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SIU Director’s Report - Case # 18-TVI-188

Contents:

News Releases for this Case:

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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 serious injuries sustained by a 36-year-old man.

The Investigation

Notification of the SIU

On June 23, 2018 at 5:05 a.m., the Toronto Police Service (TPS) reported the following:

On June 23, 2018 at 12:35 a.m., officers attempted to stop a vehicle for a Highway Traffic Act (HTA) offence somewhere on Markham Road. The vehicle did not stop and the officers turned on their emergency equipment. After the officers obtained the licence plate of the vehicle, they were told to stop the pursuit by the communications centre. The officers pulled the cruiser to the side of the road.

At 12:38 a.m., two civilians called the police to report a collision at Markham Road and Brimorton Road, where a vehicle had crashed into a tree. The passenger, Civilian Witness (CW) #1, got out of the vehicle. He put the driver, the Complainant, into the passenger seat before running from the area. CW #1 was arrested a short distance away. The Complainant suffered a fractured hip and a fractured humerous bone. TPS Traffic Service was processing the scene because a sergeant believed that it was not an SIU call because the officers had stopped prior to the collision. 

The Team

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

Complainant:

36-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Notes reviewed, interview deemed not necessary


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.



Evidence

The Scene

According to Google maps, the distance from the Cedarbrae Mall to the Shell gas station is approximately 163 metres. The distance from the Shell gas station to Painted Post Drive is approximately 872 metres. The total distance of the SO’s involvement with CW #1’s vehicle is approximately 1.32 kilometres. The distance from Painted Post Drive to Brimorton Drive is approximately 683 metres.

Scene Diagram

Scene diagram

Physical Evidence


TPS Cruiser AVL/GPS Data


The SIU requested AVL data for the SO’s cruiser on June 23, 2018, for the time frame between 12:01 a.m. and 12:50 a.m. On July 13, 2018, the SIU received two electronic files from the TPS, related to the SO’s cruiser. According to the TPS, the AVL for this cruiser was not reporting for the time frame requested. The AVL indicates that the last reading for the cruiser was on June 22 at 5:44 p.m., when the cruiser was in the division parking lot. The next recording captured for the cruiser was on June 23 at 3:12 p.m. when it left the division parking lot.

Video/Audio/Photographic Evidence

On August 17, 2018, the SIU received a CD which contained a video recording from an industrial area situated on the west side of Markham Road, between Painted Post Drive and Brimorton Drive. The closed circuit television (CCTV) camera faces eastbound, thus vehicles travelling northbound on Markham Road moved from the right to the left on the screen. The video was not time stamped; however, it did have a counter associated to it. The following is a summary of the salient parts of the video related to the northbound vehicle traffic:

  • At 3608, an unknown vehicle drives north;
  • At 3610, a vehicle travels north;
  • At 3613, a vehicle travels north;
  • At 3614, a vehicle travels north;
  • At 3616, two vehicles travel north;
  • At 3620, two vehicles travel north,
  • At 3647, one vehicle travels north;
  • At 3706, one vehicle travels north; and
  • At 3711, a grey and white TPS cruiser travels north, no emergency lighting is activated on the cruiser.

Materials obtained from Police Service

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

  • AVL Data Table;
  • AVL ID to SIU;
  • Booking Photo of Civilian Witness (CW) #1 (x2);
  • Event Details Reports;
  • Notes of SO and all Witness Officers (WO)s;
  • Parade Sheet Report; and
  • Person Search – CW #1.

Incident Narrative

The following findings are confirmed by closed circuit television footage from a camera situated along the route, the communications recordings from the TPS, the in-car camera system (ICCS) video, the evidence of several CWs, a statement from CW #1, and the notebook entries of the SO.

On June 23, 2018, at approximately 12:35 a.m., the SO and WO #1 were in a marked TPS cruiser stopped at the intersection of Lawrence Avenue and the Cedarbrae Mall in the City of Toronto, when they observed a silver coloured Dodge Calibre travelling eastbound on Lawrence Avenue drive through the intersection against the red traffic signal. The SO, who was driving the police cruiser, activated his emergency lighting system in order that traffic move to the side allowing him to perform a U-turn in the intersection to follow and attempt to stop the motor vehicle for a breach of the HTA.

Traffic at the time was moderate, the weather was rainy and the roads were wet.

The Dodge motor vehicle did not pull over for the police cruiser; instead, it drove through a Shell gas station parking lot at the corner of Markham Road and Lawrence Avenue, emerging onto Markham Road, where it continued north. As the police cruiser followed the Dodge around Greenholm Circuit, WO #1 advised the dispatcher that they were following a motor vehicle that had failed to stop for police and that they were travelling at a speed of 70 km/h; the emergency lighting system on the cruiser was still activated. Approaching Painted Post Drive, the SO activated the cruiser’s siren. WO #1 was able to read the complete licence plate at that point, and she notified the dispatcher. The SO then advised that they were terminating the pursuit, immediately followed by the patrol sergeant directing the SO to terminate. At 12:36 a.m., the SO slowed his police vehicle and pulled over to the side of the road at Painted Post Drive. The Dodge vehicle continued north at an approximate speed of 70 km/h, and was lost from view. WO #1 advised the dispatcher of the odometer reading at the time the pursuit was terminated.

After the licence plate from the Dodge was input into the in-car computer, which provided an address for the registered owner, the SO began to drive in the direction of that address north on Markham Road at the posted speed limit of 60 km/h. Neither the emergency lighting system nor the siren was activated at that time.

At approximately 12:37 a.m., the Dodge left the roadway and crashed into a tree at the intersection of Brimorton Road and Markham Road, and the driver fled the scene on foot leaving an injured passenger, the Complainant, trapped inside the vehicle. No police vehicle was in the area at the time of the collision. At 12:39 a.m., the SO and WO #1 arrived at the collision location and the driver of the Dodge was pursued on foot and arrested. The Complainant was taken to hospital and diagnosed with fractures to his arms, hips and legs.

The route followed by the SO while attempting to perform a vehicle stop of the Dodge, with emergency equipment activated, spanned from the intersection of Lawrence Avenue and the Cedarbrae Mall, to the intersection of Markham Road and Painted Post Drive, covering an approximate distance of 1035 metres, or just over one kilometre. The Dodge motor vehicle then continued to cover an additional approximate distance of 683 metres, before it collided with the tree at Brimorton Drive and Markham Road. In total, the SO’s active engagement with the Dodge vehicle lasted about one minute.

The ICCS video revealed the Dodge Calibre failing to stop at the red light at 12:35:03 a.m., with the SO turning on his emergency lighting system, which automatically triggered the audio on the ICCS recording, and initiating a U-turn at 12:35:05 a.m. At 12:35:47 a.m., the SO activated his siren and initiated a pursuit of the Dodge. At 12:36:06 a.m., the siren is deactivated and the police cruiser begins to move to the right and slow, and at 12:36:13 a.m., the patrol sergeant is heard to request confirmation that the SO had terminated the pursuit. The cruiser is then seen to come to a complete stop at 12:36:21 a.m., and WO #1 is heard to repeat the licence plate of the Dodge. The complete interaction between the SO in his police cruiser, and the Dodge, then, appears to last one minute and 6 seconds and span just over one kilometer.

Relevant Legislation

Section 128(13)(b), Highway Traffic Act – Police vehicles and speeding

128(13) The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,

(b) a police department vehicle being used in the lawful performance of a police officer’s duties.

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

(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.

Analysis and Director's Decision

The offence that arises for consideration in this case is that of dangerous driving contrary to then section 249 [1] of the Criminal Code. The offence is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances: R. v. Beatty, [2008] 1 S.C.R. 49. I am satisfied on the aforementioned record that the manner in which the SO operated his police vehicle fell within the limits of care prescribed by the criminal law. At a reported speed of no more than 70 km/h, in a 60 km/h zone, being reached by the SO during his short pursuit, the officer was traveling at a speed only modestly above the posted speed limit. The officer’s speed is also mitigated by section 128(13)(b) of the HTA, which while it does not provide an officer carte blanche to exceed the speed limit without regard to public safety considerations, does allow an officer to speed where the officer is in the lawful performance of his or her duty. The SO was clearly in the exercise of his duty at the time. It should also be noted that there is no indication that the SO, by the manner of his driving, ever endangered any third party motorists or pedestrians along the pursuit route, nor did the officer put undue pressure on the driver of the Dodge. In fact, the SO immediately terminated the pursuit when the vehicle was identified and it became clear that the driver had no intention of stopping for the police cruiser, thereby allowing the driver every opportunity to reduce his speed and adopt a safer course.

In the result, I have no reasonable grounds to believe that the SO either caused or contributed to the collision in question in any manner giving rise to criminal liability, and no charges shall therefore issue.


Date: June 3, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes