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SIU Director’s Report - Case # 18-TVI-375

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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 three people, ages 51, 80 and 58 (“Complainant #1”, “Complainant #2” and “Complainant #3”).

The Investigation

Notification of the SIU

On December 26, 2018 at 12:25 a.m., the Toronto Police Service (TPS) notified the SIU of the injuries sustained by the operator and occupants of a motor vehicle.

According to the TPS, on December 25, 2018, at about 10:20 p.m., TPS uniformed officers [now known to be the Subject Officer (SO) and Witness Officer (WO) #1] were responding to a call for service with roof lights and siren activated in a marked police cruiser. The SO and WO #1 were westbound on Cosburn Avenue, when, at a point just west of Woodbine Avenue, they were involved in a collision with a civilian vehicle. All involved parties were taken to St. Michael’s Hospital (SMH) where the driver of the civilian vehicle was diagnosed with a fractured pelvis

The Team

Number of SIU Investigators assigned: 7
Number of SIU Forensic Investigators assigned:

SIU investigators conducted civilian and police witness interviews, canvassed for and obtained Closed Circuit Television (CCTV) data, and canvassed for and obtained information from civilian witnesses. The SIU forensic investigator made digital photographs, and collected and photographed exhibits relevant to the incident. An SIU Collision Reconstructionist examined the scene and exhibits, and provided a report in respect of the collision. 

Complainants

Complainant #1 51-year-old female interviewed, medical records obtained and reviewed
Complainant #2 80-year-old male interviewed, medical records obtained and reviewed
Complainant #3 58-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed 

Witness Officers

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


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

The collision occurred at the intersection of Cosburn and Woodmount Avenues in Toronto. There is one lane for northbound traffic and one lane for southbound traffic on Woodmount Avenue. On the east side of the intersection there is one lane for eastbound traffic and one lane for westbound traffic on Cosburn Avenue. There is an irregularly wide bicycle lane on each side of Cosburn Avenue. On the west side of the intersection there are two lanes for eastbound traffic on Cosburn Avenue and one lane for westbound traffic. The surface of both roads is paved asphalt in good condition.

The intersection is controlled by stop signs placed on Woodmount Avenue requiring traffic travelling northbound and southbound on Woodmount Avenue to stop and yield the right of way to traffic travelling eastbound and westbound on Cosburn Avenue. The speed limit on Cosburn Avenue is posted at 40 km/h. The speed limit on Woodmount Avenue is posted at 30 km/h. The area is well-signed and marked. There is a painted stop line on Woodmount Avenue for southbound traffic on the north side of Cosburn Avenue. All signs and markings are in good condition.

The road surface was dry with some damp areas at the time of the collision. This collision occurred during darkness. The intersection was well-lit with overhead street lights on the east side of Cosburn Avenue and the south side of Woodmount Avenue. 

Scene Diagram

Scene diagram

Forensic Evidence


Automated Vehicle Locating System (AVLS) Data

The AVLS data indicated that at about 9:25 p.m., the SO and WO #1 were travelling northbound on Woodbine Avenue. At about 9:27 p.m., as the police vehicle was northbound on Woodbine Avenue near Mortimer Avenue, the flashing emergency lights were activated [now known to be in response to the call to assist an undesignated officer]. The police vehicle turned left to travel westbound on Cosburn Avenue.

At about 9:28 p.m., the police vehicle was travelling westbound on Cosburn Avenue, about 57 metres east of the east curb of Woodmount Avenue, or about halfway between Rednor Road and Woodmount Avenue The police vehicle was travelling at about 87 km/h with its flashing emergency lights activated.

About two seconds later, the police vehicle was approximately nine metres east of the east curb of Woodmount Avenue, travelling at about 84 km/h with the flashing emergency lights and the siren activated. This data point would appear to have been captured immediately before the collision as the police vehicle was braking from its maximum pre-impact speed of 89 km/h to its impact speed of about 66 km/h.

The next recorded data point was about 16 seconds later and was post-impact when the police vehicle was in its position of final rest on the southwest corner of the intersection.

Video/Audio/Photographic Evidence

In addition to the materials described below, the SIU received further civilian CCTV, videos and photographs; however, these materials did not reveal any information that was not already obtained from the other evidence and are not described.

CCTV Data - Woodmount Avenue

The camera faces east toward Cosburn Avenue and its field of view included the intersection of Cosburn and Woodmount Avenues.

At 9:32:51 p.m., a white four-door Volkswagen Golf vehicle [now known to be operated by CW #5 with CW #2 and CW #3 as passengers] travelled eastbound on Cosburn Avenue. At 9:32:56 p.m., flashing lights can be observed in the top right screen travelling in a westbound direction. The flashing lights were associated to the SO’s police vehicle. The Volkswagen Golf appeared to brake as it approached the flashing lights.

At 9:32:57 p.m., a dark coloured vehicle [known to be operated by Complainant #1] was seen in the top right screen area of the video. The dark vehicle slowly approached the intersection of Cosburn and Woodmount Avenues travelling southbound on Woodmount Avenue. Complainant #1’s vehicle appeared to come to a stop for approximately two and a half seconds before proceeding through the intersection into the path of the SO’s police cruiser. At 9:33:05 p.m., a collision occurred. Due to the quality of the CCTV equipment, further detail of the collision was not visible. At 9:34:31 p.m., the recording ended.

In-Car Camera System (ICCS) Data

The following is a summary of the ICCS data for the police vehicle operated by the SO:

The recording commenced at 9:27:11 p.m. The SO and WO #1 were logged on to the ICCS.

At 9:27:44 p.m., the emergency lights and ICCS microphone were activated. The SO was driving northbound on Woodbine Avenue toward Mortimer Avenue occupying lanes on both sides of traffic. At 9:27:59 p.m., the SO turned left, meaning west, on Cosburn Avenue

The absence of vehicular and pedestrian traffic was evident as the SO travelled westbound on Cosburn Avenue.

At 9:28:05 p.m., a set of head lights facing eastbound on Cosburn Avenue [now known to be the Volkswagen Golf operated by CW #5] was observed stopped at the intersection of Cosburn and Woodmount Avenues, and at 9:28:08 p.m., a black vehicle [now known to be the Acura driven by Complainant #1] entered the intersection with an obstructed view stemming from the privacy fence at the southeast corner of Woodmount Avenue, without stopping. At 9:28:08 p.m., the ICCS display triggered sirens and one second later at 9:28:09 p.m., the SO’s vehicle collided with the Acura. At 9:28:10 p.m., video connection was lost but radio transmissions were recorded.

Toronto Transit Commission (TTC) CCTV Data

The SIU received CCTV data from TTC, from five transit buses that travelled in the area of Cosburn and Woodmount Avenues on December 25, 2018 between 9:00 p.m. and 10:30 p.m. The following is a summary of the data.

  • Buses #1-3
The above-mentioned buses were not equipped with exterior cameras and the interior cameras were unable to record any relevant data.

  • Bus #4
The bus travelled eastbound on Cosburn Avenue. At 9:31:47 p.m., a marked TPS vehicle with emergency lights activated travelled eastbound past the bus. At 9:33:09 p.m., the bus, still travelling eastbound on Cosburn Avenue, stopped in the area of the incident scene and another marked TPS vehicle with emergency lights activated travelled eastbound past the bus. The transit operator contacted their dispatch centre and then a police officer entered the bus where a brief conversation took place. The bus subsequently left the area.

  • Bus #5
The bus travelled westbound on Cosburn Avenue from the TTC Main Station. At 9:33:51 p.m., an unknown emergency vehicle with emergency lights activated travelled westbound on Cosburn Avenue past the bus followed by additional emergency vehicles a short time later. At 9:35:41 p.m., the bus came to a stop near the incident scene and the operator began speaking with a person who stood outside the front bus doors out of camera view. The unknown person’s hands could only be seen and they indicated, with their hands, that a vehicle travelled in one direction and another vehicle, travelling from right to left, struck the right side of the first vehicle. At 9:38:23 p.m., a police officer attended the bus where a brief conversation with the operator took place. At 9:39:56 p.m., the operator exited the bus and returned at 9:40:25 p.m. The bus left the area at 9:44:00 p.m.

Police Communications Recordings

At 9:15:13 p.m., the TPS dispatcher broadcast over the air, information of a suspicious man on Pape Avenue, Toronto. A TPS fleet vehicle operated by an undesignated police officer was dispatched to the address.

At 9:21:16 p.m., a man called 911 to report an ongoing neighbour dispute on Enderby Road with a TPS vehicle [now known to be operated by the SO and with WO #1 as her on-board escort] responding to the address.

At 9:27:12 p.m., the undesignated officer requested a check on a man. The man could be heard over the radio yelling profanities, and at 9:27:32 p.m., the officer advised the man was agitated and she requested assistance but stipulated it was “no rush.” Her voice was calm and clear.

At 9:27:39 p.m., the TPS dispatcher pre-emptively placed the SO and WO #1 on the ‘suspicious male’ event. At 9:28:33 p.m., WO #1 advised their vehicle was involved in a collision.

At 9:28:36 p.m., a man called 911 to report a collision between a police cruiser and another vehicle. Prior to the collision, the man heard police sirens and saw police emergency flashing lights.

At 9:28:43 p.m., WO #1 advised he and the SO were uninjured but still in the police cruiser.

At 9:28:46 p.m., a woman [now known to be CW #2] called 911.

At 9:30:23 p.m., WO #1 requested traffic units to attend the collision scene, and at 9:30:40 p.m., the TPS dispatcher requested a sergeant to attend the collision scene.

At 10:34:40 p.m., the undesignated officer called TPS communications and requested playback of her ‘officer needs assistance call.’ The officer sought confirmation that she said, “No rush.”

Expert Evidence


SIU Reconstructionist’s Report - Conclusions

On December 25, 2018, at about 9:30 p.m., Complainant #1 was operating a 2003 Acura 1.7 EL, four-door, black in colour. Also in the vehicle were Complainant #2, Complainant #3 and CW #1. Complainant #1 was travelling southbound on Woodmount Avenue toward Cosburn Avenue.

At the same time, the SO was operating a fully marked TPS vehicle: a grey Ford Taurus sedan. WO #1 was a front seat passenger. Both police officers were properly seat-belted. The SO and WO #1 were responding to a request for backup from another police officer. The road was mostly dry and in good condition. The weather was overcast. It was not raining. It was dark. The traffic was light.

The SO had turned onto Cosburn Avenue from Woodbine Avenue and was travelling westbound on Cosburn Avenue with the flashing emergency lights continually activated. The SO gradually accelerated from about 78 km/h to 89 km/h, in a posted 40 km/h zone. The SO approached the intersection of Cosburn and Woodmount Avenues with the right-of-way. A vehicle operated by a civilian witness, CW #5, eastbound on Cosburn Avenue, pulled to the right and stopped just prior to entering the intersection of Cosburn and Woodmount Avenues.

Complainant #1 approached the intersection of Cosburn and Woodmount Avenues facing a single stop sign at Cosburn Avenue. Complainant #1 either slowed or stopped for the stop sign. She then entered the intersection. The SO, who was about to enter the intersection travelling at about 89 km/h, braked heavily and swerved to the left. The front of the police vehicle, travelling at about 66 km/h at the time, collided with the driver’s side of the Acura in the intersection. The two vehicles veered toward the southwest corner of the intersection, with the police vehicle narrowly missing the vehicle being driven by CW #5 on the right, and a large wooden utility pole on the left.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • Automatic Location Identification (ALI) log search;
  • AVLS data for the SO's Vehicle;
  • Communications audio recordings;
  • Computer Aided Dispatch (CAD) Event Details Report;
  • CAD-Event Details Report(x3);
  • ICCS data;
  • Motor Vehicle Accident Report (x2);
  • Notes of all witness officers;
  • Parade Sheet Report;
  • Policy-ICCS;
  • Supplementary Reports and Will Say Civilian Statements obtained by the TPS (included in the notes of WO #4);
  • TPS Vehicle Exam Request form-Acura;
  • TPS Vehicle Exam Request form-Ford;
  • Vehicle Mechanical Examination Request (Acura); and
  • Vehicle Mechanical Examination Request (Ford).

Materials obtained from Other Sources

Upon request the SIU obtained and reviewed the following additional materials and data:
  • Ambulance Call Reports (ACR) pertaining to the civilians involved in the collision;
  • CCTV data;
  • Drawings by CW #4 and CW #5;
  • Photographs made by CW #5;
  • SMH records for the occupants of Complainant #1’s vehicle relevant to the incident;
  • TTC CCTV data; and
  • Video data from CW #2.

Incident Narrative

Owing in large measure to a video recording of the incident captured by the cruiser’s camera system, the accounts of several civilian eyewitnesses and data downloaded from the subject officer’s vehicle, the events in question are clear and may be summarized in short order. At about 9:30 p.m. on December 25, 2018, the SO and WO #1 were on patrol in their cruiser heading to a neighbour dispute call when they were diverted by a fellow officer’s call for assistance in dealing with an agitated male. Sensing that time was of the essence, the cruiser’s emergency lights and siren were activated and the SO picked up her speed. She travelled north on Woodbine Avenue to Cosburn Avenue, whereupon she turned left and continued west toward the roadway’s intersection with Woodmount Avenue. At the same time, Complainant #1 was proceeding south on Woodmount Avenue toward Cosburn Avenue. She entered the intersection and was broadsided by the SO’s cruiser.

Following the collision, the officers exited their cruiser and checked on the well-being of the Acura’s occupants. Paramedics attended and transported the injured parties to hospital. Complainant #1, Complainant #2 and Complainant #3 were each diagnosed with serious injuries.

Relevant Legislation

Section 128(13)(b), Highway Traffic Act – Speed limit for police vehicles 

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 320.13(2), Criminal Code – Dangerous operation causing bodily harm

320.13 (2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.


Analysis and Director's Decision

In the evening of December 25, 2018, there was a motor vehicle collision at the intersection of Woodmount Avenue and Cosburn Avenue. A police cruiser struck an Acura sedan injuring the driver, Complainant #1, and two of her passengers, Complainant #2 and Complainant #3. The SO, who was also reportedly injured in the collision with a concussion, was operating the cruiser. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that the officer committed a criminal offence in connection with the collision.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. As a crime of penal negligence, 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. Of central importance to the liability analysis in this case is the fact that the SO had the right-of-way through the intersection. Unlike Complainant #1, the officer was not faced with any traffic signal requiring her to stop before entering the intersection. On the other hand, southbound traffic on Woodmount Avenue was governed by a stop sign at Cosburn Avenue. While it appears Complainant #1 stopped or at least slowed at the sign, the evidence establishes that she failed to yield to the cruiser as was her legal obligation. It is difficult to understand why Complainant #1 drove through the intersection when she did; the police cruiser had its lights and siren activated as it travelled west on Cosburn Avenue, and was visible to other motorists from a distance, who reacted properly in pulling their vehicle over and coming to a stop. It may be that Complainant #1 presumed the intersection was governed by stop signs in all directions and that the cruiser would stop, or perhaps, as the evidence suggests might have played a role, her vision eastward toward the cruiser as it approached was obstructed by fencing in the area of the intersection’s northeast corner. Be that as it may, the legal onus was on her to enter the intersection only when it was safe to do so and after coming to a full stop.

Turning the attention to the SO’s conduct, the only potentially objectionable conduct on her part appears to have been her speed. The evidence indicates she was traveling upwards of 80 km/h on Cosburn Avenue west toward Woodmount Avenue, more than twice the posted 40 km/h speed limit. It is certainly the case that the SO would have had more time to react and might have been able to avoid a collision of the nature that occurred had she been travelling at a reduced speed. That said, the officer was on duty responding to a call for assistance and therefore exempt from the speed limit pursuant to section 128(13)(b) of the Highway Traffic Act. Moreover, while the provision does not confer carte-blanche on officers to speed as they wish, there is no indication that the manner in which the SO was operating the cruiser endangered the public around her prior to the collision. Indeed, it is important to note that whatever inherent risk the SO’s speed carried with it was not exacerbated by the environmental conditions that prevailed at the time; the roads were in good condition, the weather was clear and there was little if any traffic on the road.

On the aforementioned record, I am satisfied on reasonable grounds that the SO’s driving fell well within the limits of care prescribed by the criminal law. Accordingly, there are no grounds for proceeding with criminal charges against the officer.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit