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 32-year-old man during his arrest on August 10^th, 2017.

Notification of the SIU

At approximately 7:00 p.m. on August 10^th, 2017, the Ontario Provincial Police (OPP) notified the SIU of the serious injury sustained by the Complainant.

The OPP reported that on August 10^th, 2017 at approximately 2:00 p.m., the OPP dispatcher broadcast a report of a vehicle (a Lamborghini) driving at a high rate of speed in the Caledon area. A police officer driving a marked cruiser came across the Lamborghini travelling south on Highway 10, and the officer made a U-turn and followed the vehicle.

The Lamborghini turned south onto Old Base Line Road and travelled at approximately 160 km/h. The police officer activated his cruiser’s emergency lights and followed the Lamborghini. The Lamborghini turned south on McLaughlin Road. When the police officer turned south onto McLaughlin Road, he lost sight of the Lamborghini. The police officer pulled his cruiser to the side of the road and stopped for approximately five minutes.

The police officer then pulled back onto the road and continued south on McLaughlin Road for about one kilometre, where he saw that the Lamborghini had rolled over.

The two passengers in the Lamborghini were walking around at the scene and both were taken to hospital.

The Team

Number of SIU Investigators assigned: 6

Number of SIU Forensic Investigators assigned: 2

Complainant:

32-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Declined to be Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Notes reviewed, interview deemed not necessary

WO #4 Interviewed

WO #5 Notes reviewed, interview deemed not necessary

WO #6 Notes reviewed, interview deemed not necessary

WO #7 Notes reviewed, interview deemed not necessary

WO #8 Interviewed

WO #s 3 and 5-7’s notes were reviewed and it was determined that they had arrived at the scene after the SO had broadcast that the Lamborghini had crashed.

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right, but authored an occurrence report that contained his written statement.

On August 10^th, 2017, at approximately 1:45 p.m., CW #2 called 911 to report a black coloured Lamborghini [now known to have been driven by the Complainant] driving southbound on Highway 10[1] in the Town of Caledon, at a high rate of speed. At approximately the same time, the SO was coincidentally driving northbound on Highway 10 and saw the Lamborghini drive past him at that same high rate of speed.

The SO made a U-turn to conduct a traffic stop of the Lamborghini and advised the dispatcher that he had the Lamborghini’s speed locked at 120 km/h on radar. The Lamborghini turned west onto Old Base Line Road[2] from Highway 10 and the SO followed.

Once the SO was on Old Base Line Road, he observed that the Lamborghini had pulled away and was now approximately 400 metres ahead of him and about to drive downhill towards McLaughlin Road. The SO then took a second radar reading and locked the Lamborghini’s speed at 162 km/h on radar. When the Complainant approached the intersection of Old Base Line Road and McLaughlin Road, he drove south on McLaughlin Road without stopping. The SO also turned south onto McLaughlin Road but lost sight of the Lamborghini, due to its excessive speed. The SO then pulled his cruiser onto the shoulder of the road and advised the dispatcher that he was no longer following the Lamborghini.

At approximately 1:53 p.m., the SO started his cruiser up again and continued southbound on McLaughlin Road, where he saw the Lamborghini in a ditch after apparently having rolled over several times. A woman [now known to be CW #1] was standing on the road close to the Lamborghini, while the Complainant was located unconscious in the driver’s seat. When the Complainant regained consciousness, the SO arrested him for dangerous driving and flight from police.

The Complainant was transported to hospital where he was assessed.

Nature of Injury/Treatment

The Complainant was diagnosed with a fracture to his left ninth rib and a fracture to his sternum.

The Scene

On August 10^th, 2017, SIU investigators attended the area of McLaughlin Road and Boston Mills Road in the Town of Caledon. McLaughlin Road was a two lane, paved roadway which ran in a north/ south direction. The posted speed limit was 80 km/h. The roadway was dry upon the arrival of the SIU Investigators. The road did not have shoulders and it was grass-lined with ditches on both sides of the road. Boston Mills Road was a two lane, paved road which ran in an east/west direction.

The Complainant’s vehicle, which was a black coloured Lamborghini, was facing northeast in the southbound lane on McLaughlin Road. It was about 200 metres south of Boston Mills Road. There were scrape marks related to the Complainant’s vehicle that were about 13 metres south of the intersection in the southbound lanes of McLaughlin Road. There were tire marks approximately 38 metres south of the intersection in the southbound lane of McLaughlin Road and they continued towards, and into, the west ditch. The tall grass in the ditch was matted down along the path travelled by the Complainant’s vehicle.

The Complainant’s vehicle was extensively damaged and covered in mud and grass. The damage suggested that the vehicle had rolled over several times before coming to rest.

There was no evidence to suggest that the Complainant’s vehicle and the SO’s cruiser ever came into contact.

Photos of damaged Lamborghini at scene

The SO’s marked cruiser was located just north of the Complainant’s vehicle in the southbound lane. The engine was off and the emergency lights were not activated. There was no evidence of damage to the exterior of the cruiser.

The tall grass located on the west side of McLaughlin Road was bent over. A Bell Canada telephone box in the grass was sheared in half.

Just south of Boston Mills Road, on McLaughlin Road, there were gouge marks near the yellow centre lane. Tire marks were present in the southbound lane and they veered in a westerly direction towards the field.

Scene Diagram

Physical Evidence

Automatic Vehicle Locator (AVL) / Global Positioning System (GPS) Data Summary

The following is a summary of the AVL/GPS data from the SO’s cruiser on August 10^th, 2017:

• At 1:46 p.m., the SO was travelling northbound on Highway 10, just south of Old Base Line Road, at a speed of 87.41 km/h
• At 1:47 p.m., the SO stopped on Highway 10, north of Old Base Line Road. It was at this time that the communications centre broadcast the information received in the 911 call from CW #2 over the radio
• At 1:47 p.m., the SO was still travelling on Highway 10, north of Old Base Line Road, but had changed direction and was now travelling southbound
• At 1:47 p.m., the SO was travelling southbound on Highway 10, north of Old Base Line Road, at a speed of 135 km/h
• At 1:48 p.m., the SO was travelling westbound on Old Base Line Road at a speed of 122 km/h
• Between 1:48 p.m. and 1:50 p.m., the SO was stopped on McLaughlin Road South. At this time, the SO reported to the communications centre
• Between 1:50 p.m. and1:52 p.m., the SO drove southbound on McLaughlin Road at a rate of speed between 36 and 74 km/h, and
• Between 1:52 p.m. and 2:29 p.m., the SO was stationary on McLaughlin Road, south of Boston Mills Road

SIU forensic investigators discovered from the AVL/GPS data that sequence 56, 57, and 58 showed the SO’s cruiser was in motion at 1:47 p.m., at speeds of 37.23 km/h, 37.01 km/h, and 37.23 km/h (respectively) but the longitude and latitude data for the sequences in question were each the same value.

Also, sequence 63 and 64 from the AVL/GPS data showed the SO’s cruiser in motion at 1:48 p.m., at speeds of 123.53 km/h and 122.31 km/h (respectively) but the longitude and latitude data for each of the sequences were the same value.

An OPP technical analyst explained that there are often glitches when the information from the police cruiser is sent to the computer server (located in OPP Headquarters). The information obtained at the server level was in increments at one minute separation points. Therefore, the best way to obtain data most accurately is from the tablet which each police officer would take with them when they operate a cruiser. However, the tablets are not specifically assigned to a police officer and the data obtained by the tablet is overwritten each time it is used by a police officer. In this matter, because the SIU did not obtain the tablet from the SO at the time of the incident, the data from the tablet could no longer be obtained.

Expert Evidence

OPP Reconstruction Report Summary (SIU Peer Reviewed)

On November 23^rd, 2017, an SIU reconstructionist obtained and reviewed the reconstruction report prepared by the OPP. The following is a summary of that report:

• McLaughlin Road was a straight road not requiring excessive driver steering input so it would be difficult to explain why a motor vehicle would be driven off the roadway
• The fresh wide scrape marks in the southbound lane near the centre line, 14.7 metres south of the south edge of Boston Mills Road, were consistent with the Complainant’s vehicle “bottoming out”
• From the south end of these 4.1 metre long scrape marks was a series of intermittent tire marks that followed a south westerly path for 108.1 metres
• The first tire marks started at 39.4 metres south of the south edge of the pavement of Boston Mills Road and they straddled the northbound and southbound lanes of McLaughlin Road for 9.2 metres in a “scalloping[3]” pattern
• The tire pressures on the Complainant’s vehicle did not indicate a flat tire, so the marks were thought to have occurred as the vehicle went out of control after it had landed after bottoming out
• The next tire marks started at 56.6 metres south of the south edge of the pavement of Boston Mills Road and were located in the centre of the southbound lane of McLaughlin Road following a south/westbound path to the tree stump in the west ditch
• The marks were consistent with over-steering to the right to compensate for straddling the centre line of McLaughlin Road
• The wide gouge in the dirt and the swath in the grass south of the broken tree stump in the west ditch, as well as damage and dirt found on all sides of the Complainant’s vehicle, were consistent with a vehicle rollover

The following analysis explains the reasons for the above mentioned roadway marks which were consistent with the Complainant’s vehicle being driven southbound on McLaughlin Road at a high speed and failing to stop for the four way stop at Boston Mills Road and then travelling southbound out of control eventually entering the west ditch of McLaughlin Road:

1. The centre of Boston Mills Road was elevated or crowned slightly to facilitate rain run-off
2. As McLaughlin Road crossed Boston Mills Road, the effect of the crown, although marginal, had a dynamic effect on motor vehicles crossing the intersection
3. This dynamic effect is minimized when the four way stop sign is obeyed, but is aggravated when excessive speed is involved
4. Measurements from McLaughlin Road indicated that the crown was 0.1 metres wide over 3.0 metres long or 0.33 percent or 1.9 degrees
5. It was assumed that the crown on Boston Mills road was similar to that of McLaughlin Road
6. The precise speed of the Complainant’s vehicle, as it entered the four way stop intersection, was unknown but was thought to have been considerably in excess of the posted 80 km/h speed limit which caused it to be partially airborne creating the “bottoming out” scrape marks
7. According to www.autoevolution.comcarsLamborghiniGallardo, the ground clearance for this vehicle is 11.4 cm
8. Assuming that the take-off height was the same as the landing height, that the take-off angle was 1.9 degrees and that the fall distance was 11.4 cm (the published clearance of the Lamborghini), then the calculated speed at the time the Complainant’s vehicle was at the centre of Boston Mills Road would have been 176 km/h
9. There would be very little loss of speed while the Complainant’s vehicle was partially airborne
10. After bottoming out for a 4.1 metre stretch, 19.1 metres south of the centre of Boston Mills Road, the Complainant’s vehicle continued out of control for an additional 108.1 metres at a speed slightly less than 176 km/h. Since the Complainant’s vehicle was not in an all-wheel lock up for the complete 108.1 metres, a slightly lower co-efficient of friction was assumed
11. There are many close and reasonable variables to indicate the speed reduction of the Complainant’s vehicle during that 108.1 metres of south/westbound movement on McLaughlin Road, some of which are a speed reduction of 170 km/h to 89 km/h with a road surface co-efficient of friction of 0.76 in 3 seconds or a speed reduction from 175 km/h to 113 km/h over 108 metres with a road surface co-efficient of friction of 0.63 in 2.7 seconds
12. The Complainant’s vehicle speed range at the time of the commencement of rollover was calculated to be 89 to 113 km/h
13. Although the Complainant’s vehicle had a very high acceleration rate (8.37 m/s/s @ 0-60.com) the fastest speed it could achieve from a stop is 64 km/h in 20 metres making the creation of the scrape marks improbable. Furthermore, there were no acceleration marks north of the scrape marks and/or tire marks which would suggest that the Complainant’s vehicle accelerated from a stop from Boston Mills Road, and

• The evidence supported the conclusion that the Complainant’s motor vehicle was driven at a high rate of speed southbound on McLaughlin Road, through the stop sign at Boston Mills Road, before “bottoming out” out of control into the northbound lane and then steering hard to the right. This conclusion was found to be consistent with, but not necessarily conclusive of, the Complainant attempting to flee from something or somebody

Video/Audio/Photographic Evidence

SIU Route Video Summary

On August 16^th, 2017, at approximately 2:05 p.m., SIU forensic investigators (FIs) conducted a route video of the route travelled by the Complainant’s vehicle and the SO’s vehicle. Efforts were made to reproduce conditions most closely associated with the original incident, including the time of day and road and weather conditions. The following is a summary of the route travelled:

• At approximately 2:05 p.m., the video commenced with the SIU vehicle travelling south on Highway 10. Highway 10 was a five lane paved roadway. Two lanes travelled north and two lanes travelled south. There was a middle turn lane between the northbound and southbound lanes. On the sides of the roadway were grassy fields and trees. There were no sidewalks. There were a few residential homes and a few commercial buildings. There was a shoulder to the right along the southbound lanes. The posted speed limit was 80 km/h. The roadway was relatively straight with some incline. At this time there were some vehicles travelling in both directions but no pedestrians walking on or around the roadway
• Approximately 3.2 km later, the SIU vehicle turned west onto Old Base Line Road. This road was a two lane paved roadway. One lane travelled west and another lane travelled east. On the sides of the roadway were grassy fields and rural land. No sidewalks were observed on either side of the roadway and there were no pedestrians seen in or around the roadway. The posted speed limit was 60 km/h. A few cars were observed travelling eastbound. There was a decline in the roadway. The roadway approached a four way stop intersection with a speed limit of 50 km/h
• McLaughlin Road travelling south was a two lane paved roadway. One lane travelled south and another lane travelled north. On the sides of the roadway were grassy fields. The roadway had a few hills and it was bumpy. The posted speed limit was 60 km/h. There were rumble strips on the roadway approaching the intersection of Boston Mills Road and McLaughlin Road. The road approaching the intersection was quite rough and patchy. South of Boston Mills Road, the posted speed limit was 80 km/h

Communications Recordings

911 and Communications Recordings Summary

The following is a summary of the 911 and Communications Recordings from August 10^th, 2017 relating to this incident:

• At 1:45:57 p.m. - CW #2 called and reported that a Ferrari or Lamborghini had sped past him at a high rate of speed, moving southbound on Hwy 10 just past Escarpment Road. CW #2 advised that he was also travelling south when the Ferrari/Lamborghini passed him
• At 1:47:36 – The SO advised dispatch that he had captured the Complainant’s motor vehicle travelling at 120 km/h [Hwy 10 in that section of the road has a speed limit of 80 km/h]. The SO advised that he was trying to “catch up to him” and that the Complainant’s vehicle had turned west onto Old Base Line Road
• At 1:48:44 – The SO advised that the Complainant’s vehicle drove past a stop sign located at the intersection of McLaughlin Road and Old Base Line Road and drove southbound on McLaughlin Road. The SO also advised that he was unable to keep up with the Complainant’s vehicle and had pulled his cruiser over to the side at McLaughlin Road and Old Base Line and stated “discontinuing”
• At 1:49:00 – The dispatcher asked the SO if he was in pursuit
• At 1:49:08 – The SO advised: “I was just trying to catch up to him. I think he knew. He saw me pull around at him, and he took off at a high rate of speed. I got him coming down the hill at 165 km/h, going away from me. I couldn’t keep up with him
• At 1:49:26 – The SO advised dispatch: “You can change that to police pursuit if you wish, even though he was well in front of me.” Dispatch acknowledged and asked if the SO’s emergency lights were activated, but the SO did not respond
• At 1:49:45 – An unknown police officer asked the SO if the Complainant was last seen southbound on McLaughlin Road
• At 1:51:07 - The SO advised that he was going to drive south on McLaughlin Road from Old Base Line to ensure that the Complainant had not crashed, and
• At 1:51:53 – The SO requested Fire Services and EMS assistance because the Complainant’s motor vehicle had rolled over in the middle of McLaughlin Road at Boston Mills Road

During the SO’s radio transmissions to the dispatcher, no sirens were heard in the background prior the SO’s arrival at the scene of the single motor vehicle collision.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

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

• AVL GPS Data Table from involved police vehicle
• CAD Data Table from involved police vehicle
• Event Chronology
• 911 Call Recording
• Police Transmissions Communications Recording
• GPS Coordinates from involved police vehicle
• Notes of WO #s 1-8
• OPP Scene Photos
• OPP Collision Reconstruction Report
• OPP Crown Brief
• OPP Scribed Audio Statement of an undesignated civilian witness
• OPP Witness Statement of CW #s 2 and 3 and an undesignated civilian witness, and
• Witness Details

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

• Medical records of the Complainant related to this incident, and
• Ambulance Call Reports (x2)

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.

2. (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

Section 249, Criminal Code - Dangerous operation of motor vehicles Causing Death or Bodily Harm

249 (1) Every one commits an offence who operates

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

(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;
2. is guilty of an offence punishable on summary conviction.

(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

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen 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

2. for a period of five years, unless the subclause (ii) applied, or
3. 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.

On August 10^th, 2017, at approximately 1:45:57 p.m., a call was received by the OPP reporting that the caller had observed a Ferrari or a Lamborghini motor vehicle travelling southbound on Highway 10, just past Escarpment Road, in the Town of Caledon. The caller, CW #2, advised that he had been driving southbound on Highway 10 when the sports car passed him and he described the sports car as “absolutely flying”. When the dispatcher asked if the caller had been able to get a plate number, he responded that “nobody’s getting his plate number” and, “I’d hate to think how fast he was going”. The dispatcher advised that she would have someone look for the car.

The SO, in the occurrence report authored by him, indicated that he was initially driving northbound on Highway 10, just north of Old Base Line Road, when a black Lamborghini travelling at 120 km/h passed him going the other way. The SO then made a U-turn in order to conduct a traffic stop, at which point he heard the broadcast from the dispatcher. This evidence is confirmed by the data from his police cruiser and by the police transmissions recordings.

The AVL/GPS data from the SO’s police cruiser indicated that at the time that the call was being taken, he was travelling northbound on Highway 10, just south of Old Base Line Road, at a speed of 87.41 km/h. This is a posted 80 km/h zone.

At 1:47:36 p.m., the dispatcher put out a call to operations in Caledon, to all units “traffic and plain” for the area of Highway 10 southbound from Escarpment Road to be on the lookout for a black Lamborghini that was “high miling it”.[4]

The data from the SO’s police cruiser has him stopped on Highway 10, north of Old Base Line Road, just as the communications centre made the broadcast over the radio.

The radio communications recording confirms that the SO immediately responded indicating that he had just clocked the vehicle on radar travelling at 120 km/h and that he was trying to “catch up to him”. He also indicated that the Lamborghini had turned west onto Old Base Line Road.

At 1:47 p.m., the data from the SO’s cruiser has him still on Highway 10, north of Old Base Line Road, but he has changed direction and he is now travelling southbound, presumably to follow and stop the speeding Lamborghini. The SO’s speed then increased to 135 km/h and he then slowed, at 1:48 p.m., to 122 km/h.

The SO, in the occurrence report, indicated that he then turned onto Old Base Line Road and travelled west, where he observed the Lamborghini approximately 400 metres ahead of his cruiser and about to go down a hill towards McLaughlin Road.

As the SO drove down the hill towards McLaughlin Road, he advised that he activated his emergency lighting system and locked the Lamborghini’s speed at 162 km/h in a 60 km/h zone. The SO observed the Lamborghini begin to brake as it approached the intersection of McLaughlin and Old Base Line Road, at which point he locked the radar on the Lamborghini travelling at 136 km/h. He then observed the Lamborghini slow to about 60 km/h as it passed through the stop sign at the intersection, without stopping, and then again accelerate. The SO indicated that as he approached the intersection himself, he activated his siren and then stopped at the stop sign. The SO then turned south onto McLaughlin Road, where he saw a steep hill ahead and could no longer see the Lamborghini.

This evidence is fully confirmed by the communications recording, which, at 1:48:44 p.m., recorded a transmission received from the SO advising that the Lamborghini drove through a stop sign located at the intersection of McLaughlin Road and Old Base Line Road and continued southbound on McLaughlin Road. The recording also has the SO advising that he was unable to keep up with the speeding vehicle and that he had pulled his cruiser over to the side of McLaughlin Road at Old Base Line Road. The SO then transmitted that he was “discontinuing”, presumably referring to his efforts to pursue and stop the Lamborghini.

The SO, in his report, indicated that he then pulled his cruiser over and advised dispatch that he was no longer following the Lamborghini as it was going too fast.

At 1:49:00 p.m., the dispatcher is recorded as asking the SO if he was in a vehicular pursuit and the SO responded, “I was just trying to catch up to him. I think he knew. He saw me pull around at him, and he took off at a high rate of speed. I got him coming down the hill at 165 km/h, going away from me. I couldn’t keep up with him.”

The data from the SO’s police cruiser confirms that between 1:48 p.m. and 1:50 p.m., the SO was stationary on McLaughlin Road South. At 1:49:26 p.m., while still parked at the side of the road, the SO contacted the communications centre again indicating, “You can change that to police pursuit if you wish, even though he was well in front of me.”

The SO, in his report, indicated that after about two minutes, he advised the dispatcher that he was going to continue southbound on McLaughlin Road at about 70 km/h to ensure that the Lamborghini had not crashed or been involved in a collision.

The communications recording confirms that at 1:51:07 p.m., the SO notified dispatch that he was going to drive south on McLaughlin Road from Old Base Line to ensure that the Lamborghini had not crashed. This is further confirmed by the data from his vehicle, which has him travelling southbound on McLaughlin Road at speeds ranging from 36 km/h to 74 km/h between1:50 and 1:52 p.m.

At 1:51:53 p.m., the SO is heard to request Fire Services and EMS assistance because the speeding Lamborghini had rolled over in the middle of McLaughlin Road at Boston Mills Road. The data from the SO’s cruiser confirms that he was stopped at 1:52 p.m., on McLaughlin Road south of Boston Mills Road, and remained stationary at that location until after the arrival of SIU investigators, who photographed the scene with both cars still in place.

During the SO’s radio transmissions to the dispatcher, sirens could not be heard in the background prior to the SO’s arrival at the scene.

On all of the evidence, the SO’s version of events is fully corroborated by both the radio transmissions recordings and by the raw data from his own police cruiser. There can be no dispute as to these confirmed facts.

The Complainant, the driver of the Lamborghini, indicated that he originally passed a police cruiser going in the opposite direction on Highway 10, and that as he made his turn onto Beechgrove Road (which was actually Old Base Line Road), he saw the cruiser make a U-turn, but that at no time did he see the police cruiser again after he entered onto Old Base Line Road and that the actions of the SO in no way influenced his driving, as he was totally unaware that a police officer was even following or attempting to stop him. Furthermore, the Complainant clearly indicated that the collision in which he was involved was totally unrelated to any actions of the SO.

Based on the statement of the Complainant alone, it is without dispute that he was never made aware that he had registered on the SO’s radar or that the SO was taking any steps to stop the Lamborghini that he was driving. As such, it is obvious that in the absence of that knowledge, the Complainant’s driving was not in any way initiated by, influenced by, nor exacerbated by, the actions of the SO, but rather his driving was a direct result of his own voluntary behaviour in operating his motor vehicle at extremely high rates of speed and without obeying traffic controls and that the collision and the serious injuries sustained by the Complainant were therefore a direct result of the choices that he made as to his manner of driving and that he, and he alone, is responsible for the unfortunate consequences. In short, there is no evidence which can in any way be interpreted as establishing any causal connection between the driving of the SO and the injuries sustained by the Complainant.

Although the statement of the Complainant offers a complete exoneration of the SO with respect to any responsibility for the collision, I note that the evidence of the SO, as confirmed by the communications recordings between himself and the communications centre and the AVL/GPS data from his police cruiser, fully substantiates the fact that the SO was no longer in a vehicular pursuit at the time of the single motor vehicle collision in which the Complainant was injured, nor had he been in pursuit immediately prior to the collision, having abandoned his efforts to apprehend the Complainant shortly after he entered onto McLaughlin Road and lost sight of the Complainant’s motor vehicle.

On all of the physical evidence, which is not in dispute, it is clear that although the SO initially attempted to bring the Complainant’s vehicle to a stop, at no time did he shorten the gap between his own vehicle and that of the Complainant and, as soon as the Complainant ran the stop sign at McLaughlin Road and Old Base Line Road, at which stop sign the SO brought his vehicle to a full stop, the SO lost sight of the Complainant’s motor vehicle and then pulled over and stopped. It is clear from the communications recording, that the SO then updated the dispatcher and advised that “I was just trying to catch up to him. I think he knew. He saw me pull around at him, and he took off at a high rate of speed. I got him coming down the hill at 165 km/h, going away from me. I couldn’t keep up with him.” Following this, he clarified, “You can change that to police pursuit if you wish, even though he was well in front of me.”

From the time when the SO pulled over and stopped, until he restarted his police cruiser and began to look for the Complainant’s motor vehicle, his cruiser had been stationary for a full two minutes before he then again set his vehicle in motion and travelled along McLaughlin Road at speeds substantially below the speed limit. Another minute and 53 seconds then passed before the SO came upon the crash scene.

In addition to the radio communications recording and the AVL/GPS data, this evidence is also corroborated by an independent witness who came upon the crash scene shortly after it had occurred, and indicated that the first police vehicle did not arrive until approximately five minutes after the crash. Also, upon the SO’s arrival at the scene, he told the witness that he had seen the Lamborghini travelling at a high rate of speed on Highway 10 but that he had lost sight of the car on Old Base Line Road.

On this record, it is established that on August 10^th, 2017, at approximately 2:00 p.m., the Complainant was operating his motor vehicle at an extremely high rate of speed when he lost control of his motor vehicle, for whatever reason, causing his vehicle to roll over numerous times. Furthermore, the Complainant, other than originally observing the SO make a U-turn on Highway 10, indicated that he was completely unaware of any police presence or involvement while he was operating his motor vehicle. On this evidence, it is clear that the collision in which the Complainant was injured was completely of his own making and would have occurred whether or not the SO had attempted to stop the Complainant, since the Complainant was apparently unaware of the SO’s presence or his attempts to conduct a vehicle stop of the Lamborghini.

Although there is no causal connection between the collision and injuries of the Complainant, it is worthy of note that the SO fully complied with Ontario Regulation 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits, in that, within seconds of making his U-turn to follow the Complainant’s vehicle, he notified the dispatcher that he had locked the Lamborghini on his radar at 120 km/h and that he was trying to catch up to him. He then continued to update the dispatcher both as to the speeds and actions of the Lamborghini, including its location, and his own actions; he advised the dispatcher as to where he had last seen the Lamborghini and that he had pulled over to the side of the road and that he was no longer in pursuit; he determined 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, outweighed the risk to public safety that may result from the pursuit (s.2(3)) and having reassessed the situation (as he was obligated to do) under subsection (3) he discontinued the pursuit when the risk to public safety that may have resulted from the pursuit outweighed the risk to public safety that may have resulted if an individual in the fleeing motor vehicle was not immediately apprehended (s.2(4)).

The final question to be determined is whether or not there are reasonable grounds to believe that the SO, in his initial pursuit of the Complainant, committed a criminal offence, specifically, whether or not his driving rose to the level of being dangerous and therefore in contravention of s.249(1) of the Criminal Code.

The decision of the Supreme Court of Canada R.v. Beatty, [2008] 1 S.C.R. 49, sets out the law with respect to s.249 in that it 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”.

On a review of all of the evidence, I find that there is no evidence that the driving of the SO created a danger to other users of the roadway or that he at any time interfered with other traffic; in fact, other than his initial increased rate of speed in his attempt to catch up to the Complainant’s vehicle, he appears to have fully complied with the provisions of the Highway Traffic Act; additionally, the environmental conditions were good and the roads were dry.

On this record, I find that the evidence of the SO’s driving does not rise to the level of driving required to constitute ‘a marked departure from the norm’ and, as indicated earlier, there is no evidence of a causal connection between the actions of the SO and the motor vehicle collision in which the Complainant was injured. In fact, in reviewing the evidence in its entirety, it is clear that not only did the SO respond to the situation in full compliance with the Criminal Code, the Highway Traffic Act and the Ontario Police Services Act, but he behaved at all times professionally, prudently and with good common sense. In conclusion, I find that the evidence before me does not satisfy me that I have reasonable grounds to believe that a criminal offence has been committed here by the SO and, as such, I find that there is no basis for the laying of criminal charges and none shall issue.

Date: June 1, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The speed limit on Highway 10 was 80 km/h [Back to text]
• 2) [2] The speed limit on Old Base Line Road was 60 km/h. [Back to text]
• 3) [3] Scalloping is a phenomenon known to occur when tires roll over on their beads and it commonly occurs when flat tires are driven on. [Back to text]
• 4) [4] “High miling it” is a slang expression for travelling at an excessive rate of speed. [Back to text]