SIU Director’s Report - Case # 20-OVI-328
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.
Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.
Information Restrictions
Freedom of Information and Protection of Privacy Act (“FIPPA”)
Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:- Confidential investigative techniques and procedures used by law enforcement agencies; and
- Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- Subject Officer name(s);
- Witness Officer name(s);
- Civilian Witness name(s);
- Location information;
- Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
- Other identifiers which are likely to reveal personal information about individuals involved in the investigation.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included. Other proceedings, processes, and investigations
Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.Mandate Engaged
The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.
“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.
This report relates to the SIU’s investigation into serious injuries sustained by a 35-year-old woman (the “Complainant”).
“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 serious injuries sustained by a 35-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU
On November 28, 2020, at 5:15 p.m., the Chatham-Kent Police Service (CKPS) notified the SIU of injuries suffered by the Complainant. The Complainant was injured following a motor vehicle collision, which occurred while police were attempting to stop a vehicle she occupied.According to the information received from the CKPS, at 11:06 a.m. on November 28, 2020, CKPS officers attempted to stop a pickup truck traveling eastbound on Highway 401. The truck failed to stop, and a pursuit was initiated. The pickup truck exited the highway at Kent Bridge Road and rolled over.
Both occupants of the vehicle were taken to the Chatham Kent Health Alliance Hospital, where the Complainant, the passenger, was determined to have suffered chipped L1 through L4 vertebrae.
The scene of the incident was being preserved for the SIU.
The Team
Number of SIU Investigators assigned: 4 Number of SIU Forensic Investigators assigned: 1
The SIU immediately dispatched three investigators, a forensic identification investigator and a collision reconstructionist to the scene. The scene was photographed and was measured using a Total Station device, for forensic mapping purposes.
Given that the incident occurred along a 400 series highway, the jurisdiction of the OPP, the OPP also dispatched a collision investigation team to the scene.
Complainant:
35-year-old female interviewed, medical records obtained and reviewedCivilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
Witness Officers
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
Subject Officers
SO Declined interview and to provide notes, as is the subject officer’s legal right. Will say provided. Evidence
The Scene
Weather data from Environment Canada reported in Chatham-Kent at 11:00 a.m. on November 28, 2020, indicated the temperature was 3.6 degrees Celsius. The wind was out of the west at 21.0 km/h. Visibility was 16.1 kilometres.In the area of the collision, Highway 401 was a four-lane highway, with two lanes of traffic for both eastbound and westbound vehicular movement. The opposing traffic lanes were separated by a grassed ditch.
Kent Bridge Road intersected Highway 401 as an overpass and was serviced in a traditional cloverleaf format.
An eastbound off-ramp permitted traffic to exit onto Kent Bridge Road. Immediately to the east of the off-ramp, an on-ramp permitted access to eastbound Highway 401. The off-ramp was delineated with a yellow painted fog line on the left, or east, side and white painted fog line on the right side. Reflective yellow metal squares on poles delineated the left side of the ramp. There was no posted advisory speed.
A 2018 blue Dodge Charger, bearing the CKPS markings, was located straddling the gravel and the paved portion of the east shoulder of the Kent Bridge Road on-ramp to eastbound Highway 401. The engine was running, and the emergency lighting was active. There was no fresh exterior damage to this vehicle.
A 2007 red Ford F150 was located facing north on the east grassed boulevard of the Kent Bridge Road on-ramp to eastbound Highway 401. The right side was moderately crushed, and the roof had been removed.
Figure 1 - The Ford F150.
A tire mark 21.6 metres long started at a point 1.7 metres south of the north edge of the eastbound Highway 401 Kent Bridge Road off-ramp, 85.5 metres west of the centre of mass of the Ford F150. It ended at the north edge of the north gravel shoulder. Another shorter tire mark was parallel to and immediately south of this first mark. Other tire marks in line with the first two tire marks followed an eastbound path intermittently on the grass separating the eastbound Highway 401 Kent Bridge Road off-ramp from the on-ramp.
Figure 2 – Orange and yellow evidence markers placed next to tire marks.
Scene Diagram
Forensic Evidence
Global Positioning System (GPS) data (the SO’s vehicle)
The timestamps of the GPS data from the SO’s police vehicle appear to have been one hour ahead of the actual time. All other evidence confirms the incident occurred at 11:03 a.m., not 12:03 p.m., as the SO’s GPS data would suggest. The times noted below were corrected by one hour, to reflect the correct times.On November 28, 2020 at 10:45 a.m., the SO was at the CKPS station in Blenheim. At 10:46 a.m., he departed the police station and drove southbound on County Road 11 (known as Chatham Street North in the Town of Blenheim). The SO continued through Talbot Street and continued southbound on County Road 11 (known as Chatham Street South, south of Talbot Street) at approximately 40 km/h. He then travelled southbound on County Road 3. His speeds while southbound on County Road 3 were 50 to 75 km/h.
South of Blenheim, County Road 3 was a two-lane paved roadway, providing one lane of traffic in both northbound and southbound directions. The Willow Ridge Golf and Country Club was located south of Blenheim. At 10:51 a.m., just north of the golf club, the SO turned around and started to travel northbound.
Traveling northbound on County Road 3, the SO’s speed reached 133 km/h, in a generally rural area where the posted speed limit was 80 km/h. As he continued northbound and entered an area in which industrial and retail establishments bordered the roadway, he decreased his speed to approximately 60 km/h. The posted speed limit in that area was 50 km/h.
The SO turned northbound onto County Road 11 (Chatham Street South) and travelled at 91 km/h through a residential area, where the posted speed limit was 50 km/h. He slowed as he approached the intersection at Talbot Street (the major intersection in Blenheim) and then continued northbound through town at approximately 40 km/h.
The SO exited Blenheim and continued northbound on County Road 11 (north of Blenheim, County Road 11 was known as Communication Road). The area was generally rural and there was a lane of traffic in both the northbound and southbound directions. The posted speed limit north of Blenheim was 90 km/h, dropping to 80 km/h just south of Highway 401. Traveling northbound on County Road 11, the SO’s speed reached 152 km/h, in a 90 km/h zone.
At 10:59 a.m., the SO entered the eastbound lanes of Highway 401.
From 10:59 a.m. to 11:00 a.m., the SO’s speeds varied between 111 km/h to 167 km/h, often in the range of 140 km/h to 159 km/h.
From 11:00 a.m. to 11:01 a.m., the SO continued to travel at 150 km/h to 161 km/h.
At 11:02 a.m., the SO’s speed reached 172 km/h, traveling eastbound on Highway 401.
At 11:03:31 a.m., the SO approached the Kent Bridge Road off-ramp traveling 143 km/h.
The SO exited the Kent Bridge Road off-ramp and drove up to the stop sign where the off-ramp met Kent Bridge Road. He then turned northbound and drove halfway down the on-ramp to Highway 401.
Expert Evidence
SIU Collision Reconstructionist Report
The SO, operating a marked CKPS 2017 Dodge Charger, drove northbound on Communication Road (County Road 11) from Blenheim, then eastbound on Highway 401 in Chatham-Kent. The SO was in pursuit of a 2007 Ford F150 pickup truck operated by CW #1. The Complainant was a passenger in the front seat of the pickup truck. The atmosphere was clear, and the roads were dry.While on Communication Road north of Blenheim, the SO achieved a maximum speed of 158 km/h in a 90 km/h zone. The SO then drove eastbound on Highway 401 for 11.4 kilometres, achieving a maximum speed of 172 km/h in a 100 km/h zone.
At 11:03 a.m., CW #1 exited Highway 401 at the Kent Bridge Road off-ramp, traveling approximately 120 km/h, with the SO 3.48 seconds behind him.
The Ford F150 exited the east edge of the off-ramp at approximately 88 km/h and bounced as it travelled southeast on the grass toward the on-ramp to eastbound Highway 401. The Ford F150 then mounted the west edge of the on-ramp and became airborne across the ramp, while rotating counter-clockwise. The right rear wheel of the F150 landed on the east side of the on-ramp, tripping the vehicle so that it rolled onto its right side and slid a short distance, before coming to rest facing north.
The CKPS Unit was driven along the off-ramp to Kent Bridge Road, then turned north on the on-ramp, stopping on the east shoulder.
The Complainant received serious injury from the collision.
Based on examinations of the involved vehicles, the SO was not wearing his seatbelt. There was insufficient evidence inside the pickup truck to determine whether CW #1 and the Complainant were wearing their seatbelts.
Video/Audio/Photographic Evidence
COMPASS Camera recording
There was a COMPASS highway camera located on the south side of Highway 401, at Kent Bridge Road. A video recording from the camera was obtained by the SIU.At 11:03:29 a.m., the camera, recording eastbound traffic, captured the top of the involved red F150 pickup truck in the lower right corner of the video. The F150 pickup truck was driven southeast along the Kent Bridge Road off-ramp.
At 11:03:33 a.m., the roof of a dark blue vehicle with inactive emergency roof lighting, believed to be the SO’s CKPS vehicle, was driven southeast along the Kent Bridge Road off-ramp.
Communications Recordings
The OPP communications recordings were received by the SIU on February 11, 2021. A review of the OPP communications identified two civilian witnesses.At 11:13 a.m., the CKPS contacted the OPP and reported one of their police officers had come across an accident at the Kent Bridge Road off-ramp of Highway 401. The CKPS dispatcher reported the fire department had been notified, to assist in extrication of the vehicle occupants.
At 11:21 a.m., a civilian witness contacted the OPP and reported that she and her husband had witnessed a police vehicle chasing a truck that then rolled over. She believed the involved police vehicle was an OPP vehicle.
The caller stated she and her husband were traveling in the right lane of eastbound Highway 401 when they were passed by a truck traveling at 140 km/h. A police vehicle was right beside the truck.
Both the speeding truck and the police cruiser travelled up a highway exit ramp. The police officer turned off his emergency lights and drove up to the stop sign at Kent Bridge Road.
The caller reported she and her husband passed by the exit ramp and saw the pickup truck on its side. She had recorded photographs of the truck on its side.
Materials obtained from Police Service
The SIU obtained the following records from the CKPS between December 5, 2020, and February 25, 2021:• A copy of the communications recordings;
• A copy of the Event Details Report;
• A copy of the General (Occurrence) Report;
• The SO’s vehicle’s GPS Data;
• Scene photographs;
• The SO’s Training Summary;
• Policy – Suspect Apprehension Pursuits;
• Notes of all designated witness officers; and
• Will-say – the SO.
From the OPP, the SIU obtained the following materials:
• Event Details Report;
• Occurrence Details; and
• Related communications recordings.
Materials obtained from Other Sources
From the Chatham-Kent Fire and Emergency Services, the SIU received:• Witness reports from 11 firefighters; and
• The occurrence report.
The SIU obtained video footage recorded by the Ministry of Transportation’s COMPASS camera system.
The SIU obtained the Complainant’s medical records from the Chatham-Kent Health Alliance.
The SIU obtained the ambulance call reports from MEDAVIE EMS (the ambulance service).
Incident Narrative
The following scenario emerges on the evidence collected by the SIU, which included interviews with the Complainant, CW #1 (the driver and other occupant of the pickup truck being pursued), and several police and civilian witnesses with information bearing on the incident. The investigation was also assisted by GPS data associated with the SO’s cruiser, and a forensic examination of the scene and items of evidence. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes. He did provide a prepared statement about his involvement in the matter.
Shortly before 11:00 a.m. of November 28, 2020, CW #1 was driving a pickup truck north on County Road 3 toward Blenheim. With him in the front passenger seat was the Complainant. CW #1 was at the time bound by a term of a recognizance to not associate with the Complainant. His driver’s licence was also under suspension.
At the same time, the SO was on patrol in his marked cruiser southbound on County Road 3. He passed the pickup truck and believed he recognized CW #1 and the Complainant in the vehicle. Realizing that CW #1 was breaching a court order and concerned for the Complainant’s welfare – the officer was aware of past domestic disturbances involving the two – the SO decided to stop the vehicle. The officer turned his cruiser around and began to travel northward on County Road 3.
The SO accelerated to close the gap with the pickup truck and was within several car lengths as both vehicles took the ramp onto the eastbound lanes of Highway 401 from Communication Road. CW #1 began to speed up. The SO activated his emergency lights and gave chase.
Over the next 11-kilometre stretch of highway, CW #1 embarked on a course of reckless driving in which he reached and maintained speeds in the neighbourhood of 160 to 170 km/h and wove from lane to lane. As CW #1 approached Kent Bridge Road, he swerved late onto the roadway’s off-ramp, failed to negotiate its southeast curve, and lost control of the pickup truck. The pickup truck mounted the east edge of the off-ramp at approximately 88 km/h and bounced as it travelled southeast on the grass toward the on-ramp to eastbound Highway 401. The truck then mounted the west edge of the on-ramp and became airborne across the ramp, while rotating counter-clockwise. The right rear wheel of the vehicle landed on the east side of the on-ramp, tipping the vehicle so that it rolled onto its right side and slid a short distance, before coming to rest facing north.
The SO accelerated to match speeds with the pickup truck as the vehicles travelled east on Highway 401. He saw CW #1 exiting at the Kent Bridge Road off-ramp and did the same. Shortly thereafter, the SO maneuvered his cruiser onto the eastbound on-ramp to the highway from Kent Bridge Road, and exited to render assistance to CW #1 and the Complainant, trapped inside the wreckage.
The fire department and paramedics were called to the scene. The roof of the pickup truck was removed, and its occupants extracted from the vehicle.
Both parties were taken to hospital from the scene in ambulance. The Complainant was diagnosed with fractures and ligament damage to her spine. CW #1 was fortunate to have escaped serious injury.
Shortly before 11:00 a.m. of November 28, 2020, CW #1 was driving a pickup truck north on County Road 3 toward Blenheim. With him in the front passenger seat was the Complainant. CW #1 was at the time bound by a term of a recognizance to not associate with the Complainant. His driver’s licence was also under suspension.
At the same time, the SO was on patrol in his marked cruiser southbound on County Road 3. He passed the pickup truck and believed he recognized CW #1 and the Complainant in the vehicle. Realizing that CW #1 was breaching a court order and concerned for the Complainant’s welfare – the officer was aware of past domestic disturbances involving the two – the SO decided to stop the vehicle. The officer turned his cruiser around and began to travel northward on County Road 3.
The SO accelerated to close the gap with the pickup truck and was within several car lengths as both vehicles took the ramp onto the eastbound lanes of Highway 401 from Communication Road. CW #1 began to speed up. The SO activated his emergency lights and gave chase.
Over the next 11-kilometre stretch of highway, CW #1 embarked on a course of reckless driving in which he reached and maintained speeds in the neighbourhood of 160 to 170 km/h and wove from lane to lane. As CW #1 approached Kent Bridge Road, he swerved late onto the roadway’s off-ramp, failed to negotiate its southeast curve, and lost control of the pickup truck. The pickup truck mounted the east edge of the off-ramp at approximately 88 km/h and bounced as it travelled southeast on the grass toward the on-ramp to eastbound Highway 401. The truck then mounted the west edge of the on-ramp and became airborne across the ramp, while rotating counter-clockwise. The right rear wheel of the vehicle landed on the east side of the on-ramp, tipping the vehicle so that it rolled onto its right side and slid a short distance, before coming to rest facing north.
The SO accelerated to match speeds with the pickup truck as the vehicles travelled east on Highway 401. He saw CW #1 exiting at the Kent Bridge Road off-ramp and did the same. Shortly thereafter, the SO maneuvered his cruiser onto the eastbound on-ramp to the highway from Kent Bridge Road, and exited to render assistance to CW #1 and the Complainant, trapped inside the wreckage.
The fire department and paramedics were called to the scene. The roof of the pickup truck was removed, and its occupants extracted from the vehicle.
Both parties were taken to hospital from the scene in ambulance. The Complainant was diagnosed with fractures and ligament damage to her spine. CW #1 was fortunate to have escaped serious injury.
Relevant Legislation
Section 219, Criminal Code -- Criminal negligence causing death
219 (1) Every one is criminally negligent who
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
Section 221, Criminal Code -- Criminal negligence causing death or bodily harm
221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten yearsSection 128(13), Highway Traffic Act – Police vehicles and speeding
128(13) The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,
(b) a police department vehicle being used in the lawful performance of a police officer’s duties.
Section 320.13, Criminal Code – Dangerous operation of motor vehicles, vessels and aircraft
320.13 (2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.
Ontario Regulation 266/10, Police Services Act – Suspect Apprehension Pursuits
3. (1) A police officer shall notify a dispatcher when the officer initiates a suspect apprehension pursuit.
(2) The dispatcher shall notify a communications supervisor or road supervisor, if a supervisor is available, that a suspect apprehension pursuit has been initiated
Analysis and Director's Decision
On November 28, 2020, the Complainant, while a front seat passenger in a pickup truck traveling east on Highway 401, was seriously injured when the vehicle left the road and crashed. As the truck was being pursued at the time by a CKPS officer, the SIU was notified and opened a file. The officer in pursuit – the SO – was identified as a 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 Complainant’s injuries.
The offences that arise for consideration are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to sections 320.13(2) and 221 of the Criminal Code, respectively. The former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is a more serious offence that is reserved for behaviour that demonstrates a wanton or reckless disregard for the lives and safety of others. It is not made out unless there has been a marked and substantial departure from a reasonable level of care. In the instant case, the pivotal issue is whether there was a want of care in the manner in which the SO pursed the pickup truck that was so egregious as to attract criminal sanction. In my view, there was not.
Though the SO’s decision-making and conduct throughout the pursuit are subject to legitimate criticism, I am unable to reasonably conclude that the officer transgressed the limits of care prescribed by the criminal law. Certainly, the SO fell short in failing to advise his communications centre that he had initiated a pursuit and, thereafter, keeping the centre apprised of relevant circumstances surrounding the pursuit, such as direction of travel, speeds, environmental conditions, and other risk factors. In so doing, he violated section 3 of O. Reg. 266/10, which is intended to ensure that a supervisor removed from the scene is in a position to make an informed and dispassionate decision with respect to whether the pursuit should continue. If the SO had kept his dispatcher abreast of the situation, the pursuit might well have been called off given the speeds that were reached and CW #1’s dangerous driving.
On the question of speed, it is hard to justify the lengths to which the SO went to keep pace with CW #1. The GPS data establish that he travelled in a range around 160 km/h for much of the pursuit on Highway 401, topping out upwards of 170 for a brief period. At those speeds, I am satisfied that the SO constituted a danger on the roadway, particularly as he does not appear to have been operating his siren for most, if any, part of the pursuit. The SO seems to have believed that it was imperative to catch and stop the vehicle given fears that the Complainant had previously expressed to him about her well-being vis-à-vis CW #1. I accept that the officer harboured a real concern about the Complainant, and that the troubled history between she and CW #1, which had resulted in a recent non-association order, lent credence to that concern. What is difficult to accept is that the SO failed to appreciate the equally valid risks to the Complainant’s health and safety created by the continuation of a high-speed pursuit. It ought to have been apparent to the SO that CW #1 was not about to abandon his efforts to escape apprehension well before the collision at the Kent Bridge Road off-ramp, and that public safety was best served by discontinuing the pursuit. And, yet, the officer persisted until the end.
On the other side of the ledger, it bears noting that police officers engaged in the execution of their duties are exempt from speeding restrictions pursuant to section 128(13) of the Highway Traffic Act. The provision was operative in this case as the SO had seen CW #1 in breach of a court order and was therefore within his rights in wanting to stop the vehicle. While the section does not confer carte-blanche on police officers to speed as they wish in spite of public safety considerations, it is a mitigating factor in the liability analysis. This is particularly so in relation to the speeds reached by the SO prior to entering onto Highway 401 as one might reasonably expect an officer to exceed the speed limit in the initial stages of an engagement as they attempt to close the distance. The fact that the SO’s emergency lights were on during the pursuit, traffic was light, and the weather was clear and dry, also served to mitigate the risks inherent in the officer’s speeds.
Finally, aside from his speed and persistence, I am satisfied that the SO did not directly imperil the safety of vehicular traffic around him or unduly fuel CW #1’s reckless driving. For example, there is no evidence that third-party motorists were forced to take evasive action to avoid colliding with the officer’s cruiser. And there is every indication that CW #1 engaged in highly risky maneuvers on the road of his own volition. Thus, though the SO was at times right behind the pickup truck, it is apparent that CW #1 was not prevented from altering his course of driving if he was so inclined.
The SO ought to have discontinued the pursuit, in my view, given the balance of public safety considerations that prevailed for much of the engagement. That he did not do so, coupled with his speeds and failure to provide any information to the police dispatcher about what he was doing, contributed, in my view, to a danger on the roadway. Nevertheless, when weighed in the mix with the extenuating considerations, I am not reasonably satisfied that the officer’s shortcomings were such as to render the SO’s driving a marked departure from a reasonable standard of care in the circumstances, let alone a marked and substantial departure from that standard. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: August 30, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offences that arise for consideration are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to sections 320.13(2) and 221 of the Criminal Code, respectively. The former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is a more serious offence that is reserved for behaviour that demonstrates a wanton or reckless disregard for the lives and safety of others. It is not made out unless there has been a marked and substantial departure from a reasonable level of care. In the instant case, the pivotal issue is whether there was a want of care in the manner in which the SO pursed the pickup truck that was so egregious as to attract criminal sanction. In my view, there was not.
Though the SO’s decision-making and conduct throughout the pursuit are subject to legitimate criticism, I am unable to reasonably conclude that the officer transgressed the limits of care prescribed by the criminal law. Certainly, the SO fell short in failing to advise his communications centre that he had initiated a pursuit and, thereafter, keeping the centre apprised of relevant circumstances surrounding the pursuit, such as direction of travel, speeds, environmental conditions, and other risk factors. In so doing, he violated section 3 of O. Reg. 266/10, which is intended to ensure that a supervisor removed from the scene is in a position to make an informed and dispassionate decision with respect to whether the pursuit should continue. If the SO had kept his dispatcher abreast of the situation, the pursuit might well have been called off given the speeds that were reached and CW #1’s dangerous driving.
On the question of speed, it is hard to justify the lengths to which the SO went to keep pace with CW #1. The GPS data establish that he travelled in a range around 160 km/h for much of the pursuit on Highway 401, topping out upwards of 170 for a brief period. At those speeds, I am satisfied that the SO constituted a danger on the roadway, particularly as he does not appear to have been operating his siren for most, if any, part of the pursuit. The SO seems to have believed that it was imperative to catch and stop the vehicle given fears that the Complainant had previously expressed to him about her well-being vis-à-vis CW #1. I accept that the officer harboured a real concern about the Complainant, and that the troubled history between she and CW #1, which had resulted in a recent non-association order, lent credence to that concern. What is difficult to accept is that the SO failed to appreciate the equally valid risks to the Complainant’s health and safety created by the continuation of a high-speed pursuit. It ought to have been apparent to the SO that CW #1 was not about to abandon his efforts to escape apprehension well before the collision at the Kent Bridge Road off-ramp, and that public safety was best served by discontinuing the pursuit. And, yet, the officer persisted until the end.
On the other side of the ledger, it bears noting that police officers engaged in the execution of their duties are exempt from speeding restrictions pursuant to section 128(13) of the Highway Traffic Act. The provision was operative in this case as the SO had seen CW #1 in breach of a court order and was therefore within his rights in wanting to stop the vehicle. While the section does not confer carte-blanche on police officers to speed as they wish in spite of public safety considerations, it is a mitigating factor in the liability analysis. This is particularly so in relation to the speeds reached by the SO prior to entering onto Highway 401 as one might reasonably expect an officer to exceed the speed limit in the initial stages of an engagement as they attempt to close the distance. The fact that the SO’s emergency lights were on during the pursuit, traffic was light, and the weather was clear and dry, also served to mitigate the risks inherent in the officer’s speeds.
Finally, aside from his speed and persistence, I am satisfied that the SO did not directly imperil the safety of vehicular traffic around him or unduly fuel CW #1’s reckless driving. For example, there is no evidence that third-party motorists were forced to take evasive action to avoid colliding with the officer’s cruiser. And there is every indication that CW #1 engaged in highly risky maneuvers on the road of his own volition. Thus, though the SO was at times right behind the pickup truck, it is apparent that CW #1 was not prevented from altering his course of driving if he was so inclined.
The SO ought to have discontinued the pursuit, in my view, given the balance of public safety considerations that prevailed for much of the engagement. That he did not do so, coupled with his speeds and failure to provide any information to the police dispatcher about what he was doing, contributed, in my view, to a danger on the roadway. Nevertheless, when weighed in the mix with the extenuating considerations, I am not reasonably satisfied that the officer’s shortcomings were such as to render the SO’s driving a marked departure from a reasonable standard of care in the circumstances, let alone a marked and substantial departure from that standard. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: August 30, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.