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SIU Director’s Report - Case # 19-PVI-056

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 two men, ages 20 and 21 (“Complainant #1” and “Complainant #2”).

The Investigation

Notification of the SIU

On March 16, 2019, at 4:07 a.m., the Ontario Provincial Police (OPP) reported an injury to two unknown males. At 3:05 a.m., a police officer was doing stationary laser radar on the Queen Elizabeth Highway (QEW) when a vehicle went through the radar at 134 km/h eastbound. The police officer turned on the cruiser’s emergency lights and started from the shoulder of the road. The vehicle appeared to be pulling over and then made a wide high-speed turn onto Highway (Hwy) 406. The police officer turned off the emergency lights but continued on to Hwy 406 and lost sight of the vehicle. The police officer continued on Hwy 406 passing the 4th Avenue exit with no vehicle observed. Another OPP cruiser came upon the vehicle rolled over on the 4th Avenue ramp and the original police officer then arrived. The male occupants had to be cut out of the vehicle and were taken to the St. Catharines Hospital. The driver was transferred to Hamilton General Hospital via air ambulance. 
 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2 

SIU forensic investigators attended the scene and a diagram was prepared using Total Station. The scene was photographed. An SIU reconstruction investigator attended the scene and submitted an abbreviated collision reconstruction report.

Complainants:

Complainant #1 20-year-old male interviewed, medical records obtained and reviewed
Complainant #2 21-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

At the start of the pursuit the QEW had four lanes of paved asphalt roadway travelling eastbound. The posted speed limit was 100 km/h.

At the off-ramp for Hwy 406 the right-hand lane becomes dedicated to the off-ramp and three lanes continue eastbound. The third lane has a choice of continuing eastbound on the QEW or taking the Hwy 406 off-ramp. The Hwy 406 off-ramp has two lanes with a posted advisory speed of 70 km/h.

The Hwy 406 off-ramp merges with the off-ramp from the QEW westbound to Hwy 406 and then becomes two lanes southbound of paved asphalt roadway. The posted speed limit is 100 km/h.

The distance from the SO’s approximate starting position and Hwy 406 at 4th Avenue is about five kilometres.

In the area of the collision 4th Avenue is a four-lane paved asphalt road which permits two lanes of eastbound and two lanes of westbound vehicular movement. It intersects Hwy 406 and passes over top by way of a concrete bridge. At the eastbound approach there are additional left turn and right turn lanes.

The 4th Avenue off-ramp intersects with westbound 4th Avenue some 66 metres west of the west edge of Hwy 406. The width of 4th Avenue is 24.4 metres. A 2.5 metre-wide concrete sidewalk and a block retaining wall over two metres high border the south side of 4th Avenue across the street from the southbound Hwy 406 off-ramp.

Street lamps are located in the area of this collision on the south side of 4th Avenue and they were functioning at the time of this investigation.

The speed limit on 4th Avenue was posted at 50 km/h. The posted advisory speed for the ramp is 60 km/h.  

Scene Diagram

Scene diagram

Forensic Evidence


Global Positioning Satellite (GPS) Data


A review of the GPS Archive for the vehicle driven by the SO was compared with the Google Earth program to show the location and speeds travelled. The GPS coordinates were identified by order numbers. The GPS Archive order numbers that concerned the pursuit commenced at 1474.

Order number 1474: The SO was stopped on the south side shoulder of the QEW near an overhead electronic traffic sign. She began to travel eastbound.

Order number 1488: Just before the Hwy 406 off-ramp she was travelling 174 km/h. This was her highest speed.

Order number 1492: The officer slowed to 114 km/h as she entered the Hwy 406 off-ramp.

Order number 1498: As the SO came out of the curve on the off-ramp she accelerated to 148 km/h on a straight stretch of Hwy 406.

Order number 1502: Between the off-ramp and 3rd Avenue Louth overpass, the SO’s top speed was 155 km/h.

Order number 1520: Between the 3rd Avenue Louth overpass and the 1st Street Louth overpass, the SO’s top speed was 135 km/h.

Order number 1525: After the 1st Street Louth overpass, the SO slowed to 97 km/h.

Order number 1536: After the 1st Street Louth overpass, the SO continued at 114 km/h.

Order number 1542: The SO continued past the 4th Avenue off-ramp at 129 km/h.

The SO did not come to a stop between the QEW and Hwy 406 past the 4th Avenue off-ramp.

Further review showed that the SO continued southbound on Hwy 406 to the Glendale Avenue off-ramp and exited. She then came back northbound on Hwy 406. She then took the 4th Avenue off-ramp to the collision scene.

Expert Evidence


SIU Collision Reconstruction Report


Near 2:50 a.m., March 16, 2019, Complainant #1 drove a 2018 BMW 440 southbound on Hwy 406 at a high rate of speed. Complainant #2 was a front seat passenger and both occupants were belted in. At a speed of 222 km/h Complainant #1 exited the off-ramp for westbound 4th Avenue and exceeded the critical curve speed for that ramp. The BMW rotated clockwise while traveling southbound, mounted the concrete curb for the off-ramp island then crossed the westbound lanes of 4th Avenue. The BMW struck the concrete curb of the centre median and became airborne, crossing the eastbound lanes of 4th Avenue while continuing to rotate clockwise. The right front corner impacted the retaining wall 1.9 metres above the ground on the south side of 4th Avenue at 77 km/h.

The SO had pursued the BMW on the QEW using a marked OPP Dodge Charger just prior to the collision. The precise location of OPP Unit during this event was unknown but there was no evidence that it had contacted the BMW or anything else at any time.

Communication Recordings

At 02:56:15 a.m., the SO radioed that a dark-coloured car had failed to stop for her. At 02:56:37 a.m., she added the car had a spoiler on the back. At 02:57:10 a.m., she indicated she had clocked the car at 134 km/h.

At 02:57:48 a.m., WO #1 radioed in “PI with vehicle at 4th Avenue”. There was a difference of one minute and 33 seconds from when the SO called in the fail to stop until the collision was discovered. Complainant #1 was checked on CPIC (Canadian Police Information Centre), which showed him to be a suspended driver.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP Niagara Detachment (Highway Safety Division):
  • Computer Aided Dispatch Details;
  • Event Chronology;
  • Communication recordings;
  • GPS Data and Instructions;
  • Letter with the SO’s training information;
  • Notes of witness officers and the SO;
  • Occurrence Details; and
  • Witness Statements of civilian witnesses.

Materials obtained from Other Sources

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

  • Medical Records of Complainant #1 related to this incident; and
  • Medical Records of Complainant #2 related to this incident.

Incident Narrative

The events in question are clear on the evidence collected by the SIU in its investigation, which included statements from the SO, Complainant #1 and Complainant #2, GPS data associated with the SO’s vehicle, and information derived from the SIU’s forensic examination of the scene and police communications recordings. In the early morning hours of March 16, 2019, the SO was stationary in her marked police cruiser on the southside shoulder of the QEW in the area of Seventh Street Louth. She was conducting radar enforcement of traffic traveling eastbound on the highway. Shortly before 3:00 a.m., Complainant #1’s BMW drove past the SO’s location and was clocked doing 134 km/h. The SO decided to stop Complainant #1’s vehicle for speeding.

The SO pulled onto the highway and accelerated eastbound in an effort to catch up to the BMW, reaching a top speed of 174 km/h in the process. Complainant #1 took the next off-ramp to exit onto Highway 406, followed at a distance by the SO. The officer followed Complainant #1 onto the ramp, activating her emergency lights about this time. Complainant #1 changed lanes, leading the SO to believe he was pulling over. He was not. Rather, Complainant #1 picked up speed and increased the distance between the vehicles as he headed south on Highway 406. The SO eventually lost sight of the BMW’s taillights, whereupon she contacted the communications centre to report that a car clocked at 134 km/h had failed to stop. The SO turned off her emergency lights and continued along Highway 406.

The SO had travelled as far as Glendale Avenue when she received word over her radio of a single motor vehicle collision at Fourth Avenue and Highway 406. The officer doubled-back to the location of the collision, and, upon arrival, observed Complainant #1’s vehicle crashed against a retaining wall on the south side of Fourth Avenue across from the off-ramp from Highway 406.

Complainant #1 had entered onto the Fourth Avenue off-ramp from the highway at a speed over 220 km/h and lost control of his BMW. The vehicle careened over the traffic island lining the off-ramp and struck the centre median on Fourth Avenue, whereupon it went airborne before striking the concrete retaining wall. Arriving firefighters and paramedics assisted in extricating Complainant #1 and Complainant #2 from the demolished vehicle, and they were taken to hospital.

Relevant Legislation

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.

Section 320.13(2), Criminal Code – Dangerous operation causing bodily harm

320.13 (2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.


Analysis and Director's Decision

On March 16, 2019, Complainant #1 crashed his vehicle as he attempted to exit Highway 406 onto Fourth Avenue in St. Catharines. With Complainant #1 as a front seat passenger at the time was Complainant #2. Complainant #1 suffered spinal fractures and required surgery. Complainant #2 sustained facial injuries, but otherwise emerged unscathed from the collision. The SO had briefly pursued Complainant #1’s vehicle prior to the crash. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that the officer committed a criminal offence in connection with this matter.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. As an offence of penal negligence, the crime is 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. The evidence, in my view, falls well short of suggesting the SO breached the standard of care in the way she engaged with Complainant #1 prior to the collision. The SO was within her rights in seeking to stop Complainant #1 for a speeding infraction; she had clocked him travelling more than 30 km/h over the speed limit on Highway 406. Moreover, the officer was never very close to Complainant #1. Though the SO accelerated to more than 170 km/h, Complainant #1 matched and exceeded her speed, lengthening the distance between their vehicles. As soon as the SO lost sight of the BMW, she promptly de-activated her emergency lights and reported what had just occurred over the radio. By the time Complainant #1 attempted to exit the highway onto Fourth Avenue at more than 200 km/h, crashing his vehicle in the process, the SO was nowhere in the vicinity. In fact, the officer drove past the collision site some time later not realizing what had happened. In the circumstances, it certainly cannot be said that the officer unduly pushed Complainant #1 or otherwise prevented him from slowing down or coming to a safe stop had he been inclined.

Of some concern is the SO’s speeds on Highway 406, topping out at 174 km/h. The officer’s speed, however, must be understood in context. As the SO started from a stopped position when the BMW sped past her, one can appreciate the need for the officer to accelerate well past the speed limit to catch up with Complainant #1. Thereafter, the SO’s speeds never exceeded 155 km/h as she chased the BMW and were for the most part in the neighbourhood of 130 km/h before the officer turned off her emergency lights, disengaged and slowed further. It is also important to note that the environmental conditions at the time did not exacerbate the risks inherent in the speed at which the SO was traveling: there was little traffic on the roadway, the roads were dry, and visibility was good. On this record, I am satisfied that the SO, though exempt from the speed limit under section 128(13)(b) of the Highway Traffic Act, did not speed at the expense of public safety.

In the final analysis, in the context of a very brief engagement transpiring over approximately four kilometres and a couple of minutes, I am satisfied on reasonable grounds that the SO exercised a level of care within the limits prescribed by the criminal law. Consequently, there are no grounds for proceeding with charges in this case and the file is closed.


Date: October 21, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit