SIU Director’s Report - Case # 20-PVI-119

Warning:

This page contains graphic content that can shock, offend and upset.

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 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 24-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On May 22, 2020, at 10:27 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

The OPP advised that on May 22, 2020, at 7:28 p.m., the OPP Communications Centre received a radio broadcast from the Subject Officer (SO). The SO said he was in pursuit for a speeding infraction in the area of Wooler Road.

At 7:28 p.m., the SO again contacted the Communications Centre and advised he had terminated the pursuit and pulled his police cruiser over to the shoulder. At 7:29 p.m., he was given permission by the sergeant in the communications centre to drive in the direction of the fleeing car.

At 7:31 p.m., the SO reported over the police radio that the fleeing car was in a rollover collision. The car was in a ditch and both occupants were been trapped in the car. The driver of the car [now determined to be the Complainant] had exited the vehicle and tried to flee the collision scene. He and the passenger [1] were arrested at the scene.

The Complainant and the passenger were transported to a nearby hospital. The Complainant was diagnosed with a fractured shoulder. 

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators (FIs) assigned: 2

Complainant:

24-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 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

The scene location was Stockdale Road in Trenton. The area of interest was north of McCauley Road and south of West Lake Road. The posted speed limit was 80 km/h and Stockdale Road was oriented in a north and south direction.

There were two lanes designated for vehicular traffic. One lane was for northbound traffic and one lane was for southbound traffic. A yellow centre line divided the highway. Soft gravel shoulders paralleled the paved portion of the roadway. A ditch and a swampy area were noticeable on the east side of the highway.

The area of interest is best described as a long stretch of roadway. The area where the first tire marks were noted was south of where a Honda was located. This portion of the roadway was higher in elevation than the area where the Honda was located. Long, separate tires marks were visible on the roadway, on the east side soft shoulder, and in parts of the ditch area. Several fresh gouges of various sizes were visible on the east side ditch area. A large debris field littered the ditch near where the Honda rested. The distance from where the tire marks started to where the overturned Honda was located was about 400 metres.


The Collision Vehicle


This vehicle was a 2010 grey four-door Honda Civic, bearing an Ontario licence plate. It was resting in the ditch on the east side of Stockdale Road and facing west. The Honda was resting on its roof with extensive interior and exterior damage. The scene was mapped. The Honda was eventually up righted and examined further. The Honda’s crash data recorder was downloaded by investigators.


OPP Police Cruiser


The police cruiser was a marked four-door GMC SUV cruiser, bearing an Ontario licence plate and an OPP fleet number. The cruiser was examined and no apparent damage to the cruiser was found in relation to this incident.


Scene Diagram

Scene diagram

Forensic Evidence


Global Positioning System (GPS) Data from the SO’s Police Cruiser


  • At 7:24:32 p.m., the SO was stopped on the on-ramp to Highway 401 at Wooler Road in Quinte West;
  • At 7:24:44 p.m., his police cruiser was doing 60 km/h going east on the on-ramp approaching Highway 401;
  • At 7:25:12 p.m., the SO’s cruiser was doing 166 km/h heading east on Highway 401 approaching Stockdale Road;
  • At 7:26:04 p.m., the cruiser was doing 34 km/h driving south on the on-ramp to Highway 401 from Highway 33 in Trenton;
  • At 7:26:26 p.m., the cruiser was doing 121 km/h driving south on Highway 33;
  • At 7:26:54 p.m., the SO’s cruiser was doing 106 km/h heading southwest on Highway 33 approaching Stockdale Road;
  • At 7:27:26 p.m., the police cruiser was doing 164 km/h heading north on Stockdale Road north of Highway 401;
  • At 7:28:07 p.m., the police cruiser was doing 151 km/h heading north on Stockdale Road north of the Miron Road intersection;
  • At 7:28:25 p.m., the SO’s police cruiser slowed to 19 km/h heading north on Stockdale Road south of Brundage Road and, at 7:28:49 p.m., it came to a stop. His cruiser remained stopped until 7:29:50 p.m.; [2] and
  • At 7:29:50 p.m., the cruiser started up again doing 55 km/h and continued north on Stockdale Road. It drove at an average speed of 52 km/h until it came to a stop at 7:31:02 p.m., on Stockdale Road south of West Lake Road. This was the collision scene involving the Honda.

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:
  • Photos from CW #5.


Photos from CW #5


These photos played no role in the SIU’s investigation.

Communications Recordings


Police Communications Recordings


These recordings were made on May 22, 2020 and captured the following:

At 7:31:03 p.m., a 911 call-taker called the OPP dispatcher advising there was a report of a motor vehicle collision in front of 880 Stockdale Road. It was a single vehicle rollover on Stockdale Road between Lock Road and West Lake Road. The 911 call-taker indicated there might be a police officer on scene already. The OPP dispatcher replied, “Yes,” there was a police officer on scene. The OPP dispatcher indicated there had been a pursuit with the collision vehicle. The 911 call-taker advised there might be a person trapped in the vehicle and that two ambulances and the fire department were en route.

At 7:33:18 p.m., an OPP dispatcher called the ambulance dispatcher requesting an ambulance on Stockdale Road just south of West Lake Road. One party was trapped in the vehicle and police officers on scene were calling for an ambulance. The ambulance dispatcher asked if there were any other injuries. The OPP dispatcher said, “No”; there were two occupants in the crashed vehicle but one [now determined to be the Complainant] had bailed out of the vehicle and the other was still in the vehicle. The ambulance dispatcher remarked the ambulance and fire department were on the way.

At seven minutes and 55 seconds into the recording, WO #1 called the OPP Communications Centre (CC) and spoke briefly with the dispatcher. The dispatcher put WO #1 through to speak with the Communications Staff Sergeant. The call was put through and the recordings ended.

At 7:34:16 p.m., a police officer at the Smiths Falls Provincial Communications Centre (PCC) called the OPP Provincial Operations Centre (POC) to update them on the pursuit and collision. The police officer advised he was told a police officer [now determined to be the SO] had called in a pursuit regarding a vehicle failing to stop for an HTA [3] offence. Speeds had been high. The SO himself had terminated the pursuit and then sat at the side of the road and gave his mileage. Then, the police officer had told the SO he could proceed in the direction of the vehicle’s last known travel. The SO did so and came across the vehicle; it had been involved in a collision, a rollover on Stockdale Road, and there were injuries. The seriousness of the injuries was being assessed and an ambulance was en route. The driver [now determined to be the Complainant] was under arrest and another party was trapped in the overturned vehicle.

At three minutes and 22 seconds into the recording, the police officer called WO #1 who was on scene. WO #1 told the police officer that the passenger was out of the Honda and awake. There were drugs and cash all over the ground. The Complainant and the passenger were under arrest and both were going by ambulance to the Trenton hospital. At ten minutes and 39 seconds into the recording, the OPP SIU Liaison called the police officer at PCC. The police officer updated the OPP SIU Liaison as to the details of the pursuit. He added the SO had terminated the pursuit on his own because the original reason for the pursuit was “high speeds”. The SO terminated the pursuit after about 20 to 30 seconds, and was stopped at the roadside for about one minute. He resumed looking for the vehicle and drove north on Stockdale Road. The SO only looked for the vehicle for a minute before he came across the rollover. The OPP SIU Liaison told the police officer that he had notified the Detachment Commander at Quinte West, and was waiting for an update on injuries.

At 17 minutes and 25 seconds into the recording, the OPP SIU Liaison called the police officer and advised that the SIU had been notified and he required times from the PCC. The police officer told the OPP SIU Liaison that the SO had initially called in the pursuit at 7:27:43 p.m. The SO had then terminated the pursuit at 7:28:47 p.m. At 7:29:57 p.m., the SO had been authorized by the police officer to resume patrols to look for the vehicle. The SO had reported finding the crashed vehicle at 7:31 p.m. The SO had been the only police officer involved in the pursuit.

At 21 minutes and 9 seconds into the recording, a second police officer of the PCC called the SO. The second police officer asked the SO for his top speed during the pursuit. The SO replied he did not know off hand and said the Honda had been stunt driving. He said, just to catch up to the Honda, he had been going over 150 km/h. The SO said his initial speed had been around 160 km/h. He mentioned the Honda had been doing 152 km/h originally and that had been the reason for his stopping the Honda. The SO did not think he had really been in a pursuit until he had been behind the Honda, which was when he had called it in. From there, according to the SO, it had been four kilometres before he had terminated the pursuit.

At 37 minutes and 44 seconds into the recording, WO #2 called the second police officer in order to update her on injuries. The passenger was now in cells diagnosed with bruising, soft tissue damage, groin injury and no fractures. The driver - the Complainant - had a neck fracture (a fractured shoulder at the neck).


Radio Communications


At 7:26:47 p.m., the SO called the dispatcher for a priority. He said he had a vehicle flee on him going northbound on Stockdale Road. The SO said the vehicle was very far ahead of him and he would disengage momentarily. He told the dispatcher he was northbound on Stockdale Road. The SO reported he was trying to catch up to the vehicle to get the licence plate. He reported the vehicle was a grey Honda Civic and it was being driven dangerously, and for that reason the SO stopped and pulled over to the side of the road to discontinue the pursuit. The dispatcher asked the reason for the pursuit and the SO replied it was for a traffic infraction. The SO advised he was going to disengage at his current position on Stockdale Road halfway to Frankford. He gave his end kilometres as “200862”.

At one minute and 40 seconds into the recording, the SO said he was at a full stop but requested permission to head up to Frankford and patrol the area. The dispatcher told him to standby for a moment and asked if there had been any injuries or damage to any vehicles. The SO responded with no injuries and no contact. He said the suspect vehicle was a bluish grey older model Honda Civic.

At two minutes and 25 seconds into the recording, the dispatcher authorized the SO to proceed in the last direction of travel of the Honda and only at the posted speed limit to looks for signs of a collision. The SO replied that he understood.

At three minutes and 15 seconds into the recording, the SO advised he had come across a collision. He would advise the PCC if there were any injuries.

At three minutes and 55 seconds into the recording, WO #1 arrived on scene. He asked for an ambulance since it was a rollover. The police had one person, the Complainant, under arrest. WO #1 said the Honda was totaled. The remainder of the recording contained nothing of any evidentiary value and ended at 11:54:59 p.m.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP’s Quinte West Detachment:
  • CAD-Event Chronology;
  • GPS data – May 22, 2020;
  • Notes (Dashpad)-WO #1;
  • Notes-the SO (including photos of scene);
  • Notes-both WOs;
  • Occurrence Report;
  • OPP Communications Recordings;
  • OPP Interview Report-CW #7;
  • OPP Statement regarding GPS data;
  • OPP Witness List;
  • OPP Witness Statement-CW #6;
  • OPP Witness Statement-CW #3;
  • Audio-911 and Emergency Medical Services (EMS);
  • Audio-Dispatch Phone.
  • Audio-PCC;
  • Audio-Radio; and
  • Records regarding the use of Google Earth for viewing .KMZ files.

Materials obtained from Other Sources

In addition to the materials received from the OPP’s Quinte West Detachment, the SIU obtained and reviewed the following materials from other sources:
  • Medical Record-EMS Incident Report;
  • Medical Record-Quinte Health Care-Trenton Memorial; and
  • Photos from CW #5.

Incident Narrative

The material events in question are relatively clear on the evidence collected by the SIU, which included statements from the Complainant and several civilian eyewitnesses who observed portions of the pursuit and/or collision. The investigation also benefitted from a review of the police communication recordings and GPS data associated with the SO’s cruiser. As was his legal right, the SO declined to interview with the SIU. He did, however, release a copy of his notes of the incident.

In the evening of May 22, 2020, the Complainant and an associate were occupants in a Honda Civic traveling east on Highway 401 toward Trenton. At a point east of the Wooler Road interchange, the Civic picked up its speed and took the Highway 33 exit into Trenton.

The SO was the officer operating the police SUV. He was stationary in his cruiser on the Highway 401 eastbound ramp at Wooler Road performing speed enforcement when he clocked the Honda Civic traveling at 152 km/h. Intending to stop the vehicle for a speeding infraction, the SO entered onto the highway after the Civic. The SO used his emergency lights to help him pass traffic, positioned his cruiser in the passing lane behind the Civic, and watched as it veered sharply to the right to take the Highway 33 off-ramp. Having overshot the ramp, the SO turned onto the Highway 401 eastbound on-ramp from Highway 33, traveling the wrong way until he had maneuvered into the southbound lanes of the roadway.

While on Highway 33 traveling south and then west toward Stockdale Road, the Civic continued at speed in flight from the cruiser. It disregarded a couple of stop signs and passed a tractor-trailer on the shoulder of the road as it did so. The SO continued after the Civic with his emergency lights activated, traveling in the opposing lane of traffic as it passed the same tractor-trailer.

The Civic and the cruiser travelled through a roundabout and accelerated north onto Stockdale Road. The pursuit continued at pace for a short period until the SO observed the Civic overtake a northbound Chevrolet Impala via the opposing lane, barely avoiding a collision with a southbound vehicle, and thereafter stop his cruiser between Lock Road and McAuley Road.

Having passed the Chevrolet, the Civic came upon a northbound Hyundai Sonata, which it maneuvered around using the east shoulder of the roadway. As it did so, the Civic lost control, careened into a grassy ditch and rolled over several times before coming to rest on its roof on a fence.

The Complainant was able to extricate himself from the wreckage and wandered into an adjacent farmer’s field. He was arrested within minutes of the collision by the SO, who had arrived at the scene after being authorized to continue his patrol following the termination of the pursuit.

The Complainant was taken to hospital from the scene and diagnosed with a fracture to the left humerus.

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 May 22, 2020, the Complainant was seriously injured in a motor vehicle collision. As the Complainant was fleeing from police in his vehicle at the time, the SIU was notified of the incident and commenced an investigation. The SO had been pursuing the Complainant moments before the collision and 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 the Complainant’s injury.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. [4] Liability for 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; R. v. Roy, [2012] 2 SCR 60. Though there are aspects of the SO’s driving that are open to legitimate scrutiny, there is insufficient evidence to reasonably conclude that the officer transgressed the limits of care prescribed by the criminal law.

The SO was within his rights to seek to stop the Civic for a speeding infraction after he had clocked it traveling 152 km/h on his radar device. As the officer entered onto Highway 401, he made judicious use of his emergency lights to clear traffic ahead of him while closing the distance with the Civic. He continued to make use of his emergency lights as the pursuit entered onto Highway 33. Between about two and two-and-a-half kilometres after taking the Stockdale Road exit at the roundabout, the SO ended his pursuit of the Civic. Having observed the Civic disregard stop signs and recklessly overtake traffic, the decision was a wise one. Regrettably, the operator of the Civic did not respond in kind and continued in dangerous fashion upwards of an additional kilometre north on Stockdale Road until the collision.

During the pursuit, the SO did engage in conduct that could arguably be characterized as dangerous. For example, the GPS data show that the SO reached a top speed upwards of 160 km/h on Highway 401 and then again for a period while northbound on Stockdale Road. The speeds on Highway 33, in and around 100 km/h for periods of time, were also well in excess of the speed limit. The SO travelled the wrong way for a distance on the Highway 401 eastbound on-ramp from Highway 33 and then again while overtaking a vehicle as he attempted to keep up with the Civic. Finally, the SO ought to have communicated what was happening to his communications centre more so than he did. Such communication, required by police policy, is intended to place a senior officer in a position to make informed decisions with respect to whether the pursuit should continue or not. Aside from a communication made on Stockdale Road shortly before the SO stopped, in which the SO announced his direction of travel and that he was attempting to catch up to a vehicle, the officer had made no prior radio transmissions about the pursuit.

These instances of objectively risky behaviour, however, must be weighed in context. The SO was engaged in the execution of his duty and therefore presumptively exempt from the speed limitations pursuant to section 128(13) of the Highway Traffic Act. While the provision does not provide officers carte blanche to speed as they wish without regard for public safety, it does confer a measure of immunity on officers who in good faith find it necessary to exceed the speed limit in the discharge of their duties. The speeds achieved on Highway 401 were also, to an extent, the necessary by-product of having to catch up with the Civic, which was well past the SO’s location by the time he decided to pull it over.

The dangers associated with the SO’s speeds throughout the pursuit, as with the SO’s decision to travel the wrong way for periods, were further mitigated by the SO’s use of his emergency lights over what was a relatively brief engagement in time and distance. This is not the case of a SO with ample time failing to appreciate a clear and obvious risk until it was too late. On the contrary, it would appear the SO took timely action to discontinue the pursuit about three kilometres after the vehicles had exited the highway. During this time, there is no indication of any civilian vehicle having to take abrupt evasive action to avoid the cruiser. In fact, it seems some motorists, alerted to the cruiser’s emergency lights, were able to safely pull their vehicles over and out of the way.

Finally, there is no suggestion that the SO pushed or unduly fueled the Civic’s reckless operation in the penultimate stages of the pursuit. To reiterate, the SO had terminated the pursuit and was well back of the Civic when the collision occurred. The driver of the Civic had plenty of time to adjust his dangerous driving ahead of the collision had he been so inclined.

In the result, I am not persuaded on reasonable grounds that the manner in which the SO operated his cruiser amounted to a marked deviation from a reasonable level of care in the circumstances. The SO ought to have kept his communications centre apprised of what he was doing, but failed to adequately do so. He also reached incredibly high speeds and drove for short stretches the wrong way, placing the traveling public around him at some risk but not in a manner that unduly imperiled public safety. Finally, the SO prudently decided to end his engagement with the Civic more than a kilometre from the site of the collision. On this record, in the course of a pursuit conducted in good weather and dry roads, there are no reasonable grounds to believe that the SO drove dangerously in violation of the criminal law. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: November 23, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The passenger refused to be interviewed by the SIU, as is all civilian witnesses’ legal right. [Back to text]
  • 2) The Computer-assisted Dispatch (CAD) showed that at 7:28:47 p.m. the SO notified the Provincial Communications Centre (PCC) and gave his ending kilometres as “200862” and stopped the pursuit. [Back to text]
  • 3) Highway Traffic Act. [Back to text]
  • 4) WO #2 arrived at the scene of the collision and assisted the SO in arresting the Complainant. According to WO #2, he punched the Complainant once to subdue his resistance and facilitate his restraint in handcuffs. There was also some evidence that the SO kicked the Complainant between one and three times as he confronted him on Stockdale Road after the collision and took him into custody. As the immediate circumstances around the Complainant’s arrest were not the focus of the SIU investigation, I have not dealt with them in my decision. That said, on the evidence collected by the SIU, I would not have had reasonable grounds to believe that the Complainant was the victim of an unlawful assault. On the totality of the evidence, not all of which supports the idea that the Complainant was struck during his arrest, there would appear to be no reasonable basis for concluding that excessive force was used in taking the Complainant into custody. [Back to text]

Note:

The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.