SIU Director’s Report - Case # 17-OVI-273
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Mandate of the SIU
Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.
Freedom of Information and Protection of Privacy Act (“FIPPA”)Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
- Confidential investigative techniques and procedures used by law enforcement agencies; and
- Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- Subject Officer name(s);
- Witness Officer name(s);
- Civilian Witness name(s);
- Location information;
- Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
- Other identifiers which are likely to reveal personal information about individuals involved in the investigation.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.
“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.
This report relates to the SIU’s investigation into the serious injury reportedly sustained by a 21-year-old man during his interaction with police on September 25, 2017.
Notification of the SIUAt approximately 10:40 a.m. on September 25, 2017, the York Regional Police (YRP) notified the SIU of a serious injury sustained by the Complainant.
The YRP reported that at 2:43 a.m. that morning, a police officer saw a motorcycle travelling southbound on Markham Road in the City of Markham at a high rate of speed. The police officer activated his police vehicle’s emergency equipment to conduct a traffic stop of the motorcycle, which was approximately 500 metres ahead of the police vehicle.
The motorcycle did not stop and continued to travel at a high rate of speed on Markham Road. The police officer did not pursue the motorcycle and deactivated his police vehicle’s emergency equipment. The police officer continued to travel southbound on Markham Road and later found the motorcycle in a ditch near the intersection of Steeles Avenue East and Markham Road. YRP officers set up a perimeter search for the rider of the motorcycle at the intersection.
At approximately 3:29 a.m., YRP officers stopped a vehicle driven by the Complainant’s brother. The Complainant was observed in the passenger seat of the vehicle and had several injuries. The Complainant was arrested under suspicion that he was the rider of the motorcycle.
The Complainant was later transported to hospital where he was diagnosed with a fracture of his right foot.
The TeamNumber of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Complainant:21-year-old male interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
Witness OfficersNo witness officers were identified or designated.
Subject OfficersSO #1 Declined interview or to provide notes, as is the subject officer’s legal right, but did provide a written statement.
The motorcycle continued on and travelled through the intersection of Markham Road and Steeles Avenue, where the rider lost control of the motorcycle which then travelled over a median separating the northbound and southbound lanes of Markham Road and collided with a street sign.
The motorcycle rider became airborne and landed on the ground near his motorcycle. The rider then got up and approached a passing vehicle [later identified as being driven by CW #1] which had stopped after witnessing the motorcycle crash. The Complainant asked CW #1 for a ride but CW #1 refused.
When the SO arrived at the collision scene, the motorcycle rider fled. The SO spoke to CW #1 and received information with respect to the description and clothing of the motorcycle rider and notified the dispatcher. Several police officers then arrived and began to conduct a perimeter search around the collision scene.
At approximately 3:29 a.m., a car was stopped by one of the police officers. The Complainant, who was the passenger in the vehicle, was arrested based on his description and his observable injuries, which were consistent with having occurred during the motorcycle collision.
The Complainant was transported to the police station where he was seen to be limping, as a result of which he was later transported to hospital and assessed.
Nature of Injuries / TreatmentThe Complainant did not sign a medical consent and therefore no injuries could be confirmed. He stated during his interview, however, that he had sustained a fracture to his right foot as a result of a vehicle driving over his foot prior to his interaction with police.
The SceneThe scene was secured and processed by Toronto Police Service (TPS) as it was within their jurisdiction. The scene was located in front of 3155 Markham Road.
Markham Road is a six-lane paved asphalt road that travels through the City of Markham and the City of Toronto. It permits vehicular movement in a north-south direction with a posted speed limit of 60 km/h.
The final resting place of the motorcycle after the collision:
The street sign struck by the motorcycle:
YRP Forensic Photographs of the Motorcycle and the ComplainantThe SIU received and reviewed the photographs of the motorcycle involved in the collision. The involved motorcycle was a manual six speed, 250 cubic centimetres engine Kawasaki branded motorcycle. The clutch on the motorcycle was located on the left handle bar which is required for acceleration.
Forensic Evidence No submissions were made to the Centre of Forensic Sciences.
Toronto Police Service (TPS) Motor Vehicle Collision (MVC) ReportThe SIU received and reviewed the MVC report. The MVC report was authored by a TPS officer and stated the following:
On Monday, September 25, 2017, at approximately 2:51 a.m., the motorcycle rider was operating an un-plated Kawasaki motorcycle southbound on Markham Road in the Region of York. At this time, a YRP officer [later identified as the SO] observed the rider failing to stop when he approached a cross intersection which was controlled by an official stop sign. The SO began to follow the rider southbound on Markham Road.
When the rider approached the intersection of Markham Road and Select Avenue, in the City of Toronto, he lost control of the motorcycle and mounted the center median. The motorcycle became airborne, flipped, and landed on the ground.
A person [later identified as CW #1] driving northbound on Markham Road stopped on the side of the road near the collision scene. The motorcycle rider immediately got up and approached CW #1’s vehicle. CW #1 asked the rider if he was okay. The rider requested that CW #1 give him a ride, but CW #1 refused. The rider then fled the scene on foot.
The Complainant was located later in the immediate area and was subsequently apprehended by YRP officers. He was transported to the hospital and charged with dangerous operation of a motor vehicle.
Closed Circuit Television (CCTV) VideosSIU investigators conducted an extensive canvass for CCTV videos along Markham Road. A total of five CCTV videos were obtained by the investigators from various sources relevant to this incident.
Video 1: Petro-Canada gas station, 7314 Markham RoadThis camera was located on the northwest corner of the intersection of Markham Road and Denison Street. It provided a view of the intersection of Markham Road and Denison Street. The CCTV video was two minutes slower than EST and depicted the following:
0240:35 hrs A police vehicle [later identified as the SO’s vehicle] travelled westbound on Denison Street and stopped at the intersection of Denison Street and Markham Road. The police vehicle did not have its emergency lights activated;
0240:38 hrs A motorcycle travelled southbound on Markham Road through the intersection of Markham Road and Denison Street; and
0240:40 hrs The police vehicle activated its emergency lights and turned left and travelled southbound on Markham road.
Video 2: Litro’s No Frills, 7075 Markham RoadThis camera was located approximately 200 metres east of Markham Road. It provided a view of the northbound and southbound lanes of Markham Road and depicted the following:
0244:17 hrs A motorcycle travelled southbound at a high rate of speed on Markham Road towards the intersection of Markham Road and Steeles Avenue East; and
0244:32 hrs The SO’s police vehicle travelled southbound on Markham Road towards the intersection of Markham Road and Steeles Avenue East with its emergency roof lights activated.
Video 3: Shopping Plaza, 3341 Markham RoadThis camera was located approximately 100 metres south of the intersection of Markham Road and Steeles Avenue East. It provided a view of the northbound and southbound traffic lanes of Markham Road and depicted the following:
0246:15 hrs A motorcycle travelled southbound on Markham Road at a high rate of speed; and
0246:30 hrs The SO’s police vehicle travelled southbound on Markham Road towards the intersections of Markham Road and Steeles Avenue East with its emergency roof lights activated.
Video 4: Lowe’s store, 6005 Steeles Avenue EastThis camera was located approximately 150 metres from the northwest corner of the intersection of Select Avenue and Markham Road. It provided a view of the northbound and southbound traffic lanes of Markham Road and depicted the following:
0241:50 hrs A motorcycle travelled southbound on Markham Road at a high rate of speed; and
O242:07 hrs The SO’s police vehicle travelled southbound on Markham Road towards the intersection of Markham Road and Select Avenue with its emergency roof lights activated.
Video 5: Union Landscaping Supply, 3250 Markham Road This camera was located on the southwest corner of the intersection of Select Avenue and Markham Road. It provided a view of the northbound and southbound traffic lanes of Markham Road and depicted the following:
0243:15 hrs A motorcycle travelled southbound on Markham Road at a high rate of speed. It collided with a street sign located on the median that separated the north and south bound lanes of Markham Road. The rider of the motorcycle became airborne before he landed on the roadway of the northbound traffic lane of Markham Road. A white-coloured vehicle [later identified as CW #1’s vehicle] stopped on the curb lane of the northbound lane of Markham Road. The rider of the motorcycle attempted to lift the motorcycle from the ground;
0243:40 hrs The SO’s police vehicle travelled southbound on Markham Road towards the motorcycle with its emergency roof lights activated;
0244:01 hrs The rider of the motorcycle ran northbound on Markham Road towards CW #1’s vehicle. The rider spoke with CW #1 before he ran northbound on Markham road; and
0244:33 hrs CW #1 exited her vehicle and approached the SO’s police vehicle and appeared to be speaking with the SO.
In-Car Camera System (ICCS) From the SO’s VehicleThe SIU received and reviewed the ICCS video from the SO’s vehicle. The video depicted the following:
0241:48 hrs The SO’s vehicle travelled westbound on Denison Street towards the intersection of Denison Street and Markham Road. At the intersection, the SO’s vehicle was stopped at a red traffic light;
0241:55 hrs The traffic lights turned green permitting vehicles to travel westbound on Denison Street and turn southbound on Markham Road;
0242:05 hrs A motorcycle travelled southbound on Markham Road and failed to stop at the red light at the intersection of Markham Road and Denison Street;
0242:07 hrs The SO activated his vehicle’s emergency lights and turned left and travelled southbound on Markham Road. The ICCS from the SO’s vehicle did not show the motorcycle in the distance;
0242:33 hrs The SO accelerated to 116 km/h in order to catch up to the motorcycle;
0242:45 hrs The SO activated his siren as he travelled southbound on Markham Road. The ICCS from the SO’s police vehicle did not show the motorcycle in the distance;
0242:51 hrs The SO de-activated his vehicle’s siren;
0243:10 hrs The SO decelerated his vehicle as he approached the intersection of Markham Road and Select Avenue. A vehicle [later identified as CW #1’s vehicle] was stopped in the curb lane of northbound Markham Road. A motorcycle was on the ground on the northbound passing lane of Markham Road;
0243:17 hrs A man stood by the motorcycle;
0243:17 hrs The SO used his portable radio to advise the dispatcher that a motorcycle had failed to stop for a red traffic light and the rider had then fallen off of the motorcycle. He also provided the dispatcher with his location;
0243:48 hrs The SO drove his police vehicle over the median and stopped on the passing northbound lanes of Markham Road in order to block traffic from moving toward the collision scene;
0244:09 hrs A woman [later identified as CW #1] ran toward the SO’s police vehicle;
0244:20 hrs The SO was speaking with CW #1; and
0244:34 hrs The SO told the dispatcher that the motorcycle rider had fled the collision scene and was possibly bleeding from his head. He told the dispatcher that the rider was a South Asian man wearing blue jeans and a white shirt.
YRP Communication Recordings and Event Chronology ReportThe SIU received and reviewed the communication recordings and Event Chronology report from the YRP. The communication recordings did not have a time stamp and depicted the following:
- The SO told the dispatcher that he was going to conduct a traffic stop of a motorcycle that had travelled through a red traffic signal light at the intersection of Denison Street and Markham Road. The rider fell off the motorcycle.
The Event Chronology report was consistent with the communication recordings and ICCS.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the YRP:
- Detailed Call Summary Report;
- Event Chronology Report;
- Police Transmissions Communications Recordings;
- General Occurrence Report;
- ICCS Recordings from the SO’s police cruiser;
- YRP scene photos;
- YRP Photos of involved motorcycle and injuries to the Complainant;
- Toronto Police Service Motor Vehicle Collision Report; and
- YRP Google Maps of involved cruisers.
The SIU obtained and reviewed the following materials and documents from other sources:
- CCTV recording from Petro Canada gas station;
- CCTV recording from Litro’s No Frills;
- CCTV recording from Shopping Plaza at Markham Road and Steeles Avenue East;
- CCTV recording from Lowe’s store; and
- CCTV recording from Union Landscaping Supply.
Sections 1-3, Ontario Regulation 266/10, Ontario Police Services Act -- Suspect Apprehension Pursuits
(a) if the police officer has reason to believe that a criminal offence has been committed or is about to be committed; or(b) for the purposes of motor vehicle identification or the identification of an individual in the vehicle.
(a) the police force of the officer established under subsection 6 (1), if the officer is a member of an Ontario police force as defined in the Interprovincial Policing Act, 2009;(b) a police force whose local commander was notified of the appointment of the officer under subsection 6 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part II of that Act; or(c) the local police force of the local commander who appointed the officer under subsection 15 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part III of that Act.
Section 249, Criminal Code -- Dangerous operation of motor vehicles, vessels and aircraft
(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place…
Section 128, Highway Traffic Act – Rate of speed
(a) 50 kilometres per hour on a highway within a local municipality or within a built-up area;(b) Despite clause (a), 80 kilometres per hour on a highway, not within a built-up area, that is within a local municipality that had the status of a township on December 31, 2002 and, but for the enactment of the Municipal Act, 2001, would have had the status of a township on January 1, 2003, if the municipality is prescribed by a regulation;(c) 80 kilometres per hour on a highway designated by the Lieutenant Governor in Council as a controlled access highway under the Public Transportation and Highway Improvement Act, whether or not the highway is within a local municipality or built-up area;(d) The rate of speed prescribed for motor vehicles on a highway in accordance with subsection (2), (5), (6), (6.1) or (7);(e) The maximum rate of speed set under subsection (10) and posted in a construction zone designated under subsection (8) or (8.1); or(f) The maximum rate of speed posted on a highway or portion or a highway pursuant to section 128.0.1 2005, c.26, Sched. A, s. 17 (1); 2006, c. 11, Sched. B, s. 6 (2); 2006, c. 32, Sched D, s. 4 (1).
Section 144 (18), Highway Traffic Act – Fail to stop at red light
144 (18) Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.
Analysis and Director's Decision
Consequently, the SO made a left turn in his police cruiser and activated his emergency lighting system in order to conduct a traffic stop for an infraction of the Highway Traffic Act; the motorcyclist, however, continued to travel southbound at a high rate of speed and collided with a street sign located on the median on Markham Road at Select Avenue, whereupon the rider of the motorcycle became airborne and then landed on the roadway in the northbound lane of Markham Road. Twenty-five seconds later, the SO came upon the collision scene, but the driver had already fled on foot.
CW #1, in her statement, indicated that she was driving northbound on Markham Road when she observed a motorcycle travelling southbound drive over the centre median and the driver became airborne, after which he landed on the roadway near his motorcycle. CW #1 observed the driver looking for his shoe, after which he approached her to ask for a ride home, but she declined.
CW #1 described the driver of the motorcycle, including distinctive scarring to the face; the description, including the scarring, matched that of the Complainant.
CW #1 advised the driver that he should go to the hospital. CW #1 then observed the SO driving southbound on Markham Road toward the collision scene with his emergency lights activated. He pulled up to the location of the collision, whereupon the motorcyclist looked at her, told her he had to go, and ran off. CW #1 told the SO the direction in which the motorcyclist had run.
The Complainant was later located in the area and appeared to have suffered an injury, as a result of which he was transported to the hospital, where he was assessed as having sustained a fracture to his right foot. SIU investigators did not have access to the medical records of the Complainant to confirm his injury, as he declined to sign a consent for that purpose.
The Complainant, in his statement, indicated that he had been out with friends, on the evening of September 24th, 2017, when he got into an altercation with a group of unknown males, one of whom drove over the Complainant’s foot with his car, while trying to flee. The Complainant stated that he sustained several injuries as a result of this altercation, including the injury to his foot. The Complainant denies that he was the operator of the motorcycle which the SO attempted to investigate, advising that he does not own nor has he ever operated a motorcycle, and that he is not capable of operating a motorcycle due to having previously suffered serious injuries including the scarring on his face which prevented him from being able to use both hands.
On all of the evidence, but based primarily on the observations of CW #1, I accept that there are reasonable grounds to believe that the Complainant was the operator of the motorcycle whom the SO attempted to stop and investigate for various HTA infractions; however, based on the Complainant’s own statement, there is an absolute absence of any evidence to indicate that the Complainant’s injury was sustained by the single vehicle motorcycle collision in which he was allegedly involved, as he is very firm in his contention that he was injured earlier the previous evening when an unknown male drove over his foot with his car.
In the absence of any definitive evidence that the Complainant was injured in the motorcycle collision, there is no evidence to establish a causal connection between the actions of the SO and the injury sustained by the Complainant.
On the basis, however, that there is some evidence upon which one could reasonably conclude that the Complainant was the operator of the motorcycle, I will add that the ICC video, the CCTV videos, and the evidence of CW #1 all provide reasonable grounds to believe that the SO, while having engaged his emergency equipment in an attempt to perform a vehicle stop of the motorcyclist, at no time engaged the motorcyclist in a vehicle pursuit, in that he was driving quite a distance back from the motorcyclist, the motorcycle was out of his view, and there was a gap of some 15 seconds between the observation of the motorcycle and the police cruiser on the videos.
Furthermore, CW #1 did not first observe the SO’s police cruiser until sometime after the motorcycle had already crashed and the driver had approached and spoken with her. On this basis, I accept that the SO was in no way engaged with the motorcyclist at the time that the collision occurred. As such, if the Complainant was the motorcyclist, which he firmly denies, and if he was injured in the single vehicle collision, which he also firmly denies, there is no evidence upon which I can find reasonable grounds to believe that the SO engaged the Complainant in a vehicular pursuit thereby causing him to crash and causing his injuries.
The final question to be determined is whether or not there are reasonable grounds to believe that the SO committed a criminal offence, specifically, whether or not his driving rose to the level of being dangerous and therefore in contravention of s.249 (1) of the Criminal Code, there being no need to consider dangerous driving causing bodily harm, as the Complainant has clearly indicated that he did not sustain his injury during the collision.
The decision of the Supreme Court of Canada in R. v. Beatty,  1 S.C.R. 49, indicates that in order to make out an offence of dangerous driving, s.249 requires that the driving be dangerous to the public, “having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place” and the driving must be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.”
On a review of all of the evidence, it is clear that while the SO drove in excess of the speed limit in his initial attempt to stop and investigate the motorcyclist, there is no evidence that his driving created a danger to other users of the roadway or that he at any time interfered with other traffic. Additionally, the environmental conditions were good and the roads were dry.
Ultimately, I am of the opinion that the Complainant, if he was indeed the operator of the motorcycle, chose to operate his motor vehicle at dangerous speeds and in contravention of various rules of the road and was therefore solely responsible for the collision and any consequences of that collision, which I am unable to determine.
Furthermore, it appears that the attempt by the SO to stop the motorcyclist did not exacerbate the motorcyclist’s driving, as he was already travelling at a high rate of speed and disobeying traffic signals before the SO ever attempted to pull him over, and he continued to drive in the same fashion thereafter, eventually losing control of his vehicle and causing the crash.
I find on this evidence that the driving of the SO, in attempting to stop and investigate the motorcycle driver for various Highway Traffic Act infractions, does not rise to the level of driving required to constitute ‘a marked departure from the norm.’ Additionally, I am unable to establish that there was a causal connection between the actions of the SO and the collision or the injuries sustained by the Complainant. As such, I find that there is no evidence to form reasonable grounds to believe that a criminal offence has been committed and no basis for proceeding with criminal charges in this case.
Date: July 12, 2018
Original signed by
Special Investigations Unit
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.