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 28-year-old man during a motor vehicle collision on May 12, 2017.

Notification of the SIU

On May 13, 2017, at 2:05 a.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s vehicle injury.

The TPS reported that on May 12, 2017, at about 11:47 p.m., police officers in a police cruiser saw the Complainant driving a vehicle with no headlights eastbound on McNicoll Avenue from Markham Road. The police officers pulled behind the vehicle and activated their emergency equipment in an effort to pull over the vehicle. The Complainant then accelerated and turned south onto Morningside Avenue. At this time, the police officers were told to disengage and terminate the pursuit which they apparently did. The police officers continued south on Morningside Avenue and several moments later, heard a radio call for a vehicle collision into a residence in the Morningside Avenue and Staines Road area.

The police officers responded to the area of the collision and upon arrival realized the vehicle involved in the collision was the same vehicle they had just tried stopping. The Complainant had fled on foot and after a short foot chase was arrested.

At this time, police officers realized the Complainant was injured and transported him to the hospital where he was diagnosed with a fractured right ankle.

The team

Number of SIU Investigators assigned: 6

Number of SIU Forensic Investigators assigned: 2

Number of SIU Collision Reconstructionists assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, sketches and measurements.

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Not interviewed, but notes received and reviewed

Subject officers

SO Interviewed, and notes received and reviewed.

Shortly before midnight on May 12, 2017, the Complainant was driving a rented Nissan in the area of McNicoll and Morningside Avenues. At the time, the SO and WO #3 were in a marked TPS cruiser, in the parking lot of a plaza on McNicoll Avenue. They noticed the Nissan travelling at a high rate of speed without taillights, as a result of which the SO followed the vehicle and attempted to stop it for Highway Traffic Act (HTA) violations. The Nissan drove off at a high rate of speed, southbound on Morningside Avenue. The SO was not able to maintain sight of the vehicle.

When the Complainant attempted to turn left onto Staines Road from Morningside Avenue at a high rate of speed, he lost control of the Nissan. The vehicle left the roadway, drove through a fence and struck a residence. By the time the officers arrived on scene, the Complainant had gotten out of the Nissan and was located in a neighbouring backyard.

The Complainant was transported to hospital by ambulance and diagnosed with a right distal fibula comminuted fracture (fractured ankle).

The scene

Morningside Avenue travels primarily in an east/west direction with Staines Road intersecting from the north and Finch Avenue intersecting from the south. This intersection is controlled by traffic lighting which were found to be operating correctly. There is street lighting in the area. The roadway pavement was level, dry and in good condition. The pavement markings were visible. There were vehicles at the north-east corner of the intersection.

Vehicle 1

A Nissan was oriented in a northerly direction and in collision with the building. There was extensive damage to the entire vehicle. The airbags were deployed. The tire marks were starting west of the intersection and travelled east, curving to the left and ending in the area of where the Nissan had come to rest against a house.

Vehicle 2

A fully marked police cruiser, a Ford Crown Victoria, equipped with emergency lighting and siren found to be operable at the time of examination, was parked east of the intersection in the westbound lanes of Morningside Avenue. The police cruiser was oriented in a northwest direction. There was no collision damage on the police cruiser.

Summary of the route travelled

The route of the SO’s cruiser began near the intersection of Markham Road and McNicoll Avenue. The SO’s cruiser drove eastbound on McNicoll Avenue and turned south onto Morningside Avenue; then proceeded southbound on Morningside Avenue and continued past Staines Road. The distance travelled measured 2.4 kilometres.

There were no speed signs posted eastbound from McNicoll Avenue to Morningside Avenue. The speed limit southbound onto Morningside Avenue was 60 km/h (speed sign was posted immediately upon entering Morningside Avenue). A 60 km/h speed sign was posted south of Neilson Road.

Scene diagram

Forensic evidence

Summary of the Global Positioning System (GPS) Data

On May 13, 2017, at 11:36:48 p.m., the SO’s cruiser was 0 km/h. It was stopped at the rear of a plaza on McNicoll Avenue.

Between 11:40:18 and 11:40:34 p.m., the speed increased from 101.3 km/h (southbound on Morningside Avenue at Legends Drive, about 900 metres northwest of Staines Road) up to 133 km/h (southbound on Morningside Avenue at Bobolink Avenue, about 357 metres northwest of Staines Road).

Between 11:40:39 and 11:40:52 p.m., the speed dropped from 112 km/h (eastbound on Morningside Avenue, about 175 metres northwest of Staines Road) to 65.9 km/h (eastbound on Morningside Avenue, about 80 metres east of Staines Road).

At 11:41:09 p.m., the SO’s cruiser was travelling at 40.2 km/h (southbound on Morningside Avenue at Old Finch Avenue, about 480 metres southeast of Staines Road).

Expert evidence

SIU Reconstructionist’s Conclusions

On May 12, 2017, at about 11:37 p.m., the Complainant operated a Nissan eastbound on Morningside Avenue at a high rate of speed. The posted speed limit on Morningside Avenue is 60 km/h. The SO was operating a marked TPS cruiser and was in pursuit of the Complainant.

The Complainant approached Staines Road at 126 km/h in the lane which separates the eastbound left turn lane from the eastbound passing lane. Through the intersection, the Complainant continually applied his brakes, slowing down while turning hard to the left, but was still traveling too fast to successfully negotiate the turn.

The Nissan mounted the north sidewalk of Morningside Avenue, travelling northbound through a wooden fence. The vehicle continued another 5.2 metres and at a speed of 45 km/h. The front left corner of the vehicle came into collision with the south side brick facing and natural gas piping of a residence on Morningside Avenue, causing the Nissan to rotate slightly counterclockwise and recoil westbound against a fence before coming to rest.

The SO’s cruiser was driven at an average speed of 97 km/h, including acceleration and deceleration, from McNicoll Avenue to Staines Road on Morningside Avenue, in pursuit of the Nissan. The siren was not activated although the emergency lighting was activated.

The SO’s cruiser was driven eastbound on Morningside Avenue, past the collision scene shortly after the collision occurred.

About five minutes after the collision, the SO’s cruiser was driven back to the scene, travelling westbound on Morningside Avenue. The SO’s cruiser was stopped in the middle of the westbound lanes of Morningside Avenue, just east of the scene.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. The SIU received closed circuit television (CCTV) recordings from a nearby gas station and Tim Hortons, as well as from two Toronto Transit Commission (TTC) buses, and four residences in the area. The TPS also provided in-car camera (ICC) video recordings from the cruiser driven by the SO (WO #3 was his passenger), and the cruiser used by WO #5 and WO #7.

Summary of the TTC video

A TTC bus was travelling northbound on Morningside Avenue and pulled over to the curb lane on the southeast corner of Morningside Avenue and Staines Road.

A vehicle driven by the Complainant is seen travelling at a high rate of speed from northwest to southeast through the intersection, past the stopped bus, onto the sidewalk, and then continues southeast out of camera view.

Summary of the footage from a residence on Polarlights Way

A TTC bus was seen going northbound on Morningside Avenue. A vehicle [believed to be the Nissan involved in the collision] was seen travelling southbound on Morningside Avenue at a high rate of speed, passing a white coloured vehicle. A police cruiser was seen proceeding southbound on Morningside Avenue with the emergency lights activated.

Summary of the Tim Hortons footage

Tim Hortons is situated in a plaza which intersects with Markham Road and McNicoll Avenue. A TPS vehicle [now known to be the SO’s cruiser] was seen entering the drive-thru, the police officer placed an order, and then pulled up to the drive thru window. The police vehicle then drove away, out of view.

Summary of the footage from residences on Flycatcher Avenue

Flycatcher Avenue is a parallel street to Morningside Avenue. This portion of Morningside Avenue runs north/south. The first video shows a vehicle travelling at a high rate of speed followed by a police cruiser, five seconds behind. The second video shows a vehicle travelling at a high rate of speed, followed by a police cruiser, six seconds behind. The third and last video shows a vehicle travelling at a high rate of speed, followed by a police cruiser, seven seconds behind.

Summary of the SO’s ICC footage

May 12, 2017 - 11:38:25 p.m. – 11:41:57 p.m.

At 11:38:25 p.m., the police vehicle camera was activated and the video commenced. The SO’s cruiser was stationary in the parking lot plaza on McNicoll Avenue. There is a stop sign posted for vehicles which exit the parking lot plaza onto McNicoll Avenue.

At 11:38:47 p.m., the Nissan was seen driving eastbound on McNicoll Avenue at a high rate of speed. The headlights on the vehicle appeared to be off.

At 11:38:50 p.m., the SO’s cruiser proceeded out of the parking lot plaza and made a right-hand turn eastbound on McNicoll Avenue. The SO’s cruiser does not come to a stop or slow down for the posted stop sign (the emergency lights and sirens are not activated).

At 11:38:57 p.m., the SO’s cruiser proceeded eastbound on McNicoll Avenue, driving on the solid centre line which separated east/westbound traffic for approximately two seconds.

At 11:38:59 p.m., the SO’s cruiser moved into the left eastbound lane as oncoming westbound traffic approached and then moved to the right eastbound lane as it approached a black SUV in the left eastbound lane.

At 11:39:07 p.m., the SO’s cruiser drove in the right eastbound lane and passed the intersection of Tapscott Road and McNicoll Avenue. The traffic light was green.

At 11:39:23 p.m., the SO’s cruiser approached the Nissan and activated its emergency lights (the sirens were not activated). The SO’s cruiser captured the license plate (transmitted via radio). The Nissan travelled in the right eastbound lane.

At 11:39:43 p.m., all vehicles slowed down as they approached Morningside Avenue. The SO’s cruiser activated its siren for one second. The Nissan continued driving, signaled right, and made a right-hand turn onto Morningside Avenue.

At 11:40:15 p.m., the SO’s cruiser proceeded through the intersection of Neilson Road and Morningside Avenue. The traffic light was green.

May 12, 2017 - 11:46:24 p.m. – 11:47:04 p.m.

At 11:46:24 p.m., the video commenced and depicted the SO’s cruiser driving northeast on Sewells Road. The emergency lights were not activated.

At 11:46:46 p.m., the SO’s cruiser approached the intersection of Sewells Road and Morningside Avenue. The traffic light was red.

At 11:46:55 p.m., emergency lights and audio are activated. The SO’s cruiser proceeded slowly through the intersection while the traffic light remained red. The SO’s cruiser activated its siren for one second while it made a left-hand turn onto Morningside Avenue and proceeded northbound.

At 11:47:03 p.m., the emergency lights were shut off.

Communications recordings

Summary of communications recording

The SO notified the dispatcher that a vehicle with its lights off took off at a high rate of speed, travelling southbound on Morningside Avenue. The SO gave a speed of 130 km/h and the vehicle was last seen at the intersection of Morningside and Old Finch Avenues. The SO informed the dispatcher they were in pursuit of the vehicle for a short period of time and then they terminated the pursuit.

The communications supervisor spoke with the SO over the telephone. The SO said he attempted to conduct a vehicle stop and the vehicle took off. The SO disengaged once he lost sight of the vehicle. The supervisor asked the reason for the pursuit and the SO said it was for HTA offences: no lights and a high rate of speed. The supervisor reminded the SO he could not pursue for HTA offences. The SO said he tried to stop the vehicle, it would not stop and he pursued it. He lost sight of it and he ended the pursuit. The pursuit lasted approximately 20 seconds and the SO activated his emergency equipment.

Materials obtained from Police Service

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

• Automatic Vehicle Location (AVL) Data
• Communications recordings
• Event Details Report
• General Occurrence
• Mobile Data Terminal (MDT) Log
• MDT Narrative Message Report
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6 and WO #7
• Parade Sheet and Parade Sheet Report
• Procedure - Suspect Apprehension Pursuits
• Query Vehicle Report
• Automated Dispatch System (ADS) Summary Sheet - Summary of Conversation
• Supplementary Witness Statements – WO #5
• Supplementary Witness Statements – WO #6
• Training Record (Driving) – the SO
• ICC videos – SO’s cruiser and WO #5’s cruiser, and
• Unit History Report – SO’s cruiser

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.

Sections 219 and 221, Criminal Code - Criminal negligence

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

(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…

(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.

On May 12^th, 2017, at approximately 11:47 p.m., the SO and WO #3 were stationary in their police cruiser parked in the gas station lot on the southeast corner of Markham Road and McNicoll Avenue in the City of Toronto when they observed a motor vehicle, a Nissan, travelling eastbound on McNicoll Avenue at a high rate of speed and without its headlights activated. The SO, the driver of the police cruiser, exited the parking lot and drove eastbound in pursuit of the motor vehicle but did not activate his emergency lights at that time. WO #3 activated the In Car Camera (ICC) system. The SO intended to conduct a traffic stop and investigate the driver of the motor vehicle for the HTA infractions. The SO attempted to apprehend the vehicle, which sped away and ultimately left the roadway and was involved in a single motor vehicle collision into a house. The driver of the motor vehicle, later identified as the Complainant, was transported to hospital where he was diagnosed with a right distal fibula comminuted fracture (ankle fracture).

The Complainant did not allege observing any police vehicles behind him, nor any emergency lights or sirens, prior to the collision, or that any police officer did anything to hurt the Complainant.

The Complainant’s medical records confirm that he had fractured the bones in his ankle. A toxicology screen revealed the Complainant’s blood/alcohol level to be 49 millimoles/litre, or the equivalent of 226 milligrams of ethyl alcohol in 100 millilitres of blood, almost three times the limit at which one can legally operate a motor vehicle in Canada. This reading is not consistent with the Complainant’s self-reported alcohol consumption. The medical records described his blood/alcohol level as “critical”.

Based on the statement of the Complainant, if accepted, it is clear that he was operating the Nissan unaware of the fact that his driving had come to the attention of the police or that the SO was actively making efforts to apprehend his vehicle. 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 excessive rates of speed and while under the influence of an illegal amount of alcohol and that the collision and the serious injuries sustained by the Complainant were 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, on the statement of the Complainant, 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 to the Complainant. And while it may be astonishing to believe that the Complainant was totally oblivious to the presence of police pursuing him, given the activation of both the emergency roof lighting and the siren, it is not beyond the realm of possibility, given the significant state of the Complainant’s intoxication as exhibited both by his very poor driving, his efforts to walk away from the accident scene with a severely fractured ankle and his medically documented blood/alcohol level.

According to the ICC video recording, at 11:38:25 p.m., the police cruiser operated by the SO was stationary in the parking lot on McNicoll Avenue. At 11:38:47 p.m., the Nissan is seen travelling eastbound on McNicoll Avenue at a high rate of speed without its headlights activated. At 11:38:50 p.m., the cruiser exited the parking lot and turned right onto McNicoll Avenue; the lights and its sirens were not activated. At 11:38:57 p.m., the cruiser was driving on the solid centre line between eastbound and westbound traffic for approximately two seconds and then returned to the eastbound lanes of traffic. At 11:39:43 p.m., the cruiser approached the Nissan and activated its emergency lights (but not its siren) and the licence plate was captured and transmitted to the dispatcher. At 11:39:43 p.m., both vehicles slowed as they approached Morningside Avenue and the cruiser activated its siren for one second while the Nissan made a right turn onto Morningside Avenue.

The CCTV video from various premises along the route on Morningside Avenue confirmed that the SO’s cruiser was in pursuit of the Nissan at that time. The CCTV recorded the Nissan travelling along Morningside Avenue at a high rate of speed, followed behind by a police cruiser with its emergency lighting activated, covering a distance of 1.2 kms from McNicoll and Morningside Avenues where the SO had reported the failed vehicle stop attempt and the obvious engagement in a police pursuit.

Between 11:40:18 and 11:40:34 p.m., the AVL data from the SO’s cruiser indicated that the cruiser accelerated from 101.3 km/h to 133 km/h. This was in a posted 60 km/h zone. Between 11:40:39 and 11:40:52 p.m., the AVL data revealed that the SO’s cruiser dropped to 112 km/h about 175 metres northwest of Staines Road and then down to 65.9 km/h after it had passed Staines Road and the Complainant had already left the roadway and collided with the home. At 11:40:43 p.m., the SO is heard on the radio to transmit that a vehicle with its headlights off took off at a high rate of speed travelling southbound on Morningside Avenue. The SO indicated the speed of the vehicle as approximately 130 km/h and that the vehicle was last seen at the intersection of Morningside and Old Finch Avenues.

It is clear from the combination of the ICC video, the AVL data, the CCTV footage, and the communications recordings, that the SO attempted to stop the Nissan at the intersection of McNicoll and Morningside Avenues and continued the pursuit until the area of Morningside and Finch Avenue East/Staines Road, where he lost sight of the vehicle, before he made his first transmission to the dispatcher at 11:40:43 p.m. wherein he advised that they lost sight of the vehicle at Old Finch Road and Morningside Avenue, which was in fact 550 metres past where the Nissan had already left the road and struck the residence.

At 11:41:57 p.m., the ICC system is turned off. When it is reactivated at 11:46:24 p.m., the cruiser is driving northeast on Sewells Road; the emergency lighting is no longer activated. At 11:43:38 p.m., the SO is heard on the radio advising that they had been in pursuit of a vehicle for a short period of time but that they had terminated the pursuit.

I find that all of the physical evidence and data, in combination, reveals that the SO and WO #3 were in fact still in pursuit of the Nissan when it left the roadway. The fact that they were on the other side of the bend in the road, however, prevented them from seeing the car leave the roadway and they continued on in hopes of apprehending the driver. I find support in this conclusion from the transmission by the SO that they had discontinued the pursuit in the area of Old Finch Road and Morningside Avenue, which was well after the Complainant had left the roadway, and the fact that the AVL data revealed that at 11:40:39 p.m. the cruiser began to slow first to 112 km/h and then down to 65.9 km/h only after the first 911 call reporting the collision had already been received at 11:43:05 p.m., well before the SO finally made the call advising that they had been in a pursuit but had lost the vehicle. I find that this is less a matter of the SO voluntarily terminating the pursuit, than it was that there was simply no longer any vehicle to pursue.

The obligations on a police officer engaged in a pursuit are outlined in Ontario Regulation 266/10 of the Ontario Police Services Act (OPSA) entitled Suspect Apprehension Pursuits, as follows:

s.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 ….

(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.

The TPS policy put in place pursuant to the OPSA legislation, reads as follows:

Responsibility for Safe Conduct

The responsibility for the safe conduct of a pursuit rests with the individual police officer, the Communications Operator – Communications Services, the pursuit supervisor and any other authorized person monitoring the pursuit.

The TPS policy also requires the police officer to comply with the following:

Police Officer

2. When a driver of a fleeing motor vehicle refuses to stop and a pursuit is initiated shall
   • immediately advise the Communications Operator of the driver’s refusal
     • the description of the fleeing motor vehicle, speed, location, and direction of travel
     • information on the nature and seriousness of the offence
     • the presence of pedestrians or other traffic
     • road and weather conditions
     • the manner in which the fleeing motor vehicle is being operated
     • any other public safety factors
   • activate the emergency lights and siren, if required
   • activate the In-Car Camera System (ICCS), if equipped

     Note: For the protection of the public and members, police officers shall not adjust the ICCS while actively engaged in apprehending or pursuing a fleeing motor vehicle.

   • compy with any directions given by the pursuit supervisor

Where, as here, the officer initiating the pursuit did not advise the Communications Operator until after they had lost the motor vehicle, which apparently unbeknownst to the involved officers had left the roadway and been involved in a collision, it, of course, cuts out the involvement of “the Communications Operator, the pursuit supervisor and any other authorized person monitoring the pursuit”, since it is clear that no one is monitoring the pursuit.

On the evidence on the whole, I have serious concerns about the behaviour of each of the SO and WO #3 while engaged in a pursuit of the Complainant’s vehicle, in a situation where it is not alleged that the Complainant had just committed a criminal offence nor that a criminal offence was about to be committed, where they had identified the motor vehicle in which the Complainant was driving and their sole purpose was to investigate two HTA offences, that it was believed that this amounted to a situation where it was determined that “in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle … outweighs the risk to public safety that may result from the pursuit”. Nor can I comprehend how an assessment of the situation could have been undertaken with the result being to continue the pursuit of the vehicle in a residential area at more than twice the posted speed limit, rather than to discontinue the pursuit. [1] It was very fortunate that, at that time of night, there were no pedestrians in the area and none of the residents were in their yard, or the outcome of this matter would have been much worse, if not fatal.

Having said all of that, however, a failure to comply with the OPSA or the TPS policy does not equate with reasonable grounds to believe that a criminal offence has been committed.

Ultimately, the question to be determined is whether or not there are reasonable grounds to believe that the SO committed a criminal offence while in pursuit of the Complainant’s motor vehicle, and specifically, whether or not the driving rose to the level of being dangerous and therefore in contravention of s.249(1) of the Criminal Code and did thereby cause bodily harm contrary to s.249(3), or if it amounted to criminal negligence contrary to section 219 of the Criminal Code and did thereby cause bodily harm contrary to s.221.

In the decision of the Supreme Court of Canada in R. v. Beatty, [2008] 1 S.C.R. 49, 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”; while the offence under s.221 requires “a marked and substantial departure from the standard of a reasonable driver in circumstances” where the accused “showed a reckless disregard for the lives and safety of others” (R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.)).

On a review of all of the evidence, it is clear that the SO was travelling at excessive rates of speed when pursuing the Complainant’s motor vehicle including, on one occasion, driving on the solid centre line which separated the eastbound and the westbound lanes of traffic. I find, however, that there is no evidence that his driving at this time of night created a danger to other users of the roadway or that at any time he interfered with other traffic; apparently the environmental conditions were good and the roads were dry. Furthermore, if the statement of the Complainant is accepted, it is clear that the excessive rate of speed of the SO’s cruiser did not appear to exacerbate the Complainant’s pattern of driving, as he was totally unaware that the police were even pursuing him.

On this record, it is established that on May 12^th, 2017, at approximately 11:38 p.m., the Complainant was operating a motor vehicle at an excessive rate of speed, he was under the influence of alcohol, his blood/alcohol level was almost three times the legal limit and he lost control of his vehicle and left the roadway, went through a fence and struck a residence. Furthermore, the Complainant does not indicate any awareness 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 as the SO’s presence had no influence whatsoever on the Complainant’s driving.

I find on this evidence that the driving of the SO in his pursuit and attempt to apprehend the Complainant does not rise to the level of driving required to constitute “a marked departure from the norm” and even less so “a marked and substantial departure from the norm” and I am unable to establish that there was a causal connection between the actions of the pursuing officers and the motor vehicle collision that caused the Complainant’s injury. As such, although the SO was clearly in breach of the regulations requiring him to immediately notify the Communications Operator of the vehicle’s failure to stop and keep them informed, and for failing to have his siren continually activated during the pursuit, I find that there is insufficient evidence to form reasonable grounds to believe that a criminal offence has been committed and no basis for proceeding with charges in this case.

Date: January 9, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Given that it is the responsibility of each of these officers to continually reassess the situation and “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”. [Back to text]