SIU Director’s Report - Case # 17-OVI-376
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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 the serious injuries sustained by an 84-year-old woman in a motor vehicle collision, after another motor vehicle which the police had attempted to stop and investigate, collided with the motor vehicle in which the Complainant was a passenger.
Notification of the SIUAt approximately 6:33 p.m. on December 24, 2017, the Waterloo Regional Police Service (WRPS) notified the SIU of the Complainant’s injury.
The WRPS reported that at approximately 4:45 p.m. earlier on that same date, the SO observed a driver of a U-Haul van without his seat belt on and attempted to stop the vehicle. The U-Haul fled and failed to stop at the stop sign on Samuel Street at Krug Street in the City of Kitchener, coming into collision with a vehicle in which the Complainant was a passenger.
The TeamNumber of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Complainant:84-year-old female interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
Witness OfficersWO #1 Notes reviewed, interview deemed not necessary
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
WO #1 and WO #2 were not interviewed by the SIU. They attended at the scene from the WRPS Traffic Services and conducted the motor vehicle collision (MVC) investigation after the SIU investigators conducted the initial investigation. WO #1 had no contact with anyone involved, while WO #2’s notes indicated he had no information regarding the actions of the SO.
Subject OfficersSO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
Nature of Injuries / TreatmentThe Complainant received a minimally displaced fracture of the left pubic ramos (pelvis). She was provided Tylenol upon discharge from the hospital and transferred to another facility for treatment. Her rehabilitation time is unknown.
The SceneThe scene was located at the intersection of Krug Street and Samuel Street in the City of Kitchener. The intersection is controlled by stop signs for traffic on Samuel Street. The area is primarily residential and the speed limit, although not posted, is 50 km/h.
GPS for the SO’s Police VehicleThe WRPS provided the SIU with GPSAVL (Automatic Vehicle Locator) data for the police vehicle operated by the SO on December 24, 2017 from 4:30 to 5:30 p.m. The data relevant to the motor vehicle collision under investigation by the SIU relates to GPS, time stamped, 4:44:01, when the police vehicle was located on Lancaster Street East, to 4:47:33 p.m., when it was stopped on Samuel Street at Krug Street, in the City of Kitchener. The police cruiser reached a maximum speed on Hohner Avenue of 51 km/h and a maximum speed of 33 km/h on Samuel Street.
Forensic Evidence No submissions were made to the Centre of Forensic Sciences.
Reconstruction ConclusionAssessment of the collision yields the following conclusions:
At about 4:45 p.m. on December 24, 2017, an unknown man was driving a 2017 GMC Savana cargo van bearing the markings of U-Haul on Samuel Street in the City of Kitchener, Ontario.
The SO was operating a 2016 Ford Explorer WRPS some distance behind a GMC Savana.
It was snowing, the snow was accumulating, and it was dusk.
The driver of the Savana approached a stop sign at the intersection of Krug Street and Samuel Street and, without stopping, entered the intersection.
The front of the U-Haul, travelling at a speed close to 54 km/h, impacted the right side of a Chevrolet Cruze being operated westbound on Krug Street, travelling at a speed of close to 41 km/h.
An inspection of the police cruiser did not reveal any damage consistent with it having been involved in the collision.
CW #2 was driving the Cruze; his wife, CW #1, was seated in the right (passenger) rear seat; and his mother, the Complainant, was seated in the front right (passenger) seat. Both vehicles rotated clockwise as they travelled southwest onto the sidewalk of Samuel Street. The left front bumper of the Cruze came into minor collision with the left rear sliding door of a Chevrolet Venture which was parked facing south in a driveway on Samuel Street. The Complainant sustained a serious injury from this collision.
Video/Audio/Photographic Evidence No audio or video recordings were located.
Communications RecordingsThe 911 calls and police transmissions communications recordings were obtained and reviewed.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the WRPS:
- Computer Aided Dispatch (CAD) Event Details Report;
- Police Transmissions Communications Recordings;
- 911 Call Recordings;
- Non-Emergency Line Recordings;
- Duty Roster;
- GPS from involved police vehicle;
- Notes of WO #s 1-5; and
- Procedure: Suspect Apprehension Pursuits.
The SIU obtained and reviewed the following materials and documents from other sources:
- Medical records of the Complainant related to this incident, obtained with her consent.
Sections 1-3, Ontario Regulation 266/10, Ontario Police Services Act -- Suspect Apprehension Pursuits
(a) if the police officer has reason to believe that a criminal offence has been committed or is about to be committed; or(b) for the purposes of motor vehicle identification or the identification of an individual in the vehicle.
(a) the police force of the officer established under subsection 6 (1), if the officer is a member of an Ontario police force as defined in the Interprovincial Policing Act, 2009;(b) a police force whose local commander was notified of the appointment of the officer under subsection 6 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part II of that Act; or(c) the local police force of the local commander who appointed the officer under subsection 15 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part III of that Act.
Section 249, Criminal Code -- Dangerous operation of motor vehicles, vessels and aircraft
(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place…
Section 106, Highway Traffic Act – Use of seat belt assembly by driver
Section 136, Highway Traffic Act – Stop at Through Highway
(a) shall stop his or her vehicle or street car at a marked stop line or, if none, then immediately before entering the nearest crosswalk or, if none, then immediately before entering the intersection; and(b) shall yield the right of way to traffic in the intersection or approaching the intersection on another highway so closely that to proceed would constitute an immediate hazard and, having yielded the right of way, may proceed.
Analysis and Director's Decision
The SO turned onto Brubaker Street intending to make a U-turn in order to get behind the U-Haul and perform a traffic stop, while the U-Haul turned right onto Lancaster Street, travelling westbound. The SO then waited for traffic to clear, and he also turned right onto Lancaster Street East.
The GPS data from the SO’s police vehicle confirms his speed as being 17 km/h at 4:44:01 p.m., as he approached Brubaker Street travelling eastbound on Lancaster Street East, at which point he then made his U-turn and drove back westbound on Lancaster Street.
CW #6 was operating a U-Haul van on December 24, 2017, when he observed a marked police cruiser approaching from the opposite direction. CW #6 could see the police officer looking at him and he thought that the SO was going to pull him over. CW #6 made a right turn onto Hohner Avenue and saw the police cruiser make the same turn behind him. CW #6 then sped up, increasing his speed to what he estimated was approximately 90 km/h. CW #6 observed that the police vehicle was making every turn that he made but the cruiser never got close to him. CW #6 did not hear any sirens nor did he see any emergency lights activated on the cruiser.
When a white motor vehicle got between the U-Haul van and the police cruiser, CW #6 took the opportunity to increase the distance between himself and the police vehicle. At no time did the police cruiser close the distance between it and the U-Haul.
CW #2 was driving his Chevrolet Cruze on December 24, 2017, and was taking his mother, the Complainant, and his wife, CW #1, to church for Christmas Eve mass.
CW #2 described the weather as snowing, it was dusk, the roads were snow covered and slippery, and the traffic was light.
CW #2 was driving on Krug Street approaching the area where it intersected with Samuel Street. Krug Street is a through street with no traffic controls; Samuel Street is governed by a stop sign. CW #2 was driving at or below the speed limit. All of the occupants of the Chevrolet Cruze were wearing their seat belts.
The SO stated that he did not activate his emergency lighting system or siren as he did not wish to affect other motor vehicles until he was close enough to the U-Haul van to stop it. The SO described his speed on Lancaster Street East as being about 35 km/h and estimated the distance that he travelled on Lancaster Street, until he reached Hohner Avenue, to be about 50 to 75 metres.
The GPS data confirms that at 4:44:21 p.m., the SO made a U-turn to drive westbound on Lancaster Street, with his initial speed registering at 11 km/h; he then accelerated to 33 km/h before turning right onto Hohner Avenue at 4:44:36 p.m.
CW #7 was just entering her vehicle on Hohner Avenue when she saw the U-Haul van drive past very quickly; she estimated the speed of the U-Haul at approximately 80 km/h. CW #7 observed the U-Haul slow at the stop sign at Samuel Street, before turning right without stopping. About two seconds later, CW #7 observed a police cruiser following without lights or sirens. CW #7 estimated the cruiser’s speed at approximately 70 km/h and she believed that it was following the U-Haul while maintaining a distance from it.
CW #4 was walking on the sidewalk of Samuel Street between Hohner Avenue and Brubaker Street and saw the U-Haul travelling on Hohner Avenue, approach the stop sign at Samuel Street, slow slightly, and then turn right onto Samuel Street without stopping; she described the speed of the U-Haul as very fast. CW #4 then observed a police vehicle travelling along the same route as the U-Haul, but at a much slower speed, and about four to five seconds behind the U-Haul. She observed that the police vehicle had neither its emergency lighting system nor its siren activated. CW #4 described it as being dark at the time and that snow was accumulating on the roads.
The SO estimated that he was about 50 metres behind the U-Haul when he momentarily lost sight of it on Hohner Avenue, due to a slight bend in the road. The SO observed that the van’s brake lights were active and that it was gaining speed. The SO radioed and asked the dispatcher if there were any other units in the area to assist him, as he believed that the driver of the U-Haul was behaving unusually.
This evidence is confirmed by the police communications recording wherein the SO is heard to advise, “You got anybody available in the core area … Hohner coming back toward Lancaster, or Krug, sorry.”
The SO advised that he followed the U-Haul on Hohner Avenue, never exceeding a speed of approximately 50 km/h. While he did not see the U-Haul make the turn, he believed it to have turned onto eastbound Samuel Street as he saw skid marks in the snow which he perceived to be acceleration marks. At no time did the SO close the gap between himself and the U-Haul van. When the SO got to the stop sign at Hohner Avenue and Samuel Street, he ensured that the way was clear before he too turned onto Samuel Street.
Once on Hohner Avenue, the GPS data confirmed the SO’s initial speed as being 25 km/h, immediately after he made the turn, and then accelerating to 51 km/h at its highest. He then began to decelerate as he approached the intersection with Samuel Street, and his speed dropped to 16 km/h at 4:45:02 p.m., when he made a right turn onto Samuel Street.
CW #2 arrived at the intersection with Samuel Street where he saw the U-Haul, for a split second, approaching from his right side, and he then heard the crunch of the vehicle hitting his car on the passenger side. The U-Haul pushed the Cruze across the road and onto the front lawn of the residence at the corner. CW #2 observed that the U-Haul had not stopped for the stop sign. CW #2 did not hear any sirens or see any emergency lighting prior to the collision, but did see a police cruiser with its emergency lighting system activated approximately 10 seconds after the collision.
CW #3 was walking on the sidewalk of Samuel Street; she described it as being daylight and that snow had accumulated on the roads. She was some two to three houses from the stop sign on Samuel Street at Krug Street when she heard a vehicle accelerating on Samuel Street heading towards the stop sign at Krug Street. She then observed a U-Haul go through the stop sign, without slowing or stopping, and enter the intersection with Krug Street; at no time did she see the U-Haul’s brake lights come on.
CW #3 observed the U-Haul collide with a maroon coloured motor vehicle travelling on Krug Street. Approximately five seconds after the collision, CW #3 observed a police cruiser drive past her on Samuel Street; it had neither its emergency lighting system nor its siren activated.
CW #5 was looking towards the intersection of Krug Street and Samuel Street when she heard the loud sound of a vehicle and then saw the U-Haul travelling toward the intersection at a fast speed. She estimated the speed of the U-Haul, when it got to the stop sign, as being approximately 50 km/h, where it entered the intersection and struck a second vehicle. CW #5 did not hear any sirens nor see any emergency lights prior to the collision.
CW #6 indicated that as he approached the intersection at Samuel and Krug Streets, he saw the stop sign but did not stop; he estimated his speed at the time as between 80 and 110 km/h, when he struck a motor vehicle on Krug Street. CW #6 observed that the police cruiser never got near his vehicle until after the collision. CW #6 then exited his vehicle and ran away.
CW #1 observed that her husband was driving on Krug Street at a speed of approximately 40 km/h as they approached the intersection with Samuel Street. She was seated in the rear passenger seat of the vehicle. She looked to her right and saw a U-Haul enter the intersection at a speed that she estimated as being about 70 to 80 km/h, making no attempt to either brake or swerve before striking their vehicle. CW #1 indicated that she did not hear any sirens, or see any emergency lighting prior to the collision, and only first saw any red flashing lights approximately 30 seconds after the collision. Moreover, at no time did she hear any sirens.
The Complainant, who was seated in the front passenger seat of the Cruze, observed the U-Haul approach from the right, just prior to colliding with their vehicle. The Complainant saw no police emergency lighting prior to the collision. She sustained a fractured pelvis as a result of the collision.
While the SO was driving on Samuel Street, he observed the U-Haul collide with another vehicle at Krug Street. He described the U-Haul as having increased the distance between itself and the police cruiser prior to the collision. The SO notified the dispatcher at approximately 4:45 p.m. that there had been a motor vehicle collision; he then activated his emergency lighting system and accelerated toward the collision scene.
The SO, while still on the radio, is recorded as continuing from his previous transmission, stating, “I’ve got a U-Haul van that’s driving very irregular since it saw me … Oh, and it just 9-50! (was involved in a collision) I did not light it up (activate my emergency lighting system) … there’s a 9-50 at King and … the driver may run … driver fleeing, he went behind the townhouses, going on foot”.
The GPS data confirms that once on Samuel Street, the SO accelerated to 33 km/h at 4:45:06 p.m., then decelerated almost immediately to 28 and then to 11 km/h at 4:45:21 p.m. At 4:45:31, he briefly accelerated to 16 km/h, after the collision had already occurred, and his motor vehicle was then stationary at the collision scene.
The SO stated that at no time did he engage the U-Haul in a pursuit, nor did he intend to do so, his sole intention being to follow the U-Haul in order to conduct a traffic stop.
While it is clear on all of the evidence that CW #6 was aware of the SO’s interest in him, and that the police may have wished to conduct a traffic stop of CW #6 and his U-Haul van, there is no dispute, either between the civilian witnesses, CW #6, the SO, or the GPS data, that the SO at no time engaged CW #6 in a police pursuit. While CW #6, anticipating that the SO wished to stop him, steeply accelerated and ran several stop signs, the SO’s vehicle never exceeded 51 km/h and, at no time prior to the collision, did he either activate his emergency equipment, nor did he attempt to stop the U-Haul being operated by CW #6.
As such, while the presence of the SO may have been the impetus for CW #6’s subsequent erratic driving, it is clear that the collision between CW #6 and the Chevrolet Cruze driven by CW #2 is attributable to the poor driving of CW #6 alone. Thus, it is further manifest that there is no causal connection between the driving of the SO and the unfortunate injuries sustained by the Complainant, whose injuries were directly caused by the driving of CW #6.
Although there is no causal connection between the collision, and the injuries sustained by the Complainant, and the driving of the SO, it is worthy of note that the SO fully complied with Ontario Regulation 266/10 of the Ontario Police Services Act (OPSA) entitled Suspect Apprehension Pursuits, in that, within seconds of making his U-turn to follow CW #6’s motor vehicle, he notified the dispatcher and requested assistance. He then advised the dispatcher as to the driving behaviour of the U-Haul van, when, mid-sentence, the collision occurred. It is also clear from the driving actions of the SO, wherein it is apparent that as an alternative to engaging in a pursuit he was ‘strategically following’  the U-Haul, (which is described in the WRPS companion legislation to the OPSA as an acceptable alternative to a pursuit) that he obviously considered whether in order to protect public safety, the immediate need to apprehend an individual in the fleeing motor vehicle, or the need to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle outweighed the risk to public safety that may result from the pursuit (s.2(3)), and determined that it did not.
The final question to be determined is whether or not there are reasonable grounds to believe that the SO, in strategically following CW #6, committed a criminal offence, specifically, whether or not his driving rose to the level of being dangerous and therefore in contravention of s.249(1) of the Criminal Code.
The decision of the Supreme Court of Canada R. v. Beatty,  1 S.C.R. 49, sets out the law with respect to s.249 in that it requires that “the driving be dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place” and the driving must be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”.
On a review of all of the evidence, I find that there is no evidence that the driving of the SO created a danger to other users of the roadway or that he at any time interfered with other traffic; in fact, his rate of speed in following CW #6 clearly took into account the snow covered roadways in that he operated his motor vehicle at all times at or below the posted speed limit (within one km/h above, at its highest), at no time did he spur on the poor driving of CW #6 by activating his emergency lighting system or siren, and he appears to have fully complied with the provisions of the Highway Traffic Act.
On this record, I find that the evidence of the SO’s driving does not rise to the level of driving required to constitute ‘a marked departure from the norm’ and, as indicated earlier, there is no evidence of a causal connection between the actions of the SO and the motor vehicle collision in which the Complainant was injured. In fact, in reviewing the evidence in its entirety, it is clear that not only did the SO respond to the situation in full compliance with the Criminal Code, the Highway Traffic Act, and the Ontario Police Services Act, but he behaved at all times professionally, prudently, and with good common sense. In conclusion, I find that the evidence before me does not satisfy me that I have reasonable grounds to believe that a criminal offence has been committed here by the SO and, as such, I find that there is no basis for the laying of criminal charges and none shall issue.
Date: November 5, 2018
Original signed by
Special Investigations Unit
- 1) Strategic following is described as following a fleeing motor vehicle at a distance in order to reduce the pressure on the driver, allowing the driver the option to pull over and stop. [Back to text]
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.