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SIU Director’s Report - Case # 17-OCI-338

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 serious injuries sustained by the 43-year-old Complainant during his arrest on November 16, 2017.

The Investigation

Notification of the SIU

At approximately 5:53 p.m. on November 16, 2017, the Niagara Regional Police Service (NRPS) notified the SIU of the serious injury sustained by the Complainant in this matter.

The NRPS reported that at 2:22 p.m. on that same date, WO #6 and WO #7 of the Street Crime Unit (SCU) attempted to arrest the Complainant on a robbery charge on Welland Avenue in the City of St. Catharines.

The Complainant fled in his vehicle and the SCU apparently did not pursue and lost sight of him. The SO, a K9 officer, was going southbound on Bunting Road at Eastchester Avenue when he saw the Complainant driving northbound; the SO made a U- turn and also went northbound.

At 2:25 p.m., the Complainant was involved in a motor vehicle collision (MVC) with a civilian vehicle at Bunting Road and Welland Avenue and fled the scene in his vehicle. The Complainant later abandoned his vehicle on Gormley Crescent.

At 2:30 p.m., the SO and his police service dog located and arrested the Complainant nearby. The Complainant was bitten by the police dog. He was taken to the hospital and was advised that he would require surgery for a torn tendon in his arm. The civilian in the other vehicle, CW #1, was being examined at the hospital and it was reported that he might have a concussion. Both scenes were being held and both injured parties were at the hospital at the time of the notification. 

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 3

Complainant:

43-year-old male declined to be interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary

Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

Incident Narrative

On November 16, 2017, members of the NRPS SCU were investigating the Complainant for a series of robberies in the St. Catharines area. The Complainant was well known to the involved officers, who were doing surveillance on his residence that day and had been following him around the City of St. Catharines. At approximately 2:20 p.m., the involved officers attempted a traffic stop of the Complainant while he was driving east on Welland Avenue, in the vicinity of Water Street.

The Complainant initially pulled to the right shoulder of Welland Avenue, but once the SCU officers began approaching his vehicle, he drove around other stopped traffic ahead of him and fled. The Complainant continued to drive along Welland Avenue and then made a right hand turn onto Geneva Street.

The road sergeant for the SCU directed over the police radio that the Complainant was not to be pursued, and the Complainant was allowed to drive away. A Be-On-Look-out (BOLO) was broadcast identifying the Complainant’s vehicle as a Blue Ford Fiesta hatchback and providing the licence plate number. The SCU officers advised that the Complainant may he headed toward a certain address in the city. The dispatcher then broadcast the name and address of the registered owner of the vehicle that the Complainant was driving.

At approximately 2:24 p.m., an NRPS K9 officer, the SO, who was travelling west on Eastchester Avenue, heard the BOLO come over the radio and saw the Complainant’s vehicle driving east on Eastchester Avenue. The SO performed a U-turn and began to follow the Complainant. While northbound on Bunting Road, the SO began to pursue the Complainant’s motor vehicle and reported his location over the radio and identified his speed as being approximately 120 km/h.

As the Complainant travelled northbound through the Bunting Road and Welland Avenue intersection, he drove into the southbound lanes of Bunting Road and collided with a southbound vehicle operated by CW #1.

Following the collision, the Complainant’s vehicle was damaged, but still operable, and he continued to drive northbound on Bunting Road, with the SO continuing the pursuit. The Complainant eventually turned off of Bunting Road and was driving on side streets when his motor vehicle finally broke down on Gormley Crescent. The Complainant exited his vehicle and attempted to flee on foot.

The SO used his Police Service Dog (PSD) to apprehend the Complainant, with the dog engaging the Complainant resulting in a dog bite. Both CW #1 and the Complainant were transported to hospital for assessment and treatment.

Nature of Injury/Treatment

The Complainant’s medical records indicated that he sustained a roughly 2 cm x 2 cm area on his posterolateral calf which was torn by a dog bite. There was no role for surgical intervention at that time, with the wound being washed out and loosely re-approximating the bare ends.

CW #1 was examined and released, with no serious injuries from the motor vehicle collision.

Evidence

The Scene

The area where the SO reported he first observed the Complainant’s motor vehicle was at, or near, the intersection of Eastchester Avenue and Bunting Road in the City of St. Catharines. Bunting Road is generally a four-lane asphalt roadway which permits travel in a north/south direction. At various intersections there are turning lanes incorporated into the roadway and the road becomes five lanes wide. There are no posted speed limit signs for northbound Bunting Road traffic between Eastchester Avenue and the MTO Drive Clean parking lot, making it an unposted 50 km/h zone, as defined by the Highway Traffic Act.

The following distances were measured using Google maps:
Eastchester Avenue to Dunkirk Road, which is comprised of vacant lots: 102m
Dunkirk Road to Dieppe Road, which is an industrial area and vacant lots: 106m
Dieppe Road to Welland Avenue, vacant, industrial, and commercial areas: 871m
Welland Avenue to MTO Drive Clean parking lot, commercial businesses: 163m
MTO Drive Clean parking lot to Gormley Cres., residential, commercial areas: 851m
Total 2.09 kms

According to the NRPS Detailed Call Summary, it took the SO approximately 61 seconds to travel 2.09 kilometres, which calculates to an average speed of 125.4 km/h.

Location of the collision between the Complainant and CW #1’s motor vehicle. Only CW #1’s motor vehicle is still seen at the location. Markers are seen outlining the movements of the Complainant’s motor vehicle and debris is seen on the roadway.

Location of the collision between the Complainant and CW #1’s motor vehicle.  Only CW #1’s motor vehicle is still seen at the location.  Markers are seen outlining the movements of the Complainant’s motor vehicle and debris is seen on the roadway.

Damage to CW #1’s motor vehicle.

Damage to CW #1’s motor vehicle.

Final resting place for the Complainant’s motor vehicle after it broke down on Gormley Crescent. 

Final resting place for the Complainant’s motor vehicle after it broke down on Gormley Crescent.

Scene Diagram

The scene of the Complainant’s arrest on Gormley Crescent was mapped and the following Total Station diagram was produced. 


Physical Evidence

GPS and Automatic Vehicle Locator (AVL) Data

During the course of this investigation, the SIU requested detailed GPS/AVL data from the SO’s police cruiser. On December 5, 2017, the NRPS responded advising that the GPS/AVL data was only tracked every 30 seconds.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but none were located.

Communications Recordings

Summary of the NRPS Communications Recording

The following is a summary of the master logger in the Communications Unit of the NRPS on November 16, 2017. These radio transmissions have been retrieved from operations channel one, beginning at 2:21 p.m. and concluding at 10:31 p.m.
MALE RADIO: 9-33, CIB-160.
DISPATCH: CIB-160.
MALE RADIO: Need a uniform car on Geneva. There’s a vehicle northbound; it’s being operated by (the Complainant), he’s a 10-63 [subject positive] for a robbery.
DISPATCH: Sorry, it’s being operated by who?
MALE RADIO: (The Complainant).
DISPATCH: 10-4. Are you in pursuit of that vehicle?
MALE RADIO: Negative. We’re just trying to catch up to him.
DISPATCH: 10-4.
MALE RADIO: (inaudible)
MALE RADIO: Last saw him Niagara and Church Street.
DISPATCH: Niagara and Church, 10-4.
MALE RADIO: You got a plate or make and model?
DISPATCH: ?
MALE RADIO: Street Crime can help you with that. It’s a blue Ford
Fiesta hatchback and the licence plate is (redacted), a good chance they may be heading back towards (address provided).
DISPATCH: Blue Ford Fiesta hatchback, marker (redacted), comes back on
Ford Blue, (registered owner and address provided).
MALE RADIO: 10-4. So, the driver is (the Complainant), he’s wanted for robbery, theft, times two, now flight and dangerous.
MALE RADIO: (inaudible) WO #5.
DISPATCH: WO #5.
MALE RADIO: What is the address they may be going back to?
DISPATCH: (address provided).
THE SO: I’m behind that vehicle, Bunting.
DISPATCH: (The SO) is behind the vehicle on Bunting.
MALE RADIO: Hey, we’re gonna’ set up on (the address provided), Street Crime’s gonna’ go there. (WO #5)’s gonna’ go to his res, but more than likely he’s gonna’ head that way, so maybe you guys want to (inaudible) around (inaudible), I appreciate it.
DISPATCH: Code 5. All units, Code 5.
THE SO: Pursuit.
DISPATCH: All units, Code 5. K9’s in pursuit of the vehicle, northbound
on Bunting.
THE SO: Approaching Welland, speeds are 120.
DISPATCH: Speeds 120, use cau ---
THE SO: Okay, he wrecked out, he wrecked out; right in front of
Popeye’s. I need a 52 (ambulance), he’s still northbound just past Roehampton, he’s got a flat tire.
DISPATCH: In front of Popeye’s, 10-4. Still northbound, has – has a flat
tire. Sergeant, copy.
MALE RADIO: 10-4.
THE SO: We’re on Hawthorne and Glen Ellen.
DISPATCH: Hawthorne and Glen Ellen.
THE SO: 52-4 (ambulance).
MALE RADIO: So, he hit another car in front of the ministry.
MALE RADIO: Everybody else, what’s the speed still?
DISPATCH: (SO), your speeds.
HEARD ON AIR: (oh, shit)
THE SO: I’m on Bunting, foot pursuit. I’ve got him apprehended
right now on the ground.

Materials obtained from Police Service

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

  • Detailed Call Summaries (x2);
  • List of Occurrences for the Complainant;
  • NICE Inform Reconstruction Results Table-Radio Transmissions;
  • GPS CAD from the SO’s police vehicle;
  • Notes of WO #s 1-8 and the SO; and,
  • Police Transmissions Communications Recording.

The SIU obtained and reviewed the following materials and documents from other sources:

  • Medical Records of the Complainant related to this incident.

Relevant Legislation

Sections 1-3, Ontario Regulation 266/10, Ontario Police Services Act -- Suspect Apprehension Pursuits

1. (1) For the purposes of this Regulation, a suspect apprehension pursuit occurs when a police officer attempts to direct the driver of a motor vehicle to stop, the driver refuses to obey the officer and the officer pursues in a motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle. 

(2) A suspect apprehension pursuit is discontinued when police officers are no longer pursuing a fleeing motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle. 

2. (1) A police officer may pursue, or continue to pursue, a fleeing motor vehicle that fails to stop,
(a) if the police officer has reason to believe that a criminal offence has been committed or is about to be committed; or
(b) for the purposes of motor vehicle identification or the identification of an individual in the vehicle. 
(2) Before initiating a suspect apprehension pursuit, a police officer shall determine that there are no alternatives available as set out in the written procedures of,
(a) the police force of the officer established under subsection 6 (1), if the officer is a member of an Ontario police force as defined in the Interprovincial Policing Act, 2009;
(b) a police force whose local commander was notified of the appointment of the officer under subsection 6 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part II of that Act; or
(c) the local police force of the local commander who appointed the officer under subsection 15 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part III of that Act. 
(3) A police officer shall, before initiating a suspect apprehension pursuit, determine whether in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle or the need to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle outweighs the risk to public safety that may result from the pursuit. 

(4) During a suspect apprehension pursuit, a police officer shall continually reassess the determination made under subsection (3) and shall discontinue the pursuit when the risk to public safety that may result from the pursuit outweighs the risk to public safety that may result if an individual in the fleeing motor vehicle is not immediately apprehended or if the fleeing motor vehicle or an individual in the fleeing motor vehicle is not identified.

(5) No police officer shall initiate a suspect apprehension pursuit for a non-criminal offence if the identity of an individual in the fleeing motor vehicle is known. 

(6) A police officer engaging in a suspect apprehension pursuit for a non-criminal offence shall discontinue the pursuit once the fleeing motor vehicle or an individual in the fleeing motor vehicle is identified. 

3. (1) A police officer shall notify a dispatcher when the officer initiates a suspect apprehension pursuit. 

(2) The dispatcher shall notify a communications supervisor or road supervisor, if a supervisor is available, that a suspect apprehension pursuit has been initiated

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

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

249    (1) Every one commits an offence who operates
(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

(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 249.1, Criminal Code -- Flight from police

249.1 (1)  Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances.

(2)  Every one who commits an offence under subsection (1)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.

(3)  Every one commits an offence who causes bodily harm to or the death of another person by operating a motor vehicle in a manner described in paragraph 249(1)(a), if the person operating the motor vehicle was being pursued by a peace officer operating a motor vehicle and failed, without reasonable excuse, and in order to evade the police officer, to stop the vehicle as soon as is reasonable in the circumstances.

(4)  Every person who commits an offence under subsection (3)
(a) if bodily harm was caused, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years; and
(b)  if death was caused, is guilty of an indictable offence and liable to imprisonment for life.

Section 252, Criminal Code -- Failure to stop at scene of accident

252 (1)  Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with 

(a) another person,
(b) a vehicle, vessel or aircraft, or
(c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

Section 343, Criminal Code -- Robbery

343 Every one commits robbery who
(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive weapon or imitation thereof.

Section 128, Highway Traffic Act – Rate of speed

128 (1) No person shall drive a motor vehicle at a rate of speed greater than,
(a) 50 kilometres per hour on a highway within a local municipality or within a built-up area;
(b) Despite clause (a), 80 kilometres per hour on a highway, not within a built-up area, that is within a local municipality that had the status of a township on December 31, 2002 and, but for the enactment of the Municipal Act, 2001, would have had the status of a township on January 1, 2003, if the municipality is prescribed by a regulation;
(c) 80 kilometres per hour on a highway designated by the Lieutenant Governor in Council as a controlled access highway under the Public Transportation and Highway Improvement Act, whether or not the highway is within a local municipality or built-up area;
(d) The rate of speed prescribed for motor vehicles on a highway in accordance with subsection (2), (5), (6), (6.1) or (7);
(e) The maximum rate of speed set under subsection (10) and posted in a construction zone designated under subsection (8) or (8.1); or
(f) The maximum rate of speed posted on a highway or portion or a highway pursuant to section 128.0.1 2005, c.26, Sched. A, s. 17 (1); 2006, c. 11, Sched. B, s. 6 (2); 2006, c. 32, Sched D, s. 4 (1).

(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;

Section 216 (1), Highway Traffic Act -- Power of police officer to stop vehicles/ escape by flight

216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.
(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, subject to subsection (3),
(a) to a fine of not less than $1,000 and not more than $10,000;
(b) to imprisonment for a term of not more than six months; or
(c) to both a find and imprisonment.
(3)  If a person is convicted of an offence under subsection (2) and the court is satisfied on the evidence that the person wilfully continued to avoid police when a police officer gave pursuit,
(a)  the person is liable to a fine of not less than $5,000 and not more than $25,000, instead of the fine described in clause 2 (a); and
(b)  the court shall make an order imprisoning the person for a term of not less than 14 days and not more than six months, instead of the term described in clause (2) (b); and
(c)  the court shall make an order suspending the person’s driver’s licence,
(i) for a period of five years, unless the subclause (ii) applied, or
(ii)  for a period of not less than 10 years, if the court is satisfied on the evidence that the person’s conduct or the pursuit resulted in the death of or bodily harm to any person.
(4)  An order under subclause (3) (c) (ii) may suspend the person’s driver’s licence for the remainder of the person’s life.

Analysis and Director's Decision

On November 16, 2017, at approximately 2:20 p.m., the Street Crime Unit (SCU) of the Niagara Regional Police Service (NRPS) attempted to stop and arrest the Complainant, who was operating a blue Ford Fiesta motor vehicle, for outstanding warrants for Theft and Robbery. The SCU followed the Complainant until such time as they felt it was safe to apprehend him. It was agreed that once the female passenger in the Complainant’s motor vehicle exited, the SCU would stop and arrest the Complainant.

Once the Complainant was alone in his motor vehicle, he was approached with lights and sirens activated, following which he pulled over to the side of the road on Welland Avenue near Water Street in the City of St. Catharines. Two uniformed and two plainclothes police officers dressed in suits approached the Complainant’s motor vehicle. None of the officers had any use of force options in hand, as it was not expected that the Complainant, based on his criminal history, would be either assaultive or resistant.

WO #3 approached the Complainant’s motor vehicle on the driver’s side and put his NRPS badge up against the window, identifying himself as a police officer, and ordered the Complainant to shut off his car and open the door. WO #3 then tried to open the door, but it was locked. Before WO #3 was able to advise the Complainant that he was under arrest, the Complainant sped away.

Immediately upon the Complainant speeding off, WO #5 radioed and advised all SCU officers involved that they were not to pursue the motor vehicle, but instead, officers were dispatched to various locations where the Complainant was known to frequent, in further attempts to locate and arrest him. Because of the radio band used by the SCU, these communications were neither recorded nor were they heard by uniformed officers not involved in the attempted arrest of the Complainant.

Following the failed arrest, however, WO #7 contacted dispatch and provided the following information, which would have been heard by all police officers on the regular band:

WO #7: Need a uniform car on Geneva. There’s a vehicle northbound; it’s being operated by (the Complainant), he’s a 10-63 (confirmed) for a robbery.
DISPATCH: Sorry, it’s being operated by who?
WO #7: (the Complainant).
DISPATCH: 10-4. Are you in pursuit of that vehicle?
WO #7: Negative. We’re just trying to catch up to him.
DISPATCH: 10-4.
WO #7: (inaudible)
WO #7: Last saw him Niagara and Church Street.
DISPATCH: Niagara and Church, 10-4.
WO #7: Street Crime can help you with that. It’s a blue Ford Fiesta hatchback and the licence plate is (redacted), a good chance they may be heading back towards (address redacted), South Queenston and Canals Parkway.
DISPATCH: Blue Ford Fiesta hatchback, marker (redacted), comes back on a 2014 Ford Blue, registered to a (name and address of registered owner redacted).
WO #7: 10-4. So, the driver is (the Complainant), he’s wanted for robbery, theft times two, now flight and dangerous.

The SO, the NRPS K-9 officer, having heard this communication over the police radio, then responded as follows:

The SO: K9, I’m behind that vehicle, Bunting.
DISPATCH: K9 is behind the vehicle on Bunting.
DISPATCH: Code 5. All units, Code 5.
The SO: K9, pursuit.
DISPATCH: All units, Code 5. K9’s in pursuit of the vehicle, northbound on Bunting.
The SO: Approaching Welland, speeds are 120.
DISPATCH: Speeds 120, use cau ---
The SO: Okay, he wrecked out, he wrecked out; right in front of Popeye’s. I need a 52 (ambulance), he’s still northbound just past Roehampton, he’s got a flat tire.
DISPATCH: In front of Popeye’s, 10-4. Still northbound, has – has a flat tire. …
The SO: We’re on Hawthorne and Glenellen.
DISPATCH: Hawthorne and Glenellen.
The SO: 52-4.
Unknown Officer: So, he hit another car in front of the ministry.
Unknown Officer: Everybody else, what’s the speed still?
DISPATCH: K9, your speeds?
The SO: I’m on Bunting, foot pursuit. I’ve got him apprehended right now on the ground.

While only two civilian witnesses came forward to be interviewed by the SIU investigators, of those, the first only observed the incident wherein the SCU had originally attempted to apprehend the Complainant before he fled, and the second was the driver of the motor vehicle with which the Complainant collided on Bunting Road.

CW #1 advised that he was travelling southbound on Bunting Road towards Welland Avenue in St. Catharines at approximately 1:30 to 2:40 p.m. on November 16, 2017; he described the roads as dry and asphalt, and traffic as moderate.

CW #1 heard a siren and observed a police vehicle coming northbound towards him. As the police vehicle approached the intersection of Bunting Road and Welland Avenue, with its lights flashing, CW #1 pulled over to the right side of Bunting Road and stopped.

Simultaneously, a large delivery type truck was also travelling northbound on Bunting Road and signaled to make a left turn into the Walmart parking lot. CW #1 only first saw the blue Ford Fiesta, which was also travelling northbound, when it was already within four to five feet of CW #1’s vehicle, as the delivery truck had obstructed his view of the car until the car passed the delivery truck on the driver’s side. The blue car was travelling at a high rate of speed, which CW #1 estimated to be approximately 100 to 120 km/h, then struck the southbound curb in front of CW #1’s vehicle, before colliding with the driver’s side of the front of CW #1’s vehicle. The Ford Fiesta then continued on, leaving the scene.

When the delivery truck completed its left turn, CW #1 observed the police vehicle pass by the rear of the truck. CW #1 estimated that the police vehicle was approximately 15 to 20 feet behind the blue car at that point.

While neither the Complainant or the SO made themselves available to be interviewed by SIU investigators, and the only civilian witness, CW #1, had only a very brief and limited observation of the police pursuit, there is no evidence as to the driving of the SO during his pursuit of the Complainant, other than that contained in his own notes and as revealed in the police communications recording.

The SO, in his notes, indicated that he heard the BOLO (Be-On-Look-Out) over the police radio at 2:23 p.m. from the Criminal Investigations Unit (presumably WO #7) describing a blue Ford Fiesta and its driver, who was wanted for robbery. This is confirmed by the radio communications recording, as reproduced above. As also confirmed in the recording, the SO’s notes indicate that no information was provided as to when the robbery had occurred or if there were weapons involved.

The SO noted that he heard dispatch provide the address on Bunting Road for the registered owner of the suspect motor vehicle, and he turned onto Bunting Road to look for the car. The SO noted that as he approached the intersection of Bunting Road and Eastchester Avenue, he observed a blue Ford Fiesta, which he believed to be the suspect vehicle, facing eastbound on Eastchester a few cars back from the red light at the intersection.

At 2:24 p.m., the SO turned onto Eastchester Avenue to confirm the licence plate on the vehicle when he observed the Fiesta proceed around the vehicles in front of him, turn left against the red light, and accelerate away. The SO was able to confirm that the licence plate on the Fiesta matched the vehicle being sought. The SO, who was operating a fully marked police vehicle with his service dog inside, then made a U-turn and activated his emergency roof lights and siren. The SO noted that he observed the Fiesta weaving from the right to the left lane, passing other motorists. The SO estimated that the Fiesta was a few hundred yards ahead of him.

The SO’s notes indicate that he advised dispatch that his speeds were 120 km/h when he was a few hundred metres from Welland Avenue; he estimated the speeds of the Fiesta in the range of 80 to 90 km/h. The SO indicated that he was driving at a greater speed than the Fiesta in order to close the gap and initiate a traffic stop.

This evidence is confirmed both by the communications recordings and the analysis of the NRPS detailed call summary which places the average speed of the police cruiser at 125.4 km/h during the 2.09 km duration of the pursuit.

The SO has noted that he considered the time of day, the location, the moderately high volume of vehicle traffic, and the speed of the Ford Fiesta, in determining that the potential hazards of a police pursuit outweighed the necessity of stopping the Fiesta, and he made the decision to abort the pursuit prior to his arriving at the intersection of Bunting Road and Welland Street.

Having made the decision to abort, the SO then slowed his speed but kept his emergency lighting system and siren activated in order to warn pedestrians and other motorists of the potential hazard posed by the subject vehicle. At that time, the SO attempted to get on the radio to notify the dispatcher that he had aborted the pursuit, but was unable to do so due to the high volume of radio traffic.

At 2:25 p.m., the SO has noted that he slowed down as he saw a white cube truck, travelling northbound on Bunting Road, initiate a left turn into the parking lot and observed that the Ford Fiesta was trying to pass the truck on the left side. The SO surmised that a collision was likely to ensue between the driver’s side of the truck and the Ford. This evidence, with respect to the white truck and the Ford Fiesta’s movements, appears consistent with the evidence of CW #1.

The SO noted that he then accelerated again, in anticipation of the collision and the likelihood that the driver of the Ford would then flee on foot, in which case he wanted to arrest the driver before he had the opportunity to flee. The SO also surmised that he was in a good position to make an arrest, as he had his service dog with him.

The SO observed the Fiesta apply its brakes and then make a sudden left turn to avoid colliding with the truck, resulting in the Fiesta entering the southbound lanes of traffic and colliding with CW #1’s motor vehicle, which was stopped in the southbound lanes of Bunting Road.

The SO observed the Fiesta to come almost to a complete stop and that its front driver’s side tire had deflated. The SO then immediately contacted dispatch and advised them of the collision and that an ambulance was required.

This transmission can be heard on the communications recording.

The SO, as he was preparing to exit his vehicle, then saw the Fiesta begin to drive away northbound on Bunting Road, despite its front end damage and the fact that it was now driving on the wheel rim.

The SO noted in his memorandum book that he then considered that the Fiesta would not be able to travel far in this condition, that its speed would be slow due to the damage, and that when it finally became fully inoperable, the driver would flee the scene on foot. He also considered the urgency to apprehend the driver, in the interests of public safety, and that it was still undetermined whether or not the driver was in possession of any weapons, possibly firearms, which had been used during the robbery. Taking all of these factors into account, the SO noted that he determined that his best course of action was to re-engage in a vehicular pursuit, which he then did.

The SO, now directly behind the Fiesta, followed it to Glenellen Drive, where it travelled onto a front lawn near the intersection with Gormley Crescent, then regained control and continued northbound on Glenellen Drive for another approximately 50 metres, while the SO followed with lights and sirens. He then observed the Fiesta fail to negotiate a turn and drive up onto the front lawn of a residence, where it came to rest.

The SO then pulled his police cruiser alongside the passenger side of the Ford Fiesta and exited his cruiser yelling the police challenge, “Police K-9! You’re under arrest! Stop running or I will send my dog.”

When the driver, the Complainant, continued to run, the SO opened the rear door of his cruiser while simultaneously again yelling out the K-9 challenge, before then releasing the dog and directing it to, “take him”, meaning to apprehend the Complainant, who had refused to stop running.

The SO indicated that he deployed his service dog for a number of reasons, including that the Complainant already had a good head start on him and he was not confident that he would be able to catch up to him on his own, that the Complainant could possibly still be in possession of whatever weapons he had used during the robbery which would put the SO at unnecessary risk, and that the dog would be able to apprehend the Complainant “faster, safer, and more effectively.” The SO continued to yell at the Complainant to stop, as the dog was pursuing him, but the Complainant refused to do so.

The dog then engaged the Complainant by biting him on the right lower leg and holding him, immediately taking the Complainant to the ground, where he held the Complainant until the SO caught up. The SO estimated that the dog engaged the Complainant for about three seconds, when the SO arrived and placed his hands on the Complainant’s back and told him to lay down on the ground with his arms spread out. The SO commanded the dog to release and he then stood back with the dog. He indicated that he did not wish to leave the dog engaged (i.e. biting the Complainant’s leg) because the Complainant appeared to be compliant at that point, and it would have caused further injury to the Complainant.

The SO noted that he was unable to handcuff the Complainant at that time, as he was hands on with his dog in order to control it, but he continued to direct the Complainant to stay down and not to move. The SO noted that he then called in to dispatch on his radio and advised of his location in order that back-up attend and assist in handcuffing the Complainant. This is confirmed by the communications recording.

When the Complainant, however, insisted on getting to his knees, despite the commands to stay down, the SO feared that the Complainant would either try to run or could pull a weapon, and as a result, the SO then drew his firearm and pointed it at the Complainant, warning him that if he did not lie down, the SO would again send his dog to bite him. When the Complainant continued to try to get to his feet to stand, the SO again directed the dog to engage the Complainant, and it again bit him on the lower right leg, at which point the Complainant went back to the ground and the SO immediately had the dog disengage. The SO indicated that on this occasion the dog had engaged the Complainant for one second before the SO gave him the police dog command to let go.

Immediately thereafter, a second officer arrived and handcuffed the Complainant, taking control of him while the SO returned the dog to his cruiser. Once the SO determined that the Complainant had been injured, he summoned an ambulance to assist, as he had at the previous accident scene.

WO #5 stated that the SO had relayed to him, following the arrest of the Complainant, the sequence of events leading up to the arrest; the sequence provided to WO #5, and relayed to the SIU, is consistent with the version in the SO’s notes.


Analysis

In coming to my decision with respect to this matter, I have divided the actions of the SO into two distinct areas: the vehicle pursuit, and the dog bites. While technically the vehicle pursuit, which caused neither the Complainant nor CW #1 serious injury, would not trigger the mandate of the SIU, as the dog bites did produce serious injury and an investigation was launched, I feel it necessary to address both areas in this decision.


The Pursuit

In hindsight, and having reviewed all of the evidence in this matter, and not just the information available to the SO at the time that he engaged the Complainant in a police pursuit, I accept that based on the limited information provided in the radio dispatch, that the SO could reasonably have been unaware that the SCU officers were executing outstanding warrants against the Complainant, as opposed to being in hot pursuit of a robber, possibly armed and in possession of evidence of the robbery, who was fleeing from a robbery that may have just occurred and for which he may still be in possession of a weapon, possibly a firearm, which was used to execute the robbery.

Furthermore, I find that it is unclear from the dispatch whether or not the suspect had been fully identified, which would have alleviated the need for a police pursuit. [1]

While there were no witnesses to the pursuit other than CW #1, whose observations were limited and very brief, the only evidence as to the majority of the pursuit comes from the SO himself, either by way of his notes, the information he relayed by way of the communications recording, or the information he provided to WO #5 after the fact.

On the record as I have it, then, there is no evidence that the driving of the SO at any time interfered with any other motorists and/or pedestrians, that he disobeyed any Highway Traffic Act provisions, other than by his rate of speed, or that his driving was in any way dangerous to other users of the roadway.

Additionally, the evidence from CW #1 was that the roads were dry asphalt and the traffic was moderate; the photos taken of the collision scenes indicate that the roads appeared to be in good condition and the weather was clear; and, the information from the NRPS Detailed Call Summary determined that the duration of the pursuit was 61 seconds and covered some 2.09 kilometres, with an average speed determined at 125.4 km/h in an un-posted 50 km/h zone.

I further note that examination of the pursuit route concluded that a large majority of the route covered consisted of vacant lots, parking lots, and industrial and commercial businesses, with only the last portion, approaching Gormley Crescent to Glenellen Drive, appearing to be residential.

There is no dispute that the SO was involved in a police pursuit with the Ford Fiesta being operated by the Complainant; however, the communications recording confirms that the SO was in compliance with the Ontario Police Services Act legislation in that he immediately notified the dispatcher that he was in a vehicular pursuit, that he continued to update the dispatcher as to his location and the speeds at which he was travelling, he notified the dispatcher of the collision with CW #1’s motor vehicle on Bunting Road, and the final resting place of the Complainant’s motor vehicle, as well as calling for ambulance services to assist on each occasion.

Furthermore, as indicated above, I have concluded, based on the information as contained in the communications recording, that the SO might reasonably have believed that “a criminal offence has been committed” pursuant to s. 2 (1) (a) of the relevant legislation.

Pursuant to Ontario Regulation 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits, s. 2(1):

A police officer may pursue, or continue to pursue, a fleeing motor vehicle that fails to stop,
(a) If the police officer has reason to believe that a criminal offence has been committed or is about to be committed; or
(b) For the purposes of motor vehicle identification or the identification of an individual in the vehicle.
(2) Before initiating a suspect apprehension pursuit, a police officer shall determine that there are no alternatives available ….
(3) A police officer shall, before initiating a suspect apprehension pursuit, determine whether in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle or the need to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle outweighs the risk to public safety that may result from the pursuit.
(4) During a suspect apprehension pursuit, a police officer shall continually reassess the determination made under subsection (3) and shall discontinue the pursuit when the risk to public safety that may result from the pursuit outweighs the risk to public safety that may result if an individual in the fleeing motor vehicle is not immediately apprehended or if the fleeing motor vehicle or an individual in the fleeing motor vehicle is not identified.

Furthermore, based on the information contained in the SO’s notes, it appears, pursuant to s. 2 (4), that the SO did reassess his decision to engage in a pursuit and decided to terminate when he considered the factors and decided that “the risk to public safety that may result from the pursuit outweighs the risk to public safety that may result if an individual in the fleeing motor vehicle is not immediately apprehended,” as he indicated that he had done when he decided to abort the pursuit prior to his arrival at the intersection of Bunting Road and Eastchester Avenue, just as the Ford Fiesta collided with CW #1’s motor vehicle.

While the SO did re-engage in a vehicle pursuit after the collision, I note that he only did so because he had determined that the vehicle was now only able to move much more slowly, that it would soon cease to be able to operate at all, and that, in his experience, the driver would then attempt to flee on foot and could be safely arrested.

The SO’s compliance with the Suspect Apprehension Pursuit legislation, however, is not dispositive of the matter. The question to be determined is whether or not there are reasonable grounds to believe that the SO committed a criminal offence, specifically, whether or not his driving rose to the level of being dangerous and therefore in contravention of s.249 (1) of the Criminal Code. As indicated earlier, it is clear that no bodily harm was occasioned by either of CW #1 or the Complainant as a result of the collision and therefore the offence of dangerous driving causing bodily harm (s. 249 (3)) does not come into play.

Pursuant to the Supreme Court of Canada in R. v. Beatty, [2008] 1 S.C.R. 49, 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” 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”.

In applying the reasonable person test, I must consider whether the SO’s driving was a marked departure from the standard of care that a reasonable person in his circumstances would observe. As such, I must determine if his driving amounted to a marked departure from that of a police officer attempting a vehicle stop of a suspect vehicle whose driver has been confirmed as having committed a robbery and has now evaded police and is driving dangerously (as per the information relayed in the communications dispatch as: “So, the driver is the Complainant, he’s wanted for robbery, theft, times two, now flight and dangerous.)

On a review of all of the evidence, it is clear that the SO was likely travelling at a rate of speed in the area of 70 km/h in excess of the speed limit when he pursued the Ford Fiesta, as indicated by his own radio transmission and the determined average speed of his vehicle over the distance travelled during the pursuit. However, based on all of the other evidence, it appears that road and weather conditions were good, traffic was moderate, the pursuit took place primarily in non-residential areas or vacant lots and commercial premises, with only the last extremely brief period, when the Complainant’s vehicle was already significantly damaged, taking place in a residential area, and the entire pursuit lasted no more than 61 seconds in total.

Furthermore, it is clear that the Complainant had already engaged in a manner of dangerous driving from the time when he fled from the attempted arrest by SCU officers, following which he ran at least one red light, and was driving at excessive rates of speed, prior to the SO ever engaging in a pursuit.

On this evidence, I find that it was the voluntary decision of the Complainant to try to outrun police and, in doing so, fleeing at a dangerous rate of speed with no regard for other people using the highway, which ultimately led to his colliding with CW #1’s vehicle. As such, I find that the evidence falls short of that required to satisfy me that I have reasonable grounds to believe that the SO’s driving rose to the level required to meet the necessary elements for dangerous driving, which would cause him to run afoul of the Criminal Code
 
In coming to my conclusion, I have considered the decision of the Supreme Court of Canada in R. v. Roy (2012), 281 C.C.C. (3d) 433, wherein the court held that a simple misjudgment could not reasonably support an inference of a marked departure, as follows:

A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

And further:

Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy" (para. 34). The Chief Justice expressed a similar view: "Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving" (para. 71).

And lastly:

Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

I have also carefully considered the decision of our Court of Appeal in R. v. Pezzo, [1972] O.J. No. 965, that excessive speed alone does not necessarily equate with dangerous driving. The following is an excerpt from that case, in which the Court found that the offence of dangerous driving was not made out despite the extremely high rate of speed at which the Appellant was travelling at the time:

With respect to the dangerous driving there is very little evidence. The Crown gave particulars of the dangerous driving and restricted itself to excessive speed. My brother Arnup and I are of the opinion that on the scanty evidence presented it would be unsafe to maintain a conviction. The learned trial Judge said:

• "On all the evidence before me I find that you took this car, had it in your possession, stole it, were driving it. The car tipped over, on the evidence before me, after a skid mark of some 98 feet, flipped over on its back ... for another 42 feet skid mark which indicates a great deal of speed, a collision with the wall. On all the evidence before me I find you guilty of the charge of theft of a motor vehicle and dangerous driving."

With respect to the learned trial Judge we are not satisfied that the evidence clearly discloses that the appellant was driving in such a manner that the driving can be characterized as dangerous driving within the meaning of the relevant section of the Code. We would accordingly allow the appeal against conviction and direct an acquittal on the charge of dangerous driving.

And the subsequent decision in R. v. M.K.M., [1998] O.J. No. 1606, that in certain circumstances, excessive speed alone may be sufficient to establish dangerous driving:

Depending on the context in which it occurred, excessive speed can amount to a marked departure from the standard of care of a prudent driver. Here the context included the following: the accident occurred on a busy highway in a built up area of Mississauga, and just before the accident the appellant had been driving aggressively and engaging in "horseplay" on the road with her co-accused. Although their estimates of the appellant's driving speed varied, all of the independent witnesses testified that she was driving too fast. The evidence of … all supported the trial judge's conclusion that the appellant was driving well above the speed limit and too quickly to avoid any unexpected occurrence on the highway. Indeed, Miss Black gave evidence that the appellant lost control of her car because she was driving too fast.

Having fully considered the edicts from our Court of Appeal and the Supreme Court of Canada as to the factors to consider in assessing whether or not I have reasonable grounds to believe that there is sufficient evidence to make out a charge of dangerous driving, I do not find that it is made out on this record.

Taking into account that the only evidence I have which would support a charge of dangerous driving would be that of a high rate of speed, countered by the evidence that the officer was only driving at that high rate of speed for a duration of less than 61 seconds, and that the test of a reasonable driver requires an assessment of what would be reasonable in the case of a police officer attempting to stop and investigate a motor vehicle which had been confirmed as having been involved in a robbery, I must conclude that, in the absence of some evidence that the SO was driving in a dangerous manner other than the mere high speed at which he travelled, I find that the evidence is not sufficient to satisfy me that I have reasonable grounds to believe that the actions of the SO amounted to a ‘marked departure’ rather than a ‘mere departure’ of the standard of care of a reasonable police officer in these circumstances.


The Arrest of the Complainant

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information in the possession of the SO that the driver of the Ford Fiesta was arrestable for offences of robbery, theft under (x2), flight from police, and dangerous driving, and that the robbery offence had been confirmed (10-63), that the SO had more than reasonable grounds to believe that the Complainant was the suspect being sought and that he was arrestable for the offences indicated. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the SO deploying his service dog to catch and stop the Complainant, who was known to have already fled from police once, who was wanted for the serious violent offence of robbery for which he might reasonably have been suspected to have possessed a weapon, and who, after engaging the SO in a vehicular pursuit and showing no indication of a desire to give himself up, was now running from police despite the warnings issued by the SO that the dog would be released if he did not stop, I find that the SO’s decision to deploy his dog was not only justified in the circumstances, but was both prudent and the option least likely to place the SO himself at risk of harm.

Furthermore, once the Complainant was down on the ground and appeared to be cooperating, the SO immediately commanded his dog to release. Even though the dog was deployed to engage with the Complainant a second time when that cooperation ended, and the Complainant seemed on the verge of again fleeing, the dog was again almost immediately ordered to disengage after biting the Complainant a second time.

As such, where the dog was only engaged on the first occasion for three seconds, and on the second occasion for one second, following ample warnings issued to the Complainant, and there was no further use of force once back-up arrived, the Complainant was handcuffed, and the risk of flight removed, I find that the SO acted reasonably and that his actions did not amount to an excessive use of force, despite the serious injury sustained by the Complainant. Clearly, had the Complainant heeded the SO’s warnings and not continued to flee, the dog would never have been deployed and the Complainant would have been arrested without incident.

I find that the jurisprudence of the Supreme Court of Canada that I am not to hold police to an unattainable standard of perfection, as enunciated in their decision in R. v. Nasogaluak [2010] 1 S.C.R. 206, is particularly apt in these circumstances. It reads as follows: 
 
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

In the final analysis, I am satisfied for the foregoing reasons that both the pursuit and the ultimate apprehension of the Complainant, and the manner in which they were carried out, were lawful notwithstanding the injury which the Complainant sustained. I am, therefore, satisfied on reasonable grounds on this record that there is no evidence that the actions of the SO fell outside of the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.


Date: November 30, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) The only communication mentioning an identification used the Complainant’s first name, but no surname or other distinct information that would have positively identified the Complainant. [Back to text]