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SIU Director’s Report - Case # 18-OVI-330

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 44 and 58 (“Complainant #1” and “Complainant #3), and one woman, age 65 (“Complainant #2”).

The Investigation

Notification of the SIU

On November 11, 2018 at 3:10 a.m., the Ottawa Police Service (OPS) reported the following. On November 11, 2018 at about 2:00 a.m., officers were involved in a pursuit of a stolen vehicle. The vehicle crossed over Montreal Road and the cruiser turned on its emergency lights. The stolen vehicle then made a left turn onto a street and struck a pole. The driver of the vehicle was taken to hospital with a suspected broken hip. The front passenger had a broken arm and the passenger in the rear had no injuries. The OPS did not have names of the occupants of the vehicle at this time.

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 2

Complainants

Complainant #1 44-year-old male interviewed, medical records obtained and reviewed
Complainant #2 65-year-old female interviewed, medical records obtained and reviewed
Complainant #3 58-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Not interviewed, but notes received and reviewed


Subject Officers

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


Evidence

The Scene

In the area of this collision Levis Avenue is a two-lane paved asphalt road which permits one lane of eastbound and one lane of westbound vehicular movement. The lanes are not delineated. Lemoine Street is a two-lane paved asphalt road which permits one lane of northbound and one lane of southbound vehicular movement. Except for a solid yellow centre line at the approach to Levis Avenue, the lanes are not delineated. Lemoine Street intersects with Levis Avenue at near right angles and only on the south side of Levis Avenue. Lemoine Street is controlled by a regulatory stop sign, a stop bar and a pedestrian crosswalk at the intersection. Levis Avenue comes to a dead end immediately east of Lemoine Street. The speed limit on both roads is not posted but presumed to be 50 km/h in accordance with section 128 (1) (a) of the Ontario Highway Traffic Act.

Scene Diagram

Scene diagram

Forensic Evidence


OPS Global Positioning System (GPS) Data Summary


The OPS provided the SIU with 14 snapshots of the GPS data for the SO’s cruiser. The following summarizes the time, location and speed the SO was operating his cruiser at various points.
  • At 1:19:56 a.m., the SO travelling westbound on Montreal Road in the vicinity of de l’Église Street, at 75 km/h;
  • At 1:20:08 a.m., westbound on Montreal Road at Ducharme Boulevard, at 69 km/h;
  • At 1:20:24 a.m., westbound on Montreal Road at Lafontaine Avenue, at 34 km/h;
  • At 1:21:05 a.m., westbound on Montreal Road at Mona Avenue, at 30 km/h;
  • At 1:21:24 a.m., westbound on Montreal Road at Lajoie Street, at 47 km/h;
  • At 1:21:27 a.m., southbound on Cody Avenue at 70 km/h;
  • At 1:22:45 a.m., eastbound on Levis Avenue, in the vicinity of Dupuis Street, at 90 km/h;
  • At 1:22:52 a.m., eastbound on Levis Avenue, in the vicinity of Altha Avenue, at 96 km/h;
  • At 1:23:00 a.m., eastbound on Levis Avenue, in the vicinity of Mona Avenue, at 84 km/h;
  • At 1:23:08 a.m., eastbound on Levis Avenue, east of Lafontaine Avenue, at 59 km/h;
  • At 1:23:16 a.m., eastbound on Levis Avenue, approaching Lemoine Street, at 45 km/h; and
  • At 1:28:16 a.m., the SO’s cruiser was stopped at Levis Avenue and Lemoine Street.

The time and distance calculated by using the OPS automated GPS maps indicated the SO pursued Complainant #1 for approximately 36 seconds and over a distance of approximately 886 metres.

Expert Evidence

November 11, 2018, at 10:47 a.m., the SIU Reconstructionist arrived on scene. A 2013 OPS Ford Taurus was unoccupied with engine not running, facing southeast across the northbound lane of Lemoine Street immediately south of Levis Avenue. There was no damage to this vehicle which could be attributed to this investigation. The position of the transmission lever for the automatic transmission was in “park”. The windshield wiper switch was “off”. The headlight switch was set to the “manual off” position. The windshield was clean. The police radio was on notwithstanding no key inserted in the ignition. The radio was set to medium volume. The FM radio was “off”. Attempts were made to download the Airbag Control Module (ACM) of this vehicle but the Crash Data Retrieval (CDR) would not communicate with it. Nonetheless, it was the author’s belief that because there was no evidence of a significant recent collision there would have been no data written to the ACM.

A 2003 Cadillac CTS was unoccupied without engine running, facing south across the eastbound lane of Levis Avenue at the northbound lane of Lemoine Street. Intrusion to the front was in the shape of a utility pole. The left front tire was flat. The right front tire was inflated to 29 psi, the left rear was inflated to 39 psi and the right rear was inflated to 37 psi. The front tires had a tread depth of 6 mm and the rear tires had a tread depth of 7 mm. The engine was not running and the ignition key was in the ignition. Both front airbags had deployed. All five seat belts were loose with no load mark on them. The ACM was physically removed at the scene and downloaded at the scene. The ACM data for the Cadillac indicated that its speed decreased from 68 mph (109 km/h) to 57 mph (91 km/h) to 42 mph (67 km/h) 3.0, 2.0 and 1.0 seconds prior to algorithm enable (AE) with brake application. The brakes were applied during the three seconds prior to AE.

A tire mark started at a point 6.2 metres north of the south edge of the pavement of Levis Avenue and 20.5 metres west of the east edge of the pavement of Lemoine Street. It followed a southeast path for 22.0 metres to the left front tire of the Cadillac CTS. A utility pole stamped 3-46 on the north side was located on the southeast corner of the intersection 0.6 metres south of the south edge of the pavement of Levis Avenue and 1.0 metres east of the east edge of the pavement of Lemoine Street. The tire marks which followed a southeast path to the left front tire of the Cadillac bore the characteristics of a yaw mark. The striations were at 60 degrees to their direction of travel and the mark possessed a decreasing radius as it approached the vehicle. Because the tire mark ended at the left front tire it was the author’s contention that the yaw mark was created by the left front tire of the Cadillac. The mark would have been made as Complainant #1 attempted a right turn, placing load on the left front tire. Complainant #1 was unsuccessful in negotiating the curve because he had exceeded the critical curve speed for a right turn from Levis Avenue to Lemoine Street.

The SIU Reconstructionist’s assessment of the collision yielded the following conclusions. At about 1:22 a.m. Sunday November 11, 2018, Complainant #1 was driving eastbound on Levis Avenue in Ottawa, Ontario. He had two passengers. It was a clear, cold and dry day. Complainant #1 was traveling 109 km/h and slowed to 95 km/h as he attempted a right turn to travel south on Lemoine Street. The speed limit on both roads is 50 km/h. Consequently Complainant #1 lost control of his vehicle as it went into yaw and the front bumper impacted a utility pole on the southeast corner of the intersection. The SO operated a marked OPS 2013 Ford Taurus, eastbound on Levis Avenue in pursuit of Complainant #1. It is unknown how far the SO was from Complainant #1 at the time of the collision. There is no evidence to suggest that the SO’s vehicle impacted the Cadillac at any time. The occupants in Complainant #1’ vehicle received serious injuries from this collision.

Communications Recordings

On November 11, 2018, the OPS provided the SIU with 52 communication files related to this incident. The following is a summary of salient excerpts from the communication recordings from November 11, 2018. At 1:23 a.m., [the SO], “I’m behind a 40 [1] I’m be going be southbound on Hanna from Montreal”. The dispatcher asks the SO if he is “not” in pursuit at this time. The SO advises he “is” in pursuit, “at Lafontaine still going eastbound, it almost collided with somebody, it’s at the end of Lévis now”. At 1:23 a.m., the SO advised dispatcher that “it just hit a pole, definitely 50, [2] all the power just went out here, gonna need ems and there is somebody crawling outside of the vehicle”. The dispatcher asks for other units to head that way.

At 1:24 a.m., the SO advised that he has “one 92, [3] two in the car, so roll a couple of buses, everyone is discombobulated, everything is fine people slow down”. At 1:25 a.m., the SO advised the passenger is relatively unresponsive, and to “roll” hydro because a pole has been hit and hydro is out for the whole block.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPS:
  • Computer-Assisted Dispatch Report;
  • Email re Training Record-Dec 4, 2018;
  • GPS Map-the SO’s vehicle;
  • Notes of all witness officers;
  • Radio Log-the SO;
  • Repair estimates-the SO’s vehicle;
  • Training Record-the SO-Redacted;
  • Communications Tape;
  • Training Record-Suspect Apprehension Pursuits; and
  • Will State of witness officers.

Incident Narrative

The material events in question are relatively clear on the information gathered by the SIU, thanks in large measure to the GPS data associated with the SO’s cruiser, police communication recordings, and statements from each of the persons involved in the collision. At about 1:23 a.m. on November 11, 2018, the SO was on duty in his cruiser when he initiated a pursuit of the Cadillac sedan. He had come across it and learned after running its plate that it had been reported stolen in October. The Cadillac was being operated by Complainant #1. In the vehicle as his passengers were Complainant #2 and Complainant #3, who had accepted a ride home from Complainant #1 after a night out of drinking at a bar on Montreal Road and Durocher Street. When Complainant #1 noticed the SO’s cruiser behind him, he accelerated away from the cruiser.

The pursuit began in the area of Montreal Road and Cody Avenue. The vehicles travelled south on Cody Avenue, then turned left onto Lévis Avenue where they continued at speed until the roadway’s intersection with Lemoine Street. Complainant #1 attempted to make a right hand turn onto Lemoine Street but lost control of his vehicle, whereupon it collided with a utility pole at the southeast corner of the intersection. The SO had his emergency lights activated for the duration of the pursuit. He stopped his cruiser just south of the Cadillac and proceeded to place Complainant #1 under arrest. Paramedics were called to the scene and transported Complainant #1, Complainant #2 and Complainant #3 to hospital, where they were treated for various fractures.

Relevant Legislation

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 136, Highway Traffic Act -- Stop at through highway

136 (1) Every driver or street car operator approaching a stop sign at an intersection,
(a) shall stop his or her vehicle or street car at a marked stop line or, if none, then immediately before entering the nearest crosswalk or, if none, then immediately before entering the intersection; and 

(b) shall yield the right of way to traffic in the intersection or approaching the intersection on another highway so closely that to proceed would constitute an immediate hazard and, having yielded the right of way, may proceed.

Analysis and Director's Decision

On November 11, 2018, Complainant #1 was operating a Cadillac sedan when it collided with a utility pole at the southeast corner of the intersection of Lévis Avenue and Lemoine Street in Ottawa. Complainant #2 and Complainant #3 were passengers in the vehicle. All three individuals sustained fractures in the collision. The SO was in pursuit of the Cadillac sedan when it collided with the pole. For the reasons that follow, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the collision.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 249(3) [4] of the Criminal Code. As a crime of penal negligence, the offence is predicated, in part, on conduct that amounts to a marked departure from the standard of care that a reasonable person would have observed in the circumstances. It is important to begin by noting that the SO was within his rights under the regulation governing police pursuits [5] in the province in commencing a pursuit of the Cadillac. He had information that the vehicle had been reported stolen and was entitled to seek to stop it to investigate a potential criminal offence. The pursuit itself was very brief, transpiring over a distance of less than one kilometre and under a minute in time. In that interval, the SO alerted the communications centre that he was in pursuit, provided information regarding his location and had his emergency lights activated. The maximum speeds reached by the SO are of some concern. For example, his cruiser was traveling in excess of 90 km/h at points along Lévis Avenue, a 40 and 50 km/h zone. Similarly, though there was no direct evidence on this point, the fact that the SO likely travelled through one or more stop signs without first bringing his vehicle to a complete stop is subject to legitimate scrutiny. While the SO ought to have stopped at the stop signs in compliance with section 136(1) of the Highway Traffic Act, there is no evidence to suggest that these indiscretions actually placed the safety of any uninvolved third parties in danger. Having said that, the SO’s speed may well have contributed to the speeds reached by Complainant #1 as he tried to get away, contributing to his loss of control over the Cadillac that resulted in the collision. While that may well be true, it is only true to an extent. The fact remains that Complainant #1 was bent on escape and must assume the lion’s share of the responsibility for traveling as fast as he was. In the final analysis, given the nature of the SO’s short-lived engagement with the Cadillac, I am unable to reasonably conclude that the officer conducted himself in a manner that reflected a marked deviation from a reasonable level of care in the circumstances. Consequently, there are no grounds to proceed with criminal charges in this case and the file is closed.


Date: October 28, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes