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 sustained by a 54-year-old-man on November 25, 2016 from a motor vehicle collision.

Notification of the SIU

On November 25, 2016, at 1:45 p.m., York Regional Police (YRP) notified the SIU of the serious injuries sustained by the Complainant as a result of a single vehicle collision that occurred two hours prior in Markham.

YRP reported that at about 12:20 p.m. on November 25, 2016, the Complainant drove southbound past a police radar enforcement unit on Ninth Line at a speed of 134 km/h. The Subject Officer (SO) was the radar operator, and turned around and drove after the Complainant who had, by that time, turned onto westbound Elgin Mills Road East. The SO notified his dispatcher of the situation. Realizing that he would not be able to catch up to the speeding vehicle, the SO stopped on the north shoulder of Elgin Mills Road East, just east of Highway 48, for 13 seconds. The SO then continued on Elgin Mills Road East and came across the Complainant’s wrecked vehicle at the intersection of Elgin Mills Road East and Highway 48.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 3

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, videography, sketches and measurements.

Complainant:

54-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

CW #6  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

Subject Officers

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

The Scene

Elgin Mills Road East is a two lane paved asphalt road which permits one lane of eastbound and one lane of westbound vehicular movement. The lanes are delineated with a solid yellow paint mark near the centre of the road. At the approach to Highway 48 there is an additional left turn lane. From the crest of Elgin Mills Road East to a point 161 metres east of Highway 48, Elgin Mills Road East descends 11.9 metres.

From a point 134.5 metres east of the east edge of Highway 48 on Elgin Mills Road East, Elgin Mills Road East curves to the left or south with a 77.3 metre radius. The calculated speed at which any westbound vehicle would enter yaw (critical curve speed) is 83 km/h to 89 km/h.

The posted speed limit on Elgin Mills Road East is 60 km/h but a posted advisory speed sign at the approach to the curve indicates 30 km/h. Black arrows on yellow background signs are positioned along the north edge of the north gravel shoulder to assist westbound motorists in negotiating the left curve.

Highway 48 intersects with Elgin Mills Road East at right angles. It is a two lane paved asphalt road that permits one lane of northbound and one lane of southbound vehicular movement. The lanes are delineated with a solid yellow paint mark near the centre of the road. At the approach to Elgin Mills Road East there is an additional left turn lane and right turn lane which are delineated with a solid white arrow painted on the asphalt and a solid white paint line on the asphalt. The posted speed limit is 80 km/h.

Both roads are bordered by gravel shoulders and ditches in a rural environment. The north side of Elgin Mills Road East possesses rip-rap stone (stone which is approximately 7 to 15 cm in diameter) in the centre. This type of stone is designed to control erosion.

The intersection is controlled with functioning traffic signals, white painted stop bars, white painted pedestrian crosswalks, and pedestrian signals. All corners of the intersection possess artificial lighting but this is a moot issue as the collision occurred in daylight hours. Both roads are in good condition and the sight lines at the intersection are good.

Scene Diagram

Forensic Evidence

A blood screen test undertaken at the hospital one hour and fifteen minutes after the collision determined that the Complainant’s blood was positive for non-prescribed drugs and his blood to alcohol reading was well above the legal driving limit.

Expert Evidence

SIU Collision Reconstructionist Report

At about 12:32 p.m. on November 25, 2016, the SO was operating a 2017 Ford Explorer YRP Unit on Ninth Line. A Ford Focus operated by the Complainant registered a speed of 134 km/h on a radar unit operated by the SO. The SO turned around and pursued the Focus. The weather was cool, skies were clear and the roads were dry.

At the crest of a descending grade approaching Highway 48, the Ford Focus was driven westbound in the eastbound lane of Elgin Mill Road East. At a minimal speed range of 109 km/h to 123 km/h the brakes were applied and straight tire marks were made on the eastbound lane crossing the two westbound lanes then on the north side loose gravel shoulder of Elgin Mills Road East.

The Ford continued westbound on the grassed north embankment of the north ditch then southwest into the centre of the ditch. Without brakes being applied, the front end and front undercarriage came into collision with loose stone and dirt in the centre of the ditch. The stone and dirt were pushed southwest onto the westbound through lane of Elgin Mills Road East and the northbound lane of Highway 48.

The front end of the Ford Focus came to rest after contacting a utility pole on the northeast corner of the intersection. It is unknown precisely how far the police cruiser was behind the Ford during the unfolding of the collision. No evidence was uncovered that indicated the YRP cruiser impacted the Ford Focus.

Video/Audio/Photographic Evidence

In Car Camera (ICC) Video

• On November 25, 2016, at 12:30 p.m., the SO was parked on the east side of Ninth Line, facing north. He was compiling his notes and enforcing speed with a fixed radar unit for southbound traffic. The GPS coordinates at that time and place were latitude (lat) 43.938545 and longitude (long) 79.249548
• The subject vehicle driven by the Complainant entered the radar beam and registered a speed of 134 km/h southbound on Ninth Line in a 70 km/h zone. The SO immediately turned around and drove after the Complainant
• The Complainant turned right at the first intersection, Elgin Mills Road East, to travel westbound. The distance to this point is 601 metres. Elgin Mills Road East is one lane in each direction and governed by a 60 km/h speed. A sign indicating “Caution – Farm Vehicles Using Road” is seen on the westbound shoulder at GPS points 43.933116 and 79.249768 which is 714 metres from the SO’s starting point
• Shortly thereafter, the SO drove over a railway crossing at a speed of 156 km/h. The vehicle driven by the Complainant was seen in the distance but the SO was not shortening the gap between his police vehicle and the Complainant. The distance travelled at that point is 1.24 kilometres
• Approaching the intersection of Elgin Mills Road and Highway 48, the road markings become solid yellow due to the crest of a hill that prevents motorists from seeing any approaching traffic. Overtaking is prohibited
• At 12:31:21 p.m., the Complainant overtook a passenger vehicle (known to be driven by CW #5) and the transport truck ahead of her. The SO had travelled 1.74 kilometres. He had very briefly attained a speed of 171 km/h but began to recede when the vehicle driven by the Complainant was lost from view as it crested the hill leading to Highway 48
• When the SO passed a sign that indicated a hill was ahead, he reduced his speed to 64 km/h. He had driven 2.2 kilometres up to that point
• The SO continued to decelerate, and came to a complete stop at the crest of the hill. He had travelled 2.4 kilometres by then. A sign indicating stop lights ahead was adjacent to the spot at which the SO stopped. The Complainant’s vehicle was not in view
• The SO stopped for 13 seconds and then drove to the scene of the collision, 230 metres ahead, and
• The distance from the SO’s radar location to the scene of the collision was 2.6 kilometres

Communications Recordings

Communications Recording

The SO identified himself by the call sign “Traffic One” and said, “Just to advise you, a vehicle just took off on me. I am not in pursuit.” He then started to identify the direction of travel of the wanted vehicle but paused, and then 23 seconds into his broadcast, notified the dispatcher that the vehicle had crashed. He confirmed the collision and stated that he was at the intersection of Elgin Mills Road East and Highway 48 and required immediate medical response.

Materials obtained from Police Service

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

• Communications recordings
• Motor Vehicle Collision Report
• Notes of WO #1 and WO #2
• Statement of CW #3
• YRP Procedure - Suspect Apprehension Pursuits
• YRP Disclosure Log, and
• ICC video from the SO’s cruiser

During the early afternoon of November 25, 2016, the Complainant was driving a Ford Focus at a very high rate of speed southbound on Ninth Line in Markham. CW #6 was his passenger.

The SO was operating a radar enforcement unit, and the Complainant’s speed registered 134 km/h in a 70km/h zone. The Complainant turned and continued speeding westbound on Elgin Mills Road East. The SO pursued the Complainant, but soon abandoned the pursuit because of other drivers on the road and the Complainant’s increasing speed.

After cresting the hill on Elgin Mills Road East at a high speed, the Complainant lost control of his vehicle, which left the roadway and collided with a hydro pole. Both airbags were activated, and the front windshield was heavily damaged. The Complainant was found unconscious.

An ambulance transported the Complainant to hospital where it was determined that he sustained a closed head injury, severely displaced mandible (jaw) fractures, and a lacerated liver. CW #6 was not seriously injured.

Section 2, O. Reg. 266/10: Suspect Apprehension Pursuits - Initiating or continuing pursuit

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.

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

On November 25, 2016, at approximately 12:30 p.m., the SO was stationary in his police cruiser on the east side of the Ninth Line, facing northbound, in the City of Markham. The SO had his police radar enforcement unit activated and was compiling his notes from previous interactions with motorists, when his unit registered a motor vehicle travelling southbound at a speed of 134 km/h in a 70km/h zone. The SO made a U-turn and attempted to apprehend the vehicle, which ultimately left the roadway and was involved in a single motor vehicle collision. The driver of the motor vehicle, later identified as the Complainant, was transported to hospital where he was placed into a medically induced coma; he was diagnosed with a closed head injury, severely displaced mandible fractures and a lacerated liver. His passenger, CW #6, was not seriously injured.

On all of the evidence, it is without dispute that the Complainant was never aware that he had travelled through, and registered on, the radar unit of the SO or that the SO was 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 high rates of speed and while under the influence of an illegal amount of alcohol and other intoxicating substances, 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 is responsible for the unfortunate consequences. In short, there is no evidence which can in any way be interpreted as establishing any causal connection between the driving of the SO and the injuries to the Complainant.

The evidence of the SO, as confirmed by the ICC, the communications recordings between the SO and the YRP dispatcher and the civilian witnesses, all fully substantiate the fact that the SO was not in a vehicular pursuit at the time of the single motor vehicle collision in which the Complainant was injured, nor had he been in pursuit immediately prior to the collision, having abandoned his efforts to apprehend the Complainant shortly after he initially made his U-turn and pursued the Complainant’s motor vehicle. On all of the physical evidence it is clear that although the SO initially attempted to bring the Complainant’s vehicle to a stop, at no time did he shorten the gap between his own vehicle and that of the Complainant and, as soon as the Complainant overtook and passed two other motor vehicles on the roadway, the SO began to slow, lost sight of the Complainant’s motor vehicle and then pulled over and stopped. It is clear from both the ICC video, as well as the communications recording, that the SO then updated the dispatcher and advised that “a vehicle just took off on me. I am not in pursuit”. From the point where the Complainant registered on the SO’s radar, until the point where the SO pulled over and stopped, a distance of 2.4 kilometres had been covered. The SO’s police cruiser had been stationary for 13 seconds prior to the Complainant’s vehicle leaving the roadway and the collision scene was over a blind hill 230 metres ahead of the location where the SO pulled over and stopped his police vehicle.

On this record, it is established that on November 25, 2016, at approximately 12:32 p.m., the Complainant was operating his motor vehicle at an excessive rate of speed, he was under the influence of alcohol and drugs, his blood/alcohol level was well above the legal limit, and his actions caused his vehicle to careen in the north ditch, over a berm and down a hill, finally colliding with a hydro pole. Furthermore, there is no evidence that the Complainant was aware at any time 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.

Although there is no causal connection between the collision and injuries of the Complainant, it is worthy of note that the SO fully complied with O Reg 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits, in that, within seconds of pursuing the Complainant’s vehicle, he notified the dispatcher that “a vehicle just took off on me” but that he was not in pursuit; he advised the dispatcher as to the location where the vehicle was last seen and kept the dispatcher updated; he determined whether in order to protect public safety, the immediate need to apprehend an individual in the fleeing motor vehicle, or the need to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle, outweighed the risk to public safety that may result from the pursuit (s.2(3)) and he reassessed the determination made under subsection (3) and discontinued the pursuit when the risk to public safety that may result from the pursuit outweighed the risk to public safety that may result if an individual in the fleeing motor vehicle was not immediately apprehended (s.2(4)).

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

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

On a review of all of the evidence, I find that there is no evidence that the driving of the SO created a danger to other users of the roadway or that at any time did he interfere with other traffic; in fact, other than his initial high rate of speed in his attempt to catch up to the Complainant’s vehicle, it does not appear that he contravened any provision of the Highway Traffic Act; additionally the environmental conditions were good and the roads were dry. As such, I find that the evidence of the SO’s driving does not rise to the level of driving required to constitute “a marked departure from the norm” and, as indicated earlier, there is no evidence to support a causal connection between the actions of the SO and the motor vehicle collision caused by the Complainant. In fact, in reviewing the evidence in its entirety, it is clear that not only did the SO respond to the situation in full compliance with the Criminal Code, the Highway Traffic Act and the Ontario Police Services Act, but he behaved at all times professionally and prudently. As such, I find that there is absolutely no basis here for the laying of criminal charges.

Date: October 13, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit