SIU Director’s Report - Case # 18-OVI-048
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Contents:
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.
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 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.
- 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 reportedly sustained by a 20-year-old man (the Complainant) following an attempted vehicle stop by police on February 19, 2018.
“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 reportedly sustained by a 20-year-old man (the Complainant) following an attempted vehicle stop by police on February 19, 2018.
The Investigation
Notification of the SIU
At approximately 11:45 p.m. on February 19, 2018, the Guelph Police Service (GPS) notified the SIU of the Complainant’s vehicle injury.The GPS reported that on February 19, 2018, at about 9:18 p.m., the Subject Officer (SO) attempted to stop the Complainant, who was operating a vehicle on Hanlon Parkway in the City of Guelph. When the SO activated his emergency lighting, the Complainant’s vehicle sped away. The police officer located the Complainant after he had gone off the roadway just south of Woodlawn Road West. An unknown passenger in the vehicle fled on foot and was not apprehended. The Complainant was taken to the hospital where initial testing failed to disclose any injuries as a result of which the scene was processed by the GPS and released, prior to the notification of the SIU.
On February 20, 2018, the GPS again contacted the SIU and advised that following a CT scan, the complainant was diagnosed as having suffered a compression fracture in his T-12 and a transverse process fracture to his T-1 (thoracic vertebrae in the spinal column). He was released from the hospital and held for a bail hearing.
The Team
Number of SIU Investigators assigned: 4 Number of SIU Forensic Investigators assigned: 1
Number of SIU Collision Reconstructionist assigned: 1
Complainant:
20-year-old male interviewed, medical records obtained and reviewedCivilian Witnesses
The passenger in the Complainant’s motor vehicle fled the scene and was never identified, nor did he come forward to be interviewed. No other civilian witnesses were identified or came forward.Witness Officers
WO #1 Interviewed, notes received and reviewed WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
Subject Officers
The SO Interviewed, but declined to submit notes, as is the subject officer’s legal right. Incident Narrative
On February 19, 2018, the SO noticed a Dodge motor vehicle at a local motel suspected of being a location where illegal activities were carried out. The SO decided to check the licence plate and, while awaiting a response from the dispatcher, followed the Dodge to a gas station at 415 Woodland Road West in the City of Guelph.
The SO learned that the person associated to the Dodge motor vehicle was a suspended driver and decided to perform a vehicle stop in order to investigate the driver. The SO attempted to initiate a traffic stop after the Dodge had left the gas station, by activating the emergency lighting system on his police cruiser, following which the Dodge immediately accelerated and sped away.
The SO initially pursued the Dodge motor vehicle, but slowed when he lost sight of the car. A short distance later, the SO located the Dodge after it had been involved in a single vehicle collision and was stuck in the ditch/median of the Hanlon Highway (or Hanlon Parkway). The SO arrested the Complainant, but the passenger was able to flee the scene and make good his escape. The passenger in the motor vehicle was never identified. The Complainant was transported to the hospital.
Nature of Injuries / Treatment
The Complainant underwent a Computed Tomography (CT) scan and was diagnosed with an “undisplaced fracture involving the right transverse process of the T-1” (thoracic vertebrae of the spinal column). No treatment was required and the Complainant was discharged from hospital.
The SO learned that the person associated to the Dodge motor vehicle was a suspended driver and decided to perform a vehicle stop in order to investigate the driver. The SO attempted to initiate a traffic stop after the Dodge had left the gas station, by activating the emergency lighting system on his police cruiser, following which the Dodge immediately accelerated and sped away.
The SO initially pursued the Dodge motor vehicle, but slowed when he lost sight of the car. A short distance later, the SO located the Dodge after it had been involved in a single vehicle collision and was stuck in the ditch/median of the Hanlon Highway (or Hanlon Parkway). The SO arrested the Complainant, but the passenger was able to flee the scene and make good his escape. The passenger in the motor vehicle was never identified. The Complainant was transported to the hospital.
Nature of Injuries / Treatment
The Complainant underwent a Computed Tomography (CT) scan and was diagnosed with an “undisplaced fracture involving the right transverse process of the T-1” (thoracic vertebrae of the spinal column). No treatment was required and the Complainant was discharged from hospital. Evidence
The Scene
Woodlawn Road West is a four lane paved asphalt road which permits two lanes of eastbound and two lanes of westbound vehicular movement. The lanes are delineated with intermittent white paint marks and concrete curbs on the outside edges of the road. A left turn lane delineated with solid yellow paint, and intermittent yellow paint lines on the edges of the lane, is located in the centre of the road. At the eastbound approach to Hanlon Parkway there is an additional right turn lane which enters a dedicated right turn ramp assisting eastbound to southbound movement onto Hanlon Parkway. At the westbound approach there is an additional left turn lane delineated with white left turn arrows painted on the road surface and solid white paint lines.Hanlon Parkway is a four lane paved asphalt expressway which intersects Woodlawn Road West at near right angles and extends only to the south. The intersection is controlled with a functioning traffic signal. Hanlon Parkway permits two lanes of northbound and two lanes of southbound traffic. The lanes permitting travel in the same direction are delineated with intermittent white painted lines as well as solid white painted fog lines on the outside edge and solid yellow painted fog lines on the inside edge of the road. Opposing traffic lanes are delineated with a grassed boulevard, measured with a walking stick at 14.7 metres wide. The grassed boulevard has a ditch in the centre with embankments on each side. The artificial lighting is located on the south side of Woodlawn Road West and on both sides of Hanlon Parkway.
Retail and light commercial development is located on both sides of Woodlawn Road West. The posted speed limit on Woodlawn Road West is 60 km/h. The speed limit on Hanlon Parkway at the intersection with Woodlawn Road West is 70 km/h. The Hanlon Expressway travelled north/south and intersected with Woodlawn Road, travelling east/west. The intersection was controlled by a traffic signal. Both roadways were paved, level, and in good condition. The roadway markings were clear and in good condition.
The only evidence at the scene was two tire marks which followed a southeast path from the east edge of the southbound passing lane of Hanlon Parkway. It extended into the centre grass median towards a gouge furrow on the east bank of the grass median. The left tire mark started at a point 24.5 metres south of the south edge of the pavement of Woodlawn Road West and followed a northeast path ending at the edge of the west embankment of the median, 27.2 metres south of the south edge of the pavement of Woodlawn Road West. No further tire marks were evident. A furrowed gouge 4.4 metres long and 1.0 metre wide was centred 35.5 metres south of the south edge of the pavement of Woodlawn Road West and 5.2 metres west of the west edge of the pavement of the northbound passing lane of Hanlon Parkway. There were no further marks in the short distance between the tire marks and the furrowed gouge.
Location where Complainant’s vehicle left the roadway and entered the ditch (vehicle seen in photo is unrelated to incident)
Tire marks heading into the centre grass median towards a gouge furrow on the east bank of the grass median, leading to the resting place of the Complainant’s motor vehicle.
Google Maps image of location of collision, which is marked on the map with an X.
Physical Evidence
Both the Complainant’s motor vehicle and the SO’s police vehicle were fully examined.Forensic Evidence
No submissions were made to the Centre of Forensic Sciences.Expert Evidence
SIU Reconstructionist’s Report Conclusions:
On February 19, 2018, just before 9:18 p.m., the SO operated a Guelph Police Service police vehicle eastbound on Woodlawn Road West, in pursuit of a Dodge motor vehicle operated by the Complainant which was travelling at a maximum speed of 124 km/h.According to the Global Positioning System [GPS] data, the SO drove in the easterly direction for 40 seconds with an average speed of 62.3 km/h. This calculates to a traveled distance of 692 metres. Assuming the last speed of 12.8 km/h was at the collision scene on Hanlon Parkway and using the Google Earth measuring tool, these calculations place the police vehicle about 120 metres east of the Petro Canada gas station when it first exceeded the speed limit of 60 km/h. As a further reference, the speed limit was first exceeded by the police vehicle about 290 metres west of the front entrance to the Volkswagen dealership at 359 Woodlawn Road West, where closed circuit television (CCTV) cameras permitted time/distance calculations.
The time/distance calculations indicate an average speed for the SO’s police cruiser of 91 km/h in an area just east of the Volkswagen dealership, which is about 300 metres west of the collision site. The police cruiser’s speed was maintained for no more than five seconds and the SO was 3.8 seconds behind the Dodge driven by the Complainant.
At the intersection of Hanlon Parkway, the Complainant braked and slowed, as he attempted to turn right. The Dodge was driven out of control into the grassed centre median at about 50 km/h and became airborne momentarily. The Complainant was not wearing a seat belt. It is unknown precisely how far the police cruiser was from the Dodge when the Dodge entered the centre median, however, it was confirmed that at no time was there any contact between the two vehicles.
Video/Audio/Photographic Evidence
Summary of the Petro Canada’s CCTV:
A car drives from the street into the gas station and a fully marked police cruiser follows it. Both vehicles drive to different parts of the station.The car, now determined to be black in colour, drives toward the station’s exit and the police cruiser follows the car. The reflection of the emergency lights is seen.
Summary of the Volkswagen Dealership Video:
A set of tail lights is seen travelling at a high rate of speed, when compared to the other traffic, heading eastbound on Woodlawn Road West. About ten to 15 car lengths behind these tail lights are what appear to be emergency lights travelling in the same direction. The emergency lighting is possibly from a GPS cruiser which is not travelling as fast as the initial set of tail lights, but appears to be about two to three seconds behind.Summary of the SIU route video:
The route commenced from the area of the Petro Canada gas station at 415 Woodlawn Road West at the intersection of Woodlawn and Imperial Roads, and travelled eastbound on Woodlawn Road towards the Hanlon Expressway. There is a posted speed limit of 60 km/h throughout this light industrial area. The total distance was recorded as being .9 kilometres.Communications Recordings
Summary of Police Transmissions:
The SO is heard to report that he was trying to make a traffic stop of a vehicle exiting the gas station on Woodlawn Road. The vehicle did not stop and was southbound on Hanlon Parkway. The vehicle went into the median on Hanlon Parkway and the driver was fleeing on foot.The SO reported that one of the men is in custody and a second man ran towards the Comfort Inn. The driver was identified as the Complainant; he had no identification with him. The Complainant claimed he did not know who the other man was.
The SO asked for the EMS to attend, because the Complainant complained of head pain.
Witness Officer (WO) #3 accompanied the Complainant to the hospital.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the GPS:- Arrest and Prisoner Report;
- Drug Exhibit List;
- Police Transmissions Communications Recording;
- GPS data from the SO’s police vehicle;
- Event Details Report;
- Motor Vehicle Collision (MVC) Report;
- Notes of WO #s 1-3;
- Occurrence Summary;
- Procedure: Suspect Apprehension Pursuits;
- Procedure: Arrest;
- Training Record of the SO;
- Vehicle Maintenance Logs; and,
- Vehicle Seizure Report.
The SIU obtained and reviewed the following materials and documents from other sources:
- Medical Records of the Complainant related to this incident;
- CCTV footage from the Volkswagen Dealership located at 359 Woodlawn Road West; and
- CCTV footage from the Petro Canada Gas Station on Woodlawn Road.
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 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 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 February 19, 2018, the Subject Officer (SO), of the Guelph Police Service (GPS), was on routine patrol in uniform and in a marked police vehicle, when at approximately 9:00 p.m., he parked his police vehicle in the area of a motel on Woodlawn Road West in the City of Guelph, a premises suspected by the GPS to be a location where drug activities commonly took place. He parked in such a position as to not be seen by persons entering and exiting the motel.
The SO observed a Dodge Journey motor vehicle enter the parking lot and park, and he queried the licence plate on his in-car computer. As he waited for a response to his query, the Dodge left the parking lot and drove to a Petro Canada gas station and store, and the SO followed while keeping a discreet distance. His query revealed that the vehicle was registered to a woman, while he had observed that the driver on this date was a male. Moreover, the query further indicated that a 29 year old male had previously been stopped while driving that same motor vehicle and that that male’s driver’s licence had been found to be under suspension. As a result of this information, the SO decided to stop and investigate the motor vehicle, as he was fully entitled to do pursuant to s. 216 of the Highway Traffic Act (HTA).
The Complainant, the driver of the Dodge Journey, observed a police cruiser, with its emergency lighting activated, behind his vehicle as he left the gas station. The Complainant advised that while he initially attempted to pull over to the side of the road for the police cruiser, his passenger, a male who he indicated he had picked up at the side of the road, told him not to stop as he, the male, had a gun. As a result, the Complainant accelerated and drove off, with the police cruiser, with lights and sirens activated, following behind him.
The Complainant estimated his rate of speed at approximately 140 km/h as he tried to evade the police vehicle, and that he drove for about three to four minutes, with the cruiser close behind at all times, when he lost control of his vehicle while making a right-hand turn, entered the median ditch on a divided roadway, and came to a stop. Both the Complainant and his unidentified male passenger then immediately exited the vehicle and began to run away.
The Complainant said that as he ran across the road, the SO pursued him on foot, and yelled at him to stop or he would be shot, whereupon the Complainant put his hands in the air and he was arrested and handcuffed. The Complainant told the officer that he did not feel well and was in pain, and an ambulance was called and he was taken to hospital. The Complainant indicated that a CT scan at the hospital revealed that he had sustained a fractured rib, a fractured spine, and a neck injury.
The Complainant’s medical records, which were obtained with his consent, indicate that the lumbar spine radiographs revealed, “Mild anterior height loss at T12. A compression fracture cannot be ruled out.” However, the CT scan of the spine only confirmed, “an undisplaced fracture involving the right transverse process of T1. No cervical spine fractures are seen”, from which I infer that despite a T12 compression fracture being initially suspected, it was disproven after the CT scan. While the medical records contradict the Complainant’s indication of his injuries in his statement to the SIU, I have not considered this inconsistency as going to the Complainant’s credibility, but rather attribute it to possible confusion on his part revolving around the medical terminology.
During the course of this investigation, there were only two witnesses to the events that preceded the single vehicle collision involving the Complainant, that being the Complainant himself, and the subject officer, the SO. While three other police witnesses were interviewed, none observed the actual event leading up to the collision, although each heard from the SO as to what had occurred, and their recounting of events as to what the SO told them was consistent with the evidence provided by the SO in his interview with SIU investigators. Additionally, the SIU had access to the Global Positioning System [GPS] data from the SO’s police vehicle, the police communications recording, and closed circuit television (CCTV) from two commercial premises along the route taken by the Complainant and the SO.
The dispatch records confirm that at 9:12:49 p.m. on February 19, 2018, the SO queried the licence plate of the Dodge Journey being operated by the Complainant, and that at 9:12:52 p.m., the SO viewed the response on his in-car computer. At 9:16:38 p.m., dispatch was advised that the Dodge Journey had gone into the median.
The CCTV from the Petro Canada station confirms that the Dodge Journey entered the parking lot at 00:05 seconds into the video (there being no accurate clock on the video), with the police cruiser entering at 00:06. The Dodge parks in front of the store and the driver exits and enters the store where he appears to try and make a purchase, but leaves without buying anything; he is in the store for approximately 18 seconds and then exits and re-enters his vehicle, driving out of the parking lot 20 seconds after entering. The police cruiser, which had reversed into a parking space on the opposite side of the lot, is seen to quickly exit behind the Dodge. Although his lights are not yet activated as he is seen exiting, the reflection from the emergency lighting system can be seen as soon as the police vehicle is out of sight, at 00:30 into the video.
According to the timer on the CCTV footage from the Volkswagen dealership, a very fast moving vehicle, which appears to be travelling at twice the speed of the other vehicles on the roadway, is seen to enter the screen at 9:13:53 p.m., with the police cruiser, with lighting activated, entering the screen three seconds later, at 9:13:56 p.m. (It is impossible to tell if the clock on the video is accurate.)
The communications recording reveals the SO calling in (at 00:00 according to the timer) and indicating the following:
It is noteworthy that there are no gaps while the SO is speaking, and from the time that he reports that he has just tried to perform a traffic stop until the time that he reports the car going into the median, no more than 11 seconds pass.
According to the SO, he parked and observed the Dodge while the driver got out and entered the Petro Canada gas station, and he received the response to his computer query while the Dodge simultaneously left the gas station heading eastbound on Woodlawn Road West, which would put the time, according to the computer terminal data from his cruiser, at 9:12:52 p.m. The CCTV footage from the Petro Canada station confirms the SO’s evidence that he then engaged his emergency lighting system. The SO estimated that he was approximately one car length behind the Dodge when he engaged his emergency lighting system, following which the Dodge moved from the fast lane, into the slow lane of traffic, and then sped away. At that time, the SO engaged his siren, but as the Dodge increased its speed, he turned off both his lights and siren and did not pursue the vehicle.
The SO described observing the Dodge weaving in and out of traffic prior to the SO losing sight of the vehicle altogether. Despite the Suspect Apprehension Pursuit policy, the SO did not pull over and record his mileage, since, in his view, he had never been involved in a pursuit with the Dodge. Instead, with both his lights and siren turned off, the SO continued on in the same direction as he had last seen the Dodge travelling, when, at approximately 9:16 p.m., he came across the vehicle in the median between the north and southbound lanes of traffic on Hanlon Parkway, just south of Woodlawn Road West, where it was stuck and the Complainant was attempting to move the vehicle.
The SO then turned his emergency lighting system back on for safety, following which a civilian witness told him that two occupants had fled from the car, and pointed him westbound towards a fence, where he observed the Complainant running. He observed the Complainant to slip and fall in the snow, whereupon the SO ran up to him, and arrested and handcuffed him. The Complainant was compliant with the police commands at that point. The Complainant advised the SO that he had picked up his passenger at the motel but could not identify him; no mention was made of a gun. A significant amount of marijuana and cocaine was found inside the motor vehicle.
Both Witness Officer (WO) #2 and WO #1 spoke to the SO after the collision and he relayed to them what had occurred. What the SO told them then was identical to the account which he provided during his interview with the SIU. WO #1 additionally recalled that the SO had told him that as soon as he turned off his emergency equipment and followed in the direction where he had last seen the Dodge travelling, the car lost control almost immediately while turning onto Hanlon Parkway, and went into the ditch.
The Collision Reconstruction report prepared by the SIU Reconstructionist confirms the evidence of the SO, in that the [GPS] data confirms that the SO’s vehicle travelled in the easterly direction for 40 seconds with an average speed of 62.3 km/h in a 60 km/h zone, over a distance of approximately 692 metres, and only first exceeded the speed limit when it reached approximately 120 metres east of the Petro Canada station, and 290 metres prior to the Volkswagen dealership, which appears to accord with the CCTV footage. The time/distance calculations indicate that once east of the Volkswagen dealership, the police cruiser was travelling at an average speed of 91 km/h for no more than five seconds, and that he was 3.8 seconds behind the Dodge Journey. The collision site was located only 300 metres east of the Volkswagen dealership. There is no evidence that the police cruiser and the Dodge Journey ever made any physical contact, nor is that alleged by the Complainant.
Based on this evidence then, I find that the SO attempted a traffic stop pursuant to s. 216 of the HTA, which he was legally entitled to do in order to check the documents of the driver of the Dodge Journey, and to ensure he was legally entitled to operate a motor vehicle. Almost immediately upon engaging his emergency lighting system in order to stop the Dodge, however, the driver, the Complainant, accelerated sharply and sped away; this is not disputed by the Complainant. The evidence of the Complainant wherein he asserts that he had a man with a gun in the car, and where he had picked that man up prior to his encounter with the police cruiser, while not relevant to the matter under investigation here, does give me some pause with respect to the Complainant’s credibility, in that he failed to mention this gun to police at the time of his arrest, and there appears to be some discrepancy as between what he told the police and what he told SIU investigators as to where he had picked up the man.
On the whole, however, there appears to be little dispute as to the facts, with the exception that the SO indicated that he had slowed and deactivated his lights and sirens seconds prior to the single vehicle collision in which the Dodge Journey was involved, whereas the Complainant believed that the police vehicle was behind him throughout. I find that while there was only a matter of seconds between the time that the SO gave up his attempt at a vehicle stop, and the collision, as revealed by the communications recording, it may well be that in the heat of the moment, the Complainant believed that the police cruiser was still behind him, when it had in fact slowed and deactivated the emergency equipment.
Contrary to the Complainant’s belief, based on the [GPS] data, as well as the CCTV footage, I find that the SO was, in fact, driving some distance and at a substantially lesser speed, behind the Complainant’s vehicle, and I have no difficulty accepting that in the darkness, and while the emergency lighting system did throw a long shadow, that the Complainant may well have believed that the SO was closer than the CCTV footage revealed to actually be the case.
I find further support in this conclusion from the Collision Reconstruction Report which is based on both the GPS data from the police vehicle, and the time/distance calculations from the CCTV footage, wherein it was determined that the Complainant was travelling at a speed of 124 km/h, while the SO only ever reached an average speed of 91 km/h; that the police vehicle, on the CCTV footage, is already 3.8 seconds behind the Dodge Journey; that no computer report was ever issued by the terminal in the SO’s police vehicle, which would have occurred had his vehicle ever attained a speed of 40 km/h over the speed limit (or 100 km/h); and that both the Complainant and his passenger were able to exit and flee the vehicle prior to the arrival of the SO, with the passenger having sufficient time to make good his escape.
The question to be determined then, 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, and did thereby cause bodily harm to the Complainant, contrary to s.249(3).
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 considering the test for dangerous driving, I note that it is not disputed that although dark out, the weather was clear and the roads were dry. From my observations of the CCTV footage of the area in front of the Volkswagen dealership, the artificial lighting in the area appeared adequate and there were no issues with visibility. While there appeared to be moderate traffic, there is no evidence that the SO’s driving at any time interfered with any other traffic on the road and, while he momentarily accelerated to try and perform a vehicle stop, the evidence appears to confirm that his vehicle only travelled at those speeds for a brief matter of seconds, and that his speeds, while in excess of the speed limit, were not excessively so.
On the evidence both of the Complainant, and the time/distance calculations, I find that the Complainant was driving at a far greater speed than was the SO and that he lost control of his vehicle and was involved in a single vehicle collision not because of the actions of the SO, but because of his own voluntary decision to try to outrun police and, in doing so, fleeing at an excessive rate of speed, ultimately causing the collision which resulted in his injuries.
Having fully considered the evidence in this matter, as well as the law as set down by our higher courts 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 that 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 an extremely short period of time and distance, following which he chose to abandon his efforts to stop the motor vehicle in favour of public safety, 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’ of the standard of care of a reasonable person in these circumstances.
In conclusion, as the evidence does not satisfy me that the SO’s actions fell outside of the limits of the criminal law, no charges will issue.
Date: December 20, 2018
Tony Loparco
Director
Special Investigations Unit
The SO observed a Dodge Journey motor vehicle enter the parking lot and park, and he queried the licence plate on his in-car computer. As he waited for a response to his query, the Dodge left the parking lot and drove to a Petro Canada gas station and store, and the SO followed while keeping a discreet distance. His query revealed that the vehicle was registered to a woman, while he had observed that the driver on this date was a male. Moreover, the query further indicated that a 29 year old male had previously been stopped while driving that same motor vehicle and that that male’s driver’s licence had been found to be under suspension. As a result of this information, the SO decided to stop and investigate the motor vehicle, as he was fully entitled to do pursuant to s. 216 of the Highway Traffic Act (HTA).
The Complainant, the driver of the Dodge Journey, observed a police cruiser, with its emergency lighting activated, behind his vehicle as he left the gas station. The Complainant advised that while he initially attempted to pull over to the side of the road for the police cruiser, his passenger, a male who he indicated he had picked up at the side of the road, told him not to stop as he, the male, had a gun. As a result, the Complainant accelerated and drove off, with the police cruiser, with lights and sirens activated, following behind him.
The Complainant estimated his rate of speed at approximately 140 km/h as he tried to evade the police vehicle, and that he drove for about three to four minutes, with the cruiser close behind at all times, when he lost control of his vehicle while making a right-hand turn, entered the median ditch on a divided roadway, and came to a stop. Both the Complainant and his unidentified male passenger then immediately exited the vehicle and began to run away.
The Complainant said that as he ran across the road, the SO pursued him on foot, and yelled at him to stop or he would be shot, whereupon the Complainant put his hands in the air and he was arrested and handcuffed. The Complainant told the officer that he did not feel well and was in pain, and an ambulance was called and he was taken to hospital. The Complainant indicated that a CT scan at the hospital revealed that he had sustained a fractured rib, a fractured spine, and a neck injury.
The Complainant’s medical records, which were obtained with his consent, indicate that the lumbar spine radiographs revealed, “Mild anterior height loss at T12. A compression fracture cannot be ruled out.” However, the CT scan of the spine only confirmed, “an undisplaced fracture involving the right transverse process of T1. No cervical spine fractures are seen”, from which I infer that despite a T12 compression fracture being initially suspected, it was disproven after the CT scan. While the medical records contradict the Complainant’s indication of his injuries in his statement to the SIU, I have not considered this inconsistency as going to the Complainant’s credibility, but rather attribute it to possible confusion on his part revolving around the medical terminology.
During the course of this investigation, there were only two witnesses to the events that preceded the single vehicle collision involving the Complainant, that being the Complainant himself, and the subject officer, the SO. While three other police witnesses were interviewed, none observed the actual event leading up to the collision, although each heard from the SO as to what had occurred, and their recounting of events as to what the SO told them was consistent with the evidence provided by the SO in his interview with SIU investigators. Additionally, the SIU had access to the Global Positioning System [GPS] data from the SO’s police vehicle, the police communications recording, and closed circuit television (CCTV) from two commercial premises along the route taken by the Complainant and the SO.
The dispatch records confirm that at 9:12:49 p.m. on February 19, 2018, the SO queried the licence plate of the Dodge Journey being operated by the Complainant, and that at 9:12:52 p.m., the SO viewed the response on his in-car computer. At 9:16:38 p.m., dispatch was advised that the Dodge Journey had gone into the median.
The CCTV from the Petro Canada station confirms that the Dodge Journey entered the parking lot at 00:05 seconds into the video (there being no accurate clock on the video), with the police cruiser entering at 00:06. The Dodge parks in front of the store and the driver exits and enters the store where he appears to try and make a purchase, but leaves without buying anything; he is in the store for approximately 18 seconds and then exits and re-enters his vehicle, driving out of the parking lot 20 seconds after entering. The police cruiser, which had reversed into a parking space on the opposite side of the lot, is seen to quickly exit behind the Dodge. Although his lights are not yet activated as he is seen exiting, the reflection from the emergency lighting system can be seen as soon as the police vehicle is out of sight, at 00:30 into the video.
According to the timer on the CCTV footage from the Volkswagen dealership, a very fast moving vehicle, which appears to be travelling at twice the speed of the other vehicles on the roadway, is seen to enter the screen at 9:13:53 p.m., with the police cruiser, with lighting activated, entering the screen three seconds later, at 9:13:56 p.m. (It is impossible to tell if the clock on the video is accurate.)
The communications recording reveals the SO calling in (at 00:00 according to the timer) and indicating the following:
00:00 Just a heads up – tried to make a traffic stop with a male00:03 exiting the Petro Canada on Woodlawn00:08 he’s since notched off – taken off southbound on Hanlon00:11 Ooh, he’s gone into the grass median00:14 He’s fleeing on foot towards the Value Inn00:20 Oh, he’s dropped something now.
It is noteworthy that there are no gaps while the SO is speaking, and from the time that he reports that he has just tried to perform a traffic stop until the time that he reports the car going into the median, no more than 11 seconds pass.
According to the SO, he parked and observed the Dodge while the driver got out and entered the Petro Canada gas station, and he received the response to his computer query while the Dodge simultaneously left the gas station heading eastbound on Woodlawn Road West, which would put the time, according to the computer terminal data from his cruiser, at 9:12:52 p.m. The CCTV footage from the Petro Canada station confirms the SO’s evidence that he then engaged his emergency lighting system. The SO estimated that he was approximately one car length behind the Dodge when he engaged his emergency lighting system, following which the Dodge moved from the fast lane, into the slow lane of traffic, and then sped away. At that time, the SO engaged his siren, but as the Dodge increased its speed, he turned off both his lights and siren and did not pursue the vehicle.
The SO described observing the Dodge weaving in and out of traffic prior to the SO losing sight of the vehicle altogether. Despite the Suspect Apprehension Pursuit policy, the SO did not pull over and record his mileage, since, in his view, he had never been involved in a pursuit with the Dodge. Instead, with both his lights and siren turned off, the SO continued on in the same direction as he had last seen the Dodge travelling, when, at approximately 9:16 p.m., he came across the vehicle in the median between the north and southbound lanes of traffic on Hanlon Parkway, just south of Woodlawn Road West, where it was stuck and the Complainant was attempting to move the vehicle.
The SO then turned his emergency lighting system back on for safety, following which a civilian witness told him that two occupants had fled from the car, and pointed him westbound towards a fence, where he observed the Complainant running. He observed the Complainant to slip and fall in the snow, whereupon the SO ran up to him, and arrested and handcuffed him. The Complainant was compliant with the police commands at that point. The Complainant advised the SO that he had picked up his passenger at the motel but could not identify him; no mention was made of a gun. A significant amount of marijuana and cocaine was found inside the motor vehicle.
Both Witness Officer (WO) #2 and WO #1 spoke to the SO after the collision and he relayed to them what had occurred. What the SO told them then was identical to the account which he provided during his interview with the SIU. WO #1 additionally recalled that the SO had told him that as soon as he turned off his emergency equipment and followed in the direction where he had last seen the Dodge travelling, the car lost control almost immediately while turning onto Hanlon Parkway, and went into the ditch.
The Collision Reconstruction report prepared by the SIU Reconstructionist confirms the evidence of the SO, in that the [GPS] data confirms that the SO’s vehicle travelled in the easterly direction for 40 seconds with an average speed of 62.3 km/h in a 60 km/h zone, over a distance of approximately 692 metres, and only first exceeded the speed limit when it reached approximately 120 metres east of the Petro Canada station, and 290 metres prior to the Volkswagen dealership, which appears to accord with the CCTV footage. The time/distance calculations indicate that once east of the Volkswagen dealership, the police cruiser was travelling at an average speed of 91 km/h for no more than five seconds, and that he was 3.8 seconds behind the Dodge Journey. The collision site was located only 300 metres east of the Volkswagen dealership. There is no evidence that the police cruiser and the Dodge Journey ever made any physical contact, nor is that alleged by the Complainant.
Based on this evidence then, I find that the SO attempted a traffic stop pursuant to s. 216 of the HTA, which he was legally entitled to do in order to check the documents of the driver of the Dodge Journey, and to ensure he was legally entitled to operate a motor vehicle. Almost immediately upon engaging his emergency lighting system in order to stop the Dodge, however, the driver, the Complainant, accelerated sharply and sped away; this is not disputed by the Complainant. The evidence of the Complainant wherein he asserts that he had a man with a gun in the car, and where he had picked that man up prior to his encounter with the police cruiser, while not relevant to the matter under investigation here, does give me some pause with respect to the Complainant’s credibility, in that he failed to mention this gun to police at the time of his arrest, and there appears to be some discrepancy as between what he told the police and what he told SIU investigators as to where he had picked up the man.
On the whole, however, there appears to be little dispute as to the facts, with the exception that the SO indicated that he had slowed and deactivated his lights and sirens seconds prior to the single vehicle collision in which the Dodge Journey was involved, whereas the Complainant believed that the police vehicle was behind him throughout. I find that while there was only a matter of seconds between the time that the SO gave up his attempt at a vehicle stop, and the collision, as revealed by the communications recording, it may well be that in the heat of the moment, the Complainant believed that the police cruiser was still behind him, when it had in fact slowed and deactivated the emergency equipment.
Contrary to the Complainant’s belief, based on the [GPS] data, as well as the CCTV footage, I find that the SO was, in fact, driving some distance and at a substantially lesser speed, behind the Complainant’s vehicle, and I have no difficulty accepting that in the darkness, and while the emergency lighting system did throw a long shadow, that the Complainant may well have believed that the SO was closer than the CCTV footage revealed to actually be the case.
I find further support in this conclusion from the Collision Reconstruction Report which is based on both the GPS data from the police vehicle, and the time/distance calculations from the CCTV footage, wherein it was determined that the Complainant was travelling at a speed of 124 km/h, while the SO only ever reached an average speed of 91 km/h; that the police vehicle, on the CCTV footage, is already 3.8 seconds behind the Dodge Journey; that no computer report was ever issued by the terminal in the SO’s police vehicle, which would have occurred had his vehicle ever attained a speed of 40 km/h over the speed limit (or 100 km/h); and that both the Complainant and his passenger were able to exit and flee the vehicle prior to the arrival of the SO, with the passenger having sufficient time to make good his escape.
The question to be determined then, 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, and did thereby cause bodily harm to the Complainant, contrary to s.249(3).
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 considering the test for dangerous driving, I note that it is not disputed that although dark out, the weather was clear and the roads were dry. From my observations of the CCTV footage of the area in front of the Volkswagen dealership, the artificial lighting in the area appeared adequate and there were no issues with visibility. While there appeared to be moderate traffic, there is no evidence that the SO’s driving at any time interfered with any other traffic on the road and, while he momentarily accelerated to try and perform a vehicle stop, the evidence appears to confirm that his vehicle only travelled at those speeds for a brief matter of seconds, and that his speeds, while in excess of the speed limit, were not excessively so.
On the evidence both of the Complainant, and the time/distance calculations, I find that the Complainant was driving at a far greater speed than was the SO and that he lost control of his vehicle and was involved in a single vehicle collision not because of the actions of the SO, but because of his own voluntary decision to try to outrun police and, in doing so, fleeing at an excessive rate of speed, ultimately causing the collision which resulted in his injuries.
Having fully considered the evidence in this matter, as well as the law as set down by our higher courts 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 that 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 an extremely short period of time and distance, following which he chose to abandon his efforts to stop the motor vehicle in favour of public safety, 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’ of the standard of care of a reasonable person in these circumstances.
In conclusion, as the evidence does not satisfy me that the SO’s actions fell outside of the limits of the criminal law, no charges will issue.
Date: December 20, 2018
Tony Loparco
Director
Special Investigations Unit
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.