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SIU Director’s Report - Case # 19-TVI-231

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 a 21-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 18, 2019, at 7:59 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s injury.

The TPS reported that at 5:50 p.m., the SO of the TPS Homicide Unit was off-duty but driving an unmarked TPS fleet vehicle when it collided with the Complainant’s vehicle. The SO was making a left turn from Dewbourne Avenue onto Bathurst Street, when he collided with the Complainant’s vehicle. The Complainant was taken to Toronto Western Hospital (TWH). At 7:35 p.m., the Complainant was diagnosed with a fractured right wrist.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

On September 19, 2019, at 6:50 a.m., three SIU investigators and one forensic investigator were assigned to this investigation. The SO’s unmarked police vehicle, a 2016 grey Ford Fusion, and the Complainant’s vehicle, a 2018 grey Honda Civic, were towed from the collision scene by TPS and secured in a TPS collision centre.

On September 19, 2019, the Complainant consented to be interviewed and signed a medical release. His medical records were obtained from TWH and reviewed. Civilian witnesses were located and interviewed. 
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

The Scene

Bathurst Street travels in the north and south directions with two lanes of travel in each direction, separated by a solid line. Dewbourne Avenue intersects onto Bathurst Street and the intersection is controlled by a stop sign. There is a marked stop line and pedestrian crosswalk markings at the intersection with the posted speed limit of 30 km/h.

SIU did not forensically examine the scene.

Physical Evidence

On September 19, 2019, an SIU forensic investigator forensically examined and photographed the Complainant’s vehicle and the SO’s police vehicle. A forensic examination revealed that both vehicles’ airbags were deployed. The Complainant’s Honda Civic had collision damage on the driver side front fender. The SO’s police vehicle had collision damage at the passenger side front door.

Video/Audio/Photographic Evidence


Dash Camera Recordings


A review of the recordings revealed that on September 18, 2019, at about 5:49 p.m., the Complainant’s vehicle was travelling southbound on Bathurst Street, in the city of Toronto, approaching the intersection of Dewbourne Avenue. The weather conditions appeared sunny and the road conditions appeared to be dry.

The video captured southbound traffic on Bathurst Street as lightly travelled, whereas northbound traffic was congested. Off in the distance, the video showed a grey sedan (now known to be driven by the SO) stopped at the east side of the intersection of Dewbourne Avenue and Bathurst Street. As the vehicle continued southbound along Bathurst Street, in lane one, the grade of the roadway changed and the SO’s police vehicle was no longer visible from the camera’s field of view.

The SO’s police vehicle was then captured driving westbound into the centre southbound lane of Bathurst Street. The SO accelerated across the southbound lanes and his vehicle came into the path of the Complainant’s southbound vehicle. Further video evidence showed the passenger side door of the SO’s police vehicle colliding with the left side of the Complainant’s vehicle.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Automatic Location Identification - Log Search;
  • Computer-Assisted Dispatch Event Details Reports (x2);
  • General Occurrence Report;
  • Motor Vehicle Accident Report; and
  • Notes of the SO.

Materials obtained from Other Sources

The SIU obtained and reviewed the following materials and documents from other sources:
  • The Complainant’s medical records; and
  • Dash Camera footage.

Incident Narrative

On September 18, 2019, at approximately 5:49 p.m., the Complainant was operating a grey Honda Civic and was travelling southbound on Bathurst Street, in the City of Toronto, approaching the intersection with Dewbourne Avenue. The weather conditions were sunny and the roads were dry. The northbound lanes of Bathurst Street were extremely congested with bumper to bumper traffic. Traffic was stopped at Dewbourne Avenue, leaving a gap for motorists exiting or entering onto Dewbourne Avenue from Bathurst Street. Southbound Bathurst Street had less traffic, and was moving at roughly the speed limit of 60 km/h.

The subject officer, the SO, was operating an unmarked police vehicle at the time, a grey Ford Fusion. While the SO was off-duty, he was allowed to operate a police vehicle because he was on-call. The SO was travelling westbound on Dewbourne Avenue and had stopped at the stop sign controlling entry onto Bathurst Street. The SO entered the northbound lanes of traffic, after a motorist who was stopped at the intersection signaled that the SO could proceed. When the SO approached the southbound lanes of traffic, he accelerated entering into the left lane, striking the vehicle being operated by the Complainant.

The Complainant was injured in the collision, having sustained a wrist fracture.

Relevant Legislation

Section 320.13, 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

The events in question surrounding the injuries sustained by the Complainant are apparent based on the information collected by the SIU. That information included statements provided by the SO, the Complainant and two civilian witnesses who were in the motor vehicle directly behind the Complainant’s. Fortunately, a dash camera in a motor vehicle captured the entire incident.

The offence that arises for consideration in this case is that of dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. 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. The SO was largely, if not solely, responsible for his collision with the Complainant’s vehicle. It appears the officer simply did not see the Complainant’s vehicle approaching the intersection as he entered into the southbound passing lane of Bathurst Street. Moreover, he appears to have quickly accelerated into the southbound lanes when he might better have been advised, given the traffic congestion in the northbound lanes, to move forward with more caution and deliberation. The SO’s misjudgments, in my view, left the Complainant with no opportunity to avoid striking the police vehicle. However, while the fact that the SO moved into traffic while failing to yield the right of way to vehicles in, or approaching, the intersection is certainly a cause for concern, I am satisfied on balance that the manner in which the officer operated his police vehicle does not rise to the level necessary to meet the definition of dangerous driving.

The fact of a collision, on its own, is not sufficient to meet the test of dangerous driving; what is required is a showing that the operation of the motor vehicle in question amounted to a marked deviation from the standard that a reasonable person would have observed. On the record in this case, there is no evidence that the SO, prior to entering into the southbound lanes of Bathurst Street, was driving without due care and regard for the safety of those around him. There is no suggestion, for example, that the SO was speeding or conducting any dangerous manoeuvres before he entered the intersection. On the contrary, the evidence indicates that the SO stopped at the stop sign, slowly entered a gap in the northbound traffic, and looked for southbound traffic before proceeding into the southbound lanes. As such, the case at its highest against the officer amounts to a momentary lapse of attention which, in my view, falls short of meeting the criminal standard. As such, no criminal charges will issue, and the file is closed.


Date: April 14, 2020
Electronically approved by


Joseph Martino
Director
Special Investigations Unit