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.

This report relates to the SIU’s investigation into the death of an 18-year-old male who died as a result of a single motor vehicle collision on May 19, 2016, in the area of Jasper, Ontario, in the presence of a Leeds Ontario Provincial Police (OPP) officer.

Notification of the SIU

On May 19, 2016, at 9:23 p.m., the OPP notified the SIU of a traffic incident. According to the OPP, a Leeds OPP officer was traveling southbound on County Road 17 in the village of Jasper, and observed a vehicle traveling northbound on County Rd. 17 at 100 km/h in a 50 km/h zone. The police officer turned his police cruiser around and drove north on County Rd. 17. The speeding vehicle turned onto Kitley Line 2 where it left the road. The driver was ejected.

At the time of notification the driver’s name was unknown, and the driver was at the hospital with life-threatening injuries.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 2

Number of SIU Collision Reconstructionist assigned: 1

SIU forensic investigators completed scene and vehicle examinations, took photographs and the scene was measured with a Total Station device, for forensic mapping purposes. The forensic investigators also attended and recorded the post-mortem examination and assisted in making submissions to the Centre of Forensic Sciences (CFS).

Complainant

18-year-old male, deceased, medical records obtained and reviewed

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Nine additional civilian witnesses were identified as a result of the SIU canvass during the days after the collision. None of the witnesses, however, had any material observations.

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

Subject officers

SO Interviewed, notes received and reviewed.

The scene

Kitley Line 2 is a two lane roadway running in an east and west direction. The roadway is 4.5 kilometres in length between County Road 17 and County Road 29. The roadway is relatively level and straight. The surface is hard packed gravel and there are no lane markings on the roadway. Kitley Line 2 is primarily a rural roadway with residential housing on both sides of the roadway and some farm land. The collision occurred approximately 1.7 kilometres west of County Road 17 in the north ditch of Kitley Line 2. There is no posted speed limit on Kitley Line 2 but presumed to be 80 km/h for a rural roadway pursuant to section 128 of the

Expert evidence

SIU collision reconstruction report:

On May 19, 2016, the SIU Reconstructionist attended the scene. On May 20, 2016, the police cruiser operated by the SO, a 2013 Ford Taurus, was examined by the SIU Reconstructionist on scene. The engine was not running, the odometer indicated 125,481 kilometres (km) and the transmission gear selector was in park. The cruiser had a dash mounted Genesis II radar unit with both front and rear antenna mounts. The radar unit was on and indicated a reading of 101 km/h for a target vehicle reading. The cruiser was equipped with a centre mounted Mobile Data Terminal unit and the unit was in the on position. The Airbag Control Module for the Ford Taurus was downloaded using the Crash Data Retrieval tool through the Data Link Connector. No deployment event was recorded.

On May 20, 2016, the Hyundai operated by the Complainant was initially examined on scene. There was extensive damage to the entire left side, hood, trunk and roof area of the Complainant’s vehicle. The engine was not running, the odometer reading was 79,243 kilometres and the transmission gear selector was in the “D” (drive) position. The driver’s seatbelt was loose on the “B” pillar and there was no evidence of stretching to the fabric. The front passenger seatbelt was in the retracted position and there was evidence of stretching on the fabric and a mark left from the seatbelt’s “D” ring. After the initial examination on scene, the Complainant’s vehicle was towed. On May 25, 2016, inside a secure garage, the airbag control unit was unbolted and removed from the Hyundai for analysis. The data was retrieved regarding vehicle speed, engine throttle and the braking at the moment of air bag deployment. The data indicates there was a multi-event crash, meaning two events occurred, with the first and last beginning not more than five seconds apart. According to the Event Data Recorder report downloaded from the airbag module in the Complainant’s vehicle, it appears the Complainant was driving at a speed of 170 km/h five seconds prior to event 1, which was most likely his vehicle first entering the ditch and the front driver side impacting the ditch, which caused the vehicle to begin its high speed rotation. The second event recorded by the module, saved as event 2, indicated the Complainant’s vehicle was traveling at 168 km/h, most likely as the vehicle struck a tree on the driver’s side door, which caused the driver’s side airbags to deploy.

The SIU reconstruction provided the following analysis. On May 19, 2016, at approximately 8:15 p.m., the Complainant operated the Hyundai. CW #3 was a passenger in the front passenger seat. The weather was mild, there were scattered clouds and the roads were dry. The Complainant drove westbound on Kitley Line 2. At approximately 1.7 kilometres west of County Road 17, the Complainant was traveling at 170 km/h and turned his vehicle to the right resulting in it entering into yaw and out of control. The vehicle entered the north ditch of Kitley Line 2, at a high rate of speed. The Complainant’s vehicle rotated clockwise and its left front corner impacted the ditch, causing the vehicle to continue rotating clockwise and become airborne. The vehicle traveled backwards into a row of trees which runs along the north side of the ditch. The vehicle struck several large trees on the roof and left side, falling forward and coming to rest facing east.

The Complainant was ejected through the sunroof of the vehicle as it came to an abrupt stop. CW #3 was not seriously injured in the collision. The Complainant was transported to hospital and died shortly after as a result of injuries sustained in the collision. The SO was travelling approximately 500 metres behind the Complainant’s vehicle and his cruiser struck the debris field from the Complainant’s vehicle that was located in the middle of the roadway. The SO stopped his cruiser approximately 40 metres west of the debris field in the centre of the roadway facing west.

Post-mortem report:

On May 21, 2016, at 9:30 a.m., SIU Forensic Investigators attended the autopsy to document the post-mortem examination of the Complainant. At 12:55 p.m., the autopsy was concluded, and the Pathologist concluded the cause of death as “multiple injuries.”

Centre for Forensic Services submissions:

On November 2, 2016, the SIU received a copy of a toxicology report completed by the CFS. According to the report, the Complainant’s blood and urine were submitted to the CFS for an examination for the presence/absence of drugs and or poisons. The report indicates the Complainant’s femoral blood contained a 40 ng/ml tetrahydrocannabinol, an unspecified measurement of carboxy, and 0.22 mg/l of benzoylecgonine.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications recordings

OPP communication recording:

8:16:00 p.m.

The SO called the OPP communication centre. The Communication Operator (C/O) replied, “Go ahead.”

8:16:07 p.m.

SO: I just turned down Kitley Line 3 heading towards 29. Just turned around to stop a vehicle and it took off at a high rate of speed. I haven’t attempted to stop him. He’s still heading down Kitley Line 3 towards 29 at a very high rate of speed.

8:16:27 p.m.

C/O: 10-4. Do you have any particulars?

8:16:44 p.m.

SO: He’s 10-50. I haven’t attempted to stop him. I have to look at my GPS. I am about halfway down Kitley 3.

8:17:02 p.m.

(D004) Another officer responds: Copy that. I am en route.

8:17:08 p.m.

C/O: GPS shows you are on 2, are you on 2 trying to cut him off or is he actually on 2?

8:17:17 p.m.

SO: Can we get a 10-52 to this location here.

8:17:25 p.m.

C/O: 10-4. Can you just confirm though you are on 2 and not on 3? The GPS shows 2.

8:17:33 p.m.

SO: Let me just double check. Looks like from my GPS. You are right, I am on Kitley 2.
C/O: 10-4.

8:17:42 p.m.

SO: 10-52 expedite please. We have a person here who has their eyes open, they are having trouble breathing, they don’t appear coherent though.
C/O: 10-4.

8:18:19 p.m.

SO: There is one other passenger who is fine, however she is saying the other party was ejected, I am just looking for a civic number here. 10-52 expedite here as fast as possible.

8:19:19 p.m.

C/O: The 10-52 is en route and I got you fire as well.

8:19:25 p.m.

Inaudible radio screech

8:19:33 p.m.

Unit D004: You want to make sure D102 is en route.
102: I am en route
306: en route from 29 and Golf Club.

8:20:03 p.m.

C/O: I was on a 21, I heard you say something about someone being ejected. So do we have more than one patient or is that the same person you talked to?

8:20:13 p.m.

SO: Same person, the female passenger indicated he was ejected from the vehicle.
C/O: 10-4.

8:20:52 p.m.

SO: Can I get the ETA for the 10-52 here.

8:21:03 p.m.

C/O: 10-4, I will give them a shout.

8:21:48 p.m.

C/O: They are coming from Smiths Falls. They are going to be 10 minutes away.

8:21:57 p.m.

SO: 10-4. The individual is still breathing, but he is having trouble breathing.

8:22:22 p.m.

C/O: 302, I know you were never in pursuit of the vehicle. Just want to confirm when he first fled from you was it for an attempt to stop the first time or he just saw you and then took off?

8:22:35 p.m.

SO: There was no attempt to stop him whatsoever, he was traveling 100 km/h in a 50 km/h zone, I performed a U-turn, he took off what appeared to be a high rate of speed, turned down Kitley Line 2 and then had 10-50, he was way, way ahead of me.

GPS evidence

• On May 19, 2016, at 8:14:30 p.m., the cruiser was positioned at 44.839823 latitude and -75.943572 longitude, traveling at 80.4 km/h. When this information is plotted on Google maps it indicates the SO’s cruiser was southbound on County Rd. 17, approximately 50.5 metres south of Kilmarnock Road
• At 8:14:56 p.m., the SO’s cruiser was positioned at 44.8365 latitude, and -75.939617 longitude traveling at 0 km/h, indicating SO’s cruiser was stopped on County Rd. 17, approximately 539 metres south of Kilmarnock road. The SO’s cruiser remained stationary at that location until 8:15:08 p.m.
• At 8:15:39 p.m., the SO’s cruiser was positioned at 44.843677 latitude and -75.948538 longitude traveling at 165.2 km/h, indicating the SO’s cruiser was northbound on County Rd. 17, approximately 524 metres north of Kilmarnock road
• At 8:15:51 p.m., the SO’s cruiser was positioned at 44.845635 latitude and -75.951743 longitude traveling at 0 km/h. When this information is plotted on Google maps it indicates SO’s cruiser was on County Rd. 17, in the vicinity of Kitley Line 2. The SO’s cruiser remained at that location and speed until 8:15:54 p.m.
• At 8:16:04 p.m., SO’s cruiser was positioned at 44.843905 latitude and -75.95475 longitude travelling at 119.09 km/h, indicating the SO’s cruiser was westbound on Kitley line 2, approximately 317 metres west of Highway 17
• At 8:16:12 p.m., SO’s cruiser was positioned at 44.842208 latitude and -75.957388 longitude travelling at 131.49 km/h, indicating SO’s cruiser was westbound on Kitley line 2, approximately 600 metres west of County Rd. 17, and
• At 8:16:42 p.m., SO’s cruiser was positioned at 44.83588 latitude and - 75.967002 longitude traveling at 133.34 km/h, indicating SO’s cruiser was westbound on Kitley line 2, approximately 1.63 km west of County Rd. 17

Materials obtained from Police Service

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

• CAD (Playlist);
• GPS Data-20160519 from the SO;
• GPS Data-CAD GPS MAY 19 2016 8:00 – 11:00 p.m. - v2;
• GPS Data-emerg lights activated and over 150 kph (May19, 2016);
• GPS Data-legend for red and green square data references (WR-1208_34x44);
• Interview Report-CW #3;
• Notes- WO #1, WO #2, WO #3, WO #4, and WO #5;
• Profile-Complainant (2); and
• Profile-Complainant.

On May 19^th, 2016, at approximately 8:14 p.m., the 18-year-old Complainant was operating a Hyundai with CW #3 seated in the front passenger seat of the vehicle. The Complainant and CW #3 were travelling northbound on County Road 17 in the Hamlet of Jasper. At this time, the Complainant’s vehicle was observed by the SO, an OPP officer based out of the Brockville Detachment, to be travelling at a high rate of speed. The SO was in a fully marked OPP cruiser at the time. Using his radar unit, the SO clocked the Complainant’s vehicle as travelling at 101 km/h in a 50 km/hr area. The SO subsequently made a U-turn with the intention of stopping the motor vehicle pursuant to the Highway Traffic Act.

The SO waited for southbound vehicles to pass and then performed his U-turn and drove northbound on Highway 17 to catch up to the Complainant. The Complainant proceeded to turn left onto Kitely Line 2. The SO slowed his cruiser to also make a left turn but was hindered by traffic travelling southbound and had to stop for a few seconds to allow those vehicles to pass.

At approximately 1.7 kilometres west of County Road 17, the Complainant was traveling at 170 km/h and turned his vehicle to the right resulting in it entering into yaw and becoming out of control. The vehicle hit the north ditch of Kitley Line 2 at a high rate of speed, rotated clockwise and became airborne. The vehicle traveled backwards, striking several large trees on the roof and left side before falling forward and coming to rest.

The Complainant was ejected through the sunroof of the vehicle as it came to an abrupt stop. CW #3 was not seriously injured in the collision. The SO was travelling behind the Complainant’s vehicle at the time of impact, and advised the communications officers there was a vehicle collision. The Complainant was transported to the hospital with life threatening injuries. At 10:23 p.m., the Complainant was transferred to a second hospital via ambulance. At 10:45 p.m., the Complainant was pronounced dead.

O. Reg. 266/10, 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.

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

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;

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen 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 220, Criminal Code - Causing death by criminal negligence

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

1. where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
2. in any other case, to imprisonment for life.

Section 128(1), Highway Traffic Act - Rate of speed

128 (1) No person shall drive a motor vehicle at a rate of speed greater than,

1. 50 kilometres per hour on a highway within a local municipality or within a built-up area;
2. despite clause (a), 80 kilometres per hour on a highway, not within a built-up area, that is within a local municipality that had the status of a township on December 31, 2002 and, but for the enactment of the Municipal Act, 2001, would have had the status of a township on January 1, 2003, if the municipality is prescribed by regulation;
3. 80 kilometres per hour on a highway designated by the Lieutenant Governor in Council as a controlled-access highway under the Public Transportation and Highway Improvement Act, whether or not the highway is within a local municipality or built-up area;
4. the rate of speed prescribed for motor vehicles on a highway in accordance with subsection (2), (5), (6), (6.1) or (7);
5. the maximum rate of speed set under subsection (10) and posted in a construction zone designated under subsection (8) or (8.1); or
6. the maximum rate of speed posted on a highway or portion of a highway pursuant to section 128.0.1.

On May 19^th, 2016, at approximately 8:14 p.m. and shortly thereafter, the 18-year-old Complainant was operating a motor vehicle travelling northbound on County Road 17 in the Hamlet of Jasper, when he was observed by the SO. The SO clocked the Complainant’s vehicle as travelling in excess of the speed limit and made a U-turn to attempt to stop the motor vehicle pursuant to the Highway Traffic Act. At approximately 8:17 p.m., the Complainant was involved in a single vehicle collision and was ejected through the sunroof of his car. While en route to the hospital, the Complainant was pronounced dead.

All of the civilian witnesses agreed that the Complainant was travelling at a very high rate of speed as he drove across Kitely Line 2, immediately before impact. Each noticed an OPP cruiser arrive after the accident, but accounts varied as to the amount of time that passed before the cruiser’s arrival. All civilian witnesses agreed that the SO’s siren was not activated at the time he arrived, but accounts differed whether his emergency lights were activated.

The SO agreed to an interview with SIU investigators and advised that he was driving southbound on County Road 17 toward the Hamlet of Jasper when he observed the Complainant’s motor vehicle and received a speed reading on his radar locked in at 101 km/h. The SO advised that he was aware the speed limit in Jasper was 50 km/h. Consequently, the SO pulled over to the right shoulder, intending to perform a U-turn and initiate a traffic stop of the Complainant’s vehicle. Once on the shoulder, the SO had to wait approximately ten seconds for southbound vehicles to pass and he then performed his U-turn and drove northbound on Highway 17 attempting to catch up to the Complainant. The SO observed that once he was travelling northbound, the Complainant’s vehicle was quite a distance ahead. The SO advised that he did not activate his emergency lighting while attempting to catch up to the Complainant. The SO placed the position of his cruiser at about 300 metres behind the Complainant’s vehicle when he observed a large cloud of dust and realized that the Complainant had turned left onto Kitely Line 2. The SO then slowed his vehicle to also make a left turn but was hindered by traffic travelling southbound and had to stop for a few seconds for those vehicles to pass. Once cleared to make his left turn, he advised that he activated the emergency lighting on his vehicle and observed the Complainant’s vehicle driving westbound approximately one half kilometre ahead of his cruiser on Kitely Line 2. In his notebook entries, the SO indicated that as soon as he completed his left turn, he immediately turned his emergency lighting off again. Once on Kitely Line 2, the SO transmitted over the police radio that he had turned around to stop a vehicle that was travelling at a high rate of speed and that he did not have his emergency lights or siren on. He further reported that he was not in pursuit of the Complainant’s vehicle as he was never close enough to the vehicle to affect a traffic stop. The SO indicated that he looked down at his speedometer and noticed he was travelling at 120 km/h. He then saw a large cloud of dust covering the roadway and he slowed and observed a large amount of debris on the roadway and a vehicle in the ditch to his right. The SO advised that he did not have any emergency equipment on as he drove through the debris field.

The following sequence of events was extrapolated from a combination of the GPS in the SO’s cruiser, the accident scene reconstruction and the radio communications records:

• At 8:14:30 p.m., the SO was travelling southbound on County Road 17 approximately 50.5 metres south of Kilmarnock Road at a rate of speed at 80.4 km/h. According to the SO’s statement, this is when he observed the Complainant driving towards him and clocked him on his radar at 101 km/h;
• At 8:14:56 p.m., he was stopped on County Road 17, approximately 539 metres south of Kilmarnock Road and he remained at that location until 8:15:08 p.m. The SO’s evidence indicates that this is when he was stopped waiting to make a U-turn to follow the Complainant’s vehicle;
• At 8:15:39 p.m. he was travelling northbound on County Road 17 approximately 524 metres north of Kilmarnock Road at a rate of speed of 165.2 km/h. It is clear here that the SO is in pursuit of the Complainant’s vehicle. Rather than “strategic following” as per the Policy on Suspect Apprehension Pursuits, which requires a police vehicle to back off and increase the distance between himself and the suspect vehicle, at 165.2 km/h, the SO was obviously attempting to close the gap between himself and the Complainant’s vehicle;
• At 8:15:51 p.m., he was stopped on County Road 17 in the area of Kitely Line 2 and remained stationary at this location until 8:15:54 p.m. As per the SO’s statement, this is when he had to stop to allow other oncoming traffic to pass before he could turn left onto Kitely Line 2;
• At 8:16:00 p.m., the SO first contacted the communication centre;
• At 8:16:04 p.m., he was travelling westbound on Kitley Line 2 approximately 317 metres west of Highway 17 at a rate of speed of 119.09 km/h;
• At 8:16:07 p.m., the SO advised the communications operator that “I just turned down Kitley Line 3 heading towards 29. Just turned around to stop a vehicle and it took off at a high rate of speed. I haven’t attempted to stop him. He’s still heading down Kitley Line 3 towards 29 at a very high rate of speed”;
• At 8:16:12 p.m., he was travelling westbound on Kitley Line 2 approximately 600 metres west of County Road 17 at a rate of speed of 131.49 km/h;
• At 8:16:42 p.m., he was travelling westbound on Kitely Line 2 approximately 1.61 kilometres west of County Road 17 at a rate of speed of 133.34 km/h;
• At 8:16:44 p.m., he advised the communications officers “He’s 10-50’d [vehicle collision]. I haven’t attempted to stop him. I have to look at my GPS. I am about halfway down Kitely 3”; and
• The motor vehicle collision occurred on Kitely Line 2 approximately 1.7 kilometres west of County Road 17.

Pursuant to O Reg 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits, s. 2(1) states that:

• (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.
  3. (2) Before initiating a suspect apprehension pursuit, a police officer shall determine that there are no alternatives available
  4. (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.
  5. (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.
  6. 3(1) A police officer shall notify a dispatcher when the officer initiates a suspect apprehension pursuit.

The SO observed a speeding motorist and pulled over to make a U-turn to follow and initiate a traffic stop. At no time did he have any grounds to believe that a criminal offence had been committed; he was dealing with a speeding infraction under the Highway Traffic Act. The SO stated that the Complainant’s motor vehicle, when it passed the cruiser on Highway 17, was no longer within the Hamlet of Jasper and from which I draw the inference that if the speed limit had not already increased to 80 km/h, it would do so imminently. I note that the SO’s own cruiser was travelling at a rate of speed of 80.4 kilometres per hour. Therefore on the evidence of the SO, it is unclear if the Complainant was travelling at 100 km/h in a 50 km/h zone or an 80 km/h zone; although both would constitute a speeding infraction, it is difficult to perceive how exceeding the speed limit by 20 kilometres per hour on a rural highway could be deemed to be a situation that required an “immediate need to apprehend an individual”. Additionally, I note that the Complainant was not fleeing after failing to stop, as he had never been directed to stop.

The SO pursued the Complainant’s motor vehicle from the point where he had re-entered traffic after having made a U-turn at 8:15:08 p.m. until the Complainant’s vehicle crashed at 8:16:44 p.m. and at no time did he contact the communications centre to advise that he was involved in a pursuit, despite the fact that he had been pursuing the Complainant’s vehicle on County Road 17 at a rate of speed of 165.2 km/h for almost an entire minute prior to contacting the dispatcher.[1]

Semantics aside, there can be no confusion that a cruiser travelling at that rate of speed following a motor vehicle is clearly in pursuit. The SO had an obligation to report to the dispatcher that he was engaged in a pursuit as soon as it was initiated and to say that he was simply following at a speed of 165 plus kilometres per hour is to distort the meaning of the legislation. The SO had every opportunity to advise dispatch when he was pulled over waiting to make his U-turn and saw that the Complainant was accelerating away, when he was travelling for almost an entire minute at an extremely high rate of speed, when he was stopped waiting to make his left turn onto Kitely Line 2, but he did not make his initial contact with dispatch until he was already on Kitely Line 2 and was again travelling at a rate of speed in excess of 130 km/h on a gravel road in a rural residential area and only then to advise that a vehicle had accelerated away from him and he had not attempted to stop it.

I cannot fathom any reasonable person believing that issuing a speeding ticket would have outweighed the risk to public safety of continuing to pursue a motor vehicle at the speeds which the SO did, especially in light of the fact that the speeding for which the SO initially indicated he wished to initiate a traffic stop was insignificant compared to the speeds reached by both the Complainant and the SO during the pursuit. The words “pursuit” or “I am not attempting to stop” are not words that 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 the SO claimed that he never attempted to stop the vehicle, I can see no reason to chase a vehicle at 165 km/h for any other purpose than to attempt to stop it. In his own words to the dispatcher “just turned around to stop a vehicle and it took off at a high rate of speed” it is clear that he was attempting to stop the vehicle when it sped off. Those words, however, should have been spoken when he was first stopped at the side of the road waiting to make a U-turn and not after he had already pursued the vehicle for almost one minute at a speed of 165 km/h. Once his U-turn was completed, he should have followed up with the words “I am now in pursuit and travelling at 165 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.

Despite the evidence of the SO, the evidence of two independent witnesses contradicts the evidence of the SO, that he only activated his lights while making the left turn onto Kitely Line 2 and then immediately turned off his emergency equipment. The evidence of the civilian witnesses and the SO also contradict each other regarding the distance between the SO and the Complainant at the time of the collision. On the evidence on the whole, I have grave concerns with respect to the various contradictions between the evidence of the SO and that of the civilian witnesses.

Having said all of that, however, a failure to comply with the Ontario Police Services Act does not equate with reasonable grounds to believe that a criminal offence has been committed.

The question to be determined by me is whether or not there are reasonable grounds to believe that the SO 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 and did thereby cause death contrary to s.249(4) or if he was criminally negligent contrary to s.219 of the Criminal Code and did thereby cause death contrary to s.220.

Pursuant to the Supreme Court of Canada in R. v. Beatty, [2008] 1 S.C.R. 49, section 249 of the Criminal Code 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 of criminal negligence under s. 219 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 CCC(3d) 426 Ont. C.A.).

On a review of all of the evidence, it is clear that the SO was likely travelling at a rate of speed up to approximately 85 km/h in excess of the speed limit when he pursued the Complainant’s motor vehicle. I find, however, that there is no evidence that the SO’s driving created a danger to other users of the roadway or that at any time he interfered with other traffic; additionally the environmental conditions were good and the roads were dry. The officer’s excessive rate of speed in his pursuit of the Complainant’s motor vehicle, however, appeared to exacerbate the Complainant’s pattern of driving, apparently causing him to accelerate to ever greater speeds (of up to 180 km/h) to avoid the SO. Ultimately, however, I find that the Complainant unfortunately chose to try to outrun police and in doing so, he fled at a dangerous rate of speed with no regard for other people using the highway or for his own passenger, who exhorted him on numerous occasions to slow down.

I find on this evidence that the driving of the SO 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 SO and the single vehicle collision that caused the Complainant’s death. 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: August 17, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The total driving distance from the moment the SO made the U-turn until the crash was just over three kilometres and the driving time was one minute 36 seconds. [Back to text]