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SIU Director’s Report - Case # 18-PVD-068

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 death of an 88-year-old woman (Complainant #1) and the serious injuries sustained by a 42-year-old man (Complainant #2) during a vehicular police pursuit on March 6, 2018.

The Investigation

Notification of the SIU

At approximately 4:55 p.m. on March 6, 2018, the Ontario Provincial Police (OPP) reported the vehicle death of Complainant #1 and the vehicle injury of Complainant #2, which had occurred earlier that same date, at approximately 3:30 p.m., in the area of 8168 County Road 2, east of the Town of Napanee.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 3
Number of SIU Collision Reconstructionist assigned: 1

Complainants

Complainant #1 88-year-old female, deceased
Complainant #2 42-year-old male, declined to be interviewed, consent to obtain medical records withheld


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
CW #10 Interviewed
CW #11 Interviewed
CW #12 Interviewed
CW #13 Interviewed
CW #14 Interviewed
CW #15 Interviewed
CW #16 Interviewed
CW #17 Interviewed
CW #18 Interviewed
CW #19 Interviewed
CW #20 Not Interviewed, had nothing further to add to investigation

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 Interviewed, notes received and reviewed
WO #7 Interviewed, notes received and reviewed
WO #8 Interviewed, notes received and reviewed
WO #9 Interviewed, notes received and reviewed
WO #10 Interviewed, notes received and reviewed
WO #11 Interviewed, notes received and reviewed


Police Employee Witnesses

PEW #1 Interviewed
PEW #2 Interviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right


Incident Narrative

At approximately 3:32 p.m. on March 6, 2018, a call came in to the OPP Communications Centre reporting that a grey sports utility vehicle (SUV) had driven on the wrong side of the road, around a line-up of vehicles which had been stopped for a stop sign on Highway 2 at Shannonville Road in Shannonville, Ontario, and then driven through the stop sign at about 200 km/h, travelling eastbound on Highway 2. This information was sent out to all OPP units.

At 3:43 p.m., SO #2, driving an unmarked police vehicle equipped with emergency lights and sirens, reported that she was behind a silver Ford Escape (the SUV), travelling eastbound on County Road 1 and heading into Napanee; the SUV was reported as being driven in an erratic manner and was all over the road. SO #2 attempted to stop the SUV, but it took off at a high rate of speed and attempted to drive head-on into oncoming vehicles.

As a result of this radio transmission, WO #3 drove his fully marked OPP Tahoe cruiser, with emergency lights activated, westbound toward the reported location of the SUV, which then attempted to drive head-on into his cruiser. WO #3 reported an estimated speed for the SUV as being approximately 160 km/h and that the driver had both of his arms outstretched and was not holding onto the steering wheel.

WO #3 and SO #2 engaged the SUV driver in a police pursuit; WO #1 also joined in the pursuit thereafter, and they travelled through the Napanee District High School (NDHS) zone, with a posted speed limit of 40 km/h, at speeds of up to 149 km/h. Police engaged in several manoeuvres in order to stop the SUV, but they were unsuccessful, and the SUV continued driving in a dangerous manner at extremely high speeds. These three officers were then joined by a fourth officer, SO #1, who was driving a fully marked police vehicle and who joined into the pursuit, with his emergency equipment activated; SO #1 became the lead police vehicle pursuing the SUV. The SUV continued on at high rates of speed while disobeying the signals at several controlled intersections.

Due to the time of day, vehicle and pedestrian traffic was heavier than normal.

An acting sergeant, WO #6, from the OPP Provincial Communications Centre (PCC) in Smiths Falls, came on the radio and advised that she was taking control of the pursuit and she asked the reason for the pursuit on three occasions, and on each occasion she was cut off. The pursuit continued and four additional police officers joined the pursuit. The three police vehicles leading the pursuit were driven by SO #1 in the first position behind the SUV, followed by SO #2, and then WO #2; SO #1 was tracked on video at one point as being four seconds behind the SUV. The SUV continued on at high rates of speed while driving head-on at oncoming traffic.

WO #7, from the PCC, then came on the radio and broadcast that she was taking control of the pursuit and asked the reason for the pursuit. Immediately after WO #3 called in the reason for the pursuit, at 3:47:12 p.m., the SUV appeared to intentionally drive head-on into the front end of an eastbound Sebring being operated by Complainant #1, killing her.

Complainant #2, the driver of the SUV, was removed from the Ford Escape at gun-point and struggled with the arresting police officers; he was then transported to hospital.

Subsequent investigation revealed that the police pursuit lasted a total of three minutes and six seconds and covered a distance of 5.3 kilometres. The Crash Data Retrieval (CDR) data downloaded from the SUV showed that 0.5 seconds before impact, the SUV was travelling at 142 km/h; at the time of impact, its speed was 138 km/h.

Cause of Death of Complainant #1 and Nature of Injuries of Complainant #2

Complainant #1 was pronounced dead at the scene at 10:37 p.m. on March 6, 2018, while still pinned in her motor vehicle. A post-mortem examination was performed on March 8, 2018, and cause of death was determined to be “multiple injuries as a result of a motor vehicle collision.”

Complainant #2 was transported to hospital, where he was tentatively diagnosed with a badly fractured left arm and multiple injuries. He was kept in a medically induced coma for several days. The injuries to Complainant #2 could not be confirmed, as he refused to consent to the release of his medical records.

Evidence

The Scene

The scene was located at 8168 County Road 2 in the Town of Napanee. The weather conditions on arrival, at 10:00 p.m., were cold and overcast, with light snow falling. The road surface appeared to be dry. County Road 2 ran in a general east/west direction, with one lane in each direction. The roadway was paved and roadway markings were present. The road surface appeared to be in a good state of repair and the roadway was straight and generally level at the scene, with a posted speed limit of 80 km/h. Gravel shoulders and grass lined drainage ditches lined both sides of the roadway. There were a total of five vehicles directly or indirectly involved in the incident and four vehicles were present within the scene.

Photo of arrest of Complainant #2 within seconds of the collision (taken by a civilian witness).

Photo of arrest of Complainant #2 within seconds of the collision (taken by a civilian witness).


Chrysler Sebring Operated by Complainant #1

This vehicle faced in a westerly direction in the north side ditch and west of the driveway of 8117 County Road 2. It had extensive front end collision damage and located in the driver’s seat of the vehicle was the deceased, Complainant #1. Extensive tire marks (highlighted by pylons placed by Reconstruction Investigators) and gouges were located in the westbound lane, which indicated that this vehicle was travelling westbound on County Road 2, prior to the collision.


Silver Ford Escape Operated by Complainant #2

This vehicle faced in a northwest direction and straddled the eastbound lane and centre line and had extensive front end collision damage. Extensive tire marks (highlighted by pylons) and gouges were located in the westbound lane, which indicated that this vehicle was travelling eastbound on County Road 2 prior to the collision. The initial area of contact was indicated with gouge marks on the westbound lane.


2015 Chevrolet Tahoe, OPP Marked Unit Operated by WO #1

This cruiser faced in an easterly direction in the eastbound lane. This cruiser was a marked OPP police vehicle, which displayed graphics as designed by the OPP. The exterior of this vehicle was examined and revealed no collision damage that could be attributed to this collision. Through investigation it was determined that this cruiser was driven by WO #1 and it was the fifth OPP cruiser in the line-up. This cruiser had blood on the rear seat and it was brought into the scene immediately after the collision because Complainant #2, who was under arrest, was placed into the rear seat of the cruiser.


Ford Taurus (Police Interceptor), OPP Unmarked Unit Operated by SO #2:

This was an unmarked OPP cruiser, which faced in an easterly direction on the south shoulder. The exterior of this cruiser was examined and revealed no collision damage that could be attributed to this collision. Through investigation, it was determined that this cruiser was operated by SO #2 and it was the OPP cruiser which initiated the pursuit and was the second OPP cruiser in the line-up at the time of collision.


Ford Taurus, Marked Unit, Operated by SO #1

This cruiser was the first cruiser in the line-up of the pursuit and it had been moved shortly after the collision to provide traffic control for fire trucks and ambulances. The cruiser was returned to the scene and parked on the south shoulder near the other cruisers. Slight scuff marks were found to be present on the fender of this cruiser but they were not attributed to the collision. It was determined through investigation that this cruiser was operated by SO #1.

At 1:00 a.m., the deceased, Complainant #1, was removed from her vehicle and placed in a body bag. She was identified by the photograph on her driver's licence, which had been located in her purse. The deceased was transported to the hospital morgue. The scene was photographed and measurements were obtained with the use of Total Station equipment.


The red Sebring operated by Complainant #1 is seen to the left of the photo, post collision, while the SUV operated by Complainant #2 is seen in the centre of the roadway.

The red Sebring operated by Complainant #1 is seen to the left of the photo, post collision, while the SUV operated by Complainant #2 is seen in the centre of the roadway.

Movement of the SUV pre and post collision with the Sebring is marked out by coloured pylons.

Movement of the SUV pre and post collision with the Sebring is marked out by coloured pylons.

Route taken by Complainant #2’s SUV and the involved police vehicles during the pursuit

Route taken by Complainant #2’s SUV and the involved police vehicles during the pursuit

The pursuit commenced at the intersection of Jim Kimmett Blvd., and County Road 1 (Belleville Road). This is a rural area with a posted speed limit of 80 km/h. County Road 1 is the through road with one lane in each direction. County Road 1 travels in a general east/west direction at this intersection. The route proceeded eastbound on County Road 1. At 1.7 kms into the pursuit, at the intersection with Enviro Park Lane, there is a 40 km/h speed sign posted indicating the start of a school zone. At 2 kms, NDHS is on the north side of the roadway. At 2.5 kms, there is a stop sign, which regulates traffic on Belleville Road at the intersection with Bridge Street West. A left turn was made onto Bridge Street West; the speed limit in this area is a posted 50 km/h. Centre Street is controlled by traffic lights and the pursuit continued in a northeast direction to the intersection of Bridge Street and Dundas Street, which was 3.3 kms into the pursuit. This intersection is controlled by traffic lights and the pursuit made a left hand turn to continue eastbound under the railway bridge and out onto County Road 2. The pursuit passed Spring Side Park, another posted 50 km/h zone, and continued up the rock cut to Old Hamburg Road. This is generally a rural area. At Oke Road, which was 4.4 kms into the pursuit, the speed limit changed to 80 km/h and the pursuit continued to the scene of the collision at 8168 County Road 2, for a total distance of 5.3 km.

Scene Diagram

Scene diagram

Physical Evidence

Data from the Mobile Data Terminals (MDT) in the involved police vehicles was obtained and reviewed.

Data from the Crash Data Retrieval (CDR) System in Complainant #2’s SUV was obtained and reviewed.

GPSGate tracking data from eight of the involved police vehicles was obtained and reviewed.

The tablets from the Napanee Detachment police vehicles were obtained and reviewed.

The collation of all relevant data revealed the following sequence of events:


Pursuit Line-up and Pertinent Automatic Vehicle Locator (AVL) Information

The AVL information was obtained from numbered tablets, which each police officer had in his or her police vehicle. The AVL information reflected on a Google-Earth map as a numbered red dot, known as a sequence. Each sequence captured the cruiser number, longitude, latitude, altitude, ground speed, and date and time stamp.

1) SO #1 took over from SO #2 as the lead cruiser at Bridge Street and Belleville Road. On Bridge Street his top speed was 99.6 km/h in a 50 km/h zone as he travelled between John and East Street, east of Centre Street; his speed was 130 km/h in a 50 km/h zone on County Road 2, as he approached Old Hamburg Road, which was in a rural setting. At the time of the collision, at 3:47:12 p.m., his speed was 91.7 km/h.

2) SO #2 operated her police vehicle at a speed of 128.7 km/h in a school zone, with a posted speed limit of 40 km/h, southbound on Belleville Road; at the east side of the intersection of Bridge Street and Centre Street, her speed was 52.97 km/h; her top speed on Bridge Street at John Street, east of the lights at Centre Street, was 105.4 km/h in a 50 km/h zone. One second after the collision, at 3:47:13 p.m., her speed was 90.6 km/h.

3) WO #2 drove his cruiser at a speed of 143.9 km/h in a 50 km/h zone, eastbound on County Road 2, approaching Old Hamburg Road, which was in a rural setting. At 3:47:10 p.m., or two seconds before the collision, his speed was 114.2 km/h.

4) WO #9 drove his police vehicle, an unmarked, black Ford Taurus with emergency lights and a siren. He travelled southbound on Centre Street from the detachment with a top speed of 96.5 km/h in a 50 km/h zone; he travelled eastbound on Bridge Street from Centre Street with a top speed of 119 km/h in a 50 km/h zone, east of East Street; and his speed was 159 km/h in a 50 km/h zone, eastbound on County Road 2 at Old Hamburg Road, which was in a rural setting. At 3:47:08 p.m., which was four seconds before the collision, his speed was 125.3 km/h in an 80 km/h zone at Oke Road.

5) WO #1 drove a police vehicle for which no tablet information was available, but the MPS data was obtained. WO #1’s speed was 115.92 km/h in a 50 km/h zone, eastbound on Dundas Street from Centre Street; his speed was 111.09 km/h, in a 50 km/h zone, eastbound on Bridge Street from Adelphi Street, and his speed was 177.10 km/h, in an 80 km/h zone, in a rural setting, eastbound on County Road 2 from Oke Road at 3:47:13 p.m., or one second after the collision.

6) WO #3 drove his police vehicle at a speed of 128.7 km/h, in a 40 km/h school zone, travelling northbound on Belleville Road, in front of the high school; he then turned around and his speed was 149 km/h, in the same 40 km/h school zone, travelling southbound on Belleville Road; his speed was 91.6 km/h in a 50 km/h zone, eastbound on Bridge Street from East Street; and his speed was 156.17 km/h in an 80 km/h zone, in a rural setting, eastbound on County Road 2 from Oke Road, one second after the collision.

7) WO #11 was operating a fully marked Dodge Charger. His top speed southbound on Centre Street North from the OPP detachment to Bridge Street was 104.4 km/h in a 50 km/h zone; he had a top speed of 173.81 km/h in an 80 km/h zone, while travelling eastbound from Oke Road, which was in a rural setting, at 3:47:31 p.m., or 19 seconds after the collision.

8) WO #8 was operating a fully marked Ford Taurus. At 3:46:08 p.m., he was travelling at a speed of 135 km/h in a 50 km/h zone, southbound on Centre Street, south of the railway-bridge; at 3:46:43 p.m., he was travelling at a speed of 114.2 km/h in a 50 km/h zone, eastbound on Bridge Street from East Street; and at 3:47:32 p.m., or 20 seconds after the collision, WO #8 was travelling at 154.6 km/h in an 80 km/h zone, in a rural setting, eastbound from Oke Road.

9) WO #10 was operating a fully marked Ford Taurus, with emergency equipment. No issues were encountered with this officer’s speeds.


Crash Data Retrieval (CDR) data from the 2010 Ford Escape Operated by Complainant #2

The events recovered included a locked frontal event, a locked side event, a locked rollover event, and an unlocked event. The pre-crash data was examined and the following data was extracted from the report:

Crash Data Retrieval data from the 2010 Ford Escape operated by Complainant #2

The 2010 Ford Escape accelerated in speed up to time zero as evident from the 100 percent throttle application and the maximum value of revolutions per minute (rpms) all the way to time zero. Complainant #2 did not apply the service brake in the vehicle until time zero and then it was most likely as a result of the impact with the second vehicle in this collision. Complainant #2 had the gas pedal at maximum and accelerated at a constant and slight increase up to and including the moment of collision. It appeared from the analysis of the steering wheel angle data that Complainant #2, in the five seconds prior to time zero and all the way until the moment of impact, was constantly changing the steering wheel angle and, just moments prior to the impact, turned the steering wheel to the left, causing the vehicle to most probably travel left of center into the oncoming lane of vehicular traffic.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Expert Evidence

A post-mortem examination was performed on March 8, 2018, and cause of death was determined to be “multiple injuries as a result of a motor vehicle collision.”

Video/Audio/Photographic Evidence

SIU investigators canvassed businesses along the pursuit route and located the following CCTV videos:

  • Surveillance Video from Smoke N Country General Store at 5285 Old Highway 2;
  • Surveillance Video from Mr. Auto at 200 Belleville Road;
  • Surveillance Video from the Husky Gas Bar at 432 Dundas Street;
  • Surveillance Video from Buy Rite at 851 Dundas Street;
  • Surveillance Video from Rose Bush at 4026 Old Highway 2;
  • Surveillance Video from 5717 Old Highway 2;
  • Surveillance Video from Gibbard Furniture Store at 88 Dundas Street East;
  • Surveillance Video from Market Entrance Intersection at Centre Street and Bridge Street West;
  • Surveillance Video from Bridge Street; and
  • Surveillance Video from Spring Side North Park. 

All videos were obtained and reviewed and used to put together an accurate timeline as to events leading up to the fatal collision, as follows:


Chronological Video Surveillance of Pursuit:


Mr. Auto, 200 Belleville Road

This camera was located on the southwest side of Belleville Road, south of the school zone. At 3:44:05 p.m., WO #3 was observed westbound on Belleville Road at a normal rate of speed. At 3:45:11 p.m., the Ford Escape entered the screen from left to right heading towards Bridge Street, southbound on Belleville Road, at a high rate of speed. At 3:45:21 p.m., SO #2 followed in the same direction. At 3:45:41 p.m., WO #3 followed behind SO #2, towards Bridge Street, at a high rate of speed.


Market Entrance Intersection at Centre Street and Bridge Street West

The camera pointed in a northwest direction towards the intersection of Centre Street and Bridge Street in Napanee; it afforded a view of the west side of the intersection; however, the east side of the intersection was blocked by a building on the southeast corner of Bridge Street and Centre Street.

At 3:45:40 p.m., the eastbound traffic on Bridge Street was stopped for a red light at Centre Street and the northbound traffic on Centre Street flowed through the intersection. The Ford Escape by-passed the eastbound traffic on Bridge Street, as it travelled eastbound in the westbound lane and entered the intersection of Centre Street on a red light, without stopping or slowing.

At 3:45:43 p.m., (three seconds later) SO #1, with his emergency lights activated, proceeded eastbound on Bridge Street, and stopped for the red light at Centre Street. He then continued through the intersection. At 3:45:48 p.m., SO #2 drove eastbound on Bridge Street, with her emergency lights on. SO #2 slowed down to a safe speed but did not stop at the intersection with Centre Street. At 3:46:03 p.m., WO #3, with his emergency lights activated, travelled eastbound on Bridge Street. WO #3 stopped for the red light at Centre Street and then continued.


Centre Street and Graham Street, Napanee

The camera faced in a southerly direction on Centre Street at Graham Street, which was north of Bridge Street. The recorded video showed the response of three OPP cruisers heading southbound on Centre Street towards Bridge Street, from the OPP Napanee Detachment. At 3:45:43 p.m., WO #9 drove southbound on Centre Street, at a high rate of speed. WO #9 had his emergency lights activated and he drove south in the northbound lane around other southbound vehicles. At 3:46:13 p.m., WO #11 drove southbound on Centre Street, at a high rate of speed with his emergency lights activated. At 3:46:17 p.m., WO #8 drove at a high rate of speed, southbound on Centre Street, with his emergency lights activated.


Bridge Street Video

This video afforded a view of Bridge Street and pointed in a westerly direction, east of John Street. The time stamp on this video was off by 81 minutes. At 5:06:13 p.m. (according to the incorrect time stamp on the video), the Ford Escape entered the screen, eastbound on Bridge Street, at a high rate of speed. The Ford Escape was followed at 5:06:20 p.m. by SO #1, followed by SO #2 at 5:06:22 p.m., and followed by WO #9 at 5:06:33 p.m. At 5:06:41 p.m., WO #1’s cruiser entered the screen, followed by WO #3 at 5:06:42 p.m.


Gibbards Furniture Store on Dundas Street East

The camera on Dundas Street East faced towards the intersection, in the distance, where Dundas Street East met Bridge Street and turned into County Road 2. At 3:46:06 p.m., the eastbound/westbound traffic on Dundas Street was moving, from which it was determined that it was a green light. The Ford Escape turned left onto Dundas Street from Bridge Street on an apparent red light and continued onto County Road 2. SO #1 was six seconds behind the Ford Escape and SO #2 was two seconds behind SO #1. At 3:46:14 p.m., WO #2 entered the screen eastbound on Dundas Street and he continued to the intersection of Dundas Street and Bridge Street. WO #2 continued eastbound through the intersection to be the third OPP cruiser in the pursuit, followed by WO #9, at 3:46:31 p.m.


Spring Side North Park

The camera was located in the park and faced in an easterly direction on County Road 2. At 3:46:20 p.m., the Ford Escape entered the screen from left to right and continued eastbound on County Road 2, at a high rate of speed. The OPP cruisers followed with SO #1 at 3:46:24 p.m., followed by SO #2 at 3:46:26 p.m., WO #2 followed at 3:46:31 p.m., and WO #9 at 3:46:34 p.m.

Photos of the scene, following the collision, were also obtained from CW #9, as well as scene photos taken by the OPP Scenes of Crime officers and all were reviewed.

Communications Recordings

A review of the police transmissions during the pursuit revealed the following information:

At 3:32:24 p.m., the dispatcher advised SO #2 and WO #2 that they had a traffic complaint; 
 
At 3:32:34 p.m., SO #2 acknowledged the dispatcher;

At 3:32:39 p.m., the dispatcher advised that a grey Ford Escape was on Old Highway 2, eastbound from Shannonville and no marker had been noted. It went through a stop sign, drove erratically, and was travelling at close to 200 km/h. It almost caused multiple collisions and it weaved between cars. There was a five-minute time delay on the call;

At 3:33:01 p.m., SO #2 accepted the call and told the dispatcher that she was in the area of Highway 401 at the Marysville exit; 
 
At 3:33:21 p.m., SO #1 advised that he would help; 
 
At 3:33:36 p.m., WO #10 from Napanee also advised that he would assist;

At 3:43:30 p.m., SO #2 broadcast that she was behind a Ford Escape going into Napanee on County Road 1 and she asked for a rolling marker check; 
 
At 3:43:42 p.m., SO #2 provided the SUV’s licence plate number and indicated that she would stop the vehicle at Jim Kimmett Boulevard; 
 
At 3:44:00 p.m., SO #2 broadcast that she was going to stop the silver Ford Escape because it was all over the road and its speed kept changing. The dispatcher responded that they had had hits on the licence plate from the Kingston Police Service from 12:05 p.m. and 11:36 am and that the vehicle was a silver 2010 Ford registered to Complainant #2;

At 3:44:06 p.m., SO #2 broadcast, “Hey, can I get another unit? He just passed a car dangerously on the corner. Coming up to a high school zone, he’s taken off on me;” 

At 3:44:38 p.m., SO #1 asked for SO #2’s location and SO #2 responded, “You just passed him right now, somebody did there.” (SO #2 had apparently confused WO #3 with SO #1). WO #3 advised, “He just tried to hit me head-on on the bridge.” SO #2 stated that the Ford Escape had approached the NDHS, which was a 40 km/h zone, and it was “taking cars head-on”;

At 3:44:58 p.m., WO #3 asked SO #2 for her direction of travel and SO #2 replied, “He’s heading south on Belleville Road, just passing the high school. He’s passed another couple of cars;”

At 3:45:15 p.m., SO #1 broadcast, “He’s purposely trying to hit people head-on here.” He then asked SO #2 for the descriptors and SO #2 replied “Silver Ford Escape here. He just turned eastbound up there, eastbound on Bridge, he’s everywhere, off the road;”

At 3:45:37 p.m., SO #1 broadcast, “I’m behind him. He’s passing. He’s going through the intersection at Bridge and Centre, continuing eastbound to Camden;” 

At 3:45:47 p.m., SO #2 broadcast that the SUV had gone through a red light at Bridge and Centre;
At 3:45:52 p.m., WO #6, from the OPP Provincial Communications Centre ">PCC, broadcast, “This is acting sergeant from Smiths Falls, OPP Provincial Communications Centre ">PCC; I’ll be monitoring and taking control of this pursuit.”

At 3:45:52 p.m., WO #2 broadcast that he was eastbound on Dundas St. WO #6 asked, “The reason for …?” and she was cut off before she could finish the question; 
 
At 3:46:07 p.m., WO #9 advised that he was at the back;

At 3:46:11 p.m., SO #1 broadcast, “We’re on … eastbound on County Road 2.” WO #6 came on the air for a third time and again asked, “The reason for …?” and she was again cut off. SO #1 advised, “Speed right now is 62 km/h, lights are on.” WO #3 responded to WO #6, “Just stand by here. Can we get more units set up? The male is driving erratically, he’s just trying to cause accidents. He’s driving very dangerously.”

At 3:46:39 p.m., WO #7 broadcast, “OPP Provincial Communications Centre ">PCC, (identifying herself as WO #7), we’re assuming control of the pursuit. Can I get the reason for the pursuit, please?” 

At 3:46:48 p.m., WO #3 advised, “It’s a traffic complaint, male driving over 200, driving erratically, not stopping at stop signs and he tried to hit me head-on. He continued eastbound and he’s swerving at cars trying to cause MVCs. One lone male it appears;”

At 3:47:12 p.m., SO #1 broadcast, “He’s swerving towards oncoming vehicles. He just hit one head-on … just … just by 8168. Head-on collision, there’s five cruisers with him.” SO #1 asked for an ambulance and WO #3 asked for EMS and an ambulance. The pursuit was not terminated prior to the head-on collision.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP, East Region Headquarters (Smiths Falls); Loyalist Detachment (Odessa); Napanee Detachment; and, Provincial Communications Centre (Smiths Falls):

  • Crash Data Retrieval Report;
  • Duty Roster;
  • Email from OPP re Google Mapping-2018-04-17;
  • Event Details Reports (x2);
  • Fatal Collision Report;
  • Collision Reconstruction Report;
  • General Report;
  • GPSGate tracking data for 8 police cruisers involved in pursuit;
  • List of Involved Officers;
  • Memo re changes in OPP Police Orders relating to Suspect Apprehension Pursuits dated Dec 11, 2015;
  • MPS data for the five police cruisers who were at the collision scene on March 6, 2018;
  • Data from Tablets in Napanee Detachment Police Vehicles;
  • Notes of WO #s 1-11 and one undesignated police officer
  • Occurrence (Person) Report for Complainant #2;
  • Occurrence Summary (Brief);
  • OPP Request for Radio Transmissions from OPP Provincial Communications Centre ">PCC, Smith Falls;
  • OPP Tip and Information Sheet;
  • OPP Transcript of EMS Recordings (x2);
  • Scene Photos;
  • Transcribed Interviews of CW #1, 2, 4-6, 8, 9, 11, 12, 15, 16, and 18, as well as 21 undesignated civilian witnesses;
  • Unit histories for 13 police vehicles from Smiths Falls Detachment for March 6, 2018; and,
  • Statement Synopses of 14 designated and 29 undesignated civilian witnesses.

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

  • Photos of scene following collision taken by CW #9;
  • Surveillance Video from Smoke N Country General Store at 5285 Old Highway 2;
  • Surveillance Video from 200 Belleville Road;
  • Surveillance Video from the Husky Gas Bar at 432 Dundas Street;
  • Surveillance Video from Buy Rite at 851 Dundas Street;
  • Surveillance Video from Rose Bush at 4026 Old Highway 2;
  • Surveillance Video from 5717 Old Highway 2;
  • Surveillance Video from Gibbard Furniture Store at 88 Dundas Street East;
  • Surveillance Video from Market Entrance Intersection at Centre Street and Bridge Street West;
  • Surveillance Video from Spring Side North Park;
  • Surveillance Video from Bridge Street; and
  • Surveillance Video from Napanee Springside Park. 

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 219 and 220, Criminal Code -- Criminal negligence causing death

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

Section 249, Criminal Code -- Dangerous operation of motor vehicles ... causing death

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

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Analysis and Director's Decision

On March 6, 2018, Complainant #2, while operating a Ford Escape SUV and being pursued by eight OPP police vehicles operated by SO #1, SO #2, WO #2, WO #9, WO #1, WO #3, WO #11 and WO #8, struck a motor vehicle being operated by Complainant #1, killing her. Complainant #2 was injured in the collision. The police pursuit of Complainant #2 covered some 5.3 kilometres in total, over a time period spanning approximately three minutes and six seconds, with the police vehicles reaching speeds up to 177 km/h and covering a distance from Jim Kimmett Boulevard and County Road 1 in the Town of Napanee and terminating at 8168 County Road 2, where the SUV being operated by Complainant #2 was involved in a horrific collision.

During the course of this investigation, 19 civilian and 11 police witnesses were interviewed; the police witnesses also provided their memorandum book notes to the SIU investigators for review. The two designated subject officers, SO #1 and SO #2, who were leading the pursuit at the time of the ultimate collision, declined to be interviewed or to provide their notes for review, as is their legal right.

In addition to the witnesses interviewed, SIU investigators had access to, and reviewed, numerous CCTV videos from commercial premises en route, the recordings of the 911 call and police transmissions, the accident reconstruction report, and an abundance of raw data from the involved motor vehicles, all of which was thoroughly reviewed and resulted in a time/distance analysis of each of the involved motor vehicles at various points plotted along the route of the pursuit which culminated in the collision with Complainant #1’s motor vehicle in the Town of Napanee. Despite neither Complainant #2, nor the two subject officers, consenting to an interview, a clear picture of events was able to be pieced together from the abundance of information gathered. There is no dispute as to the facts.

The following narrative was derived from all of the gathered evidence during the course of this investigation:

The OPP received a 911 call from CW #11 at 3:32 p.m. on March 6, 2018. In the call, CW #11 reported seeing a grey SUV driving on the wrong side of the road in order to pass a line-up of motor vehicles stopped for a stop sign on Highway 2 at Shannonville Road, in the Community of Shannonville, west of the Town of Napanee. CW #11 went on to report that the vehicle then drove through a stop sign, without stopping, and travelled at approximately 200 km/h, before proceeding eastbound on Highway 2.

At 3:32:24 p.m., the dispatcher sent out a radio transmission to all OPP units advising of the complaint and providing a description of the suspect vehicle. Various police units immediately responded that they would assist in attempting to locate the vehicle.

At 3:43:30 p.m., SO #2 broadcast that she was behind a vehicle matching the description of the SUV which had been complained about, which she described as travelling into the Town of Napanee on County Road 1. SO #2 provided the licence plate number and advised that it was her intention to stop the vehicle at Jim Kimmett Boulevard. SO #2 further advised that she was going to stop the vehicle because it was all over the road and driving at inconsistent speeds.

At 3:44:06 p.m., SO #2 requested the assistance of another unit because, she indicated, the SUV had “just passed a car dangerously on the corner. Coming up to a high school zone, he’s just taken off on me.”

Shortly after 3:44:38 p.m., WO #3 reported that, “He just tried to hit me head-on on the bridge,” SO #2 broadcast that the SUV was taking cars ‘head-on’, and SO #1, at 3:45:15 p.m., reported that, “He’s purposely trying to hit people head-on here.”

At 3:45:40 p.m., CCTV from the Market Entrance Intersection at Centre Street and Bridge Street West confirmed that the SUV was by-passing the eastbound traffic on Bridge Street and entering the intersection against a red light, without stopping or slowing. SO #1 is then seen at 3:45:43 p.m., three seconds behind the SUV, with emergency lights activated, also travelling eastbound on Bridge Street, before stopping for the red light at Centre Street. Five seconds behind SO #1, SO #2 is also seen driving in the same direction with her emergency lights activated, where she slows at the red light before proceeding through the intersection when it was safe to do so. Third in the police vehicle line-up at that point, WO #3 is seen 15 seconds behind SO #2 and he too stopped at the red light at Centre Street, before proceeding.

At 3:45:47 p.m., SO #2 broadcast that the SUV had driven through the intersection of Bridge and Centre Streets against a red light.

At 3:46:06 p.m., CCTV from the Gibbard Furniture Store at 88 Dundas Street East revealed the SUV going through yet another red traffic signal at the intersection of Dundas and Bridge Streets. At that point, SO #1 appears to be about six seconds behind the SUV, with SO #2 two seconds behind SO #1, followed by WO #2 and then WO #9.

At 3:46:11 p.m., WO #3 broadcast a request to the OPP Provincial Communications Centre ">PCC that more units be set up to attempt to stop the SUV, and described the ongoing driving of the SUV as erratic, “He’s just trying to cause accidents. He’s driving very dangerously.”

At 3:46:20 p.m., CCTV from Spring Side North Park revealed the SUV driving along County Road 2, in an eastbound direction, at a high rate of speed, followed by SO #1, still four seconds behind, and then SO #2, WO #2 and WO #9; neither the order of vehicles, nor their distance behind the SUV, appears to have changed from the previous video recording.

At 3:46:39 p.m., in response to a request by the communications supervisor, WO #7, to clarify the reason for the police pursuit, WO #3 summarized, “It’s a traffic complaint, male driving over 200, driving erratically, not stopping at stop signs and he tried to hit me head-on. He’s continued eastbound and he’s swerving at cars trying to cause MVCs (motor vehicle collisions),” at which point SO #1 added, “He’s swerving towards oncoming vehicles. He just hit one head-on … just … just by 8168! Head-on collision! There’s five cruisers with him.”

Immediately thereafter, SO #1 and WO #3 consecutively requested the attendance of the EMS and an ambulance.

The Crash Data Retrieval from Complainant #2’s SUV confirms that five seconds prior to impact, Complainant #2 was travelling at 137 km/h and that he had not engaged his braking mechanism. While his speed, as he approached Complainant #1’s vehicle, remained steady, within one to two km/h variations, at 2.5 seconds prior to impact, he began to accelerate, with his speed reaching 142 km/h, 0.5 seconds prior to impact, and the collision occurring at a speed of 138.0 km/h. At no time prior to the collision, did Complainant #2 apply his brakes, with examination of the data revealing rather that he had the gas pedal compressed to maximum and accelerated at a constant slight increase, up to and including, the moment of collision.

Furthermore, analysis of the steering wheel angle data revealed that just prior to impact, the steering wheel was turned to the left, into oncoming traffic and into collision with the vehicle being operated by Complainant #1, making the conclusion that the collision was, whether deliberate on Complainant #2’s part, inevitable.
Examination of all of the police cruisers confirmed that at no time was any police vehicle involved in the collision.

Unbeknownst to police at the time of the pursuit of the SUV, numerous other civilians had observed the erratic and often dangerous driving of the SUV, with some observations occurring as early as 7:30 that morning, when the SUV was observed to pass, in the oncoming lane of traffic, a line of vehicles which was stopped for a school bus which had its lights flashing and the stop sign arm out. Other observations included erratic driving, varying unexplained decreases and increases in speed, veering on the roadway, excessive speeds, and an observation that the driver may have been under the influence of drugs.

CW #11, the 911 caller, described observing the SUV travelling at a high rate of speed approach and then pass, in the oncoming lane of traffic, a line-up of cars waiting at a red light. CW #11 further described the SUV as barely having missed striking her vehicle as it swerved into the oncoming lane of traffic to drive around her vehicle. The SUV then entered the intersection, straddled along the centre of the intersection between the westbound and eastbound lanes, before speeding off at about 180 km/h in a 50 km/h zone.

CW #10 observed the SUV travelling eastbound on Belleville Road and go through the stop sign at Bridge Street West, without stopping, where it cut off a marked OPP vehicle. CW #10 described the SUV as then mounting the curb and travelling on the curb and the sidewalk, before returning to the roadway. CW #10 described the subject SUV as driving erratically, at a high rate of speed, and not stopping for anything, including a red traffic signal at Bridge and Centre Streets, where it almost struck a red van. CW #10 also observed the SUV being pursued at that point by two OPP police cruisers.

CW #5 made similar observations to that of CW #10, further indicating that she then observed two marked OPP vehicles, with lights and sirens activated, pursuing the SUV, at speeds of approximately 80 km/h; CW #5 estimated that these two cruisers were roughly six to seven car lengths behind the SUV. She also observed that numerous other marked OPP vehicles then joined into the pursuit from intersecting streets.

CW #4 was a passenger in a motor vehicle driving westbound on County Road 2, towards Napanee, behind a red Sebring. He described seeing the SUV being pursued by eight police vehicles. He indicated that the motor vehicle in which he was driving was pulling over to the shoulder of the road to allow the SUV and police vehicles to pass, when he observed the SUV deliberately cross the centre line and travel in the oncoming lane of traffic, colliding head-on with the red Sebring, which had also slowed and was moving onto the shoulder, with the speed of the SUV being such that the collision caused the red Sebring to come off the ground about six feet, before coming to rest in the south ditch, and the SUV coming off the ground, rotating counter clock-wise and coming to rest pointing westbound in the centre of the roadway. This evidence is also fully consistent with the evidence of WO #1 who described the red vehicle, the Sebring, as apparently observing the oncoming SUV and moving to the shoulder when the SUV intentionally lined up with the red vehicle, in a straight line, and hit the red vehicle head-on at full speed. WO #1 also noted that the driver of the SUV neither activated his brake lights, nor did he attempt to swerve out of the way of the red Sebring.

The evidence of these witnesses is consistent with other civilian witnesses interviewed, with one witness, CW #13, specifically commenting that during the pursuit, she observed the first two of the police cruisers following the SUV to be very prudent, as they stopped at the red light, which Complainant #2 had driven through, and assessed the situation in the intersection before they proceeded into and through the intersection.

All witnesses described the roads as being dry and, those who witnessed the actual pursuit, described a gap between the lead police vehicle and the SUV, with descriptions ranging, at various points throughout the pursuit, as being from six or seven car lengths (CW #5), 40 to 50 feet (CW #12), six car lengths (CW #18), two metres (CW #3), three to four car lengths (CW #13), at least two car lengths, or perhaps more (CW #19), ten seconds and a distance of one to one and one half miles (CW #16), or lastly, just prior to the collision, about three car lengths (CW #4). As such, I accept as accurate the assessment of WO #1 that the lead police vehicle did not tail-gate, or ‘push,’ the SUV, but rather travelled behind it with more than enough distance to react to the movement of the SUV.

Furthermore, the actions of the police officers engaged in the pursuit were described by one witness (CW #13) as prudent, while a second (CW #7) described the cruisers as driving more slowly than the SUV and using some caution.

Complainant #2 was then removed from his motor vehicle by police, with guns drawn. He was described as being noticeably angry at the officers and was yelling and swearing at them. Complainant #1 was pinned in her motor vehicle and, while still initially having vital signs, those quickly lapsed and she was pronounced dead at the scene, while still pinned inside her motor vehicle. The damage to her motor vehicle, and to Complainant #1, was massive and overwhelming, as would be expected when hit head-on at the speed with which Complainant #2 slammed into her motor vehicle with his much larger SUV.

With the exception of the two subject officers, all police officers involved in the pursuit provided statements to SIU investigators; I have not, however, recounted them here, as the evidence from the civilian witnesses, the CCTV footage, the communications recordings, and the abundance of raw data from both the police vehicles and the SUV make the sequence of events abundantly clear. Suffice it to say that the evidence of the police witnesses is fully consistent and in accord with both the civilian witnesses and the physical evidence.

Having reviewed all of the extensive evidence from the many civilian and police witnesses who observed Complainant #2’s driving on the afternoon of March 6, 2018, there is no question that Complainant #2 posed a real and imminent danger to the lives and/or safety of anyone who came within range of the vehicle that he was driving. Unlike many other police pursuit investigations, this is not a matter of a police officer deciding whether to stop a motor vehicle in order to investigate the driver for an HTA offence or to execute a Criminal Code warrant, or to allow him to flee and to be arrested on another day. Instead, it is clear that Complainant #2, before police ever came to either look for him, or to follow him, according to the many witnesses who came forward, and the recorded 911 call, posed a real and imminent threat to other motorists he encountered on the roadway that afternoon, and that police had no choice but to make every effort to stop him before he killed someone. Unfortunately, before the police were able to effectively contain and stop Complainant #2, his SUV did indeed collide with the motor vehicle being operated by 88-year-old Complainant #1, killing her.

It is clear from the police transmission recording that the police discussed and actually resorted to a number of strategic options to try to stop Complainant #2. The efforts included SO #2’s initial attempt to bring Complainant #2 to a stop prior to the initiation of the pursuit, WO #3’s attempt to assist in the vehicle stop, which was met with Complainant #2 swerving into the oncoming lane of traffic and into a head-on collision position with WO #3’s cruiser, forcing WO #3 to swerve hard to his right towards the north shoulder to avoid colliding with the SUV, and WO #1 stopping his cruiser across the eastbound lane of Bridge Street West, at its intersection with Belleville Road, in order to force the SUV to a stop. The SUV, however then evaded his vehicle by turning the corner at a high rate of speed, on two wheels, not stopping for the stop sign, swerving around WO #1’s police vehicle at the last moment, mounting the sidewalk and a residential front lawn, before accelerating to a high rate of speed and continuing eastbound on Bridge Street. Specifically, WO #1 also noted that he positioned his vehicle as he did because there was insufficient time available either to deploy a spike belt or to resort to any other alternate measures by which to stop the dangerous movements of the SUV. All of the strategies resorted to by police, however, were unsuccessful due to the evasive actions of Complainant #2. Furthermore, at the time of the collision, there had already been radio discussion with respect to the availability of police officers from the Loyalist OPP Detachment to block roads, intercept the SUV, or deploy a spike belt; unfortunately, there was insufficient time to put those additional alternative strategies into place prior to the fatal collision with Complainant #1’s vehicle.

It is further evident, however, that police could not stand idly by and allow Complainant #2 to continue driving in the fashion that he was, while he put numerous other motorists and pedestrians at risk.

While it is clear that eventually eight police cruisers, including the two lead vehicles manned by SO #1 and SO #2, were all engaged in a vehicular pursuit of Complainant #2, it is equally clear that they had few other options available to them in order to stop Complainant #2’s extremely frightening driving behaviour and to safeguard the citizens of the communities through which he was travelling. Based on the evidence of various witnesses to Complainant #2’s driving, it was not a question of if, but when, Complainant #2 was going to seriously injure or kill someone. It was the duty of the police officers to safeguard those communities, which they could not do without stopping Complainant #2, which, when all else failed, required a vehicular pursuit.

I note that all of the officers involved in attempting to stop Complainant #2 did so in compliance with Ontario Regulation 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits, in that they notified and were in constant contact with the communications centre, they constantly updated the dispatcher as to the location and speed of Complainant #2 and their own police vehicles, they resorted to alternative measures, other than a pursuit, to try and stop Complainant #2. Further, WO #7, as the pursuit supervisor, was obviously assessing the determination made to initiate a pursuit when she asked the reason for the pursuit in order to determine whether or not to discontinue the pursuit and assess whether the risk to public safety that may result from the pursuit outweighed the risk to public safety that may result if an individual in the fleeing motor vehicle was not immediately apprehended; unfortunately, the ultimate collision occurred before either any alternative measures could be put into place, and before a determination to possibly discontinue the pursuit could be made.

Despite each of the two subject officers declining to provide a statement, I have inferred their state of mind with respect to their assessment as to the risk to public safety from a number of their actions as follows:

  • When Complainant #2 drove through the red signal lights at several intersections, despite the desire of the officers to stop Complainant #2, I conclude that they felt it was too dangerous to do so and each either came to a complete stop, or slowed and proceeded with caution, before entering the intersection [1];
  • They considered alternative measures, including calling in the Loyalist OPP officers to deploy a spike belt, block roads, intercept the SUV, or resort to other alternative measures, but there was insufficient time to put those options into play; 
  • They continuously communicated over the radio with respect to the location of Complainant #2 and sought assistance; and,
  • The civilians who observed the pursuit described there always being a gap between the lead vehicle and the SUV and that the police vehicles were driving at a lesser speed than the SUV.

Despite finding that I have reasonable grounds to believe that the two subject officers, and indeed the operators of all eight involved police vehicles, complied with the Suspect Apprehension Pursuit Policy, pursuant to the Ontario Police Services Act, the question remains whether, on these facts, there are reasonable grounds to believe that any of the officers involved in the pursuit of Complainant #2 committed a criminal offence, specifically, whether or not the driving rose to the level of being dangerous and therefore in contravention of s.249 (1) of the Criminal Code and did thereby cause death (to Complainant #1) contrary to s. 249 (4) or bodily harm (to Complainant #2) contrary to s.249 (3), or if it amounted to criminal negligence contrary to s.219 of the Criminal Code and did thereby cause death (s.220) or bodily harm (s.221).

The decision of the Supreme Court of Canada in R. v. Beatty, [2008] 1 S.C.R. 49, defines s.249 as requiring 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”; while the offence under s.219 requires “a marked and substantial departure from the standard of a reasonable driver in circumstances” where the accused “showed a reckless disregard for the lives and safety of others” (R. v. Sharp (1984), 12 CCC (3d) 428 Ont CA).

I also find that while Complainant #2’s manner of driving posed an immediate and significant danger to others, both motorists and pedestrians, the evidence establishes that the dangerous nature of his driving preceded any involvement by police and that their pursuit of the vehicle which he was driving did not appear to exacerbate his driving, but rather he simply continued on in the same manner as he had already been reported to be driving, as evidenced in the 911 call and the statements of the various civilian witnesses interviewed, which preceded any involvement by police.

Furthermore, I note that despite Complainant #2’s choice of entering at least one intersection against a red traffic signal, thereby interfering with other traffic, SO #1 specifically stopped before proceeding at that same controlled intersection, while SO #2 slowed and proceeded with caution, in order to minimize the danger to other motorists.

I am also unable to find any causal connection between the driving of Complainant #2 and the actions of police, in that it appears that the police pursuit did nothing to influence Complainant #2’s manner of driving and he simply carried on in the same dangerous and reckless manner in which he had already been driving before police began to pursue him.

Additionally, while it is clear that the officers were, at times, all travelling at speeds in excess of the posted speed limit, I accept the assessment of the independent civilian witnesses that they were proceeding prudently and with relative caution and that they always kept a gap between the lead police vehicle and the subject SUV and, further, I find that there is no evidence that the driving, by any of the police officers, created a danger to other users of the roadway or that they interfered with other traffic at any time. Rather, I find that their driving posed a far lesser danger to other motorists than did the driving of Complainant #2. In fact, it appears that they posed no danger at all in that the vehicles had already stopped and pulled over for Complainant #2’s motor vehicle prior to the arrival of police, and were therefore not influenced by the driving of the pursuing police cruisers.

I fully accept the accuracy of the comments of several of the civilian witnesses, and as consistent with the police witnesses, that Complainant #2 was intentionally driving head-on into oncoming traffic and that (intentionally or not) he was going to kill someone if not stopped by police. While I am unable, in the absence of some input from Complainant #2, to determine whether or not he deliberately intended to cause a loss of life by his manner of driving, it is clear that he had an utter disregard for the lives and safety of those with whom he came into contact and, if it was not his intent to deliberately kill someone, he was clearly reckless as to whether or not he caused a death, either with or without the involvement of police, and he showed an utter disregard for human life.

On all of the evidence before me, I cannot find any connection between the actions of the police in attempting to stop Complainant #2, who was a clear and imminent danger to the lives of others, and the tragic loss of life of Complainant #1 or the injuries to Complainant #2 himself. On this record, it is clear that Complainant #2 chose to drive in a manner which was dangerous to others and had no regard for the possible loss of life that his driving would inevitably lead to, both before and after he came to the attention of police. I have no hesitation in finding that had police never intervened and attempted to stop Complainant #2, there is still a very strong likelihood that he would have killed at least one person, if not many more.

While it is unfortunate that police were unable to stop Complainant #2 before the tragic death of Complainant #1, on all of the evidence, I accept that the two subject officers, and all of the officers who attempted to bring Complainant #2 to a stop, used their best efforts in what was a very fast-paced and dynamic situation, with little time for planning out strategies. Unfortunately however, their efforts were not enough to stop Complainant #2, who appeared intent on causing as much harm as possible.

I find on this evidence that the driving of the police officers involved in the pursuit and the attempt to apprehend Complainant #2 does not rise to the level of driving required to constitute ‘a marked departure from the norm’ and even less so ‘a marked and substantial departure from the norm’ and there is no evidence to establish any causal connection between the actions of the pursuing officers and the motor vehicle collision that tragically took the life of Complainant #1. As such, I find that there is no evidence upon which I can form reasonable grounds to believe that a criminal offence has been committed by any of the police officers in their efforts to stop Complainant #2, and therefore there is no basis for the laying of criminal charges and none shall issue.


Date: January 28, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) Of course, police stopping and proceeding through a red light only when it is safe to do so is in compliance with the provisions of the HTA. [Back to text]