SIU Director’s Report - Case # 20-PVI-283
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Mandate of the SIU
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.
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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 injuries a 31-year-old woman (the “Complainant”) suffered.
Notification of the SIUOn October 26, 2020, at 1:39 a.m., the Ontario Provincial Police (OPP) notified the SIU of the following:
The OPP reported that the Complainant’s husband had called the police to advise that his wife, the Complainant, was driving while impaired. The Subject Officer (SO) of the OPP, operating a police cruiser, saw the Complainant's vehicle while driving on Highway 15, north of Highway 401. He initiated a pursuit but then disengaged as the Complainant drove away.
Sometime later, the Complainant's vehicle was seen again. The SO and Witness Officer (WO) #1 attempted a tandem stop on the Complainant's vehicle; however, the Complainant drove away. Contact was made between the Complainant's vehicle and the SO's police cruiser.
At 12:16 a.m., Kingston Police (KP) advised the OPP that there was a rollover at Montreal Street and Highway 401 at the off-ramp. When the police officers arrived, they saw that the Complainant's vehicle was in the ditch.
The Complainant was taken to Kingston General Hospital (KGH) where she was diagnosed with a broken leg and possibly a broken arm.
The TeamNumber of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 2
Number of SIU Collision Reconstructionists assigned: 1
Two investigators, one Collision Reconstructionist/Investigator, and two forensic investigators were assigned. The scene of the collision was examined and photographed.
Complainant:31-year-old female interviewed, medical records obtained and reviewed
Civilian Witnesses (CW)CW #1 Interviewed
CW #2 Interviewed
Witness OfficersWO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
Subject OfficerSO Interviewed, and notes received and reviewed
The SceneThe scene of the collision was on the westbound off-ramp towards Montreal Street from Highway 401 westbound. The roadway was a paved asphalt road which permitted one lane of traffic, with a solid white paint marking on each side of the lane. Furthermore, it had a gravel shoulder and rock cut barrier on opposing sides. The off-ramp had a warning speed sign of 40 km/h.
Figure 1 – The Complainant’s vehicle.
Global Positioning System (GPS) Data Summary – SO’s Vehicle
October 25, 2020
The SO exited the Petro Canada gas station onto northbound Division Street. The SO turned right onto the Highway 401 eastbound on-ramp and travelled eastbound on Highway 401 from Division Street.
The SO was eastbound on Highway 401 just east of Division Street travelling at 121 km/h.
The SO travelled eastbound on Highway 401 reaching a speed of 169 km/h before slowing down.
The SO turned right to travel southbound on Highway 15 at the top of the off-ramp from eastbound Highway 401. Its speed was 35 km/h.
The SO was southbound on Highway 15 and travelled into a parking lot of the Esso Circle K gas station (1636 Highway 15, RR 2 Kingston). The police vehicle entered back onto the roadway and travelled southbound on Highway 15 at 11:58:25 p.m.
October 26, 2020
The SO turned left from Highway 15 onto Innovation Drive and travelled a short distance in an eastbound direction, then made a U-turn back to Highway 15.
The SO turned right and travelled northbound on Highway 15 from Innovation Drive at a speed of 19 km/h. The police vehicle proceeded northbound on Highway 15 with speeds around 150 km/h.
The SO slowed to around 69 km/h, near the Esso gas station.
The SO was northbound on Highway 15 near the intersection of Middle Road, which was just south of the Highway 401 overpass and right at the top of the eastbound off-ramp from Highway 401. The police vehicle slowed to 64 km/h, then down to around 10 km/h and, just a few metres north of the intersection with Middle Road, came to a brief stop. It may be that this is where the SO’s vehicle was contacted on the right front corner by the left side of the Honda Civic operated by the Complainant.
The SO pulled over to the right on the westbound 401 on-ramp and stopped on the shoulder; its speed was 0 km/h. The police vehicle remained at the same location from 12:02:44 a.m., to 12:05:24 a.m. with a speed of 0 km/h.
The SO slowly travelled back onto the on-ramp and travelled onto the westbound lanes of Highway 401. The police vehicle travelled at 111 km/h.
The SO was westbound on Highway 401 and travelled at 135 km/h. The location was right at the off-ramp for Montreal Street. The collision scene was just off Highway 401 on the off-ramp for Montreal Street. The police vehicle continued travelling westbound on Highway 401 past the collision scene.
The SO continued travelling westbound on Highway 401 for about 17 kilometres to a turn-around point on Highway 401, west of Westbrook Road.
The SO made a U-turn on a centre median emergency turn-around and travelled eastbound on Highway 401 back towards Montreal Street.
The SO stopped at the collision scene on the westbound off-ramp of Montreal Street.
The distance from where the SO would have first observed the Honda Civic operated by the Complainant near Division Street, to the top of the off-ramp at Highway 15, is about 6.04 kilometres. The average speed of the SO’s vehicle during that time was approximately 132.5 km/h.
The total time the SO was stopped on the shoulder of the westbound on-ramp for Highway 401 was 2 minutes and 42 seconds. Given the speed the Complainant travelled westbound on Highway 401 from Highway 15 to the collision scene (about 201 km/h), it is quite evident that the collision had already occurred prior to the SO moving from the stopped position on the side of the roadway. From the Crash Data Retrieval data, the Complainant travelled at 201 km/h about 5 seconds prior to “time zero” or around the time of the collision. Given a distance of 3.7 kilometres from where the SO was stopped, to the area of the collision, the average time taken to travel this distance by the Complainant would be about 1 minute and 6 seconds.
The distance from where the SO pulled his police vehicle over and stopped on the on-ramp to the location where he made a U-turn on westbound Highway 401 to travel eastbound on Highway 401 is about 20.8 kilometres. Given a time of 12 minutes and 17 seconds, the average speed is calculated at 97.6 km/h.
The distance from where the SO turned around and travelled eastbound on Highway 401 to the area of the collision is about 17 kilometres. The average speed of the SO’s vehicle would be about 122.3 km/h.
GPS Data Summary – WO #1’s Vehicle
October 25, 2020
WO #1’s police vehicle was at the Petro Canada gas station at Division Street and Dalton Avenue. WO #1 turned right onto the eastbound on-ramp of Highway 401 at around 11:56:53 p.m. and travelled eastbound on Highway 401.
WO #1 was eastbound on Highway 401 and merged right onto the off-ramp at Highway 15. The police vehicle travelled at 126 km/h. WO #1 turned right from the off-ramp and travelled southbound on Highway 15. The police vehicle travelled at 23 km/h.
October 26, 2020
WO #1 made a U-turn and travelled northbound on Highway 15. The speed of the police vehicle was 21 km/h.
WO #1 was northbound on Highway 15 at the stop line with the intersecting roadway of Middle Road. The speed of the police vehicle was 34 km/h.
WO #1 was in the middle of the intersection of Highway 15 and Middle Road at time stamp 12:01:51 a.m. The speed of the police vehicle was 2 km/h.
WO #1 was just north of the intersection with Middle Road and Highway 15. The speed of the police vehicle was 34 km/h.
WO #1 turned left from northbound Highway 15 onto the on-ramp of westbound Highway 401. The speed of the police vehicle was 32 km/h.
WO #1 was pulled over to the right shoulder of the westbound on-ramp about 390 metres west of Highway 15. The police vehicle remained stationary at this location until the time stamp of 12:05:31 a.m., before continuing.
WO #1 was westbound on Highway 401 and travelled west past the off-ramp at Montreal Street. The speed of the police vehicle was 135 km/h.
WO #1 turned around in a centre median on Highway 401 about 3.7 kilomtetres west of Westbrook Road. The police vehicle now travelled eastbound on Highway 401.
WO #1 arrived at the collision scene on the westbound off-ramp at Montreal Street.
WO #1 stopped on the westbound Highway 401 on-ramp from Highway 15 for a total time of about 2 minutes and 44 seconds. From the data, it appears the area where the Honda Civic contacted the right front corner of the SO’s vehicle was at or just north of the intersection of Highway 15 and Middle Road.
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 source:
- Closed-circuit Television (CCTV) – Ministry of Transportation, Highway 401.
CCTV – Ministry of Transportation, Highway 401
Start time: 11:31:40 p.m.
Stop time: 1:01:44 a.m., October 26, 2020.
This is a camera located on a pole that captures Highway 401 traffic heading westbound in the left lane. This camera did not show the collision scene or the arrival of emergency responders.
12:28:54 a.m. – A Fire Services vehicle is depicted travelling westbound on Highway 401 with emergency lights flashing.
12:31:32 a.m. – An ambulance is depicted travelling westbound on Highway 401 with emergency lights flashing.
12:54:43 a.m. – An ambulance is depicted travelling northbound on Montreal Road.
No police vehicles are visible.
Police Communications RecordingsThe following is a synopsis of the audio communications involving members of the OPP, KP and the Provincial Communications Centre (PCC) on October 25 - 26, 2020.
October 25, 2020
11:56:03 p.m. – Radio Communications
- The SO broadcast that he was behind a vehicle [now known to be a black Honda Civic, operated by the Complainant] headed eastbound on the 401 towards Highway 15;
- The SO had his emergency equipment activated and the Complainant was not stopping;
- The PCC sergeant requested a reason for the initiation of a pursuit;
- The SO broadcast that the vehicle was driving at a high speed on the shoulder of lane one;
- The vehicle had slowed down to 60 km/h, then 40 km/h;
- The vehicle entered a gas station parking lot before leaving again;
- The SO was directed to terminate the pursuit, and he complied pulling onto the shoulder of 1624 Highway 15;
- The KP was notified that the Complainant was headed into their jurisdiction on Highway 15;
- The SO was advised he could resume general patrol moments later;
- The SO observed the Complainant in her vehicle again, but she evaded him as he approached her;
- WO #1 broadcast via radio that the Complainant was directly behind him on Highway 15;
- The SO suggested they try to box her in. During their attempt, the Complainant made contact with the SO’s vehicle;
- The PCC sergeant directed the SO and WO #1 to terminate the pursuit and not to engage the vehicle again;
- The SO and WO #1 complied, pulled their vehicles over and provided their mileage;
- The SO confirmed that his vehicle had minor damage;
- The SO and WO #1 were advised they could resume general patrol in the direction of the vehicle but were directed not to pursue the vehicle;
- An unknown police officer advised that he heard from a KP officer that a vehicle had flipped at Montreal Street and the Highway 401 overpass; and
- The SO proceeded to the collision scene and confirmed it was the same vehicle he had pursued, operated by the Complainant.
October 26, 2020
12:34:26 a.m. – Telephone communication between PCC and KP
The KP communications staff advised the PCC that the Complainant’s husband had called them advising that his wife, the Complainant, was driving impaired because she believed she had left her telephone somewhere. It was also noted that she had been in a collision in front of their residence.
12:25:43 a.m. – Telephone communication between PCC sergeant and the SO
The SO indicated that he had just gotten gas and then she [the Complainant] blew by him at 135 km/h. He sped up and activated his emergency lights. He thought she was going to pull over but did not. The PCC sergeant interjected and said, “I don’t want you to say too much.” The SO responded, “Oh yeah, I assume there will be SIU because there was a pursuit prior.” The SO provided an update on the Complainant, noting that she had lost control rolling her vehicle and hit a rock cut with it.
(Time unknown) - Telephone communication between PCC and the SO
The SO expressed that when he proceeded onto the highway [now known to be Highway 401 eastbound], the Complainant approached from behind and blew past him at Highway 401 and Division Street. He terminated the pursuit at Highway 15. He drove down the road to turn around and saw her coming back towards him.
The SO and WO #1 attempted to box her in, but she hit the cruiser and the pursuit was terminated. He noted that her car after her collision was in very bad shape and the Complainant was heavily intoxicated. The Complainant was at the hospital and police officers were taking a statement from her husband. The Complainant had a compound fracture of her left leg, a broken arm and possibly a head injury. She was conscious but was being put under.
(Time unknown) - Telephone communication between PCC sergeant and staff sergeant
PCC sergeant advised the staff sergeant that the Complainant was removed from the vehicle. She was conscious but had broken bones. She was transported to KGH. PCC sergeant advised that the incident involved the SO and WO #1. The SO observed a vehicle doing 130 km/h in an 80 km/h zone and attempted to stop it. PCC sergeant terminated the pursuit and the SO pulled over.
Several minutes later, WO #2 observed the Complainant and she drove towards him. The SO and WO #1 attempted to tandem stop the Complainant but did not have their emergency lights on. The Complainant contacted the SO’s vehicle and the pursuit was terminated. Approximately 15 minutes later, the PCC received a telephone call from EMS (Emergency Medical Services) advising that a vehicle had flipped over at the off-ramp of Highway 401.
(Time unknown) - Telephone communication PCC Sergeant and unknown female
PCC sergeant summarized the incident and expressed his believe that everything would be fine. PCC sergeant said that the police officers involved had complied with his directions and stopped when they were required to. He also noted that the Complainant’s collision occurred four kilometres away from where they terminated the pursuit. PCC sergeant believed the Complainant had many opportunities to make other decisions and should not have felt pushed because the police were nowhere near her.
Route and Traffic ControlsThere were three traffic controls on Highway 15.
- Middle Road and Hwy 15 – The SO initially followed the Complainant to the intersection. The Complainant came to a rolling stop with the SO directly behind. He was unable to recall the colour of the light. Second time through he came to a complete stop.
- John Marks and Hwy 15 – Initially, the SO travelling a low speed of 19 km/h the first time through. Second time through, his speed started to climb to 150 km/h. The SO advised the next intersection was Innovation Drive.
- Innovation Drive and Hwy 15 – The SO travelled 19 km/h and turned left through the intersection (traffic signal unknown). He continued until making a U-turn, and then returned on Hwy 15 doing the route in reverse order.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from OPP:
- Computer-assisted Dispatch -Event Details (x2);
- Motor Vehicle Collision Reports (x2);
- Notes-the SO;
- Notes-WO #4;
- Notes-WO #1;
- Notes-WO #3;
- Notes-WO #2;
- Occurrence Summaries (x2);
- OPP Civilian Statement – CW #1;
- Use of Force Training – the SO; and
- Use of Force Training – WO #1.
Materials obtained from Other SourcesThe SIU obtained and reviewed the following records from non-police sources:
- CCTV – Ministry of Transportation, Highway 401; and
- Medical Records from KGH.
As the Honda passed his cruiser at upwards of 140 km/h, straddling the shoulder of the passing lane and coming close to striking the concrete barrier, the SO decided to pull it over. The officer accelerated to catch up to the Honda at speeds in excess of 160 km/h. Believing that the Complainant was not quite sure she knew what he wanted her to do, the SO pulled alongside her vehicle and motioned at her to pull onto the south shoulder. The Complainant did not do so; rather, she accelerated and again pulled away from the cruiser.
The SO continued after the Complainant eastbound on Highway 401 until Highway 15, exiting to follow the Honda southward on the roadway. A sergeant monitoring the pursuit directed the SO to disengage and the SO did so, decelerating and coming to a stop in the area of the Esso gas station, about 300 metres south of the Highway 401 off-ramp.
Receiving permission to resume his patrol, the SO traveled south on Highway 15 and turned left onto Innovation Drive intending to turn around and continue north toward Highway 401. As he did so, the officer observed the Honda stopped in the middle of the roadway. The SO brought his cruiser to a stop, exited and approached the Complainant on foot. The Complainant drove past the officer and his cruiser, and turned right onto Highway 15.
The SO returned to his cruiser and again began to pursue the Honda at speed. As he did so, he heard WO #1 indicate over the radio that the Honda was behind him traveling north on Highway 15. WO #1 had heard that the SO had been in pursuit and travelled to the area to see if he could be of assistance. The officers decided they would attempt a tandem stop of the Honda.
As the SO closed the distance and positioned his cruiser behind the Honda, and with WO#1’s cruiser in front of the Complainant’s vehicle, the officers began to slow down. The maneuver appeared to work; the Honda slowed down and was pulling over the side of the road. However, just past Middle Road, the Complainant was able to pull around WO #1’s cruiser and accelerate away, striking the front passenger side of the SO’s cruiser in the process. It seems WO #1 briefly accelerated just as the vehicles were coming to a stop, leaving a gap through which the Complainant was able to navigate past the block.
Following the failed tandem stop, the officers terminated the pursuit as the Complainant entered onto the on-ramp for westbound Highway 401 traffic. They had pulled over and were stopped on the same on-ramp for several minutes when they received word that a vehicle collision had occurred in the area of Highway 401 and Battersea Road. The vehicle in question was the Honda.
The Complainant had accelerated westbound on Highway 401 at breakneck speeds. Five seconds prior to the collision, data downloaded from her vehicle had her traveling upwards of 200 km/h. She had failed to negotiate the off-ramp at Battersea Road and crashed into a rock cut out.
Firefighter and paramedics were first on scene at the collision. The Complainant was extricated from the wreckage and taken to KGH where she was diagnosed with fractures of her left arm and right shoulder. The SO, having heard news of the collision, travelled to the site and was the first officer there.
Section 128(13)(b), Highway Traffic Act – Police vehicles and speeding
(b) a police department vehicle being used in the lawful performance of a police officer’s duties.
Section 320.13, Criminal Code – Dangerous operation causing bodily harm
Analysis and Director's Decision
The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. The offence is premised, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. In the instant case, the issue is whether there was any want of care in the manner in which the SO comported himself during his engagement with the Complainant that was sufficiently derelict as to attract criminal sanction. In my view, there was not.
The SO was within his rights in initiating a pursuit of the Complainant’s motor vehicle as it sped past him on Highway 401 and then refused the officer’s direction to pull over. There is evidence that the Complainant was traveling significantly over the speed limit and was subject to being stopped and ticketed. But speed was not the only issue. The officer had also seen the Complainant driving on the passing lane shoulder and almost striking the concrete barrier. There were grounds, in the circumstances, to believe the Complainant was driving dangerously and/or under the influence.
Thereafter, I am satisfied that the pursuit was conducted without undue risk to the public. The SO did travel at over 160 km/h on Highway 401, but he did so over a brief period of time attempting to catch up to the Complainant’s speeding Honda. With respect to the SO’s speed, it should also be noted that section 128(13) of the Highway Traffic Act exempts officers engaged in the performance of their duty from the speed law. While the provision does not confer on officers free rein to speed as they wish, it is important to note that the highway would have had no more than modest traffic given the time of day and the SO’s use of his emergency equipment, both of which would have mitigated the dangers associated with his excessive albeit brief spurt of speed. The same may be said of the SO’s acceleration northward on Highway 15 - in the area of 150 km/h - as he again attempted to close ground on the Honda.
Once on Highway 15, the only conduct of any real concern is with the decision to attempt a tandem stop of the Complainant’s vehicle. The technique involves the use of police cruisers to surround and eventually stop a subject vehicle via controlled deceleration. Though officers are trained in the technique, and provision is made for its use in police policies governing pursuits, it is a risky maneuver given the potential for vehicle-to-vehicle contact and should be reserved for situations where it is imperative that a vehicle be stopped. By the time the officers decided to tandem stop the Honda, the Complainant had given every indication of being a serious danger on the roadway. Having seen her speed and erratic driving on Highway 401, the SO had by now also observed her vehicle stopped in the middle of a roadway – Innovation Drive - for no apparent reason. On this record, there was an articulable and pressing reason to stop the Complainant. Moreover, it is important to note that all three vehicles were travelling at modest speeds as the officers surrounded the Complainant’s car and began to slow down. It is true that the Complainant’s Honda struck the SO’s cruiser, but the impact was minor and in part due to the apparent result of a miscalculation on the part of the officer in the lead cruiser, WO #1, who had left too big a gap between his rear and the Honda’s front as the convoy was coming to a stop. In the circumstances, I am unable to conclude that the decision to attempt a tandem stop, and thereafter its attempted execution by the officers, were unreasonable.
Finally, it bears noting that the roadways were dry and the weather was clear, albeit visibility would have been compromised given the late hour; there is no indication of any third-party traffic being directly placed in harm’s way by the SO at any point; and, the officer kept his communication centre apprised of what was going on, allowing a senior official to properly monitor and direct the course of the pursuit. While it might have been preferable for the SO to explicitly seek further approval from the official prior to resuming his pursuit of the Honda on Highway 15, the officer having been ordered to discontinue moments prior, the cumulative impact of these considerations was not such as to render the SO’s conduct clearly prohibitive on public safety grounds.
In the final analysis, as I am satisfied that the SO did not at any time transgress the limits of care prescribed by the criminal law during his engagement with the Complainant’s Honda, there is no basis for proceeding with charges against the officer and the file is closed.
Date: February 1, 2021
Electronically approved by
Special Investigations Unit
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.