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SIU Director’s Report - Case # 19-PCI-078

Contents:

News Releases for this Case:

French:

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 58-year-old woman (the “Complainant”).

The Investigation

Notification of the SIU

On April 12, 2019, at 10:05 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury suffered by the Complainant during her arrest that evening.

According the OPP, at approximately 6:29 p.m. the Hawkesbury OPP received a report regarding a vehicle travelling the wrong way on Highway 417. When police located the vehicle, intentional contact was made in order to stop the vehicle. The Complainant would not exit her vehicle and police forcefully removed her.

The Complainant complained she was not feeling well and she was transported to the Hawkesbury District General Hospital, where she was diagnosed as having suffered a fractured lower leg. The OPP reported the injury likely occurred when the Complainant was being removed from her vehicle.

The scene had not been preserved.

The Team

Number of SIU Investigators assigned: 4

Complainant:

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


Police Employee Witnesses

PEW Interviewed


Witness Officers

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

Additionally, the notes from one other officer were received and reviewed.


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

Anyone travelling westbound from the Island of Montreal, Quebec, along the Trans-Canada Highway travels on Quebec Highway 40 until they reach Ontario, at which point the Trans-Canada Highway becomes Ontario Highway 417. The distance denoted by the markers along Highway 417 (often referred to as “mile markers”) start at the Ontario/Quebec border.

Highway 417 continues westbound toward Hawkesbury. However, east of Hawkesbury the highway curves southwest, away from Hawkesbury. Anyone travelling westbound and wishing to re-enter Quebec would have to exit onto Highway 17 and travel toward Hawkesbury. [1] Just south of Hawkesbury, the motorist would then turn northbound onto Highway 34, which is the main access route into Hawkesbury. Motorists could then travel northbound across the Ottawa River and soon access Quebec Highway 50.

The Complainant’s red Nissan Rogue was stopped by the SO on Highway 417 in the area of distance marker ten, west of the exit for Highway 17. In that area, Highway 417 has two lanes of traffic in both the eastbound and westbound directions. The eastbound and westbound lanes are separated by a grass median.

OPP Scene Photographs

The scene photos provided by the OPP documented damage to the Complainant’s vehicle and the fully marked Ford Taurus police cruiser operated by the SO.

On the front bumper of the Complainant’s vehicle, there were two impressions that appeared to have been caused by an impact with the push bar mounted on the front of the SO’s vehicle.

There was also damage along the entire left side of the Complainant’s vehicle. Scraping marks started at the front driver side fender and continued along to the driver’s door.

At the rear driver side door of the Complainant’s vehicle there was crushing damage consistent with contact by the front right corner the SO’s police cruiser, including transfer from the front right tire of his vehicle.

Lastly, there was impact damage on the very back of her vehicle, at the passenger side corner.

The SO’s police vehicle had impact damage at the front left and right corners of the vehicle.

Expert Evidence

An SIU collision reconstructionist reviewed the OPP scene photographs. He determined the damage to both vehicles was consistent with the SO having used the front right corner of his vehicle to contact the left rear side of the Complainant’s vehicle, causing her to rotate counter-clockwise. There was then a secondary impact between the front driver side of her vehicle and the front driver side of the SO’s police cruiser.

The SIU collision investigator also believed the damage to the rear passenger side corner of the Complainant’s vehicle was impact damage. It was possible the SO made initial contact with the rear passenger corner of her vehicle, prior to his successful attempt to spin her around. However, the SIU collision investigator was unable to state with certainty the damage was caused by an impact with the SO’s police cruiser. The SIU collision investigator could not state with certainty the damage to the front bumper of the Nissan Rogue was caused by the police cruiser push bar.

Communications Recordings

On April 12, 2019, a civilian called 911 to report there was a vehicle being operated erratically. The vehicle, a dark red Nissan Rogue, was travelling westbound.

The caller then spoke to the call-taker in French.

The dispatcher alerted patrol officers to a traffic complaint on Highway 17 near Gourley Road. [2] The caller had reported the vehicle was all over the road travelling westbound [toward Hawkesbury]. The vehicle was a red Nissan Rogue and the licence plate was provided to the officers. The dispatcher reported the vehicle licence plate was registered to a Chevrolet. The dispatcher also reported the driver was a blonde female and the vehicle had almost entered a ditch. A police officer said he would set up at [Highway] 34. [3]

The dispatcher then reported the subject vehicle had turned around and was heading eastbound into oncoming traffic. The SO asked the OPP call taker to hang up so he could telephone the caller.

The SO, with sirens audible in the background, reported he was behind the subject vehicle, which was then travelling the wrong way on Highway 417. The SO radioed, “We’re going to get an accident over here.” He then stated, “Comm centre, we’re gonna have to run him over. He’s gonna kill somebody.” He continued, “Comm centre, I’m gonna run him over, off the road.”

The SO spoke to WO #4 in French, and WO #4 instructed the SO to do what he had to do (“Fais ce que tu as à faire”) to resolve the situation.

WO #3 reported he was following the SO. He reported the SO was pulling the subject off the road and had just intentionally stopped her.

The SO reported there were no injuries and he had a person in custody for dangerous driving. The sergeant requested that an ambulance be dispatched, for safety reasons.

The SO radioed he was a Drug Recognition Expert (DRE) officer and had arrested the driver for driving while impaired by drugs. He asked if there was another DRE available, and the dispatcher responded the Stormont, Dundas and Glengarry (SDG) detachment had a DRE on duty. The SO stated he was not in the state of mind to do a drug recognition examination. He stated a blood demand had to be made and blood had to be drawn from the Complainant within two hours.

WO #4 later instructed the dispatcher that the SDG DRE needed to attend the hospital, as the SO would be remaining at the scene. WO #4 asked that the critical incident team be contacted, to reach out to him regarding his officers at the scene.

After the ambulance departed the scene with the Complainant, WO #4 asked that a second ambulance be dispatched for the SO.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • Copies of the communications recordings;
  • Arrest Report;
  • Event Details report;
  • General Report;
  • Occurrence Summary;
  • Motor Vehicle Collision Report;
  • Notes of witness officers, the SO and one undesignated police officer;
  • Copies of the OPP scene photos; and
  • Witness Statement (in French) of 911 caller. 

Materials obtained from Other Sources

The SIU also obtained:
  • Copies of the Ambulance Call Reports; and
  • A copy of the Complainant’s medical record.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included statements from the Complainant and the SO. In the evening of April 12, 2019, the Complainant was in her motor vehicle travelling west along Highway 417 and then onto County Road 17 toward Hawkesbury. At about 6:30 p.m., a fellow motorist on the same stretch of roadway become sufficiently concerned with the Complainant’s driving that she contacted 911. The motorist advised that the Complainant had been zigzagging from one side of the road to the other and, while on County Road 17, had even driven for a period in the wrong direction.

The SO and WO #3 learned of the call and made their way to the area of the Complainant’s last known location of travel, eastbound on Highway 417 east of County Road 17, to investigate. The SO was the first to spot the Complainant’s Nissan and observed several eastbound motorists take evasive action to avoid the vehicle. Within moments, the Complainant turned her vehicle around and started to travel west the wrong way on the eastbound lanes of Highway 417. The Nissan drove past the SO’s cruiser and continued westward at between 80 to 100 km/h. The SO turned his cruiser around, accelerated and made his way in behind the Complainant. WO #3 was also engaged at this time, travelling west behind the SO’s cruiser. Both cruisers had their emergency lights and sirens activated.

As the convoy of westward vehicles, led by the Complainant, travelled past the highway’s interchange with County Road 17, the SO decided to ram the Nissan in an effort to have it come to a stop. The officer pulled up alongside the Complainant’s vehicle and turned right striking the driver’s side of the Nissan with the cruiser’s front passenger side. The collision sent the Nissan spinning counter-clockwise, eventually coming to a rest on the south shoulder of the eastbound lanes facing east. The SO continued west past the Nissan a short distance and then reversed his cruiser bringing it to a stop just behind the Complainant’s vehicle. WO #3 arrived on scene within seconds.

There is dispute in the evidence as to what happened next. While it is clear that the Complainant was removed from the Nissan via the driver’s door, there is a disagreement in the evidence on precisely how this occurred. There is some evidence that the SO first handcuffed the Complainant in the car before taking hold of her right arm and forcibly removing her from the Nissan, throwing her onto the highway’s shoulder in the process. The Complainant’s fracture occurred, on this version, as she impacted the ground. On the other hand, the SO indicates he grabbed hold of the Complainant’s left arm after he had handcuffed her and, with WO #3’s assistance, pulled her out of the Nissan. The officer denies grounding the Complainant and says that she remained on her feet the whole time. For his part, WO #3 says that he was holding the Complainant’s left arm and the SO her right as they pulled her out of the vehicle. According to WO #3, the Complainant was not handcuffed at this time. While acknowledging that the Complainant was in the process of falling as she exited the vehicle, WO #3 says that he and the SO were able to keep her up. However, says WO #3, the Complainant called out that her foot was in pain as she was extricated from the Nissan.

Once out of the Nissan and under arrest, the Complainant was lodged in the backseat of the SO’s cruiser. An ambulance subsequently took the Complainant from the scene to hospital where her injury was diagnosed.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

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.



Analysis and Director's Decision

At approximately 6:40 p.m. of April 12, 2019, the Complainant was arrested by the SO for dangerous driving and driving while impaired by drugs. The Complainant had been operating a Nissan Rogue on Highway 417 and had been forced off the roadway by the officer’s cruiser shortly before the arrest. While at Hawkesbury and District General Hospital following her arrest, the Complainant was diagnosed with a fracture to her lower leg. 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 arrest and injury.

There are two questions that are raised on the evidence regarding the SO’s potential criminal liability in relation to the circumstances surrounding the Complainant’s injury. The first relates to the officer’s driving on the highway as he endeavoured to stop the Complainant’s vehicle and asks whether there are reasonable grounds to believe he committed the offence of dangerous driving contrary to section 320.13(1) of the Criminal Code. As an offence of penal negligence, liability under the section is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances.

The officer was in the lawful execution of his duty when he took up the call of a motorist driving erratically, located the vehicle eastbound on Highway 417 and endeavoured to stop it. Given everything he had been told and personally observed of the Complainant’s driving, she was clearly subject to arrest for dangerous driving.

The SO’s driving was, looked at objectively, dangerous. There is no doubt that driving the wrong way on a highway and intentionally striking the Complainant’s vehicle with his cruiser imperilled the safety of the public around the officer, including the Complainant. The officer, however, was faced with a stark choice. Disengage with the Complainant’s vehicle allowing it to proceed freely in the wrong direction on a highway for an indeterminate period of time, at great risk to the Complainant and other motorists, or do what he can to stop the Complainant and the danger she was creating as soon as possible. I am satisfied that the SO acted reasonably in adopting the latter course and that his actions did more to mitigate than aggravate the overall risks to public safety. Having witnessed a number of head-on collisions with the Nissan barely avoided and the Complainant seemingly intent on not stopping, the officer was right to conclude that the Complainant represented a real and present danger of serious harm and death on the roadway requiring immediate and even drastic action to bring to an end. Though he had no training in the technique, the SO was able to successfully bring the Complainant’s vehicle to a safe stop by striking it with his cruiser. Before doing so, however, the SO waited to ensure there were no vehicles headed in their direction. He also broadcast his intentions ahead of time, thereby allowing senior officers to call off his plan were they so inclined. None did. In fact, WO #4 encouraged the officer to do what he felt was necessary.

It should further be noted that the roadway was dry and in good repair, and the SO had his emergency equipment on throughout the short period of time (no more than a minute or two) he was actively pursuing the Complainant. While traffic appears to have been moderate to heavy at points during the engagement, I am not persuaded this unduly exacerbated the risks inherent in the SO’s conduct. On the contrary, given the Complainant was travelling against the direction of traffic, the fact there was a fair number of vehicles on the road was arguably added justification for the officer to have intervened in the way that he did.

On the aforementioned record, I am unable to reasonably conclude that the SO acted other than professionally and within the limits of care prescribed by the criminal law when, at some risk to his own wellbeing, he drove after the Complainant the wrong way on Highway 417 and struck her vehicle with his cruiser causing it to come to a safe stop on the southern shoulder of the roadway.

The second question looks at the SO’s behaviour in taking the Complainant into custody with a view to assessing whether there are grounds to charge the officer in relation to the injury the Complainant appears to have suffered while being arrested and removed from the Nissan. Here too I find there is insufficient evidence to bring charges against the officer.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force is no more than is reasonably necessary in the execution of an act that they are required or authorized to do by law. There is no doubt that the SO’s arrest of the Complainant was lawful. Her dangerous driving before and after the SO’s involvement provided the officer ample grounds to seek her apprehension.

As for the force that was used in effecting the arrest, the evidence is conflicting. However, assuming without deciding the veracity of the most incriminating evidence on this issue, namely, that suggesting the Complainant was forcibly removed from the driver’s seat of the vehicle by the SO and thrown to the ground, I am not persuaded that the officer used excessive force. By the time the SO laid hands on the Complainant to extricate her from the vehicle, he had had to chase her the wrong way on a highway and use his cruiser to physically push her Nissan off the roadway, placing his life as well as hers in peril. Once the vehicles were stationary but still close to live lanes of traffic on the highway’s shoulder, the officer directed the Complainant twice to exit and only moved in to yank her from the vehicle when she demurred while maintaining a grip of the steering wheel. The SO would have had good cause at this time to fear that the Complainant might well place her vehicle in motion again and one can understand why he acted firmly and with resolve to ensure that did not happen. In the circumstances, I am satisfied that the force used by the SO fell within the range of what was reasonably necessary to arrest the Complainant. In arriving at this conclusion, I have in mind the common law principle that an officer involved in dangerous situations need not measure their responsive force with precision; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96.

In the final analysis, this file is hereby closed without the laying of any charges as I am not convinced on reasonable grounds that there is evidence sufficient to charge the SO with any criminal offence in connection with the Complainant’s arrest and injury.


Date: February 7, 2020

Original signed by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) The exit for Highway 17 is at distance marker nine. [Back to text]
  • 2) Gourley Road at Highway 17 is approximately 500 metres west of Highway 417. [Back to text]
  • 3) As noted in The Scene section, just south of Hawkesbury Highway 34 intersects Highway 17. Northbound Highway 34 is the main thoroughfare into Hawkesbury. [Back to text]