WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.— (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court File and Parties

Court File No.: 15-000258

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Craig McMurtrie and Rodney Grubb

Before: Justice Robert S. Gee

Heard on: March 21, 22, 23, 29, 31 and April 6, 2016

Reasons for Judgment Released: June 2, 2016

Counsel:

P. Scrutton / M. Flanagan — for the Crown

W. McKenzie — for Craig McMurtrie

J. Mulcahy — for Rodney Grubb

INTRODUCTION

[1] A police officer's job can go from the routine and mundane, to dangerous and life threatening in an instant. It is during those periods where the danger and adrenaline levels are high that the training an officer receives and the judgment he or she exercises, becomes most important. The decisions made by officers in those moments are particularly important for a number of reasons. First and foremost, is for the safety of the officers. They want to do their job well and in accordance with their training so they can be safe and ensure they return home, unharmed, at the end of their shift.

[2] Also they want to use their training to reduce the harm to victims of criminal behaviour and to protect members of the public. As well, using their training will result in a more effective and safer means of apprehending criminals. Last, the community as a whole expects, and rightly so, that the police entrusted to uphold the law and protect the community will carry out their duties in a professional manner, consistent with their training, and that they will not do anything that would elevate the risk to any member of the public.

[3] This is a case where these issues have been brought to the forefront. What began as a routine, perhaps mundane shift for Officers McMurtrie and Grubb, quickly and without warning escalated into something much more. What resulted this night was tragic; Ashley Lerno lost her life. Ms. Lerno was an innocent victim, completely unconnected to the events that began mere minutes before she would lose her life, connected only to them by pure chance.

[4] The actions of the officers and the judgment they exercised that night are at the heart of this case. The Crown is alleging the actions of the officers and the manner in which they exercised their judgment rises to the level of criminality. The defence disagree. As this is a preliminary inquiry, it is not my task to decide that ultimate question. It is only my task to decide if the Crown has demonstrated it has an arguable case to meet.

FACTS

[5] October 10, 2014 was a Friday. It was also Thanksgiving weekend. The two accused in this matter are Brant County OPP Officers stationed out of Paris, Ontario. As the name implies, the Brant County OPP police the entire county of Brant, save and except for the City of Brantford, which has its own city police service. The county is primarily rural with several towns and smaller communities, such as Paris and Burford, that are serviced by the OPP.

[6] On this day, the two accused officers, Craig McMurtrie and Rodney Grubb, were working a night shift which had commenced at 6:00 p.m. At approximately 10:00 p.m. that night they, along with fellow Officer Dean Potruff, decided to set up a RIDE checkpoint just south of the town of Burford, at the intersection of Maple Avenue South and the 8th Concession. This spot was chosen as it was in a well-travelled area, where there had been previous traffic complaints and it was not far from a gun and hunting supply store called Triggers and Bows, which had been broken into the night before.

[7] Both Officers Potruff and McMurtrie were operating fully marked cruisers while Officer Grubb operated what is referred to as a "subdued cruiser". At approximately 11:30 p.m., the officers noticed a vehicle westbound on the 8th Concession that slowed and made a U-turn when it was about 150 metres from the RIDE check. This obviously piqued their interest and all three officers immediately rushed to their respective cruisers in order to catch up to the vehicle and stop it. In the officers' experience, people who take this type of action to avoid RIDE checks almost invariably do so because they have been consuming alcohol, or are somehow involved in other activity, unlawful or not, that they are not anxious to share with the police.

[8] Given where his cruiser was parked and that he had a back injury, Officer Potruff took a bit longer to get to his cruiser and proceed after the evading vehicle. By the time he was in his cruiser and heading after them, Officers McMurtrie and Grubb were already well ahead of him trying to catch up to the vehicle as it fled. As such, given this twist of fate, Officer Potruff was not directly involved in the events that were about to unfold.

[9] What unfolded over the next approximately 15 kilometres, and seven minutes or so, was a pursuit by Officers McMurtrie and Grubb of what turned out to be a stolen pick-up truck. It was later learned the truck was being driven by Richard Gamble, who at the time was a prohibited driver, and which did not end until he ran a red light and t-boned Ms. Lerno's vehicle at the intersection of Colborne Street West and Gilkison Street in the City of Brantford.

[10] The officers' cruisers both carried GPS devices that recorded their speed, at regular intervals, as well as direction of travel. This data was able to be downloaded and plotted onto maps which provided a visual display of the exact route travelled during the entirety of the pursuit, and the speed each cruiser was travelling, throughout.

[11] Both cruisers had their sirens and roof lights activated during the pursuit. The weather conditions were not a factor. All roads throughout the entirety of the pursuit were paved and dry, and traffic was described as light. As well, the mechanical condition of the cruisers involved was good and not a factor in the outcome of the events. Both officers were described by Sgt. Jennifer Ormsby, their sergeant that night, as experienced, and there is nothing apparent from their driving abilities themselves, that would have factored into the outcome.

[12] It is important to understand the route this pursuit took. As mentioned, it started in a rural part of Brant County, just south of the Town of Burford. When the truck made its U-turn, it headed eastbound on the 8th concession with the officers following. The truck then turned north on Bishopsgate Road until its intersection with Colborne Street West.

[13] Concession 8 and Bishopsgate Road are rural, paved, two lane roads. According to the GPS data, the fastest speed in this part of the pursuit was 173 km/h for Officer Grubb and 163 km/h for Officer McMurtrie.

[14] The pursuit then turned right off Bishopsgate Road and headed eastbound on Colborne Street West towards Brantford. Colborne Street in this area runs in an east/west direction. It is a two lane, paved road, and the main connection between the City of Brantford to the east, and the Town of Burford to the west. The speed limit in this area is 80 km/h.

[15] The officers pursued the truck as it headed east toward Brantford. They crossed the intersection at Highway 24 on a green light. Not far beyond that intersection is the Brantford Airport and the outskirts of the city itself. This area has some rural properties, but is mostly commercial businesses and residential areas as one gets further into the city. This long, relatively straight stretch of roadway was where the officers achieved the maximum speeds encountered during the pursuit. At one point Officer McMurtrie's cruiser had a recorded speed of 189 km/h, whereas the maximum speed attained by Officer Grubb was 158 km/h.

[16] As the pursuit continued along Colborne Street West, Officer Grubb was close enough to the truck to notice it had two occupants. At one point he attempted to overtake the truck and had to take evasive action as it swerved to its left. Officer Grubb had to swerve his cruiser to the left to avoid being struck, and as he did so his driver's side tires caught the gravel on the north shoulder of the road. He avoided a collision and just after was able to overtake the truck.

[17] This put Officer Grubb ahead of the truck while Officer McMurtrie was directly behind it. At this point Officer Grubb slowed his cruiser to attempt to stop the truck by performing what is known as a "rolling block". However the officers were unable to stop the truck using this manouevre, and in fact the truck struck Officer Grubb's cruiser from behind twice, even pushing it from behind after the second hit.

[18] The truck then attempted a quick left turn onto Oakhill Drive where Oakhill meets Colborne Street West. The truck missed the turn and ended up driving across the side yard of the first residence on Oakhill. The manner in which it drove across the lawn was enough to leave significant gouges and tire tracks in the grass, and was loud enough to draw the attention of the homeowner, who was in the house at the time.

[19] Once the truck entered back onto Oakhill Drive it continued, now with Officer McMurtrie directly behind, while Officer Grubb was behind him as he needed to turn around to go back and make the turn onto Oakhill.

[20] Oakhill Drive initially heads northeast. It curves gently and then runs more or less parallel with Colborne Street. At its western end, it is a mature residential street, with the houses further apart from each other and set farther back from the road than what may now be considered to be the norm in residential areas. As one goes further east, more into the City of Brantford, the houses become more frequent and closer together. The speed limit on Oakhill is 50 km/h.

[21] Oakhill Drive ends in a cul-de-sac at its eastern end. This cul-de-sac abuts the parking area for the D'Aubigny Park soccer fields. The parking area and the cul-de-sac are separated by approximately four metres of grass and there are wooden posts rising out of the grass between the two areas, ostensibly to prevent vehicular traffic from crossing over.

[22] The highest speed attained by Officer McMurtrie on Oakhill Drive was 163 km/h while for Officer Grubb it was 154 km/h. These speeds came at about the mid-point of Oakhill Drive. As they approached the cul-de-sac at the eastern end, both Officer Grubb and Officer McMurtrie were traveling at 139 km/h.

[23] As it approached the cul-de-sac, the truck did not stop, but proceeded over the grass and broke through one of the wooden posts, and continued through the parking area. The officers followed and their speeds over the grass area appear much slower, 17 km/h for Officer McMurtrie and 14 km/h for Officer Grubb.

[24] After leaving the parking area the truck headed out onto Spalding Drive. Spalding Drive is in a commercial/industrial part of the city and had a speed limit of 50 km/h. Officer McMurtrie reached a speed of 140 km/h while Officer Grubb attained a maximum recorded speed on Spalding of 129 km/h.

[25] At the eastern end of Spalding Drive is a road for the traffic on Ballantyne Drive to access Spalding. Ballantyne Drive is a one way street westbound, that travels atop an old dike adjacent to the Grand River. It has a speed limit as well of 50 km/h.

[26] The truck, and both pursuing officers, proceeded up the access road onto Ballantyne Drive, heading east, which was the wrong direction for this one way street. While going the wrong way, officer McMurtrie's maximum recorded speed was 127 km/h while Officer Grubb's was 124 km/h.

[27] Ballantyne Drive begins, or would end if you are driving the wrong way, at Colborne Street West in downtown Brantford. At the point where it meets Colborne, Ballantyne Drive bisects Lorne Park, a relatively small park or greenspace, on the south side of the Grand River. Not far from Colborne Street, there is a footpath worn in the grass that goes from Ballantyne Drive south through the park and out onto Gilkison Street.

[28] As the truck approached Colborne it turned right onto the grass and drove through the park along this footpath until reaching Gilkison Street, at which time it turned left onto Gilkison. Officer McMurtrie followed the truck through the park along the footpath, while Officer Grubb continued along Ballantyne Drive until Colborne, at which time he turned right onto Colborne, heading toward Gilkison Street. Speeds through the park were not overly excessive, Officer McMurtrie reached speeds of 24 km/h along the footpath through the park, and Officer Grubb's speeds on the remaining portion of Ballantyne to where it meets Colborne, was 47 km/h.

[29] Once on Gilkison, the truck proceeded eastbound through the intersection at Colborne West on a green light. Officer McMurtrie followed eastbound on Gilkison while Officer Grubb proceeded south on Colborne, then turned left, eastbound onto Gilkison.

[30] After crossing Colborne, the truck turned right onto the first street, being Balfour Street. It went around the block, until it ended up back on Gilkison, by turning left next onto Oak Street, then anther left onto Richardson Street, and finally another left back onto Gilkison, now proceeding westbound back toward Colborne Street.

[31] Officer McMurtrie followed the truck as it made its way around the block. The speeds recorded by the GPS devices in the cruiser were not excessive. These devices are designed to record a speed for the cruiser upon the happening of certain events. Data is recorded every 300 metres, every 30 seconds or every time there is a 30 degree change in the cruiser's heading, whichever occurs first. As a result of these parameters, the data recorded from Officer McMurtrie's GPS as he travelled around this city block, only recorded his speed as his heading changed when he turned the corners. The maximum recorded speed for Officer McMurtrie in this area was 42 km/h, after he turned from Oak Street onto Richardson Street.

[32] Since he did not follow the truck through Lorne Park, but instead proceeded to Colborne Street, Officer Grubb was not as close behind during this part of the pursuit. He turned left off Colborne onto Gilkison but did not make the circuit of the block the truck and Officer McMurtrie did. He instead proceeded eastbound along Gilkison. As he approached Richardson Street the truck made its turn back onto Gilkison Street and almost struck him. He then went past Richardson, to Fordview, where he made a U-turn and went westbound on Gilkison after the truck and Officer McMurtrie. His recorded speed when making his U-turn was 26 km/h.

[33] As the truck proceeded back westbound on Gilkison it entered the intersection at Colborne Street against a red light and collided with the vehicle carrying Ms. Lerno. Officer McMurtrie radioed to dispatch at 11:36:24 p.m. that the truck had just t-boned another vehicle. Officer McMurtrie is still some distance down Gilkison and arrives at the intersection 11 seconds after the collision, while Officer Grubb arrives two seconds after that or 13 seconds after the collision.

[34] When the pursuit entered the City of Brantford, the OPP requested the assistance of the Brantford Police, and specifically requested a spike belt to be deployed. At 11:35:14 p.m., approximately one minute 10 seconds before the collision, the OPP radioed the officers that the Brantford Police did not have a spike belt available. This notification came at the time the officers were proceeding on Ballantyne Drive, in the wrong direction.

CROWN THEORY

[35] The OPP, as are all police services in the province, is subject to the provisions of the Police Services Act and the regulations enacted pursuant to it. Ontario Regulation 266/10 to the Police Services Act regulates Suspect Apprehension Pursuits as they are known. Section 2 of the regulation sets out when a pursuit may be initiated and when it should be terminated. The relevant portions of the regulation are as follows:

Initiating or continuing pursuit

2. (1) A police officer may pursue, or continue to pursue, a fleeing motor vehicle that fails to stop,

(a) if the police officer has reason to believe that a criminal offence has been committed or is about to be committed; or

(b) for the purposes of motor vehicle identification or the identification of an individual in the vehicle.

And further:

(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.

[36] The OPP has created its own Suspect Apprehension Pursuit policy that in most respects mirrors this regulation and in addition enumerates a number of public safety factors for officers to consider when assessing the decision to initiate or continue a pursuit.

[37] In addition to the officer or officers involved in the pursuit, for the OPP a Communications Sergeant, located in this case at the communications centre in London, as well as a road sergeant, are notified when a pursuit is commenced and the officers involved in the pursuit are required to keep the sergeants apprised of information concerning the pursuit as it unfolds.

[38] Any of these involved parties, that being; the Communications Sergeant, the road sergeant, and the officer or officers involved in the pursuit, are authorized to terminate the pursuit at any time without repercussions.

[39] Much discussion and time was spent during the course of this preliminary inquiry into the more detailed aspects of the OPP Suspect Apprehension Pursuit Policy, the tests to be applied and the public safety factors to be considered. However, at the risk of exposing myself to an accusation of oversimplification, both the OPP Suspect Apprehension Pursuit Policy and Ontario Regulation 266/10 impose, at their core, the same obligation. That is, that all persons involved in a pursuit are obligated to terminate the pursuit when the risk to the public from its continuation, outweighs the risk that the public may be exposed to if the suspect gets away.

[40] The Crown in this case does not dispute the decisions of the officers to initiate the pursuit, however their theory in relation to the criminal negligence charges for each officer, is, that, given the circumstances of how this pursuit unfolded, the risk to the public in its continuation outweighed the risk that may have flowed from the suspect getting away. As such the officers were legally obligated to terminate the pursuit, and their failure to do so was a marked and substantial departure from the standard of care of a reasonable officer, which demonstrated a wanton and reckless disregard for the lives and safety of others and this failure was a causal factor in the death of Ms. Lerno.

[41] In relation to the count of Dangerous Driving for each officer, the focus here is on the actual driving undertaken by the officers. The Crown theory is, notwithstanding the pursuit was properly initiated, the driving undertaken by the suspect and in response by the officers, continued to escalate until it crossed the threshold into objectively dangerous driving. The Crown points to the speeds attained on Oakhill Drive, the proceeding through the dead end at Oakhill and over the grass area and back onto Spalding Drive. The speeds again on Spalding Drive and up onto Ballantyne, where again speeds were excessive, especially considering the suspect and officers were travelling the wrong way down a one way street. Additionally the suspect and officer McMurtrie travelled over a footpath through a park while officer Grubb continues the wrong way down Ballantyne Drive. In terms of causation the Crown contends that the dangerous manner in which the officers were driving was a significant contributing cause to the manner in which the suspect was driving and influenced his driving well beyond serving as its backdrop. In short the driving of the officers and that of the suspect was sufficiently intertwined to make the officers' driving a proximate cause of the accident and the resulting death of Ms. Lerno.

THE LAW

[42] On a charge of criminal negligence, the Crown must show that the accused's act or omission represented a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances and that this act or omission demonstrated a wanton or reckless disregard for the lives or safety of other persons. See: R. v. J.F., 2008 SCC 60, at par. 7-10 and R. v. Willock, at par 29.

[43] This is a significantly elevated standard. It is more than carelessness or civil negligence. The departure from the norm must be more marked in both the physical and mental aspects of the behaviour. On the physical side, the conduct itself must be a marked and substantial departure from that which an ordinarily prudent person would undertake. The mental element, requires the Crown to demonstrate the accused showed a wanton and reckless disregard for the lives or safety of others. It is not sufficient to show a reasonable person would have recognized there existed a risk of injury. In order to be wanton and reckless the consequences must be much more obvious. See: R. v. J.L., at par. 14-21.

[44] In relation to the dangerous driving count, it must be demonstrated that when viewed objectively, the manner of driving must be dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected. This is the actus reus for the offence. If satisfied when viewed objectively, based on this test that the accused drove in a manner dangerous to the public, the accused must still be shown to have had the requisite mens rea in the circumstances. In that regard, on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, the conduct must amount to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. See R. v. Hundal and R. v. Beatty, 2008 SCC 5.

[45] The law is the same for both offences charged in relation to the issue of causation as it applies to the death of Ms. Lerno. To start, the accused's actions must be a contributing cause of the death outside the de minimus range. This requires an inquiry into whether the accused caused the death in both fact and law. Factual causation requires an inquiry into how the victim died from a medical, mechanical or physical sense, and how the actions of the accused contributed to the death. Legal causation is concerned with whether the person should be held responsible in law for the death. It is based on concepts of moral responsibility and is especially apt in cases of negligence based offences as our justice system is premised on the principle that that the morally innocent should not be punished. As such, an inquiry into whether the harm caused was reasonably foreseeable becomes relevant to the analysis of legal causation. See: R. v. Shilon, R. v. Hughes, [2011] B.C.J. No. 852 and R. v. Maybin, 2012 SCC 24.

THE TEST FOR COMMITTAL

[46] The test for committal is well-established. It was set out by the Supreme Court in The United States of America v. Sheppard (1977). The test is whether there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. The test in this regard is not onerous. The preliminary inquiry judge does not engage in any weighing of the evidence or assessing credibility. Also, it is not open for the preliminary inquiry judge to choose between competing inferences that may be drawn from the evidence. If the evidence is reasonably capable of supporting the inference the Crown will ask the jury to draw, then committal for trial is required. See also: R. v. Sazant (2004), 2004 SCC 77 and R. v. Hawley [2012] O.J. No. 4927.

[47] In fact, the Court of Appeal has succinctly reconfirmed this latter statement of the law in the case of R. v. Dwyer [2013] ONCA 368 thusly:

[4] Reasonable inferences are not necessarily likely or probable inferences. The inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage. Difficult inferences to draw may still nonetheless be reasonable.

[48] Although the test is the same, the task of the preliminary inquiry judge is somewhat more complicated where, as here, the Crown evidence is in whole or in part circumstantial. This situation was discussed by the Supreme Court in R. v. Arcuri 2001 SCC 54. When the Crown is leading circumstantial evidence in support of one or more of the elements of the offence, the judge is required to undertake a limited weighing of the evidence in order to assess whether it is reasonably capable of supporting the inferences the Crown asks the jury to draw. However in doing so, the judge is not to ask whether he or she would conclude the accused is guilty, nor is the judge to draw factual inferences or assess credibility. The only question the judge answers is whether the evidence, if believed, could reasonably support an inference of guilt. (See par. 23 of Arcuri)

ANALYSIS

Criminal Negligence Causing Death

[49] In relation to the criminal negligence count, the Crown position is that the officers were under a legal obligation to continually reassess the dangerousness of the pursuit and to terminate it when the risk to the public became too great. The Crown acknowledges that the initiation of the pursuit was justified. As the pursuit progressed it became increasingly dangerous, to the point where the danger to the public outweighed the risk to the public that may have resulted if the suspect was not immediately apprehended.

[50] The officers at that point were legally obligated to terminate the pursuit. They did not do so and their failure to do so was a marked and substantial departure from what a reasonable officer would have done in the circumstances. This failure to call off the pursuit in these circumstances forms the actus reus for the offence.

[51] In assessing the mental aspect of the offence, the inference the Crown would ask the jury to draw is that in failing to terminate the pursuit when they were legally obligated to, and allowing it continue as it did, amounted to a wanton and reckless disregard for the lives or safety of the public.

[52] As for the causation issues, the inference the jury will be asked to draw is that but for the failure of the officers to terminate the pursuit it would have unfolded differently and would not have ended with the collision that caused Ms. Lerno's death. The conduct of Mr. Gamble in driving the truck as he did was influenced by the relentless pursuit of him by the officers. As such the officers' conduct contributed to Ms. Leno's death in a manner beyond the de minimus range. The jury will be asked to infer factual causation on this basis.

[53] On the issue of legal causation, the jury will be asked to infer that given how the pursuit had unfolded and the manner in which Mr. Gamble had consistently driven throughout, that it would end in a collision resulting in a death, was a reasonably foreseeable outcome. In fact the Crown contends it was more than reasonably foreseeable – the rolling block did not work; there was no spike belt available; no other plan was in place to end the pursuit. Given that, the pursuit ending as it did, was almost the predictable culmination of the pursuit.

[54] As noted, the Crown does not dispute the decision to commence the pursuit. Nor does it dispute any aspect of the pursuit, or the officers' conduct during the initial part of the pursuit. Given the road conditions, time of day and lack of traffic, aspects of the pursuit at this stage, such as the speed and the attempted rolling block, were consistent with the officers' training and OPP policy. Where, according to the Crown, things began to change was when the truck turned onto Oakhill Drive and the police followed.

[55] Notwithstanding this was a Friday night at approximately 11:30 p.m., this is a residential street with a 50 km/h speed limit. The officers' speeds exceeded the limit by over 100 km/h. Neither the dead end nor the wooden post stopped the truck as it proceeded off road and over the grass. It is at this point the Crown states the pursuit became too dangerous and ought to have been called off.

[56] The pursuit continued to become only more dangerous thereafter. Speeds on Spalding drive, now well within the city limits, were in excess of 120 km/h. Speeds were also in excess of 120 km/h while the pursuit continued on Ballantyne Drive, in the wrong direction.

[57] Aaron McPhail, the Communications Sergeant who was monitoring the pursuit, testified that had he been informed the officers were heading the wrong direction on a one way street, he would have terminated the pursuit.

[58] Given these circumstances the question becomes whether the jury could infer that the officers were obligated to terminate the pursuit, and whether their failure to do so was a marked and substantial departure from the conduct of a reasonably prudent officer. The question then becomes in not calling off the pursuit when obligated to do so, did this amount to a wanton and reckless disregard for the lives and safety of others.

[59] If those questions are all answered in the affirmative then the question of the causation of the death of Ms. Lerno arises. Factual causation can be inferred from the entirety of the circumstances according to the Crown. Much reliance is placed by the Crown on this argument of the reasoning in both the Shilon and Hughes cases noted above. Both those cases involved what could be described as criminally negligent or dangerous driving that resulted in death. In both cases, like here, the accused were not the drivers of the vehicles involved in the collision that caused the death.

[60] In terms of the factual causation analysis the court had to determine if the driving of the accused influenced the actual accident beyond serving as its backdrop (see Shilon par. 30). If that is found then factual causation is met. For legal causation it must be asked if there is a reasonable foreseeability of harm. Where the conduct is inherently dangerous and carries with it a reasonably foreseeable risk of immediate and substantial harm, the test for legal causation will be met. (see Shilon par 33 and 38).

[61] Here the Crown contends a jury could infer that both factual and legal causation have been met. The jury, according to the Crown, could easily infer Mr. Gamble's driving was directly influenced by the conduct of the officers. As he approached the RIDE check, there was nothing remarkable noted about Mr. Gamble's driving. It was only when he noticed the police that his driving changed. When Mr. Gamble's driving changed the chase was on, he commenced a pattern of driving that can only be described as horrendous. He drove at speeds in excess of three times the limit on residential streets; he proceeded off road through dead ends and barriers designed to prevent vehicular traffic; he drove at excessive speeds the wrong way down one way streets; and then on a footpath through a park, just to highlight a few of the more egregious aspects of his driving. The Crown's position is that a jury could infer that these actions were designed for one purpose; to escape, and were influenced by the actions of the officers continuing to follow him even as his driving conduct became more and more dangerous.

[62] As for legal causation the Crown position is that a jury could easily infer that given this pattern of driving, there was more than just a reasonably foreseeable risk of immediate and substantial harm, it was inevitable.

Defence Position

[63] The defence disagrees and argues that a jury is not able to draw any of these inferences based on the evidence presented. It is their position that as police officers the rules and considerations that may be applicable to civilians are either not applicable to police or are much more nuanced.

[64] First and foremost as police officers they are duty bound to take all reasonable steps to apprehend lawbreakers. As well, they receive special driving instruction for just this very purpose. As police they enjoy the benefit of exemptions under the Highway Traffic Act when they engage in driving behaviour, in the course of their duties, that would otherwise be offences under the Act. For instance the speeding and stunt driving provisions are not applicable to officers in the course of their duties. Moreover as noted above, pursuits are highly regulated activities both in regulation under the Police Services Act and in OPP Policy. These are but a few of the more obvious differences police are subject to in assessing their behaviour in situations such as this.

[65] The defence also points out that nowhere in any of the regulations or OPP Policies is there any explicit prohibition of any of the driving conduct engaged in that night. There is no prohibition on speeding; no prohibition on going off road; no prohibition on driving the wrong way on one way streets; and no prohibition on driving in parks.

[66] They also point out that their Sergeant that night, Sgt. Jennifer Ormsby, testified she was monitoring the pursuit, had confidence in their abilities, and found no fault in their conduct. As well, neither Communication Sgt. McPhail, who was also monitoring the pursuit, nor road Sgt. Ormsby, called off the pursuit prior to the collision. They also point out that Officer Terry Shipp, of the Brantford Police, testified that in the course of his duties as a police officer, he has driven through parks and has driven the wrong way down one way streets.

[67] Furthermore the position of the defence is that the radio transmissions relayed by the officers during the pursuit demonstrate that they were complying with OPP Policy by providing updated information to the communications centre, and that they were, as required, constantly reassessing the dangerousness of the pursuit.

[68] Given all this, their driving conduct that night was well within the parameters of their training and policy, notwithstanding what might appear at first blush to be dangerous conduct, and that as such when their actions are assessed in light of all those factors applicable to police, there is no evidence capable of supporting the inferences the Crown would ask a jury to draw.

[69] Specifically, they argue there is no evidence capable of supporting the inference they were obligated to terminate the pursuit at any point prior to the collision. Speeding, off road driving, wrong way driving are all aspects of pursuits that are not uncommon. As well, since neither Sergeant monitoring the pursuit called it off, in all the circumstances, there is no evidence capable of supporting an inference the officers were obligated to terminate the pursuit.

[70] The defence further argues that even if the officers ought to have terminated the pursuit, the evidence falls short of supporting an inference their failure to do so was a marked and substantial departure from the conduct a reasonable officer would have done in the circumstances. Similarly, there is no evidence capable of supporting an inference their behaviour was a wanton and reckless disregard for the lives or safety of others.

[71] In relation to the causation issue, the defence argue that any causal connection that may have been applicable earlier in the pursuit was severed by the time of the collision. They point out that after Mr. Gamble crosses Lorne Park on the footpath and turns left onto Gilkison Street, the officers are not directly behind him. In fact, given Officer Grubb did not make the circuit around the block, he was even further behind. The speeds in this part of the city were relatively slow and at the time of the collision Officer McMurtrie was 11 seconds behind, and Officer Grubb was 13 seconds behind. Given this temporal gap and the slow speeds there is no evidence capable of supporting an inference of either factual or legal causation at the time of the collision.

[72] The defence also relied heavily on the case of R. v. Baker, [2001] O.J. No. 2930. That case, like this, was a situation where a police officer was charged as a result of a pursuit in which the fleeing vehicle collided with an oncoming car, killing one of the occupants. The officer in that case was discharged at the conclusion of the preliminary inquiry as the judge found that there was no evidence capable of supporting the inference the officer was acting in violation of his police service's pursuit policy. The Crown applied for certiorari in Superior Court and the application was dismissed as the application judge agreed with the finding of the preliminary inquiry judge.

Court's Analysis

[73] In turning to the issues at hand, in this case, as in all cases, everything is contextual. That evidence in another case may have not been found to be capable of supporting an inference of a breach of policy does not necessarily dictate the same result here. Similarly, that the OPP Policy does not explicitly prohibit excessive speed, off road driving, wrong way driving or driving through parks, does not necessarily mean that that type of conduct is incapable of supporting a finding that the policy has been breached.

[74] In reviewing the evidence as a whole, and keeping in mind the test I am to apply, I find that in relation to this count, criminal negligence cause death, taken at its highest, the evidence presented is capable of supporting the inferences the Crown would ask the jury to draw.

[75] Speeds in excesses of 150 km/h on a residential street, proceeding off road through a dead end street and through barriers designed to prevent vehicular traffic in the circumstances of this case are capable of supporting an inference that the risk to the public in continuing with the pursuit outweighed the risk from not apprehending the suspect. The pursuit took place at about 11:30 pm which was described as late at night. If 11:30 pm can be described as "late" it is not very late, especially considering it was a Friday night of a holiday weekend, a night when one could expect persons to be outside of their homes later than during the week.

[76] Given how the pursuit continued, the failure to terminate it is capable of supporting an inference that this failure is a marked and substantial departure from the conduct a reasonable officer. Speeds of 120 km/h or more in the City and driving at similar speeds the wrong way on a one-way street is evidence capable of supporting this inference. That neither Sgt. McPhail nor Sgt. Ormsby terminated the pursuit does not detract from such a finding given the evidence. There was evidence that Sgt. Ormsby was unfamiliar with the area of Brantford where the pursuit was taking place and that in fact she needed assistance in locating the scene of the collision. Also, even though some information was being provided by the officers to the Communications Centre, it is clear the information was not complete enough for Sgt. McPhail to make a proper assessment of the dangerousness. For instance, at no time was he made aware that the pursuit continued across the footpath through the park, nor was he told it was proceeding at 120 km/h the wrong way on a one-way street. On this latter point, he testified that had he known these facts he would have ordered the pursuit be terminated.

[77] This evidence is also capable of supporting an inference that the conduct displayed a wanton and reckless disregard for the lives and safety of others. Given that the rolling block was unsuccessful, that no spike belt was available and no other plan was in place to bring the pursuit to a safe end, a jury could draw the inference that in light of these circumstances and the manner of driving, this conduct displayed a wanton and reckless disregard for the lives and safety of others.

[78] In relation to causation, factual causation can be inferred based on the tests in Shilon and Hughes that the manner of driving of Mr. Gamble was influenced by the conduct of the officers beyond acting as its backdrop. His driving was in direct response to their actions. Prior to approaching the RIDE check his driving was unremarkable; after that it was directly influenced by his attempts to escape from the officers.

[79] As will be recalled, this count is premised on the failure to terminate the pursuit at an earlier point. Further, a jury could easily infer that given the driving displayed throughout, that this pursuit would end in grievous bodily injury or death, is an outcome that would have been reasonably foreseeable to the officers. As such a finding of legal causation is open to the jury.

[80] I make these latter findings even keeping in mind the defence argument that any causal link was severed. That might be a conclusion the jury reaches but it is a competing inference, and I am not permitted to choose between competing inferences. It would be equally open to the jury to conclude the offence is a continuing one, and that the temporal connection between the conduct of the officers and that of Mr. Gamble, given the entirety of the events, had not been broken.

[81] In relation to the Baker case relied on by the defence, although involving a police officer, a pursuit and a death as here, the factual make up of that case and this are so different that I did not find it of much assistance. In that case, the officer was pursuing a suspect on a highway in Northern Ontario. The pursuit lasted less than three minutes as opposed to approximately seven minutes as in this case. In that case, unlike this one, the pursuit remained on the same highway throughout. Speeds in that case reached 160 km/h, similar to this case, but as noted, that pursuit was all on a highway, while similar speeds in this case were on residential streets. Some passing of other vehicles took place in that case and the accident occurred when the fleeing vehicle drifted into the oncoming lane as it rounded a curve, striking a vehicle coming in the other direction, head on.

[82] In that case as well, the preliminary inquiry judge had expert testimony that the officer did not breach any aspect of his police service's pursuit policy. Given the expert testimony in that case and the completely different factual background of the case I found it was not overly helpful in assessing whether the jury could draw the inferences the crown seeks it to in this case.

Dangerous Driving Causing Death

[83] In turning to the dangerous driving cause death count, this focusses on the actual driving of the officers that night as opposed to their failure to terminate the pursuit.

[84] There must be evidence capable of supporting the inference that when viewed objectively, the manner of driving was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of such place and the amount of traffic that at the time is or might reasonably be expected. If there is, the evidence must also be capable of supporting an inference that the officers had the requisite mens rea in the circumstances. In that regard, on the basis of all the evidence, including evidence about the officer's actual state of mind, if any, the conduct must be capable of supporting an inference that it amounted to a marked departure from the standard of care that a reasonable officer as in this case would observe in the circumstances.

[85] Based on all the evidence presented in this case I find that the inferences the Crown would seek a jury to draw on this count are available as well.

[86] As noted earlier, speeds in excess of 150 km/h on Oakhill Drive, a residential street, proceeding through a dead end and over a grass area, speeds of 120 km/h on Spalding Drive, similar speeds while proceeding the wrong way on Ballantyne Drive is all, in the circumstances, evidence capable of supporting an inference that that driving was objectively dangerous. Again this was 11:30 p.m. on a Friday night; late but not too late. Although traffic was described as light, the test also contemplates in addition to actual traffic, that which might reasonably be expected. Even though they did not, one could have reasonably expected to have encountered traffic on any of those streets, in an urban centre, at that time of night. In fact, the video of the intersection of Gilkison and Colborne at the time of the collision, demonstrated a significant amount of traffic. As well, it was evident persons were out of their residences in and around the same intersection that night, as we heard evidence from three such persons at the preliminary inquiry.

[87] In terms of the mens rea aspect, the jury could easily infer from the evidence that the officers' manner of driving that night was purposeful. That was obvious; they were trying to catch the truck. As well, without pointing it out again, the evidence of the manner of driving is also capable of supporting an inference that the conduct of the officers that night was a marked departure from the standard of care a reasonable officer would have observed in the circumstances.

[88] Many of the same arguments advanced by the defence in relation to the criminal negligence charge applied equally here. The training officers receive; the duties their job imposes on them, and the policies they are governed by, could very well result in the jury declining to draw the inferences the Crown seeks. However at this stage it is not for me to resolve those issues; that is a job for the jury.

[89] Turning to the causation issue, the factual and legal causation inquiries are the same as for the criminal negligence count. It would be open for the jury to infer that the dangerous manner in which the officers drove influenced the driving of Mr. Gamble, and that given the manner of driving, the outcome of this pursuit was reasonably foreseeable by the officers.

[90] The issue of causation perhaps becomes more problematic for the Crown given the factors referred to earlier by the defence in that at the actual time of the collision, the officers' speeds were relatively slow and they were some distance back from the truck. This count as noted focusses on the actual driving of the officers as opposed to their failure to terminate the pursuit earlier, as was the focus in the criminal negligence count.

[91] Given this fact, the defence position that the causal connection between the conduct of the officers and that of Mr. Gamble was severed, arguably becomes stronger.

[92] The Crown argues that these are continuing offences and the temporal connection between the earlier objectively dangerous driving had not been severed. They point out that Officer McMurtrie left Lorne Park and turned onto Gilkison less than a minute before the collision. As well they point out there was evidence that the officers could see the truck at the time of the collision. Given that, it is reasonable to infer that Mr. Gamble was able to still see the police and that his actions were still being influenced by them.

[93] As before, I find that whether the causal connection was severed in the circumstances will be a matter for the jury to decide. It is sufficient that I find that the position of the Crown is one that is open to the jury based on all the evidence presented at the preliminary inquiry.

CONCLUSION

[94] Based on the foregoing reasons, I find that the Crown has satisfied the test for committal in Sheppard and as such both officers will be committed to stand trial in Superior Court on both counts in the Information.

[95] I am grateful to all counsel for the professional and congenial manner in which this matter was presented. This was and is a tragic and difficult case. It was presented with a level of respect and class that was much appreciated by me, and I am sure all involved.

Dated at Brantford, Ontario

This 2nd day of June 2016

The Honourable Mr. Justice R.S. Gee