Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release 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 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury sustained by a 45-year-old man on October 5^th, 2017.

Notification of the SIU

At approximately 8:20 p.m. on Thursday, October 5^th, 2017, the Toronto Police Service (TPS) notified the SIU of a vehicle injury suffered by a male motorcycle operator. At the time of the report, the TPS did not yet know the identity of the injured party.

At 12:38 p.m. that day, according to the TPS, the Subject Officer (SO) was operating a traffic enforcement car on the Don Valley Parkway in the City of Toronto. The SO attempted to stop a motorcycle being operated in a dangerous manner. The motorcyclist sped off, onto the York Mills Road exit ramp, and the SO discontinued his efforts, coming to a stop in the High Occupancy Vehicle (HOV) lanes of the Don Valley Parkway. The SO then heard what he thought was a collision and he found that the motorcyclist had collided with another vehicle. The motorcycle operator was arrested for dangerous driving and was taken to the hospital.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 2

Number of SIU Collision Reconstructionist assigned: 1

The SIU immediately dispatched three investigators, two forensic identification investigators, and a collision reconstructionist to the scene. The first SIU member arrived at 9:36 p.m. SIU investigators also attended the hospital to interview the Complainant.

The scene, which had been preserved by the TPS, was photographed and a Total Station device was used to measure the scene for forensic mapping purposes.

Complainant

45-year-old male interviewed, medical records obtained and reviewed

Civilian witnesses

CW #1 Written statement provided

CW #2 Written statement provided

CW #3 Written statement provided

CW #4 Written statement provided

CW #5 Written statement provided

Prior to the Complainant’s injury being diagnosed, the TPS Traffic Services Bureau interviewed the above named motorists, who had been stopped on the York Mills Road off-ramp. The TPS provided the SIU with copies of those interviews and they were reviewed by an SIU Investigator while at the scene on October 5^th, 2017. Given the information contained in those interviews, and the Complainant’s admission to the SIU that he was solely at fault for the collision, it was deemed unnecessary to re-interview those civilian witnesses.

Witness officers

WO #1 Notes reviewed, interview deemed not necessary

WO #2 Notes reviewed, interview deemed not necessary

WO #3 Notes reviewed, interview deemed not necessary

WO #4 Notes reviewed, interview deemed not necessary

The above noted police officers responded to the incident. None were present at the time of the incident. Their duty notes were reviewed but they were not interviewed by the SIU, based on the contents of their duty notes.

Subject officers

SO #1 Interviewed, notes received and reviewed

On October 5^th, 2017, the Complainant was operating his motorcycle southbound on the Don Valley Parkway in the City of Toronto. The Complainant was manoeuvring his motorcycle through traffic in a manner that caught the attention of the SO, who activated his emergency lights and sounded his vehicle air horn to attract the Complainant’s attention. Rather than stopping, the Complainant elected to exit the highway, and he quickly transitioned to the York Mills Road exit ramp. As he continued down the exit ramp, the Complainant first made glancing contact with a vehicle that was stopped on the ramp, and then, as he continued forward, he struck the rear of a van that was also stopped on the ramp, was ejected from his motorcycle, and struck and partially entered the rear window of the van.

The SO, after having waiting a reasonable period of time at the side of the road, started his vehicle up again and proceeded down the exit ramp, where he came upon the collision scene.

Nature of injury/treatment

The Complainant suffered a fractured pelvis, chipped teeth, and abrasions.

The scene

Upon exiting the Don Valley Parkway, the off-ramp to York Mills Road is a single lane asphalt road, transitioning in a clockwise bend from southbound to northbound. The off-ramp intersects with York Mills Road in a T-shaped intersection. At that point, the off-ramp is comprised of two designated left turn lanes and one designated right turn lane. The intersection is controlled with a functioning traffic signal. The edges of the off-ramp are bordered by concrete curbs and paved asphalt shoulders.

At the time of this collision, the road was dry and in good condition. The posted advisory speed for the ramp is 30 km/h. The posted speed limit on the Don Valley Parkway is 90 km/h.

A Suzuki motorcycle was lying on its right side in the centre of the off-ramp. There was significant collision damage to the front of the motorcycle. The front tire rim and the forks were bent.

A Honda Odyssey was found in the centre left turn lane of the off-ramp, in front of the motorcycle. The rear bumper, lift gate, and lift gate window were damaged. Glass and paraphernalia were inside the rear cargo area and on the ground at the rear lift gate.

Beside the Honda Odyssey was the police cruiser that had been operated by the SO.

A BMW had been removed from the scene, but the TPS had marked the outline of the vehicle on the road surface. The BMW had been positioned in the leftmost left turn lane of the off-ramp.

A Kia Optima was located in the centre of the off-ramp, south of the other vehicles. There was minor damage to the right side of this vehicle.

Scene diagram

Expert Evidence

Collision Reconstructionist Opinion

There was no roadway evidence identified. The Complainant and the SO both provided statements to the SIU, which assisted in determining the mechanics of this collision.

Scuffs were found on the right rear tire sidewall and wheel cover on the Kia Optima, 10 cm to 60 cm above the ground. Those scuffs were consistent with the left crankcase cover and possibly the Complainant’s left boot or shoe coming into contact with the Kia. Because the scuffing was circular it indicated the right rear wheel of the Kia was rotating at the time of impact.

A dent on the right rear fender of the Kia, located 63 cm to 77 cm above the ground, was consistent with the estimated height of a rider’s knee and it is believed that the dent was created through an impact by the Complainant’s left knee. Two scrapes on the right rear door of the Kia Optima were essentially the same height as a scrape on the left handlebar of the motorcycle. This suggested the handle bar struck the right rear door of the Kia. If the Kia Optima was completely within the off-ramp then the Complainant must have passed the Kia Optima on its right side, close to the east edge of the paved ramp, with the left side of his body and the motorcycle coming into collision with the right side of the Kia.

Having been involved in such a shallow sideswipe collision, a motorcyclist would easily continue on the motorcycle but most likely would be out of control, concentrating just to remain upright. This could account for the lack of roadway evidence as the Complainant careened toward the Honda Odyssey. The debris of glass and paraphernalia at the rear lift gate suggested the Honda Odyssey was stopped at the time of impact.

A thin knobby-style tire mark on the rear bumper of the Honda was consistent with having originated from the front tire of the motorcycle. That mark was to the left of centre and the remaining impact evidence at the rear lift gate was to the right of centre. This suggests that the motorcycle rotated counter clockwise so that the right side of the motorcycle and the Complainant came into contact with the rear lift gate of the Honda. A plastic helmet shield found in the Honda luggage rack suggests it separated at impact as the Complainant’s torso was thrust through the Honda’s rear lift gate window and the remainder of his body remained to the exterior of the lift gate. The motorcycle slid sideways onto its right side directly behind the Honda Odyssey.

From the amount of damage and the known vehicle resting locations, there was no evidence of excessive speed on the part of any of the vehicles.

Communications recordings

The Communications recordings were obtained and reviewed.

Forensic evidence

There were no submissions made to the Centre of Forensic Sciences.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:

• The radio communications recordings
• TPS scene photographs
• Written statements of CW #s 1-5
• The Event Details Report
• The General Occurrence Report, and
• Notes of WO #s 1-4 and the SO

The SIU obtained and reviewed the following materials and documents from other sources:

• Medical records of the Complainant

Sections 1-3, Ontario Regulation 266/10, Ontario Police Services Act – Suspect Apprehension Pursuits

1. (1) For the purposes of this Regulation, a suspect apprehension pursuit occurs when a police officer attempts to direct the driver of a motor vehicle to stop, the driver refuses to obey the officer and the officer pursues in a motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle.

(2) A suspect apprehension pursuit is discontinued when police officers are no longer pursuing a fleeing motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle.

2. (1) A police officer may pursue, or continue to pursue, a fleeing motor vehicle that fails to stop,

1. if the police officer has reason to believe that a criminal offence has been committed or is about to be committed; or
2. for the purposes of motor vehicle identification or the identification of an individual in the vehicle

(2) Before initiating a suspect apprehension pursuit, a police officer shall determine that there are no alternatives available as set out in the written procedures of,

1. the police force of the officer established under subsection 6 (1), if the officer is a member of an Ontario police force as defined in the Interprovincial Policing Act, 2009
2. a police force whose local commander was notified of the appointment of the officer under subsection 6 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part II of that Act; or
3. the local police force of the local commander who appointed the officer under subsection 15 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part III of that Act

(3) A police officer shall, before initiating a suspect apprehension pursuit, determine whether in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle or the need to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle outweighs the risk to public safety that may result from the pursuit.

(4) During a suspect apprehension pursuit, a police officer shall continually reassess the determination made under subsection (3) and shall discontinue the pursuit when the risk to public safety that may result from the pursuit outweighs the risk to public safety that may result if an individual in the fleeing motor vehicle is not immediately apprehended or if the fleeing motor vehicle or an individual in the fleeing motor vehicle is not identified.

(5) No police officer shall initiate a suspect apprehension pursuit for a non-criminal offence if the identity of an individual in the fleeing motor vehicle is known.

(6) A police officer engaging in a suspect apprehension pursuit for a non-criminal offence shall discontinue the pursuit once the fleeing motor vehicle or an individual in the fleeing motor vehicle is identified.

3. (1) A police officer shall notify a dispatcher when the officer initiates a suspect apprehension pursuit.

(2) The dispatcher shall notify a communications supervisor or road supervisor, if a supervisor is available, that a suspect apprehension pursuit has been initiated

Section 216 (1), Highway Traffic Act of Ontario – Power of Police Officer to Stop Vehicles/ Escape by Flight

216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, subject to subsection (3),

1. to a fine of not less than $1, 000 and not more than $10, 000
2. to imprisonment for a term of not more than six months; or
3. to both a find and imprisonment

(3) If a person is convicted of an offence under subsection (2) and the court is satisfied on the evidence that the person wilfully continued to avoid police when a police officer gave pursuit,

1. the person is liable to a fine of not less than $5, 000 and not more than $25, 000, instead of the fine described in clause 2 (a), and
2. the court shall make an order imprisoning the person for a term of not less than 14 days and not more than six months, instead of the term described in clause (2) (b), and
3. the court shall make an order suspending the person’s driver’s licence
   1. for a period of five years, unless the subclause (ii) applied, or
   2. for a period of not less than 10 years, if the court is satisfied on the evidence that the person’s conduct or the pursuit resulted in the death of or bodily harm to any person

(4) An order under subclause (3) (c) (ii) may suspend the person’s driver’s licence for the remainder of the person’s life.

On October 5^th, 2017, the Complainant was operating his motorcycle southbound on the Don Valley Parkway in the City of Toronto when he came to the attention of the Subject Officer (SO) due to his driving first on the shoulder of the highway, and then in the high occupancy vehicle (HOV) lane. The Complainant indicated that he was operating his motorcycle at a rate of speed of approximately ten km/h greater than that of other traffic, which had slowed to between 30 and 60 km/h. The SO pulled up behind the Complainant and activated his emergency roof lights and gave a blast of his air horn in order to get the Complainant to pull over; the Complainant opted not to do so, instead switching to the centre lane and then accelerating off of the highway at the York Mills Road off-ramp. The Complainant indicated that he was aware that the police cruiser was not behind him anymore when he exited onto the off-ramp, but believed that the officer would follow.

The SO stated that as soon as he became aware that the Complainant was not going to stop, he obtained his licence plate number and then shut off his emergency lighting system and stopped his cruiser for several seconds. The SO observed the Complainant continue southbound in the HOV lane before cutting across four lanes of traffic toward the York Mills Road off-ramp.

This evidence is corroborated by civilian witness (CW) #4, who provided a written statement stating that he was just signaling his intention to exit onto the York Mills Road off-ramp when he was cut off by the Complainant’s motorcycle. CW #4 observed that traffic was moving at 40 to 50 km/h while the Complainant was travelling at approximately 80 km/h. CW #4 observed the Complainant exit onto the off-ramp and he saw the Complainant’s motorcycle tire touch the rear wheel of a Kia motor vehicle also on the ramp. As CW #4 continued on the off-ramp, he noticed that the Complainant’s motorcycle had impacted with a van, resulting in the rear window of the van being broken. CW #4 then observed a police cruiser arrive from the emergency lane and arrest the Complainant.

The Kia sedan with which the Complainant’s motorcycle tire originally came into contact was being driven by CW #2 at the time. CW #2 stated that she was travelling on the off-ramp at approximately 15 km/h when her motor vehicle was struck by the Complainant’s motorcycle. CW #2 indicated that despite her vehicle being rather close to the right curb, as she had intended to turn right at the intersection, the motorcyclist flew past her vehicle along the curb and then collided with the rear of a Honda minivan. CW #2 observed the Complainant go down with his motorcycle, but then he got up again within about five seconds. CW #2 also observed the SO arrive within five seconds after the collision.

CW #1, who was driving the Honda Odyssey minivan, came to a stop on the off-ramp when she heard an impact and the rear window of her minivan shattered and she realized that someone had hit her from behind. Within approximately five to ten seconds, CW #1 observed a police car pull up beside her.

Of the five CWs who provided statements, none observed the SO pursuing the Complainant’s motorcycle prior to, or at the time of, the collision. The Complainant himself stated that he was aware that the SO was no longer behind him when he exited onto the off-ramp, having observed that the police cruiser had remained behind in the passing lane.

As the Complainant exited onto the off-ramp, he stated that his foot scratched the back wheel of a vehicle. Later investigation by SIU Forensic Investigators confirmed that there was a dent on the right rear fender of the Kia operated by CW #2, at a location which would have been consistent with a rider’s knee striking the vehicle. The Complainant indicated that he then passed an additional five or six other motor vehicles on the off-ramp before his motorcycle struck the rear of CW #1’s Honda Odyssey. SIU Forensic Investigators located two scrapes on the right side rear passenger door of the Kia consistent with having been caused by the scrape of a motorcycle handlebar, while the Honda Odyssey was observed to have damage to its rear bumper, lift gate, and lift gate window. The Complainant’s motorcycle was found to have sustained significant damage to the front end with the front tire rim and forks bent.

The Complainant conceded that he struck the back of the Honda Odyssey as a result of his speed of 40 to 60 km/h on the off-ramp and believed that his motor vehicle slid, as it is prone to do. The Complainant also confirmed that the SO was not behind him at the time of the collision, but estimated that the police cruiser arrived at the impact scene within approximately one to two minutes after the collision. The Complainant candidly told the SIU Investigators that he was at fault for the collision and that the police officer was not involved. As a result of the collision, the Complainant sustained a fracture to his pelvis, chipped two of his front teeth, and scraped the skin off of a toe on his left foot.

On all of the evidence, it is clear that the SO had reasonable grounds to stop and investigate the Complainant for several Highway Traffic Act (HTA) offences. It is further clear that after the initial activation of the emergency roof lighting system and a blast of the air horn, that the SO opted not to pursue the Complainant and pulled over and stopped briefly, before continuing on his way to the York Mills Road off-ramp where he came upon the collision between the Complainant’s motorcycle and the other motor vehicles involved. Neither the Complainant, nor any of the five CWs, observed the SO pursuing the Complainant prior to, or at the time of, the collision, with some estimating a gap in time of a minimum of five seconds and a maximum of one to two minutes after the collision, before the SO arrived on scene.

Pursuant to Ontario Regulation 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits:

s. 2(1) A police officer may pursue, or continue to pursue, a fleeing motor vehicle that fails to stop

1. If the police officer has reason to believe that a criminal offence has been committed or is about to be committed; or
2. For the purposes of motor vehicle identification or the identification of an individual in the vehicle

(2) Before initiating a suspect apprehension pursuit, a police officer shall determine that there are no alternatives available ….

(3) A police officer shall, before initiating a suspect apprehension pursuit, determine whether in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle or the need to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle outweighs the risk to public safety that may result from the pursuit.

(4) During a suspect apprehension pursuit, a police officer shall continually reassess the determination made under subsection (3) and shall discontinue the pursuit when the risk to public safety that may result from the pursuit outweighs the risk to public safety that may result if an individual in the fleeing motor vehicle is not immediately apprehended or if the fleeing motor vehicle or an individual in the fleeing motor vehicle is not identified.

The TPS Policy 15-10 Suspect Apprehension Pursuit, put in place pursuant to the Ontario Police Services Act legislation, reads as follows:

Responsibility for Safe Conduct

The responsibility for the safe conduct of a pursuit rests with the individual police officer, the Communications Operator – Communications Services, the pursuit supervisor and any other authorized person monitoring the pursuit.

On a review of the undisputed evidence, it is clear that the SO considered his obligations under the Ontario Police Services Act (OPSA) and the companion TPS legislation, and, having obtained the licence plate number of the Complainant’s motor vehicle, opted not to engage in a pursuit but rather pulled over and stopped his police cruiser. This is confirmed by each and every one of the CWs and by the Complainant himself, who openly conceded that the SO was no longer following him once he exited onto the off-ramp nor in the moments leading up to the collision.

I infer from the actions of the SO that he considered whether or not to engage in a vehicle pursuit in order to apprehend the Complainant for several HTA infractions, and in weighing the alternatives, he determined that the risk to public safety outweighed his need to immediately apprehend the Complainant; in doing so, the SO fully complied with both the OPSA and the companion TPS legislation.

Unfortunately, despite the SO’s well thought out consideration of his actions, the Complainant continued to drive in the ill-advised manner in which he had been driving at the time that he first came to the SO’s attention. As such, it was clearly the Complainant’s driving which was the direct cause of the collision between himself and the other two motor vehicles, resulting in his own injuries. I fully agree with the Complainant’s assessment that the accident was totally his fault and that the SO was not to blame, and I find that there is no evidence to establish a causal connection between the injuries suffered by the Complainant and the actions of the SO.

In fact, in reviewing the evidence in its entirety, it is clear that not only did the SO respond to the situation in full compliance with the Criminal Code, the HTA, the TPS Suspect Apprehension Pursuit policy and the OPSA, but he behaved at all times professionally, prudently and with good common sense. I cannot find any criticism of the SO’s actions and, as such, find that there is absolutely no basis here for the laying of criminal charges.

Date: April 20, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit