Special Investigations Unit -- Director's Report Details, Case Number: 23-TVI-265

SIU Director’s Report - Case # 23-TVI-265

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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.

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.

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

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 32-year-old man (the “Complainant”).

The Investigation

Notification of the SIU [1]

On July 12, 2023, at 4:03 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

On July 12, 2023, at 11:24 a.m., the TPS received a 911 call regarding the Complainant assaulting another male at a store located in the area of Jarvis Street and Gerrard Street East, Toronto. Officers arrived on scene and found a store owner bleeding. They learned that there had been a robbery and that the Complainant was riding a bicycle through Allen Gardens near Pembroke Street. Sometime later, there was a collision between the Subject Official’s (SO) cruiser and the Complainant, which was captured on the cruiser’s in-car camera system (ICCS). The SO got out of his cruiser and arrested the Complainant. It was later learned the Complainant had a fractured ankle. He was transported St. Michael’s Hospital (SMH) where the injury was confirmed. The Complainant was released from SMH and taken to 51 Division where he was held for a bail hearing.

The Team

Date and time team dispatched: 07/12/2023 at 4:32 p.m.

Date and time SIU arrived on scene: 07/12/2023 at 6:10 p.m.

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
Number of SIU Collision Reconstructionists: 1

Affected Person (aka “Complainant”):

32-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on July 12, 2023.

Subject Official

SO Declined interview, as is the subject official’s legal right; notes received and reviewed

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Not interviewed; notes reviewed and interview deemed not necessary
WO #4 Not interviewed; notes reviewed and interview deemed not necessary

The witness officials were interviewed on July 20, 2023.

Evidence

The Scene

The events in question transpired on Pembroke Street, south of Gerrard Street East, Toronto.

On July 13, 2023, at 11:05 a.m., a SIU forensic investigator attended 51 Division to assess the damage to the involved bicycle and TPS vehicle.

The involved cruiser was a Ford SUV and was fully marked and decaled with TPS markings. The only mark visible was a dust mark on the lower horizontal bar of the front push bumper. This was photographed with and without a scale.

The involved bicycle was a black road bike with narrow tires and drop-handlebars. The rear rim was crushed and bent. The rubber tire was hung around the frame and seat. Photographs were taken.

Figure 1 – The front of the SO’s TPS vehicle

Figure 2 – The damaged bicycle

Figure 2 – The damaged bicycle

Forensic Evidence

Global Positioning System (GPS) Data – The SO’s Cruiser

On July 12, 2023, the SO’s TPS fleet vehicle was equipped with a GPS receiver that recorded data related to times, locations, rates of speed, and headings of the vehicle. Cross-referencing the GPS data with other sources of information in the investigation yielded the following information.

Starting at about 10:08:44 a.m., the SO travelled northbound on George Street. He was about 113 metres south of Gerrard Street East. His rate of speed was 50 km/h. He approached a stop sign at the intersection and slowed to 14 km/h. The SO turned right and drove eastbound on Gerrard Street East for a distance of about 100 metres. On Gerrard Street East, he accelerated from 19 to 30 km/h.

Starting at about 10:09:15 a.m., the SO slowed to 24 km/h and turned right onto Pembroke Street to drive southbound. The SO drove about 100 metres on Pembroke Street.

At about 10:09:25 a.m., the SO was involved in a collision with the Complainant. At about that time, his rate of speed was about 41 km/h. He had driven about 100 metres in about ten seconds, which calculated to a rough average speed of 36 km/h as he travelled southbound on Pembroke Street between Gerrard Street East and the collision.

Eleven seconds later, at 10:09:36 a.m., the SO was stationary 15 to 20 metres south of the location of the collision.

The distance between the collision site and where the SO stopped after the collision would suggest he did not apply the brakes immediately before or during the collision and skid to a stop. Had he applied the brakes immediately before or during the collision, he would have skidded to a stop in about eight metres.

The GPS data did not assist with determining whether the SO had accelerated or decelerated prior to the collision, or as the collision occurred. Only a Crash Data Retrieval (CDR) system download of the cruiser could determine if such had occurred. No CDR download was provided to the SIU, likely because there was insufficient force or damage for the air bag module to have recorded an event.

The results of the GPS analysis were consistent with the physical evidence provided by the ICCS and body-worn camera (BWC) videos.

Video/Audio/Photographic Evidence [2]

BWC Footage – WO #2

Starting at about 10:08:53 a.m., the footage began with WO #2 driving. He swerved to his left and parked by the side of the road.

At 10:09:21 a.m., WO #2 got out of the cruiser and ran around the back. The Complainant immediately came into view wearing a white T-shirt and shorts. He had a backpack on his back and was riding a bicycle. The Complainant swerved his bicycle onto the middle of the road and continued to speed off.

The SO's cruiser came into view just a short distance behind the Complainant's bicycle and continued until it struck him. The Complainant screamed and was flung about a couple of metres ahead to the side of the roadway near the west sidewalk. The SO came to stop.
WO #1 approached the Complainant, who continued to scream in pain, and held him to the ground. He and WO #2 took control of the Complainant, who kept screaming in pain and said, "I didn't do nothing," while struggling with officers. He had bruises to his right elbow.

More TPS officers arrived and joined WO #2 and WO #1.

The Complainant was placed on his stomach and his hands were cuffed behind his back. He stopped struggling but kept screaming. The officers placed him in a recovery position before he was lifted to his feet.

The Complainant was led to a TPS cruiser parked a short distance behind the SO's cruiser. He limped and continued to scream and protest his innocence. He was placed against the hood of the cruiser, read his rights, and informed that he had been arrested for a robbery.

The Complainant’s backpack was cut off with a knife and he was searched. The Complainant kept screaming in pain, but an officer was heard saying he was fine, and nobody was hurting him. The Complainant said they hurt his leg. After the search, the Complainant was placed in the back seat of the cruiser.

Starting at about 10:13:58 a.m., officers closed the doors of the cruiser and walked away from the Complainant. The BWC footage ended five seconds later.

BWC Footage - WO #4

At 10:09:00 a.m., the footage started with WO #4 on the passenger side of a cruiser.
Starting at about 10:09:28 a.m., the vehicle stopped, and WO #4 exited. WO #2 and WO #1, and the Complainant, immediately came into view. The Complainant was on the ground as WO #2 and WO #1 held him down. There was no footage of the collision.

BWC Footage - The SO

At 10:09:37 a.m., the footage started with the SO standing on the roadway after the collision had occurred as WO #2 and WO #1, and another officer, attempted to control the Complainant.

The SO stood by while other TPS officers engaged with the Complainant.

At 10:13:08 a.m., the BWC footage ended.

BWC Footage – WO #1

At 10:09:23 a.m., the footage began with the SO’s vehicle contacting the Complainant’s rear tire. The remaining imagery was essentially identical to that captured by the BWCs of WO #2 and WO #4, but from a different angle.

ICCS Video Footage – The SO’s Cruiser

At 10:08:33 a.m., the footage began with the SO driving northbound on George Street, which had a posted speed limit of 30 km/h.

Starting at about 10:08:46 a.m., at the T-junction ahead of him, the Complainant was seen riding a bicycle eastbound on Gerrard Street East. He was wearing a shirt, shorts, and a backpack. As the SO approached the intersection, WO #2’s cruiser was seen traveling eastbound with its emergency lights activated. The SO turned right and was met with some traffic.

Starting at about 10:09:04 a.m., a man’s voice was heard on the radio saying, “Southbound, Pembroke.” At that same time, WO #2’s cruiser reversed in the intersection ahead and turned right down Pembroke Street, a one-way street. As the SO turned right to follow, another TPS cruiser was seen coming westbound on Gerrard Street East. Sirens were heard in the background. The posted speed limit on Pembroke Street was 30 km/h.

Starting at about 10:09:19 a.m., WO #2's cruiser swerved to the left side of Pembroke Avenue and WO #1 exited from the passenger side. As WO #2 exited, the Complainant emerged from the left side and rode behind the cruiser and out onto the roadway in front of the SO’s cruiser.

Starting at about 10:09:23 a.m., the SO’s vehicle bumped the rear tire of the bicycle. The front of the bicycle went upward briefly and came back down as it was pushed forward. The Complainant lost control. His left shoe flew off and landed on the street. The bicycle spun and went up on the sidewalk. He fell to the ground with his feet on the sidewalk to the right and hands on the roadway.

The Complainant yelled, “Ow,” repeatedly as WO #1 and WO #2 moved in to take control of him on the ground. Other TPS officers arrived and assisted as the Complainant yelled and flailed his feet. His hands were handcuffed behind his back, and he was then turned over on his left side while being searched.

Starting at about 10:10:20 a.m., the Complainant was escorted down the street along the driver side of the SO’s vehicle. Other TPS officers arrived, and the recording continued with little activity until 10:46:31 a.m.

ICCS Video Footage – Transport Vehicle

At 10:42:58 a.m., the footage began with the Complainant in the back seat of a TPS vehicle. The Complainant's hands were handcuffed behind his back.

Starting at about 10:46 a.m., the vehicle arrived at 51 Division and parked in the sally port. The Complainant was awakened briefly but he went back to sleep.

Starting at about 10:59:42 a.m., two male TPS officers came to the vehicle and one of the officers opened the driver side rear door and asked the Complainant to step out. The Complainant mumbled continuously. He asked officers to be “gentle” with him and complained about pain to his foot without specifying which one.

Starting at about 11:00:35 a.m., the Complainant was led out of the cruiser with at least five officers present, all of whom could only be seen from the chest down. An officer was heard talking to the Complainant as he continued to mumble and moan in pain. As he was led into the station, the Complainant was heard saying, “I can’t put pressure on my leg.” He was brought inside and heard being booked as he continued to mumble. The Complainant stated that he had been run over and his left leg hurt. He complained of injuries to his entire left side and said he could not walk. The Complainant admitted he had ingested fentanyl within the hour but had not consumed alcohol since the night before. He asked to be taken to the hospital.

Starting at about 11:16:10 a.m., the Complainant was returned to the back seat of a cruiser, which left the station. En route, the driver informed dispatch that they were going to SMH. The Complainant slept. They arrived at SMH and, at 11:27:59 a.m., the Complainant was removed from the cruiser.

Custody Video – Sally Port 1

Starting at about 10:59:10 a.m., the video began and contained footage of the Complainant being led into the station by three officers.

Custody Video - Booking Room

At 10:59:15 a.m., the video began. A sergeant stood at a counter. The Complainant was led into the booking area with his hands cuffed behind his back. He mumbled in pain throughout the booking process. He told the booking sergeant he had been run over, his leg hurt, and he could barely walk. The booking sergeant confirmed with police officers that the Complainant had not been seen by paramedics. The Complainant went on to say he slowed his bicycle and a vehicle “…slammed into me” and “…boom right into my back tire”. He said his left leg hurt, and “they were laughing and high fiving”. He said he was struck “by the police car”.

The booking sergeant asked the Complainant about ingesting drugs and the Complainant said he had taken fentanyl about 45 minutes prior. He asked to go to the hospital. He was asked some more questions and searched. The handcuffs were moved from the back to the front, and he was led back towards the sally port.

Custody Video – Sally Port 2

At 4:19:53 p.m., the video began and showed the Complainant as he was led from the rear of a cruiser through the sally port and to the door to the booking area.

Custody Video - Booking Area

At 4:19:59 p.m., video and audio began in the booking area with a booking sergeant present.

Starting at about 4:22:36 p.m., the Complainant was led in and sat on the bench. The booking sergeant was advised he had a small chip on his left foot and a cast had been fitted. His leg could not be seen, and he was pushed away in a chair with wheels two minutes later.

TPS Communications Recordings

On July 12, 2023, at 9:27 a.m., a man called 911 and reported that another man had “assaulting a store owner”. Banging could be heard in the background. The caller said the man had thrown things at the store owner. Within the first minute of the call, the caller said the Complainant had left the store riding a bicycle towards Gerrard Street East.

At 9:32 a.m., two officers were dispatched.

Starting at about 9:40 a.m., the store owner called 911. A few minutes into the conversation, it sounded as if he said the police had arrived. The phone call was disconnected.

Starting at about 9:46 a.m., a male officer said the Complainant had fled towards Allen Gardens, the incident was a hold up, and that the police officers would be circling the area.
A communicator made a telephone call and told a supervisor about the situation.

Starting at about 10:08 a.m., an officer said he had located the Complainant southbound on Jarvis Street, then eastbound on Gerrard Street East. He was going to “cut him off” on Pembroke Street.

At 10:09 a.m., a male police officer said the Complainant was in custody.

At 10:11 a.m., the SO requested a traffic services unit to investigate a motor vehicle collision he had been involved in.

At 10:37 a.m., officers took the Complainant to 51 Division.

At 11:17 a.m., officers took the Complainant to SMH.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TPS between July 12, 2023, and July 20, 2023:

Record of computer-assisted dispatch;
Communications recordings;
ICCS footage;
BWC footage;
Custody video;
GPS data;
General and Supplementary Occurrence Reports;
Notes – WO #1;
Notes – WO #2;
Notes – WO #3;
Notes – WO #4;
Notes – the SO;
Motor Vehicle Collision Report; and
Witness List.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources:

The Complainant’s medical records from SMH, received July 19, 2023.

Incident Narrative

The events in question, clear on the evidence gathered by the SIU, may briefly be summarized.

In the morning of July 12, 2023, the TPS received a 911 call about a robbery unfolding at a store in the area of Jarvis Street and Gerrard Street East, Toronto. A male had assaulted the store owner and then fled on a bicycle. Officers were dispatched to the scene.

Shortly after 10:00 a.m., WO #2 and WO #1 spotted the male - the Complainant - in the area of Allan Gardens, a short distance from the scene. The Complainant fled on his bicycle east on Gerrard Street East and then south on Pembroke Street. WO #2 and WO #1 pursued him in their cruiser.

The SO was also on the lookout for the Complainant. He observed the Complainant and WO #2 and WO #1’s cruiser and turned right onto Gerrard Street East from George Street to join the pursuit.

The Complainant had travelled about a hundred metres on the east sidewalk of Pembroke Street when the cruiser operated by WO #2 turned into his path and cut him off. He turned to his right to maneuver around the cruiser’s rear on the roadway and had travelled a short distance when his rear tire was struck by the SO’s cruiser.
The collision sent the Complainant tumbling off his bike. He was quickly joined by WO #2 and WO #1, who proceeded to take him into custody.

The Complainant complained of pain and was eventually transported to hospital where he was diagnosed with a fractured left foot.

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.

Analysis and Director's Decision

The Complainant was seriously injured in a collision with a TPS cruiser on July 12, 2023. In the ensuing SIU investigation of the incident, the driver of the cruiser – 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 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, 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 with the Complainant. In my view, there was not.

Given the information that had been received via the 911 call and the fact that he matched the description of the suspect, I am satisfied that the SO had grounds to believe that the Complainant had just committed a serious crime of violence and was subject to arrest for robbery.

I am also satisfied that the SO comported himself at all times with due care and regard for public safety, including the Complainant’s safety. The officer’s speeds were moderate from the moment of his engagement in the pursuit and there is no indication that he directly endangered third-party traffic en route to the site of the collision. The collision itself seems the result of the Complainant changing directions and steering into the path of the SO’s cruiser, and the officer having little if any time to react to avoid an impact. The decision to pursue a cyclist in the first place is subject to scrutiny as doing so is always associated with a risk to the cyclist given their relative vulnerability. Whatever the wisdom of that decision, however, the evidence falls short of establishing that the conduct of the involved officers was markedly substandard. In arriving at this conclusion, I am mindful of the serious offence for which the Complainant was being pursued, the short duration of the engagement (a matter of seconds), and the fact that WO #2’s turn into the path of the Complainant had left him sufficient time and distance to come to a controlled stop had he been so inclined.

In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law throughout the engagement with the Complainant, there is no basis for proceeding with criminal charges. The file is closed. [3]

Date: November 9, 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]
3) The punch struck by WO #3 was not the focus of the SIU jurisdiction. It appears to have been a reaction to the Complainant making a biting motion towards his hand. Reactionary force of this nature, presumably intended to deter the Complainant biting the officer, would not appear to be excessive in the circumstances. Be that as it may, this office will refer the matter to the TPS for their review. [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.