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SIU Director’s Report - Case # 17-TVI-108

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 serious injury reportedly sustained by a 23-year-old man during his arrest on May 11th, 2017.

The Investigation

Notification of the SIU

At approximately 9:45 a.m. on Thursday, May 11th, 2017, the Toronto Police Service (TPS) notified the SIU regarding a single motor vehicle collision in which a vehicle struck a library on Bloor Street West between Gladstone Avenue and Dufferin Street, in Toronto.

The TPS advised that earlier that morning, at 3:56 a.m., the SO and WO #1 were in a police vehicle when they observed a vehicle, operated by the Complainant, travelling the wrong way on a one way street. The SO, who was the operator of the police vehicle, pulled in behind the Complainant’s vehicle but did not activate his police vehicle’s emergency equipment. The Complainant fled and collided with a library building. The Complainant was taken to hospital and diagnosed with a burst fracture to his L2 vertebrae. He was later taken into custody.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 2

The SIU agreed to share the scene with the TPS, which had an investigative interest in the Chevrolet Cruze, and agreed to allow the TPS control of the Chevrolet Cruze for forensic examination. SIU forensic investigators (FIs) attended the examination of the Chevrolet Cruze at a later date.

SIU FIs completed a scene examination including scene measurements using a Total Station device for forensic mapping purposes and took photographs of the scene. The scene of the Complainant’s arrest was also examined and photographed.

SIU FIs also the TPS Division to examine and photograph the SO’s police vehicle.

The route travelled by the Complainant and the SO was video recorded.

The area of the collision scene and the Complainant’s arrest scene were canvassed for surveillance cameras and potential witnesses.

Complainant:

23-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 and notes received and reviewed
WO #2 Interviewed and notes received and reviewed
WO #3 Interviewed and notes received and reviewed
WO #4 Interviewed and notes received and reviewed
WO #5 Notes reviewed, interview deemed not necessary. When WO #5 arrived at the scene, the paramedics were already present with the Complainant, who was lying on the ground.
WO #6 Notes reviewed, interview deemed not necessary. When WO #6 arrived at the scene, the Complainant was on the ground complaining of back pain and being treated by paramedics.

Subject Officers

SO #1 Interviewed, and notes received and reviewed


Incident Narrative

On May 11th, 2017, shortly before 4:00 a.m., the Complainant was driving a white Chevrolet Cruze southbound on Lansdowne Avenue and turned left to travel eastbound on Lappin Avenue. The Complainant had a passenger in his vehicle.

According to the SO and WO #1, the Complainant cut the corner to travel eastbound on Lappin Avenue whereupon he entered the oncoming lane of traffic and was driving toward the police officers, who were travelling westbound on Lappin Avenue toward the intersection. The Complainant then corrected and his vehicle returned to its proper lane.

The Complainant then stopped on Lappin Avenue to drop off his passenger. The police vehicle conducted a U-turn to pull up behind the Complainant’s vehicle. The Complainant moved off, increased his speed, and turned onto a side street. The Complainant continued driving and eventually turned a corner at a high rate of speed, lost control of his vehicle, and collided with a Toronto Public Library (TPL) building.

The Complainant then exited his vehicle and ran away from the collision, hiding in a stairwell in an alleyway.

When the SO and WO #1 arrived at the collision scene, pedestrians directed them to the Complainant’s location. Additional police officers arrived and the Complainant was arrested for dangerous driving.

The Complainant was then taken to the hospital and diagnosed with several fractures to his spine. It was alleged that a police officer hit the Complainant in his rib/back area on his right side.

Evidence

The Scene

The intersection of Bloor Street West and Gladstone Avenue is a commercial and residential area. Bloor Street West runs in a general east-west direction. The roadway is paved with two lanes in each direction separated by a solid yellow line. The roadway is straight, flat and generally in a good state of repair. The posted speed limit is 40 km/h.

Directly north of Bloor Street West, Gladstone Avenue is a one-way street for southbound traffic. The posted speed limit is 30 km/h. The road is paved and unmarked, with the east side of the road used for parking and the west side of the road used for travelling. Gladstone Avenue meets Bloor Street West at a T-intersection and traffic is controlled with a stop sign for southbound traffic on Gladstone Avenue.

The TPL is situated on the south side of Bloor Street West, directly across from Gladstone Avenue. Gladstone Avenue resumes southbound immediately east of the TPL.

A white Chevrolet Cruze rested against the north exterior wall of the TPL, on the south side of Bloor Street West at the intersection of Gladstone Avenue. The vehicle rested on the concrete steps leading to the library. The vehicle sustained significant front-end damage as well as damage to its wheels, rims and back-end, and the side and front airbags had all deployed.

Crashed Chevrolet Cruze looking east


Crashed Chevrolet Cruze looking east


Crashed Chevrolet Cruze close-up

Tire marks led in a left arc from Gladstone Avenue to the back of the vehicle indicating that the Chevrolet Cruze had travelled southbound on Gladstone Avenue when it failed to stop at a stop sign at Bloor Street West, failed to negotiate a turn, skidded across Bloor Street West, hit a bicycle lock post and struck the TPL.

Crashed Chevrolet Cruze from behind


Crashed Chevrolet Cruze, Cones

There was minimal damage to the library.

Detail of crashed engine

The scene of the Complainant’s arrest was also examined and photographed. Other than footwear impressions at the bottom of the stairwell, there was no other evidence to note.


The Route

SIU FIs attended and video recorded the route. The route reportedly started in the area of Lansdowne Avenue and Lappin Avenue. The vehicles travelled east on Lappin Avenue, south on Dufferin Street, and east on Hallam Street. The vehicles turned south on Gladstone Avenue, however, that section of the street is one-way for northbound traffic. The vehicles continued south on Gladstone Avenue until Shanly Street, at which point the direction of travel is one-way southbound until the T-intersection at Bloor Street West, approximately 1.5 km in length.

During the video recording the following road conditions were noted:

Lappin Avenue (640 metres)
  • Two-way residential street with parking on both sides of the street;
  • One lane in each direction;
  • 40 km/h zone changing to 30 km/h zone with the majority of the road being 30 km/h;
  • Road marked as shared bicycle route in both directions;
  • Three stop signs; and
  • Seven speed bumps.
  • Dufferin Street (70 metres)
  • Two-way residential/commercial street; and
  • Two lanes each direction.

Hallam Street (100 metres)
  • Two-way residential street;
  • One lane each direction;
  • Sign marking the road as “traffic calming zone”;
  • 30 km/h zone;
  • Road marked as shared bicycle route in both directions; and
  • One speed bump.

Gladstone Avenue (between Hallam Street and Shanly Street) (330 metres)
  • One-way street for northbound traffic; and
  • Complainant’s vehicle and subject officer’s vehicle travelled south against the one way street.
The route video bypassed this section for safety.

Gladstone Avenue (between Shanly Street and Bloor Street West) (370 metres)
  • Two-way traffic residential street with parking on one side of the street;
  • Later turns to one-way southbound street;
  • Posted 30 km/h zone;
  • Two speed bumps; and
  • Stop sign at Bloor Street West. 

Map indicating travel route

Physical Evidence

Download of the Chevrolet Cruze

On May 26th, 2017, after the TPS was granted a search warrant for the vehicle, SIU FIs attended the TPS Traffic Services garage to participate in the download of the Chevrolet Cruze. The TPS completed a forensic investigation of the interior of the vehicle. At 8:52 a.m., a TPS collision reconstructionist conducted the download directly from the module. The crash data retrieval (CDR) tool generated a report which indicated two deployment events during the collision. The first event likely occurred when the Chevrolet struck and mounted the curb or concrete lip of the garden bed before the library. The second event likely occurred when the vehicle struck the wall of the library, about half a second after the first impact. Five seconds prior to mounting the curb the Chevrolet Cruze travelled at 140 km/h, about 136 metres north of the intersection. In the final five seconds prior to impact the Complainant applied the brakes to decrease the vehicle’s speed to about 58 km/h at the time it mounted the curb, and the vehicle travelled at about 32 km/h when it struck the building. The CDR report indicated that at the time of the collision the Complainant was not wearing a seatbelt and no passenger was present in the vehicle.

Immediately following the download, a licensed TPS vehicle mechanic inspected the Chevrolet Cruze for mechanical safety and/or any apparent malfunction which may have caused or contributed to the collision. There was no evidence of any mechanical failure that could have contributed to the collision.

The SO’s Police Cruiser

This marked police vehicle was equipped with emergency lighting and a siren. The police vehicle was examined and showed no collision damage that could be attributed to this incident. 

AVL Data for the SO’s police cruiser

The automated vehicle location (AVL) data documenting the track of the SO’s cruiser was reviewed for the time between 3:45 a.m. and 4:00 a.m., for which there were 36 global positioning system (GPS) data points.
The AVL data showed that for the most part, the SO operated his police vehicle at speeds of less than 40 km/h. At 3:53 a.m., the SO was travelling westbound on Lappin Avenue, at about 24 km/h. At 3:54 a.m., he was at the intersection of Lappin Avenue and Lansdowne Avenue, then eastbound on Lappin Avenue, past St. Clarens Avenue and Emerson Avenue, toward Dufferin Street, at a speed which increased from about 54 km/h to about 64 km/h. At 3:55 a.m., the SO travelled southbound on Gladstone Avenue, past Shanly Street, a distance of about 325 metres, and the wrong way on a one-way street, at about 82 km/h.

Video/Audio/Photographic Evidence

In-Car Camera for the SO’s Police Cruiser

The In-Car Camera (ICC) for the police cruiser operated by the SO was reviewed. The video was consistent with the information the SO provided to the SIU.
The only time the Chevrolet Cruze was visible during the video recording was after it collided with the TPL

Closed Circuit Television Footage from Convenience Store

The SIU obtained closed-circuit television (CCTV) recordings from a convenience store located on the southwest corner of Lappin Avenue and Dufferin Street. The video recordings were time and date stamped, and approximately 35 to 40 minutes behind Eastern Standard Time (EST). 
 
“Camera 13” had a view of the sidewalk on the south side of Lappin Avenue, just west of Dufferin Street. At 3:11:40 a.m. [1], a fully marked TPS vehicle, believe to be operated by the SO, travelled slowly westbound on Lappin Avenue, out of view. At 3:14:06 a.m. [2], a white vehicle, now known to be a Chevrolet Cruze, travelled eastbound on Lappin Avenue, at what appeared to be a high rate of speed. At 3:14:14 a.m. [3], a police vehicle with no flashing emergency lights travelled eastbound on Lappin Avenue, at about the same speed as the Chevrolet Cruze.

“Camera 14” had a view of the sidewalk outside of the front of the store, on the west side of Dufferin Street, at the intersection of Dufferin Street and Lappin Avenue. At 3:14:13 a.m. [4], an unknown vehicle travelled southbound on Dufferin Street and entered the intersection. As the unknown vehicle entered the intersection, the Chevrolet Cruze turned right from eastbound Lappin Avenue to southbound Dufferin Street, directly in front of the unknown vehicle. It appeared that the unknown vehicle was forced to brake to avoid a potential collision with the Chevrolet Cruze. It appeared that the Chevrolet Cruze did not stop at the stop sign for Lappin Avenue. At 3:14:22 a.m. [5], the police vehicle operated by the SO travelled eastbound on Lappin Avenue and turned right to continue southbound on Dufferin Street, without stopping at the stop sign for Lappin Avenue. The police vehicle’s emergency lights were not activated. 

CCTV footage from Tim Hortons

The SIU obtained CCTV footage from the Tim Hortons located on the northwest corner of Bloor Street West and Gladstone Avenue. The video camera pointed southbound toward the intersection of Bloor Street West and Gladstone Avenue. The camera was motion activated. 
 
At 3:55:34 a.m., the Chevrolet Cruze travelled at a high rate of speed southbound on Gladstone Avenue, directly through the stop sign that controlled the intersection of Gladstone Avenue and Bloor Street West and collided with the exterior wall of the TPL on the south side of Bloor Street West at Gladstone Avenue.
At 3:55:55 a.m., a police vehicle operated by the SO drove southbound on Gladstone Avenue and arrived at Bloor Street West, at a normal rate of speed. The police vehicle entered the intersection then travelled southbound on Gladstone Avenue, south of Bloor Street West, with no emergency lights activated.

Communications Recordings

Computer-Aided Dispatch (CAD) Log Search

According to the CAD Event Details Report, on May 11th, 2017, at 3:56:30 am, the SO and WO #1 were on scene at Bloor Street West. At 3:58:43 a.m., the police officers were with one person in the laneway. At 4:01:31 a.m., the ambulance was notified. At 4:24:46 a.m., WO #2 advised that there was no vehicle pursuit and the suspect was complaining of a broken back. 

Communications Recordings

The communications recordings were consistent with the information the SO provided to the SIU

Forensic Evidence

There were no submissions made to the Centre of Forensic Sciences.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • AVL Data Table for the SO’s cruiser;
  • Event Details Reports;
  • General Occurrence Report;
  • CAD Log Search;
  • Impound Report;
  • Injury Report;
  • MVC Report;
  • Notes of WO #s 1-6 and the SO;
  • Procedure 15-10-Suspect Apprehension Pursuit;
  • Summary of Conversation for Communications Recordings;
  • Full case TPS R. v. the Complainant;
  • TPS Scene Sketch; and
  • Unit History Report for the SO’s cruiser.
The SIU also obtained the Complainant’s medical records.

Relevant Legislation

Sections 1-3, Ontario Regulation 266/10, Ontario Police Services Act -- Suspect Apprehension Pursuits

1. (1) For the purposes of this Regulation, a suspect apprehension pursuit occurs when a police officer attempts to direct the driver of a motor vehicle to stop, the driver refuses to obey the officer and the officer pursues in a motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle. 

(2) A suspect apprehension pursuit is discontinued when police officers are no longer pursuing a fleeing motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle. 

2. (1) A police officer may pursue, or continue to pursue, a fleeing motor vehicle that fails to stop,
(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. 
(2) Before initiating a suspect apprehension pursuit, a police officer shall determine that there are no alternatives available as set out in the written procedures of,
(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. 
(3) A police officer shall, before initiating a suspect apprehension pursuit, determine whether in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle or the need to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle outweighs the risk to public safety that may result from the pursuit. 

(4) During a suspect apprehension pursuit, a police officer shall continually reassess the determination made under subsection (3) and shall discontinue the pursuit when the risk to public safety that may result from the pursuit outweighs the risk to public safety that may result if an individual in the fleeing motor vehicle is not immediately apprehended or if the fleeing motor vehicle or an individual in the fleeing motor vehicle is not identified.

(5) No police officer shall initiate a suspect apprehension pursuit for a non-criminal offence if the identity of an individual in the fleeing motor vehicle is known. 

(6) A police officer engaging in a suspect apprehension pursuit for a non-criminal offence shall discontinue the pursuit once the fleeing motor vehicle or an individual in the fleeing motor vehicle is identified. 

3. (1) A police officer shall notify a dispatcher when the officer initiates a suspect apprehension pursuit. 

(2) The dispatcher shall notify a communications supervisor or road supervisor, if a supervisor is available, that a suspect apprehension pursuit has been initiated

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

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.

Section 216 (1), Highway Traffic Act of Ontario -- Power of Police Officer to Stop Vehicles/ Escape by Flight

216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.
       (2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, subject to subsection (3),
(a) to a fine of not less than $1,000 and not more than $10,000;
(b) to imprisonment for a term of not more than six months; or
(c) to both a find and imprisonment.

Analysis and Director's Decision

On May 11th, 2017, the Complainant was operating a white Chevrolet Cruze motor vehicle when he came to the attention of the SO and WO #1, who were patrolling the area in their marked police cruiser. The SO made a U-turn to follow the Complainant’s motor vehicle as a result of which the Complainant increased his speed. A short time later, the Complainant crashed into the side of the Toronto Public Library (TPL) building located at the intersection of Gladstone Avenue and Bloor Street West in the City of Toronto. The Complainant then fled from his motor vehicle and was later arrested hiding in the stairwell in an alleyway and was transported to hospital, where it was discovered that he had sustained a fracture to his L2 vertebral body (the vertebra toward the lower end of the spinal column, within the lower back) which required surgery to repair.

During the course of this investigation, four civilian witnesses, including the Complainant, and five police witnesses were interviewed, including the subject officer (SO); additionally, investigators had access to the notebooks of seven police officers, the radio transmissions recordings, surveillance video from two commercial premises along the route travelled by the Complainant and the police cruiser, the in-car camera (ICC) video from the police cruiser, the download data from both the police cruiser and the Complainant’s motor vehicle, and the paramedic and medical records of the Complainant. During the course of my analysis, I have broken down the evidence into two distinct portions: the evidence leading up to the single vehicle collision between the Complainant’s motor vehicle and the TPL, and the conduct of police during the arrest of the Complainant. 

1. The Collision

The Complainant, in his statement to SIU investigators, advised that on May 11th, 2017, he was involved in a single vehicle motor vehicle collision with the TPL, during which he struck his head and may have been injured. Following the collision, the Complainant then ran and hid in a laneway in a stairwell.

In both the paramedic and the hospital records of the Complainant, he advised medical personnel that he had “passed out” or “blanked out” as a result of which he had crashed; the Complainant does not repeat that assertion in his statement to SIU investigators. Also, in his paramedic records, the paramedics have recorded that the “patient does not recall if he had his seatbelt on.” The Complainant’s assertion in his statement to SIU investigators that he was wearing his seatbelt at the time of the collision appears to be contradicted not only by his comment to paramedics, but also by his own statement wherein he advised that he struck his head during the collision. The download data from the vehicle driven by the Complainant positively confirmed that the Complainant was not wearing his seatbelt at the time of the collision.

The download data from the Chevrolet Cruze driven by the Complainant also revealed that five seconds prior to mounting the curb surrounding the library, the Complainant was driving at 140 km/h at a location of approximately 136 metres north of the intersection where the library is located. In the final five seconds prior to impact, the Complainant applied his brakes and had decreased his speed to about 58 km/h by the time his vehicle mounted the curb, and he had further reduced his speed to 32 km/h when he struck the building; this evidence would appear to contradict the Complainant’s claim to medical personnel that he had passed out, as he was clearly and heavily applying the brakes just prior to striking the library.

The Automatic Vehicle Locator (AVL) data from the police cruiser driven by the SO revealed that the police vehicle had been continuously operated at speeds of less than 40 km/h before the SO spotted the Complainant’s motor vehicle. As the SO was driving westbound on Lappin Avenue at 3:54 a.m., he was driving at approximately 24 km/h; after he made his U-turn, he travelled eastbound on Lappin towards Dufferin Street at speeds which had increased to range between 54 and 64 km/h. At 3:55 a.m., the police cruiser was travelling southbound on Gladstone Avenue for a distance of about 325 metres, in the wrong direction on a now one-way street, at a speed of approximately 82 km/h.

The ICC video from the SO’s cruiser, once activated, revealed that the Complainant’s motor vehicle was only visible to the occupants of the police cruiser after it had already collided with the library building, the ICC not having been activated in time to record the original sighting of the motor vehicle.

The police transmission recordings indicate that the SO and WO #1 advised that they were at the collision scene at 3:56:30 a.m., they had located the Complainant in a laneway at 3:58:43 a.m., and at 4:01:31 a.m. an ambulance was requested.

Surveillance video from a convenience store at the intersection of Lappin Avenue and Dufferin Street revealed the SO’s cruiser travelling slowly westbound on Lappin Avenue and then out of view. Seen next is the Complainant’s motor vehicle travelling eastbound on Lappin Avenue, at what appears to be a high rate of speed, turn right from eastbound Lappin Avenue to southbound Dufferin Street, without stopping at the stop sign, and moving directly into the path of another motor vehicle, causing that vehicle to brake to avoid a collision. This evidence contradicts the Complainant’s assertion that he had stopped at the stop sign when he first noticed that the police cruiser had made a U-turn.

The SO’s cruiser is recorded as then following westbound on Lappin Avenue approximately eight seconds behind the Chevrolet Cruze, after having accelerated to the same rate of speed as the Chevrolet Cruze but without any emergency lighting activated. The police cruiser is then seen another eight seconds later also turning right onto Dufferin Street without stopping at the stop sign; the emergency lighting system was still not activated.

The Chevrolet Cruze is next picked up by the surveillance video from a Tim Hortons store located directly across the street from the TPL, where, at 3:55:34 a.m., the Chevrolet Cruze is seen travelling at a high rate of speed southbound on Gladstone Avenue, going through the stop sign at the intersection of Gladstone Avenue and Bloor Street West, and colliding with the exterior wall of the library on the south side of Bloor Street West. Twenty one seconds later, the SO’s police cruiser is seen driving southbound on Gladstone Avenue and arriving at the intersection with Bloor Street West; the cruiser is driving at a normal rate of speed and does not have its emergency lighting equipment activated.

While both of the SO and WO #1, in their respective statements, advised that at no time were they engaged in a police pursuit with the Complainant, I have not repeated their evidence here, as it is fully consistent with, and confirmed by, the various technical and video evidence obtained by investigators, which has already been outlined above.

2. The Conduct of Police at Arrest

It is alleged that while the Complainant was hiding in the stairwell, five uniformed police officers arrived and all had their firearms drawn and were shouting at the Complainant to put his hands up and not move or they would shoot him. A police officer then came down the stairwell and hit the Complainant four to five times, slapping him on the side of his face, after which the police officer used his fist or open hand to hit him in his back and rib area on the right side of his body. It is alleged that after the Complainant was struck, he could no longer walk on his own.

The Complainant was then transported to hospital by ambulance. The Complainant was diagnosed with a broken bone in his back; he had no injuries prior to this incident.

While the medical and paramedic records have no notation as to what the Complainant may have said as to how he suffered his injury, throughout the records, the mechanism of his injury is recorded as being a motor vehicle collision; at no time is there any notation that the Complainant made any complaint that he received his injury, or that he was assaulted, at the hands of police. Additionally, the records indicate that there are no abrasions, bruises, lacerations or other external injuries located in the area of his spinal injury, which one would have expected had he been struck or punched by police with such a degree of force as would have caused his injury, as is alleged.

According to a medical expert opinion received, the injury sustained by the Complainant, that being a fracture to his L2 vertebral body, is a severe injury typically associated with high speed or high velocity and/or energy mechanisms and is a common injury seen following a motor vehicle collision. The expert further advised that although this injury can also be caused by a fall from height or severe blunt force trauma, in these circumstances, the Complainant’s injury was most likely caused by the vehicle collision and not by any subsequent altercation.

Two civilian witnesses, who both heard the Complainant’s interaction with police, described the arrest as not involving any physical altercation, or a violent dispute, and no slapping or hitting sounds were heard. The first witness advised that she initially heard a person running and, when she looked out, she saw two police officers running in the alley at the back of her apartment building. She then heard some scuffling and that the police officers were speaking with someone, but no indications of a physical interaction, only that the police officers were trying to apprehend someone. She then heard a voice say, “You hit my back! My back is broken!” and described the voice as screaming and moaning and that it seemed to her that the person was being overly dramatic, or over the top. The witness later saw the Complainant walk to the ambulance with the police officers and she observed him to be walking on his own and not being dragged by police, although he was screaming throughout. The witness observed that there were only three police officers with the Complainant and she was able to describe each of them.

The witness also overheard the Complainant tell paramedics that he had received his injuries in a “crash”.

Another witness heard two or three police officers speaking in an authoritative tone telling someone to “Stop. Just stop moving,” and advised that they sounded exasperated. One police officer was observed standing in the centre of the courtyard. The witness then heard someone say, in an exaggerated manner, “Ohhh my back,” and a police officer responded, “Come out from there,” to which the person responded, “I can’t move. I can’t move.” A police officer then stated, “You got yourself down there, you can get yourself back up.”

The witness observed a police officer then escort the Complainant out of the courtyard. The Complainant was observed as walking normally and it did not appear that his back was broken. Occasionally the Complainant would complain, “Oh my leg. Oh now my back. Oh no,” which was described as sounding almost comical and not like he was in pain. This second witness also confirmed that she heard no sounds from the stairwell that she would attribute to an altercation between the Complainant and the police officers.

I find it of particular note that both of the independent civilian witnesses described the Complainant as being overly dramatic or comical when he loudly and repeatedly complained about his injuries, which I take as meaning that he was putting on a show and was not being sincere in his complaints.

The SO, in his statement, advised that the Complainant’s motor vehicle initially came to his attention when it made an abrupt turn onto Lappin Avenue and entered into the oncoming lane of traffic, where the police cruiser was travelling at the time. The SO advised that the Complainant then quickly adjusted his driving and the motor vehicle returned to the proper lane. The SO made note of the licence plate number, following which he made a U-turn and followed. The SO indicated that his initial intention was only to follow the Chevrolet Cruze from a distance and he observed the Complainant drop off his passenger, following which he drove off at a higher rate of speed. The Complainant then failed to stop at a stop sign. Based on the various driving infractions of the Complainant to that point, the SO decided he would conduct a vehicle stop under the Highway Traffic Act (HTA) and increased his speed to follow. The SO advised that once the Complainant turned onto Dufferin Street, he lost sight of him. The SO also advised that at no time did he activate his emergency lighting system or siren. Once the SO arrived at the stop sign on Gladstone Avenue and Hallam Street, he observed the Complainant driving at a high rate of speed southbound on Gladstone Avenue, already some 300 to 350 metres ahead of where the police cruiser was stopped in the intersection.

The SO advised that he drove southbound on Gladstone, in excess of the speed limit, and that he also travelled the wrong way on Gladstone, when it changed to a one-way street, of which he was unaware at the time. The SO advised that he observed no pedestrian traffic. The SO then transmitted over his radio asking if there were any other cruisers in the area, but received no response. When the distance between his own vehicle and the Complainant’s increased to about 400 metres, the SO realized he was not going to catch up to the vehicle, and he provided the dispatcher with the make, colour and licence plate of the motor vehicle, while it disappeared from his view.

WO #1 advised that he believed that the Complainant was unaware of the police cruiser at that point because they were so far behind and they had not activated any emergency equipment.

When the SO arrived at the intersection of Gladstone and Bloor Street West, he observed that the Complainant had crashed into the side of the library. The SO then turned left onto Bloor Street West, without coming to a complete stop at the stop sign, and then again re-entered Gladstone Avenue when it continued on south of Bloor Street; his speed at that point was between 20 and 30 km/h. The SO then observed the Complainant running southbound, and he followed in his cruiser, but lost sight of the Complainant. The SO eventually stopped his cruiser and continued to look for the Complainant on foot while WO #1 took over driving. A number of pedestrians, and then a delivery man, pointed the SO in the direction in which the Complainant had run, eventually leading him to a laneway between buildings. When the SO shone his flashlight down a staircase, he observed two stationary feet, which appeared to be hiding, and he backed up and used his radio to advise WO #1 of his location.

WO #1 advised that upon his arrival, he observed the Complainant with both his hands in the air and he was crying that his back was broken. WO #1 and the SO both then commanded the Complainant to get on the ground, but he said he was unable to do so as his back was broken. Both police officers walked toward the staircase and the SO drew his firearm, as he did not know whether or not the Complainant was armed, and he shone his flashlight at the Complainant and stated, “Police, don’t move.” The SO described the Complainant as out of breath, shaking like a leaf, and appearing defeated; he complained that he was in pain and required an ambulance. The SO then re-holstered his firearm and waited for other officers to arrive. Shortly thereafter, additional officers arrived and the SO went down to assist the Complainant to stand up. The SO asked the Complainant what hurt and the Complainant responded that it was his back, following which the SO and WO #1 assisted the Complainant up the stairs with each holding one of his arms and supporting him. While they went up the stairs, the SO recalled the Complainant stating, “I’m sorry. I’m sorry. I fucked up. I’m not supposed to be driving. I think I fucked up my back.” The SO then arrested him for dangerous driving. The SO advised that neither he, nor any other police officer present, ever struck the Complainant, nor did the Complainant ever complain that the SO had injured him.

WO #4 advised that when he arrived at the arrest scene, he observed both of the SO and WO #1 standing at the top of a staircase and he saw the Complainant crouched at the bottom yelling that he needed an ambulance and complaining about his back. WO #4 advised that he observed the SO and WO #1 hold the Complainant under his armpits and walk him out of the stairwell, just as he was leaving to search the area. WO #4 advised that he at no time had any physical contact with the Complainant.

WO #3 advised that the arrest of the Complainant was a simple one, and that no fight occurred, and he had no physical contact with the Complainant.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from all of the evidence, and as conceded by the Complainant in his statement, that when he came to the attention of police, rather than slow or pull over, he decided to accelerate and speed off. Additionally, it is clear from the surveillance video and the download data from his motor vehicle that he failed to stop at a number of controlled intersections, that he interfered with other traffic in doing so, and that he was driving at excessive rates of speed. As such, the SO was legally entitled to stop and investigate the Complainant not only for HTA infractions, but to simply confirm that he was a licensed driver, and that his vehicle was properly insured. Pursuant to s.216 of the HTA and the decision of the Supreme Court of Canada in R. v. Ladouceur, [1990], 1 S.C.R. 1257, police can legally stop any motor vehicle to check the driver’s licence and insurance, the driver’s sobriety, or the mechanical fitness of the vehicle, and these random stops do not offend the Canadian Charter of Rights and Freedoms. As such, police were acting lawfully when they attempted to initially stop and investigate the Complainant pursuant to the HTA. Furthermore, when he then increased his rate of speed, ran several stop signs, and ultimately crashed into the side of the library, they had further grounds to arrest him for dangerous driving contrary to the Criminal Code as well.

On the evidence before me, I find that I have reasonable grounds to believe that the Complainant’s injury was caused by the motor vehicle collision based on the following evidence: the expert medical opinion as to the mechanism of his injury; the comments made by the Complainant, as overheard by an independent civilian witness, that he had sustained his injury as a result of being involved in a “crash”; and, the fact that the medical assessment of the Complainant did not uncover any bruises, contusions or abrasions consistent with his having been punched or struck, as is alleged. On all of the evidence, I have no hesitation in accepting that there are reasonable grounds to believe that the Complainant’s injury was as a direct result of his smashing his motor vehicle into the library wall decelerating from a high rate of speed while not wearing a seatbelt, and that it is not consistent with his having been punched or struck with an open hand by a police officer at the time of his arrest.

Furthermore, on this record, I find that the evidence as provided in the statements of both of the SO and WO #1 is fully confirmed by the ICC video and the AVL data from the police cruiser, the download data from the vehicle driven by the Complainant, the police radio transmission recordings, and the surveillance video from the two commercial premises on the route followed by the Complainant; on this basis, I accept their evidence in its entirety as being an accurate recounting of the sequence of events and reject the evidence of the Complainant where it is contradicted by the evidence of the police officers.

Dealing then with whether or not the Complainant’s crash into the TPL and his subsequent injuries were as a result of a police pursuit initiated by the SO, and, whether or not there was a pursuit, if there are reasonable grounds to believe that the SO committed a criminal offence, specifically, whether or not his driving leading up to the collision was dangerous and therefore in contravention of s.249 (1) of the Criminal Code and did thereby cause bodily harm contrary to s.249 (3).

The decision of the Supreme Court of Canada R. v. Beatty, [2008] 1 S.C.R. 49, is authority that s.249 requires that the impugned 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, I accept the evidence of both of the SO and WO #1 that the SO at no time engaged the Complainant in a police pursuit. I accept this version of events not only because it is confirmed by all of the physical evidence as outlined above, but also because the Complainant at no time alleged that the police engaged him in a pursuit; other than when the cruiser made a U-turn and accelerated to catch up to the Complainant at the beginning of the incident. The Complainant does not indicate that he ever even saw the police cruiser again before he collided with the library. Furthermore, I note that the SO at no time activated any of his emergency equipment and, as soon as he saw that he could not safely catch up to the Complainant, he gave up any attempt at a vehicle stop but instead strategically followed the route he believed the Complainant had taken, at a much lesser rate of speed, after having lost sight of the Complainant’s motor vehicle. He also advised the dispatcher of the description and last location of the Complainant’s motor vehicle.

While the SO concedes, as is confirmed by the data from his police cruiser, that he exceeded the speed limit initially in his efforts to catch up to the Complainant in order to initiate a vehicle stop, that he drove briefly the wrong way on a one way street, and that he failed to stop at two stop signs, I cannot find that his driving rose to the level as contemplated pursuant to s. 249 of the Criminal Code as being ‘a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances’, those circumstances being a police officer attempting to follow a motor vehicle after it had committed several HTA infractions. While the SO’s speeds were above the posted speed limits in the area, they never exceeded 82 km/h, and that was only for a distance of some 325 metres, while the remainder of his driving during the relevant time frame did not exceed 64 km/h. Furthermore, I find that there is no evidence that the SO’s driving created a danger to other users of the roadway in that at no time did he interfere with any other traffic, there being very little vehicular or pedestrian traffic at that time of the morning, and the entire route for which he attempted to follow the Complainant was comprised of no more than a distance of 1.5 kms and less than 90 seconds; additionally, the environmental conditions were good and the roads were dry. The SO also did nothing to exacerbate the Complainant’s pattern of dangerous driving, as it appears that due to the distance between the police cruiser and the Complainant, and the fact that the SO did not activate his emergency equipment, the Complainant was unaware that the police cruiser was still following his route after it had made its original U-turn and accelerated in an attempt to make a traffic stop. In the final analysis, I am satisfied on this record that the SO was acting lawfully when he first attempted to stop the Complainant to investigate a number of HTA offences and that his conduct thereafter fell within the limits of care prescribed by the criminal law. Accordingly, I am of the opinion that there are no grounds for proceeding with any driving related charges against the SO.

With respect to the allegation that one of five police officers, the tall one, hit the Complainant four to five times with an open palm to the right side of his face and then used his fist or open hand to hit the Complainant in his back and rib area, I find that I am unable to place much reliance on the statement of the Complainant for the following reasons: his statement that he was wearing his seatbelt at the time of the crash has clearly been proven to be untrue based on the data from his motor vehicle; his initial statement to paramedics and medical personnel that he had crashed because he had ‘passed out’ is contradicted both by his later statement to SIU investigators and by the fact that he applied the brakes immediately prior to, and right up to, the time of the crash; his comment at the scene, as overheard by a civilian witness, that his injury was caused by “the crash”; the complete absence of any bruising or external injury consistent with his having been punched with such force as to cause his injury; the observations of the two independent civilian witnesses that they heard no sounds which they would have found to be consistent with a physical altercation; the observations of the two civilian witnesses that only three police officers were present at the time the Complainant was removed from the stairwell (which I infer on the evidence to have been the SO, WO #1 and WO #3, WO #4 having gone to walk the route to see if the Complainant had disposed of any items); the observations of the two independent civilian witnesses that the Complainant was being overly dramatic or comical in his ‘over the top’ performance at the scene; and finally, the fact that the Complainant is unable to differentiate between an open handed strike and a punch, when he described the strikes to his body which he believed caused his significant back injury.

For all of these reasons, and because the statements of the SO and WO #1 were corroborated and confirmed by all of the evidence other than the Complainant’s, I accept on reasonable grounds the version of events as outlined by the two police officers and reject the version of events as outlined by the Complainant. On this basis, I cannot find reasonable grounds to find that any officer used any more force against the Complainant other than the minimal required to assist him up the stairs, and that the officers specifically forewent the requirement even of the minimal use of force to handcuff the Complainant, due to the nature of his injury and his complaints.

In conclusion, on this record, I find that at no time did the SO engage the Complainant in a police pursuit, that his driving did not rise to the level of being dangerous in the circumstances, and that no police officer resorted to an excessive use of force in apprehending the Complainant. I am satisfied on reasonable grounds that the Complainant was injured when he drove into the wall of the TPL while driving at excessive rates of speed, in a reckless manner, and while not restrained by his seatbelt, in efforts to evade police. I further find that the Complainant then fled on foot and was later located hiding in a stairwell, where he was assisted out by police and arrested, and that no more than the absolute minimal use of force was resorted to by any of the officers present. I find therefore on reasonable grounds that I am unable to form the belief that the SO, or any police officer present for the arrest of the Complainant, committed any criminal offence.


Date: March 13, 2018



Tony Loparco
Director
Special Investigations Unit

Footnotes