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SIU Director’s Report - Case # 18-OVI-163

Contents:

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Mandate of the SIU

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

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

Information Restrictions

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

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


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

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

Other proceedings, processes, and investigations

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

Mandate Engaged

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

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

This report relates to the SIU’s investigation into the serious injury sustained by an 18-year-old male (the Complainant) during a motor vehicle collision on June 2, 2018.

The Investigation

Notification of the SIU

At approximately 11:00 p.m. on June 2, 2018, the London Police Service (LPS) notified the SIU of an injury sustained by the Complainant.
Initial information from the LPS was that at approximately 7:15 p.m. on that same date, the Complainant carjacked a Subaru SUV vehicle owned by a woman at a mall in the city. Ten minutes later, the LPS began to pursue the stolen vehicle. A minute later, the Complainant lost control of the vehicle and struck a tree in front of an address on North Vernon Avenue in the City of London. The Complainant then fled on foot but was arrested a short distance away from the collision scene. The Complainant was subsequently transported to hospital where he was diagnosed and treated for a lacerated liver. 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1
Number of SIU Collision Reconstructionists assigned: 1

Complainant:

18-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed (next of kin)
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed


Subject Officers

The SO Interviewed, notes received and reviewed


Evidence

The Scene

Route of Pursuit and Distance

  • The pursuit commenced on Fanshawe Park Road East, in the area of Adelaide Street North. The area is a mix of commercial and residential properties. Fanshawe Park Road is an east-west roadway. It is paved with two lanes in each direction and a posted speed limit of 60 km/h;
  • The pursuit continued eastbound on Fanshawe Park Road east and then turned right onto southbound Fremont Avenue. Distance: .4 kms;
  • Fremont Avenue is a residential area with two lanes and a posted speed limit of 50 km/h;
  • Left turn onto eastbound Clermont Avenue. Distance: .7 kms;
  • To the four way stop at Barrymont Avenue. Distance: .8 kms;
  • Right turn onto Barrymont Avenue, a residential area, leading to the entrance parking lot of A.B. Lucas Secondary School. Distance: .9 kms;
  • The SIU team retraced the route driving through the parking lot of the school exiting at the same point as the entry onto Barrymont Avenue. Distance: 1 km;
  • Northbound on Barrymont Avenue to the 4-way stop at Clermont Avenue. Distance: 1.1 kms;
  • Left turn onto Clermont Avenue and continued westbound. A residential area. Drove to the intersection of Clermont Avenue and North Vernon Avenue. Distance: 1.3 kms.
  • Left turn onto North Vernon Avenue and drove southbound to the scene of the collision at a residence on North Vernon Avenue. Distance: 1.4 kms

The Subaru motor vehicle, where it came to rest after crashing into a tree on the front lawn of a residential property on North Vernon Avenue.

The Subaru motor vehicle, where it came to rest after crashing into a tree on the front lawn of a residential property on North Vernon Avenue.

The two police vehicles involved in the pursuit, with the SUV operated by WO #1 on the front lawn and the police vehicle operated by the SO parked on the roadway in front of the residence.

The two police vehicles involved in the pursuit, with the SUV operated by WO #1 on the front lawn and the police vehicle operated by the SO parked on the roadway in front of the residence.

Scene Diagram

Scene diagram

Physical Evidence

GPS Data


Data from WO #1’s GPS record indicates that in the first ten seconds of the pursuit (while catching up), he reached a speed of 87 km/h. Otherwise, his speeds varied between the 40-60 km/h range. The SO’s highest speed was 85 km/h and otherwise varied between the 40-60 km/h range.


Pursuit Duration


After correlating the GPS data from both the SO’s cruiser and WO #1’s SUV, with LPS radio communications, it was determined that the pursuit was approximately one minute and 20 seconds in duration.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Expert Evidence

SIU Traffic Reconstructionist Analysis


The Reconstruction Report focused on assessing the loss of control of the Subaru and subsequent impact with the tree. 

The set of tire marks and the fluid stain that started near the middle of the road highlight the movement of the Subaru as the driver lost control and entered the front lawn and struck the tree. These marks continued from the road, crossed the sidewalk, and continued onto the grass lawn, up to the final resting position of the Subaru. 

The SIU Reconstructionist calculated the speed of the Subaru as the vehicle began to leave the tire marks. These calculations were based on the impact severity with the tree, the distance the vehicle traveled on the road/lawn, and the curvature of the tire marks. Based on tests, the Subaru sustained a speed change of between 30 and 50 km/h when it struck the tree. Since the Subaru came to rest adjacent to the tree, this range of severities is also the approximate speed at which the Subaru struck the tree. Some speed loss would be expected as the vehicle slid on the road, the sidewalk, and the grass. It is unknown whether the driver was braking aggressively once he lost control of the Subaru. The speed range calculations account for the driver not braking, up to his fully braking, as the vehicle was out of control. The more braking being applied by the driver, the faster the Subaru would have been initially travelling. If the driver was not braking when the vehicle started to yaw, the Subaru was likely initially traveling between 56 to 70 km/h. If the driver was fully braking, the Subaru was likely initially traveling between 81 to 91 km/h. If the driver was braking, but less aggressively than full braking, the Subaru was likely travelling in between these two ranges. 
 
It is important to note that there was only about 40 metres of distance for the Subaru to accelerate, once it turned onto North Vernon Avenue and before it began to lose control. Based on the calculated speed range at the moment the vehicle lost control, the Subaru accelerated rapidly once it entered North Vernon Avenue. This is consistent with witness accounts and police statements. 
 
Ultimately, the reason for the loss of control is unknown. It appears as though the vehicle lost control due to the high speed/acceleration of the vehicle as it turned left onto North Vernon Avenue from Clermont Avenue. 
 
In terms of contact between the police vehicle and the Subaru being pursued, there is no evidence to suggest that there was contact between the two vehicles. This is consistent with the loss of control of the Subaru being as a result of aggressive driving and driver error.

Video/Audio/Photographic Evidence

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

Communications Recordings

There were no time stamps on the police communication recording.

WO #1 is heard reporting that he had located the (stolen) vehicle and was following it. The radio transmissions indicate the route taken. After the Complainant left the schoolyard, the SO took over as the lead police vehicle in the pursuit and calmly reported the remaining route of the pursuit. The SO was heard to report that, as the Complainant turned left onto North Vernon Avenue, the Complainant appeared to be losing control. WO #1 was monitoring the pursuit, as was a sergeant in the communication area who had asked for a speed update just prior to the SO’s reporting that the Complainant had crashed into a tree and was now fleeing on foot.

Materials obtained from Police Service

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

  • Call Hardcopy;
  • General Occurrence Report;
  • 911 Call Recording;
  • Police Radio Transmissions Recording;
  • LPS Witness Statements of CWs #2-6;
  • LPS Witness Statement of three undesignated civilian witnesses (relevant to the carjacking at the Masonville Mall);
  • Notes of WOs #1-3 and the SO; and
  • Written Statements of WOs #1-3 and the SO.

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

  • Medical Records of the Complainant relating to this incident, obtained with his consent.

Incident Narrative

The events in question leading to the Complainant’s serious injury are clear on the evidence collected by the SIU, which included statements from the complainant, the subject officer, five independent civilian witnesses and three police witnesses, as well as the recording of the police transmissions leading up to and during the vehicle pursuit, the GPS data from the involved police vehicles, and the notes and written statements prepared by the subject officer and the three witness officers.

At 7:13:44 p.m. on June 2, 2018, a 911 call was received by the LPS reporting that a woman had just had her car stolen from the Masonville Mall, located at 1680 Richmond Street in the City of London. The caller reported that the culprit had assaulted the owner of a green Subaru motor vehicle, threatened to slash her with a knife, and then taken her keys and driven off with the motor vehicle. As a result, a number of police officers were dispatched to attempt to locate the motor vehicle and its driver. The driver of the Subaru, who had stolen the vehicle from the lawful owner, was the 18-year-old Complainant.

After the stolen motor vehicle was spotted by police officers, who transmitted the location of the vehicle out over the police radio, WO #1 took up a stationary position at the intersection of Fanshawe Park Road and Adelaide Street. The officer was operating a marked police SUV at the time. At approximately 7:29 p.m., WO #1 observed the stolen Subaru turn from Adelaide Street onto Fanshawe Park Road and proceed eastbound. He notified the dispatcher of his observations and that he was following the vehicle.

WO #1 then initiated a suspect apprehension pursuit of the Subaru and its driver, on the basis that the driver had just been involved in a serious violent crime and posed a significant risk to the community. WO #1 activated his vehicle’s emergency lighting system and siren. Shortly thereafter, WO #1 was joined by the SO, who was operating a marked police sedan, and also had his lights and siren activated.

The Complainant drove the Subaru into the roundabout at A.B. Lucas Secondary School on Tennent Avenue, and both officers blocked a portion of the roadway leading into, and out of, the school property. They did not completely block the roadway as they did not wish to make contact with the Subaru with their police vehicles, and thereby possibly cause an escalation of the situation. The Complainant, however, drove around the police vehicles and made his way onto Barrymont Avenue, and then westbound on Clermont Avenue. Both officers gave chase, with the SO’s sedan now in the lead behind the Complainant’s vehicle.

The roads were dry at the time, visibility was good, and vehicular / pedestrian traffic light in the area. The pursuit was being monitored by the communications supervisor, who was on the radio requesting details of the pursuit and ongoing updates.

As the Complainant turned southbound onto North Vernon Avenue, the Subaru began to fishtail and then swerved out of control. It proceeded to mount the west curb, and cross the sidewalk and then the front lawn of a residence on North Vernon Avenue, where it crashed into a tree.

During the pursuit, and up to the time that the Complainant lost control of the Subaru, the police vehicles were observed by a number of witnesses as being one to two car lengths behind the Subaru, with no police vehicle ever making physical contact with the Subaru. Witnesses in the area further described the Subaru as travelling at a high rate of speed, failing to stop for a stop sign and making a wide left turn onto North Vernon Avenue, before losing control and slamming into a tree.

The Complainant fled from the car but was arrested shortly thereafter following a short foot pursuit and transported to hospital.

There is no allegation that any police vehicle ever made physical contact with the Subaru. Furthermore, there is no dispute that the collision itself, and the Complainant’s loss of control of the Subaru, was due to his excessive rate of speed and his failure to adequately negotiate a curve in the road in his efforts to evade the police.

Nature of Injuries / Treatment

The Complainant was seen at hospital and treated for a lacerated liver.

Relevant Legislation

Section 249, Criminal Code -- Dangerous operation of motor vehicle 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

At approximately 7:30 p.m. on June 2, 2018, a Subaru motor vehicle operated by the Complainant slammed into a tree on the front lawn of a residence on North Vernon Avenue in the City of London, resulting in serious injuries to the Complainant. The Complainant sustained a 7 cm liver laceration as well as a partially collapsed lung. The SO of the LPS, the subject of the SIU’s investigation, had been engaged in a brief pursuit of the Complainant’s vehicle just prior to the collision. For the reasons that follow, I am satisfied he did nothing that would warrant criminal charges in relation to this matter.

The offence that arises for consideration in this case is that of dangerous driving contrary to then section 249 (recently amended to s. 320.13) of the Criminal Code. The offence is predicated on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. On a review of all of the evidence, I am satisfied that the manner in which the SO and WO #1 operated their police vehicles fell within the limits of care prescribed by the criminal law. The officers were within their rights under the regulation governing police pursuits in the province – O. Reg. 266/10 – to initiate a pursuit in this case. They had received information that the Complainant had just committed a violent criminal offence in stealing the Subaru, and they had good cause to believe that the Complainant posed a continuing threat to public safety. While each officer reached a top speed in the area of 85 km/h, it appears this occurred over a short period of time early in their engagement with the Complainant as they attempted to catch up to the stolen Subaru. Thereafter, the GPS data downloaded from the officers’ vehicles indicate that they travelled within a range of 40-60 km/h throughout the pursuit. Thus, while any pursuit necessarily entails some level of risk to its participants and third parties in its vicinity, the officers’ speeds did not appreciably contribute to that risk, especially in light of the favourable road (dry), traffic (minimal) and visibility (good) conditions. The officers’ regard for public safety was also manifest in the fact that they activated their emergency equipment during the pursuit and broadcast information about the pursuit as it unfolded, the latter facilitating the efforts of a senior officer to monitor what was happening. Finally, the Complainant was not in my view unduly pushed by the officers nor prevented by their efforts from operating his vehicle in a safe fashion despite the police vehicles being within one or two car lengths from the Subaru at points during the pursuit, a fact demonstrated by the space the officers left for the Subaru’s egress from the school parking lot. On this record, in the context of a pursuit that transpired over no more than a kilometre and a half and one to two minutes, I am satisfied that there are no reasonable grounds to believe that the officers either caused or contributed to the collision in question, or otherwise drove dangerously in violation of the Criminal Code.


Date: April 24, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit