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 injuries sustained by a 52-year-old man on October 14, 2017 when he was struck by a police cruiser door.

Notification of the SIU

On October 14, 2017, at 1:25 p.m., Toronto Police Service (TPS) called the SIU to report a vehicle injury.

TPS reported that at approximately 10:00 a.m., the Subject Officer (the SO) and Witness Officer (WO) #1 responded to the Leaside Bridge on Overlea Boulevard, just west of Don Mills Road, for a report of a person who had jumped from the bridge.

Upon arrival, the officers parked so that their vehicle was not obstructing the bike lane. As the SO was opening his door on the passenger side, a cyclist, the Complainant, collided with the door. The Complainant was taken to the hospital and diagnosed with two fractured ribs.

The SO and WO #1 went to a TPS division, while TPS Traffic Services officers went to record the scene and remained until SIU arrival.

The team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators (FIs) assigned: 2

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

Complainant

52-year-old male interviewed, medical records not obtained

Civilian witnesses

CW Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

Subject officers

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

During the morning of October 14, 2017, the Complainant was riding his bicycle across the Leaside Bridge, traveling in a southbound direction in a designated bike lane. A TPS cruiser was parked in the southbound lane, just slightly over the line into the designated bike lane. WO #1 was outside the cruiser on the sidewalk, speaking with the CW about a person jumping off the bridge. The SO was inside the cruiser.

As the Complainant started to pass the cruiser, the SO unexpectedly opened the passenger door. The Complainant collided with the cruiser’s door and fell to the ground.

An ambulance was called and the Complainant was taken to the hospital. He was diagnosed with fractures of ribs #1, #2 and #3 near his left shoulder, and to ribs #C7 on the left side of his spinal column.

The scene

On October 14, 2017, at 4:05 p.m., SIU FIs arrived on scene on the Leaside Bridge. A marked TPS cruiser was parked facing south just inside of the marked bicycle lane on the west side of the roadway by 10 centimetres. The bicycle lane was measured and its width was determined to be 1.52 metres. The west sidewalk was measured and its width was determined to be 1.80 metres wide. The cruiser was parked with its front passenger side tire 1.43 metres away from the west curb.

The bicycle was photographed in situ and then the bicycle was placed juxtaposed against the cruiser and re-photographed, showing the relative heights and damage to the cruiser and bicycle, which matched perfectly, as seen below.

At 5:05 p.m., the scene and the cruiser were released to the TPS.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

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

• Notes of WO #1 and WO #2

Section 165(1), Highway Traffic Act - Opening of doors of motor vehicles

165 (1) No person shall,

1. open the door of a motor vehicle on a highway without first taking due precautions to ensure that his or her act will not interfere with the movement of or endanger any other person or vehicle; or
2. leave a door of a motor vehicle on a highway open on the side of the vehicle available to moving traffic for a period of time longer than is necessary to load or unload passengers.

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.

On October 14^th, 2017 at approximately 9:58 a.m., the SO and WO #1 responded to the area of the Leaside Bridge on Overlea Boulevard in the City of Toronto in response to a person having jumped from the bridge. WO #1 was operating the police cruiser and parked his vehicle facing southbound just inside of the marked bicycle lane on the west side of the roadway; later examination at the scene discovered that the cruiser’s tires were inside of the marked bicycle lane by 10 centimetres. WO #1 then exited the cruiser in order to speak with a witness on the sidewalk, while the SO remained inside the vehicle in the passenger seat updating the Mobile Data Terminal. WO #1, in his statement, advised that he intentionally parked his cruiser in order not to obstruct bicycle traffic in the marked bicycle lane.

The Complainant was also in the area at the time, riding his bicycle, when he came upon the marked police cruiser parked in the right most lane of travel on the Leaside Bridge. As the Complainant approached the police cruiser, however, the front passenger door swung open directly into his path; the Complainant collided with the cruiser’s door, was thrown off of his bicycle, and landed on the sidewalk. The Complainant was then transported by ambulance to hospital, where he was diagnosed with fractures to ribs numbered 1, 2 and 3 as well as rib C7 on the left side of his spinal column.

While the SO declined to make himself available to investigators for an interview, as was his legal right, based on the evidence of the CW, the Complainant, and WO #1, there is no dispute as to what occurred.

Pursuant to section 165 of the Ontario Highway Traffic Act (HTA), the onus is on the party exiting a motor vehicle to ensure that the opening of his or her door will not interfere with the movement of any other person or vehicle, nor will it endanger any other person or vehicle. In this particular circumstance, it is clear that the SO was at fault in that he opened his door without first ensuring that he was not endangering or interfering with any persons who were travelling in the clearly marked bicycle lane; specifically, his actions in opening his door without first taking precautions to ensure that the way was clear interfered with the movement of the Complainant on his bicycle and endangered the Complainant and his bicycle. On the evidence of all three of the witnesses, there is no question that the SO was at fault and that he directly caused the collision with the Complainant which led to his injuries, because he failed to take the necessary precautions as required under s.165 of the HTA.

That, however, does not end the matter. The question remains whether or not the actions of the SO not only contravened s. 165 of the HTA, but whether or not they rose to the level required to make out an offence of Criminal Negligence, contrary to s. 219 of the Criminal Code, and did thereby cause bodily harm to the Complainant, contrary to s. 221 of the Criminal Code.

The Ontario Court of Appeal in its decision in R. v. Sharp (1984), 12 C.C.C. (3d) 426 (Ont. C.A.), indicated that in order to satisfy the essential elements of s.219, the actions in question must meet the test of being “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.” While the decision in R. v. Sharp related specifically to acts of driving, the definition has been applied to any actions wherein a person acted in such a way as to exhibit a marked or substantial departure from the standard of care required in the circumstances.

On all of the evidence, it is clear that I have reasonable grounds to believe that the SO, immediately prior to the collision between his car door and the bicycle and person of the Complainant, did not take the necessary precautions when he opened his door into bicycle traffic and thereby caused the injuries to the Complainant. At most, however, it can be said that the SO showed a momentary lack of attention or he was careless in opening his door without first ensuring that the way was clear and that he therein contravened the provisions of s.165 of the HTA. Generally, where a HTA offence completely encompasses the actions complained of, the actions will not generally attract Criminal Code sanctions without something more; either a combination of one or more infractions of the HTA, or actions so egregious that they go beyond the HTA into the realm of criminal sanctions. In this case, there is no evidence that the SO’s actions were such that they would constitute “a marked and substantial departure from the norm” nor is there any evidence that he exhibited “a reckless disregard for the lives and safety of others”. As indicated above, a breach of the HTA does not, in and of itself, rise to the level required to make out a criminal offence without something more, and while the SO may have been responsible for the collision and the Complainant’s subsequent serious injuries, I cannot find reasonable grounds to believe that any criminal offence was committed here. With respect to a charge under the HTA, that is not within my mandate and I will leave that to the Chief of the Toronto Police Service to pursue such a charge if he deems it appropriate.

Date: June 8, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit