SIU Director’s Report - Case # 23-TVI-311

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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 injuries of a 31-year-old man (the “Complainant”).

The Investigation

Notification of the SIU [1]

On August 6, 2023, at 5:17 p.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

According to the TPS, on August 6, 2023, at approximately 2:00 p.m., the Subject Official (SO) was operating a TPS police vehicle in Earlscourt Park when the vehicle crested a hill and struck a pedestrian. The pedestrian was taken by Toronto Paramedic Services – Emergency Medical Services (EMS) to Sunnybrook Health Sciences Centre (SHSC), where he was reported to be in critical condition. The TPS was holding the scene for the SIU.

The Team

Date and time team dispatched: 08/06/2023 at 5:35 p.m.

Date and time SIU arrived on scene: 08/06/2023 at 7:08 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

Number of SIU Collision Reconstructionists: 1

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on August 21, 2023.

Subject Official

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Not interviewed; notes received and reviewed

The witness officials were interviewed between August 8 and 22, 2023.

Evidence

The Scene

The events in question transpired in and around the northwest quadrant of Earlscourt Park, Toronto.

On August 6, 2023, at 8:10 p.m., two SIU forensic investigators arrived in Earlscourt Park at the scene of a vehicle-related injury involving a TPS police vehicle. The park was bounded by St. Clair Avenue West on the north side, Davenport Road on the south side, and Caledonia Park Road on the west side. Earlscourt Park was a large multi-purpose park with a flood-lit soccer field, swimming pool, splash pad, dog park, recreation building and other activities. There was a driveway leading south from St. Clair Avenue West to a small parking area near the soccer field. There were paved pathways throughout the park that were wide enough to drive a vehicle on. There were no obstructions that would discourage vehicular traffic onto the park. From the edge of a driveway, there were faint tire markings that travelled west towards a hill that descended to a lower level of the park.


Figure 1 – Google Maps aerial view of Earlscourt Park

The scene within the police banner tape consisted of an upper level of grass and a lower level of grass. There was a steep grass decline between the upper and lower level. This area was just west of the soccer field. There were a few mature trees in the area.

Parked on the grass of the lower level was a fully marked TPS vehicle. The vehicle was a Ford Explorer, identified with a TPS Unit number assigned to the SO. The vehicle was equipped with emergency lighting and a siren that were not activated at the time of the SIU’s arrival. It was orientated west - southwest at the bottom of the hill and showed no immediate signs of collision damage.

On the hillside between the top of the hill and the police vehicle was an area of debris, which included clothing, EMS paraphernalia, and a crushed disposable water bottle. This evidence was collected as exhibits. The previously mentioned tire marks were noted as continuing down the hill. They could not, however, be confirmed as having been caused by the SO’s police vehicle as information was received that other vehicles, including the attending EMS ambulance, had travelled on the grass.

The scene was photographed and scanned. The undercarriage of the SO’s vehicle was examined and clean marks on the underside, near the front portion of the vehicle, were noted. The front bumper and crash bar showed no signs of contact. The distance from the underside of the vehicle at the front to the ground surface was measured to be approximately 18 centimetres.


Figure 2 – Undercarriage of the SO’s vehicle


Figure 3 – The SO’s vehicle parked at the bottom of the hill


On August 8, 2023, at 10:55 a.m., SIU forensic investigators returned to the scene. The purpose of the examination was to complete perspective photography and video using a similar vehicle to the SO’s vehicle. The similar vehicle was a SIU Ford Explorer. Photography was performed while the photographer was seated in the driver’s seat to capture the driver’s perspective. A mannequin was placed lying on the hillside approximately halfway up the grade. Views were taken from the pathway, turning right onto the grass towards the crest of the hill and then down to the mannequin. During photography and the operation of the vehicle, the mannequin never came into view. A video perspective from the front passenger seat was also completed. Measurements of the hillside were recorded. The grade of the hill was 17.5 degrees to 20 degrees on average.

On August 11, 2023, a SIU forensic investigator attended the TPS Fleet Management building at 1250 Jane Street, where a mechanic examined the SO’s vehicle. Prior to the mechanical check, the vehicle was placed on a hoist so the undercarriage could be examined. Several areas of the undercarriage displayed a brushing away of the dirt that had been present. The wipe marks were noted at the front, midpoint, and rear areas. The trail of wipe marks was intermittent at various areas.

Scene Diagram

Physical Evidence

The SIU collected items at the scene, including a hat, a pair of shoes, EMS paraphernalia, and a crushed disposable water bottle.

Video/Audio/Photographic Evidence [2]

Body-worn Camera Footage - The SO

At 2:05 p.m., August 6, 2023, the footage captured a clear, dry day. In front of the SO was his grey marked TPS SUV. Attached to the back of the vehicle was a bicycle rack. The emergency equipment was not activated. At the back passenger side of the vehicle, a uniformed police officer [believed to be WO #7] stood. Ahead of the police vehicle and to the right was a large tree. Behind the TPS vehicle and parallel to it was a man - the Complainant - lying on his back on the grass. The Complainant wore a grey jacket, blue T-shirt, and dark-coloured jeans. There was a scuff mark on the T-shirt across the Complainant’s abdomen. He was conscious and moving. The SO held the Complainant’s wrists. A male’s voice [believed to be the SO] said, “It’s okay." Additional police officers arrived, along from the Mounted Unit (MU). The Complainant was asked if he was alright, and he cried out. A police officer said, “Don’t touch his leg, just don’t touch his leg." The Complainant said words to the effect that he wanted help to get up. The Complainant was told help was on the way, and he was asked his age and name. The Complainant asked that something be put under his head, and a police officer asked someone to get the Complainant’s backpack. A backpack was placed under the Complainant’s head. The Complainant said that was better and he asked how long the ambulance was going to be.

Starting at about 2:09 p.m., the SO lifted the Complainant’s T-shirt. The Complainant’s abdomen appeared normal.

Starting at about 2:10:30 p.m., the Complainant said words to the effect, “Fucking drugs,” and that he did not smoke drugs. The SO asked the Complainant if had taken drugs that date. The Complainant said, “No, last night.” The Complainant said he smoked crack.

Starting at about 2:14 p.m., the SO stepped away from the police vehicle and walked forward towards a picnic table. A fire truck arrived.

Starting at about 2:15 p.m., a male police officer near the tree said, “Did he go under the car?” Someone replied, “Not sure." WO #7 stood nearby. The SO told him there was no value in keeping his BWC on, and he turned it off.
 

BWC Footage – Officer #1

On August 6, 2023, at 2:05 p.m., the footage captured a clear, dry day. Officer #1’s vehicle was stopped [believed to be in an easterly direction] in Earlscourt Park. In front of the police vehicle on the passenger side were three MU police officers on their horses. A MU police officer raised their right arm, and the three mounted police officers rode off in an easterly direction.

Starting at about 2:06 p.m., Officer #1 exited his police vehicle. Another marked SUV was to the left of his vehicle. There was a paved pathway ahead and to the east was a grassy area leading to a hill. There were two large trees. In between the trees was a marked SUV [now known to be the SO’s vehicle] with the driver’s door open. The SO’s vehicle faced in a westerly direction and MU police officers were to the south. Officer #1 ran in front of his vehicle towards the hill. As he approached the hill, another marked SUV drove alongside him. Officer #1 approached the SO’s vehicle, and a uniformed police officer wearing bicycle shorts [now known to be WO #7] stood at the back of the SUV on the driver’s side. To the south of him were three mounted police officers. A uniformed police officer [believed to be the SO] knelt at the back of the SO’s vehicle. The SO wore bicycle shorts. The emergency equipment was not activated. At the back of the vehicle, parallel with it, lay a man - the Complainant - on the grass. The Complainant was on his back; his head faced in a somewhat southerly direction and his feet were to the north. The Complainant wore a blue T-shirt and dark pants. There was a black object on the ground some distance to the east of the SO’s vehicle. WO #7 directed the mounted police officers to load up and head downtown. WO #7 walked over to the Complainant and asked him if he was alright. He told the Complainant that an ambulance had been requested. Numerous police officers wearing bicycle shorts were present. To the east, at the soccer field stands, were three civilians who appeared to watch. To the west was a civilian, who stood at the top of the hill, and to the north and east of the SO’s vehicle were two civilians seated under a tree. WO #7 directed Officer #1 and his crew to leave and head to another location.

Officer #1 returned to his police vehicle, and the recording ended at 2:07 p.m.
 

Video Footage – Officer #2

On August 6, 2023, at 2:06:02 p.m., the footage captured a clear, dry day. Officer #2 drove his police vehicle in Earlscourt Park. At 2:06:13 p.m., he stopped and exited his vehicle. Ahead was a grassy area which led to a hill. There were two large trees at the bottom of the incline, and in between the trees was a marked SUV [now known to be the SO’s vehicle] with the driver’s door open. It faced in a westerly direction. There were three mounted police officers to the south of the SO’s vehicle. There were two uniform police officers who stood between the SO’s vehicle and the three mounted police officers. There was a uniform police officer, who approached from Officer #2’s' right side. All the police officers wore bicycle shorts. Officer #2 approached the back of the SO’s vehicle. A police officer [believed to be the SO] knelt at the back of the vehicle. On the ground behind the vehicle and parallel to it was a man - the Complainant. The Complainant’s head faced south and, his feet, north. The Complainant moaned and moved about. Other police officers present tried to calm the Complainant. The left arm of his jacket was torn, and blood was present. There was blood on the left side of his face. The Complainant said, "Help me, help me." The police officer told him to stay still, and that help was on the way. A police officer asked the Complainant how old he was and for his name, which the Complainant provided.
 

Communications Recordings

Starting at about 2:06 p.m., August 6, 2023, an officer requested an ambulance at Earlscourt Park. The officer broadcast that a gentleman had been hit by a vehicle in the park. The person was conscious and breathing. The dispatcher telephoned the EMS and requested they attend at 1200 Lansdowne Avenue at the Earlscourt Park. The dispatcher learned from the officer that the location of the collision was south of St. Clair Avenue on a hill beside the soccer field. An officer asked if the WO #7 was on the air. An officer requested that Traffic Services attend.

Starting at about 2:10 p.m., the dispatcher advised Traffic Services that there was a call at Earlscourt Park in 13 Division. A man had been hit by a police vehicle in the park. He was conscious and breathing. A male police officer asked for WO #7, and he advised that the media was in the park. A male police officer advised that an ambulance was at the scene. An officer advised that the patient would be transported to SHSC on an emergency run. The run began at 2:57 p.m.

Starting at about 4:32 p.m., an officer advised that the injuries to the injured person were critical but not life-threatening.

Starting at about 5:24 p.m., an officer advised the dispatcher that the patient had been moved to the Critical Care Unit, and the injuries were now life threatening.

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

The TPS Unit operated by the SO was equipped with a GPS receiver which provided data regarding times, locations, speeds, and directions in connection with the vehicle’s travel. The following findings were the result of the data cross-referenced with information obtained via Google Earth, Google Maps, and the interview of WO #7.

At 1:31 p.m., August 6, 2023, the data commenced. The SO was stationary in the northwest corner of Earlscourt Park, near St. Clair Avenue West and Caledonia Park Road.

Starting at about 1:47:03 p.m., the SO drove northbound in a driveway entrance to the parking lot on the south side of St. Clair Avenue West, about 100 metres east of Caledonia Park Road. This location was identified on Google Maps as MUSE Arts Creative Lab, 1369B St. Clair Avenue West. The SO’s speed was about 14 km/h. The SO had driven from where the police vehicle was parked across the grass and up a hill to the paved asphalt pathway directly to the west of the soccer pitch and bleachers. The SO exited the paved pathway through a metal gate which was located at the northwest corner of the soccer pitch. He drove into the parking lot northwest of the soccer pitch. The SO exited the parking lot driveway and turned right onto St. Clair Avenue West. He drove at an unremarkable rate of speed eastbound about 650 metres to Via Italia where he turned right to drive southbound.

Starting at about 1:51 p.m., the SO was stationary on Rosemount Avenue just west of Via Italia and remained there for about eight minutes.

Starting at about 1:59 p.m., the SO drove westbound on Rosemount Avenue and turned right onto northbound Greenlaw Avenue.

Starting at about 2:00 p.m., the SO turned right onto St. Clair Avenue West and appeared to have then made a U-turn at Earlscourt Avenue to drive westbound on St. Clair Avenue West. He drove westbound about 600 metres back to Caledonia Park Road at an unremarkable rate of speed.

At 2:04 p.m., the SO was stopped westbound on St. Clair Avenue West. The SO made a U-turn and drove back eastbound. The SO then turned right into the same driveway he had used to exit the park, near MUSE Arts.

Starting at about 2:05:30 p.m., the SO drove southbound on the paved asphalt pathway. He was just past the metal gate and near the first bleacher at a rate of speed of 16 km/h. Depending on the exact line he drove along the paved pathway and down the hill, he was 25 to 30 metres away from the area of impact.

Starting at about 2:08 p.m., the SO was stationary about 35 metres from the last GPS data point. This was now known to be where the SO stopped, at the bottom of the hill, following the collision.

The GPS data did not assist with determining the speed at which the SO drove when the collision occurred or as he drove down the hill immediately before the collision.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TPS between August 7, 2023, and September 7, 2023:
  • Communications recordings;
  • Information from computer-assisted dispatch;
  • Involved Officer List;
  • Notes – WO #1;
  • Notes – WO #2;
  • Notes – WO #3;
  • Notes – WO #4;
  • Notes – WO #7;
  • Notes – Wo #6;
  • Notes – WO #5;
  • Notes – WO #8;
  • The SO’s vehicle – GPS data;
  • Collision Report;
  • Vehicle Damage Report;
  • BWC footage;
  • Photographs;
  • In-car Camera System footage;
  • TPS Policy - Service Vehicles Involved in Collisions; and
  • TPS Policy - Use of Service Vehicles.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources:
  • The Complainant’s medical records from SHSC;
  • Incident Summary Report and Ambulance Call Report from Toronto Paramedic Services; and
  • A note sent to the SIU by an unknown source.

Incident Narrative

The evidence collected by the SIU, including interviews with the Complainant and police eyewitnesses to the events in question, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or to authorize the release of his notes.

In the morning of August 6, 2023, TPS officers convened at Earlscourt Park to police what was anticipated to be another day of potentially violent demonstrations. The day before, opponents of the Eritrean government crashed the Festival Eritrea Toronto, resulting in skirmishes and several persons being taken to hospital.

WO #7, among the organizers of police operations that day, decided to mobilize police resources, including the Mounted Unit, at the northwest corner of the park when it was learned demonstrators were entering from that area. Over the course of the day, the officer learned that protesters were gathering at Loretto College before making their way to the park. WO #7 decided to travel to that location and enlisted the SO to drive him there. His intention was to gather information about what their plans were for the rest of day.

At about 1:45 p.m., the SO, operating a marked Ford Explorer, drove east across the northwestern section of the park towards a hill that climbed up to another flat section of grass and a paved pathway. The officer turned to travel north on the pathway a short distance to an entrance/exit on St. Clair Avenue West, turning right to travel east towards Loretto College.

Shortly after 2:00 p.m., WO #7 and the SO began to make their way back to Earlscourt Park. The SO re-entered the park through the same entrance/exit and essentially re-traced his steps, eventually travelling in a southwest direction down the hill. About halfway down the hill, the officers felt a thump from underneath the cruiser. The SO brought the vehicle to a stop at the bottom of the hill, and he and WO #7 exited. The Complainant was lying at the rear of the cruiser yelling in pain. He had been lying on the hill asleep and run over by the cruiser.

The SO rendered aid to the Complainant and paramedics were called to the scene. He was taken to hospital and admitted in the ICU with life-threatening injuries, including numerous fractures.

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.

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 one who by criminal negligence causes bodily harm to another person is guilty of 
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years;
(b) an offence punishable on summary conviction.

Analysis and Director's Decision

The Complainant was run over and seriously injured by a TPS cruiser on August 6, 2023. The SIU was notified of the incident and initiated an investigation. 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 injuries.

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, respectively. Both require something more than a simple want of care to give rise to liability. The former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised 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 question is whether there was any want of care on the part of the SO, sufficiently serious to attract criminal sanction, that caused or contributed to the Complainant’s injuries. In my view, there was not.

The SO was engaged in the lawful discharge of his duties at the time of the incident. He was part of the police presence at Earlscourt Park that had been organized to preserve the peace between opposing factions at an Eritrean festival.

With respect to the manner in which the SO operated his police cruiser as he returned to the park from Loretto College, I am satisfied that the officer comported himself with due care and regard for public safety. The very nature of the police operation that day, namely, to establish a significant presence to deter unlawful behaviour and, if necessary, enforce the law, contemplated some use of police cruisers on the park grounds. [3] Indeed, the evidence shows that the SO was not the only officer operating a cruiser on the fields of Earlscourt Park. The evidence further establishes that the officer only travelled on the lawned portions of the park to the extent necessary as he escorted WO #7, using a paved pathway in the park to make his way onto the public roadways to and from Loretto College. And the officer did so at very slow speed, presumably, aware of the risks inherent in operating a motor vehicle off-road and up and down hills. Certainly, the SO would have been better advised to ensure his path was clear before embarking down the hill, particularly as his line of sight over the front of his vehicle would have been obstructed given the grade of the decline. That said, the odds that someone would be sleeping on the hill in line with his direction of travel, when there is evidence that no such person was present when the officer first climbed the hill en route to Loretto College, were low. On this record, whether or not the SO was as careful as he might have been, I am unable to reasonably conclude that the officer transgressed the limits of care prescribed by the criminal law when he accidentally drove over the Complainant.

In the result, as there are no reasonable grounds to conclude that the SO conducted himself other than lawfully over the course of this unfortunate incident, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: November 30, 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) Pursuant to TPS Policy – Use of Service Vehicle – officers must avoid driving in grassed areas of a park except in an emergency. Whether the circumstances that prevailed at the time the SO drove his cruiser in the park constituted an “emergency” is up for debate. The same may be said of the term “avoid” and whether that constitutes a firm prohibition of the practice or a general statement of best practice. Be that as it may, I am not satisfied that the officer’s violation of police policy, if that is what it was, materially alters the criminal liability analysis. [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.