SIU Director’s Report - Case # 18-OVI-025
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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 injury sustained by a 26-year-old male (the Complainant) during a police pursuit on February 1, 2018.
Notification of the SIUOn February 1, 2018, at 5:45 a.m., the Durham Regional Police Service (DRPS) notified the SIU of a vehicle injury sustained by the Complainant. The DRPS reported that at 12:30 a.m. on that same date, DRPS police officers attempted to stop a vehicle in the area of Townline Road and Nash Road in the City of Oshawa. There was a short pursuit before the vehicle lost control and struck a hydro pole. The driver escaped on foot but was later discovered by a police dog and arrested. The Complainant, a passenger in the vehicle, was taken to the hospital, where he was found to have sustained a fracture to his right ankle.
The TeamNumber of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Complainant:26-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Declined to be 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
WO #5 Interviewed, notes received and reviewed
WO #6 Notes reviewed, interview deemed not necessary
Subject OfficersSO #1 Declined interview or to provide notes, as is the subject officer’s legal right
CW #1 then fled the vehicle, and the collision scene, on foot, leaving the Complainant behind. The Complainant was arrested at the scene and complained of an injury, following which he was taken to hospital by ambulance and assessed. CW #1 was later located by a K-9 officer, with the assistance of his police service dog, and was also arrested.
Nature of Injuries / TreatmentThe Complainant was found to have sustained a fracture to his right ankle.
The SceneThe scene began in the parking lot where the Kia was initially stopped and proceeded until the Kia collided with the hydro pole. The length of the police pursuit was determined to be a total of 4.3 kilometres and lasted approximately two minutes in total.
Distance, Road Surface, and Traffic Conditions The police pursuit began in the parking lot, from which CW #1 drove straight northbound on Townline Road for 4.3 kilometres before he lost control of his vehicle and entered a ditch. Townline Road is partly residential and partly rural and is a two-lane paved road in good condition with a solid yellow line in the centre of the roadway; it is a posted 60 km/h speed zone. There are a total of three intersections with signal lights on Townline Road; those intersections occur at Nash Road, at Adelaide Street, and at Taunton Road. Posted 60 km/h signs are posted at various points along Townline Road. At the time of the collision, the traffic was very light and the roadway was wet.
Scene DiagramA diagram of the scene was prepared by an SIU forensic investigator using a ‘Total Station’ instrument, as follows:
Physical EvidenceThe intersection of Taunton Road and Townline Road, approaching the collision scene. The photo depicts the road and weather conditions on the date of the collision, but hours later, during daylight.
The camera angle is directed northbound on Townline Road, to where the collision occurred on the right side of the road, past the orange cones seen on the roadway.
The tire marks in the snow on the right side of Townline Road, where the driver first lost control and the Kia exited the paved roadway.
Location where the Kia came to rest after striking the hydro pole and entering the ditch, flipping onto its roof.
The Kia motor vehicle, resting on its roof, after shearing the hydro pole.
AVL Data for the KIA Motor Vehicle (the time refers to the seconds before the collision, which is indicated as occurring at 0.0 seconds):
AVL Data for the police cruiser operated by the SO (the time is indicated on the 24 hour clock, beginning at 0019:24 hrs or 12:19 a.m. and 24 seconds, and concluding at 0021:38 hrs or 12:21 a.m. and 38 seconds):
Video/Audio/Photographic Evidence The SIU canvassed the area for any video or audio recordings, or photographic evidence, but none was located.
Communications RecordingsRecording of DRPS Police Transmissions beginning at 0018:20 hours (12:18 a.m. and 20 seconds) on February 1, 2018:
0018:20: WO #2 advised the dispatcher that they were investigating CW #1’s vehicle.
0019:20: WO #2 reported, “The vehicle is taking off northbound on Townline Road.”
0019:25: The dispatcher replied, “Northbound on Townline Road?”
0019:30: WO #2 replied, “10-4 the driver is suspected impaired by drugs.”
0019:34: Dispatcher replied, “10-4 suspected impaired by drugs. Are you in pursuit of the vehicle?”
0019:40: WO #2 replied, “Yes we are.”
0019:42: WO #2 reported, “Doing 110 km/h, coming up to lights.”
0019:49: Dispatcher replied, “Northbound on Townline from Nash Road, confirming pursuit. 10-3 all units?”
00:19:57: Sergeant 2 confirmed the pursuit.
00:20:00: Dispatcher. “10-4.”
0020:01: WO #2. “Still northbound 110 km/h. He is getting ahead of us. Getting a lot of space between him. Definitely not pushing him.”
00:20:23: “How is the traffic?”
00:20:26: WO #2. “Two cars going in the opposite direction. Still 110 km/h. We will be approaching Taunton Road in 10 seconds maybe 20 seconds.”
00:20:42: “Air 1 is 10-7 do you want it called out?”
00:20:46: WO #2. “No, it’s too late. Anybody up ahead of us? I think we are going to lose this guy. We are not pushing him. He is north of Taunton. He … I think he is going to wipe out. Yes, he wiped out north of Taunton. We’ll need K9.”
Forensic Evidence No submissions were made to the Centre of Forensic Sciences.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the DRPS:
- Computer-Aided Dispatch (CAD) Detailed Call Summary;
- Police Transmissions Communications Recording;
- Event Data Recorder (EDR) Report from Kia motor vehicle;
- EDR Summary Report from Kia motor vehicle;
- Internal DRPS Email re: Airbag Module Download from Kia;
- Notes of WO #s 1-6;
- General Occurrence Report authored by WO #1;
- Arrest Report for CW #1 authored by WO #3;
- Plea Synopsis for R v CW #1, authored by WO #3;
- Arrest Report authored by WO #2;
- Written Statements of WO #s 4 and 5; and,
- Automatic Vehicle Locator (AVL) and GPS data from the SO’s police cruiser.
The SIU obtained and reviewed the following materials and documents from other sources:
- Medical records of the Complainant related to this incident, obtained with his consent; and,
- AVL data from the Kia motor vehicle.
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
(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 ...(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.
Analysis and Director's Decision
On the evening of January 31, 2018, the Complainant was in south Oshawa and CW #1 offered to drive him home. CW #1 was driving a grey 4-door Kia vehicle and, en route, purportedly stopped to use the washroom at a bar on the northeast corner of Highway 2 and Townline Road in Oshawa. Unbeknownst to the Complainant and CW #1, WO #1 and WO #4 of the DRPS, were on duty in an unmarked police vehicle, in the parking lot of the bar, which was suspected by the DRPS to be frequented by drug dealers and impaired drivers. 
At 12:10 a.m., WO #1 noticed a 4-door grey Kia enter the parking lot and double park with the driving lights remaining on. WO #1 witnessed the driver, CW #1, exit the Kia, leaving the vehicle idling, and walking toward the front door of the bar. CW #1 approached and spoke briefly with an unknown man who had walked out of the bar. Both men continued to talk, while walking to, and entering, a second vehicle that was parked right next to the entrance to the bar.
WO #1 observed that after approximately 30 seconds, CW #1 exited the vehicle, walked into the bar for approximately 40 seconds, and jogged back to the Kia. CW #1 started to drive out of the parking lot and approached the exit to the area of Townline Road and Nash Road in Oshawa. As a result of his observations, WO #1 thought that what he had just witnessed was a possible drug transaction. WO #4 contacted the police dispatcher to have a marked police cruiser attend the scene to assist. WO #4 further reported a silver  coloured vehicle leaving the parking lot of the bar and requested the SO and WO #2 to stop the suspicious vehicle. At approximately 12:18 a.m., WO #1 saw WO #2 and the SO move their marked DRPS cruiser in front of CW #1’s vehicle. WO #1 observed both constables conversing with the occupants of the Kia for approximately one minute when CW #1 suddenly drove off toward Townline Road. WO #1 witnessed both WO #2 and the SO sprint back to their cruiser. They then activated both their emergency lights and sirens, pulled onto Townline Road, and drove northbound, in pursuit of the fleeing Kia. 
On the evening of January 31, 2018, and into the early morning hours of February 1, 2018, the SO was behind the wheel of a marked DRPS cruiser and WO #2 was his passenger. WO #2 was aware that WO #1 and WO #4 were operating “undercover” in the area of Townline Road and Highway 2, looking for potential drug dealers and impaired drivers possibly frequenting a bar in that area. WO #2 and the SO parked their cruiser.
Shortly after midnight, the grey coloured Kia exited the bar’s parking lot and proceeded toward Townline Road. The SO partially blocked the vehicle as it was about to leave the bar.
The Complainant recalled that the police cruiser pulled in front of the Kia on a 45-degree angle to the left front of the Kia.
Both constables exited their cruiser. WO #2 approached the driver of the Kia, CW #1. The SO approached the Complainant, who was in the front passenger seat. WO #2 noted a strong odour of freshly burnt marijuana emanating from within the Kia and further noted that CW #1 appeared exceptionally nervous. Both constables had very brief conversations with CW #1 and the Complainant. WO #2 requested that CW #1 produce his driver’s license. In response, CW #1 produced his Ontario Health Insurance Card, and when WO #2 repeated his request, CW #1 said he did not have a driver’s licence. WO #2 instructed CW #1 to exit the vehicle; the Complainant was about to exit the front passenger door at the same time when, suddenly, CW #1 accelerated and turned right onto Townline Road and sped off. The SO was forced to jump away from the accelerating Kia to avoid being struck. Both constables quickly returned to their cruiser to give chase. The speed of the fleeing Kia motor vehicle as it accelerated out of the parking lot was estimated to be 100 km/h.
The Kia was speeding northbound on Townline Road and, by the time the SO turned the cruiser onto Townline Road, and was between 300 and 500 metres ahead of the police cruiser. The topography of Townline Road was straight, mostly level, with good visibility, and a mix of both rural and residential properties. Throughout the pursuit, the traffic on Townline Road was virtually non-existent.
WO #2 notified the dispatcher that a police pursuit had been initiated. The SO accelerated to what was announced to dispatch to be 110 km/h, and both constables agreed that they were driving fast enough and would not increase their speed.  WO #2 noted that there were three intersections with traffic control signals on the 4.3 kilometre pursuit on Townline Road. The three intersections on Townline Road were located at Nash Road, Adelaide Street, and Taunton Road.
It was the recollection of WO #2 that the signal light was green at the intersection of both Nash Road and Adelaide Street. WO #2 observed the Kia pass two northbound vehicles at a high rate of speed, and estimated the speed of the Kia to be between 150 to 200 km/h.  CW #1 steadily widened the distance between his vehicle and the police cruiser throughout the pursuit.
The Complainant stated that he told CW #1 to slow down and pull over, however, CW #1 refused to do so because he did not have a driver’s licence. As they approached Taunton Road, WO #2 believed that the Kia was about to evade them and he was prepared to discontinue the pursuit. As the Kia approached Taunton Road, WO #2 reported to the police dispatcher that at that point their police cruiser was between 700 and 1100 metres behind the Kia.  However, just before that, as the Kia neared the intersection of Townline Road and Taunton Road, the traffic light for northbound traffic had turned red. The Complainant stated that CW #1 drove through the red light, sped a very short distance through the intersection, lost control of the Kia, swerved into the east ditch immediately north of Taunton Road and, upon striking a hydro pole, the Kia flipped over in a ditch adjacent to Townline Road.
On February 1, 2018, CW #2, a taxi driver, had two customers in his vehicle and was driving eastbound on Taunton Road. As he approached the intersection of Taunton Road and Townline Road, the light cycled red for east/westbound traffic and he stopped at the intersection. When the light cycled green for east/westbound traffic on Taunton Road, CW #2 started to inch forward when he observed a small grey vehicle travelling northbound on Townline Road at a high rate of speed, which he estimated to be 200 km/h, and disobey the red signal light at the intersection of Townline and Taunton Roads. As the grey vehicle sped through the intersection, CW #2 observed it begin to wobble and, after it had travelled approximately 300 metres, it careened into the east ditch. Before CW #2 entered the intersection, he saw a DRPS marked police cruiser with its roof lights activated proceeding northbound on Townline Road. CW #2 estimated that as the police cruiser approached the intersection it was travelling at a speed close to 100 km/h. CW #2 saw the police cruiser stop at the collision scene north of his location.  CW #2, to his great credit and because of his vigilance, hesitated prior to proceeding, despite having a green light, and prevented what could have been a catastrophic collision at the intersection of Townline and Taunton Roads.
Arriving at the collision scene, WO #2 observed smoke emanating from the Kia and noted severe damage to its roof. When the cruiser reached the scene, WO #2 observed that there were possible live hydro wires dangling near the vehicle and he decided against approaching the vehicle. The Complainant had been able to free himself from the Kia, but realized that he could not walk as a result of a significant fracture to his right ankle. The Complainant staggered out of the bushes, was arrested, handcuffed, searched, and complained that his right ankle was causing him pain.  Ultimately, the Complainant was transported by ambulance to hospital.
The issue to be determined is whether or not there are reasonable grounds to believe that the SO committed a criminal offence, specifically whether or not his driving rose to the level of dangerous operation of a motor vehicle causing bodily harm in contravention of s. 249 (3) of the Criminal Code.
Pursuant to the decision of the Supreme Court of Canada in the pivotal case of R. v. Beatty,  s. 249 requires that in order for an offence to be made out, the driving must be 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” 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.”
The issue is whether the subject officer was justified in initiating and continuing a pursuit, and, in doing so, did the SO’s driving comply with the DRPS SAP policy.  During pursuits, the paramount consideration in the decision to initiate, continue, or discontinue an SAP is public and officer safety. In addition, it is clear that an SAP is the choice of last resort and is only to be considered when other alternatives are either unavailable or unsatisfactory.
It is clear that no DRPS police vehicle was involved in this collision, either directly or indirectly. It is my conclusion, based on a review of all the evidence, including a consideration of the officer’s driving at the time of the incident, as well as the traffic and weather conditions, that the driving of the SO did not rise to the level required to constitute “a marked departure from the norm.” Other than the peripheral fact that the SO and WO #2 stopped CW #1 to investigate him by asking for his driver’s licence, I do not find that there is any causal connection between the actions of the subject officer and the driving of CW #1, which directly resulted in the injury sustained by the Complainant. I say this despite the fact that the SO at one point reached a speed of 157.8 km/h , because he followed the DRPS SAP policy and he was on the verge of terminating the SAP at the time of the collision.  The police pursuit was short lived, approximately 2 minutes in duration, during which CW #1 drove straight northbound on Townline Road for 4.3 kilometres at excessive rates of speed of between, at least, 138 to 199 km/h  and travelled through at least one red light (at Taunton and Townline). It is my opinion that the person responsible for this incident was CW #1, who, wanting to evade the police (perhaps because of not having a licence or for some other reason) , sped away from the police and lost control of the vehicle, careened into a ditch north of the intersection of Townline Road and Taunton Road, and caused the injury sustained by the Complainant. As such, I have no reasonable grounds to believe that the SO committed a criminal offence and no charges shall issue.
Date: November 21, 2018
Original signed by
Special Investigations Unit
- 1) Both WO #1 and WO #4 were working in the area of Townline Road and Highway 2 conducting surveillance on three licenced premises in the area. [Back to text]
- 2) The colour of the Kia motor vehicle was grey [Back to text]
- 3) WO #4 was partnered with WO #1 at the time of the event. WO #4 was interviewed by the SIU and his evidence completely corroborated the evidence of WO #1. [Back to text]
- 4) The AVL data suggests they were going significantly faster than that for a minute and 20 seconds (120 to 157.8 km/h). In fact, the speed of157.8 km/h was reached for perhaps five seconds. [Back to text]
- 5) The Complainant stated that CW #1 was travelling at about 160 km/h and passed two northbound vehicles by driving into the southbound lanes of Townline Road. [Back to text]
- 6) This is approximately the same estimate provided by the taxi driver, CW #2, who opined that the distance from the cruiser to the Kia was about 700 to 1000 metres. [Back to text]
- 7) CW #2 was a very detail-oriented witness; for instance, after the DRPS cleared the collision scene, CW #2 returned to the scene and, using his odometer, estimated that the collision occurred approximately 300 metres north of the intersection of Townline and Taunton Roads. He was correct. [Back to text]
- 8) Following his arrest, the Complainant was searched and $2230.00, in various denominations, was found on his person. The Complainant was ultimately charged with possession for the purpose of trafficking (s.5 (2) of the Controlled Drugs and Substances Act) and failing to stop for police (s. 216 (2) Highway Traffic Act). [Back to text]
- 9) R. v. Beatty  1 S.C.R. 49. [Back to text]
- 10) While acknowledging, of course, that failing to comply with SAP policy does not necessarily equate to a criminal driving offence. [Back to text]
- 11) Officers are allowed to exceed the speed limit under the HTA if they are doing so in the performance of a lawful duty, which was the case here. [Back to text]
- 12) For instance, he had been relaying to dispatch the fact of the pursuit, details of the traffic conditions, and his speed (although he significantly underestimated his speed on at least two occasions), as did his partner at the SIU interview. [Back to text]
- 13) As registered in the AVL data of the Kia during the five seconds before the collision. [Back to text]
- 14) CW #1 claimed ownership of money ($3,750) that was secreted under a snow-covered cinder block at the home where he was found hiding and which he had no connection to. [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.