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 of a serious injury sustained by a 21-year-old male in connection with a pursuit involving a Durham Regional Police Service (DRPS) officer on August 20, 2016 at around 4:45 a.m. The man was taken to the hospital and treated for a fractured rib and possible throat injuries.

Notification of the SIU

The SIU was notified of the incident by the DRPS on August 20, 2016 at 1:50 p.m.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 2

Complainant

21-year-old male, interviewed

Witness officers

WO #1 Not interviewed, but notes received and reviewed

WO #2 Interviewed, and notes received and reviewed

WO #3 Interviewed, and notes received and reviewed

WO #4 Not interviewed, but notes received and reviewed

WO #5 Interviewed, and notes received and reviewed

Subject officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

The scene

The incident took place at the westbound exit ramp off Highway 401 onto Thickson Road, Whitby.

Scene diagram

Video/audio/photographic evidence

The SIU canvassed the area for any third-party video or audio recordings, and photographic evidence, with negative results.

Forensic evidence

Based on the SIU’s scene examination, the SIU prepared a reconstruction of the incident which estimated that the vehicle being operated by the complainant was traveling between 166 and 186 km/h when it entered the Thickson Road off-ramp.

Materials obtained from Durham Regional Police Service

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

• AVL GPS data for cruiser driven by SO
• communication recordings related to the incident in question
• a copy of DRPS photos
• Detailed Call Summary-2016-167720
• Disclosure Letter-2016-08-22
• Disclosure Log with detailed responses
• A copy of the Motor Vehicle Accident Report, and
• WO #1 notes

On August 20, 2016, following a visit with his uncle in Peterborough and after having consumed alcohol and marijuana, the complainant decided to visit his girlfriend in Scarborough. The complainant was not a licenced driver, nor had he ever been, but he decided to take the car keys and motor vehicle of a friend of his uncle’s, without permission. The complainant drove from Peterborough, south on Highway 115 and then onto westbound Highway 401 towards Toronto. While chatting with his girlfriend on his cell phone and listening to the radio, he was driving in the passing lane at 170 km/h.

As he approached the border between the City of Oshawa and the City of Whitby, the complainant observed a fully marked DRPS vehicle travelling in the centre lane with its emergency lights activated, beside him. The complainant continued to travel at high speed and carried on. The SO notified the dispatcher that he was attempting to stop a vehicle that was travelling at a high rate of speed and was refusing to stop, and asked for assistance.

The complainant approached the Thickson Road off-ramp and suddenly swerved across the centre and two curb lanes, and exited the highway. The SO also took the off-ramp, parked his cruiser and located the complainant’s badly damaged vehicle with the complainant still inside some distance west of the off-ramp. The complainant lost control of the vehicle on the off-ramp, whereupon it tumbled end-over-end before coming to rest upright in a field. The complainant was taken to hospital and found to have an acute minimally displaced left anterior third rib fracture.

Criminal Code (Section 249) - Dangerous operation of motor vehicles, vessels and aircraft

249 (1) Every one commits an offence who operates

(a) 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 all of the evidence, it appears that the complainant was driving at almost twice the speed limit at the time that he was observed by the SO driving on Highway 401, and, as such, the SO had ample grounds to attempt to stop the complainant for a Highway Traffic Act infraction (s.128 Driving in excess of the posted speed limit).

The SO, in compliance with O. Reg 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits, notified the dispatcher almost immediately first, that he was attempting to stop a vehicle for a Highway Traffic Act infraction and requested assistance from another unit, and then that the vehicle sped away from him and requested that the Whitby units be notified and also be made aware that the complainant was a possible impaired driver. In all, from the time that the SO first accelerated to catch up to the complainant until the time of the collision, a total of three minutes and 44 seconds had elapsed. However, during that time it does not appear that there was an actual pursuit until after the SO had caught up to the complainant., the complainant slowed and appeared to be about to stop, and then sped away.

The offence that arises for consideration in this matter is dangerous driving causing bodily harm contrary to section 249 of the Criminal Code. This offence is predicated on conduct that amounts to a marked departure from a reasonable level of care in the circumstances. Pursuant to the decision of the Supreme Court of Canada R. v. Beatty, [2008] 1 S.C.R. 49, s.249 requires that the driving be dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place and the driving must be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.”

I find that there is no evidence that the SO’s driving created a danger to other users of the roadway. At no time did he interfere with any other traffic, of which there was very little at that time of day, and the weather was clear and the road conditions were good, as revealed in the photos taken following the collision. While it may well be that the complainant might not have attempted to take the off-ramp at the speeds with which he did and lost control of his vehicle, were he not attempting to evade police, I find that his injuries were of his own making in that he was already driving at dangerous speeds before he even noticed the SO and, in his attempt to flee, he continued on in the same vein.

In the final analysis, I am satisfied on this record that the SO was acting lawfully when he first attempted to stop the motor vehicle being operated by the complainant to investigate an obvious Highway Traffic Act offence and that his conduct thereafter fell within the limits of care prescribed by the criminal law. Accordingly, there are no grounds for proceeding with charges against this officer.

Date: August 10, 2017

Original signed by
Joseph Martino
Acting Director
Special Investigations Unit