SIU Director’s Report - Case # 16-OVI-292

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 suffered by an 18-year-old woman from a motor vehicle accident during the early morning hours of November 25, 2016.

The investigation

Notification of the SIU

On November 25, 2016 at 5:24 a.m., York Regional Police (YRP) reported an injury to the Complainant resulting from a motor vehicle collision.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 2

Number of SIU Collision Reconstructionists assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, sketches and measurements.

Complainant

18-year-old female interviewed, medical records obtained and reviewed

Civilian witnesses

CW Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Not interviewed, but notes received and reviewed

Additionally, the notes from one other, non-designated officer were received and reviewed.

Subject officers

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

Incident narrative

Just after 12:00 a.m. on November 24, 2016, the CW was driving an Audi, with the Complainant as the passenger. The CW was observed by the SO and WO #1 driving at a high rate of speed. The officers activated their ICC and followed the CW. He was observed holding a hand held device. When WO #1 indicated for the CW to pull over, the CW accelerated away.

The SO activated the cruiser’s emergency lights. The CW pulled into a plaza parking lot, stopped his car, and started throwing items out of the driver’s side window. The items were later found to be a can of beer and a small quantity of cocaine. The CW then accelerated around the rear of the plaza and exited at the west end, almost striking another car.

WO #1 activated the cruiser’s siren, but the CW drove through a stop sign and disappeared into a subdivision. The SO and WO #1 turned off their emergency equipment and took up a stationary position waiting for the Audi to reappear. They saw the CW drive out of the subdivision and followed behind at a distance of 300 to 400 metres. At the time, they were not in pursuit and did not activate their emergency lights.

The CW drove onto the eastbound Highway 407, travelling at approximately 125 km/h. He then exited at Weston Road, and failed to stop for the red traffic light at Weston Road. The CW accelerated, crossed over the median into the northbound lanes and crashed into a tree on the east side of Weston Road.

The CW fled the scene. The Complainant was trapped in the front passenger seat. She was extricated by fire fighters and taken to the hospital. The Complainant sustained a fractured left ankle.

Evidence

The scene

The collision scene was a grassy boulevard between the east side of Weston Road and the parking lot of an office building at 7050 Weston Road.

This area of Weston Road between Steeles Avenue and Aviva Park Drive is a paved asphalt roadway with two lanes for northbound traffic, and two lanes plus a left turn lane at Old Weston Road, for southbound traffic. The speed limit is posted at 60 km/h and the pavement markings were in good condition at the time of the collision. A raised centre island separates the north and southbound lanes north of the intersection of Old Weston Road. In the area where this collision commenced, Weston Road was on a downhill curve to a southbound driver’s right.

There were multiple impacts in the collision. The first area of impact was determined to be at the north end of the centre island on the north side of the intersection of Weston Road and Old Weston Road where the Audi mounted the island travelling southbound. A black and yellow hazard sign on the north end of the centre island was struck by the involved vehicle and sheared off at the base.

The second area of impact was determined to be on the east side of Weston Road just south of the intersection where the Audi mounted the east curb, sideswiped a small boulevard tree, and struck a second small boulevard tree, uprooting the second tree.

The third area of impact was determined to be a tree in the middle of a line of bushes and large trees on the east side of the sidewalk and on the property line between Weston Road and the office building situated at 7050 Weston Road. The Audi uprooted the large tree and came to rest against another large tree.

Scene diagram

Expert evidence

Collision reconstruction report

The Collision Reconstruction Report states that the path of travel of the Audi through the curve was consistent with the vehicle having exceeded the critical curve speed (CCS)^{footnote 1[1]} of the roadway in the circumstances. The CCS could be determined using data regarding the collision scene inserted into a collision reconstruction formula. Using the CCS formula, the CCS was calculated to be 123 km/h. This means that the Audi was travelling in excess of 123 km/h when the driver lost control on Weston Road.

Forensic evidence

Automatic Vehicle Location (AVL) data from the SO’s cruiser

12:20:16 a.m.:

• The in-board camera in the police cruiser is activated after the police officers see an Audi being driven erratically by the CW eastbound on Highway 7. AVL Speed: 93 km/h. (Posted Speed Limit 60 km/h)
• The speed of the police cruiser travelling on Highway 7 approaching Weston Road: AVL Speed: 95 km/h. (Posted Speed Limit 60 Km/h)
• Police cruiser on Tall Grass Boulevard: AVL Speed: 34 km/h. (Posted Speed Limit 40Km/h)
• Police cruiser southbound on Pine Valley Drive: AVL Speed: 87 km/h. (Posted Speed Limit 40/km/h)
• Police cruiser on Pine Valley Drive at Highway 407 On-Ramp: AVL Speed: 95 km/h. (Posted Speed Limit 40 km/h)
• Police cruiser eastbound on Highway 407 near Weston Road Off-Ramp: AVL Speed 132 km/h. (Posted Speed Limit 100 km/h)
• Police cruiser exiting off Highway 407 onto Weston Road Off-Ramp: AVL Speed 100 km/h.
• Police cruiser southbound on Weston Road: AVL Speed 82 km/h. (Posted Speed Limit 50 km/h), and
• Police cruiser southbound on Weston Road approaching collision scene: AVL Speed: 88 km/h

12:27:50 a.m.: The CW is seen running from the scene of the collision.

Duration of Pursuit and Strategic Following: 7 minutes plus.

Route of the Pursuit and Strategic Following:

• Eastbound on Highway 7
• Southbound on Pine Valley Drive
• Eastbound on Tall Grass Boulevard
• Westbound on Tall Grass Boulevard (Tall Grass Boulevard loops around one way in and one way out)
• Southbound on Pine Valley Drive
• Eastbound Highway 407, and
• Southbound Weston Road to collision site

Video/audio/photographic evidence

In-car camera (ICC) video

YRP cruisers are equipped with ICCs. The video from the involved police cruisers was reviewed and a report was submitted with reference to the cruiser occupied by the SO and WO #1. The other involved police cruisers arrived after the collision and their video was of no evidentiary value.

The SO and WO #1’s ICC was activated at 12:12:20 a.m. and shows the Audi being driven on Highway 7 at Islington Avenue. Traffic was heavy and a light rain was falling.

The Audi was followed at a considerable distance until it is seen pulling over at a curb in a residential area. The police cruisers emergency lights were activated and the police cruiser pulls up along the driver’s side of the Audi. The Audi immediately pulls forward around the police cruiser and into the parking lot of a plaza. The SO and WO #1 entered onto the roadway parallel to the parking lot and the Audi is lost from view. The emergency lights were still activated.

The Audi is seen leaving the parking lot at a high rate of speed, nearly striking another car and speeding away. The police cruiser’s siren was activated for six seconds before all emergency equipment was turned off and the Audi is lost in a subdivision.

Tail lights [believed to be the Audi] are seen leaving the subdivision and the police cruiser follows at a distance that does not allow for the Audi to be seen. The police cruiser travels onto eastbound Highway 407 and exits at Weston Road. The Audi was back into view exiting at Weston Road and is seen failing to stop for a red traffic light before turning south on to Weston Road. Twenty seven seconds later the Audi can be seen crossing the centre median into the northbound lanes.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the YRP:

• Call history
• Detailed call summaries
• Disclosure log
• Notes – non-designated officer
• Notes of WO #1, WO #2 and WO #3, and
• Procedure - suspect apprehension pursuit

Relevant legislation

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

249 (1) Every one commits an offence who operates

1. (a) 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…

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.

Analysis and Director’s decision

On November 24, 2016, at approximately 12:20 a.m. and thereafter, the SO and WO #1 observed a motor vehicle being operated by the CW in contravention of various provisions of the Highway Traffic Act (HTA), and attempted to bring the motor vehicle to a stop. The CW’s motor vehicle failed to stop, instead fleeing at a high rate of speed. After exiting the 407 Highway and traveling southbound on Weston Road in York Region, the CW’s motor vehicle was involved in a collision and his passenger, the Complainant, became trapped in the motor vehicle. After being transported to hospital, the Complainant was diagnosed as having sustained a fractured left ankle.

On all of the evidence, I am satisfied that the SO and WO #1 observed a motor vehicle driving at an excessive rate of speed and that the driver was observed to be distracted by the use of a hand held electronic device following which the SO drove alongside the Audi while WO #1 signaled to the CW to pull over. The CW then began to accelerate away and the SO activated the emergency lights on the police cruiser. The police officers then observed the CW to throw some items out of his vehicle and then almost strike another motor vehicle when exiting the plaza. On this evidence, there were ample grounds to believe that the driver of the Audi had, at the very least, committed several infractions of the HTA and, judging from the driver’s behaviour in ejecting property from his vehicle, possibly more, and police would have been derelict in their duties had they not attempted to stop and investigate the motor vehicle.

As a result of these observations, WO #1 then activated the siren on his police cruiser, but as soon as the CW drove through a stop sign and disappeared into a subdivision, all emergency equipment was immediately de-activated and the police officers took up a position waiting to see if the CW would return. The ICC video reveals that the siren was activated for only six seconds, before all emergency equipment was deactivated.

It is clear on the evidence of both the Complainant and the CW that they were aware that a police vehicle had attempted to pull them over and that the CW had made a conscious decision to flee in an effort to evade police. The evidence of WO #1 that they then fell back and “strategically followed” the vehicle, while never engaging in an active pursuit, is not only confirmed by the communications recording and the ICC video, but also by both the Complainant and the CW.

I find that the SO and WO #1 had reasonable grounds to attempt to stop and investigate the black Audi for a number of HTA infractions and that the CW actively attempted to evade the police officers. I find, however, that once the Audi had sharply accelerated and had entered a residential subdivision, the SO did not actively engage in a pursuit. It may well be simply a matter of semantics, but I find that though the police officers followed the Audi at a greater speed than the posted speed limit allowed, their speed was far lesser than that of the Audi, the Audi was no longer in view and they were not actively engaging with the Audi in an attempt to bring it to a stop after the initial six second activation of the siren and the emergency lighting. It is my view that this interpretation of events is confirmed by the both of the civilian witnesses as well as the ICC video and the communications recordings.

In fact, not only did the SO not actively engage in a pursuit, but both the SO and WO #1 followed every requirement of the Ontario Police Services Act legislation in that they immediately notified the dispatcher of the driver’s refusal to stop, they continuously updated the dispatcher with all of the required information, they fell back and strategically followed the vehicle, they requested other uniformed vehicles attend to assist and they formulated a plan for an alternative to a pursuit, that being a rolling block of the vehicle.

The offences that arise for consideration in this matter are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to sections 249 and 221 of the Criminal Code respectively. Both offences are predicated on conduct that amounts to a marked departure from a reasonable level of care in the circumstances.

The decision of the Supreme Court of Canada R. v. Beatty, [2008] 1 S.C.R. 49, sets out the law with respect to s.249 in that it requires “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” and 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”; while 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 C.C.C. (3d) 426 (Ont. C.A.)).

On the record before me, I find that there is no evidence that the SO’s driving created a danger to other users of the roadway. At no time did he interfere with any other traffic, the environmental conditions were reasonable and he used his emergency equipment prudently, activating his roof lights and siren for only a matter of seconds, before deactivating in the interests of public safety; he also maintained a substantial distance at all points while following the Audi, as is evidenced by the ICC. The police officer did nothing to exacerbate the Audi’s pattern of dangerous driving.

Ultimately, I find that the CW unfortunately chose to try to outrun police and in doing so, he fled at a dangerous rate of speed and carried on with no regard for other people using the road. On all of the evidence, the CW chose to enter a bend in the road at a speed estimated to have been greater than 123km/h in a posted 50 km/h zone and then lost control of his vehicle while trying to make good on his escape.

I find on this evidence that the driving of the police officers involved in an attempt to apprehend the CW does not rise to the level of driving required to constitute “a marked departure from the norm” and even less so “a marked and substantial departure from the norm” and I am unable to find any basis for believing that there was a causal connection between the actions of the police officers who were strategically following the CW and the motor vehicle collision that caused the Complainant’s injury. As such, I find that there is no basis for concluding that there are reasonable grounds to believe that a criminal offence has been committed and no basis for proceeding with charges in this case.

In the final analysis, I am satisfied on this record that the SO and WO #1 were acting lawfully when they first attempted to stop the Audi to investigate a number of obvious HTA infractions and that their conduct thereafter fell within the limits of care prescribed by the criminal law. They not only fully followed the letter of the law with respect to Suspect Apprehension Pursuits, but they also scrupulously followed the intent of the legislation. Accordingly, there are no grounds for proceeding with charges against these police officers.

Date: November 30, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit