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 42-year­ old woman as a result of a motor vehicle collision that occurred on June 8, 2016, involving Toronto Police Service (TPS).

Notification of the SIU

On June 8, 2016, at 9:00 p.m., TPS reported the following:

On June 8, 2016, TPS police officers from the Toronto Anti-Violence Intervention Strategy (TAVIS) attempted to stop a vehicle. An unmarked police TAVIS vehicle was behind the vehicle and a marked TAVIS police vehicle was in front. The driver, CW #3, maneuvered the vehicle out from between the two TAVIS police vehicles and drove off. The TAVIS police officers advised the dispatcher that they lost sight of the vehicle CW #3 was driving but they were later alerted by civilian witnesses of a motor vehicle collision (MVC) at the intersection of Albion Road and Elmhurst Drive. When the police officers arrived at the scene, they noticed that the vehicle CW #3 was driving was involved in the MVC.

CW #3 fled the scene on foot. He was later located by a K9 police officer and he was subsequently taken to 23 Division. CW #3 was not seriously injured.

The Complainant, who was the driver of the vehicle that was struck by the vehicle CW #3 was driving, was taken to the hospital and she was diagnosed with a fractured right ankle.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

Number of SIU Collision Reconstructionists assigned: 1

SIU Forensic Investigators responded to the scene and conducted vehicle examinations. They documented the relevant scenes associated with the incident by way of notes and photography.

Complainant:

42-year-old female 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 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed.

The Scene

The collision between the black SUV being driven by CW #3 and the Complainant’s van occurred at the southeast corner of Elmhurst Drive and Albion Road.

Albion Road was a four lane paved asphalt roadway with a centre left turn lane and it travelled north south where it intersected with Elmhurst Drive. The speed limit was 60 km/h. North of the collision scene, Albion Road had a slight incline.

Elmhurst Drive was a two lane paved asphalt road that travelled west from Albion Road. Elmhurst Drive intersected with Albion Road in a "T" fashion.

SIU Reconstructionist Investigation Results (Summary):

The road surface was dry at the time of the collision and there were no pre-impact tire marks found. There was a tire scrub mark found in the area of impact that was consistent with the front left tire of the Complainant’s vehicle when it was struck by the black SUV;

The black SUV was located on the southeast corner sidewalk of Elmhurst Drive and Albion

Road and it had collided into a bus shelter. The SUV had heavy front end damage;

The Complainant’s van was in the north curb lane of Albion Road but it was facing south. There was heavy front end damage to the Complainant’s van;

The SO and WO #1’s unmarked police van was located in the intersection of Albion Road and Elmhurst Drive and it was facing south. There was no visible damage to the vehicle; and

WO #3 and WO #2’s marked cruiser was also in the intersection of Albion Road and

Elmhurst Drive and it was facing south.

Scene Diagram

Expert Evidence

SIU Reconstructionist Conclusions:

Based on the reconstruction evidence, the SO, WO #3, WO #5 and WO #7’s police vehicles were not involved either directly or indirectly with the collision between the Complainant’s vehicle and the black SUV.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and located multiple videos.

Video Footage Summary (Nearby Church):

• At 5:37:27 p.m., a black SUV [now known to be driven by CW #3] travelled southbound in the southbound left turn lane on Albion Road. It appeared that the black SUV was travelling at a high rate of speed. CW #3 drove past several other vehicles that were also travelling southbound on Albion Road. As CW #3 travelled towards the intersection of Albion Road and Elmhurst Drive, he crossed over onto the northbound lanes without slowing down. The collision occurred outside of camera view, and
• At 5:38:02 p.m., three marked cruisers [now known to have been driven by WO #3, WO #7 and WO #5] arrived at the intersection of Elmhurst Drive and Albion Road and soon after, a grey van [now known to have been driven by the SO] arrived

Video Footage Summary (Nearby Convenience Store):

• At 5:37:13 p.m., a black SUV [now known to have been driven by CW #3] travelled southbound in the northbound lanes on Albion Road and drove towards the intersection of Albion Road and Elmhurst Drive. The black SUV collided with a van [now known to have been driven by the Complainant]
• At 5:37:26 p.m., CW #3 exited the black SUV from the driver’s side, ran around the rear of the SUV and ran southbound on Albion Road, and
• At 5:38:01 p.m., police officers walked towards that intersection and approached the black SUV

Communications Recordings

Radio Communications Summary (Between 5:34 p.m. and 5:37 p.m.):

CW #3 was driving up a hill and he was approaching a stop sign at Barker Avenue and Riverdale Drive;

• WO #1 broadcasted over the radio requesting assistance at Islington Avenue from Albion Road because he and the SO were following a black SUV. The vehicle of interest report indicated that the driver of the vehicle [now known to be CW #3] was wanted
• WO #4 and WO #5 acknowledged the request
• WO #2 and WO #3 acknowledged the request
• WO #1 broadcasted that CW #3 had turned left (westbound} onto Barker Avenue
• WO #4 and WO #5 advised that they were behind WO #1 and the SO
• WO #1 announced that CW #3 was right in front of WO #2 and WO #3’s cruiser and that CW #3 had just "taken off" from him and the SO
• WO #1 advised that CW #3 continued driving northbound on Barker Avenue and turned southeast onto Albion Road. WO #1 advised that he and the SO were going to follow CW #3
• WO #6 asked if the police officers were pursuing CW #3’s vehicle. WO #1 replied by saying that he and the SO were not pursuing the Complainant’s vehicle. Sirens from an unidentified cruiser could be heard in the background
• WO #1 explained that CW #3 became aware that he and the SO were following him and that CW #3 "took off" from them. CW #3 went around WO #2 and WO #3’s cruiser
• An unidentified police officer asked WO #1 if he had CW #3’s vehicle in sight, but there was no response. A few seconds later, WO #2 announced that CW #3 had "crashed", and
• At approximately 5:38 p.m., WO #6 could be heard asking "Guys could someone update me and tell me what’s going on?" An unidentified police officer stated that there was a crash at Albion Road and Elmhurst Road and that there were multiple vehicles involved and unknown injuries

In Car Camera (ICC) Video Footage / Automatic Vehicle Location (AVL) Data Summaries

WO # 3’s Police Cruiser Summary:

• The ICC video footage showed that at 5:35:21 p.m., WO #3 was driving south on Albion Road and he activated the emergency lights. At this time, WO #1 had requested assistance
• At 5:35:55 p.m., WO #3 drove south on Riverdale Drive
• At 5:35:59 p.m., WO #3 drove onto the northbound lane, while continuing to drive southbound on Riverdale Drive. A black SUV [now known to have been driven by CW #3] could be seen driving quickly northbound in the northbound lane towards WO #3’s cruiser
• At 5:36:02 p.m., WO #3 abruptly stopped his cruiser in the northbound lane and there was about half of a car length in distance between WO #3’s cruiser and the black SUV, that was still travelling towards WO #3’s cruiser. CW #3 immediately drove around the passenger side of WO #3’s cruiser and he continued to drive northbound on Riverdale Drive
• At 5:36:07 p.m., a grey van [now known to have been driven by the SO] drove past WO #3’s cruiser and it continued driving northbound on Riverdale Drive
• At 5:36:16 p.m., WO #3 made a three point turn and then drove northbound on Riverdale Drive
• At 5:36:26 p.m., WO #3 turned right onto Albion Road and drove southeast. At this time the SO’s vehicle was not in sight. WO #3 activated the siren at this time. There was moderate traffic flow in both the left and curb lane of Albion Road. Most vehicles that were travelling southeast had pulled into the curb lane as WO #3 passed them. WO #3 drove in the middle left turning lane and sometimes in the left lane
• The AVL data showed that at approximately 5:36:38 p.m., WO #3’s speed accelerated from 92 km/h to 113 km/h within five seconds while driving southeast on Albion Road. The speed limit on Albion Road was 60 km/h. At this time, the ICC footage showed that WO #3 was approaching Calstock Drive, which was controlled by traffic lights. WO #3 drove past the traffic light that were showing green
• At approximately 5:36:47 p.m., WO #6 could be heard over the radio, which was captured on the ICC footage, asking if the police officers were in pursuit. WO #1 could be heard saying over the radio that it was not a pursuit. At this time, as per the AVL data, WO #3’s speed was approximately 101 km/h
• The AVL data showed that at 5:37:05 p.m., WO #3’s speed decelerated from 113 km/h to 92 km/h while he approached Irwin Road. At this time the ICC footage showed that WO #3 was approaching Irwin Road, which was controlled by traffic lights. WO #3 drove past the set of traffic lights that showed a yellow light. It appeared that WO #3’s speed slowed down momentarily as he drove past the intersection
• The ICC footage showed that at 5:37:23 p.m., as WO #3 drove closer to the intersection of Albion Road and Elmhurst Drive, there were people standing in the northbound lanes of the road and it appeared that they were waving their arms in the air. The AVL data showed that at this time, WO #3’s speed was approximately 45 km/h
• The ICC footage showed that at 5:37:28 p.m., WO #3 slowly drove onto the northbound left lane of Albion Road, at the intersection of Albion Road and Elmhurst Drive. There were people running south on the east sidewalk towards a bus shelter [now known to be where the black SUV had driven into] and a van [now known to have been driven by the Complainant] that was facing south in the northbound curb lane, and
• At 5:37:37 p.m., WO #3 and WO #2 exited their cruiser and walked towards the black SUV and the Complainant’s vehicle. Smoke could be seen billowing out from the black SUV

SO’s Police Vehicle Summary:

• There was no ICC footage in the SO’s vehicle
• The AVL data showed that at approximately 5:35 p.m., the SO’s vehicle reached up to 74 km/h while he drove south on Islington Avenue (speed limit of 50 km/h) just prior to turning onto Barker Avenue
• While driving southeast on Albion Road at approximately 5:36 p.m., the SO’s vehicle reached speeds up to 105 km/h when he passed the intersection of Calstock Drive and Albion Road, which was controlled by four way traffic lights
• At approximately 5:36:47 p.m., WO #6 could be heard over the radio, which was captured on the ICC footage from WO #3’s cruiser, asking if the police officers were in pursuit. WO #1 could be heard saying over the radio that it was not a pursuit. At this time, as per the AVL data, the SO’s speed was approximately 87 km/h, and
• At 5:37:28 p.m., it appeared that the SO’s speed began to decelerate to 34 km/h after passing the intersection of Irwin Drive and Albion Road, which was controlled by four way traffic lights, until he arrived at the intersection of Albion Road and Elmhurst Drive. The speed limit on Albion Road was 60 km/h

WO # 5’s Police Cruiser Summary:

• The ICC footage showed that at 5:36:22 p.m., WO #5 drove east on Riverdale Drive towards Albion Road. Just prior to Albion Road, WO #3’s cruiser was in front of WO#5
• The AVL data showed that at approximately 5:36:25 p.m., WO #5 turned onto Albion Road from Riverdale Drive and he began to accelerate from speeds of 43 km/h up to 121 km/h while driving southeast on Albion Road. The ICC footage showed that WO #5 drove in the middle turning lane and the left lane of Albion Road. At approximately 5:36:39 p.m., the footage showed that as WO #5 was approaching the intersection of Albion Road and Calstock Drive, his speed continued to accelerate from 87 km/h to 117 km. When WO #5 passed Calstock Drive, it was controlled by a four way traffic light, which was green as he passed through the intersection
• The ICC footage showed that vehicles travelling southeast on Albion Road had moved to the right curb lane as WO #5 drove past them
• At approximately 5:36:47 p.m., WO #6 could be heard over the radio, which was captured on the ICC footage, asking if the police officers were in pursuit. WO #1 could be heard saying over the radio that it was not a pursuit. At this time, as per the AVL data, WO #5’s speed was approximately 119 km/h, and
• At approximately 5:37:05 p.m., WO #5’s speed began to decelerate to approximately 31 km/h when he arrived at Albion Road and Elmhurst Drive

WO #7’s Police Cruiser Summary:

• The ICC footage showed that at 5:36:22 p.m., WO #7 drove east on Riverdale Drive towards Albion Road. Just prior to Albion Road, WO #5’s cruiser was in front of WO #7, and WO #3’s cruiser was in front of WO #5
• The AVL data showed that at approximately 5:36:27 p.m., WO #7 turned onto Albion Road from Riverdale Drive and he accelerated from speeds of 34 km/h to 124 km/h within 11 seconds while driving southeast on Albion Road
• At approximately 5:36:47 p.m., WO #7 passed the intersection of Albion Road and Calstock Drive which was controlled by a four way traffic light. The ICC footage showed that the traffic light was green when he drove through the intersection while driving at speeds between 84 km/h and 116 km/h. At this time, WO #1 could be heard over the radio saying that it was not a pursuit
• The ICC footage showed that vehicles travelling southeast on Albion Road had moved to the right curb lane as WO #7 drove past them
• The ICC footage showed that WO #7 drove in the middle left turning lane and left turning lane. Clouds of dust could be seen coming from the rear tire area of WO #5’s cruiser
• The AVL data showed that WO #7’s speed decelerated from 121 km/h to 63 km/h when he approached the intersection of Albion Road and Irwin Road. The ICC footage showed that when WO #7 drove through the traffic light at Irwin Road, the light had just turned from amber to red, and
• The AVL data showed that WO #7 began to decelerate from 121 km/h to 63 km/h as he approached Irwin Road (speed limit of 60 km/h)

Materials obtained from Police Service

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

• Booking Photo Document of CW #3
• Computer Aided Dispatch (CAD) Narratives
• CPIC Queries
• Fail to Stop Report
• Fleet-Call Signs
• Full Case-Criminal Charges and Highway Traffic Act (HTA) Charges
• General Occurrence x 2
• Integrated Computer Aided Dispatch Event Details Report
• lntelliBook Listing of CW #3
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6 and WO #7
• Parade Sheet Report
• Vehicle Damage Report- WO #3’s cruiser
• Internal Search re: TAVIS units involved

On June 8^th 2016, the SO and WO #1 were operating an unmarked TAVIS police vehicle in the area of Albion Road. At this time, they observed CW #3 operating a black SUV.

Investigation revealed that CW #3 was wanted on outstanding warrants. The SO and WO #1 requested the assistance of a marked police cruiser to stop the black SUV.

WO #2 and WO #3 attended in a marked police cruiser with emergency lights activated and attempted to stop CW #3. CW #3, however, drove around WO #3’s police cruiser at a high rate of speed. The SO and WO #1 continued following CW #3 on Riverdale Drive, as did WO #2 and WO #3. WO #4, WO #5 and WO #7 also attended to attempt to stop the motor vehicle being driven by CW #3 on Albion Road. CW #3 continued driving southbound towards the intersection of Albion Road and Elmhurst Drive where he entered the northbound lane of traffic and collided with the Complainant’s van. CW #3 then drove into a bus shelter while the Complainant’s van subsequently struck CW #1’s vehicle as a result of the collision.

CW #3 exited his vehicle and fled on foot south on Albion Road. CW #3 was later arrested and did not sustain any serious injuries as a result of the collision. The Complainant was transported to the hospital and was diagnosed with a fractured right ankle.

Section 249(1), 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

Section 249(3), Criminal Code - Dangerous operation causing bodily harm

249 (3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Section 219, Criminal Code - Criminal negligence

219 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.

Section 221, Criminal Code - Causing bodily harm

220 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.

O. Reg. 266/10, section 2, Police Services Act -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. O. Reg. 266/10, s. 2 (2)

(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

On June 8^th, 2016, the SO, WO #1, WO #2, WO #3, WO #4, WO #5 and WO #7 attempted to stop a motor vehicle on Albion Road in the City of Toronto being driven by CW #3 in order to arrest him on outstanding warrants. During the course of being pursued by these officers, CW #3 collided with another motor vehicle. The driver of that motor vehicle, the Complainant, sustained a fractured right ankle.

During the course of this investigation, four civilian and eight police witnesses were interviewed, including the SO, who also provided his notes to investigators for review. Additionally, investigators had access to CCTV footage from two businesses in the area, as well as the ICC videos from the three marked police cruisers, the AVL data from all police vehicles as well as the communications records of all police calls during this incident. As a result of the multiple sources of information, a fairly accurate sequence of events was able to be compiled.

The CCTV video from a nearby church indicates that the first police cruiser, operated by WO #3, arrived at the crash scene within 36 seconds of the collision, the second cruiser arrived two seconds later, the third two seconds after that and the unmarked grey minivan driven by the SO arrived seven seconds after the last cruiser, or within 47 seconds of the collision; it is, however, important to keep in mind that the AVL data shows that each of the police vehicles sharply decelerated at approximately the time of the crash while they were still a significant distance from the crash site. (By the time that each of the officers had reached Irwin Rd.- approximately 225 metres from the crash- each of their vehicles was below the speed limit.)

On a review of all of the evidence, I have no difficulty in concluding that all four police vehicles were, at some point, involved in a police pursuit with CW #3’s vehicle and were all in breach of the Ontario Police Services Act legislation, as well as the companion TPS Regulation entitled "Suspect Apprehension Pursuit" for the following reasons:

Section 2(1) of 0 Reg 266/10 of the Ontario Police Services Act (OPSA) entitled Suspect

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

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 of WO #3’s vehicle, wherein he attempts to box in CW #3’s motor vehicle and CW #3 drives around him at a high rate of speed, immediately followed by the SO’s unmarked grey van, at the same high rate of speed, it is clear that the SO was pursuing the vehicle. Although WO #1, who was the passenger in the SO’s vehicle, initially requested a marked vehicle to assist in stopping CW #3’s motor vehicle, when that was unsuccessful, the SO continued the pursuit and failed to notify the Communications Operator that this was occurring. Specifically, when questioned by WO #6 a15:36:47 p.m. as to whether or not they were engaged in a pursuit, WO #1 denied that they were, despite the fact that at the time of that transmission the motor vehicle in which he was travelling was moving at a rate of speed of 87 km/h on a city street during rush hour traffic and had just 47 seconds earlier been travelling at105 km/h.

I find that the SO, in his unmarked motor vehicle, initiated a pursuit of CW #3’s vehicle and then called in a marked cruiser to assist in bringing the motor vehicle to a stop, in compliance with the force policy. When that was unsuccessful, however, the SO continued to pursue the vehicle while the marked cruisers operated by WO #3, WO #5 and WO #7 also continued the pursuit, eventually overtaking and passing the SO’s motor vehicle due to the fact that the SO was hampered by other traffic as a result of not having access to lights and sirens, while the other three cruisers who did, relied on that equipment to move obstructing traffic out of the way. At the time of the transmission by WO #6 inquiring if a pursuit was in progress, it is clear both from the communications tape, wherein one can hear the sirens in the background, as well as the ICC camera from all three cruisers, that the SO was clearly in a position to see the three cruisers passing his motor vehicle at rapid rates of speed in the centre left turning lane with lights and sirens activated and there could have been absolutely no doubt that a pursuit was in progress. The fact that the SO’s motor vehicle was overtaken and passed by the other three cruisers does not vitiate that fact.

It is, of course, trite to say that the operators of each of the three cruisers in active pursuit of CW #3’s motor vehicle were all equally in breach of the OPSA and the TPS policy in that none chose to notify the Communications Operator that they were in active pursuit, despite the fact that they were attempting to bring CW #3’s motor vehicle to a stop by travelling at the following notable rates of speeds:

• WO #3’s cruiser was recorded as accelerating from 92 km/h to 113 km/h within five seconds while travelling on Albion Road, a marked 60 km/h zone. At the time that CW #6 is heard broadcasting his question as to whether or not a pursuit was in progress; WO #3 was travelling at a speed of 101 km/h
• WO #5’s cruiser was recorded as accelerating from 43 km/h to 121 km/h while driving on Albion Road. At the time of WO #6’s transmission, WO #5 was driving at a speed of 119 km/h, and
• WO #7’s cruiser was recorded as accelerating from 34 km/h to 124 km/h within 11 seconds while driving on Albion Road. At the time of WO #1’s transmission denying that there was an active pursuit, WO #7’s cruiser was travelling through an intersection at speeds from 84 km/h to 116 km/h

While it is clear that all three officers operating the marked cruisers heard both the request of WO #6 to be advised if there was an active pursuit, and WO #1’s response that there was not, none of the officers chose to respond or to correct that assertion, despite the fact that each was clearly in an active pursuit on city streets on a weekday during rush hour traffic.

In WO #1’s transmission following the failed attempt to stop CW #3’s vehicle, he indicated that CW #3 had just "taken off" from them and that they were going to follow but were not pursuing. I find that from this point forward, it is clear both from the AVL data as well as the ICC video from the three cruisers, that the SO was in active pursuit and that, following the failed stop attempt, WO #3, WO #5 and WO #7 joined in that pursuit, up until the point in time when CW #3’s motor vehicle collided with the Complainant’s motor vehicle and came to a crashing halt in the bus shelter. During that time, none of the officers 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 101 km/h, and more in the case of the cruisers, but not in pursuit is to distort the meaning of the legislation. Each officer had a second officer in the vehicle with him and therefore was not in any way impeded in advising dispatch of the pursuit. I highly doubt that any reasonable person would believe that apprehending a motor vehicle driven by an identified driver for outstanding warrants would have outweighed the risk to public safety of continuing to pursue a motor vehicle at the speeds which these officers did, especially in light of the fact that it was the end of the work day in a busy city when it would have been expected that both vehicular and pedestrian traffic would have been present.

The words "pursuit" or "I am following but not in pursuit" are not words that transform a pursuit into something else which 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 101 km/h on a busy city street during rush hour on a weekday for any other purpose than to attempt to stop it. From WO #1’s own words to the dispatcher advising that CW #3 had "just taken off" from him and the SO, it is clear that they were attempting to stop the vehicle when it sped off. Those words, however, should have been followed up with the words "I am now in pursuit and travelling at 101 km/h", 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 WO #6 that there was no pursuit, each officer individually had an obligation to advise that they were, in fact, in an active pursuit.

On the evidence on the whole, I have grave concerns as to the behaviour of each of the officers in the four vehicles engaged in the pursuit of CW #3’s vehicle, in a situation where it is not alleged that CW #3 had just committed a criminal offence nor that a criminal offence was about to be committed, where they had identified CW #3 and the motor vehicle in which he was driving and their sole purpose was to execute outstanding warrants, that it was believed by eight different police officers 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 discontinue it. It was very fortunate that, at that time of day, there were no pedestrians waiting in the bus shelter, 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.

The question to be determined is whether or not there are reasonable grounds to believe that any of the officers involved in the pursuit of CW #3 committed a criminal offence, 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 R. v. Beatty, [2008]1 S.C.R. 49, states 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) 426 (Ont. C.A.).

On a review of all of the evidence, it is clear that the officers were all travelling at excessive rates of speed when pursuing CW #3’s motor vehicle while often driving in the centre lane designated for left turns and disregarding various stop signs and/or traffic signals. I find, however, that there is no evidence that the driving, by any of the officers, 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 officers to pass; additionally the environmental conditions were good and the roads were dry. In addition, it appears that they had all decided to decelerate as they exited a non-inhabited portion of Albion Rd. surrounded by the West Humber Parkland valley and then entered a more residential area prior to the collision occurring. That being said, the officers’ decision to continue their pursuit of CW #3’s motor vehicle, however, appeared to exacerbate CW #3’s pattern of driving, apparently causing him to accelerate to ever greater speeds to avoid police. Ultimately, however, I find that CW #3 unfortunately chose to try to outrun police and would have done so at all costs in order to avoid apprehension and in doing so, he fled at a dangerous rate of speed and carried out dangerous maneuvers with no regard for other people using the road. On all of the evidence, CW #3 chose to drive in the oncoming lane of traffic and collided with the Complainant’s vehicle and then lost control of his vehicle while driving dangerously and at excessive rates of speed while trying to make good on his escape.

I find on this evidence that the driving of the police officers involved in the pursuit and attempt to apprehend CW #3 does not rise to the level of driving required to constitute "a marked departure from the norm" and obviously therefore cannot amount to "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, I find that there is insufficient evidence to form reasonable grounds to believe that a criminal offence has been committed and thus no charges will issue in this case.

Date: September 5, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit