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SIU Director’s Report - Case # 18-TVI-280

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 serious injuries sustained by two women, ages 18 and 20 (“Complainant #1” and “Complainant #2”).

The Investigation

Notification of the SIU

On September 19, 2018, at 5:58 a.m., the Toronto Police Service (TPS) reported an injury to a woman, who was a passenger in a vehicle, which was involved in a collision on September 19, 2018, at 2:00 a.m., at Dundas Street West and Lansdowne Avenue, Toronto.

The Team

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

Complainant:

Complainant #1 18-year-old female interviewed, medical records obtained and reviewed
Complainant #2 20-year-old female interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

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



Evidence

Communications Recordings

At 11:45 p.m., September 18, 2018, someone called the TPS from the Imperial Pub at Dundas Square to report his Dodge Avenger had been stolen. The police could not find the caller and a formal stolen car report was never taken.

At 2:37:40 a.m., September 19, 2018, WO #2 drove southbound on Spadina Avenue behind a Dodge. He believed the Dodge was the stolen vehicle that had been broadcast earlier (it had the same license plate). The dispatcher checked out the plate and found it was not reported stolen and that it was a Dodge Avenger. WO #2 lost sight of the vehicle and he thought it had gone to the Gardiner Expressway or Lakeshore Boulevard. WO #2 drove westbound on the Gardiner Expressway and he observed the Dodge travel northbound on Dunn Avenue. At 2:42:30 a.m., WO #2 observed the Dodge drive through the red light at Queen Street and travel westbound to Lansdowne Avenue. At 2:42:56 a.m., WO #2 advised the Dodge went northbound on Lansdowne Avenue and then westbound in a laneway to Macdonell. The dispatcher asked WO #2 the speed involved and how many people were in the Dodge. WO #2 responded that the speed was 30 km/h and there were three people in the vehicle.

At 2:44:11 a.m., the SO took over as the lead vehicle eastbound on Rideau Avenue to Lansdowne Avenue, and at that time they activated their roof lights. The next transmission was at 2:44:30 a.m., when a police officer advised that the Dodge had crashed through a gate northbound on Lansdowne Avenue at Dufferin Street [now known to be Dundas Street West].

The Scene

The pursuit route went southbound on Spadina Avenue, westbound on the Gardiner Expressway, northbound on Dunn Avenue and westbound on Queen Street. It continued northbound on Lansdowne Avenue for a very short distance and then westbound in laneway north of Queen Street. It continued northbound on Macdonell Avenue and stopped at Seaforth Avenue. It then continued northbound on Macdonell Avenue to Rideau Avenue and eastbound on Rideau to Lansdowne Avenue. It ended northbound on Lansdowne Avenue to Dundas Avenue West and the scene of collision.

The scene of the collision was located at the intersection of Lansdowne Avenue and Dundas Street West one block south of College Street. Lansdowne Avenue travelled in a north/south direction with Dundas Street West intersecting in an east/west direction. The intersection had been closed off due to extensive construction, which involved the installation of new streetcar railway tracks. The entire intersection was surrounded by a large fence. Large machinery and various equipment trailers were parked along the east and west curbs of Lansdowne Avenue south of Dundas Street. The area in the middle of the intersection and Lansdowne Avenue north of the intersection had been excavated and new track rails had been installed on concrete pads bringing the rails to grade with the road surface. With the exception of the rails, the excavated area was basically a large hole approximately two feet deep in the middle of the intersection.

On Lansdowne Avenue south of the intersection there was an area of construction fencing that had been broken down. Tire marks could be seen on the roadway surface prior to the fencing suggesting a vehicle travelled northbound on Lansdowne Avenue towards the construction area. Inside the construction area amongst the equipment and trailers were more pieces of fencing scattered on the roadway. On the newly laid track rails that ran east west along Dundas Street there were more tire marks. In the excavation area north of the rails there were two areas of impact. One impact struck the edge of the concrete pad and the other area of impact struck the edge of the excavation consisting of aggregate and asphalt. The Complainants’ vehicle was on a second set of newly laid rails that travelled primarily north/south on Lansdowne Avenue. 

Scene Diagram

Scene diagram

Physical Evidence


Complainants’ Vehicle: 2014 Dodge Avenger

This vehicle was orientated on its right side facing north in the excavated area and wedged between the excavation edge and a heavy equipment machine resting on the rails. There was collision damage to the entire vehicle that was attributed to this incident. Tire marks at the scene prior to entering the construction area and then across the east west rails, areas of impacts and the final resting point of the vehicle suggested that travel was northbound on Lansdowne Avenue into the construction area and to a final resting point.

The Dodge Avenger resting on its right side following the collision.

Figure 1 - the Dodge Avenger resting on its right side following the collision.


Police Vehicle 1: 2015 Ford Interceptor

This was a marked police vehicle displaying “stealth” graphics as designed by the TPS. This vehicle was equipped with emergency lighting and siren.


Police Vehicle 2: 2017 Ford Interceptor

This was a marked police vehicle displaying graphics as designed by the TPS. This vehicle was equipped with emergency lighting and siren and found to be operational at the time of examination. There was minor collision damage to the front passenger fender, which presented as old damage.


Police Vehicle 3: 2018 Ford Explorer

This was a marked police vehicle displaying graphics as designed by the TPS. This vehicle was equipped with emergency lighting and siren and found to be operational at the time of examination. There was no collision damage to this vehicle that could be attributed to this incident.

Forensic Evidence


Pursuit Line-up and GPS Report on Cruisers:

WO #2 travelled at 47 km/h northbound on Macdonell Avenue. The Dodge started to turn right onto Seaforth Avenue but stopped as WO #3 was westbound on Seaforth Avenue driving towards the Dodge. The SO tried to box the Dodge in, on the left side but the Dodge was able to drive around it and continued north on Macdonell Avenue. The Dodge turned right onto Rideau Avenue and the SO was now the lead cruiser and travelled at 52 km/h. He was followed by WO #2. WO #3 drove northbound on Macdonell Avenue at 38 km/h. The Dodge continued eastbound on Rideau Avenue and then northbound on Lansdowne Avenue, followed by the SO. At Lansdowne Avenue and Rideau Avenue, WO #4 drove northbound on Lansdowne at 29 km/h and he became the second cruiser in the line-up with WO #2 as the third cruiser. The Dodge continued northbound on Lansdowne Avenue followed by the SO at a speed of 38 km/h.


Crash Data Retrieval (CDR) Report:

During the collision the air bags of the 2014 Dodge Avenger deployed. During the air bag deployment process, data, including speed, was recorded in the air bag control module (ACM). The data from the ACM was imaged by TPS. It was noted by TPS that the size of the tires found on the Dodge differed from the original equipment manufacturer (OEM)’s recommended size of the tires. Because the size of the actual tires on the Dodge differed slightly from the OEM recommended size, the speed reported on the CDR report should be referred to only as an approximate speed.

The crash occurred with 110121.7 kms on the Dodge odometer. Two events were recorded by the ACM. The data was consistent with the first event being when the front of the Dodge struck the wall of the construction excavation and the cement pad in the intersection after having become airborne when it left the asphalt and drove over the exposed streetcar rails. In the first event the driver and front passenger air bags and seat belt pre-tensioner(s) were deployed. At about the time of the impact with the wall of the excavation (when the air bags deployed), the speed of the Dodge as recorded by the ACM was unreliable likely due to the vehicle having vaulted into the excavation and being airborne prior to the impact. The CDR report indicated (reliably) that five seconds prior to the Dodge colliding with the wall of the excavation, the Dodge travelled at 81 km/h, with the accelerator pedal at 50% and the engine throttle at 77%, with the brake depressed. The reported data was consistent with CW #1 travelling about 81 km/h about five seconds prior to the collision. At about the same time he had released the accelerator and depressed the brake, resulting in the vehicle slowing for a couple of seconds. The stability control engaged about two seconds prior to the crash, consistent with the point at which the Dodge left the asphalt and drove over the exposed street car rails. When the Dodge left the asphalt it travelled at about 68 km/h. The vehicle was airborne for about two seconds then struck the wall of the excavation. At 0.9 seconds after the first event, the ACM recorded a second event. The data for the second event was consistent with the Dodge colliding with the TTC machine where the Dodge came to rest.

Video/Audio/Photographic Evidence


In Car Camera System (ICCS) Video: the SO

At 2:43:41 a.m., the SO stopped beside a grey coloured TPS stealth car, which was stopped at the southeast corner of Macdonell Avenue and Seaforth Avenue. The Dodge entered the screen from the front of WO #2’s cruiser and drove northbound on Macdonell and the SO followed. At 2:44:04 a.m., the Dodge turned right onto Rideau Avenue and it sped up and the SO activated his emergency lighting. At 2:44:12 a.m., the Dodge turned left onto Lansdowne Avenue and travelled under a bridge and passed a road closure sign. The Dodge sped up and widened the gap between itself and the SO. At 2:44:30 a.m., the Dodge drove through the gate into the collision scene and at 2:44:40 a.m., two uniformed police officers were observed to run on foot into the collision scene.


ICCS Video: WO #4

At 2:43:50 a.m., WO #4 drove northbound on Lansdowne Avenue. Before he reached Rideau Avenue the Dodge went through the stop sign eastbound on Rideau Avenue and then northbound on Lansdowne Avenue, followed by the SO with his emergency lights activated, some distance back from the Dodge. WO #4 followed the SO northbound on Lansdowne Avenue and arrived at the scene of the collision right after 2:44:43 a.m.

The ICCS recordings for the other police units had no investigative value.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Event Details Report;
  • General Occurrence (x2);
  • CAD Event Details Report (x2)
  • Injury Report – complainants and CW #1
  • List of TTC Witnesses and Contact Information;
  • Motor Vehicle Accident report (MVAR);
  • Notes of witness officers;
  • Procedure - Use of Force;
  • Pursuit Report (Fail to Stop Report);
  • CDR Downloads;
  • Communications recordings;
  • AVL Data for four vehicles;
  • TPS SOCO Photos; and
  • ICCS footage for five vehicles.

Incident Narrative

The events in question are evident on the information collected by the SIU, which included statements from each of the Avenger’s occupants and witness officers (including WO #1, who was a passenger in the SO’s cruiser), as well as data relating to speed and an in-cruiser video recording downloaded from the subject officer’s cruiser. WO #2, on patrol in his cruiser with stealth markings, observed the Avenger at about 2:40 a.m. on September 19, 2018, traveling south on Spadina Avenue. He suspected it was the same vehicle that had earlier been reported stolen. In fact, it was. The officer began to follow the Avenger at a distance as it made its way westbound onto the Gardiner Expressway before exiting to travel north on Dunn Avenue. WO #2 observed the Avenger turn left through a red light at Queen Street, at which point he believed the driver of the Avenger was aware of his presence. The Avenger picked up its speed and proceeded to turn right to travel north on Lansdowne Avenue, then left into a laneway, and right again onto northbound Macdonell Avenue. WO #2 continued to keep pace behind the Avenger. At no point did he activate his emergency lights or siren.

The SO, in his fully marked police SUV and with WO #1 as his partner, had heard over the radio that WO #2 was engaged with a suspected stolen vehicle. The officers fell in behind WO #2 on Macdonell Avenue and joined in the pursuit. As the convoy of vehicles approached Seaforth Avenue, the SO drove past WO #2’s vehicle and came up alongside the driver’s side of the Avenger. A police SUV being operated by WO #3, who approached from the east on Seaforth Avenue, blocked the Avenger’s right side. An effort was made to block the Avenger at this time, but it managed to maneuver around the police vehicles and continue north on Macdonell Avenue.

The Avenger travelled north on Macdonell Avenue and then east on Rideau Avenue, now with the SO’s cruiser as the lead police vehicle behind it. Ignoring a stop sign at the intersection, the Avenger turned left onto Lansdowne Avenue and accelerated northward toward Dundas Street West. The SO, with his cruiser’s lights activated, pursued the Avenger from a distance and watched as it struck a fence barring entry into a construction zone at the Dundas Street West intersection. Work to replace the streetcar tracks was ongoing at the time.

The Avenger continued into the intersection, drove over the exposed streetcar tracks and became airborne, coming to rest on its passenger side alongside a piece of heavy machinery. The SO and WO #1 were the first at the scene. Together with other arriving officers, they removed the three occupants from the Avenger as it burst into flame. The fire was put out by a TTC construction worker with a fire extinguisher. CW #1, Complainant #2 and Complainant #1 were arrested, and arrangements made to have them taken directly to hospital from the scene.

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

In the early morning of September 19, 2018, Complainant #1 and Complainant #2 were occupants of a Dodge Avenger when it crashed at a construction site in the intersection of Dundas Street West and Lansdowne Avenue. Complainant #1 and Complainant #2 suffered multiple fractures in the collision. The SO was pursuing the Avenger at the time. For the reasons that follow, I am satisfied there are no reasonable grounds to believe the SO committed a criminal offence in connection with the collision and the resulting injuries to Complainant #1 and Complainant #2.

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 predicated, in part, on conduct that deviates markedly from a reasonable level of care in the circumstances. The officers involved in the pursuit of the Avenger, including the SO, were acting in the lawful discharge of their duties. They had information that the vehicle had been reported stolen and were within their rights in attempting to stop it for investigation of its occupants.

From the moment it appears the driver of the Avenger became aware he was being followed, on Dunn Avenue, until the collision, the Avenger had travelled a distance of approximately 1.5 kilometres. During that time, the roads were dry, the weather was clear and there was little if any vehicular or pedestrian traffic along the pursuit route. The SO, with his cruiser’s emergency lights on for most of his engagement with the Avenger, travelled at moderate speeds and kept a fair distance back of the Avenger; a construction worker at the site of the collision estimated the first cruiser arrived on scene within ten to 20 seconds of the Avenger. In the circumstances, it is clear the driver of the Avenger had every opportunity to bring his vehicle to a safe stop had he been so inclined.

With respect to the attempted block of the Avenger, and the SO’s participation in the maneuver, it was in my view a reasonable tactic. The Avenger, while refusing to stop for the police, had to that point been traveling at moderate speeds without endangering traffic around it, leaving the officers to reasonably conclude its driver might surrender without incident once surrounded. The tactic was also performed while the Avenger had slowed to make a turn and without any contact being made between the police vehicles and the Avenger

While the SO ought to have brought his cruiser to a complete stop before traveling through the stop sign as he turned left from Rideau Street to proceed north on Lansdowne Avenue, the officer did slow his vehicle appreciably before completing the turn and did so safely without endangering anyone’s safety. Similarly, though the officer drove the wrong way north on Macdonell Avenue in pursuit of the Avenger, he did so for a short distance (about 360 metres), at low speed and in safety.

On the aforementioned record, in the context of a brief engagement during which the SO was the lead vehicle in a low speed pursuit of the Avenger over a distance of about one kilometre, there are no reasonable grounds to believe the subject officer transgressed the limits of care prescribed by the criminal law. Accordingly, there are no grounds for proceeding with charges in this case.


Date: September 13, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes