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SIU Director’s Report - Case # 19-OVI-295

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 the injuries that a 63-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On December 5, 2019, at 5:15 p.m., the Durham Regional Police Service (DRPS) notified the SIU of the Complainant’s injury.

According to the DRPS, on December 5, 2019, at about 11:20 a.m., a DRPS police officer [now known to be the Subject Officer (SO)] attempted a traffic stop of a suspected stolen vehicle in downtown Oshawa. The driver of the vehicle [now known to be the Civilian Witness (CW)] fled, drove for a short distance and then collided with a civilian vehicle driven by the Complainant at the intersection of Bruce and Albert Streets. Four occupants of the pursued vehicle fled on foot and one [the CW] was arrested.

The Complainant was taken to Sunnybrook Health Sciences Centre and diagnosed with multiple rib fractures.

The DRPS advised that the scene was released after being processed by DRPS Forensic Identification Service police officers and collision reconstruction investigators. The scene processing was also recorded by the DRPS using its Unmanned Aerial Vehicle (UAV).

The Team

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

Complainants

Complainant: 63-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW Not interviewed – declined by the CW’s counsel

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed: notes only [1]
WO #5 Not interviewed: notes only
WO #6 Not interviewed: notes only
WO #7 Not interviewed: notes only
WO #8 Not interviewed: notes only
WO #9 Not interviewed: notes only
WO #10 Not interviewed: notes only
WO #11 Not interviewed: notes only
WO #12 Not interviewed: notes only
WO #13 Not interviewed: notes only
WO #14 Not interviewed: notes only
WO #15 Not interviewed: notes only
WO #16 Not interviewed: notes only
WO #17 Not interviewed: notes only
WO #18 Not interviewed: notes only
WO #19 Not interviewed: notes only
WO #20 Interviewed
WO #21 Not interviewed: notes only
WO #22 Not interviewed: notes only


Police Employee Witnesses

PEW #1 Interviewed
PEW #2 Not interviewed, but notes received and reviewed


Subject Officers

SO Interviewed and notes reviewed


Evidence

The Scene

The collision in which the Complainant sustained serious injuries occurred in the paved intersection of Bruce and Celina Streets in central Oshawa.

Forensic Evidence


Automated Vehicle Locating System (AVLS)


The data that were provided were interesting only in the sense that they depicted numerous police vehicles responding to the scene and how the AVLS data recorded the movement of other police vehicles involved in the incident after the collision occurred, but they did not advance the investigation of the suspect apprehension pursuit and/or the operation of the SO’s vehicle.

Expert Evidence


SIU Reconstructionist Findings


Findings regarding the motor vehicle collision (MVC)

On December 17, 2019, crash data related to this MVC were recovered by DRPS from the Dodge operated by the Complainant, and the Lexus operated by the CW, using the Crash Data Recorder (CDR) system. The Complainant was seat-belted.

For almost the entire five seconds of data recorded prior to the MVC, the Complainant was travelling 36 to 37 km/h using very little accelerator and no braking. 0.2 seconds prior to the MVC, the Complainant had applied the brakes and the Dodge slowed to 25 km/h and then 13 km/h prior to the MVC.

Neither the CW nor the front seat passenger in the Lexus were wearing a seatbelt. Between 4.7 and 3.7 seconds prior to the MVC, the CW accelerated from 100 km/h to 108 km/h. 2.7 seconds prior to the MVC, the CW had accelerated to 112 km/h. He then applied the brakes and slowed to 90 km/h when the MVC occurred.

Crash Dynamics

The Complainant was travelling southbound on Celina Street and entered the intersection with the right of way. The CW was travelling westbound on Bruce Street and entered the intersection after disobeying a stop sign at a high rate of speed. The two vehicles collided heavily within the intersection. The front passenger corner of the Lexus and the front driver corner of the Dodge made initial contact followed by a secondary impact with the passenger side rear of the Lexus and the driver side rear of the Dodge. Post impact, both vehicles veered to the southwest corner of the intersection and came to rest.

Findings regarding the suspect apprehension pursuit (SAP)

The speed limit on all roads involved in this analysis appeared to be the default speed limit of 50 km/h. As per the scene photographs, the roads appeared to be wet but otherwise in good condition.

Though the SIU reconstructionist realized there would have been acceleration and deceleration during the pursuit, time/distance calculations that were performed assumed a constant velocity and therefore yielded an average rate of speed.

For comparison, the writer reviewed the SIU route videos during which the speed limit was adhered to and all traffic control devices were obeyed. The SIU reconstructionist noted the area in which the SAP occurred was urban with buildings of various sizes, and commercial and residential properties.

The SIU investigators who drove and video-recorded the route encountered vehicles at the intersections where the right-of-way was yielded. Numerous pedestrians were observed. From the point at which the SIU investigators were travelling northbound on Albert Street at Bruce Street, the 805 metres to the collision scene was travelled three times, requiring two minutes and four seconds for an average of 23 km/h, two minutes and 25 seconds for an average of 20 km/h, and three minutes and 13 seconds for an average of 15 km/h. By comparison, the CW, and by virtue of his likely proximity to the CW, the SO in his police vehicle, required 37 seconds to travel 805 metres through two traffic light controlled intersections (one making a right turn and the other travelling straight through) and, including at the collision scene, five stop sign-controlled intersections with two right turns at and three straight through the intersections, for an average of 78 km/h.

Conclusions

During the final 805 metres of the SAP prior to the MVC, the SO travelled an average of 78 km/h, which was well above the speed limit of 50 km/h. There was a reasonable inference, due to the SO’s apparent proximity to the vehicle operated by the CW during the SAP, that the manner the SO was driving was the same as the manner the CW was driving, and the time/distance analysis would support a conclusion the SO could not possibly have obeyed all the traffic controls he faced while pursuing the CW from the point at which he travelled northbound on Albert Street at Bruce Street, until the MVC occurred at Bruce and Celina Streets about 37 seconds later.

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:
  • Closed-Circuit Television (CCTV) Data - Oshawa Community Church at 71 Simcoe Street South; and
  • DRPS UAV Data.


CCTV Data - Oshawa Community Church at 71 Simcoe Street South


The CCTV data depicted the tail end of the pursuit, revealing that the SO was well back, perhaps as much as a city block (approximately 70 metres), of the Lexus operated by the CW when it slammed into the Complainant’s vehicle.


DRPS UAV Data


The data depicted the collision scene from an aerial perspective after it had occurred and did not advance the investigation of the suspect apprehension pursuit nor the operation of the SO’s vehicle in the seconds leading up to the collision.

Police Communications Recordings


DRPS Communications Audio Recordings


The communications audio recording in respect of the pursuit commenced at about 10:56:15 a.m. For added certainty, the times reported were points in the audio-recording where pivotal events were noted to have occurred and are presented here in real time in relation to the overall duration of the audio recording. The following is a summary of the audio files.
  • At 00:02 into the recording, the SO radioed a particular licence plate;
  • At 00:21 into the recording, the SO advised the subject vehicle [now known to be a 2010 grey Lexus A25 driven by the CW] disobeyed a stop sign at Bruce Street;
  • At 00:24 into the recording, the SO was travelling east on Athol Street East;
  • At 00:35 into the recording, DRPS Communications dispatched a unit [now known to be WO #3] to assist;
  • At 00:39 into the recording, DRPS Communications asked the SO, “Are you in pursuit?”
  • At 00:40 into the recording, the SO responded, “10-4. Southbound Bruce from Charles;”
  • At 00:50 into the recording, DRPS Communications asked the SO, “What’s the reason for the pursuit?”
  • At 00:51 into the recording, the SO responded, “Right now, just dangerous;”
  • At 00:55 into the recording, DRPS Communications issued a “10-3”;
  • At 01:01 into the recording, a unit [now known to be WO #2] acknowledged the pursuit;
  • At 01:08 into the recording, the SO described the CW as “male black” who was wearing a black jacket. He was running south on Celina Street and west on Simcoe Street South;
  • At 01:24 into the recording, the SO advised that the CW was across Memorial Park;
  • At 01:37 into the recording, the SO advised he was in a foot pursuit south on 13 John Street;
  • At 01:59 into the recording, WO #3 yelled at the CW to, “Get on the ground. Get on the ground!”
  • At 02:03 into the recording, the SO advised DRPS Communications of a gunpoint arrest at Simcoe and Lloyd Streets. The SO further added, “We’re at Custom Exhaust and Auto”;
  • At 02:11 into the recording, a unit from Fleet Services advised DRPS Communications of a motor vehicle collision at Bruce and Celina Streets. He requested Emergency Medical Services to attend; and
  • At 02:26 into the recording, WO #3 advised that the CW was in police custody.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the DRPS:
  • AVLS data for vehicles responding to incident;
  • CCTV data;
  • Communications audio recordings;
  • Detailed Call Summary;
  • Dodge crash data;
  • Involved Officer List;
  • Diagram by WO #1;
  • Diagram by WO #3;
  • General Occurrence Hardcopies for this incident;
  • General Occurrence- Scenes of Crime Officer (SOCO) video synopsis;
  • Involved Officers (Reports in Crown Brief) List;
  • Lexus crash data;
  • Mechanical examination-2010 Lexus;
  • Mechanical examination-2015 Dodge;
  • Memo Book and Note-Taking Procedure Directive;
  • Notes-WO #1;
  • Notes-WO #9;
  • Notes-WO #6;
  • Notes-WO #7;
  • Photo Doc-SOCO Photographs;
  • Procedure-Police Vehicle Operations;
  • Procedure-Pursuits;
  • Training Record-Pursuits-the SO;
  • UAV photo and video data;
  • Unit history December 5,2019-the SO; and
  • Will Say Statement – WO #2.

An SIU Forensic Investigator (FI) made video recordings of the route of the pursuit and advanced the SIU’s requests made to the DRPS for any AVLS data relevant to the operation of the SO’s vehicle during the pursuit. There was no such data available as the SO omitted switching on the Mobile Data Terminal upon which the AVLS data specific to the SO’s vehicle would have been reliant when he drew the vehicle from the DRPS fleet for his duties as a foot patrol officer on December 5, 2020.

Materials obtained from Other Sources

In addition to the materials received from the DRPS, SIU obtained and reviewed the following materials from other sources:
  • Crown Brief for the CW; and
  • Medical records for the Complainant relevant to the incident.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, the SO, and several WOs (the CW refused to interview with the SIU). The investigation also benefitted from a review of the CDR data from the Complainant’s vehicle and the Lexus the CW was operating at the time, as well as a video recording from a security camera that captured the final stage of the pursuit leading to the collision. Shortly before 11:00 a.m. on December 5, 2019, the SO was in his cruiser stopped for a red light on Simcoe Street South. The SO was in the passing lane waiting to proceed north past Olive Avenue when a Lexus sedan travelled past him in the curb lane through the red light. The CW was driving the Lexus, a reportedly stolen vehicle.

The SO decided to stop the vehicle. He activated his emergency lights, waited until it was safe to do so, and proceeded through the red light after the Lexus. The CW realized he was being followed by the police and embarked on a flight through city streets attempting to elude apprehension. The SO followed in kind.

The pursuit travelled north on Simcoe Street South until Elm Street where it continued east until Albert Street. Thereafter, the pair of vehicles sped north on Albert Street until Athol Street East, whereupon the Lexus led the police cruiser east until Charles Street, then south to Bruce Street and finally west toward the scene of the collision.

Throughout the pursuit, the SO maintained a fairly close distance behind the Lexus and observed as the vehicle disregarded numerous stop signs and a couple of red lights. The speeds at which the vehicles were traveling for the better part of the pursuit are unknown, other than there is evidence that the Lexus was in the neighbourhood of 90 km/h north on Albert Street, during which time it reportedly increased the distance gap with the cruiser. In the five seconds before the collision, the Lexus reached a top speed of 112 km/h before braking to about 90 km/h at the point of impact with the Complainant’s van.

Relevant Legislation

Section 128(13)(b), Highway Traffic Act – Rate of speed - Fire department vehicles and police vehicles 

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 – 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

In the morning of December 5, 2019, the Complainant suffered multiple rib fractures and dislocations and a collapsed lung in a motor vehicle collision. He had been traveling south on Celina Street when his minivan was broadsided by a westbound Lexus sedan at the intersection of Bruce Street, Oshawa. The CW was the driver of the Lexus. The CW was traveling at speed while being pursued by the SO at the time of the incident. On my assessment of the evidence, 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 320.13(2) of the Criminal Code. As an offence of penal negligence, liability 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. There is much about the SO’s conduct that is open to legitimate scrutiny. For starters, there is video evidence that the SO travelled through one stop sign without stopping. Beyond that, I am left to conclude on the circumstantial evidence that the SO likely travelled through one or more other stop signs and/or red lights without fully coming to a stop. By his own admission, the SO was trying to stay close to the fleeing Lexus in order to alert other members of the traveling public of the pursuit heading in their direction. That would not have been possible, given the CW’s velocity and complete disregard for the same traffic control signals, had the SO come to complete stops, as he was required to by law. The SO’s speeds over wet and sometimes narrow roadways are also of concern. While the AVLS system that would have recorded the SO’s speeds over the pursuit was regrettably disabled at the time, a time / distance calculation indicates that the SO’s average speed was in the neighbourhood of 80 km/h from the point at which the pursuit was north on Albert Street. That is well over the 50 km/h speed limit in the area of the pursuit. Finally, the merits of the SO’s decision to tail the Lexus as closely as he did to alert members of the public to the pursuit are highly debatable. In so doing, it is arguable that the officer unduly pushed the Lexus and foreclosed opportunities for the CW to desist from his reckless course. On balance, I am satisfied that these considerations come together to suggest that the SO ought to have terminated the pursuit sometime before the collision in the interests of public safety.

On the other side of the ledger, the SO’s speeds were not entirely beyond the pale and were countenanced to an extent by section 128(13)(b) of the Highway Traffic Act. While not providing police officers free rein to speed as they wish without regard for public safety, the section does exempt police officers from the speed laws when operating a police vehicle in the lawful performance of their duties. At least at the outset and for the early portions of the pursuit, I am satisfied that the SO fell squarely within the protection of the provision. The SO had witnessed the Lexus blowing through a red light on Simcoe Street South and was entitled to initiate a pursuit for the potential criminal offence of dangerous driving. The SO’s speeds were further mitigated by the fact he had his emergency lights and siren on for most of his engagement with the Lexus. If, as I strongly suspect, the SO travelled through multiple stop signs and/or red lights without fully stopping, there is no indication of any third-party motorist or pedestrian with right-of-way having had to take evasive action. While perhaps more a matter of luck than anything else, the absence of any such evidence is suggestive of a level of care on the part of the SO. The SO was also cognizant of the need to communicate information about the pursuit as it unfolded to the police communication centre, thereby placing senior personnel in a position of making informed decisions about the continuation of the pursuit. No such personnel called off the pursuit at any time. Finally, in the penultimate stages of the pursuit, the video evidence indicates that the SO was well back, perhaps as much as a city block (approximately 70 metres), of the Lexus when it slammed into the Complainant’s minivan. In the circumstances, if the SO had not left the CW much opportunity to bring his vehicle to a safe stop before then, there certainly was enough time and space for the CW to have done so as the CW barreled toward the site of the collision.

As for the conditions that prevailed at the time of the pursuit, these coalesced to increase the risks to public safety. Given the time and date of the incident, I am satisfied that there would have been a fair amount of vehicular and pedestrian traffic at the time. As for the weather, it was not favourable. It was lightly snowing, and the roads would have been wet.

In the final analysis, an objective assessment of the circumstances surrounding this incident suggests that the SO was likely operating his cruiser in a dangerous fashion. However, that alone will not ground criminal liability. What is required is sufficient evidence to establish that the manner in which the SO conducted the pursuit amounted to a marked deviation from a reasonable level of care in the circumstances. On the totality of the evidence, and in the context of a relatively brief pursuit in time (under two minutes) and distance (about 1.7 kilometres), I am unable to reasonably conclude that the SO ran afoul of the limits of care prescribed by the criminal law. Accordingly, there is no basis for proceeding with charges in this case, and the file is closed.


Date: July 13, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) Regarding the WOs whose notes were merely reviewed without subsequent interviews conducted, they had no information to advance the investigation of the suspect apprehension pursuit and ensuing collision. [Back to text]