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 Personal 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 the serious injury sustained by a 16-year-old youth following an attempted vehicular stop by police on October 11, 2017.

Notification of the SIU

At approximately 12:25 a.m. on October 12, 2017, the Ottawa Police Service (OPS) notified the SIU and of the serious injury sustained by the Complainant following an attempted vehicle stop by the police.

The OPS reported that at about 6:30 p.m. on October 11, 2017, the Subject Officer (SO) and Witness Officer (WO) #1 were operating radar on Hunt Club Road in the City of Ottawa. The police officers stopped a vehicle, with three occupants, for speeding. The vehicle then drove off. The police officers got back into their vehicle and followed, without lights or siren activated, to Hunt Club Road and Pike Street, where the suspect vehicle was located on its side.

The driver and one of the occupants had already fled the scene on foot. The third occupant was identified as the 16-year-old Complainant. He was taken to the hospital and later transferred to a second hospital. No serious injuries were confirmed at that time. The OPS was investigating the collision.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

SIU Forensic investigators examined the scene and created a diagram of the intersection and completed a video recording of the pursuit route.

Complainant:

16-year-old male, not interviewed

Civilian Witnesses

CW #1 Declined to be Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right

Shortly after 6:00 p.m. on October 11, 2017, two OPS officers were operating radar on Bank Street, south of Hunt Club Road, in the City of Ottawa, in separate vehicles. While WO #1 was busy dealing with one motorist, the SO was using a hand-held laser unit (LIDAR) to monitor traffic on Bank Street.

A black Honda motor vehicle travelling northwest on Bank Street passed the SO at a high rate of speed. The SO entered his police vehicle and gave pursuit with his emergency lights activated. The Honda vehicle turned right (north) onto Albion Road and the SO was able to catch up to it. The Honda the pulled over on Albion Road, at the south side of the intersection with Hunt Club Road.

The SO then also pulled over, exited his police vehicle, and approached the Honda. As the SO neared the Honda vehicle, the driver sped off and turned east (right) onto Hunt Club Road at a high rate of speed. The SO re-entered his police vehicle and followed.

At the intersection with Pike Street, the Honda vehicle struck a traffic signal pole on the south east corner, then rolled onto its’ roof, struck a wooden fence, and came to rest. Two of the three occupants fled from the motor vehicle. The Complainant, who was injured, was left in the motor vehicle and had to be extricated, after which he was transported to the hospital.

The two youths who fled the vehicle were located and arrested a short time later.

Nature of Injuries / Treatment

The Complainant suffered a fracture of the third vertebra (C3) in his neck and was still in hospital with some paralysis in his right arm and both legs at the time of the writing of this report.

The Scene

The pursuit portion of this incident started on Bank Street in the City of Ottawa, on a section that is some distance from the downtown in an area that is more open and commercial than residential. The vehicles travelled a short distance northwest on Bank Street, then north on Albion Road and east on Hunt Club Road. Hunt Club Road is two lanes in each direction with a posted speed limit of 60 km/h. The total distance travelled was approximately 2.20 km.

The collision occurred at the intersection of Hunt Club Road and a cross street, which is Pike Street to the north and Maple Park Private to the south. The intersection is controlled by traffic lights.

Physical Evidence

GPS Data:

The following table shows the details of the event as recorded for the police vehicle operated by the SO:

Crash Data for the Involved Honda Vehicle:

The following table indicated the vehicle action and speed during the five seconds prior to impact with the traffic signal pole:

Police Vehicle Mobile Data Terminal (MDT) Download:

The MDT in the police vehicle operated by the SO shows that he conducted a query of the licence plate of the Honda vehicle at 6:10:23 p.m. and learned at that time that the vehicle was stolen. Further inquiries were conducted after 6:14 p.m. which indicated that the collision had already occurred at the time that the inquiries were made.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Video from DHL Courier Truck:

The recorded time on the video camera was one hour behind Eastern Standard Time (EST).

The video showed the black Honda travelling eastbound on Hunt Club Road and crashing at 6:10:52 p.m.

The Honda appeared to be travelling at high speed. It veered to the southeast, mounted the curb, and struck the pole holding the traffic signal. The Honda continued east, rolling into a wooden fence and destroying a portion of it before coming to rest in its roof.

The video showed flashing lights from the approaching police car become stationary at 6:11:25 p.m. The police vehicle was not visible on the video footage.

The police car arrived 33 seconds after the initial impact. One occupant of the Honda was visible leaving the scene on foot.

Communications Recordings

There are no radio communications resulting from, or reporting on, the pursuit of a vehicle.

The recording starts with the SO, out of breath, reporting that there was a rollover at Hunt Club Road and Pike Street with a stolen vehicle and that he was in foot pursuit of a suspect male, wearing a grey t-shirt.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPS:

• Computer Aided Dispatch (CAD) Call Report
• General Occurrence Report
• MDT Transmissions
• Notes of WO #s 1-3 and one undesignated officer
• Police Communications Transmission Recordings
• OPS Statement Summary of WO #2 dated Oct 11, 2017
• OPS Witness Statement of WO #4 dated Oct 11, 2017
• OPS Witness Statements of five undesignated civilian witnesses dated Oct 11, 2017, and
• Written Statement of an undesignated police witness

The SIU obtained and reviewed the following materials and documents from other sources:

• A copy of the dash camera video from a delivery truck
• A copy of the vehicle crash record data from the involved Honda vehicle, and
• The GPS coordinates from the police vehicle operated by the SO

Sections 1-3, Ontario Regulation 266/10, Ontario Police Services Act – Suspect Apprehension Pursuits

1. (1) For the purposes of this Regulation, a suspect apprehension pursuit occurs when a police officer attempts to direct the driver of a motor vehicle to stop, the driver refuses to obey the officer and the officer pursues in a motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle

(2) A suspect apprehension pursuit is discontinued when police officers are no longer pursuing a fleeing motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle.

1. (1) A police officer may pursue, or continue to pursue, a fleeing motor vehicle that fails to stop

1. if the police officer has reason to believe that a criminal offence has been committed or is about to be committed; or
2. for the purposes of motor vehicle identification or the identification of an individual in the vehicle

(2) Before initiating a suspect apprehension pursuit, a police officer shall determine that there are no alternatives available as set out in the written procedures of,

1. the police force of the officer established under subsection 6 (1), if the officer is a member of an Ontario police force as defined in the Interprovincial Policing Act, 2009
2. a police force whose local commander was notified of the appointment of the officer under subsection 6 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part II of that Act; or
3. the local police force of the local commander who appointed the officer under subsection 15 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part III of that Act

(3) A police officer shall, before initiating a suspect apprehension pursuit, determine whether in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle or the need to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle outweighs the risk to public safety that may result from the pursuit.

(4) During a suspect apprehension pursuit, a police officer shall continually reassess the determination made under subsection (3) and shall discontinue the pursuit when the risk to public safety that may result from the pursuit outweighs the risk to public safety that may result if an individual in the fleeing motor vehicle is not immediately apprehended or if the fleeing motor vehicle or an individual in the fleeing motor vehicle is not identified.

(5) No police officer shall initiate a suspect apprehension pursuit for a non-criminal offence if the identity of an individual in the fleeing motor vehicle is known.

(6) A police officer engaging in a suspect apprehension pursuit for a non-criminal offence shall discontinue the pursuit once the fleeing motor vehicle or an individual in the fleeing motor vehicle is identified.

1. (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

Sections 219 and 221, Criminal Code - Criminal negligence Causing Bodily Harm

219(1)Every one is criminally negligent who

1. in doing anything, or
2. 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

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 years

Section 249, Criminal Code - Dangerous operation of motor vehicles, vessels and aircraft

249 (1) Every one commits an offence who operates

1. a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place&hellip

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years

Section 249.1, Criminal Code, Flight from Police

249.1 (1) Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstances.

(2) Every one who commits an offence under subsection (1)

1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
2. is guilty of an offence punishable on summary conviction

(3) Every one commits an offence who causes bodily harm to or the death of another person by operating a motor vehicle in a manner described in paragraph 249(1)(a), if the person operating the motor vehicle was being pursued by a peace officer operating a motor vehicle and failed, without reasonable excuse, and in order to evade the police officer, to stop the vehicle as soon as is reasonable in the circumstances

(4) Every person who commits an offence under subsection (3)

1. if bodily harm was caused, is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years, and
2. if death was caused, is guilty of an indictable offence and liable to imprisonment for life

Section 216 (1), Highway Traffic Act of Ontario – Power of Police Officer to Stop Vehicles/ Escape by Flight

216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, subject to subsection (3),

1. to a fine of not less than $1, 000 and not more than $10, 000
2. to imprisonment for a term of not more than six months; or
3. to both a find and imprisonment

(3) If a person is convicted of an offence under subsection (2) and the court is satisfied on the evidence that the person wilfully continued to avoid police when a police officer gave pursuit,

1. the person is liable to a fine of not less than $5, 000 and not more than $25, 000, instead of the fine described in clause 2 (a), and
2. the court shall make an order imprisoning the person for a term of not less than 14 days and not more than six months, instead of the term described in clause (2) (b), and
3. the court shall make an order suspending the person’s driver’s licence,
   1. for a period of five years, unless the subclause (ii) applied, or
   2. for a period of not less than 10 years, if the court is satisfied on the evidence that the person’s conduct or the pursuit resulted in the death of or bodily harm to any person

(4) An order under subclause (3) (c) (ii) may suspend the person’s driver’s licence for the remainder of the person’s life.

During the afternoon of October 11, 2017, the Subject Officer (SO) and Witness Officer (WO) #1 of the Ottawa Police Service were both on duty, in separate vehicles, operating radar devices and performing vehicle stops of speeding vehicles on Hunt Club Road in the City of Ottawa. At approximately 6:00 p.m., WO #1 had a vehicle stopped and was issuing a ticket for a speeding violation when he observed the SO quickly enter his cruiser and pursue a speeding Honda motor vehicle. At approximately 6:10:52 p.m., that speeding motor vehicle mounted the curb, crashed into a traffic signal pole, and struck and damaged a residential fence, before finally coming to rest on its hood in the front yard of a property in the area of Hunt Club Road and Pike Street.

Following the collision, the driver and a second occupant of the motor vehicle fled the scene. The third occupant, the Complainant, had to be extricated from the vehicle and was transported to hospital where he was assessed and diagnosed with having sustained a fracture of the third vertebra in his neck.

The focus of this investigation was to determine whether there was a causal connection between the actions of the SO in pursuing the motor vehicle which ultimately crashed, and whether or not his actions were criminal in nature and amounted to dangerous driving causing bodily harm (s. 249 (3)) or criminal negligence (s. 219) causing bodily harm (s. 221) contrary to the Criminal Code of Canada.

During the course of this investigation, five civilian and four police witnesses were interviewed. The SO declined to be interviewed, and did not provide his memorandum book notes for review, as was his legal right. The driver of the subject motor vehicle which crashed and the Complainant, a passenger in that vehicle, also declined to be interviewed. The third occupant of the motor vehicle provided a limited interview, which was terminated by the witness’s father prior to its conclusion for the purposes of allowing the witness to obtain legal advice; that interview was never recommenced.

In addition to the witness interviews, however, investigators fortunately had access to, and reviewed, a dash cam video from a commercial vehicle in the area of the collision, the police transmissions radio communications recordings, the GPS data from the SO’s motor vehicle, the crash data from the subject motor vehicle, and the manual data terminal download from the SO’s police cruiser. While this evidence was not as illuminating as would have been the direct observations of the driver of the Honda motor vehicle and the SO, a fairly detailed timeline of the entire incident could be established.

Additionally, while the SO did not consent to an interview, we indirectly have access to his version of events as he had provided it to a colleague, WO #1, after the incident. WO #1 stated that the SO told him that he had clocked a black Honda motor vehicle on his radar device at a speed of 103 km/h in a posted 60 km/h zone and that he then pursued that vehicle. The SO told WO #1 that he was able to check the licence plate from the Honda on his in-car computer terminal and discovered that the vehicle had been reported stolen. The SO advised WO #1 that he lost sight of the Honda but then came upon the collision and was told by pedestrians that the occupants had fled from the car on foot.

Civilian Witness (CW) #2, an occupant of the black Honda, stated that three minutes after he got into the car, while they were driving along, a police vehicle activated its emergency lighting system apparently wanting the driver of the Honda to stop. The driver, CW #1, pulled to the side of the road and stopped, but then took off again. CW #2 stated that CW #1 then tried to make a right turn into a neighbourhood but lost control, hit a light pole, and the car flipped over.

WO #1, who was on Bank Street monitoring traffic at the same location as the SO, indicated that as he was dealing with another speeding motorist, he observed the SO run to his police car, make a U-turn, and drive away northbound on Bank Street.

The GPS data from the SO’s police vehicle revealed that he was stationary on Bank Street until 6:08:23 p.m., and at 6:09:03 p.m. he was travelling westbound on Bank Street at a speed of 134 km/h. At 6:09:11 p.m., he had slowed to 94 km/h, then to 31 km/h. From this evidence I have inferred that the initial high speed was when the SO first pursued the Honda, after which he slowed and finally stopped when the Honda pulled over.

CW #6, who was driving westbound on Hunt Club Road shortly after 6:00 p.m., observed a police vehicle activate its emergency lights while it was travelling on Albion Road behind a black Honda, which then turned east onto Hunt Club Road and pulled over to the side of the road and stopped.

CW #6 observed the SO exit his police vehicle and approach the black Honda. When the officer came to within one metre of the Honda, however, the Honda sped away and the officer returned to his vehicle and drove after it.

The SO’s mobile data terminal download revealed that he accessed his terminal at 6:10:23 p.m., when he discovered that the Honda motor vehicle was stolen. I infer from this evidence that the SO made a note of the licence plate of the Honda when it pulled over to the side of the road and either accessed his computer terminal while he was stopped, or immediately after he had reinitiated his pursuit, as the time of the computer access is simultaneous to his again beginning to accelerate eastbound on Hunt Club Road.

At 6:10:51 p.m., the GPS data reveals the SO again moving quickly, this time travelling eastbound on Hunt Club Road at a speed of 96 km/h, accelerating to 151 km/h at 6:10:51 p.m. This is presumably after the Honda had again sped off after having stopped at the side of the road, and the SO recommenced his pursuit. Presumably unbeknownst to the SO, the Honda had already crashed at 6:10:52 p.m., only seconds after the SO again started up his police vehicle.

CW #3 observed that same black Honda traveling eastbound, at a very high rate of speed, which she described as ‘flying’, when she was approaching the intersection of Hunt Club Road and Bank Street. Approximately one to two minutes after seeing the Honda, CW #3 observed a police vehicle also travelling eastbound on Hunt Club Road. She described the police vehicle as having its roof lights activated, but no siren, and she estimated the police vehicle was about the length of a football field behind the speeding black car. She indicated that although she observed the police vehicle to also be speeding, it was not travelling nearly as fast as the Honda. CW #3 opined that based on the distance between the Honda and the police car, the occupants of the Honda would have been unable to see that the police vehicle was following them.

CW #4, who was driving her car southbound on Pike Street approaching Hunt Club Road, heard a loud bang in the intersection. She described rush hour traffic as just ‘petering out’ but that there was still a steady flow of traffic travelling in both directions on Hunt Club Road. CW #4 observed the black Honda end up on its roof after striking a fence on the southeast corner of Hunt Club Road and Pike Street. CW #4 pulled over and called 911. While she was doing so, she observed a young male exit the car and run off. Within 30 seconds, CW #4 advised, the SO arrived in his police vehicle with his emergency lights activated and pulled up behind her vehicle. He then exited his cruiser and chased after the male, who had fled on foot.

The crash data from the black Honda, which automatically records the vehicle action and speed five seconds prior to impact, revealed that the Honda had been travelling at 187 km/h five seconds prior to impact, which would have been at 6:10:47 p.m. He then slowed to 184, and continued to steadily decelerate, reaching a speed of 153 km/h at 6:10:50 p.m., then to 116 at 6:10:51 p.m., which he maintained until half of one second before impact, which would likely therefore have been the speed at which he attempted the turn onto Pike Road. At 6:10:52 p.m., the vehicle was stationary and on its roof.

The GPS from the SO’s police vehicle revealed that at 6:10:59 p.m., he was again slowing while travelling eastbound on Hunt Club Road and his speed registered at 39 km/h. At 6:12:03 p.m., the SO was stationary at the intersection of Pike Street and Hunt Club Road.

CW #5, who was operating a commercial motor vehicle with a dash cam, was stopped at a red light at the intersection of Pike Street and Hunt Club Road; CW #5 was on Pike Street facing southbound. CW #5 saw the black Honda travelling eastbound on Hunt Club Road and it entered the intersection at high speed. The Honda then struck the curb at the southeast corner, drove through a traffic light pole, and rolled onto its roof, before striking a tall wooden fence. CW #5 then observed two young men exit the Honda and run away.

CW #5 observed the SO arrive in his police car, from the west, and stop on the roadway and believed that the SO arrived approximately two or more minutes after the Honda. CW #5 did not observe any flashing lights or hear any sirens as the SO approached the collision scene.

The dash cam from CW #5’s motor vehicle revealed that the black Honda travelled eastbound on Hunt Club Road and crashed at 6:10:52 p.m., with the SO arriving in his police vehicle, with its emergency lighting system activated, and stopping at 6:11:25 p.m., 33 seconds after the initial impact. While the SO’s police vehicle was not actually captured on the dash cam video, his emergency lighting system could be seen flashing on the recording, thereby allowing a determination of his time of arrival.

From the time that the SO first entered his motor vehicle to pursue the black Honda, until the time that the Honda crashed, no more than two minutes and 39 seconds had elapsed in total. This time frame includes the period of time when the SO was pulled over at the side of the road and exited his police vehicle and approached the Honda, before the Honda sped off for a second time.

This two minute and 39 second time frame can, however, be divided into the two separate pursuits. The first, when the SO initially attempted to stop the speeding Honda and it then pulled over, appears to have only been over a period of 20 seconds. There is then the time lapse when the SO is pulled over and is seen by a civilian witness exiting his police vehicle and approaching the Honda. The second pursuit, after the Honda then again flees and during which the SO was made aware that the car was stolen, appears to span an additional 29 seconds, until the car crashes at 6:10:52 p.m.

On the evidence of the witnesses, as well as the dash cam video, it appears that weather conditions were good, the roads were dry, and traffic was steady, but the rush hour traffic was lessening, and visibility was good. There is no evidence, from any source, that the SO’s driving interfered with any other motorists or pedestrians. Furthermore, it is clear and not in dispute that the SO’s police cruiser at no time made contact with the black Honda and that he was not directly responsible for the collision. In the absence of some evidence from either the occupants of the black Honda, or the SO, it is impossible to determine whether or not the driver of the Honda, CW #1, was aware that the SO was still in pursuit at the time of the collision, or whether or not the SO still had the black Honda in his view just prior to the Honda attempting the turn onto Pike Street, causing the driver to lose control and the Honda to crash.

Based on the evidence from the dash cam, however, that the SO did not arrive at the collision scene for some 33 seconds after the impact, and the fact that the black Honda was travelling at far greater speeds than was the police vehicle, I infer that it is most likely that the SO did not have the Honda in view at the time that it approached to make its turn and that, just as likely, CW #1 could not see the police cruiser.

Pursuant to the OPS policy on Suspect Apprehension Pursuits, which is enacted as a companion to the Ontario Police Services Act Regulations (OPS) with the same title, it appears clear that the SO did not fully comply with the requirements set out thereunder, in that, despite having reason to believe that a criminal offence was being committed, that being the possession of a stolen motor vehicle, it is unclear, in the absence of his version of events, whether or not he considered alternatives to a police pursuit or whether he assessed the public safety as against the immediate need to apprehend the driver of the Honda. The OPS policy reads as follows:

• A police officer, before initiating or continuing a SAP, shall determine:

1. If there is reason to believe that a criminal offence has been committed or is about to be committed or to identify the motor vehicle or an individual in the vehicle
2. That there are no alternatives available as set out in “Alternative Methods/Tactics” of this procedure, and
3. Whether in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle or the need to identify that motor vehicle or an individual in the motor vehicle outweighs the risk to public safety that may result from the suspect apprehension pursuit

• Before initiating and during a suspect apprehension pursuit, the 3 part test must be continually assessed by officers

• When initiating a suspect apprehension pursuit, the officer shall immediately advise and continually update the Dispatcher of:

1. Assessment of risk to public
2. Identity of the police unit
3. Description of the pursued vehicle
4. Reason for the pursuit
5. Number of occupants in the suspect vehicle and their description if known
6. Present location, the direction of travel, and whether the pursuit is about to or has entered another jurisdiction
7. Rate of speed
8. Road conditions
9. Traffic conditions
10. Any further information which will enable the Communications Clerk and assigned units to assist
11. Highway Traffic Act offences and/or criminal offences in relation to driving being committed by the suspect vehicle (e.g. disobeying stop signs, disobeying red lights, etc.)
12. If a young person is driving the suspect vehicle
13. If the pursuit may enter another jurisdiction

Certainly, the SO was in breach of both the regulations and the OPS policy in that he failed to immediately notify and continually update the dispatcher with respect to any of the long list of factors listed in the policy; in fact, the SO’s radio was silent throughout this pursuit, and he did not contact the dispatcher until after the collision, when he was already in foot pursuit of CW #2

Since the SO had the opportunity to access his in-car computer terminal during the pursuit, I can only assume that he would have been equally capable of contacting the dispatcher and putting the decision of whether or not to continue a vehicular pursuit into the hands of a communications supervisor, as is required pursuant to s. 3 (1) of Ontario Regulation 266/10, OPSA – Suspect Apprehension Pursuits.

Having said that, however, a failure to comply with the OPS or the OPS policy does not equate with reasonable grounds to believe that a criminal offence has been committed, although these concerns will be brought to the attention of the OPS Chief of Police and hopefully will be appropriately dealt with.

The question to be determined is whether or not there are reasonable grounds to believe that the SO, in pursuing the black Honda, committed a criminal offence, specifically, whether or not the driving rose to the level of being dangerous and was therefore in contravention of s.249 (1) of the Criminal Code and did thereby cause bodily harm contrary to s.249 (3).

The decision of the Supreme Court of Canada in R. v. Beatty, [2008] 1 S.C.R. 49, indicates that s.249 requires that the driving be “dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place” and the driving must be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.”

In applying the reasonable person test, I must consider if the SO’s driving was a marked departure from the standard of care that a reasonable person in his circumstances would observe. As such, I must determine if his driving amounted to a marked departure from that of a police officer attempting a vehicle stop of a speeding motor vehicle on municipal roads for an HTA violation, and after the Honda initially pulled over, a police officer attempting to stop a motor vehicle which he had now confirmed, by way of his in-car computer terminal, was involved in a criminal offence.

On a review of all of the evidence, it is clear that the SO was likely travelling at a rate of speed of up to 90 km/h in excess of the speed limit when he pursued the black Honda. There is, however, no dispute that the roads were clear and dry and the weather conditions and visibility were good. Additionally, other than his rate of speed, there is no evidence that the SO contravened any HTA provisions, nor is there any evidence that he interfered with other traffic.

While the pursuit was carried out on municipal roads with a steady flow of traffic, and the Honda’s extremely high rate of speed appeared to be in direct correlation to CW #1’s desire to outrun the police, I find that ultimately it was the voluntary decision of CW #1 to try to evade police and, in doing so, driving at an extreme rate of speed with no regard for other people using the roads which ultimately caused the collision and his passenger’s, the Complainant’s, injuries.

In arriving at my decision, I have reminded myself of the jurisprudence of the Supreme Court of Canada that I am not to hold police to an unattainable standard of perfection, as enunciated in their decision in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

As well as their pronouncement in R. v. Roy (2012), 281 C.C.C. (3d) 433, wherein the Supreme Court of Canada held that a simple misjudgment could not reasonably support an inference of a marked departure, as follows:

A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

And further:

Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal. As noted earlier, Charron J., for the majority in Beatty, put it this way: "If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy" (para. 34). The Chief Justice expressed a similar view: "Even good drivers are occasionally subject to momentary lapses of attention. These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving. But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving" (para. 71).

And lastly:

Driving which, objectively viewed, is simply dangerous, will not on its own support the inference that the accused departed markedly from the standard of care of a reasonable person in the circumstances (Charron J., at para. 49; see also McLachlin C.J., at para. 66, and Fish J., at para. 88). In other words, proof of the actus reus of the offence, without more, does not support a reasonable inference that the required fault element was present. Only driving that constitutes a marked departure from the norm may reasonably support that inference.

I have also carefully considered the decision of our Court of Appeal in R. v. Pezzo, [1972] O.J. No. 965, that excessive speed alone does not necessarily equate with dangerous driving. The following is an excerpt from that case, in which the Court found that the offence of dangerous driving was not made out despite the extremely high rate of speed at which the Appellant was travelling at the time:

With respect to the dangerous driving there is very little evidence. The Crown gave particulars of the dangerous driving and restricted itself to excessive speed. My brother Arnup and I are of the opinion that on the scanty evidence presented it would be unsafe to maintain a conviction. The learned trial Judge said:

• "On all the evidence before me I find that you took this car, had it in your possession, stole it, were driving it. The car tipped over, on the evidence before me, after a skid mark of some 98 feet, flipped over on its back … for another 42 feet skid mark which indicates a great deal of speed, a collision with the wall. On all the evidence before me I find you guilty of the charge of theft of a motor vehicle and dangerous driving."

With respect to the learned trial Judge we are not satisfied that the evidence clearly discloses that the appellant was driving in such a manner that the driving can be characterized as dangerous driving within the meaning of the relevant section of the Code. We would accordingly allow the appeal against conviction and direct an acquittal on the charge of dangerous driving.

And the subsequent decision in R. v. M.K.M., [1998] O.J. No. 1601, that in certain circumstances, excessive speed alone may be sufficient to establish dangerous driving:

Depending on the context in which it occurred, excessive speed can amount to a marked departure from the standard of care of a prudent driver. Here the context included the following: the accident occurred on a busy highway in a built up area of Mississauga, and just before the accident the appellant had been driving aggressively and engaging in "horseplay" on the road with her co-accused. Although their estimates of the appellant’s driving speed varied, all of the independent witnesses testified that she was driving too fast. The evidence of … all supported the trial judge’s conclusion that the appellant was driving well above the speed limit and too quickly to avoid any unexpected occurrence on the highway. Indeed, Miss Black gave evidence that the appellant lost control of her car because she was driving too fast.

Having fully considered the edicts from our Court of Appeal as to the factors to consider in assessing whether or not I have reasonable grounds to believe that there is sufficient evidence to make out a charge of dangerous driving, I do not find that it is made out on this record. Taking into account that the only evidence that I have which would support a charge of dangerous driving would be that of a high rate of speed, countered by the evidence that the officer was only driving at that high rate of speed for a duration of first 20 seconds, then stopped, and then for a period of less than 29 seconds, and considering that the test of a reasonable driver requires an assessment of what would be reasonable in the case of a police officer attempting to stop and investigate first a speeding and then a stolen motor vehicle, I must conclude that, in the absence of some evidence that the SO was driving in a dangerous manner, other than the mere high speed at which he travelled for a matter of seconds, I find that the evidence is not sufficient to satisfy me that I have reasonable grounds to believe that the actions of the SO amounted to a ‘marked departure’ rather than a ‘mere departure’ of the standard of care of a reasonable police officer in these circumstances. As indicated above, the evidence also fails to establish a causal connection between the driving of the SO and the injuries sustained by the Complainant

In conclusion, on the evidence before me, I find that I lack the reasonable grounds upon which I can be satisfied that the SO’s driving conduct amounted to a criminal offence and therefore no charges shall issue.

Date: October 2, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit