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 33-year-old man on February 16, 2017 during a motor vehicle collision.

Notification of the SIU

On February 16, 2017 at 8:04 p.m., the Toronto Police Service (TPS) notified the SIU of a vehicle injury, which had occurred at 3:37 p.m. that day.

TPS reported that two TPS police officers from the Community Response Unit stopped a vehicle, which had two occupants, in Toronto. The police officers returned to their cruiser, to check out the occupants and the vehicle sped away. At the intersection of Burnhamthorpe Road and Dundas Street West, the vehicle was involved in a collision with a second vehicle. The driver of the second vehicle was taken to the hospital, where he was diagnosed with a fractured clavicle.

The Team

Number of SIU Investigators assigned: 5

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

33-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

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

Subject officers

SO Interviewed, and notes received and reviewed.

During the middle of the afternoon on February 16, 2017, the SO and WO #1 were asked by WO #6 and SO #7 of YRP to stop a silver Jeep and identify the driver.

Shortly afterwards, the SO and WO #1 located the silver Jeep and, using the cruiser’s emergency equipment, stopped the Jeep northbound on Islington Avenue, north of Aberfoyle Crescent. Both police officers approached the vehicle on foot and the SO spoke with CW #1, who was the driver, and asked for identification. Instead, CW #1 placed the vehicle in drive and drove off at a high rate of speed.

The SO and WO #1 returned to their cruiser and WO #1 broadcast that the Jeep had taken off at a high rate of speed and they were following the Jeep. Neither officer indicated, however, that they were in a police pursuit.

The Jeep turned right onto Cordova Avenue from Islington with the police cruiser about nine car lengths behind, entered the intersection of Cordova Avenue and Dundas Street West on a red light and collided into the front left driver’s side of a Toyota minivan, which was westbound on Dundas Street West. The Jeep then collided into the passenger side of a Pontiac, which was southbound on Burnhamthorpe Road, and came to rest northbound in the southbound lane of Burnhamthorpe Road with its passenger side up against the passenger side of the Pontiac. CW #1 exited the Jeep and ran northbound on Burnhamthorpe Road, where he was eventually arrested by WO #1. The passenger in the Jeep fled the scene on foot.

The Complainant, who was the driver of the Toyota minivan, was injured and transported by ambulance to the hospital. An x-ray determined that the Complainant had sustained an oblique fracture through the left distal clavicle.

The scene

On February 16, 2017 at 8:35 p.m., the SIU Forensic Investigator (FI) attended the scene, which was located on Dundas Street West, at the intersection of Burnhamthorpe Road and Cordova Avenue.

Dundas Street West has two lanes in each direction and generally runs in an east/west direction, with a marked left turn lane in each direction. The roadway was paved with road markings present. Burnhamthorpe Road runs north from Dundas Street West. There are two lanes in each direction with a left turn lane for southbound traffic turning left (eastbound) onto Dundas Street West. The posted speed limit is 50 km/h. Cordova Avenue runs south from Dundas Street West. There are two lanes in each direction with a left turn lane for northbound traffic turning left (westbound) onto Dundas Street West. The roadway is paved with road markings present. The posted speed limit is 40 km/h. The intersection was controlled with overhead traffic signals that appeared to be functioning properly and the weather was cool and clear and the roadways were dry.

The TPS cruiser involved in this incident had been removed from the scene. There were three vehicles involved in this collision, which are as follows:

Vehicle 1: Toyota mini-van, silver in color. This vehicle was orientated in a northeast direction across the two northbound lanes of Burnhamthorpe Road and north of the intersection. Tire marks leading in a southwest direction from the stopped van to the eastbound lane of Dundas Street West indicated that this vehicle was travelling westbound on Dundas Street West, prior to the collision. The van had extensive collision damage to the left front and rear.

Vehicle 2: Pontiac hatchback, silver in color. This vehicle was orientated in a southerly direction in the southbound left turn lane of Burnhamthorpe Road and north of the intersection. There was minor collision damage to the right side of this vehicle.

Vehicle 3: Jeep, grey in color. This vehicle was orientated in a northerly direction in the southbound center lane of Burnhamthorpe Road and was in collision with Vehicle 2 and was north of the intersection. There was extensive collision damage to the front right and right rear of this vehicle. The 4-way signal flashers were on and the rear tailgate window was open. The driver’s side window was down approximately ¾ of the way. Both the driver’s and front right passenger air bags had deployed. Gouge marks were located south of this vehicle on the roadway. The scene was photographed and measurements were collected for a scene drawing.

On February 17, 2017 at 1:55 a.m., the SIU FI attended the TPS division to examine the TPS cruiser involved, which was a Ford Crown Victoria. This vehicle was a marked police cruiser displaying the graphics as designed by the TPS. The police cruiser was equipped with on-board video equipment and the mileage was recorded as 77, 660.0 kilometres. The police vehicle was also equipped with emergency lighting and siren, but they could not be checked to see if they were functional, because the activation of the lights could ruin the in-car camera (ICC) video recording. The police cruiser had minor collision damage to the front left corner of the police vehicle and it was unknown if the damage could be attributed to this collision. The TPS cruiser was photographed.

Scene diagram

Physical evidence

Summary of Automatic Vehicle Location (AVL) report for the SO’s TPS cruiser

The traffic stop at Aberfoyle Avenue and Islington Avenue was about to be conducted at 3:37:19 p.m. and the involved police cruiser was travelling at 13 km/h. The Jeep took off and the police cruiser followed northbound on Islington Avenue. At 3:39:02 p.m., the police cruiser was travelling at 87 km/h. At 3:39:07 p.m., the police cruiser continued northbound on Islington Avenue and it was travelling at 76 km/h. This was just before it turned right on Cordova Avenue. At 3:39:34 p.m., the police cruiser continued northwest on Cordova Avenue towards Burnhamthorpe Road at 87 km/h. The police cruiser had passed Islington Junior Middle School, at this time. At 3:39:41 p.m., the police cruiser travelled northbound on Cordova Avenue at 64 km/h and it approached the intersection of Dundas Street West. At 3:39:53 p.m., the police cruiser had driven through the intersection and the scene of the collision and was travelling at 64 km/h northbound on Burnhamthorpe Road.

Two GPS data points were analyzed to determine, assuming a constant velocity, the average speed of the police cruiser as it travelled northbound on Cordova Avenue in front of Islington Junior Middle School. The posted speed limit was 40 km/h. The speed of the police cruiser was analyzed at 71 km/h, as shown below.

Expert evidence

Collision investigation summary

On Thursday, February 16, 2017, at 10:15 p.m., an SIU Collision Reconstructionist attended the scene of a motor vehicle collision at the intersection of Burnhamthorpe Road and Dundas Street West in Toronto. The collision involved three vehicles, which included a Jeep, a Toyota, and a Pontiac. Information was received that the Jeep had fled from a police traffic stop, which had occurred to the south, prior to the collision. The driver of the Toyota had sustained a serious injury.

The intersection was controlled by a traffic light which appeared to be functioning properly. Dundas Street West ran in an east/west direction and Burnhamthorpe Road intersected on the north side, and Cordova Avenue intersected on the south side. Tire marks in the intersection were consistent with the area of impact between the Jeep and the Toyota and the area of impact was in line with the northbound lanes of Burnhamthorpe Road and the westbound lanes of Dundas Street West. This was consistent with the direction of travel of the Jeep and the Toyota, which had collided in the intersection. The physical evidence at the scene was consistent with the Jeep travelling northbound on Cordova Avenue and having entering the intersection.

The Toyota was travelling westbound on Dundas Street West and had entered the intersection. The front right corner of the Jeep struck the left front corner of the Toyota. The Toyota rotated clockwise and came to a stop in the northbound lanes on the north side of the intersection. The Jeep veered into the southbound lanes and came to rest against the passenger side of the Pontiac, which was stopped facing southbound and waiting at a red light.

The Air Bag Control Module of the Toyota generated a report which indicated the impact to the Toyota was from the side and from the front to the rear. The Crash Data Retrieval (CDR) report was consistent with the Toyota having been completely stopped about five seconds prior to the collision and the driver having accelerated from a stop. The driver then applied his brakes at the last second. The Toyota had accelerated to 23 km/h when the collision occurred. Both occupants of the Toyota were seat belted. The Jeep was not supported by CDR technology; therefore the speed of the Jeep could not be calculated.

The police cruiser was a Ford Crown Victoria Police Interceptor. There were 77, 660 kilometres on the odometer and the police cruiser had minor damage on the front left corner. The damage to the police cruiser was consistent with a minor collision which was described as having occurred in a nearby parking lot after the collision at Dundas Street West and Burnhamthorpe Road.

Information provided by the occupants of the Pontiac indicated that the traffic light was red for north/south Burnhamthorpe/Cordova, and green for Dundas Street east/west, when the Jeep entered the intersection. This was consistent with the physical evidence found at the scene.

In reviewing the scene investigation, the interviews, and the analysis of surveillance video, there was nothing to suggest that the TPS cruiser involved in the pursuit of the Jeep was involved, directly or indirectly, in the collision at the intersection of Dundas Street West and Burnhamthorpe Road. The evidence also showed that the TPS cruiser was never involved in a collision with the Jeep at any time during the pursuit.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and received a surveillance video from a building on Cordova Avenue, and the ICC video recording from the SO and WO #3’s cruiser. CW #4 also provided photographs of the accident scene.

Surveillance video report for building on Cordova Avenue

Two surveillance cameras were located on the west side of the building on Cordova Avenue and they partially captured the street. Surveillance video recorded around the time of the collision showed the Jeep and the police cruiser, as they passed the building. The time stamp on the recording was about two minutes fast. The vehicles were seen moving right to left on the screen, travelling southbound on Cordova Avenue, after having turned right from Islington Avenue. The vehicles went around the right hand bend to travel west and over top of Islington Avenue and eventually northbound towards the collision scene. The police vehicle was about seven seconds behind the Jeep. The rate of speed of the two vehicles could not be determined due to the angle of the cameras and the limited view of the street.

ICC video footage

TPS provided a copy of an ICC video recording related to the SO and WO #3’s police cruiser. The video was recorded on February 16, 2017, and commenced 3:28:54 p.m. The SO was driving, and WO #1 was the passenger. The following is a summary of the video:

• At 3:28:54 p.m., the police cruiser is stopped at a red light on Horner Avenue at the intersection of Kipling Avenue, then at 3:29:25 p.m., while still facing a red light, the police cruiser’s emergency lights are activated and the cruiser travels through the red light and travels east and north on Horner Avenue, the emergency lights are de-activated once the cruiser clears the intersection
• At 3:30:38 p.m., the police cruiser arrives at the intersection of Horner Avenue and Evans Avenue, the cruiser makes a right hand turn and travels eastbound on Evans Avenue
• At 3:30:44 p.m., the police cruiser’s emergency lights are activated
• At 3:31:05 p.m., the police cruiser arrives at the intersection of Evans Avenue and Islington Avenue and turns left and travels northbound on Islington Avenue
• At 3:31:38 p.m., the police cruiser becomes tied up in northbound traffic at the intersection of Islington Avenue and The Queensway
• At 3:32:27 p.m., the police cruiser’s siren is activated while the cruiser is in the vicinity of Islington Avenue and Stanmills Road
• At 3:32:53 p.m., the police cruiser travels northbound on Islington Avenue and travels through the Jutland Road intersection
• At 3:33:15 p.m., the police cruiser travels through the Norseman Road intersection
• At 3:33:18 p.m., the police cruiser begins to travel northbound on Islington Avenue in the center turn lane, and at 3:33:32 p.m. the cruiser returns to the northbound lane
• At 3:34:05 p.m., the police cruiser stops at a red light at the Bloor Street intersection and de-activates the emergency lights
• At 3:34:27 p.m., the police cruiser turned left onto Bloor Street and begins to travel westbound, at 3:34:33 p.m. the cruiser’s emergency lights are activated and at 3:34:41 p.m., the cruiser performs a U-turn and drives eastbound on Bloor Street
• At 3:34:48 p.m., the police cruiser drives into the left hand turn lane and comes to a stop behind a silver colored Jeep, the cruiser de-activates its emergency lights
• At 3:37:02 p.m., the police cruiser turns left and follows the Jeep northbound on Islington Avenue
• At 3:37:07 p.m., the police cruiser activates its emergency lights and siren and at 3:37:24 p.m., the Jeep pulls to the right and stops on the curb
• At 3:37:39 p.m., the driver’s and passenger’s microphones activate and the SO approaches the driver’s side of the Jeep while WO #1 approaches the passenger side. The SO begins a conversation with the Jeep’s driver, later identified as CW #1
• At 3:38:36 p.m., while the SO is still engaged with CW #1, CW #1 drives off while accelerating quickly
• At 3:38:50 p.m., the SO and WO #1 re-enter the police cruiser and begin driving northbound on Islington Avenue in the same directions as CW #1
• At 3:39:09 p.m., the police cruiser turns right off of Islington Avenue and onto Cordova Avenue, the cruiser is approximately 150 metres behind the Jeep
• At 3:39:36 p.m., the police cruiser is approximately 125 metres away from the intersection of Dundas Street West when the jeep enters the intersection on a red light and collides with a mini-van, and
• At 3:39:46 p.m., the police cruiser enters the Cordova Avenue and Dundas Street west intersection on a red light, CW #1 is seen exiting his vehicle and running away north bound on Burnhamthorpe Road

Communications recordings

Communications summary

• 3:39:37 p.m., WO #1 advised that a vehicle had taken off from them. [A description of the driver and passenger was provided.] The dispatcher asked for their location
• 3:39:38 p.m., at the request of the dispatcher, WO #1 advised that they were following the vehicle, a silver Jeep
• 3:39:55 p.m., WO #1 advised the Jeep had crashed into a car and there was a male [provides a description of the male] running from the Jeep. The dispatcher again asked for their location. GPS showed that they had been doing a vehicle stop at Aberfoyle Crescent, and
• 3:40:33 p.m., WO #1 advised dispatch that they had one in custody. The male police officer sounded breathless and indicated that the location of the collision was Burnhamthorpe Road and Dundas Street West. He asked for an ambulance

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from TPS and York Regional Police (YRP):

• Communications recordings
• ICC for the SO’s cruiser
• TPS Division Sign-In Sheet
• AVL Data Table
• Event Details Report
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6 and WO #7
• Parade Sheet Report
• Communications recordings - Summary of Conversation
• TPS Suspect Apprehension Pursuit Policy, and
• Unit History Report

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&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.

On February 16, 2017, the SO, while on duty operating a marked TPS cruiser with his escort, WO #1, was requested by WO #6 and WO #7 of YRP to stop and ascertain the identity of the driver of a silver Jeep. According to WO #6 and WO #7, the driver of the Jeep had been involved in a drug transaction with an undercover YRP officer. WO #1, who provided a statement to SIU investigators, was not aware of the reason for the request to stop the Jeep. The SO was aware that the YRP had requested that a TPS officer conduct a traffic stop on a vehicle to identify the driver and passenger of the vehicle. He was not given much detail as to why the YRP wanted the vehicle stopped or the reason to identify the occupants.

According to the SO and WO #1, and confirmed by the ICC video, at 3:37:26 p.m., the SO and WO #1 stopped the Jeep and both police officers approached the vehicle, the SO on the driver’s side and WO #1 on the passenger side; the Jeep stopped when the SO activated the emergency roof lights and siren on his cruiser. Once at the Jeep, the SO is heard to ask the driver “were you involved in a road rage incident?” When the driver, CW #1, denies that he was, the SO goes on to explain that he had been asked to stop a silver Jeep for that purpose, and then requested the driver produce his documents and he could then be on his way. The Jeep is then seen to start the ignition and speed off while the SO and WO #1 are still standing at the driver’s and passenger’s windows respectively; both police officers then return to their police cruiser and at 3:38:49 p.m., the cruiser is seen to follow in the direction of the Jeep. As a result of the activated microphones inside the police cruiser, when the cruiser turns right onto another street, conversation is overheard that this is the direction in which the police officers observed the Jeep turn. At 3:39:15 p.m., WO #1 is heard to advise the dispatcher “We’ve got a silver Jeep take off on us”, but when the dispatcher asks “Are you following?”, WO #1 initially says “no, no”, but then the SO is heard to say “We are” and then WO #1 advises the dispatcher that they are following. At 3:39:36 p.m., the dispatcher requests their location, but both police officers are only heard to utter various expletives and there is no response as to their location. The next transmission from the police cruiser of the SO and WO #1 is at 3:39:40 p.m., when WO #1 is heard to say “The vehicle just crashed into a car”. At this point, rather than stopping at the collision scene to assist, the SO is seen to drive through the intersection in pursuit of the driver of the Jeep. The dispatcher is again heard to ask “What’s your location?” to which WO #1 replies “At Dundas, male running”. The police cruiser is then stopped and it appears clear from the audio that both police officers are pursuing the driver on foot and do not fully identify their location to the dispatcher until after he has been apprehended.

The surveillance video footage from a building on Cordova Avenue confirmed that at the time of the collision, the cruiser was travelling seven seconds behind the Jeep.

The AVL data from the police cruiser confirmed that it travelled at speeds of 87 km/h, then slowed to 76 km/h and then back to 87 km/h prior to the first transmission to dispatch in which WO #1 advised that a vehicle had just taken off from them but that they were not following. Immediately following this transmission, they slowed to 64 km/h. As a result of the analysis of the AVL data, it was determined that the police cruiser had been travelling at a speed of 71 km/h when it passed through a school zone, which had a posted speed limit of 40km/h.

All civilian motorists in the vehicles involved in the collision, or who were present at the intersection of Dundas Street West and Burnhamthorpe Road/Cordova Avenue at the time of the collision, who had a recollection of the incident, confirmed that the Jeep being operated by CW #1 entered the intersection against a red light and was at fault for the collisions that ensued.

On a review of all of the evidence, I have no difficulty in concluding that the SO and WO #1 were involved in a police pursuit with CW #1’s vehicle and were in breach of the Ontario Police Service Act (OPSA) legislation, as well as the companion TPS Regulation entitled “Suspect Apprehension Pursuit” for the following reasons:

Pursuant to Ontario Regulation 266/10 of the OPSA entitled Suspect Apprehension Pursuits,

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. (emphasis added)

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.

Where, as here, the officer initiating the pursuit never advised the Communications Operator as such, 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.

From the ICC video footage from the SO’s police cruiser, as well as the AVL data, it is clear that the SO pursued CW #1’s vehicle with lights and sirens activated at high rates of speed up to 87 km/h in areas where the speed limit was 50 km/h and drove through a school zone at a speed of 71 km/h in a posted 40 km/h zone; on this evidence, it is clear that the SO was pursuing the vehicle. Although WO #1, the passenger in the SO’s vehicle, initially advised the dispatcher that a vehicle had just taken off from them, he denied that they were following the vehicle when first asked by the dispatcher but then admitted that they were following when prompted by the SO.

On this evidence, it is clear that both the SO, the driver, and WO #1, who was on the radio with the dispatcher while they were in active pursuit of CW #1’s motor vehicle, were in breach of the OPSA and the TPS policy in that neither chose to notify the Communications Operator that they were in active pursuit, despite the fact that they were pursuing CW #1’s motor vehicle at significant rates of speed up to 87 km/h in a 50 km/h zone and 71 km/h in a 40 km/h school zone. Additionally, at no time did either the SO or WO #1 keep the dispatcher informed of their location or the details of the fleeing motor vehicle, until after they had exited their vehicle and pursued and arrested CW #1 on foot.

In WO #1’s transmission following the failed attempt to identify the driver of CW #1’s vehicle, he indicated that the silver Jeep had just “taken off” from them and that they were following, at no time did he indicate that they were pursuing the motor vehicle. I find that from this point forward, it is clear both from the AVL data as well as the ICC video from the police cruiser, that the SO was in active pursuit up until the point in time when CW #1’s motor vehicle collided with the Complainant’s motor vehicle and then with CW #3’s vehicle before it came to a crashing halt. During that time, neither police officer involved contacted the communications centre to advise that he was involved in a pursuit. Each officer had an obligation to report to the dispatcher that he was engaged in a pursuit as soon as it was initiated and for WO #1 to say that they were simply following at a speed of up to 87 km/hr, but not mention that they were in a pursuit, is to distort the meaning of the legislation. While the SO may have been busy driving at high rates of speed while pursuing the Jeep, he had the advantage of the presence of WO #1 in the vehicle with him and therefore was not in any way impeded in advising dispatch of the pursuit. I cannot imagine any reasonable person believing that apprehending a motor vehicle, in order to identify the driver for reasons not specified, would have outweighed the risk to public safety of continuing to pursue a motor vehicle at the speeds which these police officers did, especially in light of the fact that it was the end of the school day in a busy city when it would have been expected that both vehicular and pedestrian traffic would have been present. I further note that despite the speeds at which the SO operated his police cruiser behind the Jeep, at the time that the Jeep accelerated away from them, there did not appear to be any rush as both police officers are seen to walk casually back to their cruiser and some 14 seconds pass before they drive off in pursuit. During this time frame, there was ample time to notify the dispatcher that the Jeep had taken off on them and that they were going to pursue.

The words “pursuit” or “I am following but not in pursuit” are not magical words that somehow transform what is obviously a pursuit into something else which somehow avoids the obligations on police pursuant to the Suspect Apprehension Pursuits legislation. Pursuant to this legislation, “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”. Although WO #1 claimed that they were not in pursuit, I can see no reason to chase a vehicle at 87 km/hr on a busy city street during rush hour on a weekday for any other purpose than to attempt to stop it. When WO #1 finally admitted to the dispatcher that they were following the Jeep, those words should have been followed up with the words “We are now in pursuit and travelling at 87 km/hr”, in order that the communication sergeant would have been in a position to make the decision as to whether or not the pursuit should have been terminated. And rather than stand mute, when WO #1 advised the dispatcher that they were following the Jeep, the SO individually had an obligation to advise that they were, in fact, in an active pursuit.

On the evidence on the whole, I have concerns about the failure of both of the police officers to advise dispatch that they were engaged in the pursuit of CW #1’s vehicle, in a situation where it is not alleged that CW #1 had just committed a criminal offence nor that a criminal offence was about to be committed, where YRP had already identified the motor vehicle in which CW #1 was driving, where there is no evidence that the officers knew why the YRP wanted the vehicle stopped and where their sole purpose was to identify the driver. I find it difficult to imagine that two different police officers 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 fathom how the responsibility of each of these officers to 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” could have been undertaken with the result being to continue the pursuit rather than to terminate it.

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. The question to be determined is whether or not there are reasonable grounds to believe that the SO committed a criminal offence when he engaged in the pursuit of CW #1, 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 s.221 of the Criminal Code and did thereby cause bodily harm.

The decision of the Supreme Court of Canada in R. v. Beatty, [2008] 1 S.C.R. 49, indicates that s.249 requires that the driving be dangerous to the public, having regard to “all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place” and the driving must be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”; 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 police officers were travelling at unnecessary rates of speed when pursuing CW #1’s motor vehicle (particularly as they were going by a school zone). I find, however, that there is no evidence that the driving created a danger to other users of the roadway or that at any time they interfered with other traffic, in that other traffic, fortunately, pulled over to allow the police officers to pass; additionally, the environmental conditions were good and the roads were dry. Furthermore, while the SO’s rate of speed in his pursuit of CW #1’s motor vehicle may have initially exacerbated CW #1’s pattern of driving, it is clear on the evidence of CW #1 himself that he lost sight of the police cruiser sometime prior to the collision and yet continued to drive at those excessive speeds and eventually disobeyed a red light, entering the intersection unlawfully and causing the collisions that followed. On this evidence, I find that CW #1 unfortunately chose to try to outrun police and in doing so, he fled at an excessive rate of speed and carried out dangerous maneuvers with no regard for other people using the road. On all of the evidence, CW #1 chose to drive at speeds which either did not allow him to obey traffic signals, or he wantonly disregarded those signals, and collided first with the Complainant’s motor vehicle and then with the vehicle of CW #3. On this evidence, it is clear that CW #1 made the conscious decision to drive recklessly and at excessive rates of speed in order to evade police.

I find on this evidence that the driving of the SO, while he was involved in the pursuit and attempt to apprehend CW #1, 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 police officers and the motor vehicle collision that caused the Complainant’s injury. As such, 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: November 21, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit