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SIU Director’s Report - Case # 18-TVI-197

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 a serious injury sustained by a 26-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 3, 2018, at 9:10 p.m., the Toronto Police Service (TPS) notified the SIU of an injury sustained by the Complainant, at 6:00 p.m., July 3, 2018 on The East Mall, just north of Rathburn Road, Toronto.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2

Complainant:

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


Witness Officers

WO #1 Not interviewed, but notes received and reviewed
WO #2 Not interviewed, but notes received and reviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Not interviewed, but notes received and reviewed


Subject Officers

SO Interviewed, and notes received and reviewed



Evidence

The Scene

The scene was located on the curb at the most westerly southbound lane of The East Mall in the area of 635 The East Mall, where the road curved to the right about 105 to 200 metres north of Rathburn Road. The scene was not held for the SIU.

Physical Evidence

On July 4, 2018, at 2:07 p.m., an SIU Forensic Investigator attended the TPS garage and observed a 2004 Honda CBR motorcycle. The motorcycle was scraped up on both sides. The front forks were not bent back. Photographs were taken of the motorcycle. At 4:00 p.m., an SIU Forensic Investigator attended TPS 23 Division, and observed a marked cruiser. The emergency equipment worked and it was equipped with a workstation computer and had a Panasonic HD dash camera. It was a 2011 Ford Crown Victoria. The vehicle was photographed and nothing specific was observed to link either vehicle to direct contact with each other.

Video/Audio/Photographic Evidence


In-Car Camera System (ICCS) Video #1


This video started at 5:48:02 p.m., on July 3, 2018. There was no sound and the cruiser was behind a dark coloured sedan, southbound on Kipling Avenue in the second lane east of the west curb. By comparing the video to Google maps it was determined that this was just north of Prince George Drive, where there was a set of traffic lights. Kipling had two lanes southbound and two lanes northbound with an alternating left turning lane for both northbound and southbound traffic, in the centre.

At 5:48:33 p.m., the cruiser passed the civilian car as it drove in the centre turning lane and the emergency light package indicated that it was activated for two seconds. The siren was not activated. The cruiser continued southbound on Kipling and alternated between the centre turning lane and the driving lane as it passed three vehicles and then remained in the centre turning lane. The traffic signal was green for eastbound/westbound traffic on Rathburn Road and the traffic was heavy.

At 5:48:56 p.m., the cruiser slowed down but did not stop and it turned right from the centre turning lane and continued westbound on Rathburn Road. The distance from Prince George Drive to Rathburn Road was 0.9 kms. Rathburn Road was one lane eastbound and one lane westbound and the traffic was heavy. The cruiser was behind a pick-up truck and at 5:49:05 p.m. it overtook the pick-up in the eastbound lane. The video continued to 5:49:29 p.m., with the cruiser stuck behind traffic, which was heavy in both directions. The sound of the emergency lights continued.

The video ended at 5:49:29 p.m., for a total of one minute and 27 seconds.

ICCS Video #2


The video started at 5:49:49 p.m., with a 20 second portion of video missing from 5:49:29 p.m. There was no sound of the emergency lights when the video started.

At 5:49:59 p.m., the cruiser overtook a sedan in the centre turning lane. The road changed to having a centre turning lane present just east of the bridge. The cruiser remained in the centre turning lane and passed five vehicles.

At 5:50:20 p.m., the emergency light package showed it was activated. At 5:50:31 p.m., the motorcycle was seen for the first time and it was seen to turn right onto The East Mall from the centre turning lane and continued northbound.

At 5:50:33 p.m., the video showed that the siren was activated. The cruiser turned right on an amber light onto The East Mall at 5:50:38 p.m.

At 5:50:42 p.m., the motorcycle was northbound in the second lane west of the east curb behind a car and it overtook the car in the west curb lane. The cruiser closed the gap on the motorcycle and it also passed the car in the west curb lane at 5:50:45 p.m. The motorcycle drove back into the second lane west of the east curb and sped up in a left curve on the road. The road then turned to a right curve and the rider [now known to be the Complainant] dropped his left leg to the roadway. The Complainant could not negotiate the right curve and he drove into the east curb of the roadway and fell off his motorcycle into a small tree, at 5:50:55 p.m.

At 5:50:58 p.m., the cruiser stopped beside the scene of the collision but the camera did not capture the Complainant or his motorcycle. Conversations could be heard between the police officer [later identified as the SO] and the Complainant; however, it was muffled and could not be understood. The Complainant could be heard moaning in pain. The total time from when the video started, to the time that the Complainant fell of his motorcycle was two minutes and 13 seconds.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Event Details Report (x2);
  • General Occurrence Report;
  • MTO Driver Licence Information;
  •  MVAC Report;
  • Notes of all witness officers and the SO;
  • Procedure-Suspect Apprehension Pursuit; and
  • TPS Promise to Appear and Recognizance-the Complainant.

Incident Narrative

The events in question are evident on the information collected by the SIU in its investigation, which included statements from the SO and the Complainant, as well as a video recording captured by the officer’s in-car camera system. Shortly before 5:50 p.m., the Complainant was operating a motorcycle southbound on Kipling Avenue toward Princess Margaret Boulevard. The vehicle was improperly licensed. The Complainant caught the attention of the SO, stationary in his police cruiser in the passing lane of Kipling Avenue behind several cars waiting at a red light, as he drove past the officer’s vehicle straddling traffic in the passing and curb lanes. The officer decided to follow the Complainant for a possible Highway Traffic Act infraction. Traveling south and overtaking cars in the centre left turn lane, the SO attempted to catch up to the motorcycle. The Complainant refused to stop. He continued south and turned right onto Rathburn Road. The SO, who was still some distance behind the Complainant, activated his emergency lights and continued to follow. As the pursuit approached The East Mall, the Complainant turned right to travel north, followed by the cruiser. It was around this point that the SO activated his siren. The Complainant travelled upwards of 400 metres before he failed to negotiate a curve in the road, lost control of his vehicle and collided with the west side curb of The East Mall. The SO arrived at the collision scene within seconds, blocked southbound traffic along the road and called for an ambulance.

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 ...

(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 Complainant lost control of his motorcycle and crashed in the vicinity of 635 The East Mall in Toronto in the early evening of July 3, 2018, sustaining serious injuries. The SO was in pursuit of the Complainant at the time. For the reasons that follow, I am satisfied there are no reasonable grounds to believe the officer committed a criminal offence in connection with the Complainant’s injuries.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 249(3) [1] of the Criminal Code. The offence is not made out unless, among other things, the conduct in question 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 SCR 49. There are aspects of the manner in which the SO operated his cruiser that are open to legitimate criticism. He pursued a motorcyclist over some distance for what was a traffic infraction and continued with the pursuit even after seeing the Complainant perform several risky passing maneuvers and make a right turn from a left turn lane. The SO never gave notice of the pursuit or any information about the chase via his radio, thereby bypassing the system in place to afford a detached senior officer the opportunity of monitoring the pursuit and making decisions with respect to public safety. The officer also turned right onto Rathburn Road from the southbound left turn lane of Kipling Avenue. On the other hand, the SO drove at speeds at or moderately above the speed limits and appears to have never actually imperiled other motorists on the roadway. He made use of his emergency lights and siren, giving the traveling public some notice of the pursuit ongoing in the area. It is also worth noting that the weather was clear, and the roads were dry and in good condition. Finally, the weight of the evidence indicates that the SO gave the Complainant sufficient opportunity to bring his motorcycle to a safe stop if he had been so inclined. Weighed in the balance, in the context of an overall engagement that lasted about three minutes over a distance of approximately 3.5 kilometres, I am not satisfied on this record that any want of care on the part of the subject officer was such as to transgress the limits of care prescribed by the criminal law. Accordingly, there being no reasonable grounds to proceed with charges, the file is closed.


Date: August 1, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes