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SIU Director’s Report - Case # 19-OVI-081

Contents:

News Releases for this Case:

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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 a serious injury sustained by a 48-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On April 18, 2019, at 9:47 p.m., the Peel Regional Police (PRP) notified the SIU of an injury sustained by the Complainant. The PRP advised that on April 18, 2019, at 3:09 p.m., the Subject Officer (SO) started to pull over a 2010 Dodge Journey driven by Civilian Witness (CW) #1, on McMurchy Avenue just north of Queen Street in Brampton [now known to be Queen Street West, east of McMurchy Avenue]. As the vehicles stopped, the SO checked the plate of CW #1’s vehicle and CW #1 fled from the stop. The SO did not pursue the vehicle. While the SO called in the incident, CW #1’s vehicle collided with three other vehicles [now known to be two other vehicles]. One of the vehicles was driven by the Complainant and he was taken to Brampton Civic Hospital.

At 9:00 p.m., the Complainant was diagnosed with a fractured clavicle and released.

The collision scene was approximately 450 metres from the traffic stop and the SO observed the collision and responded. CW #1 fled the scene on foot and was apprehended by other PRP police officers. CW #1 was held for a bail hearing over the weekend. PRP held the police vehicle for a detailed download of the Global Positioning System (GPS) data. There was no in-car camera system.

The Team

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

This was a scheduled response and the scene was not held. Initially, two investigators and one forensic investigator (FI) were dispatched. The FI attended PRP 22 Division and photographed the PRP vehicle driven by the SO. The police vehicle was found to have no damage. The Complainant was interviewed, a medical release was signed and the medical records were obtained. Civilian witnesses were identified and interviewed. A canvass of Queen Street West was done for video and video of the incident was obtained from a business located on the north side of Queen Street West. A GPS download was also obtained from the PRP vehicle.

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Not interviewed, deemed not necessary

Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The intersection of Queen Street West at McMurchy Avenue, Brampton.

Forensic Evidence


GPS Data from the SO’s PRP Vehicle

  • 3:08:19 p.m., police vehicle travelled at 0 km/h westbound at 98 Queen Street West, Brampton, at Elizabeth Street;
  • 3:08:48 p.m., police vehicle travelled at 0 km/h westbound at 98 Queen Street West, Brampton, at Elizabeth Street;
  • 3:08:49 p.m., police vehicle travelled at 5 km/h westbound at 98 Queen Street West;
  • 3:08:50 p.m., police vehicle travelled at 17.4 km/h westbound at 98 Queen Street West;
  • 3:08:52 p.m., police vehicle travelled at 25.6 km/h westbound at 98 Queen Street West;
  • 3:08:53 p.m., police vehicle travelled at 36.7 km/h westbound at 104 Queen Street West;
  • 3:08:56 p.m., police vehicle travelled at 55.2 km/h westbound at 118 Queen Street West;
  • 3:08:58 p.m., police vehicle travelled at 68.3 km/h westbound at 128 Queen Street West;
  • 3:08:59 p.m., police vehicle travelled at 81.7 km/h westbound at 148 Queen Street West;
  • 3:09:04 p.m., police vehicle travelled at 66 km/h westbound at 156 Queen Street West;
  • 3:09:05 p.m., police vehicle travelled at 51 km/h westbound at 156 Queen Street West,;
  • 3:09:06 p.m., police vehicle travelled at 51 km/h westbound at 164 Queen Street West;
  • 3:09:09 p.m., police vehicle travelled at 42 km/h westbound at 164 Queen Street West;
  • 3:09:10 p.m., police vehicle travelled at 41 km/h westbound at 172 Queen Street West;
  • 3:09:11 p.m., police vehicle travelled at 30 km/h westbound at 172 Queen Street West;
  • 3:09:13 p.m., police vehicle travelled at 30 km/h westbound at 178 Queen Street West;
  • 3:09:21 p.m., police vehicle travelled at 45 km/h westbound at 192 Queen Street West;
  • 3:09:22 p.m., police vehicle travelled at 36 km/h westbound at 201 Queen Street West;
  • 3:09:23 p.m., police vehicle travelled at 19 km/h westbound at 201 Queen Street West at intersection with McMurchy Avenue North; and
  • 3:09:24 p.m., police vehicle travelled at 0 km/h at the intersection of Queen Street West and McMurchy Avenue and scene of a collision.


Forensic Photography of Police Vehicle


On Saturday, April 20, 2019, at 9:30 a.m., an SIU FI attended PRP 22 Division and photographed the SO’s PRP vehicle, which was a 2016 Ford sports utility vehicle (SUV). The police vehicle was marked with PRP decals and emergency lighting on the roof. The vehicle was locked and appeared in good repair. There was no visible fresh damage to the vehicle. The vehicle was photographed and then secured.

Video/Audio/Photographic Evidence


Closed-Circuit Television (CCTV) Video Report

 

There were two video cameras located on the east side of a business located on the north side of Queen Street West. Camera 12 was a duplication of Camera 4 with a wider angle. For the purposes of this report, reference is made to Camera 12.

At 3:08:56 p.m., a Dodge Journey entered the screen at a high rate of speed and changed lanes from the north curb lane to the second lane south of the north curb. The Dodge Journey travelled westbound and exited the screen at 3:09:00 p.m. At 3:08:59 p.m., a fully marked SUV police vehicle entered the screen westbound in the second lane south of the north curb. The emergency lights on the police vehicle were on and then they were turned off and the police vehicle slowed down. The police vehicle exited the screen at 3:09:07 p.m. It took the Dodge Journey four seconds to cross the screen and it took the police vehicle eight seconds to cross the screen.

Communications Recordings


Radio Transmission


At 3:09:04 p.m., the voice of a police officer [now known to be the SO] was heard to say, “I just had a vehicle take off, I was about to advise you. It has caused an accident at McMurchy and Queen.” The dispatcher asked if an ambulance was required.


Telephone Communications


At 3:09:51 p.m., April 18, 2019, a civilian called the PRP and reported a hit-and-run collision at Queen Street West and McMurchy Avenue, Brampton. She advised the suspect was a tall, black man with dreadlocks and he was being chased on foot by a police officer. She thought it was a stolen car and the police officer needed back-up.

At 3:09:55 p.m., CW #4 also called the PRP 911 line and reported a motor vehicle collision. She also indicated that a police officer was involved in a foot pursuit.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP:
  • Audio Copy Report-Phone;
  • Audio Copy Report-Radio;
  • Civilian Witness List;
  • Disclosure Log (x2)
  • Event Chronology;
  • GPS Data-Police vehicle;
  • Maintenance Record-Police vehicle;
  • Motor Vehicle Collision Report;
  • Procedure-Suspect Apprehension Pursuit;
  • Training Record-Suspect Apprehension-the SO; and
  • Witness Statement.

Materials obtained from Other Sources

The following records were procured from other sources:
  • Medical Record from Brampton Civic Hospital;
  • Peel Emergency Medical Services Ambulance Call Report; and
  • CCTV from Queen Street West.

Incident Narrative

The following is clear from the evidence collected by the SIU, which included statements from the Complainant, the SO and several eyewitnesses to the collision, as well as data downloaded from the police cruiser’s GPS system and a video recording of part of the incident captured by a surveillance camera. The driver of the vehicle that collided with the Complainant’s car, CW #1, declined to cooperate with the SIU. Shortly after 3:00 p.m. on April 18, 2019, the SO was on patrol in his cruiser traveling west on Queen Street West in Brampton when CW #1’s vehicle – a Dodge Journey – came to his attention. The Journey, also traveling west on Queen Street West, had suddenly changed into the passing lane from a right-turn only lane at the roadway’s intersection with Theatre Lane. Intending to stop CW #1 for the traffic infraction, the SO pulled in behind the Journey and activated his emergency lights and siren. CW #1 slowed and brought his vehicle to a stop curbside just before Elizabeth Street North. The SO stopped behind him.

While stopped behind the Journey and still in his cruiser, the SO observed the vehicle to slowly accelerate west along Queen Street West. At first, the SO thought that CW #1 was merely pulling ahead to turn right onto Elizabeth Street North, from which location the traffic stop would avoid the heavily congested Queen Street West. However, as CW #1 continued past Elizabeth Street North and picked up speed, the SO began to follow suit. Within a few seconds, the officer accelerated to about 82 km/h before he decided to terminate the pursuit and slow down.

CW #1 sped past a set of railway tracks west of Elliott Street and continued at speed toward McMurchy Avenue. As the Journey approached the intersection, the Complainant traveled into the intersection when his vehicle – a red Chrysler 200 – was struck by CW #1’s Journey. From a distance, the SO, who had continued west along Queen Street West in the direction of CW #1, observed the collision and accelerated to the intersection. Upon his arrival, the officer observed CW #1 exit the Journey and flee westward on foot. CW #1 would later be located and arrested.

Relevant Legislation

Sections 2, Ontario Regulation 266/10, Ontario Police Services Act -- Suspect Apprehension Pursuits

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. 

Section 320.13, Criminal Code – Dangerous operation causing bodily harm

320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(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.


Section 154(1)(a), Highway Traffic Act – Unsafe lane change

154 (1) Where a highway has been divided into clearly marked lanes for traffic,
(a) a vehicle shall not be driven from one lane to another lane or to the shoulder or from the shoulder to a lane unless the driver first ascertains that it can be done safely.

Analysis and Director's Decision

The Complainant was involved in a motor vehicle collision on April 18, 2019, the result of which he suffered a fractured clavicle. The vehicle that struck his car was fleeing from a police cruiser at the time. The SO was operating the police cruiser. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injury.

The offence that arises for consideration is dangerous driving and dangerous driving causing bodily harm contrary to sections 320.13(1) and (2), respectively. The offences are predicated, in part, on conduct that amounts to a marked departure from a reasonable level of care in the circumstances: R. v. Beatty, [2008] 1 SCR 49. Starting at the outset of the SO’s engagement with CW #1, I am satisfied the officer was within his rights in seeking to stop CW #1 for a traffic infraction. Contrary to section 154(1)(a) of the HTA, the officer had observed CW #1 cut off another vehicle as it maneuvered into the passing lane from a right-turn only lane. Thereafter, when CW #1 decided to take flight in his vehicle, the SO pursued briefly over a matter of seconds before deciding to slow down and discontinue the chase. In so doing, the SO acted in substantial compliance with section 2 of O. Reg. 266/10 under the Police Services Act, which limits pursuits to circumstances involving criminal offences or, in non-criminal matters, for purposes of identifying the vehicle or a person in the vehicle; by the time CW #1 accelerated away from the SO after first coming to a stop, the officer had already taken note of his vehicle’s licence plate marker. While the SO did reach a top speed of approximately 82 km/h, this was very short-lived and appears not to have unduly endangered any pedestrian or vehicular traffic in the area. For the most part, the SO travelled at moderate speeds in the neighbourhood of the speed limit. Nor does it appear there is any suggestion in the evidence that the SO at any point unduly fueled CW #1’s driving behaviour or prevented him from slowing down or operating his vehicle safely. In fact, the evidence indicates that the SO was a fair distance behind CW #1 as he drove toward McMurchy Street, entered the intersection on a red light and struck the Complainant’s car. On this record, there is little if anything to criticize with the manner in which the SO conducted himself in the course of a very brief engagement with CW #1, and certainly nothing to suggest he transgressed the limits of care prescribed by the criminal law.

In conclusion, there are no grounds in my view for proceeding with charges in this case against the SO for the aforementioned reasons, and the file is therefore closed.


Date: November 4, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit