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SIU Director’s Report - Case # 18-OVI-169

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 serious injuries sustained by a 26-year-old woman (the “Complainant”).

The Investigation

Notification of the SIU

On June 5, 2018, the Durham Regional Police Service (DRPS) reported the following:

On May 28, 2018, at 10:24 p.m., DRPS officers were in pursuit of a vehicle with suspects wanted in a theft investigation. The vehicle struck five cruisers and two civilian vehicles, including one being driven by the Complainant. The Complainant complained of a sore shoulder and was taken to a hospital. The Complainant was released without any known serious injuries; however, she did have a medical history for the involved shoulder.

The DRPS advised that on June 4, 2018, they were contacted via email that the Complainant had suffered a fracture to the involved shoulder, but the medical report was unclear if this was a new injury.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned:

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed
WO #11 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
SO #3 Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

It should be noted that the major road known as Brock Street changes to Baldwin Street north of Taunton Road. The route of the pursuit followed Brock Street south to Rossland Road and east along Rossland Road into Oshawa. The first portion of the pursuit was described as a “strategic following” with no emergency equipment activated. That portion covered a distance of 5.5 km. At the intersection of Rossland Road and Garrard Street, emergency equipment was activated and several attempts were made to stop the fleeing van. The pursuit portion covered a distance of 3.2 km. The van that the CW was driving was stopped in the area of Rossland Road and Hortop Street, just west of Carnegie Avenue and Rossland Road.

Brock Street and Rossland Road were both four lane roadways for the majority of this distance with two lanes in each direction. The speed limit is 60 km/h throughout the route.

Rossland Road is a busy commuter route but has light traffic in the late evening hours. Pedestrian traffic is minimal at most times.

The entire route had artificial lighting at night.

Forensic Evidence

The following is the summary of Subject Officer (SO) #1’s GPS/AVL data:

  • At 10:35 p.m., SO #1, engaged in the pursuit, travelled southbound on Brock Street North, just north of Taunton Road, in the area of 200 Taunton Road West [at the intersection of Brock Street and Taunton Road, where the Real Canadian Superstore and Walmart Superstore were located] at 104.91 km/h.
  • At 10:35 p.m., SO #1 travelled southbound on Brock Street North, just south of Taunton Road, at 111.93 km/h.
  • At 10:35 p.m., SO #1 travelled southbound on Brock Street North, south of Timber Mill Avenue, at 137.23 km/h.
  • At 10:35 p.m., SO #1 travelled southbound on Brock Street North, south of Woodlands Avenue, at 110.22 km/h.
  • At 10:35 p.m., SO #1 travelled southbound on Brock Street North, north of Rossland, at 105.15 km/h.

The remainder of the GPS data did not reveal any further significant speeds.

The following is the summary of SO #2’s GPS/AVL data:

  • At 10:34 p.m., SO #2, in response to the call for service, travelled westbound on Taunton Road East, just west of Garrard Road, at 101.81 km/h.
  • At 10:34 p.m., SO #2 travelled westbound on Taunton Road East, just west of Garrard Road, at 103.33 km/h.
  • At 10:34 p.m., SO #2 travelled westbound on Taunton Road East, just east of Thickson Road, at 117.87 km/h.
  • At 10:34 p.m., SO #2 travelled westbound on Taunton Road East, west of Thickson Road, at 97.97 km/h.
  • At 10:34 p.m., SO #2 travelled westbound on Taunton Road East, west of Thickson Road, at 105.05 km/h.
  • At 10:34 p.m., SO #2 travelled westbound on Taunton Road East, east of Anderson Street, at 126.66 km/h.
  • At 10:34 p.m., SO #2 travelled westbound on Taunton Road East, west of Anderson Street, at 139.54 km/h.
  • At 10:35 p.m., SO #2 travelled westbound on Taunton Road East, east of Garden Street, at 116.66 km/h.
  • At 10:35 p.m., SO #2 travelled westbound on Taunton Road East, west of Garden Street, at 115 km/h.
  • At 10:35 p.m., SO #2 travelled westbound on Taunton Road East, east of Brock Street North, at 103.29 km/h.
  • At 10:35 p.m., SO #2 travelled westbound on Taunton Road East, at Brock Street North, at 39.24 km/h.


Pursuit on Brock Street North

  • At 10:35 p.m., SO #2, engaged in the pursuit, travelled southbound on Brock Street North, south of Taunton Road East, at 128.97 km/h.
  • At 10:36 p.m., SO #2 travelled southbound on Brock Street North, just north of Woodlands Avenue, at 150.71 km/h.
  • At 10:36 p.m., SO #2 travelled southbound on Brock Street North, just north of Dryden Boulevard, at 140.4 km/h.
  • At 10:36 p.m., SO #2 travelled southbound on Brock Street North, just south of Dryden Boulevard, at 127.69 km/h.
  • At 10:36 p.m., SO #2 travelled southbound on Brock Street North, just north of Rossland Road East, at 99.98 km/h.


Pursuit on Rossland Road East

  • At 10:36 p.m., SO #2 travelled eastbound on Rossland Road East, just east of Brock Street North, at 58.14 km/h.
  • At 10:37 p.m., SO #2 travelled eastbound on Rossland Road East, just east of Brock Street North, at 114.87 km/h.
  • At 10:37 p.m., SO #2 travelled eastbound on Rossland Road East, just west of Garden Street, at 82.65 km/h.
  • At 10:37 p.m., SO #2 travelled eastbound on Rossland Road East, just west of Garden Street, at 17.39 km/h.

The remainder of the GPS data did not reveal any further significant speeds.

The following is the summary of SO #3’s GPS/AVL data:

At 10:35 p.m., SO #3 travelled northbound on Brock Street North from Rossland Road East at 57.68 km/h and made a U-turn near the area of Dryden Boulevard where he proceeded southbound on Brock Street North with a maximum speed of 91.8 km/h.

At 10:36 p.m., he turned eastbound onto Rossland Road East and reached a top speed of 77.92 km/h.

The GPS data did not reveal any significant speeds.

Video/Audio/Photographic Evidence

Closed-circuit television (CCTV) video from the Real Canadian Superstore located at Brock Street and Taunton Road showed three men shoplifting [two of the men are now known to be the civilian witness (CW) and another civilian] a large quantity of goods from the store and then exiting to the parking lot. In the parking lot WO #3 is visible pursuing and apprehending one suspect.

CCTV video footage from the Walmart Superstore also located at Brock Street and Taunton Road, showed a large van [now known to be the van driven by the CW] leaving the northeast exit from the parking lot and travelling south on Baldwin Street which changes to Brock Street at Taunton Road. A cruiser believed to be the unit operated by SO #1 travels in the same direction and is visible driving southbound on Baldwin Street with its emergency lights activated. The cruiser is out of sight as it crosses Taunton Road.

Communications Recordings

The DRPS communications recording commences on May 28, 2018 10:29:11 p.m.

At 10:24:13 p.m., a Communications Operator (C/O) dispatched SO #1 and WO #1 to a theft in progress at the Real Canadian Superstore reporting that three males had been loading their carts with products and provided a description of each suspect. WO #3 accepted the call as well. Shortly afterward SO #2 reported he was heading in that direction as well.

At 10:34:16 p.m., WO #3 was heard shouting to someone in the background to get on the ground and he then reported he had one person in custody.

At 10:34:49 p.m., SO #1 and WO #1 reported a burgundy van taking off southbound on Baldwin Street (Brock Street) with no lights on. When asked whether or not they were in pursuit they responded that they were not and reported that the van was travelling at high speed southbound but that they were backing off. At 10:35:25 p.m., SO #1 and WO #1 reported the van as eastbound on Rossland Road from Brock Street and that they were prepared to stop at Brock Street and Rossland Road.
At 10:36:30 p.m., SO #2 reported the van still eastbound on Rossland from Brock.

The C/O confirmed with SO #1 and WO #1 whether or not they were ever in pursuit and they responded that they were never. SO #1 and WO #1 confirmed that they had not obtained a vehicle marker and that they had not activated emergency equipment, and were strictly trying to follow it.

At 10:37:16 p.m., SO #3 reported that the van just went through the traffic light at Garden and Rossland and then reported the van continuing to go through red lights on Rossland Road. SO #3 reported the van was quite a bit ahead of him and as they travelled east reported the van going through the traffic lights at Anderson Street and at Thickson Road. He described his actions as continuing to strategically follow. He was able to obtain the licence plate number from the van and the dispatcher reported it as being from Toronto. SO #3 asked whether or not the DRPS helicopter was working but was advised it was not.

At 10:39:59 p.m., an unknown male voice asked if they were trying a rolling block but SO #1 and WO #1 reported the van driving through a townhouse parking lot and coming back onto Rossland Road.

At 10:40:31 p.m., SO #2 reported that the pursuit was still eastbound on Rossland, coming up to Thornton and that they were driving at about “60” but the van was not pulling over.

WO #8 asked if the cars could box him in and other units responded that they would try. The dispatcher asked whether or not this was now a pursuit and SO #2 replied that it was. He added that he was trying to box him in, with his car in front.

At 10:42:21 p.m., SO #2 reported they had reached Gibbons Street and that the van had made contact with or rammed several cruisers including his own.

At 10:42:53 p.m., SO #2 requested other units to keep the van in the eastbound lanes and then suggested that the van needed to be stopped.

At 10:43:56 p.m., SO #2 reported the van at Simcoe Street and Rossland Road and that it had just rammed several cruisers and moments later reported that the vehicle was stopped at Rossland Road and Hortop Street.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from DRPS:
  • Briefing Notes-WO #5;
  • Collision Field Notes-WO #10;
  • Collision Overview Map prepared by WO #10;
  • Detailed Call Summary (x4);
  • DRPS Witness Statement;
  • Email from the Complainant to WO #8 re Injury Update-May 30, 2018;
  • General Occurrence Report (x6);
  • GPS Data Table (x13);
  • List of Involved Officers and Roles;
  • Motor Vehicle Accident Report (x9);
  • Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9 and WO #11;
  • Procedure-Suspect Apprehension Pursuits; and
  • Will State of WO #1, WO #2, WO #3 (x3), WO #4, WO #6, WO #7, WO #8, WO #9 and WO #11.

Incident Narrative

The following is clear from the information gathered by the SIU, which included statements from the Complainant, the CW (the driver of the fleeing van), SO #3 and a host of witness officers, police communication recordings, and GPS data associated with the police cruisers. As was their legal right, neither SO #1 nor SO #2 provided statements to the SIU. At about 10:30 p.m., DRPS officers were dispatched to the Real Canadian Superstore at Brock Street North and Taunton Road East, Whitby, in relation to a theft of merchandise. The CW and a couple of associates were the suspects in the theft. The CW entered a van in the parking lot and proceeded south along Brock Street North followed by SO #1 and his partner, WO #1. They travelled down the roadway and followed as the CW turned left onto Rossland Road. The officers were soon joined by other police cruisers who took up positions around the van.

The convoy of vehicles proceeded east toward Oshawa. Though their speeds were fairly moderate on Rossland Road, the CW disregarded red traffic control signals at a number of intersections and entered the westbound lanes of travel on occasion. At a point east of Garrard Street, it was decided that the officers would attempt to stop the van by performing a “rolling block”. The maneuver entails the positioning of cruisers around the target vehicle with the intention of ultimately bringing it to a standstill. On the first such occasion, the CW was able to elude the cruisers by driving south into the parking lot of a townhouse complex in the area of 899 Rossland Road, and thereafter re-emerging and continuing east on Rossland Road. On the second occasion, with SO #1’s cruiser behind the van, SO #2’s in front of the CW and SO #3 driving alongside the driver’s side of the van, the CW steered northward and sideswiped SO #3’s cruiser. SO #3’s cruiser was struck a second time by the van as the CW drove across the south sidewalk and made contact with two parked vehicles in a private driveway at 655 Christie Avenue before returning to the roadway.

It was around this time that the Complainant was traveling east along Rossland Road in her Chevrolet Malibu. She stopped her vehicle and pulled to the south curb. As the Complainant did so, the van struck the rear driver’s side of her vehicle before passing it on the driver’s side. The van continued east a short distance and collided head on with WO #9’s cruiser in and around the area of the Rossland Road and Hortop Street intersection. The van came to a stop in the west lanes of Rossland Road at Carnegie Avenue, where it was surrounded by several DRPS cruisers. The time was about 10:45 p.m. The CW was extricated from the vehicle and placed under arrest.

Relevant Legislation

Section 219 and 221, Criminal Code -- Criminal negligence causing bodily harm

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.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years

Section 249, Criminal Code -- Dangerous operation of motor vehicles, vessels and aircraft

249    (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
 

Section 128(13)(b), Highway Traffic Act – Police vehicles and speeding

128(13) The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,

(b) a police department vehicle being used in the lawful performance of a police officer’s duties.

Analysis and Director's Decision

On May 28, 2018, the Complainant suffered a broken shoulder when her vehicle was struck by a van being pursued by DRPS officers. Though not the only officers involved in the pursuit, SO #1, SO #2 and SO #3, each driving their own cruisers, took a lead role and were designated subject officers in the SIU’s investigation. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that any of the subject officers committed a criminal offence in connection with the circumstances surrounding the Complainant’s injury.

The offences that arise for consideration on this record are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to sections 249(3) [1] and 221 of the Criminal Code respectively. As offences of penal negligence, both crimes are predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances: R. v. Beatty, [2008] 1 SCR 49; R. v. Sharp (1984), 12 CCC (3d) 428 (Ont. C.A.). In my view, while there are aspects of the manner in which the pursuit was conducted that are open to legitimate scrutiny, the evidence does not give rise to a reasonable belief that any of the subject officers transgressed the limits of care prescribed by the criminal law. The speeds attained by the subject officers’ cruisers as they initially engaged the CW’s van south on Brock Street are a cause of some concern. The GPS data indicate that the vehicles operated by SO #1 and SO #2 reached speeds upwards of 100 km/h in an area governed by a 60 km/h speed limit; the former topping out at about 137 km/h, the latter 150 km/h. SO #3 peaked out at approximately 92 km/h during this stretch of the pursuit. The rolling blocks that were attempted were also inherently dangerous given the proximity of the involved vehicles to each other. The same was true of the “PIT” maneuver that was executed just before the CW’s van crashed into WO #9’s vehicle, which requires that a police cruiser make intentional contact with a fleeing vehicle in order to bring it to a stop. [2]

On the other hand, the risks to public safety associated with the subject officers’ speed and their efforts to stop the CW’s van must be understood in the broader context of the law enforcement activity in which they were engaged. Thus, for example, they had reasonable grounds in my view to believe that the CW had just committed a criminal offence and were within their rights in attempting to stop him. As such, pursuant to section 128(13)(b) of the Highway Traffic Act, the officers were exempt from the governing speed limits. That is not to say that they had carte-blanche to speed as they wished; ensuring the safety of the public remains a police officer’s foremost duty at all times. However, it is an important factor that must be weighed in the balance. As are the facts that 1. traffic appears to have been relatively light throughout the officers’ pursuit of the CW on Brock Street and Rossland Road, and 2. the substantial velocities quickly decreased once the officers had caught up to the van and made the turn onto Rossland Road where their speeds were for the most part in the neighbourhood of the 60 km/h speed limit. As for the rolling block and “PIT” maneuver that were performed, while one might reasonably object to their use in an urban setting juxtaposed against the nature of the crime for which the pursuit had been initiated, namely, a property offence, they are recognized methods of apprehending a fleeing vehicle under certain conditions and prescribed as such in police policy and the regulation governing police pursuits in the province. [3] Moreover, given the dangerous driving on display by the CW, including driving through red lights and striking police and third party vehicles, one can appreciate why the officers believed it was imperative to stop the van using their vehicles as quickly as possible in the interests of public safety once it became apparent that the CW had no intention of stopping of his own volition.

Finally, it is worth noting that the officers had their emergency lighting activated on Rossland Road; the weather was clear, the roads dry and in good repair; and, the route of the pursuit was well illuminated by artificial lighting (suggesting the environmental conditions did not unduly exacerbate the dangers created by the pursuit of the CW’s van).

In the result, though it is fair to question the subject officers’ speeds and aggressive tactics over a pursuit of about eight to nine kilometres, I am not satisfied on reasonable grounds based on the extenuating circumstances set out above that their conduct ran afoul of the criminal law’s proscriptions in this area. Accordingly, there being no grounds for proceeding with charges against any of the subject officers in this case, the file is closed.


Date: July 16, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) Presently, section 320.13(2) of the Criminal Code. [Back to text]
  • 2) The DRPS investigator assigned to investigate the collision, in his SIU interview, indicated that SO #2 had reported that he conducted a “PIT” maneuver against the van, striking the driver’s side rear corner of the van with the passenger side front corner of his vehicle. [Back to text]
  • 3) O. Reg. 266/10. [Back to text]