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 a serious injury sustained by a 20-year-old man (the “Complainant”).

Notification of the SIU

On April 11, 2023, at 1:18 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

According to the TPS, on April 10, 2023, at 9:14 p.m., TPS responded to an incident involving three dirt bikes racing around at Victoria Park Avenue and Finch Avenue, North York. Upon police arrival, two of the dirt bikes fled, while the third bike stalled and the operator was apprehended. The same two dirt bikes were located a short distance away and, again, their riders attempted to flee the area. A short time later, the Complainant [driver of one of the dirt bikes] was located nearby after he lost control of his bike. He was transported to Sunnybrook Hospital (SH) for medical assessment and diagnosed with a broken left clavicle.

The Scene

The events in question transpired on a stretch of roadway starting in the southbound lanes of Victoria Park Avenue, south of Finch Avenue East, and continuing south on Victoria Park Avenue until a point some 25 metres north of Van Horne Avenue.

Victoria Park Avenue was a four-lane roadway that ran in a north/south direction. It had a posted speed limit of 50 km/h and sidewalks on both sides.

On April 26, 2023, at 1:00 p.m., a SIU forensic investigator attended the scene, took photographs, and conducted a route video. There was no physical evidence to collect.

Forensic Evidence

Global Positioning System (GPS) Data

On May 24, 2023, The TPS provided the SIU with the GPS data for the vehicles driven by SO #1 and WO #1.

Between 9:19:20 and 9:19:46 p.m., SO #1 executed a U-turn from northbound to southbound on Victoria Park Avenue, south of Finch Avenue. He drove southbound on Victoria Park Avenue for about 250 metres and about 25 seconds. He averaged a speed of about 30 to 45 km/h, having reached a maximum speed of 61 km/h.

Video/Audio/Photographic Evidence [1]

Body-worn Camera (BWC) Footage

On April 12, 2023, TPS provided the SIU footage from the BWCs of SO #1, SO #2, WO #1 and WO #2.


SO #1

Starting at about 9:19:30 p.m., the BWC captured SO #1 driving his TPS cruiser. Ten seconds later, SO #2, seated in the passenger seat, lowered his window. The Complainant (driving a dirt bike) briefly appeared next to the cruiser, in line with the front passenger tire. SO #2 held onto the window frame, turned his body, and leaned his face out of the window. The Complainant turned his head towards the curb and the bike dropped out of view. SO #1 stopped the cruiser and exited.

At 9:20 p.m., a white off-road motorbike was captured lying on the road on its side, next to the curb, with the wheels facing away from the curb. The Complainant was on the ground and SO #2 knelt next to him and grabbed his right arm. SO #2 punched the Complainant in the upper middle back twice and yelled, “Put your hands behind your back. Stop resisting.” SO #1 knelt on the Complainant’s left side and grabbed his left arm. SO #1 and SO #2 put the Complainant’s arms behind his back and handcuffed him.

A second cruiser arrived [containing WO #1 and WO #2). SO #2 said “He wiped out and we saw him wipe out.” The Complainant said, “Ow, my arm.”

At 9:23:24 p.m., WO #1 requested an ambulance.

At 9:29:15 p.m., an officer (now known to be WO #5) asked the Complainant what his injuries were, and he indicated his left shoulder. WO #5 asked the Complainant what happened, and he said SO #2 tried to push him and he hit the curb and fell.

At 9:32:36 p.m., SO #2 searched the Complainant’s pockets. WO #5 said to the Complainant, “You almost took out a car at the gas station.” The Complainant said, “You pushed me,” and SO #2 said, “I didn’t touch you.” The Complainant said, “You almost pushed me.” SO #2 replied, “Don’t even try that bud, we got cameras … We didn’t come close to touching you, you wiped out on your own kiddo.”
SO #2 assisted the Complainant to stand. The Complainant said he fell on the curb and flew onto the grass.
The BWC was switched off at 9:41:09 p.m.

The evidence collected by the SIU, including an interview with the Complainant, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU. SO #1 did authorize the release of his notes.

In the evening of April 10, 2023, the TPS received reports of a group of motorcyclists operating dirt bikes on community walking trails in North York. Officers were alerted to the situation.

About an hour later, WO #3 and WO #4 located three motorcyclists operating dirt bikes and stopped one of them after his vehicle stalled. The other two motorcyclists left the area with their lights off going through red lights. Neither rider was wearing a helmet. The officers broadcast what had occurred.

SO #1 was on patrol at the time operating a cruiser. With him in the passenger seat was his partner, SO #2. They were travelling north on Victoria Avenue towards Finch Avenue East to render assistance to WO #3 and WO #4 when they observed the other two dirt bikes accelerating south towards them. One was travelling on the east sidewalk. The other had cut across the northbound lanes before continuing in the southbound curb lane. SO #1 executed a U-turn and began to follow the dirt bike.

The Complainant was operating the dirt bike in the southbound curb lane. He was proceeding at relatively slow speed, his bike in close proximity to the sidewalk curb, when SO #1 pulled the cruiser beside him in the same lane. At about the same time, SO #2 maneuvered his upper body partially through the open passenger window. As this was happening, the Complainant lost control of his dirt bike. His vehicle struck the curb, and he was thrown from the bike in the area of the right turn lane at the Van Horne Avenue intersection.

SO #1 brought his cruiser to a stop just south of the Complainant, after which he and SO #2 exited and ran towards the Complainant on the ground. The Complainant was handcuffed behind the back and subsequently complained of pain in his left shoulder.

The Complainant was transported from the scene in ambulance to hospital where he was diagnosed with a fractured left clavicle.

Section 320.13 (1) Criminal Code – Dangerous operation causing bodily harm

Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or                      

(b) an offence punishable on summary conviction.

The Complainant was seriously injured in a motor vehicle collision on April 10, 2023. As he was being pursued at the time by TPS officers, the SIU initiated an investigation of the incident. The officers – SO #1 and SO #2 – were identified as the subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the Complainant’s injury.

The offences that arise for consideration are dangerous driving causing bodily harm and criminal negligence causing bodily harm contrary to sections 320.13(2) and 221 of the Criminal Code. With respect to the former, 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. The latter is premised on even more egregious conduct that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the neglect constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the issue is whether there was a want of care on the part of the subject officials, sufficiently serious to attract criminal sanction, that caused or contributed to the Complainant’s collision. In my view, there was not.

I accept that SO #1 and SO #2 were within their rights in seeking to stop the Complainant for traffic infractions. He was operating what they suspected was a stolen dirt bike without lights, and doing so while not wearing a helmet.

I am unable to reasonably conclude on the evidence that either subject official transgressed the limits of care prescribed by the criminal law throughout their engagement with the Complainant. The decision to pull up alongside the Complainant in the same lane was questionable. That limited the space available to the Complainant in which to operate the bike and placed him in a precarious position. That said, I do not accept, as the Complainant suggests, that this maneuver effectively forced him off the road. The evidence suggests that safely bringing his dirt bike to a stop was an option that was available to the Complainant. Similarly, SO #2’s decision to extend his upper body partially out through the window towards the Complainant, presumably, to communicate with the Complainant, was dubious, but the evidence establishes he did not make contact with the Complainant. Lastly, it is worth noting that the officers’ cruiser was only very briefly engaged with the Complainant, during which time there is no evidence that other users of the road were placed at any risk.

In the result, as there are no reasonable grounds to believe that either subject official comported themselves other than within the confines of the criminal law in their dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.



Date: August 9, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit