Interim Report on the Chairperson-Initiated Public Complaint regarding the Death of Mr. Victor Duarte in a Motor Vehicle Incident in Langley, British Columbia

Synopsis

[1] On October 29, 2012, members of the Langley, British Columbia, RCMP Traffic Section were conducting a targeted traffic enforcement operation along 0 Avenue in Langley in response to complaints from the public of speeding and aggressive driving in the area. The RCMP members involved were also using an Automated License Plate Recognition (ALPR) system to monitor passing traffic. Members attempted to stop a truck identified by the ALPR system as being associated to a prohibited driver. The truck failed to stop and fled on 240th Street.

[2] Two unmarked RCMP vehicles attempted to catch up to the fleeing truck but discontinued their attempts shortly thereafter. Within moments, the fleeing truck failed to stop at a stop sign at the intersection of 240th Street and 16th Avenue and collided with a semi-trailer truck. This collision caused the trailer to collide with a third vehicle driven by Victor Duarte. Mr. Duarte sustained fatal injuries as a result of the collision and died at the scene.

[3] The driver of the fleeing truck, Devon Laslop, sustained serious injuries in the collision but survived. Mr. Laslop was charged and convicted of flight from police causing death and was sentenced to three years in jail.

Overview of the Process

[4] On January 9, 2013, the then Interim Chairperson of the Commission for Public Complaints Against the Royal Canadian Mounted Police (now the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police, hereinafter "the Commission")^{Footnote 1} initiated a complaint (Appendix A) into this incident, specifically:

whether the RCMP members or other persons appointed or employed under the authority of the Royal Canadian Mounted Police Act ("the RCMP Act") involved in the events of October 29, 2012, from the moment of initial identification of the suspect vehicle to the time of the collision, complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to speed enforcement and police vehicle pursuits; and,
whether the RCMP's national-, divisional- and detachment-level policies, procedures and guidelines relating to speed enforcement and police vehicle pursuits are adequate.

[5] As provided by the RCMP Act, the complaint was investigated by the RCMP, who provided the Commission with a report authored by Superintendent D. R. Cooke dated June 30, 2014 (Appendix B). In summary, the RCMP found minor deficiencies in the manner in which the RCMP members involved operated the traffic checkpoint and also found deficiencies in the RCMP pursuit policy. The report recommended minor changes to the wording of the RCMP national pursuit policy.

[6] Pursuant to paragraph 45.71(3)(a) of the RCMP Act, the Commission is required to prepare a written report setting out its findings and recommendations with respect to its review of the complaint. This report constitutes the Commission's review into the issues raised in the complaint, and the associated findings and recommendations. A summary of the Commission's findings and recommendations can be found in Appendix C.

Commission's Review of the Complaint

[7] The Commission is an agency of the federal government, distinct and independent from the RCMP. When reviewing a complaint, the Commission does not act as an advocate for either the complainant or the RCMP members. Rather, its role is to inquire into complaints independently and to reach conclusions after an objective examination of the information provided.

[8] The circumstances of the incident were also examined by the Independent Investigations Office of British Columbia (IIO). The mandate of the IIO is to examine the conduct of the RCMP members involved and to determine whether an offence may have been committed. On December 20, 2012, the IIO submitted its report and concluded that no criminal offences were committed by the RCMP members involved.

[9] It should also be noted that the findings and recommendations made by this Commission are distinct from those of the IIO in that the Commission's findings and recommendations are not criminal in nature, nor are they intended to convey any aspect of criminal culpability. The mandate of the Commission is to examine the conduct of RCMP members and to make recommendations to enhance the accountability of the RCMP and to promote excellence in policing. In that sense, the recommendations of the Commission are remedial in nature and strive to improve police policies and processes. Although some terms used in this report may concurrently be used in the criminal context, such language is not intended to include any of the requirements of the criminal law with respect to guilt, innocence or the standard of proof.

[10] The Commission's findings, as indicated below, are based on a thorough review of the RCMP's operational file, including: statements, notes, expert reports, photographs, audio recordings, and video evidence; the RCMP's investigation into the Commission's complaint; the RCMP's report to the Commission; and the report of the IIO. The Commission has also thoroughly canvassed RCMP policy at the national, divisional and detachment level as well as prevailing law and academic research on the topic of police pursuits.

Background Facts

[11] The following account of events flows from witness statements provided during the police investigation, audio logs of conversations between RCMP members and RCMP dispatch, as well as in-car video camera footage and GPS tracking information retrieved from the RCMP vehicles involved. The Commission puts these facts forward, as they are either undisputed or because, on the preponderance of evidence, the Commission accepts them as a reliable version of what transpired. Overall, the Commission finds that there is little dispute over what transpired during this incident. The Commission notes that the availability of in-car video footage from several police vehicles involved provided multiple vantage points of the entire incident and were invaluable in arriving at an objective conclusion as to the sequence of events. The benefit of in-car video recordings to an independent investigation cannot be overstated.

[12] Langley RCMP had received complaints of speeding vehicles and aggressive driving in the area of 0 Avenue in Langley. In response to these complaints, in the late afternoon of October 29, 2012, Langley RCMP Traffic supervisor Corporal Patrick Davies along with Constables Derek Cheng, Gaenor Cox, Robert Johnston, and Hayden Willems were conducting targeted traffic enforcement at the intersection of 0 Avenue and 240th Street.

[13] The RCMP members were targeting vehicles travelling on 0 Avenue. When a violator was identified, Corporal Davies and Constable Cheng, who were on foot, would direct the violator to turn onto 240th Street, where the remaining members would take the applicable enforcement action.

[14] In addition to targeting speeding vehicles, Constable Cox was operating an ALPR system. The ALPR system automatically recognizes licence plates on passing vehicles and rapidly conducts computer checks for violations such as stolen vehicles or licence plates and suspended or prohibited drivers. Members are notified only when the computer detects a "hit" on an approaching vehicle.

[15] At 5:26 p.m., the ALPR system notified Constable Cox that an approaching pickup truck was associated to a prohibited driver. Constable Cox relayed this information to the other members via police radio.

[16] Using hand signals, Corporal Davies and Constable Cheng directed the pickup truck to turn down 240th Street. The driver of the truck complied by turning down 240th Street, but did not stop. Instead, he continued driving on 240th Street and increased speed.

[17] Constable Johnston was beside his police vehicle on 240th Street. His police vehicle was an unmarked SUV pointed towards 0 Avenue. He observed the truck's failure to stop and immediately entered his police vehicle with the intention of stopping the truck.

[18] Constable Johnston took 18 seconds to get into his vehicle and to perform a three-point turn to get oriented in the right direction. During this manoeuvre, he activated the emergency lights and siren on his police vehicle.

[19] Constable Johnston then began to accelerate to catch up to the pickup truck.

[20] The in-car video recordings reveal that the pickup truck was within sight of Constable Johnston's police vehicle for only the first 8 seconds of flight. It is evident that the pickup truck was travelling at high speed, and in any event, faster than Constable Johnston.

[21] Forty-nine seconds later, Constable Johnston turned off his emergency equipment and came to a complete stop on the side of the road and indicated via police radio that the pickup truck was attempting to flee and that he was discontinuing his pursuit.

[22] Meanwhile, Constable Cheng had begun to follow Constable Johnston. Constable Cheng was also driving an unmarked police vehicle and was approximately 14 seconds behind Constable Johnston. Constable Cheng was also operating emergency lights and siren on his police vehicle.

[23] As soon as Constable Johnston told dispatch that he had discontinued his pursuit of the truck, Constable Cheng turned off his emergency equipment and slowed to a normal rate of speed. He passed by Constable Johnston's parked police vehicle and continued driving down 240th Street.

[24] One minute and fifteen seconds later, Constable Cheng reached the intersection of 240th Street and 16th Avenue and observed that a collision had occurred. Sufficient time had elapsed between the collision and Constable Cheng's arrival that several other motorists had exited their vehicles and begun to provide first aid assistance to the injured parties.

[25] Mr. Laslop, the driver of the fleeing pickup truck, can be seen on the in-car video recordings to be lying in middle of the roadway, apparently ejected from his truck. Mr. Duarte, meanwhile, was trapped in his vehicle. No other parties were injured in the collision.

[26] Constable Cheng immediately radioed for additional assistance. Other RCMP members as well as fire and emergency medical personnel were dispatched to the scene. Constable Cheng began to provide first aid assistance and relayed information to dispatch regarding the severity of injuries.

[27] Mr. Duarte was ultimately declared dead at the scene. Mr. Laslop was transported to hospital via air ambulance, escorted by an RCMP member.

[28] The RCMP Integrated Collision Analysis and Reconstruction Service (ICARS) completed a comprehensive investigation of the collision scene. The diagram below was prepared by ICARS and depicts the scene as found after the collision. Vehicle One identified in the diagram is the pickup truck driven by Mr. Laslop. Vehicle Two is the car driven by Mr. Duarte. Vehicle Three is the semi-trailer involved.

[29] The ICARS report concluded that Mr. Laslop's pickup truck was travelling northbound on 240th Street and collided with the right side of the trailer of the semi-trailer truck, which was travelling eastbound on 16th Avenue. After this impact, Mr. Laslop's pickup truck rotated 135 degrees clockwise and left the roadway just north-east of the intersection.

[30] Meanwhile, the trailer of the semi-trailer truck was pushed into the westbound lane of 16th Avenue. Mr. Duarte's vehicle was travelling westbound on 16th Avenue and collided with the left side of the trailer.

[31] The RCMP also retained an outside expert forensic engineering firm to investigate the collision. This firm prepared a report certified by a professional engineer in which Mr. Laslop's pickup truck was determined to be travelling at a speed of 150km/h approximately 5 seconds before the collision. The posted speed limit on 240th Street is 60 km/h.

[32] The RCMP's criminal investigation into Mr. Laslop confirmed that at the time of the incident, Mr. Laslop was a prohibited driver in British Columbia. This prohibition stemmed from the provisions of the British Columbia Motor Vehicle Act and was the result of a lengthy driving record which included 31 provincial traffic violations between 2004 and 2012. These violations included two prior convictions for driving while prohibited.

[33] The RCMP recommended charges and the Crown ultimately charged Mr. Laslop with three offences: flight from police causing death (section 249.1 Criminal Code), dangerous driving causing death (subsection 249(4) Criminal Code), and driving while prohibited (section 95 British Columbia Motor Vehicle Act).

[34] Mr. Laslop pled guilty and was convicted of flight from police causing death and driving while prohibited, resulting in a three-year jail sentence as well as fines and additional driving prohibitions.

Analysis

FIRST ISSUE: Whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in the events of October 29, 2012, from the moment of initial identification of the suspect vehicle to the time of the collision, complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to speed enforcement and police vehicle pursuits.

[35] The first question facing the Commission is whether the RCMP members involved in this incident were in compliance with all national, divisional and detachment policies in relation both to the traffic enforcement operation and the ensuing attempts to stop Mr. Laslop.

[36] At the national level, RCMP policy provides limited guidance on the operation of traffic enforcement checkpoints. Relevant policy is found within part 5 of the RCMP national Operational Manual, and includes the following:

1.2. Traffic enforcement and safety programs should be selectively planned by analyzing collision statistics, seat belt and impaired driving, with enforcement/compliance, surveys, traffic volume, and weather.

1.3. Members performing traffic duties must identify road safety issues in their area. Identified road safety issues should be aggressively enforced.
. . .
2.1. While outside a police vehicle, a member performing traffic duties must at all times wear an approved high-visibility vest or jacket.
. . .
3.1. The courts have ruled the detention of motorists in a traffic checkpoint is an arbitrary detention which infringes upon sec. 9, Canadian Charter of Rights and Freedoms. However, the courts have held decisions that traffic checkpoints are justified pursuant to sec. 1 of the Charter to combat grave and pressing problems arising from death and injury caused by the dangerous operation of vehicles. Traffic checkpoints are to be used only to enforce traffic-related laws.

3.2. The courts have ruled it is appropriate for police conducting traffic checkpoints to ask questions concerning the mechanical condition of the vehicle, and require the driver to produce his/her driver's licence, vehicle registration and insurance coverage.^{Footnote 2}

[37] The RCMP divisional Operational Manual provides a similar degree of guidance for operations in British Columbia. The relevant portions include the following:

1.1. Enforcement of traffic laws and delivery of traffic safety programs must be a planned activity, predicated on an analysis of collisions and other traffic problems.

. . .
3.2.1. When conducting any type of traffic enforcement or performing traffic control duty, ensure that safety precautions are taken, for the protection of the public, and police personnel. [Emphasis added]^{Footnote 3}

[38] Later in this report, the Commission will address the adequacy of this policy and RCMP training.

[39] In the present case, at least one RCMP member on scene was aware that the setup of the enforcement checkpoint was potentially confusing for motorists. In his statement to the IIO, Constable Johnston stated:

On numerous occasions, vehicles have been directed by RCMP members to pull off onto these Streets from 0 Avenue, sometimes the vehicles continue north bound on the Streets. The members then proceed to close the distance on the vehicles stopping them 4 to 6 blocks north of 0 Avenue. The most common reason from drivers is that they believed the member was directing them north due to the road being closed due to a detour or closure. [sic throughout]

[40] Mr. Laslop provided a statement to the IIO. In this statement, Mr. Laslop stated that when he was initially directed to turn from 0 Avenue onto 240th Street, he believed it was due to a detour, thus adding credence to Constable Johnston's comments.

[41] Despite this knowledge, the traffic operation was not set up in a manner to ease the confusion. The diagram below depicts the setup of the operation on October 29, 2012. As can be seen in the diagram, three of the four police vehicles in use were unmarked vehicles and all four vehicles were parked on the side of 240th Street facing 0 Avenue. The vehicles did not have emergency lights activated that would be visible to traffic being directed to turn onto 240th Street from 0 Avenue, nor was there a member present to issue clear directions to vehicle drivers.

[42] The statement provided by Constable Johnston suggests that members relied on turning around and closing the distance instead of proactively taking steps to ensure that drivers were given clear instructions.

[43] The action of "closing the distance" is described in RCMP policy. This policy reads in part as follows:

8.1. Attempting to close the distance (catching up) between a police vehicle and another vehicle is not the same as a pursuit.

8.2. Before attempting to close the distance, a risk assessment must be applied and public/police safety considered. The risk assessment process will be continually applied.

8.3. Emergency lights must be used when closing the distance. The siren will also be used if the risk assessment indicates a risk to public and police safety. The siren may be discontinued once the offender's vehicle has pulled over and stopped for the police vehicle.^{Footnote 4}

[44] The fact that the RCMP policy highlights the need for a continuous risk assessment implies that the act of closing the distance is inherently dangerous. Closing the distance will necessarily mean that the police vehicle travels faster than the target vehicle. If a target vehicle is driving at or near the speed limit, this means that the police vehicle must significantly exceed the speed limit to catch up.

[45] This implication is bolstered by the British Columbia Emergency Vehicle Driving Regulations^{Footnote 5} enacted pursuant to the Motor Vehicle Act,which define closing the distance as increasing the risk of harm. The regulations include the following:

4 (6) Factors which will increase the risk of harm to members of the public for purposes of subsections (1), (2) and (5) include

attempting to close the distance between a peace officer's vehicle and

another vehicle . . . .

[46] Based on these factors, the Commission finds that the process of "closing the distance" is inherently dangerous.

[47] In the present case, the GPS tracking data suggests that in closing the distance, the police vehicles involved reached a speed of approximately 120km/h in a posted 60km/h zone.

[48] Knowing that drivers were confused by the traffic operation, it was incumbent on the RCMP members present to take appropriate safety precautions to reduce the risk to the public. In the present case, this would have included eliminating the confusion and ensuring that drivers received clear instructions. In failing to do so, the members present violated the RCMP divisional policy.

[49] As the ranking member present, a greater onus was on Corporal Davies to ensure that the checkpoint operation was set up in a safe manner.

[50] The Commission is satisfied that the operational guidance already provided to the members as noted in Superintendent Cooke's report as well as the broader policy recommendations that follow in this report are sufficient remedies to these deficiencies.

Finding No. 1: The RCMP members involved in the events of October 29, 2012, failed to comply with "E" Division Operational Manual policy, which required members to ensure that safety precautions were taken.

Finding No. 2: Corporal Davies failed to properly supervise the traffic checkpoint operation.

[51] The next issue concerning the conduct of the members involves a closer examination of the decision to close the distance. The RCMP national Operational Manual makes a clear distinction between closing the distance and a pursuit. The policy definitions read in part as follows:

2.1. Closing the distance means the act of catching up to a vehicle but does not include a pursuit. . . .

. . .

2.3. Pursuit means the operation of an emergency vehicle for the purpose of apprehending a person who refuses to stop as directed by a peace officer and attempts to evade apprehension. [Emphasis in original]^{Footnote 6}

[52] The RCMP national policy on pursuits provides several limitations on the ability for a member to initiate a pursuit:

4.1. A pursuit will not be initiated for the following types of offences:
4.1.1. taking a motor vehicle without the owner's consent as defined at sec. 335, CC;
4.1.2. theft of a vehicle as defined at sec. 334, CC;
4.1.3. possession of a stolen vehicle as defined at sec. 354, CC;
4.1.4. flight from police as defined at sec. 249.1, CC or dangerous driving as defined at sec. 249, CC, when the only evidence of either offence is gained while conducting a vehicle stop or closing the distance;
4.1.5. a violation of a federal traffic regulation;
4.1.6. a violation of a provincial statute or provincial regulation offence;
4.1.7. a violation of a municipal bylaw offence; and
4.1.8. a property-related offence in general.^{Footnote 7}

[53] In the present case, the RCMP members were attempting to stop Mr. Laslop's vehicle for a provincial traffic violation (driving while prohibited). Accordingly, it would have been contrary to national policy for members to have initiated a pursuit (see section 4.1.6 above).

[54] To determine whether the members involved were in fact closing the distance or engaging in a pursuit, a parsing of the definitions is required. To invoke the pursuit policy, the national policy definition of a pursuit as cited above in paragraph [51] requires a person to:

Refuse to stop as directed by a peace officer; and
Attempt to evade apprehension.

[55] Superintendent Cooke, in his report, takes the approach at page 25 that:

. . . even if it was clear that the suspect was attempting to flee apprehension, the members did not enter into a pursuit because at no time had the suspect been clearly directed to stop. This would have been my finding regardless of how obvious it may have been that the suspect was attempting to avoid apprehension from the moment he drove past the members.

[56] The Commission adopts a different view. The direction to stop by a peace officer can come in a variety of different forms. These forms could include the emergency lights of a pursuing police car, a verbal order from a member on foot, a hand gesture from a member, or a "STOP" sign held by a member. Furthermore, the direction could be implied by the circumstances as a whole, such as a police vehicle parked to block a roadway.

[57] It is crucial to recognize that the purpose of the pursuit policy is to circumscribe the situations in which a member is permitted to pursue a vehicle, not to define elements of the Criminal Code offence of flight from police. Accordingly, the policy must be read in accordance with this purpose.

[58] In the present case, there is information to suggest the members recognized that this was not a typical "closing the distance" situation.

[59] Constable Johnston, in his statement to the IIO, stated that:

[He] observed Cst. CHENG and Cpl. DAVIES start to run towards Cst. JOHNSTON's police cruiser, upon realizing the vehicle was not going to stop. . . . [He] proceeded to attempt to close the distance on the rapidly disappearing suspect vehicle. [He] estimated the vehicles speed to be reaching 120 plus kph. [sic throughout]

A vehicle accelerating rapidly to twice the posted limit is not consistent with a driver who was simply confused about a direction to stop. It is far more consistent with a driver who is attempting to flee.

[60] Constable Cheng, in his police report, stated:

Cst. Cheng yelled at Cst. JOHNSTON words to the effect of, "Bobby! Stop that truck taking off on us! He's a prohib(ited) driver!"

Again, this commentary is consistent with a recognition that a driver is fleeing and not just confused.

[61] In addition, it is noteworthy that two police vehicles immediately began to intercept Mr. Laslop's vehicle. Were this a case where the members merely needed to signal a confused driver to pull over, it is unlikely that two vehicles would have been required. It is more likely that the members recognized the potential that this situation was a pursuit.

[62] Corporal Davies, in his police report also stated:

The pickup completed its turn, and then instead of pulling over, accelerated north on 240 Street. . . . Cpl. DAVIES got on the police radio main channel, and informed dispatch that a vehicle had failed to stop for officers at the stationary road check. . . . Cpl. DAVIES requested that Chilliwack R.C.M.P. be informed, so that an officer could attend [Mr. Laslop's] address. Cpl. DAVIES inquired whether Air One (the police helicopter) was available, but it was not. The vehicle description was broadcast to other R.C.M.P. officers in the Aldergrove area. Monitoring the police radio, Cpl. DAVIES heard Cst. JOHNSTON state the suspect vehicle was not stopping, and that Cst. JOHNSTON was pulling over, and shutting off his emergency equipment.

Corporal Davies' actions do not seem consistent with a member who believed a driver was confused and would stop as soon as a police vehicle signalled them to do so. Instead, it seems clear that Corporal Davies understood that Mr. Laslop was attempting to flee, and was seeking alternative methods to interdict him.

[63] Mr. Laslop, in his statement to the IIO, indicated that as soon as he realized the police's intention to stop him, he "floored it" and quickly reached a speed of about 160 km/h.

[64] The in-car video recording from Constable Johnston's vehicle depicts Mr. Laslop's pickup truck as fleeing at an extremely high rate of speed.

[65] The Crown ultimately charged and convicted Mr. Laslop with flight from police based on the RCMP's recommendation of charges. The elements of this offence include:

Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motor vehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in the circumstance.^{Footnote 8} [Emphasis added]

Superintendent Cooke's later assertion in his report to the Commission that "[i]n light of the fact that the driver was not directed to stop, by definition a pursuit did not occur . . . ."^{Footnote 9} is inconsistent with the RCMP's recommendation to the Crown to charge Mr. Laslop with flight from police.

[66] Based on the foregoing, it appears that the RCMP members involved formed the reasonable belief that Mr. Laslop was attempting to flee.

[67] In his report to the Commission, Superintendent Cooke appears to validate this position at page 22:

It was also reasonable for the officers to believe that if in the first instance the driver was attempting to take advantage of the manner in which he was directed onto 240 Street, that he may have stopped for police once a police car "closed the distance" and signalled him to pull over. I can state unequivocally from my own 32+ years of policing experience that I have encountered many instances in which drivers made an effort to avoid being pulled over by the police (by turning onto a side road or other means), but would not engage in a pursuit once the police had pulled in behind with a police vehicle and signaled him/her to stop.

[68] In the excerpt of his report above, Superintendent Cooke suggests that it is acceptable to "close the distance" and pull in behind a target vehicle despite efforts made by the driver to evade police. Superintendent Cooke's position is, with respect, not that reflected in the RCMP national policy. Under the existing policy, once a vehicle has refused to stop for police and has made an attempt to evade police, the pursuit policy – and not the "closing the distance" policy – must immediately apply.

[69] In the present case, the offence for which Mr. Laslop was being pursued was not an offence for which a pursuit could be initiated. As noted earlier, a pursuit cannot be initiated under the RCMP national Operational Manual for a provincial traffic violation such as driving while prohibited. Furthermore, section 3.4. of this policy also applied:

3.4. Only a fully marked police vehicle equipped with emergency equipment may be used in a pursuit.

EXCEPTIONS:

An unmarked police vehicle may be used in a pursuit only if it is absolutely necessary to protect life. Use of an unmarked police vehicle in a pursuit must be relinquished to a fully marked police vehicle as soon as possible.^{Footnote 10}

[70] Both police vehicles that attempted to stop Mr. Laslop were unmarked police vehicles. There is no information to support the proposition that use of an unmarked vehicle was necessary to protect life.

[71] The RCMP members involved also had the licence plate of Mr. Laslop's vehicle and, as per the radio logs, knew the identity of the driver and the likely reason he had failed to stop (i.e. his prohibited driving status). There was no urgency to stop Mr. Laslop at that point. A provincial offence ticket could always be issued at a later date without the immediate need to stop Mr. Laslop.

[72] The Commission finds that Constables Johnston and Cheng engaged in a pursuit contrary to policy. Furthermore, Corporal Davies was present and fully apprised of the situation. As a supervisor, he ought to have directed Constables Johnston and Cheng to immediately discontinue their attempts to stop Mr. Laslop.

[73] The importance of these findings is underscored by the statement provided by Mr. Laslop to the IIO in which he explains that seeing the police emergency lights in his rear view mirror pressured him to continue driving in a reckless manner in an attempt to escape. While Mr. Laslop is solely responsible for the criminal behaviour that led to Mr. Duarte's death, a different approach by members at the checkpoint may have prevented this tragedy. It is precisely this type of reaction by a fleeing driver that the pursuit policy is designed to prevent.

[74] In light of the Commission's findings and recommendations related to RCMP policy and training later in this report, no additional recommendations are necessary with respect to remedial actions against the specific members involved in this incident.

Finding No. 3: Constable Johnston and Constable Cheng engaged in a pursuit contrary to policy.

Finding No. 4: Corporal Davies failed to direct Constable Johnston and Constable Cheng to discontinue their pursuit.

SECOND ISSUE: Whether the RCMP's national-, divisional- and detachment-level policies, procedures and guidelines relating to speed enforcement and police vehicle pursuits are adequate.

[75] For the detailed reasons that follow, the Commission finds that the RCMP policies both with respect to traffic enforcement checkpoints and police vehicle pursuits are inadequate. The policies with respect to each topic will be examined separately.

[76] The Commission sees no British Columbia-specific issues in this matter and accordingly makes all its recommendations in relation to national policy.

Traffic Enforcement Checkpoints

[77] As discussed earlier in this report, neither RCMP national nor divisional policy offers clear guidance on the operation of traffic checkpoints. The Commission appreciates that the wide scope of RCMP duties and responsibilities involving policing in both urban and rural areas necessarily means that policy must allow some degree of discretion. However, the Commission finds that a policy statement that members must "ensure that safety precautions are taken, for the protection of the public, and police personnel,"^{Footnote 11} without any description or training related to what such appropriate safety precautions may be is, at best, unhelpful. At worst, this policy transfers liability to members to ensure safety without providing guidance or training to them on how to accomplish this goal.

[78] In reviewing this matter, the Commission has studied academic research and police policies from various police forces in North America.

[79] The Commission has also considered the comments of Superintendent Cooke in his report on this matter. In this report, Superintendent Cooke notes at page 24 that:

I believe Cpl. Davies and Cst. Cheng should have made it very clear to the driver of the pick-up truck that he was to pull to the side of 240th Street and stop. This could have been accomplished through more specific hand gestures, by having a member on 240 Street in position to direct the pick-up truck to the side of the road, or by stopping the pick-up truck on 0 Avenue and speaking with the driver to provide specific direction.

[80] Superintendent Cooke formed this opinion after concluding on page 23 that:

. . . it is possible that the driver of the pick-up (or any other driver provided similar directions) could have believed there had been a collision or some other incident on 0 Avenue and he was simply being detoured. Such a belief would have been supported by the fact that no one specifically directed him to stop.

[81] Superintendent Cooke's opinion was supported by the interview with Constable Johnston, who told the IIO investigator that it was not uncommon for drivers at this particular location to not immediately stop until members pulled them over with a police vehicle, and by the statement given by Mr. Laslop to the IIO in which he states that he was initially confused by the direction given by the members.

[82] The research studied by the Commission suggests that one aspect of an individual's decision to flee from police is based upon their assessment of the likelihood of a successful escape. That is to say, the more likely it is that an individual perceives that they will successfully escape police, the more likely it is that they will attempt to flee.^{Footnote 12}

[83] In the present case, the set-up of the traffic enforcement operation resulted in the following factors when attempting to stop Mr. Laslop:

Ambiguous hand gestures to Mr. Laslop that did not clearly direct him to stop;
No barriers or impediments on 240th Street that would interfere with Mr. Laslop's ability to flee;
All visible police vehicles pointed in the wrong direction (i.e. towards 0 Avenue) to pursue Mr. Laslop;
A long, empty and straight stretch of roadway for Mr. Laslop to quickly accelerate.

[84] A more structured operation may have reduced the likelihood of Mr. Laslop's attempt to flee. Based on a review of academic literature and the specific circumstances of this review, the Commission has drafted the following general steps that should be considered when implementing police checkpoints, for the RCMP's consideration when drafting policy or training with respect to checkpoints:

Selection of a roadway where the posted speed limit, visibility, and traffic volume permit drivers sufficient time to slow and stop upon direction by police;
Positioning of police vehicles and traffic cones in a manner that requires vehicles to slow and manoeuvre, thus permitting members to issue a direction to stop and allowing members time to view and identify the driver;
Positioning police vehicles in a manner and orientation that they are ready to immediately stop a vehicle if necessary;
The use of a portable or hand-held "STOP" sign to ensure that the requirement to stop is made clear;
Positioning of an "escape prevention vehicle" equipped with a tire deflation device parked sufficiently close so as to remain visible to drivers at the checkpoint but far enough away to allow a tire deflation device to be deployed if necessary.

The two diagrams below illustrate how the checkpoint at 0 Avenue and 240th Street was set up at the time of the incident and how it could have been implemented using the recommendations above. Note that the positioning of the police vehicles also provides some physical cover for the members on foot, reducing the risk that they will be struck by traffic.

Figure 1. Checkpoint set-up as implemented on October 29, 2012:

Figure 2. Example of a checkpoint set-up incorporating recommendations:

[85] The "escape prevention vehicle" equipped with a tire deflation device serves three purposes. First, it provides a visible deterrence to drivers who may be tempted to flee; knowing that a vehicle is positioned ahead and ready to intercept reduces the perception of a successful escape. Second, it allows the deployment of a tire deflation device if a vehicle fails to stop. Such a deployment does not necessarily invoke the pursuit policy or require a pursuit. Finally, the vehicle provides advance warning to drivers travelling in the opposite direction (i.e. towards the checkpoint on 240th Street) and thus reduces the risk of injury due to traffic collisions at the checkpoint.

[86] The use of unmarked vehicles should be discouraged at a traffic checkpoint. The RCMP divisional policy states that:

4.1.1.2 The percentage of ‘clean-roof' and fully unmarked vehicles must not exceed 40% (20% for each type) of the total vehicles on strength to the traffic services unit.^{Footnote 13}

[87] In the present incident, of the total vehicles involved in the traffic operation, only one (20%) was a fully marked vehicle. While this is not necessarily indicative of the total vehicles on strength to the traffic services unit^{Footnote 14} and therefore not necessarily in breach of the policy, the lack of fully marked vehicles may have contributed to the confusion noted by Constable Johnston.

[88] This view finds some support in RCMP national policy. The RCMP Incident Management/Intervention Model (IM/IM) policy notes the following with respect to officer presence:

While not strictly an intervention option, the simple presence of an officer can affect both the subject and the situation. Visible signs of authority such as uniforms and marked police cars can change a subject's behaviour. [Emphasis added]^{Footnote 15}

[89] The Commission recommends that as a part of national policy, fully marked vehicles should be used when available for traffic checkpoints.

Finding No. 5: The RCMP national policies relating to traffic checkpoints are inadequate.

Recommendation No. 1: That RCMP national policy be amended to provide specific guidance on the set-up of police checkpoints to minimize the risk of vehicle pursuits, including the use of an escape prevention vehicle and the use of fully marked police vehicles when available.

[90] In addition to policy changes, traffic operations are a high-risk area and ought to be the subject of operational training. In his report to the Commission, Superintendent Cooke describes the training provided to the members involved. The training with respect to vehicle checkpoints appears limited to instruction on the use of hand gestures during RCMP basic training. No refresher training or training in relation to the planning of checkpoints appears to have been conducted.

[91] It is essential that any member involved in planning a checkpoint be given training on how to minimize the risks inherent in such an operation. In addition to the risks of a pursuit, traffic checkpoints are a high risk to members on foot in terms of being struck by a vehicle and to the public, whose reaction to a traffic checkpoint may increase the risk of collisions between vehicles.

[92] Furthermore, this training should highlight alternative methods of enforcement such as issuing violation tickets or a summons at a later date should a vehicle evade the checkpoint. The use of a video camera to record the identity of drivers and infractions could be of benefit to such a course of action.

Recommendation No. 2: That the RCMP provide additional training to any regular member involved in checkpoint operations on how to plan vehicle checkpoints so as to minimize the risk of pursuits and vehicle collisions. This training should also emphasize alternative methods of enforcement.

Police Vehicle Pursuits

[93] Police vehicle pursuits have long been recognized to be a high-risk activity. For instance, in Parliamentary hearings related to amendments that ultimately made flight from police an offence under the Criminal Code, a witness testifying in front of the House of Commons Standing Committee on Justice and Human Rights stated that, in the province of Ontario alone, "between 1991 and 1997 over 10,000 high-speed chases occurred, which resulted in 2,415 people injured and 33 deaths."^{Footnote 16}

[94] A 2003 report by the Queensland, Australia, Crime and Misconduct Commission on the topic of police pursuits noted that in Queensland, 29% of all pursuits studied involved a collision and 11% resulted in injury. The report noted that the driver was charged with a more serious offence than the one for which the police were pursuing them in less than 10% of cases.^{Footnote 17}

[95] Meanwhile, the Justice Institute of British Columbia has estimated that up to 38% of police pursuits in British Columbia end in collisions with injuries in 15% of cases.^{Footnote 18}

[96] Additionally, recent research from the United States suggests that approximately 30% of police pursuits end in vehicle collisions.^{Footnote 19} The researchers arrived at the conclusion that:

When a suspect refuses to stop, a routine encounter can turn quickly into a high-risk and dangerous pursuit where the officer's "show of authority" may affect the suspect's driving. As proactive enforcement may influence (i.e., increase) the number of suspects fleeing, there is a need for enhanced training for officers so they understand how their behavior affects the behavior of the fleeing suspect. . . .

Pursuing a suspect raises risks to all involved parties and innocent bystanders who happen to be in the wrong place at the wrong time. One way to help officers understand how to balance the risk and benefits of pursuit is to have them apply the same standards used in weighing the firing of a weapon in a situation where they may endanger innocent bystanders by shooting. . . . By comparison, in pursuit, the officer has not only his or her vehicle to worry about, but also must consider the path taken by the pursued vehicle and the driver's capacity and skill to control it. Indeed, the risk is amplified by dangerous situations created by innocent drivers attempting to get out of harm's ways.^{Footnote 20}

[97] As a whole, the data suggest that there is a substantial risk of collision, injury, and death associated with police pursuits and that the discovery of a more serious underlying offence is relatively rare.

[98] Furthermore, the need for broad changes to the manner in which police pursuits are conducted has been echoed by researchers and police forces. Some excerpts from relevant reports include:

The pursuits and emergency responses that generate the most risk to officers should be eliminated except in the most extreme situations. By way of another example, the number of pursuits, crashes, and deaths could be reduced if officers chased only violent felons. . . . Also, in the case of emergency responses, officers should recognize that few are necessary to protect life and the ones that are should be undertaken at slower speeds and without endangering themselves or others at intersections and other high-risk areas.^{Footnote 21}
All police drivers, managers and post-incident investigators must recognize that pursuits are inherently dangerous and that, when a pursuit is initiated, there is an unknown and unpredictable possibility that it will result in a collision. Once initiated, the officers have relatively little control over that risk in the majority of cases.^{Footnote 22}
. . . a categorical approach would provide the much needed mechanism to improve this area of the law. By recognizing high-speed pursuit as a valid exercise of police authority only for certain categories of suspects, this approach would prevent police officers from having to perform a complex balancing test in the seconds before a decision to pursue, [and] reduce the exposure of innocent third parties to the risk of injury from high-speed pursuits . . .
If the categorical mechanism were in place, it would provide a strong presumption against initiating a high-speed pursuit and rely instead on the possibility of later apprehension. A categorical approach would also create strong incentives to develop alternative methods of capturing suspects.^{Footnote 23}

[99] The present incident is a particularly tragic example of how Mr. Laslop's perception that he was still being pursued by police led to his decision to enter a 4-way intersection at nearly 150 km/h to evade capture for a provincial traffic offence. This perception was arguably linked to the RCMP members' use of the "closing the distance" policy.

[100] The Commission agrees with Superintendent Cooke's conclusion in his report that the RCMP pursuit policy definitions of "closing the distance" and "pursuit" are unclear. This finding has also been echoed in academic research that noted that "closing the distance" is "functionally equivalent to pursuits."^{Footnote 24}

[101] Instead of a permissive policy of "closing the distance" that may be broadly interpreted, the Commission recommends eliminating the concept of "closing the distance" in favour of a clearer definition of pursuit with an articulable threshold for when a pursuit begins.

[102] As per the prevailing research previously discussed, such a policy should be based on the actions of the driver of the subject (or target) vehicle and not the police vehicle, as the purpose of the policy is to reduce risk. If a subject vehicle is driven in a manner to evade police, the risk level necessarily increases, and therefore the pursuit policy should apply.

Finding No. 6: The RCMP national policies relating to police vehicle pursuits are inadequate.

Recommendation No. 3: That RCMP national policy be amended to remove the concept of "closing the distance."

Recommendation No. 4: That the definition of a "pursuit" in RCMP national policy incorporate the concept that a pursuit begins once the driver of a subject vehicle takes any evasive action to distance the vehicle from police, regardless of whether police emergency equipment has been activated on the police vehicle(s) involved in attempting to intercept the subject vehicle.

Recommendation No. 5: That RCMP national policy impose a requirement on members to immediately discontinue attempts to stop a vehicle once the pursuit definition is met, unless the pursuit may continue pursuant to criteria outlined in the policy. (The criteria is proposed in Recommendation No. 8.)

[103] RCMP national policy appears to suggest a link between pursuits and use of force. The Emergency Vehicle Operations (Pursuits) policy notes as follows:

1.2 The Incident Management Intervention Model (IMIM) must guide any decision to initiate, continue, or terminate an emergency vehicle operation. See ch. 17.1.^{Footnote 25}

[104] The IM/IM, which is used to train and guide members in the use of force, promotes risk assessment and depicts various levels of behaviours and reasonable intervention options. The IM/IM is based on the principle that the best strategy employs the least intervention necessary to manage risk. Accordingly, the best intervention causes the least harm or damage. The guide promotes the use of verbal interventions wherever possible, both to defuse potentially volatile situations and to promote professional, polite and respectful attitudes to all. These guidelines are based on situational factors when determining whether to use force and what amount of force is necessary in the circumstances.

[105] While the RCMP pursuit policy directs the reader to the IM/IM policy, the IM/IM policy does not include information related to driving or police pursuits. The IM/IM is summarized in a "wheel" that depicts subject behaviour and appropriate officer response based on the subject's behaviour. Figure 3 is a copy of the IM/IM "wheel" from RCMP national policy:

Figure 3. Incident Management/Intervention Model.

Text Version

[106] The IM/IM policy includes risk assessment tools based on situational factors, subject behaviours, perception and tactical considerations, as well as intervention options. Despite it being referenced by the RCMP vehicle pursuit policy, the IM/IM policy does not address vehicle pursuits in any fashion.

[107] The levels of force that may be employed by the members are described in the IM/IM as follows:^{Footnote 26}

Officer Presence

While not strictly an intervention option, the simple presence of an officer can affect both the subject and the situation. Visible signs of authority such as uniforms and marked police cars can change a subject's behaviour.

Communication

An officer can use verbal and non-verbal communication to control and/or resolve the situation.

Physical Control

The model identifies two levels of physical control: soft and hard. In general, physical control means any physical technique used to control the subject that does not involve the use of a weapon.

Soft techniques may be utilized to cause distraction in order to facilitate the application of a control technique. Distraction techniques include but are not limited to open hand strikes and pressure points. Control techniques include escorting and/or restraining techniques, joint locks and non-resistant handcuffing which have a lower probability of causing injury.

Hard techniques are intended to stop a subject's behaviour or to allow application of a control technique and have a higher probability of causing injury. They may include empty hand strikes such as punches and kicks. Vascular Neck Restraint (Carotid Control) is also a hard technique.

Intermediate Weapons

This intervention option involves the use of a less-lethal weapon. Less-lethal weapons are those whose primary use is not intended to cause serious injury or death. Kinetic energy weapons, aerosols and conducted energy weapons fall within this heading.

Lethal Force

This intervention option primarily involves the use of conventional police firearms (duty pistol, shotgun, rifle, patrol rifle etc). The use of these firearms are intended to, or are reasonably likely to cause serious bodily injury or death through ballistic force, i.e., a lead projectile, when facing subject behaviour(s) that may result in Grievous Bodily Harm or Death.

[108] The empirical evidence already discussed suggests that vehicle pursuits create a significant risk of grievous bodily harm or death.

[109] In the Commission's view, vehicle pursuits should be included in the IM/IM definition of "lethal force."

Recommendation No. 6: That the RCMP Incident Management/Intervention Model be amended to include vehicle pursuits under the "lethal force" category.

[110] RCMP members currently receive regular refresher training on the IM/IM. Given the Commission's recommendation that vehicle pursuits be included in the IM/IM, the Commission further recommends that the member's regular IM/IM refresher training include training on RCMP pursuit policy.

[111] This training should ensure that members apply the same risk assessment model to the decision on initiating a police pursuit as they do to the use of lethal force.

Recommendation No. 7: That RCMP Incident Management/Intervention Model refresher training include training on vehicle pursuits.

[112] The current RCMP policy regarding vehicle pursuits includes a list of offences for which a vehicle shall not be pursued. That list includes:

4.1. A pursuit will not be initiated for the following types of offences:

4.1.1. taking a motor vehicle without the owner's consent as defined at sec. 335, CC;
4.1.2. theft of a vehicle as defined at sec. 334, CC;
4.1.3. possession of a stolen vehicle as defined at sec. 354, CC;
4.1.4. flight from police as defined at sec. 249.1, CC or dangerous driving as defined at sec. 249, CC, when the only evidence of either offence is gained while conducting a vehicle stop or closing the distance;
4.1.5. a violation of a federal traffic regulation;
4.1.6. a violation of a provincial statute or provincial regulation offence;
4.1.7. a violation of a municipal bylaw offence; and
4.1.8. a property-related offence in general.^{Footnote 27}

[113] The Commission agrees that the above list of offences does not justify the risk of a pursuit. However, such a list leaves out many other offences that would also not justify the risk of a pursuit. Given that the Commission has recommended that vehicle pursuits be classified as a "lethal" use of force, it follows that such force must only be used in exceptional circumstances where life is at risk. Accordingly, given the wide variety of criminal offences, it is easier to articulate those where a pursuit may be justified instead of listing those where it would not be.

[114] In light of this and the previously cited broad base of academic research supporting a drastic reduction in vehicle pursuits, the Commission recommends that RCMP national policy be amended to include a blanket prohibition on pursuits except for those situations where there is an imminent risk to the public. The Commission has furnished sample wording as follows:

Recommendation No. 8: That RCMP national policy be amended to clearly prohibit vehicle pursuits unless the member reasonably believes that a vehicle occupant has committed or is imminently about to commit a serious indictable offence of violence against another person and the risks to the public in not immediately apprehending the suspect outweigh the risks to the public, the police, and the suspect in continuing the pursuit.

[115] Given the dangers inherent in police pursuits, the RCMP must prioritize alternative methods to apprehend even those who would otherwise meet the criteria in the recommended policy amendments.

[116] Although research has demonstrated that helicopters offer an impeccable record of safely apprehending fleeing suspects,^{Footnote 28} the Commission recognizes that the rural nature of RCMP policing does not make helicopter support economical in most regions.

[117] Emerging technologies such as GPS tracking devices that can be quickly deployed, unmanned aerial vehicles that can offer quick and affordable aerial surveillance, and electronic vehicle immobilizers all appear to warrant study.^{Footnote 29}

Recommendation No. 9: That the RCMP research emerging technologies such as GPS tracking devices, unmanned aerial vehicles, and electronic vehicle immobilizers to develop effective and safer alternatives to vehicle pursuits.

[118] Although the Commission was able to review statistics and research from the United States pertaining to police vehicle pursuits, a dearth of information relating to the Canadian experience was noted. For instance, there is no collection or reporting of pursuit-related injuries or fatalities at a national level in Canada.

[119] Without solid data, it is difficult to track the effects of policy changes. Evidence-led policing requires that accurate statistics be collected and made available to researchers and oversight bodies.

[120] RCMP national policy currently requires the completion of a Subject Behaviour/Officer Response (SB/OR) form when certain types of force are used. For instance, the completion of the form is necessary when a conducted energy weapon (e.g. a Taser) is used in any fashion in an incident, whether the weapon was actually fired or not. The form requires detailed information concerning the factors that led to the use of force. This allows the RCMP to investigate trends on a national level and to better implement evidence-led policy.

[121] Given the Commission's recommendation to add vehicle pursuits to the IM/IM, the Commission also recommends that the SB/OR form be updated to allow for submissions for vehicle pursuits. This would replace the forms currently used at a divisional level and allow for national collection and aggregation of data.

Recommendation No. 10: That the RCMP amend national policy to require the completion of the Subject Behaviour/Officer Response form for all vehicle pursuits, including abandoned pursuits. To accomplish this recommendation, the RCMP must amend the form to include the relevant situational factors relative to a vehicle pursuit.

[122] As a corollary to recommendation no. 10, the Commission recommends that the RCMP publish the aggregated pursuit data for the benefit of the Commission and other researchers.

Recommendation No. 11: That the RCMP publish an annual report with detailed statistics gathered from the aggregated pursuit data, including the number of pursuits initiated, the outcome of those pursuits, the number of collisions, injuries, and fatalities as a result, and the ultimate judicial outcomes.

Comment

[123] The circumstances of this report and the death of Mr. Duarte are without question very tragic. This report cannot bring back what was lost through the criminal actions of one person. However, the Commission is optimistic that a modernization of RCMP policy and procedures related to checkpoints and vehicle pursuits combined with additional training can result in safer practices that will reduce the risks to police, the public, and suspects alike when police engage in traffic enforcement operations.

Disposition

[124] Having considered the complaint, I hereby submit my Interim Report in accordance with paragraph 45.71(3)(a) of the RCMP Act.

________________________
Ian McPhail, Q.C.
Chairperson

Appendix A – Chair-Initiated Complaint

File No.: 2013-0073

January 10, 2013

As Interim Chair of the Commission for Public Complaints Against the RCMP, I am initiating a complaint into the conduct of those members of the Langley RCMP Traffic Section involved in speed enforcement along O Avenue in Langley, and who attempted to stop a pickup truck at approximately 5:26 p.m. on October 29, 2012.

The facts as known indicate that on October 29, 2012, members of the Langley RCMP Traffic Section conducting speed enforcement along O Avenue discerned that a passing vehicle was associated with a prohibited driver. The vehicle did not stop following members' attempts to wave the vehicle to the side of the road. As a result, two unmarked RCMP vehicles followed the vehicle in an attempt to conduct a traffic stop. The members shortly ceased efforts to approach the vehicle. Shortly thereafter, the vehicle was involved in a collision, as a result of which Mr. Victor Duarte's vehicle was struck. Mr. Duarte died at the scene, and the driver of the suspect vehicle was seriously injured.

The Independent Investigations Office of British Columbia was informed of the serious incident, and asserted jurisdiction. That Office determined on December 20, 2012, that there was no basis on which to conclude that any of the involved members had committed a criminal offence in relation to the incident.

Notwithstanding the conclusion of the Independent Investigations Office that there is no basis on which criminal charges may issue, the Commission plays a valuable and distinct role that does not address criminal culpability, but rather assesses whether RCMP member conduct in a particular instance was in accordance with established policy, procedures and legislation, whether such policy is appropriate, and whether any remedial recommendations should be made.

Given the foregoing, as well as the Commission's continuing interest in policy and practice relating to police vehicle pursuits, I am satisfied that there are reasonable grounds to initiate this complaint in the public interest. Accordingly, pursuant to subsection 45.37(1) of the Royal Canadian Mounted Police Act (RCMP Act), I am today initiating a complaint into the conduct of all RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in this incident, specifically:

whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in the events of October 29, 2012, from the moment of initial identification of the suspect vehicle to the time of the collision, complied with all appropriate training, policies, procedures, guidelines and statutory requirements relating to speed enforcement and police vehicle pursuits; and,
whether the RCMP's national, divisional and detachment-level policies, procedures and guidelines relating to speed enforcement and police vehicle pursuits are adequate.

Appendix B – Johnston vs CPC

PDF Version

Langley File 2013-2166 CPC File 2013-0073

This is in reference to your complaint against Cpl. Davies, Cst. Cheng, Cst. Cox, Cst. Johnston, and Cst. Willems of the Langley RCMP which you lodged with the Langley RCMP on January 9, 2013.

A thorough investigation has been conducted into your complaint. I have had the opportunity to review the investigator's report. Accordingly, I am now able to comment on your concerns.

Background Information

On October 29, 2012, Cpl. Davies, Cst. Cheng, Cst. Cox, Cst. Johnston, and Cst. Willems of the Langley RCMP Traffic Section were conducting speed enforcement along 0 Avenue in Langley. The reason for performing enforcement activities at this location was that residents had complained about speeding and aggressive driving in the area.

Cpl. Davies, Cst. Cheng, Cst. Johnston, and Cst. Willems were positioned at the intersection of 0 Avenue and 240 Street. They had their 4 police vehicles parked on the west side of240 Street (facing south), which is a 2 lane undivided paved road with relatively narrow dirt shoulders. Cst. Cox was located to the west on 0 Avenue operating an Automated License Plate Recognition system (ALPR) to assist in monitoring passing traffic.

At approximately 5:26 p.m., the ALPR identified a license plate on a passing pick-up truck associated with a prohibited driver. Cst. Cox notified the other members of the enforcement team via police radio.

Cpl. Davies and Cst. Cheng were on foot on 0 Avenue and directed the driver off of 0 Avenue north bound onto 240th Street. At the same time, Cst. Johnston and Cst. Willems were in their respective police vehicles completing paperwork on unrelated matters. Additionally, a tow truck was parked on the east side of 240 Street preparing to remove a vehicle that had been impounded. Cst. Johnston was just in the process of getting out of his police vehicle as the pickup truck turned onto 240 Street and drove past him. The pick-up continued north on 240 Street without stopping.

Cst. Johnston and Cst. Cheng in their respective RCMP unmarked vehicles, equipped with emergency equipment, followed the pick-up truck for a distance along 240th Street in an attempt to conduct a traffic stop. After determining the pick-up was not going to stop, the officers abandoned their attempt to "close the distance" with the vehicle.

Shortly thereafter, the pick-up was involved in a collision with a semi-truck at the intersection of 240th Street and 16th Avenue. As a result of that collision, the semi-truck struck a third vehicle driven by Victor Duarte. Mr. Duarte sustained fatal injuries and died at the scene. The suspect driver of the pick-up truck was seriously injured.

Cst. Willems was dealing with another traffic violator at the time and did not become involved in this incident other than being a member of the traffic enforcement team located at 0 Avenue and 240th Street.

Nature of Your Complaint

As the Interim Chair of the CPC, you initiated a complaint into the conduct of those members of the Langley RCMP Traffic Section involved in speed enforcement along 0 Avenue in Langley, and who attempted to stop a pick-up truck at approximately 5:26 pm, on October 29, 2012. Details of Complaint

1. Whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in the events of October 29, 2012, from the moment of initial identification of the suspect vehicle to the time of the collision, complied with all appropriate training, policy, procedures, guidance and statutory requirements relating to speed enforcement and police vehicle pursuits; and,

2. Whether the RCMP's national, divisional and detachment-level policy, procedures and guidelines relating to speed enforcement and police vehicle pursuits are adequate.

Findings of Investigation

The following evidence was reviewed:

Statements from multiple persons who either witnessed the collision or were present on 240th Street between 0 Avenue and 161 h Avenue at the time the pick-up truck and the RCMP travelled on that street.
The in-car camera videos from both RCMP vehicles involved in the attempt to stop the pick-up.
The global positioning system (GPS) data from the second police vehicle driven by Cst. Cheng. GPS data was not available for the lead vehicle driven by Cst. Johnston.
Copies of the radio communications that took place between the involved officers as well as computer aided dispatch records.
Voluntary statement provided to the IIO by Cst. Johnston, who was the driver of the lead vehicle.
Voluntary statement provided to Sgt. Gray of the Langley RCMP Professional Standards Unit by Cst. Cheng who was driving behind the lead vehicle.
National, Divisional and Langley Detachment pursuit policy.
Provincial Motor Vehicle Act legislation relating to speed enforcement and vehicle pursuits.
RCMP National Cadet Training Standards as taught to Cpl Davies, Cst. Cheng, and Cst. Johnston.

Allegation #1

Whether the RCMP members or other persons appointed or employed under the authority of the RCMP Act involved in the events of October 29, 2012, from the moment of initial identification of the suspect vehicle to the time of the collision, complied with all appropriate training, policy, procedures, guidance and statutory requirements relating to speed enforcement and police vehicle pursuits.

Evidence of Cst. Cox

Cst. Cox advised in part in her report to Crown Counsel that:

She was parked on the south side of 0 Avenue approximately 150 meters west of 240th Street monitoring vehicles traveling eastbound along 0 Avenue.
At approximately 5:26 pm, she was ale1ted by the ALPR to a dark green 2003 Chevrolet Silverado pick-up truck bearirig BCL# EH-0169, associated to a prohibited driver.
She confirmed that the photograph of the BCL# and the character recognition displayed on the ALPR matched.
She transmitted over the radio to the other Langley RCMP Traffic Services members that there was a possible prohibited driver approaching 2401 h Street and 0 Avenue.
She observed a Langley RCMP Traffic Services member in a high visibility yellow jacket step into the road and slow traffic down.
She then observed the Langley RCMP Traffic Services member use arm gestures to direct the suspect vehicle northbound onto 240th Street.
She lost visual contact of the suspect vehicle once it had completed the left, northbound turn onto 240th Street.

Evidence of Cpl. Davies

Cpl. Patrick Davies, who was participating in the enforcement project, noted in his police report that:

The weather was overcast, with intermittent periods of light rain. It was daylight, and visibility was excellent.
Both 0 Avenue (which parallels the Canada/U.S. border) and 240th Street are two lane undivided roads constructed of well traveled asphalt.
0 Avenue is oriented east-west, while 240th Street begins at 0 Avenue, and is oriented north-south.
The surrounding land usage is zoned rural residential/agricultural. The terrain is mostly flat, with slight differences in elevation along the border.
Traveling to the north on 240th Street, the grade is uphill, and the terrain consists of forested rolling hills.
0 Avenue is a busy commuter route in the early-mid morning and in the mid-late afternoon.
Langley RCMP Detachment has received frequent complaints from residents who live along this road about the high speeds of passing vehicles. One resident had recently come into the Detachment and complained about erratic and unsafe drivers near his house.

The posted speed limit on 0 Avenue is 50 kilometers per hour ("km/hr"). The posted speed limit on 240th Street is 60 km/hr.

Cpl. Davies advised in part in his police statement that:

He heard the radio transmission that an eastbound pick-up truck bearing BCL# EH0169 (the suspect vehicle), was associated to a prohibited driver.
He was standing roadside, beside the stop sign on 240th Street.
He and another member of the Langley RCMP Traffic Services, Constable Cheng, stepped onto 0 Avenue into the westbound traffic lane and motioned with their arms for the approaching suspect vehicle to pull over on 240 Street.
The suspect vehicle was ~roceeding slowly at this time and completed the turn and accelerated north on 2401 Street instead of pulling over.
He observed Constables Johnston and Cheng conduct u-turns in their respective police vehicles, activate their emergency equipment, and drive after the suspect vehicle.
He lost visual contact of all three vehicles on 240th Street as theToad curved slightly to the right at about 3rd Avenue.

Cpl. Davies further advised in a follow-up e mail that:

When he directed the driver of the pick-up truck onto 240th Street, his expectation was that the driver would pull to the side of the road once on 240 Street. Cpl. Davies was then planning to deal with the driver as it was "his turn".

Evidence of Cst. Willems

Cst. Willems advised in part in his police statement that:

He was parked facing south on 240th Street at 0 Avenue, north of Cst. Johnston and Cst. Cheng's vehicles, and was completing paperwork for an unrelated traffic stop in which he had stopped an excessive speeder, Jared Lambie.
His attention was drawn to the suspect vehicle that had turned onto 240th Street from 0 Avenue as it began to accelerate heavily northbound.
He was alarmed at the rate ofspeed at which the suspect vehicle drove past the parked cars as some were partially parked on the roadway due to a lack of a proper shoulder and a deep ditch close by.
He heard the sound of a shouting voice and subsequently observed Csts. Johnston and Cheng run to their police vehicles.
He observed Csts. Johnston and Cheng drive northbound with the emergency equipment activated on their vehicles.

Evidence of Cst. Johnston

Cst. Johnston advised in part in his statement to the IIO, that:

It was not uncommon for drivers at the location of the traffic check to misunderstand that they are being directed to pull over as opposed to being directed through a detour.
The suspect vehicle proceeded past him at a normal rate of speed and Cst. Johnston initially believed the vehicle was going to stop.
He subsequently observed the vehicle "pick up speed" once past him.
In his experience, it sometimes took follow-up by officers and the use of emergency equipment (lights and sirens), usually a few blocks from the original attempted stop location, to alert drivers to the requirement to stop.
It was his intent to "close the distance" between himself and the pick-up and deal with the driver.
At a distance approximately 3 blocks ahead of Cst. Johnston he estimated the suspect vehicle's speed to be 120 KPH+.
He continued closing the distance as he was unsure ifthe driver of the vehicle knew he was supposed to stop.
He shut down the emergency equipment and abandoned following the pick-up truck when; he determined that the vehicle was not going to stop, and after concluding that the danger to the public in engaging in any pursuit outweighed the need to immediately apprehend the ddver.

In-Car Video Evidence of Vehicle Driven by Cst. Johnston

Video evidence from the lead RCMP vehicle driven by Cst. Johnston established that:

Using hand gestures Cpl. Davies and Cst. Cheng directed the driver of the pick-up truck to turn north bound onto 240th Street.
The pick-up truck drove north bound past Cst. Johnston's police vehicle at what appeared to be a normal rate of speed.
Cst. Johnston completed a three-point-turn and activated the emergency lights two seconds after he started travelling north on 240th Street. He activated the siren three seconds after activating his lights.
It took nearly 18 seconds after the pick-up truck had driven past Cst. Johnston before he was able to turn his police vehicle around and drive north bound after the pick-up.
Thirty-nine seconds after Cst. Johnston started travelling north on 240th Street, he began to slow his vehicle in the 700 block of 240 Street.
Ten seconds later, Cst. Johnston shut down the emergency equipment and proceeded to come to a complete stop at the side of the road.

Evidence of Cst. Cheng

Cst. Cheng advised in pait in his statement that;

The pick-up truck was "taking off' from the police. When asked what he meant by"taking off', he answered: "By that I meant 'flight from police' and or 'disobey direction of a police officer.' In other words, the suspect knew he was being directed by Cpl. Davies and I to pull over, but instead chose to accelerate and drive away."
When the suspect vehicle drove north on 240 Street without stopping, his intention was "to assist Cst. Johnston with a traffic stop, assuming that Cst. Johnston would be able to pull the violator over."
In his experience, any violator who initially flees from police may be a danger to the arresting member, by stopping and attacking the member. Or, the violator may "ditch" the vehicle and flee on foot. In that case, he would be assisting Cst. Johnston with a perimeter for the dog handler, or assisting Cst. Johnston with a foot pursuit. His intent was to be on hand or nearby the traffic stop, not engage in a pursuit, per se, which is why he did not in fact declare a pursuit.
As he approached Cst. Johnston who had shut off his police vehicle emergency equipment and pulled over to the side of the road, he de-activated his emergency equipment and resumed a normal speed to allow him to patrol for the suspect vehicle in ditches and driveways.
When he passed Cst. Johnston (after Cst. Johnston had stopped and pulled over to the side of the road), his intention was to locate the pick-up.
In his experience it is not uncommon to find the suspect vehicle nearby, either hidden in a parking lot or driveway, simply dumped roadside or stopped in heavy traffic.
After he initially waved the suspect vehicle to pull onto 240 Street and it continued north, he had no sight of the vehicle until he came upon the scene of the accident.

GPS and In-Car Video Evidence of Vehicle Driven by Cst. Cheng

GPS and Video evidence from the second RCMP vehicle driven by Cst. Cheng established that:

Cst. Cheng started driving north on 240th Street approximately 3 I seconds after the pickup had driven past the police vehicles, and approximately 14 seconds behind Cst. Johnston's vehicle.
The pick-up truck drove north bound past Cst. Johnston's and Cst. Cheng's police vehicles at what appeared to be a normal rate of speed.
After the pick-up truck passed, Cst. Johnston is seen looking toward it for approximately 3 seconds, presumably waiting to see if the.vehicle was going to stop.
Cst. Johnston can be seen conducting au-turn to go pull the pick-up truck over.
Cst. Cheng activated the emergency lights on his police vehicle prior to turning the vehicle to follow the lead vehicle and activated the siren six seconds after he staited travelling north on 240th Street.
Cst. Cheng reached speeds ranging between 101 kilometres per hour (kph) and 114 kph for approximately 44 seconds.
The posted speed limit is 60 kph.
Cst. Cheng drove for approximately 55 seconds before Cst. Johnston advised Langley RCMP dispatch that he had turned off his emergency equipment and pulled over to the side of the road in the 1000 block of 240th Street.
At that time, Cst. Cheng shut off his emergency equipment as well.
On the video, he could be seen driving at a normal rate of speed past Cst. Johnston's vehicle which by that time was stopped and parked on the side of the road.
Cst. Cheng continued north on 240th Street, at what appeared to be a normal rate of speed.
Approximately one minute and 15 seconds after turning off his emergency equipment, Cst. Cheng arrived at the intersection of 240th Street and 16th Avenue and advised dispatch that there had been a motor vehicle crash. This was approximately 3 minutes after the pick-up truck had driven past the members at 0 Avenue.
Cst. Cheng stopped and immediately began to render assistance at the scene.
It is evident from the video that the collision had occurred sometime before Cst. Cheng arrived at the scene, as a number of other motorists had enough time to stop and begin rendering assistance to the involved parties prior to Cst. Cheng's arrival.

Evidence of Christon Walker

Civilian witness, Christon Walker, who was identified from the CTV media coverage, provided an audio recorded statement to Cst. Szezepaniak, in which he stated, in part, that:

He was outside his garage in the 400 block of 240th Street when he heard sirens down near the border.
Shortly after hearing the sirens, he saw a black pick-up truck, head no11h on 240th Street at speeds of approximately 160 km/hr.
He then saw an unmarked police car with lights and sirens following the suspect vehicle.

Evidence of Jared Larabie

Civilian witness, Jared Larabie provided an audio recorded statement to Constable Guiel, in which he advised, in part, that:

He was standing on the northeast corner of 0 Avenue and 240th Street after having been caught for speeding.
He saw the suspect vehicle turn onto (240) street after being flagged over.
He heard the Asian officer (Cst. Cheng) yell loudly for the suspect vehicle to stop but that the driver took off at a very high rate of speed. Several police cars went after him.

Evidence of Todd Nikel

Civilian witness, Todd Nike!, who was the driver of the tow truck provided an audio recorded statement to Cst. Szezepaniak, in which he advised, in part, that:

He had been dispatched to pick up a vehicle from 240th Street and 0 Avenue that had been going over the speed limit.
He was not paying attention to what anybody else was doing and was getting ready to leave when all of a sudden two police cars went racing northbound up 2401h Street with their lights on.

Evidence of Jackie Grohs

Civilian witness, Jackie Grohs, who was identified from neighborhood enquiries, provided an audio recorded statement to Cst. Wangkhang, in which she stated, in part, that:

She was unloading feed at her residence located in the 900 block of 24.0th Street when she heard sirens.
She went out to look and saw a truck, believed to be the suspect vehicle, traveling down the center of the road at a really high speed with its engine revved,
She estimated the speed of the suspect vehicle to be between 140 and 160 (believed to be km/hr).
She then saw police officers start to slow down around 8th Avenue and stop at 10th Avenue. The Sable SUV (Cst. Johnston's police vehicle) turned around and headed back toward 0 Avenue.
Approximately a minute later, she saw the Sable SUV head northbound back toward 16th Avenue (it is not clear whether this was Cst. Johnston or Cst. Cheng as both officers were operating similar unmarked. vehicles).

Evidence of Gerard Lowden

Civilian witness, Gerard Lowden, who was identified at the scene of the collision, provided an audio recorded statement to Cst. Cox, in which he stated, in part, that:

He was working on a property in the 1400 block of240th Street when he heard sirens.
He came out to the road to see what was going on and the sirens stopped. Two or three minutes after the sirens stopped he observed a truck, believed to be the suspect vehicle, traveling northbound at a high rate of speed on 240th Street.
He estimated the speed of the suspect vehicle to be approximately 100 miles per hour. He further estimated that the suspect vehicle traveled approximately 220 feet in 3 seconds.
He heard the crash and walked up to the scene of the collision.

Evidence of Denn is McGowan

Civilian witness, Dennis McGowan, who self identified, provided an audio recorded statement to Cst. Brett Henderson, in which he stated, in part, that:

He was traveling southbound on 240th Street at approximately 14A Avenue when he observed a black truck, believed to be the suspect vehicle, pass him traveling northbound at a really high rate of speed.
He looked in his rear view mirror and saw what he thought be to tail lights come on for an instance and the suspect vehicle swerved into the left lane.
Approximately ten seconds later he saw an unmarked police vehicle traveling northbound on 240 Street at a slow speed.
He recalled thinking, "Well, this guy's speeding. How come he (the police car) isn't chasing ..."

Evidence of Steven Brault

Civilian witness, Steven Brault, who was identified at the scene of the collision, provided an audio recorded statement to Cpl. Davies, in which he stated, in part, that:

He was standing at the back of a house just off 14A Avenue when he heard sirens.
The sirens stopped and one or two minutes later he observed a pick-up truck, believed to be the suspect vehicle, traveling northbound on 240 Street at a very high rate of speed.
He observed that the suspension of the suspect vehicle was at full droop as it came over the top of the hill.
He observed the truck hit the bottom of the hill hard and that it did not show any signs of slowing down.
He then heard a bang from the collision.

Evidence of Martin Wilson

Civilian witness, Martin Wilson, who was identified at the scene of the collision and from neighborhood enquiries, provided an audio recorded statement to Cst. Wangkhang, in which he stated, in part, that:

He was in front of the barn on his property with his brother, Morey Wilson, when he heard sirens.
The sirens stopped and some time later he heard a truck go by at a high rate of speed because he could hear it go over the rumble strips.
He then heard an incredibly lai·ge bang and went up to the scene of the collision. He estimated that police arrived at the scene one and a half to two and a half minutes after the collision.

Evidence of Morey Wilson

Civilian witness, Morey Wilson, who was identified at the scene of the collision, provided an audio recorded statement to Cst. Justin Guiel, in which he stated, in part, that:

He was in his yard with his brother, Ma11in WILSON, on the southwest corner of 240th Street and 16th Avenue when he heard sirens.
The sirens stopped and a time later he heard .a vehicle at a high rate of speed because he could hear the vehicle go over the rumble strips.
He then heard the impact within seconds and went to the scene of the collision where he provided assistance.
He estimated that the first police car arrived on the scene three to five minutes after the collision.

Evidence of Angela Ducharme

Civilian witness, Angela Ducharme, who self identified, provided an audio recorded statement to Cst. Szezepaniak, in which she stated, in part, that:

She was working on her roof located on the northwest corner of 240th Street and 16th Avenue at approximately 17:25 or 17:30 hours when she heard sirens.
The sirens stopped and she then saw a dark pick-up, believed to be the suspect vehicle, traveling north on 240 Street going approximately 70 to 80 miles an hour approaching the stop sign at 16 Avenue.
The suspect vehicle flew through the stop sign and collided with a big truck pulling a trailer.
The collision occurred approximately 30 to 40 seconds after the sirens stopped.

Based on the video evidence, OPS evidence, statements of both Cst. Johnston & Cst. Cheng, and the statements of a number of independent witnesses, I am satisfied that neither RCMP vehicle was in active pursuit of the pick-up at the time of or immediately preceding the collision.

It is not, however, as readily clear whether Cst. Johnston or Cst. Cheng engaged in a pursuit or contravened policy or legislation during the initial stages of this event. A thorough analysis of policy, provincial legislation, the officers' actions, and their stated perceptions was required in order to make that determination.

RCMP policy relating to pursuits and traffic enforcement and relevant to this investigation is found in RCMP Operations Manual Chapter 5.1, RCMP Operations Manual Chapter 5.4, RCMP Operations Manual Bulletin OM-496, RCMP "E" Division Operations Manual Chapter 5.1, and RCMP "E" Division Opei·ations Manual 5.4. Relevant legislation is found in both the British Columbia Motor Vehicle Act and the British Columbia Motor Vehicle Act Emergency Vehicle Driving Regulation. The policy and legislation may be viewed via the above hyperlinks, however, for the purposes of this investigational report I have highlighted several specific passages of policy and legislation that are particularly germane:

RCMP OPERATIONS MANUAL- 5.4

Closing the distance means the act of catching up to a vehicle but does not include a pursuit.
Pursuit means the operation of an emergency vehicle for the purpose of apprehending a person who refuses to stop as directed by a peace officer and attempts to evade apprehension.
A pursuit may occur when a suspect driver refuses to stop for a peace officer and attempts to evade apprehension.
In conducting the risk assessment to initiate a pursuit, the seriousness of the situation and the necessity for immediate apprehension must be considered to outweigh the level of danger created by the pursuit. The risk will be considered low if: the driver or passenger in the vehicle has not committed or is not about to commit an indictable offence that poses imminent harm to the public ...
A pursuit will not be initiated for the following types of offences:
- taking a motor vehicle without the owner's consent as defined at sec. 335, CC
- theft of a vehicle as defined at sec. 334, CC
- possession of a stolen vehicle as defined at sec. 354, CC
- flight from police as defined at sec. 249.1, CC or dangerous driving as defined at sec. 249, CC
- a violation of a federal traffic regulation
- a violation of a provincial statute or prov!ncial regulation offence
- a violation of a municipal bylaw offence; and
- a property-related offence in general
Attempting to close the distance (catching up) between a police vehicle and another vehicle is not the same as a pursuit.
Before attempting to close the distance, a risk assessment must be applied and public/police safety considered. The risk assessment process will be continually applied.
Emergency lights must be used when closing the distance. The siren will also be used if the risk assessment indicates a risk to public and police safety. The siren may be discontinued once the offender's vehicle has pulled over and stopped for the police vehicle.

RCMP "E" DIVISION OPERATIONS MANUAL - 5.1

Road Side Enforcement is used to enforce provincial traffic violations. Police are located on the side of the roadway where the police vehicle may or may not be visible. Violators are stopped for specific infractions such as failing to utilize occupant restraints, exceeding the posted speed limit, or other offences under provincial acts or regulations. This type of enforcement does not involve the use of high visibility lights on police vehicles to warn the public.
Member. .. When conducting any type of traffic enforcement or performing traffic control duty, ensure that safety precautions are taken, for the protection of the public, and police personnel.
When conducting road side enforcement on two lane roadways, ensure there is sufficient time and distance for all drivers to react safely to your commands
Perform an ongoing risk assessment when stopping vehicles utilizing the above or other methods. The following factors must be taken into consideration:
- The nature and circumstances of the suspected offence or incident;
- The risk of harm posed by the manner in which the emergency vehicle is being or is likely to be operated;
- The risk of harm posed by the distance, speed or length of time required or likely to be required to exercise the privileges;
- The nature, condition and use of the highway;
- The volume and nature of pedestrian or vehicular traffic that is, or might reasonably be expected to be, in the area.

RCMP "E" DIVISION OPERA TIO NS MANUAL BULLETIN OM-496

The location of traffic checkpoint operations must not compromise police or public safety
MEMBER- Before conducting any type of traffic checkpoint, advise your supervisor of the location and obtain approval
SUPERVISOR - To safeguard the police and the public, ensure that the location selected for a traffic checkpoint is suitable, and approve accordingly

BRITISH COLUMBIA MOTOR VEHICLE ACT

Pursuant to section 122(1) & (4) of the BC Motor Vehicle Act, drivers of police vehicles are permitted to exceed the posted limit
When engaging in such driving activities, an officer must, however, "drive with due regard for safety, having regard to all the circumstances of the case, including the following
- the nature, condition and use of the highway
- the amount of traffic that is on, or might reasonably be expected to be on, the highway
- the nature of the use being made of the emergency vehicle at the time

BRITISH COLUMBIA MOTOR VEHICLE ACT - EMERGENCY DRIVING REGULATION CEVO)

"Pursuit" means the driving of an emergency vehicle by a peace officer while exercising the privileges granted by section 122 (1) of the Motor Vehicle Act for the purpose of apprehending another person who refuses to stop as directed by a peace officer and attempts to evade apprehension
"Attempting to close the distance" means attempting to close the distance between a peace officer's vehicle and another vehicle but does not include a pursuit
To engage in or continue a pursuit, a peace officer must
- have an emergency light and siren activated, and
- have reasonable grounds to believe that
- the driver or a passenger in the vehicle being or to be pursued has committed, is committing or is about to commit an offence, and
- the driver or a passenger in the vehicle being or to be pursued has committed, is committing or is about to commit an offence, and
- the seriousness of the offence and the need for immediate apprehension outweigh the risk to the safety of members of the public that may be created by the pursuit.
The need for immediate apprehension will be low if
- the driver or a passenger in the vehicle pursued has not committed an indictable offence, or
- identification or apprehension of the suspected offender may be achieved by other means at that or a later time,
- the greater the distance, speed or length of time required or likely to be required for the pursuit, the greater the risk to the safety of members of the public

RCMP DEPOT CADET TRAINING PROGRAM STANDARDS

The Cadet Training Program (CTP) training standards for Cpl. Davies, Cst. Cheng and Cst. Johnston were reviewed. Changing standards, legislation, accepted police practices, and community expectations necessitate that RCMP training at the Force's training facility at Depot Division be a continually evolving program. This exercise required a comprehensive review of hundreds of pages of archived documents for the various periods of time that each member was in Depot. The review provided the following information related to conducting traffic control, road checks, road blocks, closing the distance and police pursuits:

The objectives of the CTP for the above noted members was based on and consistent with the RCMP's: mission, vision and core values; the operational framework known as RCMP's Community Policing Problem Solving Model CAPRA; and the Incident Management Intervention Model (IMIM).

The CTP was founded on an integrated, problem-based learning methodology. In this type of educational approach, cadets acquired the basic knowledge and skills they needed for policing in the context within which they would be using them - in other words, by solving representative problems that they would typically face as police officers in the field. The CTP was designed so that cadets begin with less complex scenarios to obtain foundational and transferable knowledge and skills that they later apply in increasingly more complex policing situations. At the same time, they were required to conduct on going risk assessments that emphasize public and police safety. The problem-based, scenario approach provided cadets with opportunities to learn the intricacies of policing situations, discuss alternative responses, develop techniques for handling varied situations and engage in cooperative problem solving. Rather than be instructed on a particular content area in isolation, cadets learned to apply all content areas related to a particular type of incident or situation. For these reasons, the knowledge and skills were presented in an integrated and complementary manner.

Cadets learn advanced driving skills, driving limitations and capabilities, and RCMP pursuit driving policy. They are exposed and respond to a pursuit scenario by applying advanced skills and knowledge and policy to pursuit of suspects fleeing in vehicles.

Cst. Cheng received the following training specific to traffic control and police pursuits:

Cadets learn about the principles of pursuit, the policy that guides their decision making, and their criminal and civil liabilities.

Cadets generate factors to consider in a risk assessment to decide whether to initiate, maintain or terminate a pursuit.

They learn about the process to follow when carrying out a pursuit and the respective responsibilities of those involved. ·

The need to do continuous risk assessments as taught in the Incident ManagemenUlntervention Model when determining whether to use high speed or emergency equipment is reinforced. One of the key principals of the IMIM is that police officer safety is essential to public safety. It is emphasized to cadets that emergency situations using vehicle often result in psychological responses including aggression and being "caught up in the chase" and becoming obsessed with "winning".

Situational factors to consider:

the amount of traffic/pedestrians
the road conditions
the seriousness of the incident
the time of day - weather conditions

Changes in Circumstances/Conditions:

time and distance involved - speed I operation of vehicles - communication I assistance from other police units - availability of other methods of apprehension

Police responsibilities:

drive safely - watch for suspect vehicle(s)
notify telecoms and ask for help - no more than two police vehicles should be involved
use all emergency equipment
do continuous risk assessment

When to terminate a pursuit:

if the risk is too great - if there was no likelihood of apprehending the suspect
if apprehension by other means were possible.

The decision to terminate a pursuit can be made by anyone of the following:

the member driving
senior member involved -supervisor monitoring

It is emphasized that to cadets that no criticism will ever be levelled at a member who discontinues a pursuit on the basis of a risk assessment, however, criticism will result if a pursuit is initiated and continued unnecessarily, particularly if injuries or death result.

Cpl. Davies received the following training specific to traffic control and police pursuits:

Cadets are taught the reasons for wearing high viability traffic safety vest and cuffs while doing traffic control; Officer safety; Public safety; Better visibility both day and night

Additional safety devices:

Flashlight, fusees, triangle, etc;
Use all emergency lights on police car Cadets are taught to direct traffic:
Maintain an ongoing assessmentof traffic
Give clear and concise directions to motorists by over accentuation of movements that can be seen by all.
Make eye contact of the driver STOP
Raising of the full palm above shoulders toward driver ADVANCE
Point with full hand the direction you want the person to go and over accentuate the motion for better visibility TURN
With a full hand point in the direction you wish the driver to go and then in an over accentuated motion wave that person on.

Cadets are taught to maintain continuous risk assessment of the situation with respect to pursuits

Is the subject known or can be identified, can apprehension be affected at some later time
Is the subject the RO of the vehicle
The age of the driver and the manner in which the vehicle is being driven
How many occupants in the vehicle
Is the vehicle being driven in a dangerous manner
Consider apprehension by other means; is a road block appropriate; spike belt; partial blocking of the road
The seriousness of the offence; Is the offence indictable, summary or dual procedure
Are there hostages in the vehicle; prevention of a crime against a person
The apparent condition of the vehicle being pursued
The weather; clear, sunny, raining, snowing
Road conditions; wet pavement, snow covered, straight versus windy
Location and volume of pedestrian or vehicle traffic that is or might reasonably be expected in the area; rush hour traffic, playground area, the time of day, rural versus urban
The length of time I distance involved in the pursuit or closing the distance the higher the risk
Does the seriousness of the offence outweigh the risk to the general public

RCMP Emergency Vehicle Operation Policy:

- An unmarked or clean roof police vehicle may be used in a pursuit only if it is necessary to protect life. - involvement in a pursuit using this type of vehicle must be relinguished to a fully marked police vehicle as soon as possible - all police vehicle Emergency equipment must be used

Responsibilities of the secondary unit:

Be at a safe distance from the primary vehicle, and immediately inform OCC of its involvement.
If possible assume responsibility for radio communication when you are in a position to visually monitor the pursuit
Do not pass the primary unit unless requested to do so by the primary unit

Primary consideration during an Emergency Vehicle Operation

Public Safety

Definition of Closing the Distance:

Attempting to close the distance between a police vehicle and another vehicle

Seven guiding principles in the IMIM that must guide any decision to initiate, continue or terminate and Emergency Vehicle Operation

The primary objective of any intervention is public safety
Police office safety is an essential element of public safety
The IMIM must always be applied in the context of a careful risk assessment
Risk assessment must take into account the likelihood and extent of fatalities, injury and damage to property
Risk assessment is a continuous process and risk management must evolve as situations change
The best strategy is to use the least intervention to manage the risk
Prudent intervention causes the least amount of harm or damage

When approaching an intersection in closing the distance the operator of an Emergency Vehicle must:

Respect the Provincial I Municipal legislation relating to the operation of an Emergency Vehicle
If no relevant legislation exists, at a minimum, the police vehicle must slow down taking reasonable care and using Emergency equipment including lights and siren

When can a roadblock can be set up

If the roadblock will not endanger the lives or safety of other persons
Prevent the escape of a person who may be lawfully arrested
Prevent a reasonable foreseeable threat of death or grievous harm to a member or other persons

A pursuit may only be initiated and continued when other alternatives are not available and the seriousness of the situation and the necessity of immediate apprehension is judged to outweigh the level of danger created by the pursuit

A pursuit must be terminated when the risk to life becomes too great, the pursuit becomes futile or other means of apprehension are possible

The decision to terminate a pursuit may be made by the driver of the pursuit vehicle, the senior member directly involved in the pursuit or the member that has assumed command of the pursuit

When closing the distance emergency lights must be used. The siren will also be used if the risk assessment indicates a risk to public safety. The siren may be discontinued after the suspect vehicle has yielded to the police vehicle

Cst. Johnston received the following training specific to traffic control and police pursuits:

Cadets are taught to direct traffic:

be professional; wear proper uniform; traffic vest and traffic cuffs
additional safety devices; flashlight with traffic cone; traffic triangle; police vehicle with emergency lights activated; portable radio on, with volume up
Maintain an ongoing assessment of traffic
Give clear and concise directions to motorists by over accentuation of movements that can be seen by all.
Make eye contact of the driver STOP. - Raising of the full palm above shoulders toward driver ADVANCE
Point with full hand the direction you want the person to go and over accentuate the motion for better visibility TURN
With a full hand point in the direction you wish the driver to go and then in an over accentuated motion wave that pers'on on.

Only enter into a pursuit based on policy, by continually considering all factors past, present, and future, and conducting a continual ongoing risk assessment.

Cadets are taught to:

maintain continuous risk assessment of the situation with respect to pursuits
guided by RCMP policy - Emergency Vehicle Operations
Seven Tactical Principals; all factors must to be considered before a response option is deployed.
know risk and I or unknown risk
speed involved - information received
traffic I pedestrian volume - weather I road conditions
vehicle condition
public and police safety
location

Potential partners:

Telecom, NCO monitoring the pursuit, other officers, other vehicles in area, other pedestrians, Highway Patrol, ERT, Canine Unit, Emergency Medical Team, Major Crime Unit, National Parole Board, Others

RCMP Emergency Vehicle Operation Policy:

- An unmarked or clean roof police vehicle may be used in a pursuit only if it is necessary to protect life. - involvement in a pursuit using this type of vehicle must be relinguished to a fully marked police vehicle as soon as possible - all police vehicle Emergency equipment must be used

Responsibilities of the secondary unit:

Be at a safe distance from the primary vehicle, and immediately inform OCC of its involvement.
If possible assume responsibility for radio communication when you are in a position to visually monitor the pursuit
Do not pass the primary unit unless requested to do so by the primary unit

Primary consideration during an Emergency Vehicle Operation

Public Safety

Definition of Closing the Distance:

Attempting to close the distance between a police vehicle and another vehicle

Seven guiding principles in the IMIM that must guide any decision to initiate, continue or terminate and Emergency Vehicle Operation

The primary objective of any intervention is public safety
Police office safety is an essential element of public safety
The IMIM must always be applied in the context of a careful risk assessment
Risk assessment must take into account the likelihood and extent of fatalities, injury and damage to property
Risk assessment is a continuous process and risk management must evolve as situations change
The best strategy is to use the least intervention to manage the risk
Prudent intervention causes the least amount of harm or damage

When approaching an intersection in closing the distance the operator of an Emergency Vehicle must:

Respect the Provincial I Municipal legislation relating to the operation of an Emergency Vehicle
If no relevant legislation exists, at a minimum, the police vehicle must slow down taking reasonable care and using Emergency equipment including lights and siren

When a roadblock can be set up

If the roadblock will not endanger the lives or safety of other persons
Prevent the escape of a person who may be lawfully arrested
Prevent a reasonable foreseeable threat of death or grievous harm to a member or other persons

A pursuit must be terminated when the risk to life becomes too great, the pursuit becomes futile or other means of apprehension are possible

The decision to terminate a pursuit may be made by the driver of the pursuit vehicle, the senior member directly involved in the pursuit or the member that has assumed command of the pursuit

In the case at hand, the officers were conducting routine traffic enforcement and attempted to pull over a pick-up truck believing the driver may be committing the offence of Driving While Prohibited/Disqualified. These are offences under both the British Columbia Motor Vehicle Act and the Criminal Code of Canada. In the case of the Criminal Code, Driving While Disqualified is a dual procedure offence punishable by imprisonment for a term not exceeding five years. I am satisfied that the circumstances of this event met the primary requirements to supp01t Cst.s Johnston and Cheng engaging in a pursuit of the suspect vehicle. RCMP policy was satisfied if the vehicle refused to stop and the primary offence did not fall into the RCMP's category of "Non-Pursuable Offences". Provincial EVO legislation was satisfied in that the officers had reasonable grounds to believe the driver of the vehicle had committed an offence.

While the basic requirements to enter into a pursuit may have existed, both RCMP policy and EVO legislation stipulate further requirements regarding an ongoing safety/risk assessment that is required in order to engage in and continue a pursuit. Essentially, this necessitates the continual evaluation of a number of factors that impact on the risk created by the pursuit such as road conditions, weather conditions, traffic volume, etc. This policy and legislation also requires an ongoing assessment of whether or not the seriousness of the offence for which the suspect is being pursued outweighs the risk created by the pursuit.

The incident occurred in a rural area. Road, weather, and lighting conditions were good. Traffic volume on 240 Street was light to non-existent. Despite the tragic consequences of this event, I am satisfied that the risk factors at that time and location would not, in and of themselves, have precluded a pursuit.

I am not satisfied, however, that the seriousness of the offence outweighed the risk created by a pursuit. I do not believe the members would have been justified in engaging in a pursuit under these circumstances. This is because the offence being investigated was not an indictable offence that posed imminent harm to the public.

The question then becomes whether or not the members did in fact engage in a pursuit. Cst. Johnston maintained that he was "attempting to close the distance'', defined in RCMP policy as: " ... the act of catching up to a vehicle but does not include a pursuit."

Upon a careful analysis of the evidence, policy, and legislation relating to this even I am satisfied that, by definition, Cst. Johnston and Cst. Cheng did not engage in a pursuit of the suspect vehicle. A pursuit, as defined in both RCMP policy and EVO legislation, occurs when a person "refuses to stop as directed by a peace officer and attempts to evade apprehension". It is clear from a review of the available in-car video and the evidence of Cpl. Davies, that when the driver of the pick-up truck was first encountered he was not directed to stop. Rather, Cpl. Davies and Cst. Cheng stepped onto 0 Avenue and by physical gestures directed the driver to turn nmth onto 240 Street. The driver complied with that direction. The expectation of Cpl. Davies was that the driver would pull to the side of the road once on 240 Street, however, he did not do so. Rather, the driver continued north bound, presumably in an effort to evade apprehension. Regardless of what the suspect driver's intent and actions were at that time, by definition a pursuit could not have occurred until he was clearly directed to stop for police. That did not happen.

The first attempt by police to direct the suspect driver to stop occurred when Cst. Johnston completed au-turn on 240 Street and began driving north bound with his lights and siren on, in what he described as; an effort to "close the distance" on the vehicle. The time it took for Cst. Johnston to realize what was occurring, complete his u-turn, begin driving north bound, and activate his emergency equipment was a total of approximately 21 seconds. Cst. Johnston documented that by that time the suspect vehicle was "just about out of sight".

This assertion is supported by Cst. Johnston 's police vehicle "in car video". In the video it is evident that by the time Cst. Johnston was north bound the suspect vehicle was well ahead in the distance at approximately the 200 block of 240 Street. This would be approximately 2 blocks ahead of Cst. Johnston. Within another 8 seconds the vehicle rounded a natural bend in the roadway where 4th Avenue intersects with 240 Street and was completely out of sight. Regardless of the suspect's intent and that Cst. Johnston had activated his emergency equipment shortly after beginning to drive nmth bound on 240 Street, it cannot be said that the suspect driver had been directed to stop prior to him rounding the corner out of Cst. Johnston's sight. The suspect was too far ahead of Cst. Johnston's police vehicle to conclude with any certainty that the suspect would have observed the police vehicle's emergency lights and had therefore been directed to stop.

14 seconds after losing all sight of the suspect vehicle, Cst. Johnston rounded a bend in the road at 4th Avenue. The suspect vehicle can then be seen very briefly in the video as it crested a hill just no1th of 6th Avenue. The suspect vehicle and police car are more than 2 blocks apart and are in the sightline of each other for such a short period of time that once again it cannot be stated that the suspect vehicle had been "directed to stop".

After the suspect vehicle went out of sight north of 6th Avenue~ Cst. Johnston continued his efforts to close the distance. He drove for another 8 seconds until he himself was north of 6th Avenue and the suspect vehicle came into sight. By this time the suspect was well north of gth Avenue and remained visible for 2-3 seconds before going out of sight yet again due to a dip in the road. At this point Cst. Johnston began to slow his police car over a distance of 2-3 blocks, and pulled to the side of the road.

Despite Cst. Johnston's efforts, I am not satisfied that at any time the suspect driver was directed to stop in a manner that would withstand legal scrutiny.

From the outset of this event Cst. Cheng attempted to assist Cst. Johnston in conducting a traffic stop of the suspect vehicle. He believed the suspect driver was attempting to flee and may pose a threat to Cst. Johnston. 30 seconds passed from the time the suspect vehicle initially drove past the officers near 0 Avenue and Cst. Cheng was able to turn his police vehicle around to begin driving north on 240 Street. Based on Cst. Cheng's statement and in-car video I am satisfied that once he began driving he never would have had sight of the suspect vehicle.

At best, Cst. Cheng was able to view Cst. Johnston's police vehicle ahead in the distance for very brief periods. Cst. Cheng slowed his police vehicle to "normal" speeds in the 800 - 900 block of 240 Street, prior to reaching the location where Cst. Johnston had pulled to the side of the road. Cst. Cheng then continued patrolling north bound at normal speeds until he located the collision at 240 Street and l 6th Avenue. It is clear that at no time was Cst. Cheng in sight of or pursuing the suspect vehicle.

Cst. Johnston was attempting to close the distance on a suspected prohibited driver. Upon concluding that the pick-up truck driver had no intention of stopping, Cst. Johnston slowed down, shut off his emergency equipment and pulled to the side of the road. The second officer, Cst. Cheng, subsequently slowed down to the posted limit and turned off his emergency equipment as well. He then continued on at a normal speed limit looking for the vehicle in the event that it had been "dumped" or parked hidden in one the driveways along the roadway. I am satisfied that there was no contravention of legislation, or RCMP pursuit policy in relation to this incident by any of the officers involved in this 39 to 49 second attempt to conduct a traffic stop of a suspected prohibited driver. In light of the fact that the driver was not directed to stop, . by definition a pursuit did not occur and the involved members were not in contravention of training, policy, procedures, guidance or statutory requirements relating to police vehicle pursuits.

It was reasonable for the officers to initially believe that the driver may have misunderstood their intent when he was directed to pull onto 240 Street. It was also reasonable for the officers to believe that if in the first instance the driver was attempting to take advantage of the manner in which he was directed onto 240 Street, that he may have stopped for police once a police car "closed the distance" and signaled him to pull over. I can state unequivocally from my own 32+ years of policing experience that I have encountered many instances in which drivers made an effort to avoid being pulled over by the police (by turning onto a side road or other means), but would not engage in a pursuit once the police had pulled in behind with a police vehicle and signaled him/her to stop. As such, the decision to attempt to "close the distance" with the offending vehicle through the use of emergency equipment was objectively reasonable. The officers utilized their police vehicle emergency lights and sirens during their attempt to close the distance and were compliant with policy and legislation in this regard.

Having stated this, I must reinforce that under the circumstances of this case, the reasonableness of attempting to close the distance on the suspect vehicle is very dependent upon the member/s' belief that the suspect may have failed to stop out of a misunderstanding regarding the direction he was provided; or that he may pull over once clearly signaled to stop. As soon as the member/s believed the suspect was attempting to flee, or that he was unlikely to stop, there should have been no effort, or no continued effort to close the distance. Cst. Johnston indicated in his statement that it was not uncommon for drivers to misunderstand that they are being directed to pull over and that it sometimes took officers "a few blocks" to alert drivers (with a police car) of their requirement to stop. In this case Cst. Johnston indicated he attempted to close the distance as he was unsure whether the suspect knew he was supposed to stop. He continued his effo11s to close the distance until the point at which he determined the vehicle was not going to stop.

Absent any evidence to the contrary and under these circumstances, I am prepared to accept that it was reasonable for Cst. Johnston to be unsure of the suspect driver's intent when he initially attempted to close the distance. Admittedly, however, the specific circumstances in this regard are very "gray" and I have addressed this issue with all three members who are directly involved in this incident. It has been made very clear that if at any time they were of the belief that the suspect was purposely attempting to avoid apprehension and "closing the distance" would be ineffective, that there would be an expectation that any efforts to do so be terminated. RCMP Operations Manual Bulletin OM-496 provides guidelines with regard to selecting locations for traffic checkpoint operations. The bulletin directs that the location of traffic checkpoint operations must not compromise police or public safety. It further directs that before conducting any type of traffic checkpoint, members are to advise their supervisor of the location and obtain approval. This bulletin did not come into effect until after this incident (2012-12-05), however, the members were compliant with the direction/intent of the bulletin. The location of the checkpoint did not compromise anyone's safety and a supervisor was made aware of the location (Cpl. Davies is a Traffic Unit supervisor and was present).

I do not believe Cpl. Davies or Cst. Cheng utilized an appropriate technique when attempting to stop the suspect driver. As outlined in this report, the two members intended to stop the pick-up truck as they believed the driver may have been prohibited. It is clear from the in car video that as the pick-up truck approached on 0 Avenue, they stepped into the roadway and motioned for the truck to pull onto 240 Street. They did not speak with the driver, they did not make any specific gestures that would suggest they wanted the driver to stop on 240 Avenue, and there was not an officer in position on 240 Street to direct the driver to stop.

Considering that a tow truck was at the scene loading another vehicle, it is possible that the driver of the pick-up (or any other driver provided similar directions) could have believed there had been a collision or some other incident on 0 Avenue and he was simply being detoured. Such a belief would have been supported by the fact that no one specifically directed him to stop. In presenting this scenario I feel it important to state that I very much doubt this was the suspect's belief. He would have seen that a vehicle immediately ahead of him had been allowed to continue along 0 Avenue (as shown on the in-car video), and the fact of the matter was that he was a prohibited driver and knew he was committing an offence. I believe the driver either fully intended to flee from the police, or took advantage of the lack of clear direction from Cpl. Davies and Cst. Cheng thereby creating a situation in which he would have been able to plead mistaken belief if the police did follow and pull him over.

I believe Cpl. Davies and Cst. Cheng should have made it very clear to the driver of the pick-up truck that he was to pull to the side of 240th Street and stop. This could have been accomplished through more specific hand gestures, by having a member on 240 Street in position to direct the pick-up truck to the side of the road, or by stopping the pick-up truck on 0 Avenue and speaking with the driver to provide specific direction. None of these actions would necessarily have prevented the driver from fleeing north on 240th Street. However, had he done so after having been provided clear direction to stop, his intent would likely have been immediately clear to the members and they could have made a more informed assessment as to whether or not they should make further attempts to pull him over (by closing the distance or pursuing).

It could also be suggested (intuitively) that in some cases a prohibited driver would be less likely to flee from the police if an officer has already spoken with him/her and eliminated the anonymity associated with simply driving past the officer.

My concerns regarding the technique utilized by Cpl. Davies and Cst. Cheng to stop the pick-up truck in the first instance have been addressed with them. Additionally, the NCO i/c Langley Traffic Section has been asked to provide training to all members of his unit on the appropriate technique to be utilized when stopping vehicles.

Allegation #2

Whether the RCMP's national, divisional and detachment-level policy, procedures and guidelines relating to speed enforcement and police vehicle, pursuits are adequate.

Prov incial Emergency Vehicle Operation legislation is in place to govern the operation of emergency vehicles and police pursuits. The legislation itself makes it a lawful requirement that persons cannot exercise the privileges of Section 122 (1) of the Motor Vehicle Act (authority to violate provisions of the Motor Vehicle Act in the operation of an emergency vehicle) unless they have first completed approved training.

The RCMP has extensive policy and training in place to address emergency vehicle driving and pursuit activities. This policy is found in National Operations Manual 5.4, and "E" Division Operations Manual 5.4. The training and policy is consistent with and supplements provincial EVO legislation. The purpose of this policy is to secure a balance between the safety of the public, and the RCMP's duty as a law enforcement organization to enforce the law & apprehend offenders. In British Columbia all RCMP members are required make themselves familiar with this policy, with provincial EVO regulations, and to watch two specific training videos. Langley Detachment Unit Supplements relating to pursuit policy were updated September 6, 2007, and are consistent with both National and Divisional Policy as they relate to pursuits. The purpose of this policy is to secure a balance between the safety of the public/members, and our duty as a law enforcement organization to enforce the law & apprehend offenders. It is to be read in conjunction with national and divisional policy, and provincial legislation.

Additionally, Langley Detachment Un it Supplements require that upon being posted to Langley Detachment each member will acknowledge understanding of policy by signing a sign-off sheet provided upon arrival at the detachment. All detachment members are then required to review pursuit policy on a yearly basis.

RCMP training records were reviewed to ensure that all members involved in the traffic enforcement on 0 Avenue were current and up to date. The successful completion of "Emergency Vehicle Operations" training for the members involved in this incident is as follows:

Cpl. Davies - July 7, 2003
Cst. Cheng - January 11, 2001
Cst. Johnston - March 12, 2007
Cst. Willems - August 28, 2008

RCMP policy relating specifically to traffic checkpoints and speed enforcement is found in Section 5.1. of the Operations Manual. The relevant policy directs members to ensure they provide safety for themselves, the violator, and other motorists when conducting traffic duties. RCMP "I" Division policy also dictates techniques to be considered/utilized under some specific circumstances.

I am satisfied that the RCMP's national, "E" Division, and Langley Detachment policy, procedures and guidelines relating to speed enforcement and police vehicle pursuits are adequate. I cannot speak to policy, procedures, and guidelines in other divisions or detachments.

I am not satisfied that the definition of a pursuit as provided in RCMP policy and provincial EVO legislation is appropriate. In the circumstances of this case I was required to assess whether 6r not the members were compliant with pursuit policy and legislation. I found that due to the nature of the suspected offence the members would not have been justified in pursuing the suspect vehicle. However, due to the technical definition of a "pursuit'', I found that even if it was clear the suspect was attempting to flee apprehension, the members did not enter into a pursuit because at no time had the suspect been clearly directed to stop. This would have been my finding regardless of how obvious it may have been that the suspect was attempting to avoid apprehension from the moment he drove past the members.

Essentially, I do not believe policy adequately addresses those situations in which officers have not yet signaled a driver to stop, but the driver is clearly making an effort to avoid apprehension. While the circumstances of this specific incident are somewhat unique, I would expect this to be more of an issue in situations involving police surveillance.

I have recommended to RCMP "E" Division CROPS that the policy definition of a pursuit be reviewed with a view to whether or not it should be changed. Current policy states:

Pursuit means the operation of an emergency vehicle for the purpose of apprehending a person who refuses to stop as directed bv a peace officer and attempts to evade apprehension.

I have recommended that policy be amended to the effect of:

Pursuit means the operation of an emergency vehicle for the purpose of apprehending a person who:

refuses to stop as directed by a peace and attempts to evade apprehension,
or who is making immediate efforts to evade apprehension.

It should be noted that current "E" Division RCMP policy is a direct reflection of provincial EVO Regulations. As such, I have also recommended that if "E" Division CROPS agrees with the proposed ~hange to policy, that the matter also be brought to the attention of the provincial government with a view to considering complementary changes to the EVO Regulations.

As noted under Allegation #1, I do not believe Cpl. Davies or Cst. Cheng utilized an appropriate technique when attempting to stop the suspect driver as he was first encountered on 0 Avenue. Despite a thorough review of the RCMP Training Sta ndards that would have been in effect when each of these members were in Depot Division, I cannot say with any certainty whether their training would have provided specific instruction in this regard.

Accordingly, I have forwarded a memorandum to the Training Officer at Depot Division. The memorandum outlines the basic circumstances of this incident and identifies the specific concern with regard to the manner in which the members directed (or did not direct) the suspect driver to stop on 240th Street. I have asked the Training Officer to consider the current training standards in the context of this incident and to determine whether or not an amendment to the program is required.

Similarly, neither National nor "E" Division policy speak to the issue of ensuring members conducting traffic enforcement "on foot" provide clear direction to drivers when directing them to pull to the side of the road. I am not convinced it is necessary to create policy to guide members' actions in each and every aspect of their daily activities, however, in light of the circumstances of this incident, I have forwarded a memorandum to the "E" Division CROPS Officer suggesting the need to implement such policy be assessed.

Conclusion

Please be advised that pursuant to Section 45.4 of the RCMP Act, I am notifying you that the investigation into your complaint has now been concluded. If you are not satisfied with the manner in which your complaint has been addressed by the RCMP, you may request a review by the Commission for Public Complaints Against the RCMP by corresponding with them at the following address:

Commission for Public Complaints Against the RCMP
Bag Service 1722, Station B
Ottawa, Ontario
KIP OB3

Tel: 1-800-267-6637

Fax: 1-613-952-8045

Yours truly,

D.R. Cooke, Superintendent
Officer in Charge
Langley Detachment

Appendix C – Summary of Findings and Recommendations

Finding No. 2: Corporal Davies failed to properly supervise the traffic checkpoint operation.

Finding No. 3: Constable Johnston and Constable Cheng engaged in a pursuit contrary to policy.

Finding No. 4: Corporal Davies failed to direct Constable Johnston and Constable Cheng to discontinue their pursuit.

Finding No. 5: The RCMP national policies relating to traffic checkpoints are inadequate.

Finding No. 6: The RCMP national policies relating to police vehicle pursuits are inadequate.

Recommendation No. 3: That RCMP national policy be amended to remove the concept of "closing the distance."

Recommendation No. 6: That the RCMP Incident Management/Intervention Model be amended to include vehicle pursuits under the "lethal force" category.

Recommendation No. 7: That the RCMP Incident Management/Intervention Model refresher training include training on vehicle pursuits.

Footnotes

Footnote 1

As a result of the coming into force of the Enhancing Royal Canadian Mounted Police Accountability Act, the Commission for Public Complaints Against the RCMP was replaced with the Civilian Review and Complaints Commission for the Royal Canadian Mounted Police.

Return to footnote 1 referrer

Footnote 2

RCMP Operational Manual, chap 5.1. "Traffic" (amended 2011-07-13).

Return to footnote 2 referrer

Footnote 3

RCMP "E" Division Operational Manual, chap 5.1. "Traffic" (revised 2010-09-21).

Return to footnote 3 referrer

Footnote 4

RCMP Operational Manual, chap 5.4. "Emergency Vehicle Operations (Pursuits)" (amended 2011-10-13).

Return to footnote 4 referrer

Footnote 5

It should be noted that these regulations closely mirror RCMP policy with respect to vehicle pursuits.

Return to footnote 5 referrer

Footnote 6

RCMP Operational Manual, chap 5.4. "Emergency Vehicle Operations (Pursuits)" (amended 2011-10-13).

Return to footnote 6 referrer

Footnote 7

Ibid.

Return to footnote 7 referrer

Footnote 8

Subsection 249.1(1) of the Criminal Code.

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Footnote 9

At page 22 of his report.

Return to footnote 9 referrer

Footnote 10

RCMP Operational Manual, chap 5.4. "Emergency Vehicle Operations (Pursuits)" (amended 2011-10-13).

Return to footnote 10 referrer

Footnote 11

RCMP "E" Division Operational Manual, chap 5.1. "Traffic" (revised 2010-09-21).

Return to footnote 11 referrer

Footnote 12

See, for instance: McDonagh, E., R. Wortley & R. Homel (2002). "Perceptions of physical, psychological, social and legal deterrents to joyriding." Crime Prevention and Community Safety: An International Journal, 4(1), 7-25 at p. 11.

Return to footnote 12 referrer

Footnote 13

RCMP "E" Division Operational Manual, chap 5.1. "Traffic" (revised 2010-09-21).

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Footnote 14

The Commission is not aware of the total distribution of unmarked vs marked vehicles for this traffic unit.

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Footnote 15

Retrieved from <http://www.rcmp-grc.gc.ca/ccaps-spcca/cew-ai/imim-migi-eng.htm>, on January 25, 2016.

Return to footnote 15 referrer

Footnote 16

Hunt, Brian (1999). Testimony to the House of Commons Standing Committee on Justice and Human Rights regarding Private Member’s Bill C-440, An Act to amend the Criminal Code (flight). May 27, 1999. <http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=e&Mode=1&Parl=36&Ses=1&DocId=1039638&File=0>, accessed on January 7, 2016.

Return to footnote 16 referrer

Footnote 17

Queensland Crime and Misconduct Commission. Police Pursuits: A Law Enforcement and Public Safety Issue for Queensland. 2003

Return to footnote 17 referrer

Footnote 18

Times Colonist (Victoria), Police pursuits: At what cost? April 1, 2007, retrieved from: <http://www.canada.com/story.html?id=8df31707-c4ee-440c-a2df-34b36fa0465d> on January 25, 2016.

Return to footnote 18 referrer

Footnote 19

Alpert, Geoffrey P. and Cynthia Lum (2014). Police Pursuit Driving: Policy and Research. SpringerBriefs in Criminology. New York: Springer.

Return to footnote 19 referrer

Footnote 20

Ibid.

Return to footnote 20 referrer

Footnote 21

Schultz, David P., Ed Hudak, and Geoffrey P. Alpert (2009). "Emergency Driving and Pursuits: The Officer’s Perspective." FBI Law Enforcement Bulletin. April 2009: 1–7

Return to footnote 21 referrer

Footnote 22

Best, David and Kate Eves (2005). "Why are there no lessons learned from road traffic incidents involving the police?" Criminal Justice. Volume 5, Number 1: 37–53.

Return to footnote 22 referrer

Footnote 23

Jensen, Travis N. (1998). "Cooling the Hot Pursuit: Toward a Categorical Approach." Indiana Law Journal. Volume 73: 1277–1294.

Return to footnote 23 referrer

Footnote 24

"Why are there no lessons learned from road traffic incidents involving the police?", supra note 22.

Return to footnote 24 referrer

Footnote 25

RCMP Operational Manual, chap 5.4. "Emergency Vehicle Operations (Pursuits)" (amended 2011-10-13).

Return to footnote 25 referrer

Footnote 26

Retrieved from <http://www.rcmp-grc.gc.ca/ccaps-spcca/cew-ai/imim-migi-eng.htm>, on January 25, 2016.

Return to footnote 26 referrer

Footnote 27

RCMP Operational Manual, chap 5.4. "Emergency Vehicle Operations (Pursuits)" (amended 2011-10-13).

Return to footnote 27 referrer

Footnote 28

Alpert, Geoffrey P. (1998). "Questioning Police Pursuits in Urban Areas." Journal of Police Science and Administration. Volume 15, Number 4: 298–306.

Return to footnote 28 referrer

Footnote 29

See for instance <http://nij.gov/topics/law-enforcement/operations/traffic/Pages/technology-developments.aspx>.

Return to footnote 29 referrer

Date modified:: 2018-02-01

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Interim Report on the Chairperson-Initiated Public Complaint regarding the Death of Mr. Victor Duarte in a Motor Vehicle Incident in Langley, British Columbia

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Synopsis

Overview of the Process

Commission's Review of the Complaint

Background Facts

Analysis

Comment

Disposition

Appendix A – Chair-Initiated Complaint

Appendix B – Johnston vs CPC

Background Information

Nature of Your Complaint

Findings of Investigation

Allegation #2

Conclusion

Appendix C – Summary of Findings and Recommendations