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 19-year-old man during a motor vehicle collision on March 30, 2017.

Notification of the SIU

On March 30, 2017, at 3:00 a.m., Toronto Police Service (TPS) notified the SIU of a vehicle injury that occurred just after midnight that morning.

TPS reported that at 12:15 a.m. on March 30, 2017, the Subject Officer (SO) tried to stop a vehicle on Scarborough Golf Club Road. The vehicle fled and the SO engaged in a short pursuit but discontinued.

The vehicle, driven by the Complainant, continued on and struck a taxi at Lawrence Avenue East. TPS reported that the driver of the taxi and a passenger in the taxi received minor injuries. The Complainant was taken to the hospital and diagnosed with a fractured left femur.

The team

Number of SIU Investigators assigned: 6

Number of SIU Forensic Investigators (FIS) assigned: 2

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, videography, sketches and measurements.

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

Additionally, the notes from 5 other non-designated officers were received and reviewed.

Subject officers

SO Interviewed, and notes received and reviewed.

Note: A subject officer is a police officer whose conduct appears, in the Director’s opinion, to have caused the death or serious injury under investigation.

Subject officers are invited, but cannot be legally compelled, to present themselves for an interview with the SIU and they do not have to submit their notes to the SIU pursuant to Ontario Regulation 267/10 of the Police Services Act.

Just after midnight on March 30, 2017, the Complainant was driving a black Infiniti with only one headlight illuminated and licence plates that did not match the vehicle. The SO initially observed the Complainant in the area of Kingston Road and Fenwood Heights. The SO did a U-turn and activated his emergency lights, intending to stop the vehicle.

The Complainant, however, immediately drove off at a high rate of speed along Kingston Road. The Complainant then turned onto Scarborough Golf Club Road and drove north, followed by the SO. Both the Complainant and the SO were travelling at speeds significantly in excess of the posted speed limits.

At the intersection of Scarborough Golf Club Road and Lawrence Avenue East, the Complainant drove through the intersection against a red light, and hit the front of a taxi that was driving eastbound on Lawrence Avenue East. The Complainant was arrested at the scene.

An ambulance was called and the Complainant was transported to the hospital where it was determined that he had sustained a fractured left femur.

The scene

Below is a Google Map of the area, including the intersection of Kingston Road and Fenwood Heights where the SO observed the black Infiniti travelling with only one headlight illuminated.

The collision occurred at the intersection of Scarborough Golf Club Road and Lawrence Avenue East, a distance of approximately 4.3 kilometres from Kingston Road and Fenwood Heights.

FIS Route Video

FIS investigators attended the area of Kingston Road and Fenwood Heights for the purpose of a route video.

The route video commenced at the intersection proceeding east on Kingston Road. Kingston Road had three marked lanes in each direction with a raised centre island. The posted speed limit was 60 km/h. Residences (apartment complexes and townhouse complexes) were located on both sides of the roadway. There were numerous smaller commercial businesses located on both sides of the roadway as well.

A total of four major intersections (controlled with traffic lights) were passed prior to the intersection with Scarborough Golf Club Road. These intersections were Bellamy Road South/Ravine Drive, Parkcrest Drive, Markham Road, and Eglinton Avenue East.

FIS investigators then proceeded left (northbound) on Scarborough Golf Club Road. The roadway was paved, narrow, hilly, and windy, with one lane in each direction. There were single family residences on both sides of the roadway. Scarborough Golf Club Road had a posted speed limit of 50 km/h. The roadway widened to two lanes in each direction prior to the intersection with Lawrence Avenue.

There was one major intersection along Scarborough Golf Club Road, with traffic signals, at Marcella Street prior to Lawrence Avenue. The route from Kingston Road and Fenwood Heights to Scarborough Golf Club Road and Lawrence Avenue East was 4.3 km in length.

SO Cruiser

The SO’s cruiser was examined at the scene. The emergency lights and siren were observed in proper working order and there was no damage to the cruiser which could be attributed to this incident.

Scene diagram

Physical evidence

Automated vehicle locator (AVL) data and the route

The Global Positioning Satellite (GPS) position of the cruiser being operated by the SO was captured within the cruiser and transmitted to a TPS server and recorded every 125 metres or 4 minutes. The speed displayed at each data point was the average speed of the cruiser since the previous data point (the speed displayed is not necessarily the speed of the cruiser at exactly the data point).

The AVL data showed the cruiser driving on Eglinton Avenue, Markham Road, and Kingston Road, prior to the SO observing the black Infiniti.

The data related to the actual time the SO was involved with the black Infiniti was copied and pasted into Google Earth and presented as follows:

The AVL data from the SO’s cruiser revealed that at 12:11:34 a.m., the cruiser was travelling westbound on Kingston Road approaching Fenwood Heights.

At the next data point (AVL data point 2) the cruiser was travelling eastbound on Kingston Road, east of Fenwood Heights and had accelerated to a rate of speed of 72 km/h. The cruiser then accelerated to 84 km/h (AVL data point 3), travelling eastbound on Kingston Road.

At 12:12:09 a.m., the cruiser had accelerated to a speed of 126 km/h (AVL data point 4) and it was approximately 85 metres west of the intersection of Bellamy Road South/Ravine Drive. The cruiser travelled through the intersection.

At 12:12:18 a.m., and approximately 50 metres east of the centre of the intersection, the cruiser was travelling at a speed of 137 km/h (AVL data point 5).

The cruiser was travelling at 129 km/h (AVL data point 6) as it passed a large apartment building at 3311 Kingston Road. It continued eastbound at speeds of 130 km/h (AVL data point 7), 142 km/h in the area of Parkcrest Drive (AVL data point 8), and 130 km/h (AVL data point 9), west of Markham Road. At the traffic light controlled intersection of Kingston Road and Markham Road, the cruiser travelled eastbound through the intersection at a rate of speed of approximately 130 km/h (AVL data point 10). East of Markham Road the cruiser continued at speeds of 134 km/h (AVL data point 11), 138 km/h (AVL data point 12), and 145 km/h (AVL data point 13).

As the cruiser approached the traffic light controlled intersection of Kingston Road and Eglinton Avenue, it was travelling eastbound at approximately 142 km/h (AVL data point 14). Just after the intersection, it was travelling at approximately 137 km/h, and, as it approached the traffic light controlled intersection of Kingston Road and Scarborough Golf Club Road, it was travelling at approximately 119 km/h (AVL data point 16).

The cruiser then travelled northbound on Scarborough Golf Club Road and accelerated to 64 km/h (AVL data point 17), and then 106 km/h (AVL data point 18). The cruiser continued northbound travelling at 87 km/h (AVL data point 19), 108 km/h (AVL data point 20), and 92 km/h (AVL data point 21).

In the area of Scarborough Golf Club Road and Confederation Drive, the cruiser accelerated to 113 km/h (AVL data point 22), and in the area of the traffic light controlled intersection of Marcella Street it was travelling 121 km/h (AVL data point 23). North of Marcella Street, the cruiser accelerated to 129 km/h (AVL data point 24).

At 12:14:08 a.m., in the area of Holmfirth Terrace, and within view of Lawrence Avenue East, the cruiser slowed to 106 km/h (AVL data point 25). At the next data point, the cruiser was through the intersection and almost stopped.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and received closed circuit television (CCTV) recordings from seven surrounding businesses and residences, a cell phone video taken by CW #4, as well as the in-car-camera system (ICCS) video recording from the SO’s cruiser.

ICCS recording from the SO’s cruiser

Three audio/video recordings were supplied to the SIU. Two of the recordings were relevant to the investigation.

On both recordings, the SO’s activation of the emergency lighting triggered the ICCS to commence recording 30 seconds of video prior to the activation of the switch by the SO. The first recording from the area of Kingston Road and Fenwood Heights included the approach of the black Infiniti from the opposite direction, the SO’s U-turn, the attempt by the SO to execute a traffic stop on the black Infiniti and the driver’s failure to pull over, and the black Infiniti accelerating away.

The second recording, apparently triggered when the SO activated his emergency lights to enter the intersection of Scarborough Golf Club Road and Lawrence Avenue East after the collision, included the approach of the black Infiniti to the intersection, the collision itself, the approach of the SO’s cruiser to the intersection, and the cruiser entering and travelling through the intersection after the collision.

It would appear from the analysis of the AVL data and the ICCS, that the time stamp on the ICCS may be about two seconds behind the AVL data.

Surveillance video from gas station[1]

This camera was located at the intersection of Kingston Road and Bellamy Road South/Ravine Drive. At 12:12:05 a.m., the black Infiniti was seen travelling eastbound. The cruiser was following. The cruiser was about 30 metres behind the black Infiniti with its emergency lights activated. The black Infiniti appeared to be travelling faster than the cruiser and they were both travelling faster than other eastbound vehicles. It was not possible to reliably determine the speed of either vehicle as they passed by the gas station based on the video.

Surveillance video from take-out restaurant[2]

This camera was in a plaza on the southwest corner of Scarborough Golf Club Road and Lawrence Avenue East. The camera was facing Scarborough Golf Club Road, just south of the intersection.

At 12:19:30 a.m., the black Infiniti was seen northbound on Scarborough Golf Club Road, passing the entrance driveway to the plaza, and entering the intersection on a red light. At about the same time, the taxi was seen travelling eastbound on Lawrence Avenue East just prior to the intersection, and then entering the intersection following an unknown vehicle.

At 12:19:32 a.m., the impact between the black Infiniti and the taxi was partially seen on the video.

At 12:19:34 a.m., about four seconds after the black Infiniti was seen northbound, the cruiser was seen approaching the intersection travelling northbound on Scarborough Golf Club Road. The cruiser did not have its flashing emergency lights activated.

At 12:19:42 a.m., the cruiser came to a stop on the south side of the intersection, six seconds after it passed the driveway, and about eight seconds after the black Infiniti entered the intersection.

Analysis for speed using take-out restaurant surveillance video

Using Google Maps, the distance from the entrance driveway to the plaza on the southwest corner of the intersection, and the area in the intersection where the collision impact occurred, was about 53 metres. The black Infiniti was observed to travel the 53 metres in about two seconds. Therefore the black Infiniti was travelling at about 95 km/h when it entered the intersection and collided with the taxi.

As it approached the intersection, the cruiser was travelling less than half of the speed of the black Infiniti. The SO braked and the cruiser stopped at the intersection prior to activating the emergency lights and proceeding through the intersection.

Surveillance video from retail store[3]

The store was located on the northeast corner of the intersection of Scarborough Golf Club Road and Lawrence Avenue East and the camera was at the front doors. The view was primarily of the parking lot with the view of the intersection of Lawrence Avenue East and Scarborough Golf Club Road in the extreme upper left of the screen. The cruiser arrived at the intersection about eight seconds after the black Infiniti.

Communications recordings

Police radio transmission recordings

At 12:12:54 a.m., the SO contacted the dispatcher on the police radio. He said, “I got a vehicle taking off on me. Not in pursuit.” He provided the licence plate and said they were going northbound on Scarborough Golf Club Road from Kingston Road. He described the vehicle as a dark Infiniti. The dispatcher asked the SO how many occupants were in the vehicle.

At 12:13:28 a.m., the SO said, “One,” then said, “Speeds are about 80 km/h. Like I said, not in pursuit, it’s well ahead, I mean, it’s going to be approaching Lawrence now.” He then asked, “Any return on the marker?”

At 12:13:58 a.m., the dispatcher advised the SO the licence plate number he provided was status “Unattached” and provided a name and address of the owner of the licence plate.

At 12:14:11 a.m., the SO advised the dispatcher there had been a collision.

Materials obtained from Police Service

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

• Communications recordings
• Computer Aided Dispatch (CAD) Unit History Report
• Event Details Report
• General Occurrence
• GPS AVL Data and Data Table
• ICCS video recordings from the SO’s cruiser
• Motor Vehicle Accident Report
• Notes of WO #1 and WO #2
• Notes of five non-designated officers
• Parade Sheet Report
• Procedure - Suspect Apprehension Pursuit
• Automated Dispatch System (ADS) Summary Sheet - Summary of Conversation, and
• TPS Fail to Stop Report

Section 62(1), Highway Traffic Act - Lamps required on all motor vehicles except motorcycles

62 (1) When on a highway at any time from one-half hour before sunset to one-half hour after sunrise and at any other time when, due to insufficient light or unfavourable atmospheric conditions, persons and vehicles on the highway are not clearly discernible at a distance of 150 metres or less, every motor vehicle other than a motorcycle shall carry three lighted lamps in a conspicuous position, one on each side of the front of the vehicle which shall display a white or amber light only, and one on the rear of the vehicle which shall display a red light only.

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

(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.

(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.

(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.

Sections 219 and 221, Criminal Code - Criminal negligence

219 (1) Every one is criminally negligent who

1. in doing anything, or
2. 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 an indictable offence and liable to imprisonment for a term not exceeding ten years.

Section 249, Criminal Code - Dangerous operation of motor vehicles, vessels and aircraft

(1) Every one commits an offence who operates

1. a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place…

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

On March 30^th, 2017, the Complainant was operating his motor vehicle without proper plates eastbound on Kingston Road in the City of Toronto when he came to the attention of the SO, who attempted to stop the vehicle. The Complainant did not stop his vehicle, but instead continued to drive, turning first onto Scarborough Golf Club Road and then continuing until the intersection of Lawrence Avenue East, where he entered the intersection against a red light and struck a taxi which was lawfully travelling through the intersection at the time. The Complainant was subsequently arrested and transported to hospital, where it was discovered that he had sustained a fractured left femur and also received sutures as a result of a cut to his forehead.

The Complainant, in his statement to investigators, acknowledged that the licence plates on the black Infiniti did not correspond to the vehicle. The Complainant, however, was of the view that he did nothing wrong during the incident, and denied travelling at speeds significantly over the speed limit. He did not recall seeing any traffic control signals or signs, such as red lights or stop signs, and did not recall disobeying any such traffic controls.

The SO advised that he was driving his fully marked cruiser westbound on Kingston Road on March 30^th, 2017, when at 12:11 a.m. he observed the motor vehicle being operated by the Complainant travelling eastbound on Kingston Road with a headlight out. The SO made a U-turn at the intersection with Fenwood Heights, in order to stop the Complainant for a Highway Traffic Act (HTA) infraction (s. 62 (1) Every motor vehicle shall carry three lighted lamps from one-half hour before sunset to one-half hour after sunrise …). The SO advised that he accelerated and came within 60 to 70 feet [18.29 to 21.34 metres] of the Complainant’s vehicle, but he was unable to make out the Complainant’s licence plates. The SO described the traffic conditions as light, and he estimated that the Complainant’s vehicle maintained a speed of between 65 to 70 km/h. The SO then activated his emergency lighting system, following which the Complainant’s vehicle immediately sped away. The SO advised that he firmly believed that the vehicle was trying to flee and he followed and matched its speed for a few seconds before turning off his emergency equipment and his ICCS and discontinuing his attempt to stop the vehicle. The SO advised that it was due to “muscle memory” that he automatically deactivated the ICCS recorder as soon as he deactivated his emergency lighting system, which I take to mean that he did so automatically, without thought to what he was doing. The SO estimated that he only pursued the vehicle for a couple of hundred metres.

The SO advised that once he went over the crest of Kingston Rd. at Whitecap Boulevard, the SO had a view down Kingston Road to Scarborough Golf Club Road, and he observed that the Complainant’s vehicle was moving at speeds surpassing 100 km/h in a 60 km/h zone. The SO advised that he matched the speed of the Complainant’s vehicle briefly in order to “give him the benefit of the doubt” and the opportunity to stop, but the vehicle accelerated further and he estimated that it reached speeds in excess of 160 km/h while increasing the distance between them.

The SO advised that he observed, from a distance, the Complainant’s vehicle go through the intersection at Markham and Kingston Roads. The SO himself was travelling at speeds from 90 to 100 km/h and reaching speeds of “well over 100 km/h”. The SO advised that he was comfortable driving at speeds of 110 or even 120 km/h due to his driving experience, his ability to maintain control of his police vehicle, and his experience as a police officer. The SO was confident in his ability to drive his cruiser at these speeds along Kingston Road. The SO advised there was very little traffic on the road at that time and he only observed possibly one motor vehicle travelling westbound. The SO advised that neither he nor the Complainant disobeyed any red traffic signals while driving on Kingston Road and he described his driving as “strategic following” rather than “strategic pursuing” as he did not have his emergency equipment activated. The SO described his own actions as merely observing the driving of the Complainant, indicating that as a police officer he was obligated to follow the vehicle to observe if the driver was “throwing a gun out the window, he might just have killed three people, he might have a whole bunch of drugs he’s trying to ditch out, he might be trying to find a driveway to ditch his car so he can get out and run from me. In my mind as a police officer, I need to see what he’s doing.”

With respect to the SO’s failure to notify the Communications Centre that he was involved in a pursuit, the SO’s response was that “This is nothing. I’m driving a car. He’s driving a car. That’s all we have at this point.” The SO advised that he had been in situations with more stress without telling the dispatcher anything and that, in this particular scenario, he had no safety concerns for the public because it did not occur during the day and there was nobody else around - the only risk was that which the Complainant chose to put himself in.

Once on Scarborough Golf Club Road, the SO caught up with the Complainant’s motor vehicle and came within 50 metres, allowing him to read the licence plate before the Complainant again accelerated heavily. It was at this time that the SO made his first radio transmission and provided the dispatcher with the licence plate number, advising that the vehicle had previously taken off from him and was now northbound on Scarborough Golf Club Road. The SO advised that he did not contact the dispatcher prior to this point because he did not have the licence plate number and he was busy watching the reactions of the Complainant’s vehicle. The SO advised that he considered pursuing the vehicle at this time, but instead maintained sight of the vehicle. The SO made note of one other vehicle on Scarborough Golf Club Road at this point. The SO advised that as he reached the four lane section of Scarborough Golf Club Road, he was still undecided as to whether or not to pursue the vehicle. The SO was then advised that the status of the licence plate on the Complainant’s vehicle was unattached. The SO advised that the black Infiniti was travelling at twice the speed of his own vehicle and it was creating distance between them and he described his own actions as a combination of disengaging and strategic following. Within another five seconds, he observed the Complainant’s vehicle approach the intersection of Lawrence Avenue East and Scarborough Golf Club Road against a red light and the SO remained back. This was the first point in time when the SO had any public safety concerns. He advised he was about 250 metres back from the intersection when the Complainant’s vehicle entered against the red light and struck the eastbound taxi cab driven by CW #1. The SO then activated his emergency equipment and turned on his ICCS.

The SO advised, in conclusion, that he at no time baited or engaged in a suspect apprehension pursuit with the Complainant’s motor vehicle and he reiterated that he had no public safety concerns prior to seeing the Complainant’s vehicle enter the intersection at Lawrence Avenue East against the red light.

WO #1 advised that he responded to the accident scene and spoke with the SO who advised him that he had observed the Complainant’s motor vehicle with a headlight out and he made a U-turn and followed the vehicle. The SO further advised WO #1 that when he activated his emergency lighting system, the Complainant’s vehicle took off and the SO did not pursue. WO #1 indicated that police officers are allowed to strategically follow a vehicle with their roof lights on, but that the SO did not mention that that was what he had done. Despite what he was told by the SO, WO #1 made a note in his memo book that this appears to have been a pursuit, although he differentiated between the original actions of the SO when he activated his emergency equipment and tried to pull the Complainant over, which WO #1 described as a pursuit, and the second leg, which involved the SO’s actions after he turned off his emergency lighting, which he described as strategic following because the SO had fallen back. WO #1 later spoke with the acting staff sergeant and advised him that there had been a pursuit. WO #1 also directed the SO to fill out an internal pursuit form.

Subsequent review of various commercial CCTV cameras along the route followed by the Complainant and the SO, as well as the ICCS recording (during the periods where it was activated) and the AVL data from the SO’s cruiser revealed the following salient facts:

The ICCS video in the SO’s cruiser was automatically activated when the SO activated his emergency lighting system both at the time that he initially attempted to pull over the Complainant’s vehicle and when he arrived at the collision scene. The SO manually disengaged the ICCS recorder at the time that he originally deactivated his emergency lighting system, therefore the remaining route from Kingston Road and Bellamy Road to Scarborough Golf Club Road and Lawrence Avenue East was not recorded;

From the time that the SO made a U-turn to attempt to stop the Complainant’s motor vehicle until he discontinued his initial pursuit, the SO covered a distance of 550 metres over a time period of 19 seconds, with his emergency lighting activated and reaching speeds of 137 km/h without ever notifying dispatch that he was in a vehicle pursuit;

After the SO deactivated his emergency lighting and began what he described as “following” the Complainant’s vehicle, but not pursuing, the SO’s cruiser attained speeds of up to 145 km/h;

The entire route from when the SO made his U-turn until the point of collision between the Complainant’s motor vehicle and the taxi cab covered 4.3 kilometres;

The CCTV video from the gas station at Kingston Road and Bellamy Road South/Ravine Drive showed the SO pursuing the Complainant’s vehicle with the distance between them being only 30 metres, the cruiser’s emergency lighting system was activated, and both vehicles were travelling at speeds greater than other vehicles who were also travelling eastbound;

The SO only slowed his vehicle when the intersection of Scarborough Golf Club Road and Lawrence Avenue East came into view, when he slowed to 106 km/h while approaching the intersection. Even so, the SO’s cruiser was seen to approach the intersection on the CCTV from the take-out restaurant only four seconds behind the Complainant’s motor vehicle. The cruiser did not have its emergency lighting equipment activated at that time;

While the CCTV from the take-out restaurant showed the SO’s cruiser braking prior to entering the intersection, the CCTV from the retail store showed that he actually entered the intersection only eight seconds after the Complainant’s motor vehicle.

Further investigation of the SO’s cruiser confirmed that at no time did his vehicle make actual physical contact with the Complainant’s vehicle.

In reviewing the SO’s statement, I find it rife with speculation, self-serving statements and justifications that have no basis in the facts. While the SO may have been confident, possibly overly so, in his ability to safely operate his motor vehicle at speeds reaching 145 km/h in a 60 km/h zone, and then at speeds as high as 130 km/h in a 50 km/h residential area, I have some difficulty accepting that the public would share his confidence. While the SO speculated that he needed to follow the Complainant’s vehicle for many and various serious possible criminal scenarios, including multiple homicides, none of which had any basis in reality, what he did, in fact, was pursue a motor vehicle at speeds of up to 145 km/h on city streets in residential areas for a minor infraction of the HTA involving a burnt out headlight. While it is extremely fortunate that no one other than the Complainant himself was seriously injured in the ensuing collision, and the Complainant is certainly responsible for his own actions and the subsequent collision, the potential here for tragedy far exceeded the need to either pursue or follow a motor vehicle for a minor HTA infraction.

Pursuant to Ontario Regulation 266/10 of the Ontario Police Services Act (OPSA) 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.

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

The TPS Policy put in place pursuant to the OPSA 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.

Suspect Apprehension Pursuit Restrictions

1. Only a police officer operating a marked motor vehicle may engage in and continue a pursuit, unless a marked motor vehicle is not readily available and the police officer believes it is necessary to immediately apprehend an individual in the fleeing motor vehicle or to identify the fleeing motor vehicle or an individual in the motor vehicle; …
2. No more than two motor vehicles should be directly engaged in a pursuit unless authorized by the pursuit supervisor

Where, as here, the officer initiating the pursuit never advised the Communications Operator as such, it of course cuts out the involvement of “the Communications Operator, the pursuit supervisor, and any other authorized person monitoring the pursuit”, since it is clear that no one was aware that a pursuit was taking place.

The SO observed a motor vehicle with a burnt out headlight and made a U-turn to follow and initiate a traffic stop. At no time did he have any grounds to believe that a criminal offence had been committed - he was dealing with an equipment infraction under the HTA. In considering the obligations imposed on a police officer to assess the risk to public safety, it is difficult to perceive how operating a motor vehicle with a burnt out headlight could be deemed to be a situation that required an “immediate need to apprehend an individual”.

While assessing the actions of the SO, I will adopt the approach of WO #1 when he separated the sequence of events into two separate categories: that being the SO’s actions following his U-turn when he activated his emergency lighting equipment and followed the Complainant’s vehicle for 550 metres and a period of 19 seconds, which I will refer to as the first leg of the event, and the period after the SO deactivated his emergency lighting equipment until the collision in the intersection of Scarborough Golf Club Road and Lawrence Avenue East, which I will refer to as the second leg of the event.

While the SO, in relating the details of the incident leading to the collision of the Complainant’s motor vehicle to WO #1, advised that he was never in a pursuit, either during the first leg or the second leg, I have absolutely no difficulty in accepting WO #1’s assessment that, at the very least, the first leg of the event was an active police pursuit and triggered the obligations pursuant to both the OPSA and the companion TPS policy which required the SO to notify the dispatcher immediately that he was engaged in a pursuit in order that the Communications Supervisor could determine whether or not the pursuit should be terminated. While the first leg of the event consisted of a pursuit which lasted some 19 seconds and reached speeds of as high as 137 km/h, there is no question that the SO had ample opportunity to call in to the dispatcher, as was his obligation. Semantics aside, there can be no confusion that a cruiser travelling at that rate of speed following a motor vehicle, while its emergency lighting equipment is activated, is clearly in a pursuit. The SO had an obligation to report to the dispatcher that he was engaged in a pursuit as soon as it was initiated, and to say that he was simply following at a speed of 137 kilometres per hour is to distort the meaning of the legislation. The SO had every opportunity to advise dispatch when he was pursuing the Complainant’s vehicle for the 19 seconds that he had his emergency equipment activated and thereafter when he travelled the remainder of the 4.3 kms until the scene of the impact. But the SO did not make his initial contact with dispatch until he was already on Scarborough Golf Club Road, after having attained speeds up to 145 km/h and having travelled through a number of major intersections, and only then to advise that a vehicle was taking off on him and that he was not in pursuit.

I cannot accept that any reasonable person would believe that issuing an HTA ticket for a burnt out headlight would have outweighed the risk to public safety of continuing to pursue a motor vehicle at the speeds which the SO did, especially in light of the fact that the offence for which the SO initially indicated he wished to initiate a traffic stop was insignificant, compared to the speeds reached by both the Complainant and the SO during the pursuit.

The words “strategically following” or “I am not attempting to stop” are not magical words that somehow transform what is obviously a pursuit into something else which somehow avoids the obligations on police pursuant to the OPSA legislation. Pursuant to this legislation, “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”. On this evidence it is clear, at the very least, that the first leg of the event was an active police pursuit as defined in the legislation and the SO breached his obligations to report. Once the Complainant accelerated away and the SO accelerated to follow, he should have notified the dispatcher that he was in fact in pursuit and that he had attained speeds in the range of up to 137 km/h on city streets in a residential area, in order that the Communication Sergeant would have been in a position to make the decision as to whether or not the pursuit should have been terminated. In failing to do so, the SO undermined the entire legislation and the public safety which it is meant to protect.

With respect to the second leg of the event, although the SO claimed that he never pursued the vehicle at any time during either leg, and after the first 19 seconds he deactivated his emergency equipment, I can see no reason to follow/chase a vehicle at 145 km/h for any other purpose than to attempt to stop it. The SO’s transmission to the dispatcher not only should have occurred much earlier, when he was still in the first leg of the event and was speeding after the Complainant’s motor vehicle with his emergency equipment activated, but it should have included that he was in active pursuit as soon as the Complainant’s motor vehicle sped off and the SO accelerated to speeds upwards of 137 km/h and, after he deactivated his emergency equipment, reaching speeds of up to 145 km/h. To say, as the SO did in his statement, that he has been in more stressful situations in the past without telling the dispatcher anything, and that “This is nothing. I’m driving a car. He’s driving a car. That’s all we have here at this point” reveals a fundamental lack of understanding on the SO’s part of the OPSA legislation and a failure to appreciate his obligations pursuant to that legislation to ensure and safeguard public safety. This is especially so in light of the SO’s comment that if the AVL data indicated that his cruiser was travelling at speeds of 135 to 140 km/h, then the Complainant’s vehicle would have been travelling between 180 to 190 km/h - hardly “nothing”. I have further concerns with respect to the SO’s comments that he had no safety concerns during the pursuit as it was nighttime, and there was no risk to the public as there was no one around. The assumption that there would be no pedestrians or vehicular traffic in a major metropolitan city at midnight seems to me to be extremely uninformed, and is in fact contradicted not only by the presence of the taxi cab that the Complainant struck, but by the presence of other eastbound traffic on Kingston Road as depicted in the CCTV video from the gas station, and the presence of the other motor vehicle at the collision scene.

Furthermore, I have grave concerns with respect to the various discrepancies between the evidence of the SO and that of the video evidence. According to the SO, he did not notify the dispatcher of the fact that a vehicle had sped off from him because he did not yet have the licence plate number, which he was only first able to read when he was on Scarborough Golf Club Road and he closed the gap to within 50 metres of the Complainant’s vehicle, allowing him the first opportunity to read the plate. However, the CCTV from the gas station on Kingston Road revealed that the SO’s cruiser was only some 30 metres behind the Complainant’s motor vehicle as early as Bellamy Road/Ravine Drive, which was a much better lit area than was the area on Scarborough Golf Club Road which the SO described as dark, hilly, and windy in the area where he finally came to within 50 metres of the Complainant’s vehicle and was able to discern his licence plate number.[4] This is of particular significance since, if the SO was that close behind the Complainant’s motor vehicle as early as Bellamy Road and Kingston Road, he would have had no need to pursue the Complainant’s motor vehicle for a non-criminal offence, since he should have clearly made out the licence plate of the vehicle and, pursuant to the legislation, he would then have been duty-bound to discontinue his pursuit.

Regardless, while the identification of the other motor vehicle was a consideration as to whether or not the SO should continue his pursuit, it had no relevance to his obligations to contact the Communications Centre and advise that he was actively engaged in a pursuit. I also have concerns as to the SO’s failure to activate his ICCS video, except when it was automatically engaged when he activated his emergency lighting equipment, despite the fact that he was “following” a vehicle at 145 km/h; as well as the fact that he manually deactivated the ICCS camera when he turned off his emergency equipment.

Finally, I find that the CCTV from the take-out restaurant, which revealed the SO only four seconds behind the Complainant as he was approaching the intersection of Scarborough Golf Club Road and Lawrence Avenue East, does not support the SO’s contention that he had allowed the gap between himself and the Complainant’s motor vehicle to increase, and as such was “strategically following” and not in an active pursuit.

On all of the evidence, and relying heavily on the statement of the SO himself, I have no difficulty in finding that the SO was actively engaged in a pursuit both during the first leg of the event, and continuing on into the second leg, and almost up to the point of the impact between the Complainant’s vehicle and the taxi cab. I also find that the SO failed not only in his obligations to notify the dispatcher and keep him/her advised as to the details of the pursuit, his location, and the speeds at which he was travelling, but he failed in his obligation to assess the public safety factor and to discontinue any pursuit on the basis that the need to identify the driver of a motor vehicle with a burnt out headlight did not outweigh the risk to the public of engaging in a pursuit on city streets in a residential area at speeds up to 145 km/h.

Having said all of that, however, a failure to comply with the OPSA, and the companion TPS policy, does not equate with reasonable grounds to believe that a criminal offence has been committed.

The question to be determined is whether or not in all the circumstances there are reasonable grounds to believe that the SO committed a criminal offence, specifically, whether or not his driving rose to the level of being dangerous and therefore in contravention of s.249(1) of the Criminal Code and did thereby cause bodily harm contrary to s.249(3), or if he was criminally negligent contrary to s.219 of the Criminal Code and did thereby cause bodily harm contrary to s.221.

Pursuant to the Supreme Court of Canada in R. v. Beatty, [2008] 1 S.C.R. 49, s.249 requires that “the driving be dangerous to the public, having regard to all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that, at the time, is or might reasonably be expected to be at that place” and the driving must be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”; while the offence under s.221 requires “a marked and substantial departure from the standard of a reasonable driver in circumstances” where the accused “showed a reckless disregard for the lives and safety of others” (R. v. Sharp (1984), 12 C.C.C. (3d) 426 (Ont. C.A.).

On a review of all of the evidence, it is clear that the SO was likely travelling at a rate of speed up to 95 km/h in excess of the speed limit when he pursued the Complainant’s motor vehicle. I find, however, that there is no evidence that the SO’s driving specifically created a danger to other users of the roadway or that at any time he interfered with other traffic. Additionally, on the night in question, the environmental conditions were good and the roads were dry. Moreover, other than his speeding, the SO did not contravene any other HTA provisions; for instance, he did not go through red lights or stop signs. That being said, the officer’s excessive rate of speed in his pursuit of the Complainant’s motor vehicle, however, appeared to exacerbate the Complainant’s pattern of driving, apparently causing him to accelerate to ever greater speeds to avoid the SO. Ultimately, however, I find that the Complainant unfortunately chose to try to outrun police and in doing so, he fled at a dangerous rate of speed with no regard for other people using the roadways. The Complainant ultimately chose to enter into an intersection against a red traffic signal, and caused a collision with a motor vehicle that was lawfully in that intersection, resulting in the injuries suffered by the Complainant, all in an effort to make good on his escape and avoid a ticket for having a burnt out headlight contrary to the HTA.[5]

I find on this evidence that the driving of the SO, though certainly not advisable, does not rise to the level of driving required to constitute “a marked departure from the norm” and even less so “a marked and substantial departure from the norm” and I am unable to establish that there was a causal connection between the actions of the SO and the motor vehicle collision that caused the Complainant’s injuries. As such, I find that there is insufficient evidence to form reasonable grounds to believe that a criminal offence has been committed and no basis for proceeding with charges in this case.

Date: January 19, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Time stamp was slightly off. [Back to text]
• 2) [2] Time appeared to be five to six minutes ahead of Eastern Standard Time (EST). [Back to text]
• 3) [3] Time appeared to be five to six minutes ahead of EST. [Back to text]
• 4) [4] Also, interestingly enough the SO indicated that just before he pursued the Complainant near Fenwood Heights and Kingston Road, he got within 60-70 feet [18.29 to 21.34 metres] of the black vehicle and could not make out the licence plate despite better lighting along Kingston Road, and a shorter distance than he had been able to achieve on Scarborough Golf Club Road. [Back to text]
• 5) [5] Given the fact that this was the first red light that the Complainant went through, the SO cannot be expected to anticipate that the Complainant would necessarily have gone through the intersection and put everyone at risk of serious bodily harm just because he was being followed by the police. If he had gone through a red light on a previous occasion during the pursuit, I would probably have come to a different decision. [Back to text]