SIU Director’s Report - Case # 23-OCI-267
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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 33-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 33-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On July 14, 2023, at 5:18 a.m., the York Regional Police (YRP) contacted the SIU with the following information.On July 13, 2023, at approximately 10:18 p.m., an Uber delivery driver stopped his vehicle at a restaurant in Richmond Hill for a food pick-up. The Uber driver left his Toyota Venza running in the parking lot. The Complainant jumped in the Venza and drove off. The Uber driver notified the YRP and advised there was a tracking device on the Venza. The YRP used several unmarked police vehicles and the Air2 helicopter to track the Venza to a gas station in Schomberg. When the Venza left the gas station, a tire deflation device was deployed, and the Venza drove off with two flat tires. At some point, the Venza crashed into a ditch on Dufferin Street approximately 100 metres south of Davis Drive. YRP officers apprehended the Complainant, after which it was determined he had a facial injury. Emergency Medical Services (EMS) was called to the scene and the Complainant was taken to the Southlake Regional Health Centre (SRHC), where it was determined he had a frontal nasal fracture.
The Team
Date and time team dispatched: 2023/07/14 at 9:17 a.m.Date and time SIU arrived on scene: 2023/07/14 at 1:35 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned (FIs): 1
Number of SIU Collision Reconstructionists assigned: 0
Affected Person (aka “Complainant”):
33-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on July 14 and 27, 2023.
Subject Officers (SO)
SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal rightSO #2 Interviewed, but declined to submit notes, as is the subject official’s legal right
The subject officials were interviewed on August 14, 2023.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed between July 27, 2023, and August 14, 2023.
Evidence
The Scene
The collision and subsequent arrest of the Complainant occurred on Dufferin Street just south of Davis Road. The stolen vehicle involved in the collision – a Toyota Venza - was towed to Elliott’s Towing at 20440 Highway 11 in Holland Landing. On July 14, 2023, a SIU FI attended Elliott’s Towing to examine the vehicle and take photographs.
All tires were removed except for the front driver’s side tire. There was glass debris inside the vehicle from the front broken windows. All side airbags had been deployed. There was dirt and plant debris stuffed into the exhaust pipes and the front driver's side mirror had been damaged as well as the side panel.
Video/Audio/Photographic Evidence [2]
YRP Helicopter – Air2 – Video Footage
The Air2 video began at 9:06:30 p.m. with an aerial view of a heavily-treed rural roadway area. Starting at about 9:17:32 p.m., a vehicle was captured westbound on Highway 9, just past 10th Sideroad.
Starting at about 9:18:09 p.m., the vehicle was identified as a black Toyota Venza.
Starting at about 9:20:09 p.m., Air2 broadcast that it would call the direction of travel. It was noted the vehicle was still westbound on Highway 9 at varying speeds between 80-100 km/h.
Starting at about 9:23:22 p.m., the vehicle made a right turn onto Highway 50 proceeding northbound at 80-90 km/h.
Starting at about 9:24:19 p.m., the vehicle was passing traffic at 140 km/h.
Starting at about 9:27:54 p.m., the vehicle travelled through the red light at County Road 50, making a left turn to travel westbound.
Starting at about 9:34:33 p.m., the vehicle made a U-turn, eastbound on Highway 89.
Starting at about 9:39:20 p.m., the vehicle turned left, northbound on King Street South.
Starting at about 9:39:50 p.m., the vehicle was eastbound on Victoria Street East [also known as Highway 89].
Starting at about 9:45:10 p.m., the vehicle made U-turn, proceeding westbound on Victoria Street East/Highway 89.
Starting at about 9:46:15 p.m., the vehicle made a left turn onto Tottenham Road and a quick right into a gas station, where it stopped at the gas pumps. The driver’s door was open, but the driver did not exit the vehicle.
Starting at about 9:47:37 p.m., the vehicle made a right turn out of the gas station parking lot. It then cut-off a pick-up truck.
Starting at about 9:48:08 p.m., the vehicle was back on Victoria Street/Highway 89 eastbound.
Starting at about 9:57:54 p.m., the vehicle was southbound on Highway 400 at speeds varying between 100-160 km/h.
Starting at about 10:07:14 p.m., the vehicle exited Highway 400 onto Highway 9.
Starting at about 10:09:00 p.m., the vehicle made U-turns and continued westbound on Highway 9.
Starting at about 10:09:23 p.m., a tire deflation device was successfully deployed on the vehicle, which continued westbound for a distance before executing a U-turn to travel east.
Starting at about 10:13:06 p.m., lots of debris and heat were coming from the vehicle travelling approximately 90 km/h.
Starting at about 10:15:01 p.m., the vehicle turned southbound onto Dufferin Street.
Starting at about 10:16:22 p.m., the vehicle lost control and crashed into a ditch on the right-hand side of the road.
Starting at about 10:16:35 p.m., officers exited their vehicle and approached the vehicle in the ditch.
Starting at about 10:16:52 p.m., there was a struggle on the driver’s side of the vehicle.
Starting at about 10:16:57 p.m., punches were being thrown.
Starting at about 10:17:33 p.m., officers were handcuffing the suspect.
Starting at about 10:18:01 p.m., the suspect was escorted handcuffed to the roadside by officers.
At 10:20:06 p.m., the footage concluded.
Communications Recordings
Starting at about 00:19 minutes into the recording, it was noted that a black Toyota Venza was northbound on Highway 400 from Major MacKenzie.Starting at about 00:53 minutes, it was noted that units were making their way to the updated location.
Starting at about 01:15 minutes, the vehicle was northbound on Highway 400 at Lloydtown/Aurora Road.
Starting at about 02:26 minutes, it was noted that Air2 did not yet have eyes on the stolen vehicle.
Starting at about 04:00 minutes, it was noted that the vehicle was on Lloydtown-Aurora Road.
Starting at about 04:14 minutes, it was noted that the vehicle was west of Highway 27.
Starting at about 04:57 minutes, the suspect vehicle was located pulling out of the Esso gas station having just filled up and going westbound proper.
Starting at about 21:21 minutes, it was noted that one male was in custody at Davis and Dufferin. An ambulance was requested.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the YRP between July 18, 2023, and July 25, 2023:- Motor Vehicle Collision Report;
- Communications recordings;
- Call History;
- Initial Officer Report;
- Notes – WO #1;
- Notes – WO #4;
- Notes – WO #2;
- Notes – WO #3; and
- Video footage – YRP Air2.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between July 18, 2023, and July 20, 2023:- Ambulance Report – York Region Paramedic Services; and
- The Complainant’s medical records from SRHC.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and both subject officials, and video footage that captured the incident in parts, gives rise to the following scenario.
In the evening of July 13, 2023, the YRP received a 911 call of a vehicle theft that had just taken place. An Uber delivery driver had called to report that his Toyota Venza had been stolen from the plaza at 10909 Yonge Street, Richmond Hill.
Plainclothes officers with the Criminal Investigations Bureau, including SO #1 and SO #2, mobilized to locate the vehicle. They were assisted by a tracker that was in the vehicle and the YRP helicopter, Air2.
The Complainant had taken the Toyota from the plaza parking lot. Over the next hour-and-a-half, the Complainant would embark on a course of dangerous driving involving excessive speed, erratic maneuvers, and disregard of red lights. Near the tail end of his misadventure, as he travelled west on Highway 9 east of Highway 400, the Complainant travelled over a tire deflation device that had been deployed by SO #1. With one or more of the Toyota’s tires punctured, the Complainant continued for a distance before making a U-turn to travel east on Highway 9.
SO #2 was behind the Toyota and followed it as it travelled east towards Dufferin Street, where it made a right hand turn to travel south. The officer attempted to get in front of the vehicle in order to attempt a rolling stop but was blocked from doing so by the Complainant. She continued to follow the Toyota at close distance and watched as it lost control and crashed into the west side ditch. The time was 10:16 p.m.
SO #2 was the first to reach the Complainant. She pulled the Complainant out of the Toyota and quickly found herself in an altercation. The Complainant punched and pushed the officer, and the two went to ground. As he continued to strike the officer, SO #2 struck back with several punches to the Complainant’s leg.
SO #1 joined the struggle and delivered multiple punches to the Complainant’s backside. Shortly thereafter, with the intervention of additional officers and more punches, the Complainant’s arms were controlled and handcuffed behind the back.
The Complainant was transported to hospital from the scene where he was diagnosed with a front nasal fracture.
In the evening of July 13, 2023, the YRP received a 911 call of a vehicle theft that had just taken place. An Uber delivery driver had called to report that his Toyota Venza had been stolen from the plaza at 10909 Yonge Street, Richmond Hill.
Plainclothes officers with the Criminal Investigations Bureau, including SO #1 and SO #2, mobilized to locate the vehicle. They were assisted by a tracker that was in the vehicle and the YRP helicopter, Air2.
The Complainant had taken the Toyota from the plaza parking lot. Over the next hour-and-a-half, the Complainant would embark on a course of dangerous driving involving excessive speed, erratic maneuvers, and disregard of red lights. Near the tail end of his misadventure, as he travelled west on Highway 9 east of Highway 400, the Complainant travelled over a tire deflation device that had been deployed by SO #1. With one or more of the Toyota’s tires punctured, the Complainant continued for a distance before making a U-turn to travel east on Highway 9.
SO #2 was behind the Toyota and followed it as it travelled east towards Dufferin Street, where it made a right hand turn to travel south. The officer attempted to get in front of the vehicle in order to attempt a rolling stop but was blocked from doing so by the Complainant. She continued to follow the Toyota at close distance and watched as it lost control and crashed into the west side ditch. The time was 10:16 p.m.
SO #2 was the first to reach the Complainant. She pulled the Complainant out of the Toyota and quickly found herself in an altercation. The Complainant punched and pushed the officer, and the two went to ground. As he continued to strike the officer, SO #2 struck back with several punches to the Complainant’s leg.
SO #1 joined the struggle and delivered multiple punches to the Complainant’s backside. Shortly thereafter, with the intervention of additional officers and more punches, the Complainant’s arms were controlled and handcuffed behind the back.
The Complainant was transported to hospital from the scene where he was diagnosed with a front nasal fracture.
Relevant Legislation
Section 25(1), Criminal Code -- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Sections 219 and 221, Criminal Code - Criminal Negligence Causing Bodily Harm
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.
221 Every person who by criminal negligence causes bodily harm to another person is guilty of
(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.
Analysis and Director's Decision
On July 13, 2023, the Complainant was seriously injured at or about the time of his arrest by YRP officers. In the ensuing SIU investigation of the incident, 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 the subject officials committed a criminal offence in connection with the Complainant’s injury.
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
SO #1 and SO #2 were within their rights in seeking to take the Complainant into custody. They had cause to believe that he had stolen a motor vehicle and had been driving it dangerously.
With respect to the force used by the officers in aid of the Complainant’s arrest, I am satisfied that it was legally justified. The Complainant exited the Toyota and immediately started fighting the officers, variously punching, pushing, and kicking. SO #1 and SO #2 were entitled to strike back to protect themselves and subdue the Complainant so that he might be taken into custody. Their use of hand strikes to repel the Complainant’s resistance would appear a proportionate response in the circumstances. The same is true, in my view, of what appears to have been additional punches struck to the Complainant’s upper body by another officer.
There is a further issue, namely, whether the use of the tire deflation device by SO #1 fell within the limits of the criminal law. The offence that arises for consideration in this regard is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of SO #1, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s injury. In my view, there was not.
The use of the tire deflation device carried with it some risk to public safety. At the time SO #1 deployed it in front of the Toyota, there were a number of third-party motorists travelling in the opposite direction who might have been imperiled had the Complainant swerved to avoid the device or experienced a rapid loss of control because of a punctured tire. The punctured tire or tires also contributed to the Complainant’s loss of control at the crash site, though it must be said that he had had ample time to bring the Toyota to a safe stop before he entered the ditch. On the other hand, there was real risk involved in allowing the Complainant to continue driving on the roadways. For more than an hour, the Complainant had placed the lives of third-parties in jeopardy with his reckless driving and there was no indication that he was about to stop anytime soon. Faced with a difficult decision, I am satisfied SO #1 made a reasonable one. Though there were some vehicles on the road, traffic was light to moderate given the time of day. And the device, if it worked as intended, would result in a controlled deflation. And that is precisely what happened.
In the result, while I accept that the Complainant’s injury was incurred in the altercation that marked his arrest or during his crash in the ditch, there are no reasonable grounds to conclude it was attributable to unlawful conduct on the part of the subject officials. The file is closed.
Date: November 10, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
SO #1 and SO #2 were within their rights in seeking to take the Complainant into custody. They had cause to believe that he had stolen a motor vehicle and had been driving it dangerously.
With respect to the force used by the officers in aid of the Complainant’s arrest, I am satisfied that it was legally justified. The Complainant exited the Toyota and immediately started fighting the officers, variously punching, pushing, and kicking. SO #1 and SO #2 were entitled to strike back to protect themselves and subdue the Complainant so that he might be taken into custody. Their use of hand strikes to repel the Complainant’s resistance would appear a proportionate response in the circumstances. The same is true, in my view, of what appears to have been additional punches struck to the Complainant’s upper body by another officer.
There is a further issue, namely, whether the use of the tire deflation device by SO #1 fell within the limits of the criminal law. The offence that arises for consideration in this regard is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of SO #1, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s injury. In my view, there was not.
The use of the tire deflation device carried with it some risk to public safety. At the time SO #1 deployed it in front of the Toyota, there were a number of third-party motorists travelling in the opposite direction who might have been imperiled had the Complainant swerved to avoid the device or experienced a rapid loss of control because of a punctured tire. The punctured tire or tires also contributed to the Complainant’s loss of control at the crash site, though it must be said that he had had ample time to bring the Toyota to a safe stop before he entered the ditch. On the other hand, there was real risk involved in allowing the Complainant to continue driving on the roadways. For more than an hour, the Complainant had placed the lives of third-parties in jeopardy with his reckless driving and there was no indication that he was about to stop anytime soon. Faced with a difficult decision, I am satisfied SO #1 made a reasonable one. Though there were some vehicles on the road, traffic was light to moderate given the time of day. And the device, if it worked as intended, would result in a controlled deflation. And that is precisely what happened.
In the result, while I accept that the Complainant’s injury was incurred in the altercation that marked his arrest or during his crash in the ditch, there are no reasonable grounds to conclude it was attributable to unlawful conduct on the part of the subject officials. The file is closed.
Date: November 10, 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.