Director's Report Details

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.

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: 

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

Notification of the SIU

On September 28, 2022, at 9:03 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

At approximately 1:05 p.m., a shooting occurred in the area of Bellamy Road North and Ellesmere Road. A short time thereafter, a member of the TPS Major Crime Unit (MCU) saw a vehicle fleeing from the area. The officer followed the suspect vehicle in his unmarked vehicle and updated the location in order that a marked police vehicle could attempt to stop and apprehend the suspect.

Just prior to 2:45 p.m, a police officer operating a marked police vehicle activated his emergency lights in an attempt to stop the suspect vehicle. The suspect failed to stop and then became involved in a collision with two unrelated civilian vehicles on westbound Highway 401 at the Keele Street overpass. The suspect was arrested.

The occupant of an involved vehicle - the Complainant - was taken to the Etobicoke General Hospital (EGH) for assessment and diagnosed with a fractured maxilla bone at 7:33 p.m.

The scene had been cleared by the time of SIU notification.

The Team

Date and time team dispatched: 09/29/2022 at 9:26 a.m.

Date and time SIU arrived on scene: 09/29/22 at 9:43 a.m.

Number of SIU Investigators assigned: 5

The Scene

There was no scene for examination, but OPP records of the motor vehicle collision (MVC) were released to the SIU.

The records revealed this incident occurred on the westbound express lanes of Highway 401. The initial police vehicles’ interactions with a fleeing suspect driving a Dodge Charger occurred west of the Allen Road overpass. From that point, the suspect drove on the left shoulder until a point east of Keele Street where the paved shoulder narrowed. The Charger collided with a vehicle that was driving in the left lane, resulting in a chain reaction of collisions that ultimately involved a total of seven vehicles.

The roadway in the area where the collision occurred consisted of an asphalt paved four-lane roadway with paved shoulders. Immediately left of the shoulder was a concrete Jersey barrier, separating east and westbound traffic. The road was in good repair and dry. The weather was overcast and the incident occurred during daylight hours.


Figure 1 - Scene photo of Dodge Charger


Figure 2 - Scene photo of Malibu

Forensic Evidence

Automatic Vehicle Location (AVL) Data

Both involved TPS vehicles were equipped with AVL technology.

Data from the SO #2’s Malibu revealed the vehicle accessed westbound Highway 401 at Morningside Avenue and drove about 22 kilometres from 1:17 to 1:28 p.m. From the area where it was apparent the driver of the Charger was aware of the police officers’ presence, from 1:31:03 p.m., the cruiser was recorded at speeds ranging from 101 to 111 km/h as it travelled in the left westbound express lane shoulder in pursuit of the Charger. The Malibu began to slow and came to a stop at 1:31:48 p.m.

Data from SO #1’s marked cruiser revealed the vehicle accessed westbound Highway 401 at McCowan Road and drove about 16 kilometres from 1:22 to 1:29 p.m. From the area where the police officers saw and engaged with the MCU police officers in the Malibu, at 1:30:58 p.m., the cruiser was recorded at speeds of 111, 83, 96, 98, 91, 96 and 94 km/h as it too travelled in the left shoulder following the Malibu. The cruiser came to a stop at 1:32:09 p.m.

Video/Audio/Photographic Evidence [1]

In-car Camera System (ICCS) Recordings

ICCS recordings from the marked cruiser captured the cruiser accessing westbound Highway 401 in the Scarborough area and travelling west attempted to reach SO #2 and WO #2 in the Malibu. [2] As the officers in the marked cruiser sped along the collector and express lanes, the cruiser’s emergency lights and siren were activated and de-activated at various times.

At 1:29:54 p.m., a radio transmission was heard in which WO #2 reported a description of the suspect driver.

At 1:30:44 p.m., WO #2 advised SO #1 and WO #1 they were alongside one another. The Malibu then entered view, as did a Charger.

The Charger moved to the left shoulder and sped away while the Malibu followed. The front left bumper of the Malibu was seen contacting the right rear section of the Charger.

At 1:31:39 p.m., the vehicles approached a digital gantry sign east of the Keele Street overpass when the Malibu came to a stop, straddling the left shoulder and left lane. The Malibu’s front doors opened and the two police officers exited.

The cruiser came to a stop at 1:31:44 p.m.

The evidence collected by the SIU, including an interview with the Complainant and one of the subject officials – SO #2, and ICCS footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, SO #1 declined an interview with the SIU and the release of his notes.

On September 28, 2022, the TPS received a report of gunshots fired in the area of Bellamy Road North and Ellesmere Road. Subsequent reports indicated that two vehicles involved in the shooting had fled the scene, one of which was described as a Dodge Charger with tinted windows and out-of-province licence plates. Officers were dispatched to the scene.

SO #2 and his partner, WO #2, heard the initial reports and were travelling westbound on Highway 401 when they came across the Charger. It had Quebec licence plates and rear-end damage, consistent with descriptions that had been broadcast of the fleeing vehicle. With SO #2 driving, the officers decided to follow the vehicle and did so for upwards of 20 kilometres as attempts were being made to involve marked police cruisers to stop the Charger.

SO #1 was operating a marked police cruiser and trying to catch up to the Malibu and Charger to stop the suspect vehicle. With him in the front passenger seat was WO #1. The officers came upon the two lead vehicles in heavy traffic in the westbound Highway 401 express lanes near Dufferin Street. SO #2’s vehicle – an unmarked Malibu - was initially in the fourth lane from the left before entering into the third lane with the approach of the marked cruiser, the Charger was in the second lane from the left and slightly behind the Malibu, and the marked cruiser was in the right (north) shoulder across from the Charger.

The driver of the Charger was the lone occupant of the vehicle. Within moments of the marked cruiser’s arrival at the scene, it seems the driver became aware of the police presence and attempted to accelerate away.

SO #2 maneuvered the Malibu into the next lane to the left to block the Charger’s path, but the Charger was able to squeeze past the vehicle, the two cars colliding as it did so, and then enter onto the left (south) shoulder of the express lanes. The officer also travelled onto the shoulder and accelerated after the Charger. SO #1 did likewise, falling in behind the Malibu.

The chase on the shoulder, reaching top speeds upwards of 100 km/h, unfolded over about a minute. It came to an end when the shoulder narrowed at a point east of Keele Street and the Charger drove into a civilian vehicle in the left most lane. That impact set off a chain reaction of collisions involving multiple vehicles. The time was about 1:31 p.m.
The driver exited the Charger and took flight southwards across the eastbound lanes of Highway 401. He was eventually captured and arrested by the pursuing officers.

The Complainant’s vehicle was involved in the collisions. He was taken to hospital and diagnosed with facial fractures.

Section 320.13 (1) Criminal Code – Dangerous Operation Causing Bodily Harm

Section 128(13), Highway Traffic Act – Police Vehicles and Speeding

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

The Complainant was seriously injured in a motor vehicle collision in Toronto on September 28, 2022. As the vehicle that precipitated the collision was being pursued at the time by two police vehicles, the SIU was notified of the matter and initiated an investigation. The drivers of the two TPS vehicles – SO #2 and SO #1 – were identified as subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either officer 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. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, 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 observed in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which SO #2 and SO #1 operated their vehicles, sufficiently egregious to attract criminal sanction, that caused or contributed to the collisions. In my view, there was not.

There is no suggestion in the evidence that either of the subject officials drove dangerously until the final stages of their engagement with the Charger. While they both exceeded the speed limit, SO #2 attempting to keep up with the Charger and SO #1 trying to catch up, it does not appear that other motorists were placed at undue risk by their conduct.

The focus of the analysis centres on the officers’ decision-making in the moments before the collisions. During this time, when it appeared that the driver of the Charger had clued into the presence of the police around him and sought to accelerate away, SO #2 tried to block the Charger’s path of travel and then, with SO #1, pursued the Charger at speed on the shoulder of Highway 401. Those decisions certainly resulted in danger on the roadway – the former contributed to a crash between the two vehicles, albeit a relatively minor one; the latter might be said to have fueled the driver of the Charger’s reckless driving in some measure while constituting risky conduct in and of itself. That risk, at least in the case of SO #2, would have been exacerbated by the lack of any emergency lighting or siren on the officer’s vehicle.

On the other side of the ledger, however, it is important to recognize that police officers engaged in the execution of their duties are exempt from speed limitations by section 128(13)(b). The provision does not provide officers carte blanche to speed as they wish, but it does recognize that a measure of speed is sometimes necessary in the interests of law enforcement. That is to say, an officer must weigh the situation and exercise judgment in deciding what is warranted in the circumstances. In the instant case, the law enforcement interest was high. As far as they knew, the driver of the Charger had just shot and wounded another individual, and remained in possession of a firearm. His immediate apprehension was a matter of urgency. To be sure, attempting to stop the Charger in the middle of a congested highway was always going to be a risky proposition. However, the officers had a choice to make – attempt to stop and then pursue the vehicle, or risk having the driver get away. In the heat of the moment, I am unable to reasonably conclude that the decision they made was a markedly unreasonable one. Rather, it would appear that the balance of public safety considerations was not manifestly prohibitive, particularly when the pursuit, as it turned out, was relatively short-lived.

In the final analysis, when the risks inherent in the conduct of the subject officials are weighed against the extenuating considerations, I am not satisfied on reasonable grounds that either of SO #2 or SO #1 transgressed the limits of care prescribed by the criminal law in the course of their engagement with the Charger. As such, there is no basis for proceeding with charges in this case. The file is closed.


Date: January 26, 2023


Electronically approved by

Joseph Martino
Director
Special Investigations Unit