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SIU Director’s Report - Case # 18-OVD-062

Contents:

News Releases for this Case:

French:

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • Location information; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate Engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the death of a 40-year-old man.

The Investigation

Notification of the SIU

On February 26, 2018, the York Regional Police (YRP) notified the SIU that a pedestrian had been struck and killed by an unmarked YRP police vehicle at 4:32 p.m.

According to the YRP, the Subject Officer (SO) was driving an unmarked police vehicle when he collided with a pedestrian at Highway 7 and Markham Road. [1] The YRP told the SIU that members of the YRP 5 District Criminal Investigations Division (CID) were investigating the pedestrian at the time of the collision.

The Team

Number of SIU Investigators assigned: 7
Number of SIU Forensic Investigators assigned: 4

The SIU immediately dispatched six investigators, three forensic investigators (FIs), and a traffic collision reconstructionist. An additional investigator was later added to the investigation.

The scene of the collision was photographed and measured using a Total Station device, for forensic mapping purposes. The area was canvassed for video cameras. York Region Transit (YRT) was contacted and asked to provide video recordings from any buses that had travelled through the area around the time of the incident.

Complainant:

40-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Declined to be interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
CW #10 Interviewed
CW #11 Interviewed
CW #12 Interviewed
CW #13 Interviewed
CW #14 Interviewed
CW #15 Interviewed
CW #16 Interviewed
CW #17 Interviewed
CW #18 Interviewed
CW #19 Interviewed
CW #20 Interviewed
CW #21 Interviewed
CW #22 Declined to be interviewed
CW #23 Declined to be interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Interviewed
WO #11 Interviewed
WO #12 Interviewed
WO #13 Interviewed
WO #14 Interviewed
WO #15 Interviewed


Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Incident Narrative

On the afternoon of February 26, 2018, a team of police officers from the YRP were conducting surveillance in the area of the Markville Mall, in the City of Markham, of a group of persons suspected of being involved in distraction thefts from motor vehicles. The person of interest in their investigation was civilian witness (CW) #1; the Complainant was not known to the YRP at the time that they began their surveillance on that date.

During the course of their surveillance, the YRP team of officers was able to confirm that the Complainant had just broken into a motor vehicle and stolen some property and that he was acting in collusion with several other parties. The decision was made to arrest all of the involved parties, which at that time included the Complainant, who was on foot, and the occupants of two motor vehicles: CW #1 and his passenger, CW #7, who were travelling in a red Chevrolet Traverse; and, CW #6 and CW #2, who were travelling in a grey Hyundai Tucson.

While other officers were involved in the arrest of the four parties in the motor vehicles, Witness Officer (WO) #1 was tasked with the arrest of the Complainant. The officer, in his unmarked police vehicle, a black Toyota Camry, maneuvered his vehicle onto the east sidewalk of Kennedy Road north of Highway 7 and followed the Complainant south along the sidewalk. The Complainant, while running ahead of WO #1’s vehicle, veered west onto the roadway and was struck by the Volkswagen Passat operated by the SO. The SO left his vehicle and immediately began to administer first aid to the Complainant. The Complainant was pronounced deceased at hospital shortly thereafter.

Evidence

The Scene

Kennedy Road runs north and south in the area of Highway 7, which itself runs east and west. North of Highway 7, Kennedy Road has two traffic lanes in both the north and south directions, with a painted median dividing the northbound and southbound lanes. In the area where the collision occurred, left turn lanes for both northbound and southbound traffic begin.

Second Street North, on the east side of Kennedy Road, is the first street north of Highway 7. CW #1’s red Chevrolet Traverse was located on Second Street North.

The SO’s black 2014 Volkswagen Passat was positioned across the centre median of Kennedy Road. That vehicle had damage to the passenger side of the hood. There was also human tissue on the passenger side of the hood and evidence of contact on the windshield. Tire marks on the roadway (green lines in the diagram) indicated the Passat was travelling southbound on Kennedy Road and had pulled into the northbound lanes.

Blood and medical debris were found north of the Volkswagen Passat, in the northbound lanes of Kennedy Road.

WO #1’s black 2015 Toyota Camry was found in the northbound curb lane. Tire marks (blue lines in scene diagram below) indicated that the vehicle had been travelling southbound along the east sidewalk of Kennedy Road and was then driven onto Kennedy Road.

A set of tire marks along the east boulevard (red lines in diagram) were determined to have come from a vehicle operated by WO #3, who attended the scene after the collision and drove along the boulevard to maneuver around stopped traffic.
A cellular telephone was located on the east side of a wooden fence that runs along the east edge of the sidewalk. A white box containing Prada perfume was found along the east edge of the sidewalk, north of the collision scene.

On the northeast corner of the intersection at Highway 7 and Kennedy Road there is a Petro Canada gas station and carwash. On the northwest corner of the intersection there is a plaza, with the Shoppers Drug Mart being the closest business to the intersection. There are also plazas on the southwest and southeast corners of the intersection. The plaza on the southeast corner of the intersection has an Eggsmart restaurant.

Further east along Highway 7, on the south side of the roadway, is Second Street South. Continuing east of Second Street South, there is a premise at 4701 Highway 7, which is an office building with a parking lot at the rear. A white Range Rover SUV parked in that parking lot had been broken into.

Scene Diagram

Scene diagram

Expert Evidence


SIU Collision Reconstruction Conclusions


The SIU Collision Reconstructionist determined:

1) The right front area of the police Volkswagen Passat struck the Complainant. The impact occurred in the middle of the northbound passing lane;
2) The Complainant was likely traveling in a diagonal (southwest) direction in the moments before impact;
3) If the Complainant was jogging/running at the time, he was likely on the road for approximately two seconds before the impact occurred;
4) The Volkswagen was traveling southbound at approximately 50 km/h in the moments before the collision;
5) The Volkswagen was steered hard to the left just before impact, and then steered hard to the right just after impact;
6) The Toyota was traveling southbound on the sidewalk as the Complainant was heading towards the point of impact;
7) The Toyota was traveling no more than 10 to 15 km/h as it turned sharply to the west from the sidewalk and grass boulevard to the road; and,
8) The Toyota reached its final resting position after the Volkswagen reached its final resting position.

Video/Audio/Photographic Evidence


Shoppers Drug Mart and Petro Canada


The video recordings obtained from the Shoppers Drug Mart and the Petro Canada gas station did not record the incident.

4701 Second Street South


At 3:47 p.m., a dark blue Dodge Caravan, operated by WO #7, entered the Eggsmart plaza parking lot. WO #7 parked in a parking space at the front of the Eggsmart restaurant.

At 4:19 p.m., a white Range Rover SUV parked in the parking lot of 4701 Highway 7. The Range Rover was being followed by a grey SUV, now known to be a Hyundai Tucson operated by CW #6. As the two men from the Range Rover entered the premise at 4701 Highway 7, a female occupant from the Hyundai Tucson exited the vehicle and walked past the Range Rover. The female then returned to the Tucson. At 4:20 p.m., CW #6 exited the Tucson and walked over to the Range Rover. CW #6 looked into the passenger side of the Range Rover, while the Tucson was moved further south along Second Street South. CW #6 waved over to the Tucson and the vehicle pulled up in front of the Range Rover. CW #6 appeared to be very interested in the Range Rover.

At 4:20 p.m., WO #4 can be seen driving a blue pickup truck behind a mall that was further east of the premise at 4701 Highway 7.

At 4:21 p.m., CW #1 stopped his red Chevrolet Traverse at the southwest corner of Second Street South and Highway 7 and the Complainant exited the vehicle. The Complainant ran toward the Range Rover. CW #6 and the Complainant were both seen standing at the front of the Range Rover. CW #6 pointed toward the passenger side of the Range Rover and he then started to cross the street toward the parked Hyundai Tucson.

At 4:23 p.m., a black sedan pulled up and parked along the eastern edge of the parking lot where the Range Rover was parked. The driver of the sedan was Caucasian, and is therefore believed to be WO #1 (given that the SO, who was operating the other black sedan that afternoon, is a black male).

At 4:24 p.m., a female exited the Tucson. The female (known to be CW #2) took up a position near the Eggsmart restaurant. She was watching the area around the Range Rover, clearly watching for police.

At 4:26 p.m., the Complainant walked southwest, away from the Range Rover and toward the rear of the Eggsmart restaurant.

At 4:26 p.m., a Dodge Journey operated by WO #3 pulled alongside the Dodge Caravan operated by WO #7 in the Eggsmart parking lot. At the same time, the Hyundai Tucson operated by CW #6 pulled into the Eggsmart parking lot and reversed into a parking space directly across from WO #7. WO #3 departed and drove out of the parking lot. CW #2 then ran from her surveillance position at the front of the Eggsmart restaurant and entered the Hyundai Tucson. The Tucson drove toward the west side of the mall, toward Kennedy Road.

At 4:28 p.m., CW #1’s red Traverse can be seen travelling westbound on Highway 7, in the left turn lane. At the same time, a man dressed in black clothing, believed to be the Complainant, can be seen crossing Highway 7, walking northbound along the east sidewalk. CW #1 pulled out of the left turn lane and crossed Highway 7, preparing to make a right turn to northbound Kennedy Road.

At 4:29 p.m., WO #1 pulled out from his parking spot. WO #1 travelled westbound along the south edge of the parking lot where the Range Rover was parked. WO #1, who likely at that point confirmed the Range Rover had been broken into, then travelled northbound on Second Street South. His dark sedan came to a stop at the driveway to the Eggsmart restaurant, just as WO #7 was pulling out of her parking spot. WO #1 was directly in front of WO #7 at that moment.

CW #1 can then be seen making a right turn onto northbound Kennedy Road.

Bus Video Recordings


One of the video recordings received from YRT recorded important information relating to the incident.

The YRT bus was travelling northbound on Kennedy Road and it stopped at a bus shelter on the southeast corner of Kennedy Road at Highway 7. As the bus approached the bus shelter, a man dressed in black [the Complainant] was walking northbound across Kennedy Road in the east sidewalk. At the same time, at 4:29 p.m., CW #1’s red Chevrolet Traverse turned from westbound Highway 7 onto northbound Kennedy Road. At 4:30:08 p.m., as CW #1’s red Traverse turned onto Second Street North, WO #2’s grey Mitsubishi Outlander turned from westbound Highway 7 onto northbound Kennedy Road. Two seconds later, at 4:30:10 p.m., a black sedan believed to be the Volkswagen Passat operated by the SO, [2] turned from westbound Highway 7 to northbound Kennedy Road. Three seconds later, at 4:30:13 p.m., the blue pickup truck operated by WO #4 could be seen following the Volkswagen around the corner.

At 4:30:23 p.m., the grey Hyundai Tucson operated by CW #6 exited the Petro Canada gas station via the car wash exit, just north of Highway 7, and travelled northbound on Kennedy Road. One second later, at 4:30:24 p.m., the Toyota Camry operated by WO #1 turned from westbound Highway 7 onto northbound Kennedy Road.

At 4:30:27 p.m., the Mitsubishi Outlander driven by WO #2 turned eastbound onto Second Street North, while the Volkswagen operated by the SO continued past Second Street North.

At 4:30:31 p.m., the Dodge Caravan operated by WO #7 turned from westbound Highway 7 onto northbound Kennedy Road. WO #7 was behind WO #1’s Toyota Camry and WO #4’s pickup truck.

At 4:30:36 p.m., the grey Hyundai Tucson operated by CW #6 slowed as it passed the pedestrian dressed in black, who had walked over to the curb of the roadway as though he had expected to be picked up. The grey SUV continued northbound and at 4:30:39 p.m., it turned toward Second Street North.

At 4:30:52 p.m., the blue pickup truck operated by WO #4 and the Toyota Camry operated by WO #1 made U-turns at the intersection at Second Street North, in front of the Dodge Caravan operated by WO #7. WO #4’s pickup truck continued turning and resumed travelling northbound on Kennedy Road, while WO #1 drove southeast toward the east sidewalk of Kennedy Road and started to travel southbound along the east sidewalk. At 4:31:03 p.m., the pedestrian dressed in black, believed to be the Complainant, can be seen on the east sidewalk in front of the Toyota Camry.

The YRT bus then made a right turn onto eastbound Highway 7, and the actual impact was not captured on the video recording.

In-Car Camera Video Recordings


Upon his arrival at the scene, WO #10 parked his police cruiser in the northbound lanes of Kennedy Road. At 4:50:36 p.m., WO #1 can be seen speaking to WO #10. While talking to WO #10, WO #1 was sweeping his arms around in a manner that suggested he was explaining the occurrence to WO #10. WO #1 swept his arm in a pattern that mirrored the path of his Toyota Camry as it travelled southbound along the sidewalk and then turned across the boulevard and onto Kennedy Road.
The second YRP vehicle was operated by WO #12. At 4:40:00 p.m., a female can be heard speaking to WO #12. The woman, known to be CW #3, told WO #12 she saw the injured man running and she saw him throw something long and black over a fence. CW #3 told WO #12 the man was running away from someone. CW #3 said there was a black car coming.

Communications Recordings


Police Radio


The YRP 5 District CID Property Crime Unit team discussed the fact that the red Chevrolet Traverse operated by CW #1 was no longer “gizzed,” meaning there was no longer a tracking device attached to the vehicle.

Team members reported that a man from the Chevrolet Traverse, wearing a puffy coat, was walking around vehicles in a parking lot and had then entered the back seat of a grey SUV (likely the Hyundai Tucson) that was parked in front of a Shoppers Drug Mart store. The surveillance team reported the “puffy coat guy” had punctured a tire on a Nissan vehicle and, as the Nissan left the area, CW #1 was following the vehicle. A team member reported they had called the [CID] office and WO #2 and WO #7 were coming out to assist.

A team member reported that a man dressed in black sneakers, blue jeans, a black “GAP” hoodie and a black ball cap [known to be the Complainant] was trying to enter vehicles, but was unsuccessful, so the team would have to confirm some type of mischief offence before they could arrest him. One of the team members then reported a pair of Ray Ban sunglasses had been stolen from a vehicle.

It was reported the man in the GAP sweatshirt [the Complainant] ran up to a white Range Rover and went out of sight. One of the team members then reported a window had been smashed on the Range Rover, confirming there had been an entry to the vehicle.

WO #2 then broadcast, “WO #1 if you’re comfortable with everything then we can deal with the Traverse.” WO #1 responded, “Yeah, where’s our grey SUV though?” WO #2 stated, “I just went past it, so the SO if you can drop off and deal with that one, I’ll deal with the Traverse.”

WO #1 radioed, “OK. WO #1 is behind the Tucson. I got GAP guy. GAP guy is walking down the street. Tucson is pulling onto Second Street.” WO #2 then reported he had the Traverse stopped.

A team member asked where the Tucson was and WO #4 reported he was trying to stop it, travelling northbound [on Kennedy Road], and he had his emergency lights activated. WO #7 reported she was behind WO #4.

911 calls


Four witnesses called 911 following the collision. Of those four witnesses, only CW #3 refused to provide a statement to the SIU.

When CW #3 called 911, she reported that a person had been run over by a car and somebody was attempting to resuscitate the injured man. She stated that she was inside her car but she saw the whole thing happen. She stated the injured party was an older man and “He was running and a car hit him. He crossed the street suddenly so he was running from a car that was running after him and he crossed the street.” She then stated the police were arriving and she disconnected the call.

CW #5 called 911 and reported that a pedestrian had been struck by a vehicle. She approached the scene and reported that someone was performing CPR on the injured person. The paramedic dispatcher asked her to approach the person performing CPR and make sure they were confident in their CPR abilities. CW #5 had conversation with the person and reported she believed the person was an undercover police officer. She reported there was a lot of blood visible. CW #5 reported there were a number of undercover police officers present. She explained she had been pumping gas at a gas station and heard a screeching sound. CW #5 reported that there were two vehicles present, one in the middle of the intersection, a black Volkswagen Passat, and the other was a black Toyota Camry.

CW #4 called 911 and reported that there was an accident on Kennedy Road north of Highway 7. She reported that there was a man on the road who had blood on his face and someone was performing CPR on the injured man. When the 911 call-taker asked if there were two cars involved, CW #4 reported there was one car on the lawn and one car was sideways in the middle of the road.

CW #8 called 911 to report that there had been a car accident. He was standing at a bus stop and heard the accident happen. He reported that he believed more than one car was involved and there were a lot of people running around at the scene. CW #8 reported that he believed there was already a police officer on scene.

Forensic Evidence


Post-Mortem Examination


On February 28, 2018, a post-mortem examination was conducted on the Complainant at the Ontario Forensic Pathology Unit in Toronto. The cause of death was determined to be head trauma.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the YRP:
  • The Versedex case report;
  • General Occurrence Hardcopy (x2);
  • A list of seized items;
  • A copy of YRP photos;
  • The communications recordings;
  • 911 Caller Summary;
  • Computer Aided Dispatch (CAD) record;
  • In-car camera recordings from police cruisers that responded to the incident;
  • The draft YRP Collision Reconstruction Report;
  • FBI Criminal History Record – the Complainant;
  • YRP fingerprints of deceased;
  • A copy of the Miami Dade Police fingerprints - the Complainant;
  • Wants (Miami Dade Police) - the Complainant;
  • Original Search by FBI;
  • Duty Roster – YRP 5 District;
  • List of Involved Officers and Roles;
  • The notebook entries of all designated witness officers;
  • Surveillance Outline;
  • Summary of Disclosed Video;
  • Undertaking Given to a Justice – CW #1;
  • YRP Maintenance Records for involved police vehicles.

Relevant Legislation

Section 219 and 220, Criminal Code -- Criminal negligence causing death

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

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

249    (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place...

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Section 334, Criminal Code -- Theft

334 Except where otherwise provided by law, every one who commits theft
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is a testamentary instrument or the value of what is stolen exceeds five thousand dollars; or
(b) is guilty
(i) of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
(ii) of an offence punishable on summary conviction,
where the value of what is stolen does not exceed five thousand dollars.

Section 430, Criminal Code -- Mischief 

s.430 (1)  Every one commits mischief who wilfully
(a)  destroys or damages property;
(b)  renders property dangerous, useless, inoperative or ineffective;
(c)  obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d)  obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.


Analysis and Director's Decision

During the course of this investigation, SIU investigators spoke with and attempted to interview 23 civilian witnesses, three of whom declined to cooperate, and 15 police witnesses. The SO declined to be interviewed or to provide his memorandum book notes to SIU investigators, as was his legal right. Additionally, SIU investigators obtained and reviewed the memorandum book notes of the 15 police witnesses, the ICC video from responding police vehicles, closed circuit television (CCTV) footage in the area, four 911 call recordings, and the police radio transmissions recordings.

The investigation into this death revealed that only four persons were potentially in a position to provide evidence as to the actual collision that caused the Complainant’s death: the Complainant himself, who was deceased; the SO, who declined to make himself available to the SIU for an interview, as was his legal right; WO #1, who, for reasons unknown, indicates he did not observe the actual collision despite his proximity to the scene; and, CW #3, whose 911 call indicated that she had witnessed the actual collision, but who subsequently declined to provide a statement. Regrettably, this left little eyewitness evidence as to what occurred in the seconds leading up to, and including, the collision which resulted in the Complainant’s death.

WO #1, in his interview, recounted that after the surveillance team had made sufficient observations to satisfy themselves that they had reasonable grounds to believe that the five suspect parties were involved in a joint venture for which they were arrestable for mischief to property (section 430) and theft (section 334) contrary to the Criminal Code, WO #2 made the call that the parties were to be arrested by the team. [3]

WO #1 recalled then observing the Complainant on the sidewalk of Kennedy Road walking northbound. Since it was the Complainant who WO #1 believed had just committed the thefts, and was likely carrying the evidence of the crime on his person, he decided to continue surveillance on the Complainant. WO #1 observed the Complainant approach one of the two involved motor vehicles, the grey Hyundai Tucson, but not enter the vehicle. At that point, WO #1 opined that the involved parties were aware of the police presence as the Tucson drove away northbound on Kennedy Road, leaving the Complainant behind standing on the sidewalk. WO #1 indicated that he decided at that time to arrest the Complainant, as he had reasonable grounds to do so. [4]

WO #1 then drove up to the east Kennedy Road sidewalk, ten to 15 feet behind where the Complainant was walking. WO #1 recalled that his intention at that time was to exit his vehicle and use the vehicle as safety cover between himself and the Complainant, while he directed the Complainant that he was under arrest. WO #1 advised that he wished to use his motor vehicle as cover because: he was unaware as to whether or not the Complainant had anything on his person by which he could harm WO #1; he was aware that the Complainant had just punctured the tire of a motor vehicle and therefore possibly possessed a sharp object; and, WO #1 observed a pointed silver object in the Complainant’s front jeans pocket. Before WO #1 had the opportunity to exit his vehicle, however, the Complainant looked directly at WO #1, following which he turned and ran southbound along the sidewalk, throwing something over an abutting fence as he did so.

WO #1 proceeded to drive onto the sidewalk with his motor vehicle and follow the Complainant. This evidence is confirmed by the CCTV footage obtained from a YRT bus that was driving in the area and which captured this portion of the incident. According to the CCTV footage, at 4:30:52 p.m., the Toyota Camry operated by WO #1 made a U-turn at the intersection of Kennedy Road and Second Street, following which it drove southeast toward the east sidewalk of Kennedy Road, and then started to travel southbound along the sidewalk. At 4:31:03 p.m., a man dressed in black, believed to be the Complainant, is seen on the east sidewalk in front of WO #1’s Toyota Camry.

WO #1’s justification for driving on the sidewalk was that it was the safest option available to him since his driving on the road, while trying to continue to watch the Complainant, would have created a hazard to other drivers and could have resulted in a collision or other interference with traffic as his attention would have been focused on the Complainant, and not on his driving or other traffic. Additionally, WO #1 considered that there was a “football field” of open space in front of him to deal with whatever events arose; no other pedestrians were on the sidewalk; no vehicles or persons were seen to be entering or exiting the Petro Canada station at the northeast corner of the Kennedy Road and Highway 7 intersection; and, no vehicles were coming northbound on Kennedy and southbound traffic was stopped. As such, WO #1 determined that it was safe for him to follow and observe the Complainant all the way to the gas station, which would allow him to direct other officers as to the Complainant’s location, to re-engage the Complainant once he reached the gas station, and to continue to use his car as cover should the Complainant still be in possession of any possible weapons. WO #1 relied on his training, which had taught him to not get out of his vehicle and not to get too close to the person, in case he had a weapon, and to use his best source for cover, that being his motor vehicle, as there was nothing else available for WO #1 to use as cover. WO #1 concluded that the safest way to apprehend the Complainant without interfering with the public was to drive in a direct line so that he could drive safely while keeping the Complainant in his line of sight, and then call for further assistance, when necessary, to arrest the Complainant.

WO #1 drove south along the sidewalk maintaining his speed at under 20 km/h and never closing the gap between himself and the Complainant to less than 30 feet. He described the Complainant as starting to run after he had thrown the item or items over the fence. As he approached a cement utility pole, the Complainant started to slow, as did WO #1 as he neared the Complainant. WO #1 then described the Complainant as swinging himself around the pole and onto the roadway, where he continued to run as he looked northward. WO #1 next saw the Complainant after he had been struck by the SO’s Volkswagen. WO #1 could not describe the impact and was unable to explain why he did not witness the collision.

Despite CW #3’s refusal to provide a statement to SIU investigators, in her 911 call, CW #3 is recorded as telling the 911 call taker that she had witnessed the entire incident in which a person had been run over by a car. She stated that the man, “was running and a car hit him. He crossed the street suddenly, so he was running from a car that was running after him and he crossed the street.” The three other 911 callers simply advised that they had heard, but not seen, the collision, with one caller, CW #5, reporting that she had heard a “screeching” sound lasting some three to four seconds, which she described as being similar to the sound made when “someone slams on their brakes.”

Additionally, CW #3 is recorded, on the ICCS of a police cruiser, telling WO #12, a uniformed officer who responded to the 911 calls, that she had observed the injured man running and she had seen him throw something long and black over a fence. She then observed that the man was running away from someone and that there was a black car coming. [5]

The conclusions of the SIU Collision Reconstructionist revealed that: the Complainant was struck in the middle of the northbound passing lane and that he was struck by the right front of the Volkswagen Passat operated by the SO; the Complainant had likely been moving in a diagonal (southwest) direction in the moments prior to impact and had possibly been on the roadway for approximately two seconds before the impact occurred; the Volkswagen was traveling southbound at a speed of approximately 50 km/h just prior to impact; and, the Volkswagen had steered hard to the left, just before impact, and then steered hard to the right, just after impact. Additionally, the Toyota Camry operated by WO #1 had been traveling at no more than 10 to 15 km/h when it exited the sidewalk and drove onto the grass boulevard.

The offences that arise for consideration are dangerous driving causing death and criminal negligence causing death contrary to sections 249(4) (presently, section 320.13(3)) and 220 of the Criminal Code, respectively. With respect to the former, the driving must 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. Moreover, 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 circumstances: R v Beatty, [2008] 1 S.C.R. 49. Section 220 requires “a marked and substantial departure from the standard of a reasonable driver in circumstances” where the accused “showed a reckless disregard for the lives and safety of others”: R v Sharp (1984), 12 CCC (3d) 428 (Ont. C.A). While there are aspects of the SO’s conduct that are open to scrutiny, I am satisfied on balance that he operated his vehicle within the limits of care prescribed by the criminal law. One may, for example, question the wisdom of the officer maneuvering his vehicle into oncoming lanes of traffic just before the impact with the Complainant. In the absence of a statement from the officer, it is reasonable to infer that the SO may have done so in an effort to prevent the Complainant’s flight from police much as WO #1 used his vehicle to follow the Complainant. Were this the case, the officer’s decision was associated with a clear risk of harm to the Complainant given their respective vulnerabilities at the time. One also wonders why the SO did not activate his emergency lights and siren as he proceeded south on Kennedy Road toward the point of impact. Had he done so, the Complainant may have been alerted to his presence and taken steps to avoid colliding with the vehicle.

On the other hand, I accept the statements made by CW #3, during her 911 call and repeated thereafter to WO #12, as both reliable and trustworthy, and accept that the Complainant “was running and a car hit him. He crossed the street suddenly …” CW #3’s statements were made shortly after the collision in question in circumstances where there is no reason to believe they are anything other than credible and reliable. Additionally, based on the findings of the collision reconstructionist, I find that the SO was travelling at no more than 50 km/h in the moments prior to the collision and that the Complainant had only been on the roadway for approximately two seconds at the time he was struck. I also accept as reliable the evidence from CW #5’s 911 call that she heard a vehicle apparently brake hard prior to the impact; and, the finding that the Volkswagen steered hard to the left prior to the impact, and hard to the right after impact. This leads me to believe that the SO responded to the sudden appearance of the Complainant by both braking and swerving to avoid striking him. Combined with the evidence that the weather on that day was dry and slightly overcast and that, at the time of the impact, there was little traffic on the road northbound, and southbound traffic was stopped at the light, I have concluded that the evidence falls short of leaving me with reasonable grounds to believe that the SO’s driving rose to the level of driving required to constitute a marked departure from a reasonable level of care when the Complainant “suddenly” ran out into the roadway and was struck by the SO’s motor vehicle.

As such, I find that there is insufficient evidence to form reasonable grounds to believe that a criminal offence has been committed. Accordingly, this file is closed.


Date: May 13, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) In actuality, the incident occurred on Kennedy Road just north of Highway 7. [Back to text]
  • 2) WO #2 told the SIU that the SO was immediately behind him as WO #2 drove northbound on Kennedy Road. [Back to text]
  • 3) Several members of the team, in their interviews with the SIU, indicated that the decision to arrest the parties was made by WO #1. [Back to text]
  • 4) In my view, the Complainant was clearly subject to arrest at this time. He had been observed working in concert with a team of persons who had caused damage to, and stolen property from, vehicles in the area. [Back to text]
  • 5) It is unclear to me whether the witness is referring here to the black car driven by WO #1, following the Complainant on the sidewalk, or the black car operated by the SO, which ultimately struck him on Kennedy Road. [Back to text]