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SIU Director’s Report - Case # 20-PVI-074

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 the injuries that a 27-year-old woman (“Complainant #1”) and a 31-year-old man (“Complainant #2”) suffered.

The Investigation

Notification of the SIU

On April 6, 2020, at 2:28 a.m., the Ontario Provincial Police (OPP) reported an injury to Complainant #2, who was the front passenger in a vehicle.

The OPP advised that on April 5, 2020, at 11:41 p.m., the Subject Officer (SO) was operating radar on Highway 401 when an eastbound vehicle [1] drove through the radar at 176 km/h. The SO caught up to the vehicle and turned on his emergency lights. The vehicle was being driven by Civilian Witness (CW) #1 and had three other occupants. CW #1 sped up and took the exit at Palace Road, where she lost control on the curve and collided with a barrier. She fled on foot and was later apprehended by a police dog unit.

CW #1 was being treated at Lennox and Addington County General Hospital (LACGH) for a dog bite. Complainant #2, a passenger in the vehicle, was first taken to LACGH and then transferred to Kingston General Hospital (KGH) with internal bleeding. The other passengers, CW #2 and Complainant #1, were being examined at LACGH for reported minor injuries.

The Team

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

Complainants

Complainant #1: 27-year-old female interviewed
Complainant #2: 31-year-old male declined interview [2]


Civilian Witnesses

CW #1 Interviewed
CW #2 Not interviewed – did not consent

Witness Officers

WO #1 Interviewed
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Interviewed
WO #4 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

The incident occurred at a T-style intersection where Palace Road connects to the eastbound Highway 401 off-ramp. The scene was secured by the SIU, examined, photographed, and documented by a Total Station.

A marked OPP cruiser [identified as belonging to the SO] was resting on Palace Road facing southeast. There were no tire marks or skids leading to the police cruiser’s resting position and no fresh damage was observed. The hand-held radar device operated by the SO was resting on the front passenger seat. The reading on the radar was locked-in and read “176”. The Jeep Compass was resting in the southside ditch facing southwest and had extensive front end damage. There were visible tires marks on the off-ramp that continued through a grass covered island. These tire marks continued from the island, crossed Palace Road and led to where the Jeep Compass came to rest in the ditch.

Scene Diagram

Scene diagram

Forensic Evidence


Automatic Vehicle Locator (AVL) Analysis of the SO’s Cruiser:


A review of the tablet from the SO’s cruiser revealed the following:
  • At 11:38:53 p.m., the SO pulled out of the paved median on Highway 401, 0.5 kilometres west of the Beechwood Road overpass and travelled eastbound on Highway 401. [3] The speed indicated was 34 km/h;
  • At 11:39:09 p.m., the SO continued travelling eastbound on Highway 401 and reached the Beechwood Road overpass. The speed indicated was 148 km/h;
  • From the Beechwood Road overpass until 111 metres west of the off-ramp for Palace Road, the SO travelled from speeds ranging in excess of 140 km/h to 179 km/h;
  • At 11:41:28 p.m., the SO was approximately 111 metres west of the Palace Road off-ramp and began slowing down. The speed indicated was 148 km/h;
  • The SO entered the start of the eastbound off-ramp of Palace Road at a speed of 113 km/h. The SO continued slowing down as he approached the right-hand curve of the off-ramp. The speed indicated was 72 km/h; and
  • Once the SO reached the scene of the collision his cruiser became stationary.

From the AVL data, the maximum speed attained by the SO was 180 km/h. This occurred about 3.4 kilometres east of the starting point where the SO was conducting radar enforcement. [4] This area of eastbound Highway 401 was a straight stretch of highway with a posted speed limit of 100 km/h.

Expert Evidence


Crash Data Retrieval (CDR) Analysis of Jeep Compass:


An analysis of the pre-crash data from the 2008 Jeep Compass was conducted. At 5.0 seconds prior to “Time Zero,” the Jeep was travelling at 122 km/h with the accelerator pedal at 0% and rotations per minute at 2532. Service brake was on. It appears that the operator of the Jeep Compass, CW #1, was off the accelerator and the vehicle was starting to slow gradually. At 4.0 seconds prior to “Time Zero,” the Jeep was travelling at 107 km/h and continuing to slow with accelerator pedal off and service brake on. At 3.0 seconds prior to “Time Zero,” the Jeep was travelling at 93 km/h and continuing to slow. The service brake was still on. At 2.0 seconds prior to “Time Zero,” the Jeep was travelling at 80 km/h and the service brake was still on. At 1.0 second prior to “Time Zero,” the Jeep was travelling at 72 km/h and the service brake was still on. At 0.1 seconds prior to “Time Zero,” the Jeep was travelling at 58 km/h and impacted the ditch at or just below this speed.

The SIU reconstructionist located tire scuff marks on the concrete curb on the left side of the off-ramp. These tire scuff marks were made from the left front and left rear tires of the Jeep as it contacted the concrete curb at the start of the yaw. The reconstructionist averaged the speed of the Jeep from the mark made in the dirt to the tire scuff marks on the concrete curb with a calculated average speed of 85 km/h. The Jeep would be travelling about 23.6 metres per second and given the time interval calculated at 1.5 seconds, the travelled distance calculated would be about 35.4 metres. This appeared consistent from the final resting location of the Jeep, adding the distances of 32.8 metres and 35.4 metres over a time interval of 3.1 seconds.

The reconstructionist averaged the speed from 5.0 seconds to 3.1 seconds prior to “Time Zero” and calculated an average speed of the Jeep at around 109.3 km/h. The Jeep would have travelled a distance of around 57.5 metres at this calculated average speed. Using ‘Google Earth Pro’ the reconstructionist placed the Jeep at a point located 5.0 seconds prior to “Time Zero”. This revealed the location of the Jeep at 5.0 seconds to clearly be on the off-ramp of Palace Road from eastbound Highway 401, approximately 30 metres before the start of the right-hand curve in the off-ramp. [5]

The speed advisory posted signs are clearly marked as 40 km/h [6] for the off-ramp of Palace Road from eastbound Highway 401. It is evident to the reconstructionist that the Jeep exceeded the critical curve speed of the off-ramp, which resulted in the Jeep losing control, sliding in a clockwise direction and making contact with the concrete curb. The Jeep then furrowed in the dirt median and continued sliding sideways, rotating clockwise into a deep ditch and embankment at the end of the off-ramp on the south side of Palace Road.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications Recordings

The following is a summary of the pertinent recordings leading up to the collision:
  • On April 5, 2020, at 11:40:55 p.m., the SO advised the dispatcher that he had a vehicle going 176 km/h. The SO described the vehicle as a Jeep and noted the licence plate marker;
  • The dispatcher asked the SO if his emergency lighting was activated, and he responded, “10-4. They are”;
  • The SO advised the Jeep took the Palace Road exit and just crashed;
  • The SO requested backup and advised, “I got three on the ground. Gunpoint arrest. Driver’s fled into the wood,” and, “We got passengers hurt. Driver took off into the woods”;
  • The SO clarified for the dispatcher that one or two of the passengers were injured. The driver was a female wearing a red jacket and she fled into the woods; and
  • The SO clarified his emergency lights were activated as he was trying to “close the distance when they took Palace Road too fast.”

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Crash Data Retrieval of 2008 Jeep Compass;
  • Crash Data Retrieval of OPP Vehicle;
  • OPP statement of Complainant #2;
  • Communication recordings;
  • Photos of CW #1 taken by OPP;
  • AVL data;
  • Event Details;
  • OPP statement of CW #2;
  • Motor Vehicle Collision Report;
  • Notes-all WOs;
  • Notes-the SO;
  • Occurrence Report;
  • Occurrence Summary; and
  • Radar image taken by the SO.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU. The SO was on-duty in a marked cruiser performing speed enforcement on Highway 401. At about 11:38 p.m., the SO’s cruiser was positioned in the area of the eastbound lanes of the highway, west of Beechwood Road in Napanee, when he clocked an approaching vehicle at 176 km/h. The SO began to pursue the vehicle – a Jeep Compass – with the intention of stopping it for various traffic infractions.

Complainant #1 and Complainant #2 were passengers in the backseat of the Jeep Compass, which was being operated by CW #1. CW #2 was in the front passenger seat. CW #1 noticed the emergency lighting of the SO’s cruiser behind her but failed to come to a stop. Instead, she continued at speed eastward for a short period before taking the off-ramp at Palace Road. CW #1 lost control of the vehicle as she attempted to negotiate the rightward-bending exit curve and crashed into a ditch on the south side of Palace Road.

The SO arrived at the scene soon after the collision and arrested Complainant #1, Complainant #2 and CW #2. CW #1 fled from the collision into a nearby forested area, but was subsequently located with the use of a police dog and arrested. [7] The parties were taken to hospital. Complainant #2 was diagnosed with a bruised spleen and broken ribs. Complainant #1 was treated for a fractured back and broken ribs.

Relevant Legislation

Section 128(13), Highway Traffic Act – 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

On April 5, 2020, Complainant #1 and Complainant #2 suffered injuries in a motor vehicle collision. As the vehicle in which Complainant #1 and Complainant #2 were occupants was being pursued at the time by the SO of the OPP, the officer was identified as the subject officer for purposes of the SIU investigation. 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 and resulting injuries.

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, the crime is premised, in part, on conduct that deviates markedly from a reasonable level of care in the circumstances. In my view, the SO’s conduct throughout his engagement with the Jeep Compass did not breach the limits of care prescribed by the criminal law.

At the outset, I accept that the SO was within his rights in initiating a pursuit of the Jeep vehicle. He had measured its speed moving eastward toward him on Highway 401 at 176 km/h, grossly in excess of the 100 km/h speed limit. Moving that fast, the officer had clear and obvious grounds to stop the vehicle and its driver for various Highway Traffic Act offences, if not the offence of dangerous driving under the Criminal Code.

The SO’s speed is itself subject to legitimate scrutiny. In attempting to catch up with the Jeep Compass as it sped past his location, the SO travelled well over the speed limit, topping out at about 180 km/h. At the best of times, that speed, in my view, carries with it a degree of danger. The SO’s speeds, however, were not enough to render his conduct criminal.

For starters, given the velocity with which the Jeep was traveling, it is not surprising that the SO would have reached his top end speeds as he was attempting to close the distance with the vehicle in front of him. At the time, the SO was engaged in the lawful execution of his duty and, accordingly, was exempt from the speed limitations pursuant to section 128(13) of the Highway Traffic Act. The provision, while not granting officers carte blanche to speed as they wish without regard to public safety, provides a degree of mitigation in the reasonableness analysis of the SO’s conduct.

It also bears noting that the SO’s engagement with the Jeep was short-lived. A total distance of 6.5 kilometres separated the point at which the SO first began to accelerate after the Jeep until the point of collision at the Palace Road off-ramp. It also occurred at a time when there would have been less traffic on the roadway, and therefore less risk to third-party motorists. In fact, there is no indication that anyone was actually endangered by the speed at which the SO was travelling.
Finally, I am satisfied that the SO’s speed did not unduly fuel CW #1’s reckless driving. Indeed, it does not appear that CW #1 was even aware of the SO’s presence behind her until just before the Palace Road exit. In the circumstances, while I suspect that CW #1 took the off-ramp in an effort to flee from the police, she had ample opportunity to adjust her driving behaviour and is alone responsible for her failure to do so and the resulting collision.

In the result, as I am satisfied on the foregoing record that the SO comported himself within the limits of the law as he pursued the Jeep Compass, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: October 13, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Further investigation would reveal that this vehicle was a Jeep Compass. [Back to text]
  • 2) Complainant #2 interacted informally with investigators, but he gave no useful information to them. [Back to text]
  • 3) This location was determined to be where the SO was conducting radar enforcement for eastbound vehicular traffic travelling on Highway 401. [Back to text]
  • 4) The total distance travelled by the SO from the location where he was conducting radar enforcement to the collision scene on Palace Road at the off-ramp is approximately 7.23 kilometres. [Back to text]
  • 5) It should be noted that in examining the concrete curb, the top edge of the curb was slightly rounded at the top and not a straight 90 degree. Had this concrete curb not been slightly rounded, it is highly likely the Jeep may have tripped and rolled numerous times. Based on the speed of the vehicle when it contacted the curb, the injuries to the occupants would likely have been more severe if not fatal. [Back to text]
  • 6) After this collision, the ramp posted speed was changed from 40 km/h to 30 km/h. [Back to text]
  • 7) The dog, under WO #4’s control, bit CW #1 several times inflicting bite wounds that were treated with staples/sutures. These wounds were determined to not be “serious injuries” within the terms of the SIU’s statutory jurisdiction. Accordingly, the circumstances surrounding CW #1’s bite wounds were not a subject of the SIU investigation. [Back to text]