SIU Director’s Report - Case # 22-PVI-313
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 28-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 28-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On December 10, 2022, at 4:11 a.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant. According to the OPP, earlier that morning, the Windsor Police Service (WPS) requested the OPP’s assistance in locating two vehicles involved in ongoing criminal offences in the Windsor area. OPP members from the Essex Detachment located the involved vehicles and initiated a pursuit. A tire deflation device (TDD) was deployed on one of the vehicles but was ineffective and the pursuit was terminated. After the vehicles were located again, one of the suspect vehicles purposefully collided with the OPP police vehicle driven by Witness Official (WO) #5, then fled the scene of a collision, which produced minor damage and no injuries. At 1:30 a.m., a second TDD was deployed on the other involved suspect vehicle. When that driver attempted to avoid the TDD, the vehicle left the roadway. Upon impact in the ditch, at Highway 3 between Cameron Side Road and Marsh Side Road, Kingsville, the Complainant was ejected from the vehicle. The Complainant was transported to Hotel Dieu Grace Hospital via Emergency Medical Services (EMS) with neck and back injuries, and later diagnosed with a fractured nose and back. The Subject Official (SO) was the officer who had deployed the TDD.
The Team
Date and time team dispatched: 12/10/2022 at 4:50 a.m.Date and time SIU arrived on scene: 12/10/2022 at 8:40 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1
Number of SIU Reconstructionists assigned: 1
SIU investigators interviewed civilian and police witnesses, and made a direct appeal for witnesses via a media release.
SIU examined and photographed the scene, and a Total Station device was used to map the area. A video recording of the pursuit route was completed once it was established through Global Positioning System (GPS) data.
A SIU Collision Reconstructionist analyzed and reported on the data obtained during the investigation, including the OPP’s work product from a single motor vehicle collision.
Following a determination that the Complainant’s vehicle was not subject to a TDD deployment, an independent mechanical inspection of the pick-up truck was completed.
Affected Person (aka “Complainant”):
28-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on March 23, 2023.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Not interviewed; next-of-kin
The civilian witnesses were interviewed between December 13 and 16, 2022.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed
WO #11 Interviewed
WO #12 Not interviewed; notes received and reviewed
WO #13 Not interviewed; notes received and reviewed
WO #14 Not interviewed; notes received and reviewed
WO #15 Not interviewed; notes received and reviewed
The witness officials were interviewed between December 13, 2022 and February 17, 2023.
Evidence
The Scene
On December 10, 2022, at 8:40 a.m., the SIU arrived on scene, which was located on Highway 3 between Cameron Side Road and Marsh Side Road in Essex County. In this rural area, Highway 3 was a two-lane roadway, which had a posted speed of 80 km/h and ran in east and west direction. The two lanes of travel, which were flat, straight, and in good condition, were divided by a broken yellow line painted about the middle of the roadway and white fog lines painted at the edge of the paved asphalt. The roadway was lined with gravel shoulders and deep grass ditches on either side, and a fence separated the farm field on the south side of the roadway. There were no residences in the immediate vicinity and no ambient lighting to illuminate the area.
Figure 1 – Silver Ford F250
A silver Ford F250 was located oriented in an easternly direction on the south side of the roadway and over the south side fence. The vehicle had sustained extensive collision damage. The driver’s seatbelt was snug between the “B” pillar and seatback. The seatbelt assembly, which was easy to extend, indicated the assembly was not in use during the collision.
Prior to the SIU’s arrival, a pylon was placed on the south shoulder indicating, perhaps, the location where the SO’s police vehicle was positioned when he deployed the TDD. Tire marks were also visible on the south shoulder in relation to the pylon.
Further to the west, there was a set of tire marks that entered the north shoulder and continued west before crossing back onto the westbound lane of Highway 3. There were tire marks visible on the westbound lane with a right turning movement and the markings continued back onto the north gravel shoulder. The markings continued with a correction to re-enter the paved area of the roadway. The tire marks continued in a southwest direction across the roadway and there appeared to be a four-wheel slide by the vehicle before entering the south gravel shoulder. The markings continued in a southwest direction before the vehicle entered the south side ditch and overturned numerous times causing gouge marks in the grass and dirt. There were various articles thrown from the vehicle, which came to rest with the passenger side of the vehicle on the south fence.
There was a set of tire marks with apparent acceleration markings on the south gravel shoulder and approximately midway of the first tire marks on the north shoulder. These tire marks turned sharply to the right and entered over the eastbound lane of Highway 3 at an approximately 90-degree angle. The tire marks stopped near the centre line.
Pylons were placed along the roadway and shoulders to assist with the tire marks found, and photographs and measurements of the scene were taken.
Scene Diagram
Physical Evidence
Stringer Spike System TDD
A Stringer Spike System TDD was examined and photographed. The spikes were missing on the far end of the system. The Stringer Spike System model 90200 was equipped with power point hollow spikes. The rocking arm action of the base enabled the unit to tilt as a vehicle passed over it, allowing the spike to enter at the correct angle of maximum penetration. 
Figure 2 - Stringer Spike System TDD
Police Vehicles
A SIU forensic investigator attended the OPP Lakeshore Detachment to examine the involved police vehicles.The SO’s Police Vehicle
A black and white Chevrolet Tahoe. This police vehicle was marked with decals. The emergency lighting and siren equipment functioned as designed.
Vehicle Examination of Ford F250
On December 19, 2022, a SIU forensic investigator conducted a vehicle examination on the Complainant’s vehicle. The front right tire was found to be deflated and the bead broken on the rim. The valve stem was also missing. There was an obvious nail head puncture through the tread and into the tire. There was dirt and debris in the tire bottom, consistent with its movement through the roadway and into the grass-covered ditch. There was no evidence of spike puncture consistent with being in contact with a spike belt.
The rear right tire was found to be deflated and the bead broken on the rim. There was dirt and debris in the tire bottom consistent with its movement through the roadway and onto the grass-covered ditch. There was no evidence of spike puncture consistent with being in contact with a spike belt.
The front left tire was found to be inflated. There was a screw in the tread but no penetration of the tire cavity. There was no spike puncture consistent with being in contact with a spike belt.
The left rear tire was found to be deflated and bead broken on the rim. There was minimal dirt and debris in the tire bottom consistent with its movement across the roadway and onto the grass-covered ditch. There was no evidence of spike puncture consistent with being in contact with a spike belt.
Forensic Evidence
GPS Data (Cross-referenced with Radio Communications)
Between December 18, 2022, and January 31, 2023, the SIU received GPS data from 11 involved OPP vehicles, which were equipped with GPS receivers that recorded data pertaining to the movements of the police vehicles along the pursuit route and the rate of speed of each police vehicle. A SIU Collision Reconstructionist reviewed the GPS data in relation to the pertinent communications recordings with the following findings. At 12:40:44 a.m., WO #6 advised via radio transmissions that he was following the white pick-up truck [now known to be a silver Ford F250 operated by the Complainant] eastbound on Highway 3 after he executed a U-turn about 750 metres east of Sexton Side Road, travelling at 88 km/h. [There was nothing in the GPS data, the communications recordings or anything obtained during the investigation to indicate any other police officer had prior interaction with the Complainant or CW #1 before this time.]
At 12:42:36 a.m., WO #3 directed the SO and WO #1 to block the roadway at Highway 3 and County Road 19.
At 12:43:00 a.m., the SO and WO #1 positioned their police vehicles on the west side of the intersection in the eastbound lanes as WO #6 drove east towards them at approximately 76 km/h.
At 12:43:11 a.m., WO #6 travelled eastbound through the intersection at about 93 km/h. A few seconds later, WO #1 and the SO also travelled eastbound through the intersection to Ellis Side Road, in close proximity and at similar rates of speeds.
At 12:44:05 a.m., WO #3 inquired about the speed of the pick-up trucks and the driving conditions. In response, WO #6 reported that there was no eastbound traffic, the roadways were slightly wet, and the pick-up trucks were travelling 90 km/h.
At 12:44:30 a.m., WO #6, WO #1, and the SO continued eastbound on Highway 3 through the intersection at Ellis Side Road, in close proximity and at similar rates of speeds. At the same time, WO #7 arrived at the intersection of Highway 3 and Ellis Side Road where he executed a U-turn on the east side of the intersection and stopped on the south side of the road, consistent with the deployment of the TDD. WO #6 and WO #7 both reported that the pick-up trucks had avoided the TDD.
At 12:44:51 a.m., WO #6 continued eastbound on Highway 3, followed by the SO, WO #1, and WO #7.
At 12:45:05 a.m., WO #3 inquired if it was safe to conduct a rolling-block. In response, WO #6 advised it was not safe, and the pick-up trucks had passed County Road 8 (Maidstone Avenue).
At 12:45:19 a.m., WO #3 directed all units to disengage, terminate, and pull over to the side of the roadway. WO #6, the SO, WO #1 and WO #7 stopped on Highway 3 about 250 metres east of County Road 8 (Maidstone Avenue). While the four police vehicles were stopped, WO #5 passed the stopped police vehicles at a rate of speed of 127 km/h, having been driving at a rate of 160 to 170 km/h to catch up to the other police officers. WO #5 continued eastbound on Highway 3, east of County Road 19, at a rate of speed upwards of 120 km/h for about three minutes.
When WO #3 directed units to disengage, WO #6, the SO, WO #1 and WO #7 were all stopped. WO #5 continued driving eastbound on Highway 3. WO #2 was driving eastbound on Highway 401, being approximately 11 to 12 kilometres away. WO #4 was driving southbound on County Road 23, north of County Road 8. WO #15 was travelling westbound on Highway 3, east of County Road 23, and WO #12, WO #13 and WO #14 were not in the area.
The SO remained stopped until about 12:51 a.m.
At 12:46:13 a.m., WO #3 advised that units were not going to re-engage with the vehicles due to the road conditions. At this time, WO #6, the SO, WO #1 and WO #7 were stopped on Highway 3, east of County Road 8. WO #5 was travelling 127 km/h eastbound on Highway 3, about 425 metres west of County Road 8. WO #2 was travelling eastbound on Highway 401 west of County Road 43. WO #4 was travelling southbound on County Road 23, about halfway between Highway 3 and County Road 8. WO #15 was travelling westbound on Highway 3, east of County Road 23. WO #12, WO #13 and WO #14 were not in the area.
At 12:46:58 a.m., WO #3 advised units to resume patrols.
At 12:47:16 a.m., WO #4 requested WO #5’s location. At 12:47:25 a.m., WO #4 advised she was travelling southbound on County Road 23 and was approaching the intersection of Highway 3 at about 77 km/h. She then requested permission to attempt a stop as there were no vehicles in the area. At 12:47:47 a.m., WO #3 replied, “10-4.”
At 12:47:53 a.m., WO #4 advised the pick-up trucks were proceeding southbound on County Road 23. At 12:48:04 a.m., WO #4 advised she was right behind the Complainant’s vehicle, which had no taillights, and there were no other vehicles in the area. She was travelling 75 km/h southbound on County Road 23, about 200 metres south of the intersection.
At 12:48:09 a.m., WO #5 approached the intersection of Highway 3 and County Road 23 having driven eastbound and then turned right to proceed southbound.
At 12:48:11 a.m., WO #15 turned onto County Road 23 and proceeded southbound. WO #4, and WO #5 and WO #15, were travelling southbound on County Road 23, south of Highway 3.
At 12:48:19 a.m., WO #3 requested speed and driving conditions. WO #4 reported the speed of the pick-up trucks as very slow and, a few seconds later, she requested that someone maneuver ahead of her vehicle.
At 012:48:37 a.m., WO #4 advised the pick-up trucks were all over the road at slow speed and there was only one occupant in the white pick-up truck. In response, WO #3 asked if there was an opportunity to stop the vehicle and, if not, “We will not continue to push it.”
At 12:48:59 a.m., WO #5, who was travelling southbound on County Road 23 about 500 metres south of County Road 12, reported a collision involving one of the pick-up trucks.
At 12:49:11 a.m., WO #3 directed all units to terminate, disengage, and, “We will not re-engage with this vehicle. This is for property crime-related offences.” WO #5 was stopped on County Road 23. WO #4 and WO #15 were southbound on County Road 23, about 300 metres north of Road 9 West. The SO, WO #1 and WO #7 were travelling eastbound on Highway 3, west of County Road 23. WO #6 was still stopped on Highway 3, east of County Road 3. WO #12, WO #13 and WO #14 were not in the area.
At 12:49:21 a.m., WO #4 reported she was still following but pulling over. The pick-up trucks were southbound with no lights on.
At 12:49:39 a.m., WO #3 directed all units to pull to the side and disengage. WO #5 was stopped on County Road 23, south of Highway 3. The SO had slowed and was stopped on Highway 3, east of North Malden Road. WO #6 was still stopped on Highway 3, east of County Road 8. WO #1 was proceeding eastbound on Highway 3, west of County Road 23. WO #4 was proceeding southbound on County Road 23, about 350 metres south of Road 9 West. WO #7 was travelling eastbound on Highway 3, west of County Road 23, at 115 km/h. WO #15 was travelling southbound on County Road 23 at Road 9 West, and was then stopped. WO #2 was travelling southbound on County Road 19, north of Highway 3, and was at speeds close to 120 km/h. WO #12, WO #13 and WO #14 were not yet in the immediate area.
At 12:49:57 a.m., WO #4 was stopped on County Road 23, about halfway between Road 9 West and Road 8 West. At 12:50:37 a.m., WO #4 reported she had stopped and disengaged, and had seen taillights that had turned left towards a lumber yard [now known to be Road 8 West]. At 12:50:56 a.m., WO #4 reported the pick-up trucks were stopped and she could see them from one kilometre away.
At 12:51:05 a.m., WO #3 advised units to resume patrols.
At 12:52:02 a.m., WO #4 reported the pick-up trucks had resumed travelling eastbound on Road 8 West and there was no traffic in the area.
At 12:52:47 a.m., WO #4 reported a detached trailer was left on the roadway.
At 12:53:12 a.m., WO #4 reported the pick-up trucks were last seen proceeding eastbound on Road 8 West.
At 12:55:49 a.m., WO #1, who was travelling eastbound on Road 8 West, reported the pick-up trucks were travelling westbound on Highway 3. The SO was travelling eastbound on Highway 3 at Road 9 West/Cameron Side Road at about 108 km/h. WO #6 was travelling eastbound on Highway 3, east of County Road 8, then stopped after turning right on County Road 27. WO #5 was stopped at County Road 23 and Highway 3. WO #2 was travelling eastbound on Highway 3, east of County Road 23. WO #4 was stopped on Road 8 West, east of County Road 23. A few seconds later, WO #4 resumed travelling eastbound on Road 8 West. WO #7 was travelling eastbound on Road 8 West, west of Highway 3. WO #15 was stopped on Road 8 West, east of County Road 23. WO #12 was travelling southbound on County Road 23, about 1.5 kilometres north of Highway 3. WO #13 was travelling eastbound on County Road 27, east of County Road 23. WO #14 was stopped on County Road 27 at County Road 34.
At 12:56:38 a.m., WO #1, who was travelling westbound on Highway 3 at 98 km/h after having turned left from Road 8 West, reported he was 300 metres to one kilometre behind the pick-up trucks, whose drivers were driving like lunatics. The SO was stopped on Highway 3 about 600 metres east of Road 9 West/Cameron Side Road West. He had been stopped for about 20 seconds.
At 12:56:47 a.m., WO #3 directed all units to disengage for “Property crime, public safety. It is not worth it. All units terminate.” WO #1 was travelling westbound on Highway 3 at 92 km/h about halfway between Road 8 West and Road 9 West/Cameron Side Road West. WO #7 was travelling westbound on Highway 3, about 700 metres west of Road 8 West at about 120 km/h and about 600 metres behind WO #1. WO #2 was travelling eastbound on Highway 3 at Road 9 West/Cameron Side Road West.
At 12:57:12 a.m., WO #1 reported one of the vehicles had left the roadway. He was travelling westbound on Highway 3, about 570 metres east of Road 9 West/Cameron Side Road West having slowed to 11 km/h. He stopped about 17 seconds later, about 450 metres east of Road 9 West/Cameron Side Road. The SO was still stopped on Highway 3, about 600 metres east of Road 9 West/Cameron Side Road West. About 36 seconds later, the SO executed a U-turn and proceeded westbound on Highway 3 for a distance of about 150 metres to a position about 450 metres east of Road 9 West/Cameron Side West.
Expert Evidence
OPP Collision Reconstruction Report
On March 10, 2023, the SIU received a copy of the OPP Collision Reconstruction Report. This final report was reviewed by the SIU’s Collision Reconstructionist and found to be credible and consistent with the physical evidence on scene, as well as the data collected during the investigation. The following is a summary of the report’s findings. On December 10, 2022, at approximately 12:57 a.m., the Complainant, the sole occupant and operator of a silver Ford F250, was travelling westbound on Highway 3. At that time, it was dark, cold and dry, and there was no ambient lighting in the area. Highway 3 was a two-lane asphalt-paved roadway, which was flat and straight. The posted speed limit was 80 km/h.
While proceeding westbound on Highway 3, the Complainant’s vehicle entered the north shoulder and rolled for approximately 131 metres, as indicated by rolling tire marks. These marks were curved in nature and entered back onto the paved portion at their west end. Just prior to the tire mark entering back onto the roadway, an additional tire mark was observed breaking away from the preceding tire mark, suggesting that the rear tire began to track outside the front tire, implying a more aggressive steering maneuver. At this point, the Complainant began to rotate in a counterclockwise direction and lose control of his vehicle.
Once the Complainant’s vehicle entered back onto the roadway, the Complainant attempted to regain control of the vehicle by turning sharply to the right or back toward the north shoulder. Two curved tire marks were located on the roadway in the westbound lane, near the centre line. These marks were consistent with the tire marks that entered back onto to the roadway and resulted from a loading of the driver’s side tires when the vehicle was steered sharply in a counterclockwise direction.
The Complainant’s vehicle then again entered the north shoulder of the roadway, where tire marks could be seen in the gravel. These marks lined up with the direction of the curved tire marks on the roadway and indicated that the vehicle had left the paved portion and travelled back onto the north shoulder. The marks on the north shoulder continued westbound and curved back onto the roadway. This suggested that the Complainant continued his attempt to regain control by returning his vehicle to the paved portion of the road by turning to the left.
Upon entering the travelled portion of the roadway for the second time, the Complainant continued in a southwesterly direction across the roadway and onto the south shoulder. Three tire marks were located crossing the roadway and indicated that the vehicle again was beginning to rotate in a counterclockwise direction, the longest of these being approximately 75 metres. Just prior to reaching the south shoulder, a fourth tire mark was located indicating that the vehicle was continuing to rotate.
The Complainant’s vehicle then crossed the south shoulder and entered the south ditch, where it gouged into the ground and rolled. A gouge mark with the components of the driver’s side mirror were located in the south ditch, along with other vehicle parts and personal items. The Complainant’s vehicle came to a rest on its wheels.
An examination of the Complainant’s vehicle showed a bowing outward of the driver’s door from the inside, as well as scratching along the lower sill of the driver’s side window, which was shattered and missing. This indicated that the Complainant was most likely ejected from the vehicle through this window during the collision. The driver’s seatbelt assembly was found in the retracted and locked position at the “B” pillar and there was no indication of loading to the seatbelt. The Complainant was not wearing his seatbelt during this collision.
This collision was the result of the Complainant losing control of his vehicle, leaving the paved portion of Highway 3, and entering the north shoulder. In attempting to return to the travelled portion of the roadway, the Complainant overcompensated and entered the westbound lanes. The Complainant then attempted to regain control of the vehicle, which again caused it to enter onto the north shoulder before it travelled back onto the roadway, crossing the paved portion and the south shoulder, and entered the south ditch.
Video/Audio/Photographic Evidence [2]
OPP Communications Recordings
On December 19, 2022, the SIU received the pertinent communications recordings from the OPP. 12:09:43 a.m. The dispatcher broadcast a ‘BOLO’ [be on the lookout]
(December 10, 2022) from the WPS for a black pick-up truck involved in a ‘hit and run’, and multiple thefts.
12:18:25 a.m. The dispatcher broadcast a theft of gas at a gas station on Walker Road.
12:18:45 a.m. WO #5 was dispatched to the gas station.
12:18:58 a.m. The dispatcher broadcast the pick-up trucks had left the gas station, proceeding northbound on Walker Road.
12:29:45 a.m. WO #5 reported that a black pick-up truck and a newer white Ford F150 were involved in the theft of gas.
12:31:03 a.m. WO #4 requested that WO #5 obtain photographs of the pick-up trucks from the gas station.
12:36:35 a.m. The dispatcher broadcast that the pick-up trucks were involved in multiple thefts.
12:40:44 a.m. WO #6 broadcast that he was following a white pick-up truck and provided the licence plate number. Seconds later, he reported the white pick-up truck was following a black pick-up truck that was pulling a trailer.
12:41:28 a.m. WO #6 reported he was proceeding eastbound on Highway 3, passing Malden Road.
12:41:44 a.m. The Provincial Communications Centre sergeant [now known to be WO #3] requested units in the area to set up.
12:41:54 a.m. WO #6 reported he was pacing the pick-up trucks, approaching Manning Road.
12:42:36 a.m. WO #3 directed two units, the SO and WO #1, to block the roadway.
12:43:04 a.m. WO #6 reported the pick-up trucks were continuing eastbound on Highway 3. WO #7 was up next to deploy a spike belt.
12:43:28 a.m. WO #3 reported there would be one attempt to spike the vehicles. WO #7 acknowledged.
12:43:47 a.m. WO #6 reported there was no traffic travelling eastbound on Highway 3.
12:44:10 a.m. After WO #3 inquired about the vehicle speeds and driving conditions, WO #6 reported the pick-up trucks were travelling at 90 km/h. The roadway was slightly wet and there was no eastbound traffic. The pick-up trucks were nearing Ellis Side Road.
12:44:39 a.m. WO #7 reported the pick-up trucks avoided the spike belt.
12:45:05 a.m. WO #3 inquired about conducting a rolling-block.
12:45:10 a.m. WO #6 advised that a rolling-block was not a good option. The pick-up trucks continued eastbound on Highway 3 and passed County Road 8.
12:45:19 a.m. WO #3 directed all units to disengage, terminate, and pull over to the side of the road.
12:45:20 a.m. WO #4 reported she was coming up County Road 23 and County Road 34 in Essex.
12:45:29 a.m. Three units [now known to be the SO, WO #6, and WO #1] acknowledged WO #3.
12:45:48 a.m. WO #6 reported the pick-up trucks were last seen eastbound on Highway 3, approaching Victoria Road.
12:46:04 a.m. WO #4 advised units to be careful as the roadway was slippery.
12:46:13 a.m. WO #3 advised that they were not going to re-engage with the pick-up trucks due to the road conditions.
12:46:47 a.m. WO #4 asked WO #3 if they could follow at a distance as there was no concern for speed.
12:46:58 a.m. WO #3 advised units to resume patrols.
12:47:16 a.m. WO #5 advised he was approaching County Road 23. WO #4 advised she was approaching County Road 23 and Highway 3.
12:47:37 a.m. WO #4 requested authority to conduct a stop as there were no vehicles. WO #3 indicated, “10-4.”
12:48:04 a.m. WO #4 reported she was right behind the white pick-up truck with no taillights on, proceeding southbound on County Road 23. There were no other vehicles in the area.
12:48:23 a.m. WO #4 reported the pick-up trucks were travelling at very low speeds and requested that someone get ahead.
12:48:37 a.m. WO #4 reported the pick-up trucks were all over the road at a slow speed. She reported one occupant in the white pick-up truck.
12:48:59 a.m. WO #5 reported being rammed by one of the pick-up trucks.
12:49:11 a.m. WO #3 directed all units to terminate and disengage from the vehicles as the vehicles were involved in property crime offences.
12:49:21 a.m. WO #4 reported the pick-up trucks were continuing to proceed southbound on County Road 23 with no lights on. She was still following but pulling over.
12:49:39 a.m. WO #3 directed all units to pull over to the side of the roadway and disengage.
12:49:42 a.m. WO #5 acknowledged and reported he did not need medical.
12:50:56 a.m. WO #4 reported she had stopped and disengaged but she was able to see taillights that turned left towards a lumber yard. She was approximately one kilometre away.
12:51:05 a.m. WO #3 directed units to resume patrols.
12:51:21 a.m. WO #4 requested units to attend the area as the pick-up trucks were mobile. She reported no traffic in the area.
12:52:19 a.m. WO #3 requested WO #4 telephone him.
12:52:47 a.m. WO #4 reported a trailer was left in the roadway. She told units to be careful.
12:53:12 a.m. WO #4 reported the pick-up trucks were proceeding towards Highway 3 from eastbound County Road 8.
12:55:39 a.m. WO #3 told another unit not engage with the vehicle before multiple units were in the area. He then advised units that they had one more opportunity to stop the vehicle.
12:55:49 a.m. WO #1 reported that the pick-up trucks were proceeding westbound on Highway 3.
12:56:15 a.m. WO #5 reported he was at County Road 23 and Highway 3.
12:56:23 a.m. WO #4 reported she was trying to call WO #3 and was following the group. The dispatcher would connect WO #4 with WO #3.
12:56:38 a.m. WO #1 reported the pick-up trucks were driving like lunatics. He was 300 metres to one kilometre behind.
12:56:47 a.m. WO #3 directed all units to disengage with the pick-up trucks as they were involved in property crimes and it was not worth it. All units were directed to pull to the side of the road and not to engage further.
12:57:12 a.m. WO #1 reported one of the pick-up trucks had left the roadway.
12:57:59 a.m. The SO reported a successful spike on the black pick-up truck.
12:59:06 a.m. WO #7 reported that the driver of the pick-up truck that went off the roadway was not located in the vehicle.
12:59:18 a.m. The SO requested that EMS attend for a male [now known to be the Complainant] with head and neck injuries.
1:00:20 a.m. EMS arrived on scene.
Police Telephone Recordings
At 12:58:07 a.m., WO #4 told WO #3 about the difficulty associated with catching the involved persons and, further, that it was “hard to let them go”. WO #3 acknowledged but indicated he did not want a collision over property crime, which WO #4 acknowledged but emphasized that one of the pick-up trucks had struck a police vehicle. In response, WO #3 said, “I get it. I am trying to give extra opportunities but now we’re getting them driving around it off the road.” He further added, “Hopefully, we find it in the ditch somewhere,” followed by, “I know you guys want him and I want him as much as you do but I don’t want something to happen for a property crime.” WO #4 acknowledged. Materials Obtained from Police Service
Upon request, the SIU received the following materials from the WPS between December 13, 2022, and January 20, 2023:• Communications recordings;
• Known Wanted-CW #1;
• Known Wanted-the Complainant;
• Notes-WO #9;
• Notes-WO #8;
• Notes-WO #10.
•
Upon request, the SIU received the following materials from the OPP between December 10, 2022, and March 13, 2023:
• Communications recordings;
• Crash Data Retrieval (CDR) data-WO #2;
• CDR data-WO #1;
• CDR data-the SO;
• CDR data-the Complainant;
• Final Collision Reconstruction Report;
• Event Details Report;
• Fail to Stop Report-WO #6;
• Fail to Stop Report-WO #7;
• Fail to Stop Report-the SO;
• GPS data – police vehicles;
• Lesson Plan Post-Ontario Police College (OPC) Recruit Course- Police Vehicle Operations (PVO);
• Lesson Plan - Stinger Spike Belt;
• Notes-WO #7;
• Notes-WO #4;
• Notes-WO #13;
• Notes-WO #2;
• Notes-WO #15;
• Notes-Collision Reconstructionist;
• Notes-WO #3;
• Notes-WO #5;
• Notes-WO #14;
• Notes-WO #12;
• Notes-WO #1;
• Notes-WO #6;
• Duty Roster;
• Motor Vehicle Collision Report;
• OPP-the Complainant-Occurrence Reports;
• Training Record-the SO;
• Recruit Training Course-PVO;
• Spike Belt Deployment Training;
• Tire Deflation Devices;
• Technical Collision Field Notes; and
• Civilian Witness Statements (x3).
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: • Vehicle Inspection Report-Ross Towing and Transportation Services Inc.;
• Medical Records-Windsor Regional Hospital; and
• Course Materials-OPC.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant, a civilian eyewitness and several OPP officers involved in the pursuit of the Complainant, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
Shortly after midnight of December 10, 2022, the WPS issued a BOLO for a black pick-up truck that was connected with multiple thefts and ‘hit and run’ collisions. Minutes later, the WPS advised that the same truck was involved in a theft of fuel from a gas station.
WO #6, aware of the BOLO, came across the pick-up truck travelling east on Highway 3. It was towing a trailer. Behind it was a light-coloured pick-up truck that appeared to be travelling in tandem with the black truck. WO #6 broadcast that he had located the truck and was following it. He was directed by the communications centre to wait for additional units to set up in front of the trucks before attempting to stop them. The plan was to establish a roadblock.
The Complainant was operating the light-coloured truck – a stolen vehicle. His associate – CW #1 – was driving the black pick-up. They travelled east on Highway 3, past the cruisers of the SO and WO #1 in the area of Manning Road – the intended “roadblock” – and it was soon apparent they were being pursued by several police vehicles behind them with their emergency lights activated. The pick-up trucks continued at speed eastbound on Highway 3.
In the area of Ellis Side Road, the Complainant and CW #1 swerved around, and managed to avoid, a spike belt that had been deployed across the roadway by WO #7. A further five kilometres east, at the highway’s intersection with Highway 23, they turned right to travel south and were again engaged by police officers.
WO #4 and WO #5 had also responded to the area following WO #6’s broadcast. WO #4 came across the vehicles southbound on Highway 23 and, with the assistance of WO #5, attempted a rolling block of the Complainant’s pick-up truck. WO #5 pulled ahead of the truck and started to decelerate as WO #4 took a position behind the vehicle. When the pick-up truck collided with the rear bumper of WO #5’s cruiser, the officers disengaged. WO #5 radioed what had occurred, prompting the sergeant monitoring the pursuit from the communications centre, WO #3, to order an end to the pursuit.
The Complainant and CW #1 continued to Road 8 West, where they turned left to travel east towards the road’s intersection with Highway 3. At some point during this leg of their travels, the two stopped their trucks, detached the trailer from the pick-up CW #1 was operating (leaving it on the road) and continued eastward. At the intersection, the trucks turned left to travel west on Highway 3, almost colliding with a westbound civilian vehicle. At a point before Cameron Side Road West, the Complainant lost control of the pick-up truck he was driving, entered onto the north shoulder of the highway, overcorrected, and eventually veered across the highway, crashing into the grassy ditch south of the highway.
Officers arriving at the collision scene located the Complainant. He had been jettisoned from the pick-up truck as it rolled before coming to a stop. Paramedics were called to the scene and transported the Complainant to hospital where he was diagnosed with multiple fractures and a subarachnoid hemorrhage.
CW #1 had travelled over a spike belt ahead of the Complainant’s vehicle just before it crashed. The spike belt had been deployed by the SO. CW #1 was located a distance from the scene of the collision and also taken into custody.
Shortly after midnight of December 10, 2022, the WPS issued a BOLO for a black pick-up truck that was connected with multiple thefts and ‘hit and run’ collisions. Minutes later, the WPS advised that the same truck was involved in a theft of fuel from a gas station.
WO #6, aware of the BOLO, came across the pick-up truck travelling east on Highway 3. It was towing a trailer. Behind it was a light-coloured pick-up truck that appeared to be travelling in tandem with the black truck. WO #6 broadcast that he had located the truck and was following it. He was directed by the communications centre to wait for additional units to set up in front of the trucks before attempting to stop them. The plan was to establish a roadblock.
The Complainant was operating the light-coloured truck – a stolen vehicle. His associate – CW #1 – was driving the black pick-up. They travelled east on Highway 3, past the cruisers of the SO and WO #1 in the area of Manning Road – the intended “roadblock” – and it was soon apparent they were being pursued by several police vehicles behind them with their emergency lights activated. The pick-up trucks continued at speed eastbound on Highway 3.
In the area of Ellis Side Road, the Complainant and CW #1 swerved around, and managed to avoid, a spike belt that had been deployed across the roadway by WO #7. A further five kilometres east, at the highway’s intersection with Highway 23, they turned right to travel south and were again engaged by police officers.
WO #4 and WO #5 had also responded to the area following WO #6’s broadcast. WO #4 came across the vehicles southbound on Highway 23 and, with the assistance of WO #5, attempted a rolling block of the Complainant’s pick-up truck. WO #5 pulled ahead of the truck and started to decelerate as WO #4 took a position behind the vehicle. When the pick-up truck collided with the rear bumper of WO #5’s cruiser, the officers disengaged. WO #5 radioed what had occurred, prompting the sergeant monitoring the pursuit from the communications centre, WO #3, to order an end to the pursuit.
The Complainant and CW #1 continued to Road 8 West, where they turned left to travel east towards the road’s intersection with Highway 3. At some point during this leg of their travels, the two stopped their trucks, detached the trailer from the pick-up CW #1 was operating (leaving it on the road) and continued eastward. At the intersection, the trucks turned left to travel west on Highway 3, almost colliding with a westbound civilian vehicle. At a point before Cameron Side Road West, the Complainant lost control of the pick-up truck he was driving, entered onto the north shoulder of the highway, overcorrected, and eventually veered across the highway, crashing into the grassy ditch south of the highway.
Officers arriving at the collision scene located the Complainant. He had been jettisoned from the pick-up truck as it rolled before coming to a stop. Paramedics were called to the scene and transported the Complainant to hospital where he was diagnosed with multiple fractures and a subarachnoid hemorrhage.
CW #1 had travelled over a spike belt ahead of the Complainant’s vehicle just before it crashed. The spike belt had been deployed by the SO. CW #1 was located a distance from the scene of the collision and also taken into custody.
Relevant Legislation
Sections 219 and 221, Criminal Code -- Criminal Negligence Causing Bodily Harm
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 320.13 (1) Criminal Code – Dangerous Operation Causing Bodily Harm or Death
320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.
(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.
(3) 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 the death of another person.
Analysis and Director's Decision
On December 10, 2022, the Complainant was seriously injured when the pick-up truck he was operating left the roadway and crashed into a ditch. As OPP officers had been pursuing him in the moments before the collision, the SIU was notified and initiated an investigation. The SO was identified as the subject official. The investigation is now concluded. 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. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability in respect of either offence. The former, for example, is predicated, 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. The latter is premised on even more egregious conduct that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the neglect constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the issue is whether there was a want of care in the manner in which the officers engaged with the Complainant, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
Though there are aspects of the manner in which the OPP officers engaged with the Complainant that are subject to legitimate scrutiny, they fall short of establishing a marked departure from a reasonable standard of care in the circumstances, particularly when weighed against a number of extenuating considerations. In particular, as far as the officers knew, the Complainant and CW #1 were wanted for property-related offences, a point made by the sergeant supervising the pursuit on a couple of occasions when ordering his officers to stand-down. And yet, the officers continued to press the issue even when it was clear the trucks were not about to stop. In so doing, the officers risked personal injury coming to themselves, the Complainant and CW #1, and third-party traffic.
On the other hand, it would be going too far to conclude that the officers involved on the roads with the Complainant and CW #1 explicitly defied the supervising sergeant in persisting with their efforts to stop the pick-up trucks. On the occasions that WO #3 had directed his officers to discontinue pursuit, he subsequently conveyed authority, whether tacit or explicit, to continue with their intervention efforts. This is precisely what occurred when the sergeant, asked by WO #4 whether she was approved to attempt a rolling-block, provided that approval. It is also what took place ahead of the SO deploying his spike belt at the conclusion of the pursuit when, just before that occurred, WO #3 broadcast that the officers had one more opportunity to stop the pick-up trucks.
It is also fair to say that the conditions that prevailed at the time of the pursuit were not clearly or necessarily prohibitive. If the offences for which the Complainant and CW #1 were property-related, they were on the serious end of the spectrum – including ‘hit and runs’. Moreover, while the roads were wet, there was little traffic on the roadway - an important factor in assessing the reasonableness of the spike belt deployment by the SO. On this point, it is important to note that the Complainant’s loss of control and eventual crash does not appear to have been caused by the spike belt deployment; that is, the evidence suggests his pick-up truck did not traverse the spike belt.
In the result, as there are no reasonable grounds to conclude that the SO, or any of the officers who had a role in the pursuit that preceded the Complainant’s motor vehicle collision, transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: April 6, 2023
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. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability in respect of either offence. The former, for example, is predicated, 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. The latter is premised on even more egregious conduct that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the neglect constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the issue is whether there was a want of care in the manner in which the officers engaged with the Complainant, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
Though there are aspects of the manner in which the OPP officers engaged with the Complainant that are subject to legitimate scrutiny, they fall short of establishing a marked departure from a reasonable standard of care in the circumstances, particularly when weighed against a number of extenuating considerations. In particular, as far as the officers knew, the Complainant and CW #1 were wanted for property-related offences, a point made by the sergeant supervising the pursuit on a couple of occasions when ordering his officers to stand-down. And yet, the officers continued to press the issue even when it was clear the trucks were not about to stop. In so doing, the officers risked personal injury coming to themselves, the Complainant and CW #1, and third-party traffic.
On the other hand, it would be going too far to conclude that the officers involved on the roads with the Complainant and CW #1 explicitly defied the supervising sergeant in persisting with their efforts to stop the pick-up trucks. On the occasions that WO #3 had directed his officers to discontinue pursuit, he subsequently conveyed authority, whether tacit or explicit, to continue with their intervention efforts. This is precisely what occurred when the sergeant, asked by WO #4 whether she was approved to attempt a rolling-block, provided that approval. It is also what took place ahead of the SO deploying his spike belt at the conclusion of the pursuit when, just before that occurred, WO #3 broadcast that the officers had one more opportunity to stop the pick-up trucks.
It is also fair to say that the conditions that prevailed at the time of the pursuit were not clearly or necessarily prohibitive. If the offences for which the Complainant and CW #1 were property-related, they were on the serious end of the spectrum – including ‘hit and runs’. Moreover, while the roads were wet, there was little traffic on the roadway - an important factor in assessing the reasonableness of the spike belt deployment by the SO. On this point, it is important to note that the Complainant’s loss of control and eventual crash does not appear to have been caused by the spike belt deployment; that is, the evidence suggests his pick-up truck did not traverse the spike belt.
In the result, as there are no reasonable grounds to conclude that the SO, or any of the officers who had a role in the pursuit that preceded the Complainant’s motor vehicle collision, transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: April 6, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
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.