Director's Report Details

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.

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.

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 injuries a 31-year-old woman (the “Complainant”) suffered.

Notification of the SIU

On 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 Team

Number 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

The Scene

The 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.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO and WO #1, the other officer who had been in pursuit. The investigation was also assisted by the police communication recordings and the GPS data relating to the speeds and locations of the involved cruisers. On October 25, 2020, just before midnight, the SO was on patrol in his cruiser traveling east on Highway 401. Shortly after entering the highway from Division Road, the officer noticed a vehicle coming up from behind him at speed. The vehicle was a black Honda Civic; its driver was the Complainant.

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

Shortly after midnight of October 26, 2020, the Complainant suffered a right scapular fracture and a broken left leg when she crashed her vehicle in the area of Highway 401 and Battersea Road, Kingston. As she had been pursued by OPP officers in the moments prior to the collision, the SIU was notified and commenced an investigation. The driver of one of the OPP cruisers in pursuit, the SO, 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.

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

Joseph Martino
Director
Special Investigations Unit