to establish a marked deviation from a reasonable level of care: R. v. Beatty, [2008] 1 SCR 49; R. v. Roy (2012), 281 CCC (3d) 433. There is no indication that the SO was engaged in dangerous driving in the moments before the collision as he drove to get to the scene of an incident involving a knife. On the contrary, the weight of the evidence indicates that the SO had his emergency lights and siren on, alerting traffic around him to his presence. Indeed, as the SO approached Sherbrooke Street traveling south on Clonsilla Avenue, the evidence indicates that motorists on both roadways came to a stop in anticipation of the cruiser. Even with respect to his entry into the intersection, the SO appears to have exercised a level of caution, slowing or stopping his vehicle and checking traffic before proceeding south. Weighed in the balance, I am unable to reasonably conclude on this record that the SO’s singular miscalculation, if it be such, rendered his driving criminal in the circumstances.

In the result, while the concussion the Complainant suffered in the collision with the SO’s cruiser was most unfortunate, there are no reasonable grounds to believe that the SO drove dangerously in violation of the criminal law. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: July 13, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The correct date of the incident was October 22, 2019. [Back to text]