Prince George BC-    On December 4, 2013, the IIO submitted a report  in relation to an incident in Prince George on August 11, 2013, in which a police vehicle collided with an all terrain vehicle (ATV), resulting in serious injuries to a passenger on the ATV.

At approximately 3:00 a.m., an on-duty RCMP officer in the vicinity of the intersection of Highway 97 and Northwood Pulp Mill Road noted an ATV reportedly being driven in a manner contrary to the Motor Vehicle Act. The officer attempted to stop the ATV; however, the driver failed to stop. A short time later a collision occurred between the police vehicle and the ATV, which went off the road and landed down an embankment. The ATV driver sustained minor injuries. A passenger sustained serious injuries.

There is conflicting evidence as to how the collision occurred. The police officer attributed responsibility for the collision to the driver of the ATV. The anticipated evidence of the officer comes from his notes of the incident, information provided through his legal counsel, and the officer’s statements to radio dispatch during the incident and to another RCMP officer following the collision.

The driver of the ATV declined to provide a statement. The passenger on the ATV provided a statement in which he attributed responsibility for the collision to the police officer.

The available evidence from the officer indicates that he was driving south on Highway 97 (the John Hart Highway) when he saw headlights coming out of the weigh-scales in the wrong direction. He noted that a side by side ATV cut directly in front of him. The officer activated the –  emergency lights on his vehicle and turned around. The ATV did not pull over, but proceeded eastbound on Northwood Pulp Mill Road. The officer used his loudspeaker to direct the ATV to pull over, however it did not stop. The officer turned off his emergency lights and did not pursue the ATV; however, he continued to observe and follow it.

The officer recorded in his notes that he saw oncoming headlights and feared that the ATV would collide with the oncoming vehicle as the ATV was swerving all over the road making no attempt to get off road. The officer recorded that he believed there was potential for a serious accident and that he should follow the ATV at a distance, not in pursuit. The officer also recorded that he believed there was a need to warn oncoming motorists of potential danger. The available evidence indicates that the officer decided to pass the ATV in order to go further down Northwood Pulp Mill Road and block off traffic coming in the other direction.

When the ATV pulled back into the right (eastbound) lane, the officer sped up and was driving in the left lane (westbound) close to fog line, to give the ATV as much room as possible. The officer noted that the driver of the ATV saw him. A collision occurred which the officer attributed to the ATV driver deliberately ramming the police vehicle. Following the collision, the ATV fishtailed and went into the right hand ditch, down an embankment. In speaking to another officer at the scene following the collision, the officer driving the police vehicle said that he felt the ATV was trying to run him off the road.

Other available evidence from the officer indicates that he repeated the command "Vehicle Pull Over" using his loudspeakers several times, and that he did not turn off his vehicle’s headlights at any material time.

The evidence of the passenger on the ATV attributes blame for the collision to the officer driving the police car. The ATV passenger’s evidence indicates that after dinner and socializing with an acquaintance, the two went out on an ATV at about 11 pm, with the other person driving. They had to stop a number of times due to the vehicle overheating. They were proceeding on a trail behind the Hart Highway weigh-scales when the driver wanted to cross the road to get to a restaurant in the area. As they started across the road the police lights came on and the police car made a U-turn. The driver of the ATV kept going.

The passenger described having a blank in his memory for some of what followed. However, he remembers the police car being behind the ATV, which was in its proper lane on Northwood Pulp Mill Road. According to the ATV passenger, the officer tried to pull in between the ATV and the ditch on the road. He heard the police officer say something on his "radio or whatever", but could not understand what he was saying, as the ATV was quite loud. (This was presumably the officer speaking over the police vehicle loudspeaker.) The police car then went back behind them, and the ATV driver continued with the officer still following them along Northwood Pulp Mill Road.

According to the passenger, the police officer then shut off all of his lights, both emergency lights and headlights. There were no lights on the road so the passenger could not see the officer behind them at all. He asked the ATV driver several times what he was doing but the driver did not respond, and may not have heard him because the ATV was loud.

They kept going and were travelling at about 48 km/h. Both the passenger and driver were looking back. When they looked ahead of themselves again, they had kind of swerved onto the other side of the road (while looking behind them). All of a sudden all of the lights on the police car came back on, and they could not see him behind them. The police vehicle was behind them to the left.

At this point they were in the wrong lane and the ATV driver started turning away to go back into the proper lane. According to the passenger, the police car swerved toward them and hit them just about at the yellow line.

The evidence of the passenger is that he had 3 or 4 beer while on the ATV after leaving the residence until about an hour before the collision. He indicated that the driver had been drinking alcoholic beverage at the residence and while on the ATV, but he did not know how much the driver had to drink.

An expert report from a forensic collision analyst concluded there was insufficient evidence to determine the speed of the ATV or the speed of the police vehicle; however, the area of impact was consistent with being in the westbound land of Northwood Pulp Mill Road.

The GPS data for the police vehicle indicates that it was in motion at various rates of speed for the entirety of its route on Northwood Pulp Mill Road. A vehicle inspection confirmed that it is impossible for the headlights to be turned off on the police vehicle unless it comes to a full stop.

In assessing this case, CJB considered the offences of "Dangerous Operation of a Motor Vehicle", contrary the Criminal Code, and "Driving Without Due Care and Attention" under the provincial Motor Vehicle Act.

To obtain a conviction for dangerous operation of a motor vehicle, the Crown must prove (among other things) that the driving was a marked departure from the standard of care that a reasonable person would observe in all of the circumstances. The analysis of fault under the Criminal Code requires full consideration of two questions:

1. In light of all of the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible; and

2. Was the failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care expected of a reasonable person in the accused’s circumstances?

Driving without due care and attention under provincial legislation is proven when the Crown can establish that the accused was not paying appropriate or sufficient attention to his or her driving in all of the circumstances. Proof of momentary inattention or carelessness is sufficient to sustain a conviction for this offence. To make out the offence, the Crown must prove that the driving was improper, in the sense that in all the surrounding circumstances, it departed from the accustomed sober behaviour of a reasonable person. It is not a standard of perfection, however. A person’s driving must only be objectively reasonable having regard to all the circumstances.

On the basis of the available evidence, Crown Counsel concluded it is not possible to prove beyond a reasonable doubt that the police officer’s driving was demonstrably dangerous, or that it demonstrated inattention, carelessness and/or a lack of due regard for safety. There is no substantial likelihood of conviction for either Criminal Code or Motor Vehicle Act offences.

The evidence is capable of establishing that the police vehicle and the ATV collided in the oncoming westbound lane of Northwood Pulp Mill Road while both vehicles were travelling

eastbound. The only direct evidence of the specific events that led to the collision comes from the passenger of the ATV, and the officer driving the police vehicle. Their versions differ as to who was responsible for the collision, and there is no reason to accept the evidence of the passenger over that of the officer involved. In addition, there are some reasons to discount the evidence of the passenger. He acknowledged a gap in his memory at the beginning of the sequence of events after the police vehicle began following the ATV; he had consumed liquor over the course of the evening; and he provided a description of the police vehicle turning off all of its lights until suddenly appearing a short distance behind the ATV, even though a vehicle inspection confirms that it would have been impossible for the officer to turn off the headlights unless his vehicle was stopped.

On the other hand, if a judge or jury accepted the officer’s description of the collision, the erratic driving of the ATV was the sole cause of the incident. In such a case, the officer would not be found guilty of any offence. CJB has also concluded that even if the evidence of the officer were not accepted, given the issues with the evidence of the passenger, the version of events provided by the officer is capable of raising a reasonable doubt about how the collision occurred. This also would require that the officer be acquitted on any possible charge that might be laid in connection with the circumstances of this case.

Accordingly, no charges have been approved against the officer who was the subject of the IIO investigation.