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SIU Director’s Report - Case # 19-TVI-304

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 injury that a 40-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On December 13, 2019 at 1:30 p.m., the Toronto Police Service (TPS) notified the SIU that a man had been injured in a collision after trying to evade police.

According to the TPS, at approximately 8:00 a.m. that morning, a TPS patrol officer observed a vehicle with pre-existing collision damage being operated in the area of Jarvis Street and Gerrard Street. The police officer turned his police cruiser around to investigate the suspicious vehicle, and the driver of the vehicle immediately drove away southbound on Jarvis Street. The police officer activated the emergency equipment of the police cruiser.

The driver of the pursued vehicle travelled eastbound on Shuter Street. He eventually lost control at Parliament Street, and his vehicle struck a light pole.

The driver was apprehended at the scene. He was taken to St. Michael’s Hospital, where it was later determined he had suffered a fractured clavicle.

The Team

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

Complainants

Complainant: 40-year-old male interviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

Witness Officers

WO #1 Not interviewed [1]
WO #2 Not interviewed
WO #3 Not interviewed


Subject Officers

SO Interviewed and notes reviewed



Evidence

The Scene

Approaching Parliament Street, Shuter Street has one lane of travel for eastbound traffic and one lane of travel for westbound traffic. A bicycle lane also runs along the south curb of Shuter Street. At Parliament Street, Shuter Street has left turn lanes for both eastbound and westbound traffic.

The Volkswagen Tiguan operated by the Complainant was found in a northeast orientation at the northeast corner of the intersection. There was significant front end crush damage, as a result of an impact with the utility pole situated on the corner of the intersection. There was a field of debris in front of the Volkswagen Tiguan, consistent with an impact with the utility pole.

The scene had been held by the TPS pending confirmation of the Complainant’s injury.

The SIU immediately dispatched three investigators and a forensic identification investigator to the scene.

The scene was photographed and measured using a Total Station device, for forensic mapping of the scene.

Scene Diagram

Scene diagram

Forensic Evidence


Automated Vehicle Locator (AVL) Data


On March 3, 2020, a request was made for the AVL data for the vehicle operated by the SO. The TPS provided the AVL data in a .trk format file, which the SIU could not read. The TPS declined to provide the AVL data in another format. They did, however, provide one data point with an associated speed of 89 km/h. There was a notation that the emergency lights and siren of the vehicle were in operation at the time the speed was recorded. The GPS coordinates at which the speed was recorded were provided to the SIU. On March 12, 2020, a TPS Detective Sergeant stated the maximum speed reached by the SO during the pursuit was 89 km/h.

Video/Audio/Photographic Evidence


In-Cruiser Camera System (ICCS) Recording:


The ICCS recording from the SO’s police vehicle was reviewed. The following is a summary of the notable events:
  • When the recording starts, the SO was southbound on Jarvis Street, stopped for a red traffic signal at Dundas Street;
  • At that time of day, there were three lanes available for southbound traffic on Jarvis Street (Jarvis Street is five lanes wide, with two northbound and two southbound lanes of traffic. Traffic in the centre lane is controlled by a signal light that changes the direction of traffic flow during the day);
  • When the traffic light at the intersection turned green, the SO continued travelling southbound in Lane 2 (the middle of the three southbound lanes);
  • As the SO travelled toward Shuter Street, he pulled a little to the right of his lane. As he did so, the Volkswagen Tiguan operated by the Complainant sped past him on his left (in the centre lane of Jarvis Street);
  • It was difficult to see if there was any obvious damage to the Volkswagen Tiguan at that point;
  • The Complainant arrived at Shuter Street and he slowed only slightly as he turned left onto eastbound Shuter Street, cutting in front of northbound traffic that had a green light but had not yet started to enter the intersection;
  • The SO also turned left onto Shuter Street and he immediately activated his emergency lights. He sounded short bursts from his siren and airhorn;
  • At Sherbourne Street, the Volkswagen operated by the Complainant came to a stop behind traffic that had stopped for a red traffic light. The SO stopped behind the Complainant, with his cruiser emergency lights activated;
  • There was a piece of bodyside moulding sticking out from the driver’s side of the Volkswagen Tiguan at that point;
  • When the eastbound traffic light turned green, vehicles ahead of the Complainant started to pull to the right, apparently to allow the SO past, but the Complainant accelerated straight through the intersection. The SO activated his siren on continuous mode and he pursued the Complainant;
  • The SO was approximately two vehicle lengths behind the Complainant as they travelled eastbound and the SO’s speed appeared to be approximately 80 km/h;
  • As the Complainant and the SO approached the next major intersection, Parliament Street, the SO reported on the police radio he was involved in a pursuit. As the SO reported the pursuit, the Complainant arrived at Parliament Street and he attempted to execute a left turn. His vehicle struck a utility pole on the northeast corner of the intersection; and
  • The SO reported over the police radio that there had been a collision.

The video indicates that 50 seconds had elapsed from the point at which the SO turned onto Shuter Street and activated his emergency lights to the collision. The interval from the moment the SO activated his siren at Sherbourne Street to the collision was 19 seconds.

Toronto Community Housing Corporation (TCHC) video recording:


The TCHC recording was consistent with the ICCS recording from the SO’s vehicle. It showed the SO travelling behind the Volkswagen Tiguan with the emergency lights activated, as the Complainant failed in his attempt to execute a left turn onto Parliament Street.

Communications Recordings


Radio Communications Recording from the SO’s Vehicle:


The SO reported on the police radio that he was involved in a pursuit.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • The Computer-Aided Dispatch Event Details report;
  • A copy of the related radio communications recording;
  • A copy of the ICCS recording from the SO’s vehicle;
  • The Motor Vehicle Accident Report;
  • A notation of the speed involved in the pursuit;
  • The notebook entries of the WOs and SO;
  • A copy of the Witness List; and
  • Vehicle Damage Log Report for the TPS fleet vehicle that the SO was using during the incident.

Materials obtained from Other Sources

In addition to the materials received from the TPS, SIU obtained and reviewed the following materials from other sources:
  • A video recording from a TCHC apartment building located at the southwest corner of the intersection of Shuter Street and Parliament Street; and
  • A copy of a photograph taken by CW #2.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant and the SO, as well as video recordings that captured the incident. Shortly before 8:00 a.m. on December 13, 2019, the SO, on patrol in a marked police SUV, was stationary in the middle southbound lane of Jarvis Street north of Dundas Street when the vehicle the Complainant was driving – a blue Volkswagen Tiguan – caught his attention. The Volkswagen had significant damage to its bodywork, which was protruding from the side of the vehicle. Considering the damage a potential hazard to other users of the road, the SO decided to stop the vehicle to investigate.

The SO followed the Complainant as they travelled south on Jarvis Street. At Shuter Street, the Complainant cut in front of northbound traffic while making a left turn. He was followed in kind by the SO, who was now of the view that the Complainant was driving carelessly in contravention of the Highway Traffic Act. The officer activated his emergency lights and sounded his siren to signal the Complainant to stop.

Believing he had just made an unlawful left turn, and knowing he was driving a stolen vehicle, the Complainant accelerated eastward away from the cruiser on Shuter Street with the SO in pursuit. The vehicles continued past Sherbourne Street and sped toward Parliament Street where the Complainant attempted and failed to negotiate a left turn. The Volkswagen jumped the curb and struck a concrete pole on the northeast corner of the intersection. The SO arrived within seconds, parked behind the Volkswagen and exited his cruiser to render aid to the Complainant.

Relevant Legislation

Section 216 (1), Highway Traffic Act -- 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.

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 morning of December 13, 2019, the Complainant drove the vehicle he was operating into a utility pole on the northeast corner of the Parliament and Shuter Streets intersection, suffering a fractured left clavicle in the process. At the time of the collision, the Complainant was being pursued by the SO. The SO was identified as the subject officer for purposes of the SIU investigation. 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 injury.

The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. As an offence of penal negligence, liability 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 evidence falls short, in my view, of suggesting the SO transgressed the limits of care prescribed by the criminal law. The SO was within his rights in seeking to pull the Complainant over to investigate the obvious damage to the vehicle he was operating. The Complainant ought to have stopped, as was his legal obligation under section 216(1) of the Highway Traffic Act. When he failed to do so, the SO was also justified in initiating a pursuit of the Volkswagen under the regulation that governs police pursuits in the province – O. Reg. 266/10. Thereafter, I am satisfied that the officer conducted himself with due care and regard for the safety of the public. He activated his emergency lights and siren to alert motorists and pedestrians in the vicinity of the pursuit, allowing traffic to clear in the area ahead of the Volkswagen and cruiser. The officer’s speeds, in excess of the 40 km/h speed limit on Shuter Street and topping out briefly at about 90 km/h, are of concern, particularly as the pursuit occurred in a congested area over a narrow roadway. That said, I am satisfied the dangers inherent in the speeds were not grossly disproportionate in the circumstances as the weather was clear, the roadway was in good condition and the pursuit transpired over a very short period of time. In fact, the entire pursuit from start to finish took place over no more than one minute and about 730 metres. Lastly, though the SO was relatively close to the Volkswagen through the engagement, I am satisfied he left the Complainant with sufficient opportunity to operate the Volkswagen in a safe fashion had he been so inclined.

In the result, while the Complainant’s flight from police was at the root of his loss of control over the vehicle he was driving and the resultant collision, I am unable to reasonably conclude that the SO contributed to the accident in any way that could attract criminal sanction, or that he otherwise drove dangerously in violation of the criminal law. Accordingly, there is no basis for criminal charges in this case.


Date: June 18, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The SIU reviewed the notebook entries of the WOs. They arrived at the scene following the collision and were involved in maintaining custody of the Complainant. Based on a review of their notes, and the fact the incident had been captured on an in-car camera system (ICCS) in the SO’s vehicle, it was determined there was no need to interview the witness officers. [Back to text]