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 injuries reportedly sustained by a 55-year-old man during his attempted apprehension on May 7^th, 2017.

Notification of the SIU

At approximately 7:00 p.m. on Sunday, May 7^th, 2017, the Ontario Provincial Police (OPP) notified the SIU of an injury sustained by the Complainant during an attempted traffic stop for the Reduce Impaired Driving Everywhere (RIDE) programme.

The OPP advised that officers were conducting RIDE lanes on Pioneer Street West in Markstay-Warren, Ontario. A vehicle stopped and the police officer began reading a breath demand to the driver [now known to be the Complainant]. The Complainant then accelerated, drove a short distance, lost control of his car, and drove into a roadside ditch. The Complainant was taken to hospital where he was diagnosed with back and neck fractures.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 2

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

Witness Officers

WO #1 Interviewed notes received and reviewed

WO #2 Interviewed notes received and reviewed

WO #3 Notes reviewed, interview deemed not necessary

Subject Officers

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

On Sunday, May 7^th, 2017 at about 3:00 p.m., WO #2 and the SO were conducting a RIDE programme on Pioneer Street West in Markstay-Warren. The police officers stopped a vehicle and grounds were formed to suspect that the driver was driving while impaired. The police officers read the breath sample demand and requested that the driver [now known to be the Complainant] of the vehicle pull over to the shoulder of the road. The vehicle drove away and eventually crashed into a ditch. The Complainant was taken to hospital and diagnosed with back and neck fractures.

Nature of Injuries/Treatment

On May 7^th, 2017, the Complainant attended hospital and a computerized tomography (CT) scan of his chest, abdomen, pelvis, head and spine were conducted. He was diagnosed with non-displaced fractures of the spinous process C4 and C5 and a burst fracture of T10 vertebral body.

The Scene

The scene was on Pioneer Street West. The street travelled in an east and west direction and travelling eastbound the roadway curves to the right on a downgrade. The roadway was dry and in good condition. The center line marking was faded and in poor condition.

In the area of 18 Pioneer Street West, there were tire marks that began in the eastbound lanes then travelled eastbound crossing the center of the roadway into the westbound lane. The tire marks continued to the ditch on the north side of the road in front of 14 Pioneer Street West. There was a large gouge in the ground, and the tire marks continued across the driveway of 14 Pioneer Street West and onto the grassy area east of the driveway. There was another gouge in the ground. The tire marks continued east past the grassy area into the bushes and rocks, where the vehicle was found.

A white Mitsubishi was mounted on large rocks and had heavy collision damage to the entire vehicle.

SIU forensic investigators examined the OPP vehicles being operated by the SO and WO #2. There was no collision damage to the OPP vehicles that could be attributed to this collision.

Physical evidence

OPP Global Positioning System (GPS)

The OPP provided the GPS from the vehicle belonging to the SO and the vehicle belonging to WO #2.

On Sunday, May 7^th, 2017, at 3:27:47 p.m., the SO’s police vehicle was stationary on Pioneer Street West, north of Highway 17. At 3:28:10, the police vehicle was still stationary at the same location. At 3:28:30, the police vehicle was on Pioneer Street West approaching Legion Street travelling at 71 km/h. At 3:28:50, the police vehicle was on Pioneer Street West approaching Hill Street travelling at 36 km/h. At 3:28:53, the police vehicle was approaching 14 Pioneer Street West travelling at 10 km/h. At 3:28:56, the police vehicle was stationary at 14 Pioneer Street West.

On Sunday, May 7^th, 2017, at 3:28:23 p.m., WO #2’s vehicle was stationary on Pioneer Street West, north of Highway 17. At 3:28:30, the police vehicle was on Pioneer Street West, north of Highway 17 travelling at 13 km/h. At 3:28:45, the police vehicle was on Pioneer Street West approaching Legion Street travelling at 55 km/h. At 3:29:05, the police vehicle was approaching 14 Pioneer Street West travelling at 46 km/h. At 3:29:17, the police vehicle was stationary at 14 Pioneer Street West.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Civilian Witness Cellular Telephone Recordings

On May 7^th, 2017, a civilian witness made a 17-second recording on his cellular telephone. The recording did not have a time stamp. The witness was in his house during the collision and left his house after the collision then started recording. The witness drove toward the collision. The recording showed two OPP vehicles stopped on the north side of Pioneer Street West.

On May 7^th, 2017, the civilian witness made a 50-second recording on his cellular telephone. The recording did not have a time stamp. The witness was the passenger in his friend’s vehicle. They drove toward the collision. There were two OPP vehicles stopped on the north side of Pioneer Street West. There was a pick-up truck stopped on the south side of the road. The police officers approached the vehicle in the collision. One of the police officers was on the driver’s side of the vehicle and the driver’s door was open. The other police officer was on the passenger side.

Dash Cam Recording from the Complainant’s Vehicle

The recording contained three files. The recording contained audio. The recording had the incorrect date and time. The time was off by an hour (the time notations below are as indicated on the video, and are not the actual time).

The first file started at 2:12:23 p.m. on the date of the collision with the Complainant at a gas station. At 2:12:25 p.m. he left the station. At 2:12:46, the Complainant turned onto Highway 17. He drove along Highway 17 until the recording ended at 2:22:26.

The second file started at 2:22:26 p.m. The Complainant’s vehicle was passing vehicles in the westbound lane and at 2:22:42 p.m., the Complainant said, “Fucking serious.” At 2:22:43 p.m., he said, “Chevy,” and started laughing. At 2:23:30, the Complainant turned left onto Pioneer Street West and travelled eastbound.

At 2:23:49 p.m., the Complainant’s vehicle approached two OPP vehicles with their emergency lights activated but the roof lights were not activated. One police vehicle was on the eastbound shoulder facing eastbound and the other police vehicle was on the westbound shoulder facing westbound. Two uniformed police officers were standing in the middle of the roadway with fluorescent yellow vests.

At 2:23:50 p.m., the Complainant’s vehicle slowed down as he approached the police officers. At 2:24:00, the Complainant’s vehicle stopped and he spoke to the police officer [now known to be WO #2]. The Complainant said, “Hey, good,” and WO #2 said, “We’re doing the RIDE programme. Anything to drink today?”

The Complainant said, “No,” and WO #2 said, “Nothing?” WO #2 then said, “Have your driver’s licence with you, ownership, insurance?” There was the sound of rummaging in the vehicle. WO #2 said, “Alright let’s start with your driver’s licence, how’s that?” The Complainant said something unintelligible. WO #2 said, “Where you coming from?” and the Complainant said, “Darcy.”

WO #2 said, “Darcy, where you headed?” and the Complainant said, “Just here to see a friend.” WO #2 said, “Do you realize what the speed limit is here?” The Complainant said, “Yah,” and then said, “Oh God, I’m fucking nervous.” WO #2 said, “Ok.” The Complainant said, “I don’t get pulled over often.” WO #2 said something unintelligible, then, “You’re sure you’ve not had anything to drink today?” The Complainant said, “Nothing.”

The Complainant said, “I’m AA serious, you know.” WO #2 said something unintelligible, then the Complainant said something unintelligible. WO #2 said something unintelligible then said, “Ok, I’m going to read this out to you … called a road side demand, ok. I believe you might have some sort of alcohol in you. I can smell a little bit of alcohol.” Then he said, “I demand that you provide a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made and that you accompany me now for that purpose. Do you understand?”

The Complainant said, “What?” and WO #2 said, “Do you understand that?” The Complainant said, “What’d you say?” and WO #2 read the demand again. WO #2 asked the Complainant if he understood and the Complainant said, “Ya.” WO #2 said something unintelligible then said, “Could I get you to pull over in front of the cruiser here, ok.”

At 2:25:52 p.m., the police officer wearing a toque [now known to be the SO] walked from left to right in front of the Complainant’s vehicle to the police vehicle on the eastbound shoulder. The SO opened and closed the left rear door of the police vehicle.

At 2:25:59 p.m., the SO opened the rear hatch of the police vehicle. At 2:26:00, an orange case was removed from the trunk of the police vehicle and the hatch was closed. At 2:26:09, the SO walked to the right.

At 2:27:42 p.m., the Complainant’s vehicle pulled forward and pulled onto the right shoulder. At 2:27:55, the Complainant’s vehicle pulled back onto the roadway and kept going forward. At 2:28:22, the Complainant’s vehicle left the roadway on the westbound shoulder, over the ditch, hitting the north side of the ditch. At 2:28:24, the recording ended.

The third file started at 2:28:34 p.m. The view was of a grey cloth, then the screen went black. At 2:29:07, a man was moaning and at 2:29:16, a man said, “Help!” At 2:29:17, the recording ended.

Communications Recordings

OPP Communication Recording

The OPP provided the radio communication recording from Sunday, May 7^th, 2017, from 2:04:04 p.m. to 6:20:31 p.m.

At 3:28:38 p.m., WO #2 said a vehicle left the RIDE program. The man failed to provide a breath sample, left, and just ditched it. At 3:28:52, WO #2 requested an ambulance. At 3:29:03, WO #2 confirmed he was on Pioneer Street West.

At 3:30:51 p.m., WO #2 advised that the Complainant had a back injury and needed a backboard. At 3:31:47, WO #2 asked the dispatcher to send the fire department because there were issues getting the door open. At 3:42:45, WO #2 confirmed the ambulance was at the scene.

At 3:42:58 p.m., WO #2 said the Complainant was under arrest for flight from police and impaired operation. At 3:51:26 p.m., WO #2 said the Complainant was out of the vehicle, about to be placed in the ambulance to be transported to hospital.

At 3:54:23 p.m., WO #2 said the injuries appeared minor but the Complainant was going to the hospital. He requested someone to bring the Intoxilyzer (breath screening device) to the hospital.

At 4:05:16 p.m., WO #1 was speaking to the dispatcher. The dispatcher asked if this was an SIU mandated incident. WO #1 said the injuries were minor but the Complainant was being taken to the hospital as a precaution. It was a single vehicle crash and the Complainant did not hit anyone else. The Complainant was talking and walking and had an injury to his face because of the airbag.

Then WO #1 said there was no pursuit. The police officers had the RIDE programme set up and the Complainant approached the RIDE programme quickly. The police officers spoke to the Complainant and smelled alcohol. The police officers asked the Complainant to pull over and while the police officers were talking to the Complainant about the breath demand, the Complainant drove away in his vehicle. He drove around the corner, lost control and ended up in someone’s front yard. The airbags deployed in the Complainant’s vehicle. WO #2 would do the traffic reconstruction and the SO would attend the hospital to get a breath sample from the Complainant. The Complainant was under arrest for impaired driving, dangerous driving, and flight from police.

WO #1 told the dispatcher that the distance from the RIDE program to where the Complainant crashed was about 500 to 600 metres. The dispatcher asked if WO #1 knew the approximate speed the Complainant was going. WO #1 said he would get that information from WO #2 but the police officers would have to estimate because they were on foot and then they got in their vehicles. They went to find out where he crashed.

WO #1 confirmed that the SO was the investigating officer.

The dispatcher said they would contact the Inspector in case it was an SIU mandated incident. WO #1 asked the dispatcher to let him know because if it was an SIU mandated incident, he would hold the scene.

The dispatcher called the Detective Inspector and told him that there was a RIDE programme in Warren. A vehicle approached and the police officers smelled the odour of alcohol. The police officers started to read the breath demand and the man drove away. The Complainant drove about 500 metres and drove his vehicle into a ditch. The airbags deployed and his face was bloody. He was transported to hospital. There was no pursuit.

The Inspector asked if the Complainant sustained serious injuries. The dispatcher said WO #1 advised there were no broken bones. The Inspector directed the dispatcher to have WO #1 contact her when he knew the severity of the injuries.

The dispatcher advised WO #1 that he should contact the Inspector when he became aware of the severity of the injuries.

At 6:08:22 p.m., WO #1 contacted the dispatcher. WO #1 said he was waiting to confirm if the Complainant had any broken bones.

The dispatcher called another Sergeant and advised him that the dispatcher spoke to both the SO and WO #1 and they both said there was no pursuit. The police officers were talking to the Complainant. The Complainant was fumbling and smelled of alcohol and strong perfume. The police officers advised him of the breath demand and asked the Complainant to pull over on the shoulder of the road. The Complainant drove away and by the time the SO and WO #2 got in their police vehicles, he drove into a ditch. The Complainant had facial injuries from the airbag but WO #1 was waiting for a confirmation of broken bones from the hospital.

At 6:20:08 p.m., WO #2 said a vehicle was stopped at the RIDE programme then fled from police. He said he began to follow shortly after the vehicle fled. The Complainant was then transported to the hospital.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the Greater Sudbury Police Service (GSPS) and OPP Sudbury Detachment:

• Computer Aided Dispatch (CAD or Communications Log) for the two Scout Cars involved
• Event Details
• GPS Gate and CAD for the two Scout Cars Involved
• GPS Gate Table for the two Scout Cars Involved
• List of Niche Reports
• MVC Report
• Police Transmission Communication Recording;
• Notes of WO #s 1-3;
• Motor Vehicle Collision Report
• OPP News Release
• OPP Occurrence report (Person)
• Procedure 2.37.8-Suspect Apprehension Pursuits, and
• Supplementary Occurrence report (Person)

The SIU also obtained the medical records of the Complainant.

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 253(1), Criminal Code - Operation while impaired

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equip.m.ent or has the care or control of a motor vehicle, vessel, aircraft or railway equip.m.ent, whether it is in motion or not,

1. while the person’s ability to operate the vehicle, vessel, aircraft or railway equip.m.ent is impaired by alcohol or a drug; or
2. having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood

Section 254(5), Criminal Code - Failure or refusal to comply with demand

254(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

Section 216 (1) Highway Traffic Act of Ontario – Power of Police Officer to Stop Vehicles

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.

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

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

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.

3. (1) A police officer shall notify a dispatcher when the officer initiates a suspect apprehension pursuit

(2) The dispatcher shall notify a communications supervisor or road supervisor, if a supervisor is available, that a suspect apprehension pursuit has been initiated

On May 7^th, 2017 at 3:30 p.m., OPP officers from the Sudbury detachment were operating a Reduce Impaired Driving Everywhere (RIDE) programme on Pioneer Street West in the Town of Markstay-Warren, with two marked police vehicles parked on Pioneer Street West with their emergency lights, but not their roof lighting system, activated. WO #2 and the SO were at the scene stopping motorists and checking for indications of impaired driving and each officer was in police uniform and wearing a safety vest. The Complainant was operating his motor vehicle, a white Mitsubishi, when he was pulled over by WO #2 as part of the RIDE programme. After speaking with the officers and being directed by the officers to pull over to the side of the road in order to provide a breath sample he panicked and fled the scene. The Complainant drove his motor vehicle away from the officers at a high rate of speed for approximately 250 to 500 metres, before he crashed his vehicle. The Complainant sustained non-displaced fractures of the spinous process C4 and C5 and a burst fracture of the T10 vertebral body. A toxicology screen performed at hospital revealed that the Complainant’s blood/alcohol level was 45.5 mmol/L (or the equivalent of 209 mgs of ethyl alcohol per 100 mls of blood, two and one half the amount at which one can legally operate a motor vehicle in Canada).

During the course of this investigation, six civilian witnesses and three police officers were interviewed. Despite the fact that the subject officer did not make himself available for an interview, as was his legal right, with the assistance of the witnesses, along with the GPS data from the police vehicles, the dash cam recording from the Complainant’s motor vehicle, the radio transmission recordings and an examination of the scene, a clear picture of what occurred could be established. There is no dispute as to the facts.

At the time that the Complainant was stopped, WO #2 and the SO were carrying out a RIDE programme checking on the sobriety of motorists, which they were legally authorized to do pursuant to both the Highway Traffic Act and the prevailing jurisprudence. When the Complainant was stopped, the SO made certain observations of him. The observations were consistent with his operating a motor vehicle with alcohol in his body and included an odour of alcohol on his breath, poor motor function, failure to make eye contact, fumbling for his driving documents and approaching the stop check programme at a rate of speed higher than the posted speed limit. As a result, the SO and WO #2 were lawfully authorized to make a demand that the Complainant provide a suitable breath sample for analysis into their roadside instrument. Pursuant to the Criminal Code, the Complainant was legally obliged to comply with this demand and blow into the machine.

Based on the evidence of all witnesses, both civilian and police, who were present, as well as the dash camera recording, the Complainant, after initially pulling over to comply, ultimately panicked and sped off. At that point, the SO and WO #2 had reasonable grounds to stop and investigate the Complainant not only for impaired driving and driving a motor vehicle with over 80 mgs of alcohol in his blood (s. 253), but also for failing to provide a breath sample (s.254(5)) contrary to the Criminal Code and failing to stop for police (s.216) contrary to the Highway Traffic Act.

On all of the facts, there is no dispute that the Complainant crashed his own motor vehicle due to his excessive rate of speed and poor driving and that the SO’s police cruiser never made any contact with the Complainant’s motor vehicle.

It is clear on the evidence that the Complainant decided to attempt to flee from police and in doing so travelled at an excessive rate of speed and entered into a turn in the roadway that he was unable to safely manoeuvre at that speed. While it is clear that the SO entered into his police cruiser to attempt to pursue and stop the Complainant’s motor vehicle, the Complainant almost immediately crashed his motor vehicle after travelling only an estimated 250 to 500 metres and before any police pursuit could really be initiated.

Furthermore, there is no question that the SO was acting lawfully when, having reasonable grounds to believe that the Complainant was committing a criminal offence and having reasonable grounds to believe that if the Complainant was indeed impaired he was a danger to other motorists, he entered his police cruiser and initiated a pursuit. Based on the GPS data, there is no dispute that the SO’s police cruiser at no time attained speeds over 71 km/h in his pursuit of the Complainant, and that that speed was only for a period of less than 20 seconds, and that WO #2’s police cruiser was still stationary at the time that the Complainant crashed his motor vehicle.

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 in 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 at any time he interfered with other traffic, he did not attain excessive rates of speed, the duration of the pursuit was extremely brief, the road conditions were dry and the weather was good.

On this record, I find that the evidence of the SO’s driving does not rise to the level required to constitute ‘a marked departure from the norm’ and I am satisfied that the SO did nothing to exacerbate the Complainant’s reckless driving, that he was acting lawfully when he first stopped the Complainant’s motor vehicle pursuant to the Highway Traffic Act, and that his conduct thereafter fell within the limits of care prescribed by the criminal law.

I further find that the collision was a direct result of the Complainant’s poor judgment and possibly his level of intoxication and that there is no causal connection between the actions of the SO and the subsequent collision. As such, I am satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: March 19, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit