RunnersCruiser accidentCruiser and motorbike
thick blue gradient line

SIU Director’s Report - Case # 19-TVI-150

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 serious injuries sustained by a 39-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On June 26, 2019 at 2:54 p.m., the Toronto Police Service (TPS) reported an injury to the Complainant. The TPS advised that on June 26, 2019 at 6:15 a.m., TPS police officers attended the area of Weston Road for a carjacking. The Subject Officer (SO) was in the area and tried to stop the vehicle, which led to a pursuit. The vehicle, which was driven by the Complainant, struck a dump truck at Denison Road and Weston Road. The Complainant fled on foot and was arrested by police officers. He complained of injuries and was taken to Humber River Hospital (HRH). At 2:15 p.m., he was diagnosed with having sustained a fractured nasal bone and a fractured 9th rib on his right side. The Complainant was returned to TPS 12 Division to await a bail hearing and the SO’s cruiser was secured at TPS 12 Division.

The Team

Number of SIU Investigators assigned: 3
 
On June 26, 2019, two SIU investigators attended TPS 12 Division and interviewed the Complainant, and then viewed a TPS fully marked cruiser, which was not damaged. The SIU investigators designated one witness police officer and one subject police officer. One civilian witness was interviewed. A Canadian Police Information Centre check was performed on the Complainant. Documentation was requested from the TPS, which included the communications recording and the In-Car Camera System (ICCS) video recording.

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO Not interviewed, but notes received and reviewed


Subject Officers

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


Evidence

The Scene

The scene was located at the southeast corner of Denison Road and Weston Road, Toronto.

Communications Recordings

On June 26, 2019 at 6:15:15 a.m., a woman called 911 and reported that someone had just stolen her car at an address on Goldwin Avenue, North York. The suspect had a knife and the car, which was a red, Kia, two-door, was last seen southbound on Jane Street. The woman provided the licence plate number. The suspect was a male with light, black skin, in his early 40s. He had an average build and was about six feet tall. He wore a grey or black hat, a white shirt with lines, khaki pants and a khaki jacket. The woman parked the car to drop off her mom and the suspect asked where Weston Road was. When the woman pointed, the male suspect pulled a small knife and demanded her key.

At 7:58:48 a.m. the SO broadcast, “I’ve got the stolen Kia. It’s fleeing on Weston Road travelling at a high rate of speed south. Crashed into a car southbound on Weston Road driving extremely recklessly. He just crashed, stand-by, at Denison. Just crashed into a dump truck. He is bailing out.”

Forensic Evidence


Automatic Vehicle Location (AVL) Report for the SO’s cruiser on June 26, 2019


At 7:49:32 a.m., the SO’s speed was 0 mph on Weston Road just north of Victoria Avenue, which is just over two blocks north from the scene of the collision at Weston Road and Denison Avenue.

At 7:54:43 a.m., the SO’s speed was 31 km/h northbound on Weston Road further north of Victoria Avenue.

At 7:55:20 a.m., the SO’s speed was 6 km/h northbound on Weston Road further north.

At 7:56:26 a.m., the SO’s speed was 31 km/h northbound on Weston Road, just north of Lawrence Avenue.

At 7:57:43 a.m., the SO’s speed was 14 km/h on Weston Road, just north of Little Avenue, which is one block north of Lawrence Avenue.

At 7:58:04 a.m., the SO’s speed was 19 km/h southbound on Weston Road just north of John Street.

At 7:58:19 a.m., the SO’s speed was 29 km/h southbound on Weston Road, just north of Lawrence Avenue.

At 7:58:53 a.m., the SO’s speed was 98 km/h southbound on Weston Road, half way between Lawrence Avenue and Victoria Avenue.

At 7:59:16 a.m., the SO’s speed was 0 km/h stopped at the scene of the collision at Denison Avenue and Weston Road.

Video/Audio/Photographic Evidence


ICCS Report for the SO’s cruiser


The video started at 7:57:13 a.m., June 26, 2019. The SO’s cruiser was northbound on Weston Road as it approached John Street. The speed of the cruiser was slow as civilian vehicles passed the cruiser, northbound, in the curb lane. From the AVL report on the SO’s cruiser just north of Lawrence Avenue, at 7:56:26 a.m., the SO’s cruiser travelled at about 30 km/h.

The SO continued northbound on Weston Road and the next intersection was Elsmere Avenue on the east side of the street and Little Avenue on the west side of the street. After Little Avenue at 7:57:39 a.m., a red car [now known to be the stolen Kia] was seen southbound on Weston Road in the curb lane, slightly behind a yellow school bus, which was southbound on Weston Road in the passing lane.

At 7:57:42 a.m., the emergency lights were activated on the cruiser and just before King Street at 7:57:47 a.m., the SO safely made a U-turn after the southbound traffic on Weston Road stopped for him. The AVL data showed that the SO’s speed was about 14 km/h just north of Little Avenue before he made the U-turn.

At 7:57:54 a.m., the SO drove southbound on Weston Road through the intersection of Little Avenue. Just before John Street, at 7:58:01 a.m., he drove southbound in the northbound passing lane of Weston Road and two civilian vehicles safely took evasive action and drove to the northbound curb lane. The SO’s speed was about 19 km/h.

At 7:58:09 a.m., with his emergency equipment activated but no siren, the SO continued southbound in the northbound passing lane of Weston Road and he slowed but did not stop at the red light at John Street. He then moved back into the southbound passing lane of Weston Road before Lawrence Avenue and the AVL data from his cruiser showed that his speed at 7:58:19 a.m. was 29 km/h.

At 7:58:24 a.m., he stopped beside the Kia, which was stopped behind a transit bus on the west curb lane of Weston Road, south of Lawrence Avenue. The bus moved forward and stopped and the SO was heard to say, “Don’t move” and “Do not move.” At 7:58:35 a.m., the Kia drove in front of the SO’s cruiser, at a high rate of speed, southbound on Weston Road in the southbound passing lane.

At 7:58:38 a.m., the Kia continued southbound in the passing lane of Weston Road, and it changed to the southbound curb lane to avoid hitting a pedestrian who was walking eastbound across Weston Road in the southbound passing lane. The Kia continued to drive at a high rate of speed southbound on Weston Road and the distance between the Kia and the SO’s cruiser became greater.

At 7:58:49 a.m., the AVL data from the SO’s cruiser showed his speed at 98 km/h. At 7:58:54 a.m., the SO passed a yellow school bus and he travelled southbound in the northbound passing lane of Weston Road. The SO spoke on the radio; however, because of background noise his transmission could not be understood. At 7:58:58 a.m., the Kia could not be seen in the distance.

At 7:59:03 a.m., the SO broadcast to the dispatcher the direction of the Kia and the fact that the driving was extremely dangerously. At 7:59:10 a.m., the SO broadcast that the Kia had collided with a dump truck at the southeast corner of Weston Road and Denison Avenue and the driver had bailed out of the Kia. At 7:59:13 a.m., the dump truck left the scene eastbound on Denison Avenue. At 7:59:18 a.m., the SO was on foot outside his cruiser and he entered the screen and said, “Don’t you move.” The male driver of the Kia faced the SO and put his hands in the air. At no time did the SO activate his siren.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • AVL data;
  • Crash Data Retrieval Download Data;
  • Communications Audio;
  • Disclosure of ICCS video;
  • Disclosure of Photos;
  • General Occurrence;
  • Intergraph Computer-Assisted Dispatch Event Details;
  • Injury Report;
  • Motor Vehicle Accident Report;
  • Procedure-Suspect Apprehension Pursuits;
  • TPS Photos;
  • TPS Audio Interviews;
  • Witness Statement-the CW; and
  • Witness Video Statement Summary-additional civilian witness.

Materials obtained from Other Sources

The SIU also obtained a copy of the Complainant’s medical records from HRH.

Incident Narrative

The facts in question are not in dispute thanks in large measure to a video recording of the incident captured by the SO’s ICCS. At about 6:15 a.m. on June 26, 2019, the TPS received a 911 call from a woman whose car had just been stolen from her at knifepoint. The woman reported that a male had approached her asking for directions. The male then produced a knife and asked for her keys. The woman provided the male her keys and watched as he drove her vehicle – a Kia two-door sedan – southbound on Jane Street. The male was the Complainant.

The SO met with the 911 caller and then set out to try and find the stolen Kia. While traveling north in his marked cruiser, the officer spotted the Kia proceeding south on Weston Road just north of Little Avenue. The SO made a U-turn to travel south on Weston Road, passed a number of southbound vehicles in the northbound passing lane of Weston Road and caught up with the Kia just south of Lawrence Avenue. The Complainant was stopped in the curb lane behind a Toronto Transit Commission bus at this time with the officer’s cruiser alongside his vehicle in the passing lane. Ignoring the SO’s direction that he not move his vehicle, the Complainant reversed into the front of a Hyundai Santa Fe behind him before accelerating forward via the passing lane ahead of the cruiser and past the bus.

With his cruiser’s emergency lights activated, the SO gave chase as the Complainant fled south on Weston Road. The officer accelerated past several southbound vehicles in the northbound passing lane attempting to catch up with the Complainant. Though reaching a top speed of 98 km/h, the SO was unable to close the gap. From a position in the area of Victoria Avenue, the officer watched as the Complainant crashed into a dump truck while attempting a left-hand turn onto Denison Road.

The Complainant exited the Kia following the collision and was quickly arrested upon the arrival of the SO. He was taken to hospital from the scene and diagnosed with his injuries.

Relevant Legislation

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

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

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

Section 320.13, Criminal Code – Dangerous operation causing bodily harm

320.13 (1) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.

(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.

Section 144 (18) and 144 (20), Highway Traffic Act -- Stopping at red light

144 (18)  Every driver approaching a traffic control signal showing a circular red indication and facing the indication shall stop his or her vehicle and shall not proceed until a green indication is shown.

144 (20) Despite subsection (18), a driver of an emergency vehicle, after stopping the vehicle, may proceed without a green indication being shown if it is safe to do so.  

Analysis and Director's Decision

The Complainant fractured his nose and a right-side rib in a motor vehicle collision on June 26, 2019. The SO was in pursuit of the Complainant at the time. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injuries.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. Liability for the crime is predicated, in part, on conduct that amounts to a marked departure from a reasonable level of care in the circumstances. On the record established by the SIU investigation, I am unable to reasonably conclude that the manner in which the SO operated his cruiser amounted to a marked deviation from the level of care that a reasonable person would have observed in the circumstances. To be sure, there are aspects of the officer’s driving that are open to question. These include a top speed of 98 km/h, representing almost twice the speed limit on Weston Road over the area of the pursuit. In apparent contravention of sections 144(18) and (20) of the Highway Traffic Act (HTA), the SO also failed to bring his vehicle to a complete stop before he travelled through the red light on John Street. Finally, the officer proceeded south in the northbound lanes of traffic for a period on Weston Road as he tried to make up ground on the fleeing Kia.

On the other hand, the SO’s indiscretions, if they be such, are mitigated by a number of important considerations. The officer had reasonable grounds to believe that the Complainant had just committed a serious and violent offence. He was not simply pursuing the Kia because it was stolen, but because its occupant had reportedly stolen it by way of threatening the vehicle’s owner with a knife. In addition, while the SO was exempt from the speed limitations pursuant to section 128(13) of the HTA, I am satisfied the officer did not speed with reckless disregard for the safety of traffic around him. The officer’s top speed, though no doubt a danger on the road while it continued, was short-lived and does not appear to have placed third-parties in imminent peril. The same can be said of the officer’s failure to come to a complete stop at a red light and travel on the wrong side of the road; risky conduct to be sure but controlled and careful in execution.
Of the other factors of relevance that marked the pursuit in question, their impact on the public safety risks inherent in any police engagement of this nature were largely neutral or even favourable. Thus, for example, the roadway was dry and visibility good. The SO made judicious use of his emergency lights, alerting nearby motorists to what was happening around them and allowing them an opportunity to steer clear of the pursuit. Consistent with the regulation governing police pursuits in the province – O. Reg. 266/10 – the SO did what he could in the very brief time he had at his disposal to inform his communications centre of his location and the driving behaviour of the Kia being pursued. Finally, aside from serving as the impetus for the Complainant’s flight down Weston Road, it does not appear by the manner of his driving that the SO prevented the Complainant from safely operating the Kia or bringing it to a stop had he been so inclined. In fact, the evidence suggested that the cruiser was a fair distance behind the Kia – some 150 metres - by the time it collided with the dump truck.

On the aforementioned record, and in the context of a very brief engagement – lasting approximately 30 seconds over less than 700 metres - I am satisfied on reasonable grounds that the SO exercised a level of care that fell within the limits prescribed by the criminal law. Accordingly, there is no basis to proceed with criminal charges against the officer and the file is closed.

Date: December 16, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit