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SIU Director’s Report - Case # 18-OVI-008

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into a serious injury sustained by a 55-year-old female on January 13, 2018.

The Investigation

Notification of the SIU

On January 13, 2018, at 10:30 a.m., the Peterborough Police Service (PPS) contacted the SIU and relayed the following. At about 7:21 a.m., January 13, 2018, a uniformed PPS officer noticed a suspicious vehicle on George Street in Peterborough. The officer activated his emergency equipment at Sherbrooke Street. The vehicle continued without stopping. The vehicle turned eastbound on Charlotte Street and then north on Water Street. At the intersection of Water Street and Parkhill Road, the vehicle was involved in a collision with a second vehicle.

The driver of the first vehicle was arrested for impaired operation of a motor vehicle. The occupant of the second vehicle, the Complainant, was originally walking about after the collision. She was transported to Peterborough Regional Health Centre as a precaution; however, she was not thought to be injured at the time. Several hours later, the Complainant was diagnosed as having suffered a fractured knee. The collision scene had been investigated and cleared by PPS officers.

The Team

Number of SIU Investigators assigned: 2

Complainant:

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

Civilian Witnesses

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

Witness Officers

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

Subject Officers

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


Incident Narrative

On Saturday, January 13, 2018, at approximately 7:20 a.m., the Subject Officer (SO) observed Civilian Witness (CW) #2 execute a u-turn in a white Mercedes SUV on George Street in Peterborough and travel in the wrong direction on a one-way street. The SO followed CW #2 with his emergency lights and sirens activated, but CW #2 did not stop. The SO reported over the police radio that CW #2 had fled from him and pursued CW #2 onto Water Street. Witness Officer (WO) #1 and WO #3 were parked on Water Street, and heard the SO’s report and also joined the pursuit of CW #2, who they estimated to be travelling at a speed of over 100 km/h (over double the speed limit).

The pursuit ended when CW #2 ran a red light at the intersection of Water Street and Parkhill Road and collided with the side of the Complainant’s vehicle. The Complainant sustained serious injuries as a result of the collision.

Evidence

The Scene

The pursuit route covered a total distance of 1.6 km. The route started on George Street which is a one-way southbound street. The pursued vehicle had been parked facing south and made a U-turn to travel north in the wrong direction. The pursued vehicle travelled one or two blocks north before turning east (right) for one block and then north (left) to continue north on Water Street. The police vehicle operated by the SO followed the SUV for the entire route in the same manner but at a slower pace. They drove through intersections at King Street, Charlotte Street, Simcoe Street, Hunter Street, Brock Street, Murray Street, McDonnel Street, London Street, Dublin Street, Edinburgh Street, Antrim Street and then to Parkhill Road. Seven of the intersections are controlled by traffic lights.

The speed limit is posted at 50 km/h throughout the route.

Communications Recordings

The radio recording started with the SO reporting a vehicle taking off from him, described as a white SUV, travelling northbound on Water Street approaching the police station.

His radio transmission is followed by two radio transmissions from WO #1.

WO #1 reported the car was approaching Parkhill Road and described it as “really flying” and secondly reported a collision at Parkhill Road as a T-bone impact with another car.

The time between the first report by the SO and the report of the collision by WO #1 is 21 seconds.

Materials obtained from Police Service

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

  • Alcohol Influence Report;
  • Arrest Report;
  • Event Details;
  • Fail to Stop Report;
  • MVC Report;
  • Notes of WO #1, WO #2 and WO #3;
  • PPS Radio Communications;
  • PPS Witness Statement - CW #3 - Jan 13, 2018;
  • PPS Witness Statement - CW #4 - Jan 22, 2018; and
  • PPS Witness Statement - CW #5 - Jan 13, 2018.

Relevant Legislation

Section 249 (3), 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 matter 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 128(13)(b), Highway Traffic Act -- Police vehicles and speeding

128 (13)  The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,
(a) a fire department vehicle while proceeding to a fire or responding to, but not returning from, a fire alarm or other emergency call; 
(b) a police department vehicle being used in the lawful performance of a police officers’ duties; 

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

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

Analysis and Director's Decision

On the morning of Saturday, January 13, 2018, the Subject officer (SO) attempted to pull over Civilian Witness (CW) #2 who was driving a white Sport Utility Vehicle (SUV) northbound on a one-way street that travels southbound. CW #2 did not stop and the SO followed him in a short, high-speed pursuit through several intersections in downtown Peterborough. The pursuit ended approximately 21 seconds after it began when CW #2 ran a red light and collided with a vehicle operated by the Complainant. The Complainant was seriously injured and the SIU was notified. The SIU’s investigation consisted of interviews with the Complainant, three CWs and three Witness Officers (WOs). The driver and passenger of the white SUV declined to provide a statement, as did the subject officer. However, the subject officer made remarks to two WOs immediately after the collision which were consistent with the CW statements. After a careful consideration of all the evidence, I am unable to find reasonable grounds to believe that the SO committed a criminal offence in relation to the Complainant’s injury.

From the uncontradicted evidence it is clear that on January 13, 2018, at around 7:20 a.m., CW #2 was operating a white Mercedes SUV on George Street in Peterborough. George Street is a one-way street that travels southbound. CW #2 completed a u-turn in front of the SO, and then drove northbound on George Street. The SO, who was operating a marked PPS cruiser, activated his cruiser’s lights and attempted to pull CW #2 over.

The SO followed CW #2 eastbound onto a side street and then northbound onto Water Street, a one-way street that travels northbound. Traffic was light on Water Street and there was no pedestrian traffic. At some point during the pursuit, the SO reported via the radio that a vehicle “took off” from him and was travelling northbound on Water Street.

WO #1 and WO #3 were in the parking lot of a police station at Water Street and McDonnel Street when they heard the SO’s report over the radio. Both officers saw the SUV and estimated its rate of speed to be over 100 km/h. WO #1 pulled out of the parking lot to pursue the SUV and WO #3 followed behind him. WO #1 was the closest police cruiser to the SUV, followed by the SO and then WO #3. At the same approximate moment, WO #2 looked out of the window of the police station and saw a PPS cruiser going northbound on Water Street with its emergency siren and lights activated. He reported that the Peterborough Police Service cruiser was travelling faster than the posted 50 km/h speed limit.

WO #1, the SO and WO #3 followed the SUV northbound on Water Street. The SUV was expanding the distance on the officers and was three blocks away from the closest cruiser. The Complainant was proceeding through the intersection at Parkhill Road and Water Street. When she was midway through the intersection, the white SUV travelled through the intersection, running a red light, and collided with her vehicle. Within a few seconds, WO #1, the SO and WO #3 were on scene. WO #1 reported over the radio that there was a collision. The total time between when the SO reported that the SUV was on Water Street and the collision was 21 seconds.

After the collision, CW #2’s vehicle stopped in a parking lot close to the intersection, he exited the vehicle and fled from the police on foot. WO #1 chased CW #2 for two blocks before he apprehended him. CW #2 said, “I’m sorry, I was drinking last night and scared. I have been in trouble before.”

Based on these circumstances, the only relevant criminal charge that could apply is dangerous driving causing bodily harm contrary to s. 249(3) of the Criminal Code. The test for dangerous driving is twofold. The accused’s manner of driving, viewed objectively, must be “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place in 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.” The driving must also demonstrate a marked departure from the standard of care a reasonable person would observe in the accused’s circumstances (R. v. Beatty, [2008] 1 S.C.R. 49).

On this evidence, I am unable to find that the SO’s driving was objectively dangerous. While witnesses estimated that the SO was travelling at a rate of speed close to double the speed limit, s. 128(13)(b) of the Highway Traffic Act allows police officers to speed in the lawful execution of their duties. The SO was acting in accordance with his duties when he attempted to stop CW #2, who was driving in the wrong direction on a one-way street and posed a clear danger to the public. In concluding that the manner of driving by the SO was not objectively dangerous I am cognizant that the chase occurred in the wrong direction of the one-way traffic of Water Street on a Saturday morning. However, that being said, at that hour on a Saturday morning there was limited risk associated with oncoming traffic. On all accounts, the weather and road conditions were good, traffic was light or non-existent and there were no pedestrians present. The SO also had the emergency lights and siren activated on his PPS cruiser, signaling his presence to other traffic. While I am concerned that the pursuit lasted through several intersections, I am unable to conclude that I have reasonable grounds to conclude that the SO was driving dangerously having regard to the totality of the circumstances.

I similarly cannot conclude that the SO’s conduct during the pursuit amounted to a marked departure from the standard of care of a reasonable police officer. In coming to this conclusion, I acknowledge that neither the SO nor the other officers involved in the pursuit notified a dispatcher after initiating the pursuit as required by O. Reg. 266/10: Suspect Apprehension Pursuits. However, a marked departure from the conduct of a reasonable police officer is a high threshold, which requires a greater amount of negligence than that required to make out a conviction for careless driving under the Highway Traffic Act. On all the evidence, the pursuit that led to the Complainant’s injuries was extremely short, which would have made it challenging for the officers to notify dispatch of the pursuit and reassess the circumstances to conclude whether to continue the pursuit. There was simply very little time to make these crucial decisions. In such circumstances I cannot find the SO’s decision to continue pursuing a vehicle that potentially represented a danger to public safety represented a marked departure from the conduct of a reasonable police officer.

After a careful consideration of the evidence, I am unable to find reasonable grounds to believe the SO was criminally culpable for the collision. It was CW #2’s decision to drive erratically and flee the police, possibly while impaired, [1] which resulted in the Complainant’s injuries. While some aspects of the pursuit are concerning, having regard to the totality of the circumstances, I do not believe the SO’s conduct during the pursuit meets the threshold required to establish dangerous driving causing bodily harm. The file will be accordingly closed.


Date: November 15, 2018




Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) If his utterances during his arrest are given any weight. [Back to text]