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SIU Director’s Report - Case # 18-TVD-318

Contents:

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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 25-year-old man.

The Investigation

Notification of the SIU

On October 28, 2018, the Toronto Police Service (TPS) notified the SIU about the death of the Complainant, which occurred at 5:30 p.m., on the southbound Leslie Street ramp to the westbound Highway 401 collector lanes.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2

Complainant:

25-year-old male, deceased


Civilian Witnesses

CW #1 Next-of-kin
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed 

Witness Officers

WO #1 Not interviewed, but notes received and reviewed
WO #2 Not interviewed, but notes received and reviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed

Additionally, the notes from one other OPP officer was received and reviewed.


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The scene of the motor vehicle collision was located on the southbound Leslie Avenue ramp to the westbound collector lanes of Highway 401. The ramp travelled in a southbound direction and eventually curved to the right on an ascending grade to travel westbound to enter the collector lanes of the 401 Highway. The road surface was dry and in good condition and highway lighting was present. The ramp was a single lane and pavement markings outlining fog lines were clear and visible. There were three vehicles present at the scene. A small cube van was located east of the collision scene and it was removed early as it had no involvement.

The other two vehicles were described as follows:

Vehicle 1


2009 Kawasaki motorcycle black. This vehicle was orientated east and lay on its left side near the north fog line and west of vehicle 2. There was heavy collision damage to the front end.

Vehicle 2


2005 Toyota 4Runner gold. This vehicle was orientated west near the north fog line east of vehicle 1. There was heavy collision damage to the front end.

In between both vehicles there was a large debris field and the Complainant. The Complainant lay on his back with his head orientated east. The Complainant wore a jacket, shirt and pants. He had one running shoe on his right foot and the left running shoe was found on the pavement close by. The Complainant’s helmet was also located on the pavement close by. There was obvious trauma to the head. Medical intervention paraphernalia was found attached to the deceased and around him. The scene was photographed and mapped.

On October 29, at 12:15 a.m., the Complainant was removed from the scene and transported by the removal service to the Toronto Pathology Unit.

Scene Diagram

Scene diagram

Communications Recordings


Communications Summary


On October 28, 2018, at 5:27 p.m., a call was received from civilian witness (CW) #4, who reported a motor vehicle collision in which a motorcycle “going the opposite way on the 401” had collided with a car. At 5:28 p.m., the call-taker spoke to an additional civilian witness, who gave the call-taker the licence plate of the motorcycle.

At 5:43 p.m., the Subject Officer (SO) called the dispatcher on the police radio and said to the dispatcher, “I know you have a lot going on. So, I don’t know if this is a coincidence or something. I was attempting to pull over a motorcycle, eastbound 401 collector lanes before Bayview, and I’ll give you the marker, hold on.” The dispatcher said, “Eastbound 401 collectors before Bayview?” The SO said “Ya, I’ll give you the marker…[provided license plate number]. I was pulling him over because I wasn’t able to see his plate, val-tag and stuff, and he proceeded to take off on me. Then he stopped and turned around and went the wrong way on the 401. I’m not sure if this is related.” The dispatcher said, “He took off on you and then went the wrong way on the 401, 10-4?” The SO said he was at the location where the licence plate was registered to. The SO said he was waiting at the address and “[I]t’s kind of coincidental. You have that guy going down the wrong way but I have the plate as different.” At 5:45 p.m., a supervisor said he would “head over and see that unit.”

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP and the TPS:

  • TPS ALI Log Search;
  • TPS CAD Event Details Report;
  • TPS Event Details Report;
  • TPS Fail to Stop Report;
  • TPS List of Involved Officers;
  • TPS Notes of the SO, WO #1, WO #2, WO #3, WO #4 and WO #5;
  • TPS AVL Data and tracking map;
  • TPS Procedure - Suspect Apprehension Pursuit;
  • TPS Training Records – the SO;
  • OPP Crash Data Retrieval Report;
  • OPP Motor Vehicle Collision Report;
  • OPP Sudden Death Report;
  • OPP Supplementary Occurrence Report;
  • OPP Notes of undesignated officer;
  • In Car Camera System (ICCS) Recording; and
  • TPS Communications.


The Crash Data Retrieval (CDR) Report


On October 28, 2018, data pertaining to the collision and the deployment of the air bags were recorded in the air bag control module of the 2005 Toyota. Due to the model year of the vehicle there was no provision in the CDR tool to capture the speed of the Toyota at or prior to the collision.


The In-Car-Camera System (ICCS)/AVL data


The various materials received from the TPS provided time, GPS coordinates, speeds, emergency lights and siren use, and directionality of the SO’s police cruiser. Twenty-eight data points were extracted and analyzed from the AVL, between about 5:23 p.m. and 5:26 p.m., and 28 corresponding images from the ICCS were extracted to match the data points. From the ICCS it was apparent the roads were paved, dry, in good condition with good, clear, markings. The weather was mostly cloudy to overcast. The traffic was moderate and it was daylight.

At 5:23 p.m., when the ICCS commenced, the SO was traveling at about 121 km/h westbound on Highway 401 in the collector lanes and passed the interchange of Highway 404/Don Valley Parkway (DVP). There were three through lanes, with the two acceleration lanes on the left for traffic which came off the DVP. The SO followed behind the Complainant, who rode a motorcycle in lane 1 or the third lane south of the north curb. By design, the ICCS had commenced recording 30 seconds prior to when the SO activated his emergency lights. For the first 30 seconds the SO remained in what became lane 2. The Complainant moved to the right to lane 3 and then to lane 4, two lanes over from the SO. The SO travelled an average of about 101 km/h before he activated his emergency lights.

At 5:24:14 p.m., the SO travelled between 75 km/h and 80 km/h westbound in the collector lanes of Highway 401, just past the Don Mills Road overpass and activated his emergency lights. As the SO approached Leslie Street, with the emergency lights still activated, he moved over to his right to lane 4 and in behind the Complainant. At 5:24:21 p.m., the SO briefly activated his siren. The Complainant accelerated and moved to his left into lane 3, without a signal. The SO then moved in behind the Complainant with his emergency lights still activated. The Complainant passed the Leslie Street off ramp and continued westbound in lane 4, which was the most northerly lane. At 5:24:41 p.m., the SO changed to lane 2, and travelled at about 116 km/h. The Complainant continued westbound in lane 4. The Complainant then changed to lane 3 and then back into lane 4. The SO accelerated to 129 km/h with his emergency lights continuously activated. At 5:24:52 p.m., the SO changed to lane 2 and travelled at about 116 km/h. The SO moved across lane 2 and into lane 1 at about 122 km/h. The SO travelled in lane 1 at about 140 to 150 km/h. At 5:25:01 p.m., the Complainant slowed down on the far right but continued and the SO briefly also slowed. At 5:25:05 p.m., the SO travelled at about 137 km/h in lane 1 and activated his siren. The Complainant was not entirely visible but was to the far right. The SO continued in the far left collector lane at about 127 km/h with his lights and siren activated, and vehicles around the SO were braking.

At 5:25:22 p.m., at a point about 1,200 metres west of Leslie Street, and about 760 metres east of Bayview Avenue, the SO slowed drastically in lane 1. With his emergency lights and siren activated, the SO executed a clockwise U-turn across the four westbound collector lanes. The traffic in all of the westbound collector lanes slowed and/or stopped, without any apparent issues, consistent with the drivers providing the SO the opportunity to maneuver his vehicle. At 5:25:32 p.m., the SO stopped and faced eastbound in westbound collector lane 4 for about three to four seconds. The view of the Complainant’s motorcycle was momentarily blocked by a westbound car in front of the SO’s cruiser. The Complainant’s motorcycle was then seen for about three seconds to accelerate eastbound in the westbound, north collector shoulder. The SO was heard to say, “Jesus.”

The SO did not travel eastbound in the westbound lanes. The SO turned off his siren but with his emergency lights activated, he executed a second clockwise U-turn across the westbound collector lanes to continue westbound in lane 4. At 5:26:08 p.m., at the beginning of the off ramp to Bayview Avenue, the SO pulled off to the far right shoulder and stopped for four minutes.

The emergency lights in the SO’s cruiser were activated for about 68 seconds and the siren was activated continuously for about the last 18 seconds. The SO travelled about 2.1 kilometers in about 68 seconds, or an average of about 112 km/h, with his emergency lighting activated. The distance from where the SO executed the U-turn to the scene of the collision was about one kilometre.

Expert Evidence

On October 28, 2018, at 7:30 p.m., the Complainant was declared dead at the scene by the coroner.

A post mortem was performed on the Complainant on Tuesday, October 30, 2018.

The Post Mortem Report was received by the SIU on May 17, 2019. The Forensic Pathologist found that the Complainant was a well-nourished, normally developed man. The Complainant suffered massive injuries including an unsurvivable head injury. Immediate cause of death was “Multiple Trauma.”

Incident Narrative

The information collected in the course of the SIU’s investigation, which included statements from the SO and a couple of CWs, and a video recording of the pursuit, allowed investigators to piece together the events in question. Just before 5:30 p.m., the SO was traveling west on Highway 401 west of Victoria Park Avenue when his attention was drawn to the Complainant. The Complainant was just ahead of the officer also traveling west in the collector lanes of the highway. The officer took note of the motorcycle’s licence plate and learned that it had expired in February 2018 and was unattached. Intending to stop the Complainant to investigate potential Highway Traffic Act (HTA) infractions, the SO followed the motorcycle with his emergency lights activated, positioned his cruiser in behind the Complainant’s vehicle and signaled him to pull over by activating his siren. The Complainant reacted by accelerating away from the cruiser, prompting the SO to maneuver into the passing lane in an effort to keep pace with the motorcycle. The SO managed to pull ahead of the Complainant and, with traffic behind him responding to the cruiser’s lights and siren by slowing and stopping, performed a U-turn on the highway west of Leslie Street such that the cruiser came to a stop facing east in the northern most collector lane. The Complainant observed the cruiser ahead of him, turned his bike around and accelerated east against the flow of traffic. He quickly made his way onto the westbound on-ramp to the highway from the southbound lanes of Leslie Street where he collided with the Toyota vehicle operated by CW #2. The SO, having observed the Complainant driving the wrong way, performed another U-turn and traveled west along Highway 401 until again bringing his cruiser to a stop on the northern shoulder of the highway in the area of the Bayview Avenue off-ramp. The officer soon learned of the motorcycle crash involving the Complainant.

Relevant Legislation

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.

Analysis and Director's Decision

On October 28, 2018 at approximately 5:30 p.m., a motorcyclist – the Complainant – crashed head on with a Toyota 4Runner vehicle on the westbound on-ramp to Highway 401 from southbound Leslie Street. The Complainant died as the result of the trauma sustained in the collision. Moments prior, the SO had pursued the Complainant in his marked cruiser. For the reasons that follow, I am satisfied that there are no reasonable grounds to believe the SO committed a criminal offence in connection with the Complainant’s death.

The offence that arises for consideration in this case is dangerous driving causing death contrary to then section 249(4) of the Criminal Code. [1] There are aspects of the SO’s conduct that might well be characterized as dangerous. Performing a U-turn on a busy highway is a risky proposition at the best of times. The officer also reached speeds as high as 150 km/h as he pursued the Complainant, well in excess of the 100 km/h speed limit on the highway. Both behaviours were arguably exacerbated by the fact the SO was chasing a motorcyclist for what were non-criminal HTA offences. Moreover, the officer may also have run afoul of the provincial regulation governing police pursuits (O. Reg. 266/10) when, for example, he failed to notify a dispatcher that a pursuit had been initiated. On the other hand, the courts have made it clear that a breach of regulation will not necessarily ground liability with respect to offences of penal negligence, nor will a simple want of care suffice; the conduct in question must amount to a marked departure from the level of care that a reasonable person would have exercised in the circumstances: R v Beatty, [2008]1 SCR 49. The U-turn executed by the officer across live lanes of highway traffic was ultimately performed safely after the SO had assured himself that the motorists in the vicinity had stopped. As for the officer’s speeds, it should be noted that the SO topped out at about 150 km/h for about three seconds in the collector’s passing lane, and that his average speed from the moment he first signaled the Complainant to pull over until he started to slow down in preparation for the U-turn was roughly 130 km/h. It should further be noted that it does not appear that traffic around the officer was ever forced to take evasive action. Nor did the SO unduly push the Complainant; on the contrary, the Complainant had ample opportunity to come to a safe stop had he been so inclined. In fact, the pursuit had come to an end when the Complainant decided to reverse course and drive the wrong way up the on-ramp from Leslie Street. Finally, the pursuit in question was relatively brief in distance and duration, lasting about a minute and ten seconds over two kilometres, during which time the officer’s emergency lights were activated (as was his siren for the latter part of the pursuit), the road was dry and visibility was good. On this record, I am persuaded on balance that the SO’s lapses in judgment, if they be such, fell short of transgressing the limits of care prescribed by the criminal law.

In the final analysis, I am not satisfied on reasonable grounds that the SO’s conduct is connected to the Complainant’s death in any fashion giving rise to criminal liability. Accordingly, this file is closed.


Date: June 4, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes