SIU Director’s Report - Case # 23-OVI-051
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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 section 14 (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 the serious injury of a 37-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 the serious injury of a 37-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On February 20, 2023, at about 8:53 a.m., the Durham Regional Police Service (DRPS) notified the SIU of an injury to the passenger of a motor vehicle, later identified as the Complainant.According to the DRPS, on February 20, 2023, at about 3:00 a.m., a DRPS officer [the Subject Official (SO)] attempted to stop a vehicle on Bayly Street and then initiated a pursuit. The pursuit was called off by the duty inspector, and the SO terminated the pursuit. A short distance away, at the intersection of Bayly Street and Brock Road, the vehicle was involved in a collision with a third-party [later known to be the Civilian Witness (CW)]. The Complainant was found in the vehicle. He was transported to Sunnybrook Health Sciences Center (SHSC) with a brain bleed. No other parties were seriously injured.
The Team
Date and time team dispatched: 02/20/2023 at 10:02 a.m.Date and time SIU arrived on scene: 02/20/2023 at 11:00 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
37-year-old male; declined an interviewCivilian Witness
CW Interviewed The civilian witness was interviewed on February 20, 2023.
Subject Official
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on March 23, 2023.
.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on February 21, 2023.
Evidence
The Scene
The events in question transpired over a stretch of roadway beginning in the area of Westney Road South, just south of Highway 401, continuing south on Westney Road South to Bayly Street, and west on Bayly Street towards the site of a motor vehicle collision at the intersection of Bayly Street and Brock Road, Durham Region.
Figure 1 – Scene of the collision
Scene Diagram
Forensic Evidence
Global Positioning System (GPS) Data from the SO’s Cruiser
On February 20, 2023, at 2:56:48 a.m., the data indicated that the SO’s cruiser turned southbound onto Westney Road South from Ritchie Avenue.At 2:57:36 a.m., the SO travelled south over Highway 401 on Westney Road South between 70 to 76 km/h.
At 2:58:40 a.m., the officer was westbound on Bayly Street West.
At 2:58:46 a.m., the SO accelerated to 108 km/h.
At 2:58:57 a.m., the officer reached his maximum speed of 155 km/h.
At 2:59:28 a.m., the SO passed Church Street at about 130 km/h.
At 3:00:00 a.m., the SO arrived at the intersection of Brock Road and Bayly Street where his cruiser came to a stop.
Pursuit Route
The route started southbound on Westney Road South at the Highway 401 eastbound exit ramp, an intersection with controlled traffic lighting. The route continued south on Westney Road South to Bayly Street. The buildings along Westney Road South were comprised of light industrial and small retail structures. Westney Road South was a four-laned paved roadway with controlled traffic lighting at various intersections.
The route continued west from Westney Road South on Bayly Street. The route along Bayly Street was comprised of light industrial and light retail structures, and rural sections. Bayly Street was a four-laned paved roadway with controlled traffic lighting at various intersections.
The route continued to the controlled intersection at Brock Road, where a collision occurred.
The total distance travelled along the route was about 3.7 kilometres.
The SO’s Police Vehicle
On February 20, starting at about 2:50 p.m., SIU forensic investigators examined the involved police vehicle, a 2021 Ford Explorer, at the DRPS West Division located at 1710 Kingston Road. It had been driven away from the scene. The police vehicle displayed graphics adopted by the DRPS. The vehicle was equipped with emergency lighting and siren. They were functional at the time of the examination. There was no collision damage to the police vehicle to suggest contact with another vehicle.
Figure 2 – The SO’s police vehicle
Video/Audio/Photographic Evidence [2]
Police Communications Recording
On February 20, 2023, starting at about 2:59:36 a.m., the SO advised in a radio transmission of a white Mercedes Benz that had fled from him. The officer had attempted to stop the vehicle for a traffic infraction westbound on Bayly Street towards Brock Road.Starting at about 2:59:48 a.m., the white Mercedes Benz was said to be turning right, headed northbound on Brock Road.
Starting at about 2:59:55 a.m., WO #1 said to “discontinue”.
Starting at about 3:00:02 a.m., the SO said, “Discontinued, MVC Bayly, and Brock.”
Starting at about 3:00:16 a.m., it was reported that the driver of the fleeing vehicle, wearing all black, had fled the vehicle on foot westbound through a plaza at Bayly Street. The SO advised the white Mercedes Benz was rolled over. No other occupants were in the white Mercedes Benz.
Starting at about 3:01:07 a.m., the SO was with the driver of the third-party vehicle involved in the collision, and an ambulance was dispatched.
Starting at about 3:08:38 a.m., a firearm was found in the white Mercedes Benz, and the Complainant was placed under arrest.
Starting at about 3:28:41 a.m., the Complainant was transported to SHSC with lacerations to his head.
Durham Traffic Camera Footage
The camera was fixed atop a traffic light post on the west side of the intersection of Bayly Street and Brock Road, Pickering, and faced north on Brock Road.A vehicle [now known to be a driven by the CW] was captured travelling southbound on Brock Road. The CW arrived at a red traffic light at the intersection and waited in the left turn lane to turn eastbound on Bayly Street.
Starting at about 2:59:34 a.m., a vehicle [now known to be a white Mercedes Benz occupied by the Complainant] struck the median between the northbound and southbound directions of travel on Brock Road. The white Mercedes Benz struck the CW’s vehicle on the left side quarter panel, spinning the vehicle. The white Mercedes Benz continued and came to rest upside down on the northwest corner of the intersection.
Starting at about 3:00:04 a.m., the SO stepped into the camera frame from the east and approached the CW’s vehicle.
Starting at about 3:01:57 a.m., additional police vehicles arrive at the intersection.
Starting at about 3:02:53 a.m., the SO and another police officer approached the white Mercedes Benz.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the DRPS between February 22 and 24, 2023:- Call Summary;
- General Occurrence Information;
- Communications recordings;
- GPS data from the SO’s cruiser;
- Involved Officers List; and
- Policy - Suspect Apprehension Pursuit.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Traffic camera footage from the Durham Traffic Department; and
- Video footage from addresses along the pursuit route.
Incident Narrative
The evidence collected by the SIU, including interviews with the SO and a civilian eyewitness, as well as GPS data from the SO’s cruiser, gives rise to the following scenario.
Shortly before 3:00 a.m. of February 20, 2023, the SO was on patrol in his cruiser travelling south on Westney Road South when he spotted a traffic infraction. A white Mercedes Benz had made a right turn through a red light from the eastbound Highway 401 off-ramp onto Westney Road South without stopping. Deciding he would issue a traffic ticket, the SO followed the vehicle as it turned right to travel west on Bayly Street, activating his emergency lights to signal its driver to pull over. After seemingly slowing for a period, the Mercedes Benz accelerated away from the cruiser. The SO sped after the Mercedes Benz, reaching a top speed upwards of 150 km/h, but was unable to get any closer than a few hundred metres from the vehicle. The officer travelled past Church Street and subsequently lost sight of the Mercedes Benz as it attempted a right-hand turn onto Brock Road.
Approaching the Brock Road intersection at speed, the Mercedes Benz lost control attempting to turn north onto the roadway, striking a concrete median between north and southbound traffic, followed immediately by an impact with the rear driver’s side of a Toyota Camry waiting at a red light to make a left turn onto eastbound Bayly Street.
At the direction of a sergeant monitoring the pursuit, the SO had discontinued the pursuit at about the same time as he was approaching the Bayly Street and Brock Road intersection. The officer took note of the collision that had occurred and went to the Camry to render assistance to the driver. He also examined the Mercedes Benz where it had come to a rest at the northwest corner of the intersection. One of its occupants had fled the scene on foot. The other – the Complainant – was arrested.
The Complainant was taken to hospital where he was reportedly diagnosed with a brain bleed.
Shortly before 3:00 a.m. of February 20, 2023, the SO was on patrol in his cruiser travelling south on Westney Road South when he spotted a traffic infraction. A white Mercedes Benz had made a right turn through a red light from the eastbound Highway 401 off-ramp onto Westney Road South without stopping. Deciding he would issue a traffic ticket, the SO followed the vehicle as it turned right to travel west on Bayly Street, activating his emergency lights to signal its driver to pull over. After seemingly slowing for a period, the Mercedes Benz accelerated away from the cruiser. The SO sped after the Mercedes Benz, reaching a top speed upwards of 150 km/h, but was unable to get any closer than a few hundred metres from the vehicle. The officer travelled past Church Street and subsequently lost sight of the Mercedes Benz as it attempted a right-hand turn onto Brock Road.
Approaching the Brock Road intersection at speed, the Mercedes Benz lost control attempting to turn north onto the roadway, striking a concrete median between north and southbound traffic, followed immediately by an impact with the rear driver’s side of a Toyota Camry waiting at a red light to make a left turn onto eastbound Bayly Street.
At the direction of a sergeant monitoring the pursuit, the SO had discontinued the pursuit at about the same time as he was approaching the Bayly Street and Brock Road intersection. The officer took note of the collision that had occurred and went to the Camry to render assistance to the driver. He also examined the Mercedes Benz where it had come to a rest at the northwest corner of the intersection. One of its occupants had fled the scene on foot. The other – the Complainant – was arrested.
The Complainant was taken to hospital where he was reportedly diagnosed with a brain bleed.
Relevant Legislation
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.
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.
Analysis and Director's Decision
The Complainant was reportedly seriously injured in a motor vehicle collision in Pickering on February 20, 2023. As the vehicle he occupied was being pursued by a DRPS officer at the time, the SIU was notified of the incident and initiated an investigation. The DRPS officer – the SO – was identified as the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the collision.
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 the SO operated his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
Having observed a traffic infraction, the SO was within his rights in attempting to stop the vehicle to issue a ticket.
Whether or not the pursuit that subsequently occurred was justifiable, I am unable to reasonably conclude that it transgressed the limits of care prescribed by the criminal law. Arguably, the SO created an unnecessary risk to public safety when he accelerated to over 150 km/h on Bayly Street, more than twice the 70 km/h speed limit in that area. The offence he was investigating was not pressing in nature – a non-criminal traffic infraction. On the other hand, there was little to moderate traffic on the roadway, the SO’s emergency equipment was on at all material times, and the officer was never very close to the Mercedes Benz after it first accelerated away from the cruiser, all of which combined to mitigate the risk of the cruiser’s speed. Coupled with section 128(13)(b) of the Highway Traffic Act, which exempts police officers engaged in the lawful execution of their duties from the speed limits, I am satisfied that the SO’s conduct in the course of a relatively short pursuit did not amount to a marked departure from a reasonable standard of care in the circumstances.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his engagement with the Mercedes Benz, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 19, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 the SO operated his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
Having observed a traffic infraction, the SO was within his rights in attempting to stop the vehicle to issue a ticket.
Whether or not the pursuit that subsequently occurred was justifiable, I am unable to reasonably conclude that it transgressed the limits of care prescribed by the criminal law. Arguably, the SO created an unnecessary risk to public safety when he accelerated to over 150 km/h on Bayly Street, more than twice the 70 km/h speed limit in that area. The offence he was investigating was not pressing in nature – a non-criminal traffic infraction. On the other hand, there was little to moderate traffic on the roadway, the SO’s emergency equipment was on at all material times, and the officer was never very close to the Mercedes Benz after it first accelerated away from the cruiser, all of which combined to mitigate the risk of the cruiser’s speed. Coupled with section 128(13)(b) of the Highway Traffic Act, which exempts police officers engaged in the lawful execution of their duties from the speed limits, I am satisfied that the SO’s conduct in the course of a relatively short pursuit did not amount to a marked departure from a reasonable standard of care in the circumstances.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law in his engagement with the Mercedes Benz, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 19, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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]
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.