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SIU Director’s Report - Case # 19-PVI-190

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 the injuries that a 38-year-old man (“the Complainant”) suffered.

The Investigation

Notification of the SIU

On August 13, 2019, at 10:10 a.m., the Ontario Provincial Police (OPP) Western Region, reported an injury to the Complainant. According to the OPP, at 5:00 a.m. the same day, the Subject Officer (SO) was fueling his police cruiser at a gas station at Wonderland Road and Fanshawe Park Road West in London, when he saw a black F150 pickup truck with three occupants driving across the lot. The occupants were staring at the police officer and he became suspicious. The F150 pulled out onto Fanshawe Park Road West and drove east at a very high speed. The SO followed but did not activate any emergency equipment. The F150 turned right onto Louise Boulevard and the SO followed. He discovered that the F150 had struck a tree, and two of the three occupants had fled. The driver, the Complainant, was still in the driver’s seat. He was taken to Victoria Hospital and diagnosed with a back injury and a fractured ankle.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW Interviewed

Subject Officers

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


Evidence

The Scene

The area of this collision on Louise Boulevard is a two-lane paved roadway with no lane designations. It is bordered by concrete curbs and dense residential development. At a point 515 metres south of Fanshawe Park Road West, Louise Boulevard ends and there is a 90-degree curve to the west in the roadway. At this curve, the road changes to Geraldine Avenue, which is also a two-lane paved road which runs east and west. On the south side of the Louise Boulevard and Geraldine Avenue intersection, a residence is situated. About five metres to the south of the south curb of the intersection is a large coniferous tree. Louise Boulevard is 7.3 metres wide. The speed limit is not posted but presumed to be 50 km/h pursuant to 128(1)(a) of the Highway Traffic Act.

There were no OPP police vehicles on location. Fresh scrapings were visible on the asphalt/roadway leading up to the residence; the scrapings were oriented in a north-south direction.

A black F150 pickup truck was resting on the front lawn of the residence. The front of the vehicle was facing south. All four wheels were on the lawn. The vehicle’s front driver’s side was in contact with a large tree. There was extensive damage to the vehicle’s front end. The front driver’s side door was closed and the vehicle’s air bags had been deployed. The rear driver’s side seat was folded over, while the rear passenger seat was upright.

Figure 1 - The scene of the collision.

Figure 1 - The scene of the collision.


Figure 2 - The front end of the Ford 150 pickup truck.

Figure 2 - The front end of the Ford 150 pickup truck.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following sources:
  • CCTV footage from a Petro Canada Gas Station;
  • CCTV footage from a business on Fanshawe Park Road West; and
  • CCTV footage from an address on Louise Boulevard.


CCTV footage from a Petro Canada Gas Station


At 3:55:17 a.m., the F150 pulled in from the north, on the west side of the island. The CW exited the vehicle from the driver’s seat. The CW walked to the gas cap of the F150 and attempted to fuel the vehicle.

A woman appeared beside the driver’s door of the vehicle. The Complainant used a red squeegee to wash the passenger side rear window of the F150. The woman approached the gas station kiosk from the north east, entered the kiosk, and paid for the gas.

A marked OPP police cruiser pulled into pump # 4 from the northwest and a uniformed police officer [now known to have been the SO] approached the pump.

The CW re-entered the driver’s seat of the vehicle and the Ford F150 pulled away, southbound, from the pump, with no taillights on. The F150 turned north along the west side rear of the building, with no taillights on, and drove towards Fanshawe Park Road West.

The SO was watching activities in the area southwest of the kiosk and he turned his head to the right and followed something moving from along the west side of the lot and then east to the north of his vehicle (Fanshawe Park Road West). He completed the fueling of his police cruiser and left the gas station driving southeast.

CCTV footage from a Business on Fanshawe Park Road West


The SIU was provided with a video from a camera which was directed to the south from the business. The camera was on the southwest edge of the building and captured activity on Fanshawe Park Road West A utility pole in front, and another one immediately to the west, both on the north side of the road, were used as landmarks.

It took the Ford F150 1.157 seconds to travel 40.0 metres; this calculated to an average speed of 124.3 km/h for the Ford F150. It took the police cruiser 1.21 seconds to travel 40.0 metres and this calculated to an average speed of 118.9 km/h. The speed limit on Fanshawe Park Road West is 60 km/h. The police cruiser was nine seconds behind the Ford F150 at a distance of 297.4 metres.

CCTV footage from an address on Louise Boulevard


Video Counter 0032 seconds: Sounds of a vehicle approaching can be heard, then tires squealing, and headlights can be seen arcing from east on Fanshawe Park Road West, to south, before hearing sounds of a vehicle accelerating rapidly southbound on Louise Boulevard.

Video Counter 0036 seconds, 4:06:57 a.m.: A black F150 pickup truck comes into camera view southbound, passing the front of the address, and can be heard to be accelerating aggressively. At the time the pickup truck passes the address, the headlights and taillights are activated.

Video Counter 0049 seconds: A second vehicle is heard approaching and seen turning onto Louise Boulevard from east to south. There is no squealing of tires heard from this vehicle.

Video Counter 0052 seconds: A marked police cruiser can be seen at approximately the same location as the F150. The time stamp for the police cruiser in the screenshot is 4:07:13 a.m., indicating it was approximately 16 seconds behind the F150. There are no emergency lights activated on the police cruiser and it is not accelerating in the same manner as the F150. The brake lights on the police cruiser can be seen to be activated at 0059 seconds on the video counter, as it passes the address.

Forensic Evidence


Global Positioning Satellite (GPS) Data for OPP police cruiser


  • 4:03:01 a.m., the police cruiser travelled eastbound on Fanshawe Park Road West, just west of the Petro Canada Gas Station, at an indicated speed of 71 km/h;
  • 4:03:10 a.m., the police cruiser was stationary, facing south on the Petro Canada Gas Station lot located on the southwest corner of Wonderland Road North and Fanshawe Park Road West;
  • 4:06:03 a.m., the police cruiser was stationary, facing south on the Petro Canada Gas Station lot;
  • 4:06:08 a.m., the police cruiser travelled eastbound on Fanshawe Park Road West, at Wonderland Road North, at an indicated speed of 35 km/h;
  • 4:06:21 a.m., the police cruiser travelled eastbound on Fanshawe Park Road West, just west of the entrance to #517 Fanshawe Park Road West, at an indicated speed of 98 km/h;
  • 4:06:47 a.m., the police cruiser travelled eastbound on Fanshawe Park Road West, just east of the entrance to #251 Fanshawe Park Road West, at an indicated speed of 124 km/h;
  • 4:06:54 a.m., the police cruiser travelled eastbound on Fanshawe Park Road West, just east of Derwent Road, at an indicated speed of 138 km/h;
  • 4:07:02 a.m., the police cruiser travelled eastbound on Fanshawe Park Road West, just west of Louise Boulevard, at an indicated speed of 128 km/h;
  • 4:07:10 a.m., the police cruiser was stationary, facing southbound on Louise Boulevard, .22 km south of Fanshawe Park Road West and .31 km north of the collision scene; and
  • 4:29:17 a.m., the police cruiser remained stationary on Louise Boulevard. [1]


Expert Evidence


Reconstruction Report


The tire marks in the centre of Louise Boulevard were measured and determined to not have a decreasing radius nor striations; they were therefore deemed to be pre-collision scuff marks from anti-lock braking which indicate that the F150 was driven southbound on Louise Boulevard at a high speed as the driver attempted to negotiate a right turn to travel westbound onto Geraldine Avenue. Due to the excessive speed, the driver of the F150 was unable to negotiate the right turn and the vehicle continued southbound, mounting the south curb.

The offset tire marks and the crush to the left front fender of the F150 are consistent with it rotating clockwise while continuing to travel southbound onto the south curb and the left front fender striking the tree. The rear tires would have been elevated during impact and, because the rearward principle direction of force was applied to the left of the centre of mass, the Ford F150 rotated counter clockwise, offsetting the rear tires to the west of the tire marks on the asphalt.

The Airbag Control Module of the Ford F150 indicated that it was driven at 127 km/h, then braked to 52 km/h at impact.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • GPS Gate Data from the SO’s vehicle for August 13, 2019;

Materials obtained from Other Sources

The SIU obtained and reviewed the following materials from other sources:
  • CCTV footage from a Petro Canada Gas Station;
  • CCTV footage from a business on Fanshawe Park Road West;
  • CCTV footage from an address on Louise Boulevard; and
  •  The Complainant’s Medical Records.

Incident Narrative

The material facts in question are clear on the weight of the evidence gathered by the SIU, which included interviews with both the Complainant and the CW. While the SO declined to be interviewed by SIU investigators, as was his legal right, the investigation was critically aided by the availability of camera footage from three CCTV cameras, as well as the crash data from the pickup truck operated by the CW and the GPS data from the SO’s police vehicle.

At approximately 3:55 a.m., the CW pulled into a gas station to fuel the vehicle he was driving; while he was doing so, the SO pulled up to a gas pump in his police vehicle and also began to fuel his vehicle. The CW appeared to attract the SO’s attention when he pulled the pickup truck to the rear of the gas station, with no taillights activated, in order to wait for the woman to exit the kiosk after paying. When the CW drove out of the gas station, the SO is seen on camera to be watching the direction of the vehicle’s travel and, after he completed fueling his vehicle, he followed in his cruiser.

The CW drove eastbound on Fanshawe Park Road West and then accelerated down a side street, Louise Boulevard. Due to his high rate of speed, when the CW reached the south end of the street, where there was a sudden dark turn to the west, his vehicle collided with a tree.

The data from the SO’s police cruiser confirmed that at no time did he engage his emergency equipment, and there is some evidence suggesting that the Complainant was not even aware they were being followed by police during the incident. Nobody attributed the collision to the SO

Upon analysis of the CCTV footage, it was discovered that while on Fanshawe Park Road West, the Ford F150 attained a speed of 124.3 km/h, while the SO’s police vehicle attained a speed of 118.9 km/h; the police vehicle was clocked as being nine seconds behind the Ford F150. Analysis of the footage from a second CCTV camera, on Louise Boulevard, revealed sounds of a vehicle quickly accelerating, followed by the appearance of the F150, which is both seen and heard to be aggressively accelerating. The footage then reveals a second vehicle, the SO’s cruiser, approaching and turning onto Louise Boulevard; there is no squealing of tires heard from this second vehicle. This video confirms that the SO’s police vehicle was, at that point, 16 seconds behind the pickup truck; no lights or sirens are seen or heard n the video from the police vehicle.

The video footage from all three CCTV cameras indicated that there were no other motor vehicles either in the gas station or on the roads.

The GPS data from the SO’s cruiser has the SO attaining a top speed of 138 km/h when driving eastbound on Fanshawe Park Road West, near Derwent Road; as he approached Louise Boulevard, his speed decreased to 128 km/h. Once on Louise Boulevard, at .31 km north of the collision scene where, according to the video, the F150 pickup truck was no longer visible, the SO pulled his vehicle over and stopped.

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, Criminal Code – Dangerous operation 

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

The Complainant sustained a fractured ankle and a back injury on August 13, 2019, when the motor vehicle in which he was the rear seat passenger collided with a tree. Immediately prior to the collision, the vehicle was being driven at high speeds in an attempt to evade police; the driver, the CW, and the front seat passenger, a woman, fled from the collision leaving the Complainant behind. On my assessment of the evidence, there are no reasonable grounds to believe that the SO following the Ford F150 committed a criminal offence in connection with the single vehicle collision which resulted in the Complainant’s injuries.

The offence that arises for consideration in this case is that of dangerous driving contrary to section 320.13(1) of the Criminal Code. The offence 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. I am satisfied that the manner in which the SO operated his police vehicle fell within the limits of care prescribed by the criminal law.

It is unclear whether the officer contravened O Reg 266/10, the regulation governing police pursuits in the province. That regulation defines a “suspect apprehension pursuit” as a situation in which the officer has attempted to direct the driver of a vehicle to stop, the driver refuses to obey the officer, and the officer pursues the vehicle for the purposes of stopping it or identifying the vehicle or a person in the vehicle. The SIU is without direct evidence of the SO’s intentions at the time; as was his right, he declined to be interviewed by the SIU. That said, the speed with which the SO followed the pickup truck suggests he was set on stopping the vehicle. On all the evidence, one arguably has the existence of a “suspect apprehension pursuit”. The point is an important one as O Reg 266/10 prohibits suspect apprehension pursuits unless the officer believes that a criminal offence has been or is about to be committed, or there is a need to identify the vehicle or someone in the vehicle. It is unclear whether either of these criteria existed at the time. Certainly, there is nothing on the record to indicate there were any grounds to believe the CW or his passengers had committed or were about to commit a criminal offence.

Whether the SO was engaged in a legitimate suspect apprehension pursuit under the regulation is also important for another reason. Pursuant to section 128(13)(b) of the Highway Traffic Act, speed limits to do not apply to police vehicles being used in the lawful performance of a police officer’s duties. The evidence is clear that the SO reached speeds in excess of twice the speed limit as he travelled east on Fanshawe Park Road West after the pickup truck. If, in fact, the SO was not in the performance of his lawful duty, because he was engaged in a pursuit when he ought not have been under the regulation, then his speeds would weigh more heavily against him in the liability analysis.
On the other side of the ledger, the CCTV footage establishes that the police cruiser did not appear to be accelerating as aggressively as the CW’s motor vehicle, which is likely why the SO continued to lose ground with the gap between the two vehicles increasing from nine (on Fanshawe Park Road West) to 16 seconds (on Louise Boulevard). Moreover, while the SO’s speed on Fanshawe Park Road West was significant, there were no other motor vehicles or pedestrians on the road due to the time of day, and the SO at no time endangered the lives of others while driving at these speeds.

Finally, there is no suggestion that the SO was putting undue pressure on the CW to continue to drive at the excessive rates of speed at which he was travelling. On the contrary, the CW had every opportunity to reduce his speed and adopt a safer course had he been so inclined.

In the final analysis, in the context of the SO’s short-lived efforts to catch up to, and possibly attempt to signal the F150 to pull over, I am unable to reasonably conclude that the manner in which the officer operated his cruiser ran afoul of the criminal law’s proscriptions, notwithstanding the speeds he reached during his engagement with the Complainant. Consequently, there is no basis for proceeding with charges in this case and the file is closed.



Date: April 6, 2020
Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Google Maps indicate the distance from where the police cruiser was stationary to the scene of the collision is approximately 300 metres. [Back to text]