SIU Director’s Report - Case # 16-PVI-256

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 serious injury sustained by a 78-year-old man on October 6, 2016 during a motor vehicle collision involving a police cruiser.

The investigation

Notification of the SIU

On October 6, 2016, at 5:25 p.m., the Ontario Provincial Police (OPP) notified the SIU that at 2:37 p.m. on that date the Complainant had sustained an injury as a result of a motor vehicle collision involving an OPP vehicle on Highway 401 eastbound west of Highway 32 near Gananoque. The Complainant was taken to the hospital, examined and found to have no serious injury but was being kept for observation. It was agreed that with the information available at that time, that OPP Technical Traffic Collision Investigators (TTCI) would process the collision scene to expedite the reopening of the highway.

At 8:30 p.m. that same date, the OPP reported to the SIU that the Complainant was further assessed by hospital staff and found to have suffered a hairline fracture to his back and a minor hairline fracture to one rib. On October 7, 2016, SIU Investigators and an SIU reconstructionist were dispatched to investigate this incident.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators (FI) assigned: 1

Number of SIU Collision Reconstructionists assigned: 1

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

CW #4  Interviewed

Police Employee Witnesses

PEW Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

WO #4  Interviewed

WO #5  Interviewed

WO #6  Interviewed

WO #7  Interviewed

Subject Officers

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

Evidence

The Scene

No scene examination or processing was conducted by SIU personnel as SIU investigators were not dispatched until the day following the collision. The scene, on the date of the collision, was examined and processed by OPP TTCI. The scene was cleared by OPP and all vehicles towed from the scene.

Highway 401 runs in an east west orientation with two lanes eastbound and two lanes westbound. It is an asphalt roadway and the road conditions were in good condition at the time of this collision. In the area of the collision there is a paved median shoulder with a rumble strip and Jersey barrier in the centre of the roadway separating the eastbound lanes from the westbound lanes. Lanes one and two eastbound are separated by a broken white line. The grade of the roadway is level and the sightlines are good. The surrounding area is mainly comprised of forested rural.

The posted speed limit on Highway 401 is 100 km/h, however in the area of the collision it was posted with ample and appropriate signage, for eastbound traffic, as 80 km/h due to road construction. There was also ample and appropriate signage indicating lane closure and lane merges due to that same construction.

At the time of this collision the roads were dry, there was scattered cloud, visibility was good with good sightlines and no obstructions to visibility.

Scene Diagram

The following scene diagram was prepared by the OPP:

Expert Evidence

The OPP Collision Reconstruction Report, dated February 26, 2017, was received by the SIU on March 16, 2017.

Summary of SIU Reconstructionist Findings

Vehicle downloads and vehicle examinations from all involved vehicles were conducted subsequent to the collision date by an SIU reconstructionist. The police vehicle operated by the SO was examined and photographed by an SIU FI and no damage other than front end damage resulting from this collision was found.

The SIU reconstructionist, in preparing his report and in interpreting vehicle downloads, also reviewed and relied upon photographs taken by OPP personnel, personnel from a third party company present at the scene, OPP TTCI field notes/drawings and OPP vehicle examination field notes.

The SIU reconstructionist determined that the front of the OPP Dodge Charger collided with the rear of the Hyundai in the eastbound passing lane of Highway 401. The right front corner of the Hyundai then collided with the left rear corner of the Jeep Cherokee as a result of being pushed forward from the impact by the OPP Dodge Charger. The Hyundai then separated from the Jeep Cherokee and the Dodge Charger, and rotated counter clockwise, coming into collision with the concrete barrier in the centre median.

The Airbag Control Model (ACM) data shows the speed of the OPP Dodge Charger was travelling at about 75 km/h at the time of impact with the rear of the Hyundai, the speed of the Hyundai at the time of impact was about 12 km/h and the speed of the Jeep Cherokee was about 9 km/h at the time of impact.

The ACM data shows the speed of the OPP Dodge Charger was initially 108 km/h and brakes were applied 0.9 seconds before impact with the Hyundai and that there was zero to very minimal steering input from the OPP Dodge Charger leading up to the collision.

The ACM data showed that the seatbelts were engaged at the time of the collision on all three involved vehicles.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. Photographs were received from CW #3 and CW #4, as well as from personnel from a third party company who were present at the scene.

Below is a photo received of the Complainant’s white Hyundai:

Below is a photo received of the SO’s Dodge Charger cruiser:

Communications Recordings

OPP Communications

On October 6, 2016 at 2:08 p.m., the SO reported to the OPP Provincial Communications Centre (PCC) in Smiths Falls, that she had been involved in a personal injury motor vehicle collision on Highway 401 eastbound just west of mile marker 643.

She reported that a black SUV, possibly a Chevrolet Tahoe with a Quebec marker, the number of which she was unable to obtain, had cut in front of her and cut her off. She said the driver had his head down, was wearing a ball cap and may have been texting.

At 2:18 p.m., she said that there had been no contact between the unknown SUV and her vehicle. At 2:20 p.m., she reported that the unknown SUV “may” have made contact with her vehicle and that it “may” have damage on the driver’s side rear quarter panel.

Although a search of the area was conducted by OPP no SUV was located.

Forensic Evidence

Examination of the SO’s Work Cell Phone

The SO’s work cell phone was seized at the scene by WO #2. On request this was provided to the SIU. An examination of the history on this cell phone showed no text messages and no incoming or outgoing calls around the time of this collision.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the involved OPP police services: Brockville Detachment (Leeds County); Ottawa Detachment; Provincial Communications Centre (Smiths Falls); Quinte West Detachment:

• Average Calculations - ABS Engaged and Disengaged
• Police Unit Status Code Definitions
• Communication Transcript
• OPP Collision Reconstruction Report
• Photographs of the scene
• Technical Collision Field Notes – WO #6
• Interview Report – CW #1
• Interview Report – the Complainant
• Maintenance Log for the SO’s cruiser
• Motor Vehicle Collision (MVC) Report
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5 and WO #6
• Property Receipt
• Property Report for OPP Vehicle Keys and Documents
• Statement of CW #2
• Vehicle Damage Report
• Vehicle Exam Field Notes - Dodge Charger
• Vehicle Exam Field Notes - Hyundai
• Vehicle Exam Field Notes - Jeep Cherokee
• Vehicle Log for the SO”s cruiser, and
• Vehicle Maintenance Log Book.

Incident narrative

Shortly after 2:00 p.m. on October 6, 2016, the Complainant and CW #1 were driving their white Hyundai eastbound on Highway 401 near mile marker 643, two kilometres west of Highway 32, near Gananoque. CW #2 was driving his Jeep Cherokee immediately in front of the Hyundai. There was construction up ahead, and CW #2 had almost stopped, and the Complainant was slowing to a stop.

Suddenly, the Complainant was struck from behind by the SO’s OPP Dodge Charger. At the point of impact, the Complainant was travelling at 12kmk/h and the Jeep Cherokee at 9km/h. The OPP cruiser, however, was travelling at 75 km/h, which pushed the Hyundai forward at a speed of 53 km/h, causing it to collide with the Jeep Cherokee. Extensive damage was caused to the rear of the Hyundai and the front of the Dodge Charger.

The Complainant was transported to hospital by ambulance, where it was determined that he had sustained a fractured thoracic vertebrae and several rib fractures.

Relevant legislation

Section 249(1), Criminal Code - Dangerous operation of motor vehicles, vessels and aircraft

249 (1) Every one commits an offence who operates

1. a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place&hellip

Section 249(3), Criminal Code - Dangerous operation causing bodily harm

249 (3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Section 219, Criminal Code - Criminal negligence

219 Every one is criminally negligent who

1. in doing anything, or
2. in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons

Section 221, Criminal Code - Causing bodily harm

220 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Section 30, Highway Traffic Act – Careless Driving

130 Every person is guilty of the offence of driving carelessly who drives a vehicle or street car on a highway without due care and attention or without reasonable consideration for other persons using the highway and on conviction is liable to a fine of not less than $400 and not more than $2, 000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than two years.

Analysis and director’s decision

On October 6, 2016, at approximately 2:08 p.m., three vehicles were involved in a motor vehicle collision on Highway 401 near mile marker 643, two kilometres west of Highway 32 near Gananoque and east of Kingston, Ontario. Those three vehicles were operated: by CW #2, in a Jeep Cherokee, in the lead; the Complainant, in a Hyundai, as the second vehicle; and third in the row of vehicles was the SO, operating a marked OPP cruiser. As a result of the contact between the vehicle operated by the SO and that operated by the Complainant, the Complainant suffered a fractured thoracic vertebrae and several rib fractures.

The Complainant advised the OPP that he had been operating his Hyundai travelling eastbound on the 401 Highway in the passing lane when he observed the brake lights of vehicles ahead come on, and those vehicles began to slow. As a result, he began to decelerate himself. He advised that he had slowed to approximately 90 km/h, when he was suddenly struck from behind, causing his vehicle to be pushed forward into the centre median concrete barrier and then into another vehicle. The Complainant advised that, once stopped, he exited through the passenger side, as the driver door was jammed.

During the course of this investigation, five civilian witnesses, including the Complainant, and seven police witnesses and one police employee were interviewed by investigators. The SO declined to be interviewed, as is her legal right, and did not provide her notes for review. Additionally, investigators reviewed the notebook entries of all witness officers, the communications recordings and log, the data downloads available from each motor vehicle and the Accident Reconstruction Report.

The communications recording reveals that the SO called in at 2:08:49 p.m. to report that she had just been involved in a MVC and required an ambulance for another party, not herself. At 2:20:07 p.m., the SO reported that a black SUV, possibly a Chevrolet Tahoe with a Quebec marker which she could not obtain, had cut in front of her. She described the driver of this motor vehicle as having his head down, wearing a ball cap and possibly texting; she referred to this vehicle as “cutting her off”.

At 2:16:29 p.m., the dispatcher asked the SO to confirm that three vehicles had been involved and one had failed to remain; there was no response from the SO.

There were various additional transmissions from the SO, giving conflicting versions of the involvement of this “black SUV” at various points as follows:

• “a black SUV, didn’t get his marker, think it was Quebec, just cut right in front of me”
• “don’t know if anyone is up ahead. If you can keep an eye out for that guy, I can’t give you any details, black SUV, Quebec markers, cut me off right in front of me, I think he was texting or something, I saw him with his head down. Probably swayed over into my lane”
• “eastbound construction up ahead, traffic slowing. Don’t know might have been caught up in that up ahead. Might have been Quebec markers, couldn’t catch it in time with airbags going off in my face”
• In response to a question if there was any damage to the ‘black SUV”, the SO responded: “Should be no damage, no connection there”
• But when asked by another officer to give the description of the vehicle, she indicated: “Chev, Quebec markers, male driver with his head down texting, of all things, ran into me and pulled back out and there’s the story”

The officer responds, “so there will be damage on this vehicle, is that correct?” to which the SO indicates: “I don’t believe so, I don’t believe so.I don’t know if there was any contact there”.

Whether or not there was a black SUV with possibly Quebec markers, who either cut the SO off, or “ran into her” and then “pulled back out” or “swayed” into her lane, the presence of this vehicle in no way accounts for the MVC between the SO’s vehicle and the vehicle directly in front of her.

The only way in which it was logical that this unknown vehicle could have caused the SO’s collision, was if she had been driving in the curb lane at a greater speed than traffic which had already moved into the passing lane, as the curb lane was closed up ahead, and this black SUV then also swerved into the curb lane to avoid the slower traffic in the passing lane, forcing the SO to change lanes to avoid colliding with the black SUV. Had that occurred, one would, of course, wonder why the SO had not moved to the paved shoulder, rather than into the slower moving lane of traffic causing the ultimate collision. The accident reconstruction report, however, makes this scenario impossible, as it was determined from the data downloaded from the SO’s cruiser, that she had been travelling in the passing lane prior to the collision and that she had not effected a lane change.

The only remaining scenario, then, if there was a black SUV, was that the SO was travelling in the passing lane, the black SUV cut in front of her and then moved back out of the passing lane, and she collided with the vehicles in front of her. On this scenario, the SO would have collided with the vehicles in front of her whether or not this black SUV momentarily entered her lane and then left again.

Despite numerous police vehicles being on the lookout for this black SUV, none was ever located, nor did any of the other drivers observe any such vehicle in the area prior to the collision.

On all of the evidence, I do not believe that it is necessary to determine whether or not there actually was a black SUV, since its absence or presence was irrelevant to the cause of this collision.

According to the Accident Reconstruction Report, the OPP Dodge Charger, operated by the SO, collided with the rear of the Hyundai in the passing lane. The right front corner of the Hyundai then collided with the left rear corner of the Jeep Cherokee, as a result of being pushed forward by the OPP vehicle. At the time of impact, the ACM data shows the speed of the OPP cruiser as 75 km/h, the Hyundai as 12kmk/h and the Jeep Cherokee as 9km/h. Prior to the collision, the OPP cruiser had been travelling at 108 km/h and brakes were only applied 0.9 seconds prior to impact and there was zero to very minimal steering input from the OPP cruiser indicating that no lane change had been effected.

Examination of the scene confirmed that there was adequate signage leading up to the point of impact warning of construction ahead and the reduced speed limit, as follows:

• 15 metres prior to the point of impact a sign was observed which read: “80km/h begins”
• 240 metres prior to the “80km/h begins” sign was a sign that read: “80 km/h ahead”, and
• Prior to the “80 km/h ahead” sign, there was a large electronic sign on the right shoulder with alternating messages of “right lane closed” and “reduce speed ahead”. Prior to the electronic sign was a “construction zone begins, speed fines doubled” sign.

There were no mechanical deficiencies found in any of the three vehicles which could have contributed to the collision.

The pre-crash data downloaded from the OPP cruiser revealed that at five seconds prior to impact, the SO’s vehicle was travelling at a speed of 108 km/h and had slowed to 100 km/h one second prior to collision. During this four second period of deceleration, the accelerator was not being depressed, but neither was the brake pedal and the steering input remained constant, indicating that the vehicle had not changed lanes. At 0.9 seconds prior to the point of impact, the brake pedal was depressed for the first time and the vehicle began to slow. At 0.1 seconds prior to collision, the cruiser decelerated to 78 km/h and then at the point of collision, its speed suddenly slowed to 59 km/h due to its having made contact with the Hyundai which was travelling at a lesser rate of speed causing the cruiser to slow and then rapidly decelerate until it came to a stop.

The pre-crash data from the Hyundai indicates that at five seconds prior to impact, the Hyundai was travelling at 39 km/h, the brake pedal was depressed and the vehicle further slowed to 12 km/h. At the time of impact, the Hyundai suddenly increased its speed to 53 km/h as the OPP cruiser was travelling at a greater speed and was pushing it forward. During the five second interval prior to the time of impact, the accelerator on the Hyundai was not depressed.

The pre-crash date from the Jeep Cherokee indicates that at five seconds prior to impact, the Jeep was travelling at 14km/h and had decelerated to 9km/h, 0.5 seconds prior to impact. The brake pedal on the Jeep had been activated five seconds prior to impact.

The accident reconstruction report confirmed that all three vehicles had been travelling in the passing lane the entire five seconds prior to impact and concluded that the OPP cruiser had been travelling at a far greater speed than the Hyundai and the Jeep in front of it and that the SO did not brake until one second prior to the collision.

Further investigation revealed there was no mobile workstation (MWS) tablet in the docking station of the OPP cruiser, nor did the SO’s cell phone indicate any calls or text messages sent or received in the time frame prior to the collision.

On all of the evidence, there is no question that the SO was at fault in causing the collision between her OPP cruiser and the Hyundai driven by the Complainant, which was then forced forward and made contact with the Jeep Cherokee operated by CW #2. The only issue that remains to be determined is whether or not the SO’s driving rose to the level required to satisfy reasonable grounds to believe that a criminal act was committed, or whether there are only sufficient grounds to believe that one or more offences contrary to the Highway Traffic Act were committed.

The question I must determine is whether or not there are reasonable grounds to believe that the SO committed a criminal offence, specifically, whether or not the driving rose to the level of being dangerous and therefore in contravention of s.249(1) of the Criminal Code and did thereby cause bodily harm contrary to s.249(3) or if it amounted to criminal negligence contrary to s.221 of the Criminal Code and did thereby cause bodily harm.

The decision of the Supreme Court of Canada R. v. Beatty, [2008] 1 S.C.R. 49, indicates that s.249 requires that “the driving be dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place”; furthermore, the driving must be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”. Furthermore, the offence under s.221 requires “a marked and substantial departure from the standard of a reasonable driver in circumstances” where the accused “showed a reckless disregard for the lives and safety of others” (R. v. Sharp (1984), 12 CCC (3d) 426 (Ont. C.A.)).

On a review of all of the evidence, it is clear that the SO was, for whatever reason, oblivious to the fact there was construction up ahead; that the speed limit in the area had been reduced due to that construction; that there was a lane closure up ahead and that traffic in front of her had substantially slowed to accommodate that lane closure. At the time and place of the collision, roads were dry, visibility was good, with good sightlines, and no view obstructions. There was ample signage of the construction ahead and the reduced speed limit. The SO was apparently neither distracted by her mobile station nor her cell phone. According to the evidence of the driver of the Jeep, CW #2, given to the OPP, he saw the construction signs and that the car in front of him had come to a stop and he was in the process of doing so himself when he was struck from behind.

On this record, it is clear that the SO, for whatever reason, was inattentive to the fact that traffic was slowing and stopping, failed to adjust her speed accordingly, and caused the collision between herself and the vehicles travelling at far lesser speeds ahead of her on the roadway. The law is clear, however, that an accident alone is not sufficient to satisfy the elements of either s. 249 or 221 of the Criminal Code; there must be some evidence that the driving prior to the collision amounted to either “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances” or “a marked and substantial departure from the standard of a reasonable driver in circumstances” where the accused “showed a reckless disregard for the lives and safety of others.”

I find, however, that in the absence of any evidence of the SO’s driving prior to the collision, that there is insufficient evidence to find reasonable grounds to believe that any criminal offence has been committed here. In this case, there is an absence of any evidence from other drivers as to the SO’s driving prior to the collision; the pre-crash data only shows that she was driving at a rate of speed in excess of that being observed by other traffic ahead of her and that she failed to adjust her speed to take into account the other users of the roadway. As such, there are clearly ample grounds to believe that the SO was driving her motor vehicle in a careless manner without reasonable care and attention, contrary to s.130 of the Highway Traffic Act, but that the evidence is insufficient to rise to the level required pursuant to the Criminal Code. On that basis, there are no grounds for the laying of criminal charges.

Date: October 3, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit