SIU Director’s Report - Case # 21-OVI-136
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into a serious injury sustained by a 22-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into a serious injury sustained by a 22-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On April 27, 2021, the York Regional Police (YRP) notified the SIU of an injury to the Complainant.The YRP reported that on March 29, 2021, at approximately 12:25 p.m., members of the YRP were conducting a narcotics investigation on Riverhead Drive in Etobicoke. They attempted to stop a vehicle being driven by the Complainant. The vehicle fled and then became involved in a collision with a YRP vehicle at Fallowfield Road, after which the Complainant was arrested. The Complainant injured his hand during the collision.
Emergency Medical Services responded, and the Complainant refused treatment. With no serious injury noted, SIU was not notified.
The Toronto Police Service (TPS) completed the collision investigation report.
On April 8, 2021, the Complainant sent an email to the YRP with a photo of his hand in a cast indicating that his hand was fractured during the collision.
The Team
Date and time team dispatched: 04/27/2021 at 3:01 p.m.Date and time SIU responded: 04/27/2021 at 4:00 p.m.
Number of SIU Investigators assigned: 3
Affected Person (aka “Complainant”):
22-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on April 28, 2021.
Subject Officials
SO Declined interview and to provide notes,
as is the subject official’s legal right
Witness Officials
WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Not interviewed, but notes received and reviewed
The witness officials were interviewed on May 6, 2021, and May 7, 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Not interviewed, but notes received and reviewed
The witness officials were interviewed on May 6, 2021, and May 7, 2021.
Evidence
The Scene
The collision occurred on Fallowfield Road, a two-lane residential street.Video/Audio/Photographic Evidence
YRP Radio Communications
The first track seemed to indicate by the title that it was a regular police radio dispatch operations channel related to this interaction, between 12:30 and 1:05 p.m. A voice, believed to be WO #1, said a man [now known to be the Complainant] was in custody. WO #1 provided the location in Toronto and requested that a TPS supervisor and fire services be dispatched. Either the SO or WO #3 asked the dispatcher to run the licence plate on the Complainant’s vehicle.The second track was a compilation of transmissions made by the YRP team members during the surveillance of the target of their operation. The Audi, known to be driven by the Complainant, drove on a street and then parked. The target then left his residence, drove to the same street, and parked in front of the Audi. A man’s voice (likely to be the SO) said he had a good view of a transaction between the Complainant and the target. He provided a description of the Complainant and the Complainant’s clothing. The SO reported the Complainant had returned to the Audi. He provided a licence plate and said he was very confident calling that a “good deal”.
The team members followed and called out the location of the Audi. A team member said that, when it was safe to do so, the Complainant, who had pulled over to the side of Fallowfield Road, should be arrested. A team member drove by the Audi and reported the Complainant consuming something at that time. It was determined that WO #2 would announce when the team should approach the Audi. A man’s voice said, “Blue, blue, blue.” The recording ended shortly after that transmission.
In-Car Camera System (ICCS) Footage from TPS Police Cruiser
At 12:42 p.m., a TPS officer arrived at the scene of the collision. He activated the emergency lights and the audio commenced. There was a Toronto Fire Services fire truck parked and obstructing any view of the collision scene. The general area where the collision was located was consistent with the descriptions provided by the Complainant and the witness officials during the interviews. A vehicle was parked against the north curb and faced west. It looked like a black SUV, consistent with the vehicle being operated by WO #1.The TPS officer exited, walked east on Fallowfield Road towards the collision scene, and met WO #1, who was wearing jeans and a body armour vest with POLICE on it. The TPS officer told the dispatcher he was talking to a YRP detective and that two police officers were looking to be medically checked after air bag deployment.
The roads were noted to be clear and dry and the weather was mostly sunny. The residential street was very quiet, with very little vehicle and/or pedestrian traffic seen.
The TPS officer said one person was in custody and YRP would be doing their own transport.
Body Worn Camera (BWC) footage
The footage from the BWC was consistent with the aforementioned ICCS footage.YRP Video Interview with the Complainant
At 3:15:36 p.m., the SO entered the interviewing room, sat down and introduced himself. He stated his purpose was to interview the Complainant in relation to a drug investigation. He then exited the interviewing room. At 3:20:01 p.m., the Complainant entered and sat down on a bench. The SO entered the room and provided the Complainant with a COVID mask.The SO explained the interview was recorded by two cameras and identified himself as a police officer with the YRP. The SO asked the Complainant if he understood he was under arrest and if he had spoken with a lawyer, and noted that he had the right to remain silent. The Complainant acknowledged. The SO asked the Complainant if any police officer who had interacted with him that day had threatened him in order to talk. The Complainant denied any had. The SO asked the Complainant how he felt after the car accident and he said he was in pain. The SO said he was in the SUV [now known to be a Mazda CX5] that had the collision with the Complainant’s vehicle. The Complainant asked, “Why did you hit me so hard?” The SO replied “… you tried (inaudible) to go.” The Complainant said, “I didn’t, I was stopped.”
The Complainant said, “I wish you didn’t hit me so hard, man, I was not going anywhere, I was stopped.” The SO asked if anyone had forced the Complainant to talk to him. The Complainant denied it. He asked the Complainant what he had in mind and he asked to speak to the SO or someone else off camera. The SO explained the conversation had to be recorded and the Complainant did not have to speak to him again. The Complainant said his lawyer advised him not to talk. The SO told the Complainant purple fentanyl was found in the Complainant’s car. The Complainant said he did not have any and his lawyer advised him not to talk. He asked the Complainant where he got the drugs from and if he was selling drugs or had cash on him. The Complainant denied and asked again to speak off the record. The SO said he did not find cash on the Complainant, repeated he found fentanyl and asked the Complainant if he was a fentanyl user. The Complainant said he did not want to incriminate himself by answering these questions.
The SO asked the Complainant what he was doing for a living. The Complainant said he was out of work. He asked the Complainant about a recent impaired driving charge and they talked about the driver licence suspension process. He told the Complainant they had found burnt tin foil and lighters in his vehicle. The Complainant asked to speak off the record, but the SO refused. The SO asked the Complainant what he was doing on the side of the road. The Complainant replied he would tell the SO off the record. The SO declined. He asked if balls, tin foil and lighters found everywhere were from previous consumptions of drugs or from that day (March 29, 2021). The Complainant did not want to answer.
The SO asked the Complainant if he sold drugs. The Complainant said he did not, and he did not want to answer. The Complainant asked to speak off the record but again the SO refused. He told the Complainant he was arrested because he had driven dangerously and for possession of a controlled substance. The Complainant asked, “What was dangerous about the way I drove?” The SO replied, “The way you were driving, at a high rate of speed when the police were trying to contain you and …(inaudible)… into us.” The Complainant asked, “What was the high rate?” The SO said, “Into the police cars, and you failed to stop for us when we were containing you.” The Complainant replied, “I was stopped when you guys hit me.” The SO said, “You said we drove into you and you didn’t move at all.” The Complainant acknowledged and said he was sure the police officers had dash cameras. The Complainant said he was parked on the side of the road when his car was hit and smashed against the curb. The SO said the Complainant’s vehicle did not smash against the curb and it was in the middle of the road. The Complainant stated he did not drive dangerously and came out of his car. The Complainant said, “You guys didn’t have to pull me out like the way that you did.” The Complainant said he wanted to talk to the SO off the record.
The SO exited the interviewing room, returned with a bottle of water and gave it to the Complainant. He said to the SO, “What was dangerous is how I drove into you, but I just want to understand. Why would I drive into you? Does it make any sense? You drove into me.” The SO said, “You tried to flee, and I was parking in front of you and you collided with me, and you collided with another police vehicle I was at the side of.” The Complainant replied, “I didn’t try to flee. I was parked by the side and you guys came in around me from both sides so I couldn’t exit. I just wanted to clarify, I didn’t know what I did was dangerous, I still don’t. You guys should be charged with dangerous because I first got hurt for that and the dangerous maneuver that you guys did. I have three bandages to show for it, and I still have to go to the hospital after my dinner.” The SO asked, “Is there anything you want to tell me about today?” The Complainant refused. The SO exited the interviewing room, returned with several papers for the Complainant, and said it was the end of the interview and the cameras would be stopped.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the YRP and the TPS:• Black and white photos of accident;• Collision initial report;• Collision supplemental report;• General Occurrence Report;• Notes (Collision Field Notes)-WO #7;• ICCS footage from TPS police cruiser;• BWC footage;• Notes of WOs;• Record of Summons;• Email from Complainant;• Photo of Complainant’s injuries;• Supplemental Report;• Surveillance Report;• TPS General Occurrence Report;• TPS Motor Vehicle Collision Report (x2);• Communication recordings;• Record of interview with the Complainant;• YRP Procedure - Traffic Management; and• YRP Procedure - Suspect Apprehension Pursuit.
Incident Narrative
The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant and several officers who witnessed the events in question. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
At about 12:22 p.m. of March 29, 2021, the SO observed the Complainant engaged in a suspected drug transaction. The officer was a member of an undercover surveillance operation that was tracking a subject in the area of Moncrieff Drive in Toronto. The Complainant had been observed stopped in his vehicle – an Audi sedan – in the area and interacting with the subject. The SO broadcast to team members that there were grounds to arrest the Complainant for being in possession of a controlled substance.
Unknown to him at the time, the Complainant left the area in his Audi tracked by unmarked police vehicles. He travelled north on Elmhurst Drive, east on Hinton Road, north on Kingsknowe Road and then east again on Fallowfield Road, where he came to a stop by the southern curb of the roadway, a distance west of Riverhead Drive.
Once the Complainant’s Audi was stationary, WO #2 called for a takedown of the vehicle. The officer approached the Audi from behind, as did WO #4 in his Volkswagen Jetta. The plan was for WO #2 to block the Audi from behind while WO #4 positioned his vehicle to block the driver’s side of the Audi. As this was happening, the SO was to drive on Fallowfield Road toward the Audi, blocking its path moving forward.
The Complainant caught wind of what was happening as the vehicles approached from behind with their emergency lights activated. Realizing he was about to be apprehend by police, the Complainant accelerated forward and to the left. As he did so, the Complainant was met head-on by the SUV being driven by the SO. The two vehicles collided. Moments thereafter, there was a second collision as WO #4 drove the front passenger side of his vehicle into the front driver’s side corner of the Audi.
Following the collisions, the Complainant was extricated through the broken driver’s door window by WO #4 and handcuffed without further incident.
After his arrest, paramedics attended at the scene to check on the condition of the Complainant and the officers. The Complainant refused to attend hospital.
The Complainant went to hospital later that day after his release from custody and was diagnosed with a serious injury.
At about 12:22 p.m. of March 29, 2021, the SO observed the Complainant engaged in a suspected drug transaction. The officer was a member of an undercover surveillance operation that was tracking a subject in the area of Moncrieff Drive in Toronto. The Complainant had been observed stopped in his vehicle – an Audi sedan – in the area and interacting with the subject. The SO broadcast to team members that there were grounds to arrest the Complainant for being in possession of a controlled substance.
Unknown to him at the time, the Complainant left the area in his Audi tracked by unmarked police vehicles. He travelled north on Elmhurst Drive, east on Hinton Road, north on Kingsknowe Road and then east again on Fallowfield Road, where he came to a stop by the southern curb of the roadway, a distance west of Riverhead Drive.
Once the Complainant’s Audi was stationary, WO #2 called for a takedown of the vehicle. The officer approached the Audi from behind, as did WO #4 in his Volkswagen Jetta. The plan was for WO #2 to block the Audi from behind while WO #4 positioned his vehicle to block the driver’s side of the Audi. As this was happening, the SO was to drive on Fallowfield Road toward the Audi, blocking its path moving forward.
The Complainant caught wind of what was happening as the vehicles approached from behind with their emergency lights activated. Realizing he was about to be apprehend by police, the Complainant accelerated forward and to the left. As he did so, the Complainant was met head-on by the SUV being driven by the SO. The two vehicles collided. Moments thereafter, there was a second collision as WO #4 drove the front passenger side of his vehicle into the front driver’s side corner of the Audi.
Following the collisions, the Complainant was extricated through the broken driver’s door window by WO #4 and handcuffed without further incident.
After his arrest, paramedics attended at the scene to check on the condition of the Complainant and the officers. The Complainant refused to attend hospital.
The Complainant went to hospital later that day after his release from custody and was diagnosed with a serious injury.
Relevant Legislation
Section 219, Criminal Code -- Criminal negligence causing death
219 (1) Every one is criminally negligent who
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
Section 221, Criminal Code -- Criminal negligence causing death or bodily harm
221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten yearsSection 320.13, Criminal Code – Dangerous operation of motor vehicles, vessels and aircraft
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.
(3) 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 the death of another person.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by YRP officers on March 29, 2021. One of the officers involved in the Complainant’s arrest – the SO – was identified as the subject official 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 arrest and injury.
The offences that arise for consideration are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to section 320.13(2) and 221 of the Criminal Code, respectively. The former is premised, 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 latter is a more serious offence reserved for behaviour that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the impugned conduct constitutes a marked and substantial departure from a reasonable level of care. In the instant case, the issue is whether there was a want of care in the operation culminating in the Complainant’s arrest that caused or contributed to his injury and/or was sufficiently egregious as to attract criminal sanction. In my view, there was not.
For starters, I am unable to reasonably conclude that the officers were without lawful cause when they sought to arrest the Complainant for drug possession. The SO was part of a team that was specifically tasked that day with surveilling a suspected drug dealer. The transaction the SO had observed had the hallmarks of a drug deal - the Complainant had exited his vehicle and briefly entered the suspect’s vehicle before returning to his Audi and driving off.
Thereafter, I am satisfied that the plan that came together to effect the Complainant’s arrest, and its execution by the SO and the other officers, were reasonable in the circumstances. The Complainant had parked on Fallowfield Road - a quiet road without much vehicular or pedestrian traffic at the time. Moreover, he had come to a stop, the officers’ experience told them, to consume the fentanyl they believed him to have just purchased. On this record, the balance of public safety considerations – little to moderate risk to third parties of an apprehension at that location, on the one hand, and a real risk of impaired driving if the Complainant were allowed to proceed, on the other – were not prohibitive of a takedown. Once the signal for the takedown was given, the officers attempted to position their vehicles in a coordinated fashion to prevent the Audi from escaping. There is no evidence of reckless behaviour by the officers, such as excessive speed, as they did so. Regrettably, a panicked Complainant, wishing to avoid police apprehension, realized what was occurring just before the police blockade around his Audi had fully formed and was able to accelerate a short distance, largely contributing to the collision with the SO’s vehicle.
Date: August 25, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offences that arise for consideration are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to section 320.13(2) and 221 of the Criminal Code, respectively. The former is premised, 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 latter is a more serious offence reserved for behaviour that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the impugned conduct constitutes a marked and substantial departure from a reasonable level of care. In the instant case, the issue is whether there was a want of care in the operation culminating in the Complainant’s arrest that caused or contributed to his injury and/or was sufficiently egregious as to attract criminal sanction. In my view, there was not.
For starters, I am unable to reasonably conclude that the officers were without lawful cause when they sought to arrest the Complainant for drug possession. The SO was part of a team that was specifically tasked that day with surveilling a suspected drug dealer. The transaction the SO had observed had the hallmarks of a drug deal - the Complainant had exited his vehicle and briefly entered the suspect’s vehicle before returning to his Audi and driving off.
Thereafter, I am satisfied that the plan that came together to effect the Complainant’s arrest, and its execution by the SO and the other officers, were reasonable in the circumstances. The Complainant had parked on Fallowfield Road - a quiet road without much vehicular or pedestrian traffic at the time. Moreover, he had come to a stop, the officers’ experience told them, to consume the fentanyl they believed him to have just purchased. On this record, the balance of public safety considerations – little to moderate risk to third parties of an apprehension at that location, on the one hand, and a real risk of impaired driving if the Complainant were allowed to proceed, on the other – were not prohibitive of a takedown. Once the signal for the takedown was given, the officers attempted to position their vehicles in a coordinated fashion to prevent the Audi from escaping. There is no evidence of reckless behaviour by the officers, such as excessive speed, as they did so. Regrettably, a panicked Complainant, wishing to avoid police apprehension, realized what was occurring just before the police blockade around his Audi had fully formed and was able to accelerate a short distance, largely contributing to the collision with the SO’s vehicle.
In the result, while I accept that the Complainant’s injury was incurred in the collision, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law with the respect to the takedown and his role in it. Accordingly, there is no basis for proceeding with criminal charges, and the file is closed.
Date: August 25, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
- 2) There is some evidence that the Complainant did not accelerate into the SO’s vehicle, and instead that the SO struck the Complainant’s vehicle while it was stationary; however, I am unable to place much weight on this evidence. The source of this evidence was not candid about what led up to the Complainant’s arrest, and this version of events finds no support in the remaining evidence which consistently describes the Complainant accelerating towards the SO’s vehicle. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.