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SIU Director’s Report - Case # 18-OVI-182

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 a serious injury sustained by a 22-year-old woman (the Complainant) on June 16, 2018, following a police pursuit.

The Investigation

Notification of the SIU

At approximately 11:05 p.m. on June 16, 2018, the Peel Regional Police (PRP) notified the SIU of a vehicle injury sustained by the Complainant earlier that same date, at approximately 6:30 p.m. The PRP reported that the injury had occurred at the intersection of the northbound Highway 410 off ramp and Mayfield Road, in the City of Brampton.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 2

Complainant:

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

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 Not interviewed, had no information to offer
CW #9 Interviewed
CW #10 Interviewed
CW #11 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Interviewed, notes received and reviewed
WO #4 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 June 16, 2018, the subject officer (SO), from the PRP Criminal Investigation Bureau (CIB), was working in a plainclothes capacity driving an unmarked PRP Jeep. At about 6:30 p.m., he was driving westbound on Sandalwood Parkway, about one kilometre east of Highway 410, in the City of Brampton, when he was cut off by a red Scion driven by civilian witness (CW) #5, who he believed was driving dangerously and making several erratic lane changes.

Believing that CW #5 was potentially an impaired driver, the SO activated his emergency lighting system and occasionally his siren. Because the SO was driving an unmarked vehicle, his emergency lighting system consisted of flashing headlights; his vehicle was not equipped with any rooftop emergency lights.

The Scion drove at a high rate of speed and travelled onto northbound Highway 410, with the SO following behind at a distance. As a result of the high rate of speed at which the Scion was being operated, however, the SO abandoned his efforts to perform a vehicle stop and instead slowed down and turned off his emergency equipment.

The Scion exited Highway 410 at the northbound off ramp to Mayfield Road, which was the next exit, and drove around a line-up of cars stopped at a red light at Mayfield Road. The Scion first side swiped the passenger side of a stopped black Subaru, causing minor damage, following which it entered the intersection against the red light, without stopping, and struck the front passenger side of a Toyota Corolla, which had been travelling eastbound on Mayfield Road and had entered the intersection on a green light. As a result of the impact, the Toyota mounted the raised median and came to rest facing in a northwest direction. The Scion then drove over the raised median, striking the front end of a Ford F150 pickup truck, which was westbound on Mayfield Road travelling in the centre lane.

Once the Scion came to rest, CW #5 and the Complainant exited the vehicle and fled on foot over a small retaining wall on the north side of Mayfield Road and down into a ravine. The SO arrived at the scene in his unmarked police vehicle, whereupon he exited wearing a PRP issued vest with the word “POLICE” visible, and chased CW #5 on foot, eventually arresting him for dangerous driving. The Scion caught fire and was totally burned out. CW #5 and the Complainant were then transported to hospital by ambulance, as was the driver of the Toyota, CW #4.

Nature of Injuries/Treatment

After being assessed, CW #4 was found not to have sustained any serious injury. CW #5, who was transferred to a second hospital, where he remained for two days, was also diagnosed with no serious injury.

The Complainant was diagnosed with having a non-displaced radial styloid fracture intra-articular of the right wrist.

Evidence

The Scene

At 2:20 a.m. on June 17, 2018, the weather was hot and clear and the roads were dry. The Highway 410 Northbound off ramp, at Mayfield Road, consisted of three paved and marked lanes. There was one left turn lane, one centre lane marked for both left and right turns, and one right turn lane. The roadway surface, while paved, had been ground down for road resurfacing. Mayfield Road travelled in a general east/west direction and was also paved, but had been ground down for road resurfacing. There were three marked eastbound lanes and three marked westbound lanes, divided by a raised centre median at the intersection. The intersection was controlled by overhead traffic lights that appeared to function as designed.

The off-ramp approaching Mayfield Road. The red Scion and the Toyota involved in the collision can be seen to the right of the intersection on Mayfield Road.

The off-ramp approaching Mayfield Road.  The red Scion and the Toyota involved in the collision can be seen to the right of the intersection on Mayfield Road.

Markers depicting the path taken by the red Scion as it travelled on the right shoulder past stopped traffic on the off-ramp from Highway 410 and then turned right onto Mayfield Road.

Markers depicting the path taken by the red Scion as it travelled on the right shoulder past stopped traffic on the off-ramp from Highway 410 and then turned right onto Mayfield Road.

A total of five vehicles were involved, directly or indirectly, in this collision.

Tire marks commenced on the east shoulder of the off-ramp and continued over the southeast curb and then travelled in a northeast direction toward the raised centre median. A debris field was located in the westbound lanes of Mayfield Rd, northwest of the damaged Toyota and Scion vehicles. The scene was photographed and video recorded and measurements were obtained for a planned drawing.

Scene Diagram

Scene Diagram

Physical Evidence

The red Scion, engulfed in flames, after coming to rest beside the centre median of Mayfield Road. (First two photographs provided by CW #3 to the SIU).

The red Scion, engulfed in flames, after coming to rest beside the centre median of Mayfield Road.

The red Scion after the flames had been extinguished. The Toyota struck by the Scion is seen at rest on top of the centre median behind the red Scion.

The red Scion after the flames had been extinguished.  The Toyota struck by the Scion is seen at rest on top of the centre median behind the red Scion.

Damage sustained by the Toyota Corolla after being struck by the red Scion and forced onto the centre median.
Damage sustained by the Toyota Corolla after being struck by the red Scion and forced onto the centre median.

The Subaru sideswiped by the red Scion on the off-ramp; damage is seen to the passenger side front bumper. The Jeep operated by the SO is seen to the rear in the photo, it was not involved in the collision and sustained no damage.

The Subaru sideswiped by the red Scion on the off-ramp; damage is seen to the passenger side front bumper.  The Jeep operated by the SO is seen to the rear in the photo, it was not involved in the collision and sustained no damage.

Forensic Evidence 

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, but none were located. Several photographs taken by a civilian witness were obtained and reviewed.

Communications Recordings

911 Call

At 6:30:55 p.m., a telephone call was received from CW #4 advising that his car had been struck by a red car, which was now on fire at Mayfield Road and the Hwy 410 northbound off ramp. A police officer, in a blue Jeep, was on scene and the police officer chased someone into the woods. The telephone call was five minutes and 33 seconds in duration. In the last thirty seconds of the call, CW #4 gave the telephone to a man who identified himself as the SO. The SO indicated that he needed fire, ambulance, and other police officers. He stated that he had one in custody and he was okay. The dispatcher asked if the SO could give her a short run down as to what had transpired, to which he replied, “Not now.”

Radio Transmissions

There were no radio transmissions involving the SO prior to the collision. The recording was reviewed and no police transmissions of investigative value to the SIU were located.

Materials obtained from Police Service

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

  • Event Chronology Report;
  • Motor Vehicle Collision Report;
  • Notes of WO #s 1, 3, and 4;
  • Occurrence Details Report;
  • Procedure: Stopping and Approaching a Suspect Vehicle;
  • Repair Costs re police vehicle (none);
  • Unredacted Audio Copy Report of 911 call; and,
  • Unredacted Audio Copy Report of Police Radio Transmissions.

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

  • Medical Records of the Complainant, CW #4, and CW #5, related to this incident, obtained with their consent;
  • Photos of scene taken by CW #3; and,
  • Ambulance Call Reports (x2).  

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, Causing Bodily Harm 

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.

Analysis and Director's Decision

On June 16, 2018, the subject officer (SO) of the Peel Regional Police (PRP) was working in plainclothes and operating an unmarked PRP motor vehicle, a blue Jeep. At approximately 6:30 p.m., he was driving westbound on Sandalwood Parkway East, about one kilometre east of Highway 410, in the City of Brampton.

At the same time, civilian witness (CW) #5 was driving his red Scion travelling in the same area and in the same direction as the SO; the Complainant was his front seat passenger.

It is not in dispute that just prior to coming to the SO’s attention, CW #5 wished to merge into the left lane, where the SO was already located driving his PRP vehicle, in order to make a left turn ahead. It appears clear that CW #5 was unaware, at that time, that the Jeep was a police vehicle or that it was being operated by a police officer.

According to CW #5, as he attempted to change lanes, the Jeep sped up and closed the gap preventing him from merging, following which CW #5 rolled down his window and made some comments to the SO. The Complainant said, in her statement to SIU investigators, that she also observed her husband make hand gestures towards the other driver. CW #5 indicated that he then attempted to merge into the lane behind the Jeep, but as the Jeep was stationary, he was unable to do so. When the traffic in front of the Jeep then moved ahead, CW #5 sped up and merged into the gap in front of the Jeep. According to the Complainant, the Jeep was stationary, as the traffic light was red, and as soon as the light turned green, the traffic in front of the Jeep moved off and her husband then sped into the gap cutting off the Jeep.

At that point, both CW #5 and the Complainant stated that they heard sirens behind them, but saw no emergency lights. CW #5 indicated that the driver of the Jeep looked angry and he became scared. CW #5 indicated that as there were no markings or emergency lights on the Jeep, and the SO was not wearing a police uniform, he did not know that he was a police officer. CW #5 and the Complainant both described CW #5 as then panicking and racing off.

From this point forward, CW #5 indicated, his memory was blurry and he had little recall as to what occurred other than that he drove onto Highway 410, and the Jeep followed behind. CW #5 described himself as scared and shaking, and that his hands and feet would not work and he was unable to use the brake or accelerator pedals correctly. CW #5 further described himself as being in shock and that he could not recall whether or not he drove fast. He indicated that his feet were unresponsive and he recalled the sound of bangs and his car stopping and catching fire, whereupon he grabbed the hotdog buns that he had gone out to purchase, along with his wife’s cell phone, and got out of the car and ran, which he did for his own safety. After leaving the vehicle, he ran to the roadside guard rail and fell over it.

CW #5 deduced that since the SO arrived at the collision scene very quickly, that he must have been behind him all the way, although he appeared to have no recollection of that. The SO then arrested CW #5 at gunpoint and told him that he, the SO, had tried to pull CW #5 over because CW #5 had cut him off, but CW #5 did not remember a lot about what happened.

Despite CW #5’s claim that he could not recall whether or not he was driving fast, I note that in the ambulance call reports it is noted that he told the paramedics that he was “involved in high speed MVC” (motor vehicle collision) and that he struck a second vehicle at approximately 120 km/h when he was exiting off the Highway 410 ramp at Mayfield Road.

The Complainant, who did not suffer any difficulties with her memory, stated that when her husband sped off, the SO aggressively chased after them, with her husband saying something to the effect that they could not go back to her house, but he would go up Highway 410 to Mayfield Road and then loop back. She described CW #5 as headed north on Highway 410 towards Mayfield Road, with the SO very close behind them, and that her husband commented that the Jeep was “right on my bumper” and that he could not brake or the Jeep would hit him. The Complainant described their drive on the highway as, “over the speed limit” and, “a full on race”; estimating her husband’s speeds as being at 100 to 110 km/h, with the SO driving at the same speed with his emergency siren activated. The Complainant went on to clarify that the SO remaining right on their bumper meant that he was about one car length behind. CW #5, she indicated, then dodged around cars as he exited the highway and approached Mayfield Road, with the Complainant yelling for him to brake. The Complainant described their vehicle as going over the grass, tires spinning, and then straight into the intersection and over the median. Furthermore, she described the SO as also going on the grass as he exited the highway, with his sirens on the whole time. The Scion then spun and struck a pick-up truck, and the airbags deployed and her seatbelt broke from the impact.

The Complainant described their car as smoking and, after about 20 seconds, she grabbed some personal items and got out and she and CW #5 then walked away from the car in order to be safe. CW #5 jumped the guard rail to the north of Mayfield Road and the SO stopped his Jeep and turned the emergency siren off, following which he pursued CW #5 and placed him under arrest.

During the course of this investigation, in addition to CW #5 and the Complainant, nine CWs, as well as the SO, were interviewed by SIU investigators. While there were no recordings of the incident, the evidence of the nine CWs, (which substantially differed from that of CW #5 and the Complainant, but which was consistent with that of the SO), allowed a fairly accurate narrative of what occurred to be extrapolated from the reliable evidence.

According to the SO, he was driving in the left westbound lane on Sandalwood Parkway, returning to his police division, when he was passed on the right side by a red Scion, which then cut in front of him causing him to brake and swerve to the right.

This evidence appears consistent with that of the Complainant, wherein she said that after her husband had tried unsuccessfully to merge in the left lane, he cut off the Jeep driven by the SO.

The Scion was then observed by the SO travelling at a higher rate of speed than the flow of traffic and swerving in and out of the two westbound lanes as it manoeuvred around other traffic. The SO described CW #5’s driving as aggressive, raising concerns that he was possibly impaired. As a result, the SO activated his vehicle’s siren and flashing headlights and tried to catch up to the Scion in an effort to obtain either a licence plate number or to identify the driver. The SO stated that he was two to three car lengths behind the Scion when he activated his emergency equipment.

The SO then observed CW #5 to drive onto the Highway 410 northbound ramp and accelerate to a high rate of speed, while the SO became held up behind other traffic and fell behind. The SO observed the Scion to swerve around other northbound vehicles on Highway 410, as it gained speed and lengthened the distance between his vehicle and the Scion; he estimated his own top speed at approximately 140 km/h, while the Scion continued to pull away from him. The SO indicated that when he realized, while still on the 410 Highway, that he could not catch up to the Scion, he discontinued his efforts to catch up to the vehicle, instead turning off his emergency equipment and reducing his speed. The SO observed the Scion then exit Highway 410 at the Mayfield Road exit ramp, but by the time he reached the ramp, he had lost sight of the vehicle. He described the off ramp at Mayfield Road as an uphill grade which obstructed his view of where the Scion had gone.

The SO’s description of the fashion in which the Scion was being operated, up until this point in time, appears consistent with that of the Complainant, who described her husband as being in, “a full on race” with the Jeep driven by the SO. While no civilian witnesses came forward to provide information with respect to the Scion swerving around other traffic on the ramp to Highway 410, the evidence appears consistent with the observations of other civilian witnesses as to the manner by which the Scion swerved around other traffic on the on ramp to Mayfield Road, which is quite similar to the Highway 410 on ramp. On that basis, I find that the evidence of the SO to this point in time is consistent with the other available evidence and I accept it as accurate.

CW #9, who was also driving northbound on Highway 410, observed the red Scion pass him on his left side, and then cut in front of his vehicle. He placed the speed of the Scion at approximately 170 to 180 km/h and described the car almost striking his car as it cut in front of him. He further described the Scion then swerving around other northbound vehicles as it continued northbound. I find that this evidence is fully consistent with the SO’s observations.

CW #9 indicated that he only heard the whoop-whoop sound of a siren, as opposed to a continuous wail, as it approached his vehicle from behind some 15 seconds after the red Scion had passed and he did not observe any emergency lights. Approximately ten seconds later, he again heard a siren and he observed what he described as a black SUV passing him, and he associated the siren with that vehicle. He described this SUV as travelling at approximately 140 km/h and being driven cautiously, as opposed to in a reckless manner, as he described the manner in which the Scion was being driven. CW #9 estimated the distance, between the red Scion and the black SUV with the siren, as being some one to two kilometres and he opined that the SUV was following, rather than chasing, the Scion. He further indicated that he believed that the siren was only activated as the SUV passed him, as a method of alerting him that it was approaching.

While CW #9 had intended to exit at the Mayfield Road exit, he noted that, before he or the SO’s vehicle, which was travelling in front of him, could enter onto the ramp, there was a large cloud of dust ahead at the intersection of Mayfield Road and the Highway 410 off ramp.

CW #6, who was stopped in the right turn lane waiting to turn right onto Mayfield Road from the off ramp from Highway 410, was two vehicles back from a Subaru, which was the first car at the intersection, and a pick-up truck which was directly in front of him. CW #6 was waiting for the traffic signal to turn from red to green, when he observed a red Scion pass him on the right shoulder, at a speed that he placed in excess of 100 km/h. CW #6 observed the Scion to strike the curb, causing it to tip onto its left side wheels, with the right side wheels coming off the ground, at which point he lost sight of the vehicle.

CW #6 estimated that the Jeep driven by the SO did not arrive until some 30 to 60 seconds after the red Scion had passed him on the shoulder. CW #6 indicated that at the time of the SO’s arrival, while the SO did not have his siren going continuously, he did give short bursts of the siren in order to signal the cars at the intersection of his approach. CW #6 stated that he had not heard any siren as the Jeep came up the ramp to the intersection, and only heard the short blasts from the Jeep as it came upon the cars stopped at the intersection; he did not see any emergency lighting activated on the Jeep.

CW #7, who was in the vehicle with CW #6, observed the red Scion suddenly swerve behind them, onto the right shoulder, at speeds in excess of 100 km/h, and then go straight into the intersection and strike the Toyota. She estimated that the SO only arrived at the intersection between 30 seconds and one minute after the collision and she did not hear any sirens until the Jeep arrived at the scene.

CW #10 was driving his Ford pick-up truck and was stopped at the red light behind a black Subaru, which was the lead vehicle stopped at the Highway 410 off ramp intersection. He observed that the red Scion suddenly appeared on the shoulder to the right of his truck, travelling very fast, causing dirt and dust to be thrown up against his truck. He placed the speed of the Scion as in excess of 100 km/h and indicated that his truck shook when the Scion passed, so great was its speed. CW #10 observed the Scion enter the intersection, go straight over the median, and strike a Toyota. CW #10 stated that at no time did he see the brake lights from the Scion come on as it passed.

CW #10 described the SO’s Jeep as arriving some ten seconds after the collision, after the occupants of the Scion had already exited and run off and the Scion caught fire. CW #10 indicated that he also heard a “whoop-whoop” sound from the Jeep, but did not see any lights, and he described the Jeep as not appearing to pursue the Scion, as it moved through traffic in a calm and controlled manner at a speed of between 20 and 30 km/h. CW #10 opined that the Jeep was responding to the collision, not pursuing the Scion, and that it had no effect on the way in which the Scion was being operated or the subsequent collision.

According to CW #1, who was in the black Subaru being driven by his wife, CW #2, and the first vehicle in the line stopped in the curb lane waiting to turn right to travel eastbound on Mayfield Road, the red Scion drove past their vehicle, on the right side shoulder, twice clipping the Subaru on the passenger side as it passed. CW #1 estimated the speed of the Scion at approximately 130 to 140 km/h.

CW #1 then observed a Toyota on Mayfield Road heading westbound, waiting to turn left at the intersection, when the Scion drove across the median and collided with the Toyota on the driver’s side, causing all the airbags in the Toyota to deploy.

Within seconds following the collision, CW #1 observed the Jeep driven by the SO arrive, without its sirens activated.

CW #2 described the red Scion as having “appeared in a flash” as she was waiting for the traffic signal to turn green, and she estimated the speed of the Scion as being approximately 150 km/h as it attempted to pass them on the right side using the paved shoulder. The Scion clipped the right side of the Subaru, but did not stop, rather entering the intersection and striking a Toyota, which was stopped waiting to make a left turn.

CW #3, who was on Mayfield Road and saw the aftermath of the collision, stated that he did not hear a siren until after he had already placed and completed a 911 call, at which time he observed a Jeep, with no emergency lighting activated, approach.

CW #11, who was driving behind the Toyota on Mayfield Road approaching the Highway 410 off ramp intersection, observed the red Scion coming from the right turn lane, or from the shoulder to the right of the turn lane, where it drove around other cars, at a high rate of speed, and collided with the Toyota. Following the collision, CW #11 drove to the location where the two cars had come to rest, stopped there for about ten seconds, and then continued on Mayfield Road and pulled over some 40 metres ahead of the collision. As he passed the collision, CW #11 observed no emergency lights, nor did he hear any sirens, and it was not until approximately two minutes after he had pulled over that he first saw the SO arrive in his Jeep. He described the Jeep as not being driven fast and as coming to a controlled stop safely.

CW #4, who was the operator of the Toyota, indicated that after the collision it took him some three minutes to exit his vehicle, as his door was jammed and he had to climb into the back seat, where he was able to exit with the assistance of some citizens. CW #4 stated that only after those three minutes, did he first hear the sound of a siren.

The SO indicated that he also exited Highway 410 at the Mayfield Road off ramp, but that he did so at a normal speed arriving at the intersection to see that CW #5 had already collided with the Toyota, whereupon he turned right onto Mayfield Road and stopped his vehicle. He then observed CW #5 and the Complainant exit the Scion and run across Mayfield Road and jump over a guard rail and he pursued and arrested CW #5. When the SO asked CW #5 why he ran, CW #5 indicated that he was scared and did not want to go to jail.

WO #1, who stayed with CW #5 until the arrival of the ambulance, indicated that CW #5 told him that a car tried to pull him over and he got scared so he sped away and crashed into the Toyota.

Based on all of the evidence, it appears clear that CW #5 initially attempted to move in front of the SO’s Jeep, which was to his left on Sandalwood Parkway, as he wished to make a left turn ahead. Whether or not the SO was aware of CW #5’s intention is unclear, as it is unclear whether or not the SO actually saw the red Scion attempt to merge in front of him, and whether his closing the gap thereby preventing CW #5 from merging was intentional or because he was simply unaware. Regardless, based on the evidence of CW #5 and the Complainant, it is clear that CW #5 became outraged at his inability to merge in front of the SO’s Jeep and he then gestured at the SO before cutting him off. I have no doubt that, at that point, CW #5 was unaware that the SO was a police officer.

When CW #5 then observed that the SO was trying to stop him, by his own evidence, he sped off. It is clear from the evidence of those who observed CW #5’s driving, that CW #5 was driving at excessive speeds and that he was weaving in and out of traffic in an aggressive manner.

While I find that the SO initially activated both his emergency lighting system and siren in order to catch up to the red Scion and identify either the driver or the licence plate number of the vehicle, there is no evidence, with the exception of that from the Complainant, that the SO entered into a police pursuit with the Scion after his initial attempts to catch up and stop the vehicle. On the contrary, several civilian witnesses who observed the SO’s driving described it as calm, controlled, and not at an excessive rate of speed.

With respect to the evidence of the Complainant, I find that I am unable to place much reliance on her version of events, as it is materially contradicted by the nine civilian witnesses who either observed the SO driving on the highway, or observed his arrival at the collision scene. I have specifically made note of the evidence of the civilian witnesses at the collision scene that the SO only arrived at the collision scene well after the collision had occurred, with estimates ranging from ten seconds, up to three minutes, after the collision, and that no siren was heard prior to the SO’s arriving at the intersection, when he would intermittently activate his siren for the purpose of notifying and warning other motorists who were ahead of him. I also note that none of the witnesses, save one [1], saw the SO with his emergency lighting activated, and find this supports the account of the SO that he had disengaged his emergency equipment and slowed and fallen back prior to his exiting onto the ramp at Mayfield Road.

I have also placed particular emphasis on the evidence of CW #9, who observed both the Scion and the SO’s vehicle on Highway 410, and placed the police vehicle as travelling some one to two kilometres behind the Scion, and as only activating its siren in order to alert other traffic. Furthermore, CW #9 described the SO as following, as opposed to pursuing, the Scion, and described his manner of driving as cautious, and not reckless as was his description of the driving of the red Scion.

Finally, with respect to the Complainant’s evidence that the Jeep was right on their bumper, or within one car length behind, from the time that the SO first attempted to stop their vehicle, until the time of the collision, with her evidence being that the SO drove up onto the grass behind the Scion, after the Scion lost control, this is clearly contradicted not only by the civilian witnesses, but also by the forensic evidence and the photos as to the location of the vehicles, which had not been moved prior to the arrival of SIU investigators. As such, I find that I must reject the evidence of the Complainant in its entirety, except with respect to those points which are confirmed by other evidence.

Having considered all of the evidence, then, I find that upon observing CW #5’s aggressive driving, including both cutting off his vehicle and weaving in and out of traffic at excessive rates of speed, the SO initially attempted to catch up to the red Scion to either perform a vehicle stop or to identify the vehicle and driver. However, when the Scion continued to be driven in a dangerous manner, and at such speeds as prevented the SO from safely catching up to the vehicle, he deactivated both his siren and emergency lighting system, only intermittently engaging his siren to alert other drivers of his approach. I further find that the SO had ceased any attempts of stopping the Scion long before the Scion took the off-ramp to Mayfield Road, passed other vehicles at excessive rates of speed on the right shoulder, entered the intersection against the red light, and collided with the Toyota.

I find that this version of events is not only fully supported by the civilian witnesses, but by the Complainant herself, who indicated that they did not exit their motor vehicle for some 20 seconds after the collision, from which I would have expected that, had the SO already been on scene, he would have approached to arrest CW #5, and not waited until he had run off and jumped the guard rail into the wooded area.

On all of the evidence, it is clear that the SO had reasonable grounds to initially attempt to stop and investigate the red Scion as a result of its excessive speed and manner of driving, and he was acting lawfully when he initially activated his emergency equipment and tried to either stop or identify the driver or vehicle.

Thereafter, based on the evidence of all of the civilian witnesses, and consistent with the evidence of the SO, I find that he abandoned any attempt to either perform a vehicle stop or to catch up to the subject vehicle, in favour of public safety, and simply followed at a lesser speed and with calm and caution.

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, 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, as confirmed by the scene photos, that at the time of this incident the weather was clear and dry and visibility was good. While the evidence was that traffic was between moderate and heavy, it being approximately 6:24 pm on a Saturday, there is no evidence that the SO’s driving at any time interfered with any other traffic and, while he momentarily accelerated to try and perform a vehicle stop, the evidence appears to confirm that his vehicle only travelled at a high speed for a brief matter of seconds, and that his speeds, while in excess of the speed limit, were not excessively so.

On the evidence of the civilian witnesses, I find that CW #5 was driving at a far greater speed than was the SO and that he lost control of his vehicle, resulting 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 extreme rate of speed with no regard for other people using the highway, ultimately causing the collision which resulted in his passenger’s injuries. As such, I find that there is no nexus between the driving of the SO and the collision and subsequent injuries sustained therein.

Having fully considered the evidence in this matter, as well as the law as set down by the Supreme Court of Canada as to the factors to consider in assessing whether or not I have reasonable grounds to believe that there is sufficient evidence to make out a charge of dangerous driving on the part of the SO, 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, and/or identify, 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. As indicated earlier, I also find that there is no nexus between the driving of the SO and the injuries sustained by the Complainant.

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: March 4, 2019


Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) The only witness who observed the SO to have his emergency lighting activated was CW #1, who indicated that he observed the roof lights activated. In this one regard CW #1 is clearly mistaken, as the SO’s vehicle was not, in fact, equipped with roof lights. [Back to text]