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 death of a 35-year-old man on January 17, 2017 after being stopped by an officer investigating a theft.

Notification of the SIU

On January 17, 2017 at 6:45 p.m., the Durham Regional Police Service (DRPS) notified the SIU of the vehicle death of the Complainant.

DRPS reported that on Tuesday, January 17, 2017, at 5:20 p.m., DRPS received a call for a theft from a Home Depot in Oshawa. A description of a suspect vehicle was broadcast and at 6:00 p.m., a DRPS officer [now known to be the Subject Officer (SO)] stopped the vehicle on northbound Highway 35/115 north of Taunton Rd. One of the occupants [it was unknown at the time of intake if it was the driver or passenger but now known to be the passenger] exited the vehicle and fled on foot. The male [now known to be the Complainant] tried to run across the southbound lanes and was struck by a southbound vehicle. The male was deceased and still at the scene.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

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, sketches and measurements. The Forensic Investigators (FI) attended and recorded the post-mortem examination and assisted in making submissions to the Centre of Forensic Sciences (CFS).

Complainant

35-year-old male, deceased

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.

During the early evening hours of January 17, 2017, the Durham Regional Police Service (DRPS) received a 911 call regarding a theft at a Home Depot in Oshawa. The caller provided a description of the suspect and description of the Honda getaway vehicle, complete with licence plate. The information was broadcast to the DRPS officers on duty at the time.

The SO, driving a fully marked DRPS cruiser, responded to the call, and located the Honda driving eastbound on Taunton Road near the junction of Highway 35/115. The SO made a U-turn and followed after the Honda. The Honda entered the ramp to access the northbound lanes of Hwy 35/115, with the SO’s cruiser behind it.

As the SO and the Honda reached the end of the acceleration lane, the SO activated his emergency lights, and the Honda pulled over and stopped on the paved shoulder on the east side of the highway. The SO approached the driver’s side of the Honda. CW #5 was the driver and the Complainant was the passenger. CW #5 opened the door, and on the floor next to the driver’s seat was a metal pipe. The SO ordered CW #5 to remove the keys from the ignition, place them on the dash, raise his hands and exit the Honda, which CW #5 did.

As CW #5 was being handcuffed, the Complainant exited the Honda and ran east into the ditch. The SO ran after the Complainant. In an effort to stop the Complainant, the SO drew his Conducted Energy Weapon (CEW) as he ran. The Complainant climbed over a fence bordering the highway and ran north along the fence line. The Complainant then jumped back over the fence and ran towards the highway and the Honda. The SO discharged his CEW at the Complainant, but the CEW probes did not penetrate the Complainant’s winter coat and had no effect.

The Complainant then ran west across the two northbound lanes of Highway 35/115, and jumped over the concrete median in the centre of the highway and ran into the southbound lanes. Almost immediately the Complainant was struck by a Toyota pick-up truck being driven by CW #2. CW #2 stopped his truck and he and CW #1 exited their vehicle. Their pick-up truck was then struck by CW #3.

The SO located the Complainant’s body in the west ditch along the highway. The Complainant was pronounced dead at the scene.

The scene

The scene was Highway 35/115 north of the Taunton Road exit ramp. This area of the highway consisted of two lanes northbound and two lanes southbound separated by a concrete Jersey barrier. There were paved shoulders on either side of the highway. The roadway was straight and was inclined in an uphill direction from south to north. There was a fence line 9.95 metres to the east of the northbound paved shoulder.

At the time of arrival, the highway was closed in both directions and the Ontario Provincial Police (OPP) were securing the scene. The roads were wet and it was raining and windy. The temperature was approximately 1° - 2° C.

The involved vehicles

There were a total of four motor vehicles within the secured area. Vehicle 1 was a black Honda. This vehicle was parked on the east shoulder of Highway 35/115 facing in a northerly direction. There was no apparent fresh damage to this vehicle. There were two red boxes (Milwaukee Tools) and a piece of black luggage in the back seat.

Vehicle 2 was a fully marked DRPS cruiser. It was a white Ford Police Interceptor. The police cruiser was parked on the east shoulder of Highway 35/115 and was also facing in a northerly direction. This vehicle was immediately behind Vehicle 1 and had its emergency light bar activated. There was no apparent fresh damage to this vehicle.

Vehicle 3 was located approximately 200 metres south of Vehicles 1 and 2. It was a black Toyota pick-up truck. This vehicle was located on Highway 35/115 straddling the southbound lanes one and two, on the travelled paved portion of the highway. It was facing in a southerly direction. Damage to this motor vehicle included substantial front end and driver’s door damage[1].

Vehicle 4 at the scene became involved after the collision between Vehicle 3 and the Complainant. It was several metres south of Vehicle 3. It was a white Ford pick-up truck. Damage to this motor vehicle was as a result of striking Vehicle 3, after the Complainant had been struck. The damage included the front end, front passenger quarter panel and mirror[2]. While this vehicle was involved with the overall scene being investigated by the OPP, it was not involved with the Complainant and was therefore not included in any of the scene mappings.

Items seized

The east ditch immediately to the east of Vehicles 1 and 2 was examined. A number of items were located, photographed and collected by FI investigators. The items included:

1. A section of CEW wire
2. A CEW section of a barn door
3. A CEW probe and wire
4. A scarf
5. A CEW cartridge
6. Yellow CEW anti-felon identification (AFID) tags
7. Two CEW components (green plastic), and
8. A CEW wire

The complainant

The Complainant was located in the west ditch approximately 50 metres south of Vehicles 1 and 2 and 6.98 metres west of the paved shoulder of the southbound lanes. The Complainant was clothed. His lower left leg had obvious signs of trauma. He was subsequently removed from the scene and taken to the Coroners Building in Toronto.

Scene diagram

Physical evidence

CEW download

On January 17, 2017 at 5:47:07 p.m., the SO pulled the trigger of his CEW which discharged the selected cartridge and deployed the probes at or near the Complainant. The trigger pull lasted for three seconds. According to the download, the CEW was not deployed a second time.

Forensic evidence

The presence of morphine (and/or heroin), fentanyl, cocaine and benzoylecgonine and dextromethorphan was found in the Complainant’s mixed heart blood and/or urine by the CFS.

Expert evidence

On January 18, 2017, at 11:00 a.m., the forensic pathologist began her autopsy on the Complainant. At 1:35 p.m., the forensic pathologist advised that the Complainant’s preliminary cause of death was due to multiple blunt impact trauma. This was confirmed by the final Report of Postmorten Examination received by the SIU on December 13, 2017.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence.

Closed Circuit Television (CCTV) security cameras

Investigators received CCTV footage from the Esso gas station at 6065 Highway 35/115, Orno Ontario. The premises had two sets of cameras; one set was inside the premise or attached to the walls outside the premise. The second set of cameras was on the gas pumps.

Two of the cameras on the gas pumps also showed traffic travelling north and south on Highway 35/115.

A review of the CCTV footage showed the camera view was very dark showing only headlights or taillights and no make or model of the passing vehicles.

On January 17, 2017, Camera 3 captured northbound traffic as it passed by the gas station. At 5:35:40 p.m. [3], two northbound vehicles passed through the camera view and the second vehicle had its emergency roof lights activated. The view was very dark and no make or model of the vehicles was discernable. The two vehicles traveled outside the view of the camera, but the police cruiser appeared to come to a stop just beyond the view of the camera because the emergency lights were visible as they reflected off of passing trucks.

Camera 2 showed two vehicles passing northbound at 5:35:40 p.m., but no emergency lights were visible. It appears as if the emergency lights were activated as the camera view switches from camera 2 to camera 3.

At 5:37:16 p.m., Camera 3 also captured the headlights of a south bound vehicle[4]. This vehicle slowly came to rest with its four-way flashers activated. No make or model was discernable in the video. Cars were passing this stopped vehicle on both the right and left side.

At 5:41:35 p.m., a second police cruiser with its emergency lights active was seen entering the camera view, then moving northbound out of the view of the camera. Camera 2 also shows this vehicle northbound.

At 5:45:55 p.m., a third police cruiser with its emergency lights entered the camera view and then moved northbound out of the view of Camera 3. Camera 2 also shows this vehicle northbound.

At 5:48:20 p.m., an emergency vehicle with flashing lights was visible entering the camera view and then it moved northbound out of the view of the camera. It is unknown if this is a police or an emergency medical service vehicle. Camera 2 also shows this vehicle northbound.

It appeared southbound traffic on Highway 35/115 was stopped at approximately 5:46 p.m., and northbound traffic was stopped at 5:49 p.m.

DRPS also provided CCTV footage and still photographs from the Home Depot where the original 911 call originated.

Communications recordings

The Communications Recordings provided by DRPS were made on January 17, 2017 from 5:20:44 p.m., to 8:26:25 p.m., and revealed the following:

• At 5:20:44 p.m., an employee with Home Depot called 911 to report a theft. The employee provided a licence plate of the suspect vehicle and a description of a suspect
• At 5:23:25 p.m., the DRPS dispatcher transmitted a general broadcast over the police radio regarding the theft from Home Depot. The dispatcher provided a description of a suspect and the suspect vehicle
• At 5:40:41 p.m., a DRPS unit advised the dispatcher that the driver of the suspect vehicle [now known to be CW #5] was the son of the registered owner of the vehicle
• At 5:46:21 p.m., the SO reported to the dispatcher that the suspect vehicle was northbound on Highway 35/115 at Taunton Road
• At 5:46:46 p.m., the SO notified the dispatcher that he had the suspect vehicle pulled over 500 metres north of Taunton Road
• At 5:47:29 p.m., the SO reported to the dispatcher that he had two persons in custody
• At 5:48:08 p.m., the SO advised the dispatcher that one of the two men [now determined to be the Complainant] had fled on foot, crossed Highway 35/115 and was struck by a vehicle
• At 5:49:05 p.m., the SO notified the dispatcher that he needed the northbound lanes on Highway 35/115 shut down
• At 5:51:38 p.m., the SO reported to the dispatcher that he was with the subject vehicle [the vehicle that struck the Complainant] and traffic was not slowing down. He also indicated he was unable to locate the Complainant
• At 5:51:59 p.m., the SO advised the dispatcher that the driver of the suspect vehicle [CW #5] was under arrest and in the back seat of his police cruiser. Furthermore, the Complainant was struck by a passing vehicle in the southbound lanes of Highway 35/115, and
• At 5:57:35 p.m., a DRPS unit reported to the dispatcher that the SO was at his cruiser and that the Complainant was nine-two-nine [deceased]

Materials obtained from Police Service

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

• Communications recordings
• CEW Maintenance Record
• Detailed Call Summary
• DRPS Fingerprint Card
• DRPS Scenes of Crime Officer photos and Home Depot CCTV and stills
• General Occurrence Report
• Global Positioning System (GPS) Automatic Vehicle Location (AVL) - Speed Enforcement Query
• Notes of WO #1, WO #2 and WO #5
• Procedure - Police Vehicle Operations
• Taser X26 Download Information, and
• Training Records – the SO

On January 17, 2017 at 5:20:44 p.m., a 911 call was received by the DRPS from an employee of the Home Depot at Harmony and Taunton Roads in the City of Oshawa reporting a theft from their premises of a substantial amount of merchandise. The caller provided a description of the person who purportedly stole the property and the licence plate of the vehicle in which he fled. As a result of that call, a general broadcast went out over the police radio setting out the information provided in the 911 call. A computer check of the licence plate revealed that it was registered to the father of CW #5, who resided in an area to the north-east of Oshawa.

The SO, hearing the broadcast, calculated that in all likelihood the vehicle would travel eastbound on Taunton Road in order to return to the vicinity of the registered owner’s address and attended to that area in his search for the vehicle. The SO was driving westbound in the area of Taunton Road at the junction with the 35/115 Highway, when he observed the suspect vehicle, a black Honda, driving eastbound on Taunton Road; the SO turned and followed the vehicle as it accessed the on ramp to the northbound lanes of Highway 35/115. At 5:46:21 p.m., the communication recording confirmed that the SO advised the dispatcher that the suspect vehicle was now northbound on Highway 35/115 at Taunton Road.

The SO activated his roof lights and observed the Honda pull over and stop on the paved shoulder on the east side of the highway. At 5:46:46 p.m., the communication recording confirmed that the SO reported he had the suspect vehicle pulled over 500 metres north of Taunton Road.

The SO advised that as he followed the Honda to the end of the acceleration lane, he activated his emergency roof lights and the Honda pulled over and stopped; the SO stopped his police cruiser approximately 30 feet [9.14 metres] behind the Honda and, with his emergency lights still active, he turned on his police cruiser’s spot light and focused it on the Honda ahead. The SO advised that although the night was very dark, the area immediately in front of his vehicle was well illuminated due to the lighting from his vehicle. The SO approached the Honda and observed that the driver, CW #5, was opening his door and the SO saw a length of metal pipe lying on the floor next to the drivers’ seat. The SO immediately yelled at CW #5 to show his hands, and CW #5 did so; he then asked CW #5 to remove the car keys, and he again complied. At 5:47:29 p.m., the communications recording confirmed that the SO reported that he had two persons in custody.

CW #5 exited the vehicle, following which the SO began to apply the handcuffs. At that point, the Complainant exited the passenger side of the car and ran towards a farmer’s field beside the highway. The SO advised that he drew his CEW as he ran into the ditch after the Complainant, and observed the Complainant to climb over a four foot [1.22 metre] fence bordering the highway. The SO flung himself over the fence and landed on his back.

The SO advised that he observed the Complainant jump back over the fence and run toward the highway and the Honda; the SO advised that he did not want the Complainant to reach either the Honda or the police cruiser, so he discharged his CEW at the Complainant while the Complainant was approximately 15 feet [4.57 metres] ahead of him, but the CEW probes did not penetrate the Complainant’s coat and the deployment was ineffective. The SO yelled at the Complainant to stop and saw him raise his arms in the air and say “Okay, okay” as if in surrender, but he did not slow his pace. The CEW data download confirmed the evidence of the SO in that it revealed that the CEW was only deployed once, at 5:47:07 p.m., and not twice,[5] and that the attempted deployment lasted no more than three seconds.

The SO advised that he observed the Complainant enter the driver’s seat of the Honda, from which the SO had retained the keys, and as soon as the SO reached the front passenger fender of the vehicle, the Complainant exited the vehicle and ran directly west across the two northbound lanes of Highway 35/115. The SO observed the Complainant hurdle over the concrete median in the centre of the highway, take two running steps into the southbound lanes and was almost immediately struck by a pick-up truck; the SO saw the Complainant thrown high into the air and then disappear from view. At 5:48:08 p.m., the communication recording confirmed that the SO reported that one of the two men had fled on foot, crossed Highway 35/115 and was struck by a vehicle.

Witnesses confirmed that the SO was nowhere near the Complainant when he was struck by the Toyota.

The SO walked along the west shoulder looking for the Complainant and eventually located him in the west ditch; it was clear to the SO that the Complainant could not have survived the impact. At 7:41 p.m., the Complainant was pronounced dead at the scene. A post-mortem report confirmed the Complainant’s cause of death as multiple blunt impact trauma.[6]

CW #1 and CW #2 were in the pick-up truck that struck the Complainant, and CW #3 was driving a white pick-up truck that struck CW #1 and CW #2’s vehicle after it came to a stop in the southbound curb lane on the highway. All witnesses described that night as being very dark, with no artificial illumination on the highway. None of the civilian witnesses saw the Complainant either before, during or after he was struck.

The utterances made by the SO following the incident, both to CW #2 and to WO #1, the observations of CW #5, the communications recordings and the statement of the SO are all consistent; there is no dispute as to the material facts.

On the basis of all of the evidence, it is clear that there was never any direct contact, either physical or verbal, between the Complainant and the SO; that the Complainant consciously made the decision to flee from police; and that in doing so, he ran into a live lane of traffic and was struck and killed by a passing motorist. As there is no evidence that the SO in any way caused the death of the Complainant, there is no causal connection between the Complainant’s death and the actions of the SO and therefore no basis for the laying of charges.

Although it is true that had the SO not stopped the Honda in order to follow up on information that he had received that the occupants of this motor vehicle were responsible for a criminal offence, the Complainant may not have run and ultimately been killed, the police cannot be held accountable for the actions taken by persons who wish to evade them. At the time that the SO initially stopped the Honda and asked CW #5 to exit, he had reasonable grounds to believe, based on information received, that an offence contrary to the Criminal Code had been committed and the occupants of this motor vehicle were responsible and he was duty bound to investigate. Once the Complainant ran from him, the SO was entitled to pursue in order to complete his lawful investigation and arrest. The choices made by the Complainant to flee from police, and then run into active lanes of traffic, were his own, and only he can be held responsible for the tragic results.

Having said that, I wish to take a moment to address the SO’s actions both leading up to the death of the Complainant and his actions thereafter: while the SO was searching for, and subsequently investigating, the Honda, he kept the dispatcher informed of any developments; in bringing the suspect vehicle to a stop and dealing with the occupants thereafter, he appears to have given priority to the safety of the occupants of the vehicle, as well as the other motorists on the roadway; he used his use of force options prudently, resorting to the use of his CEW to prevent the Complainant from fleeing the scene, and only deploying it once for a very brief period; his actions immediately following the Complainant’s impact with a motor vehicle, despite his obvious state of distress, again gave priority to public safety, in that he directed CW #1 and CW #2 to move off the highway and to a place of safety, which may have saved their lives, as their vehicle was then struck by a second motor vehicle only seconds later; and his immediate recognition that this was a serious matter that would involve the SIU and did not discuss his evidence with any other police officer, other than his sergeant, all clearly highlight that the SO’s actions, throughout this tragic event, were professional, prudent and displayed the type of behaviour that the public should be able to expect of all police officers.

On this record, there is no causal connection between the actions of the SO and the tragic death of the Complainant, nor is there any basis for the laying of criminal charges.

Date: December 19, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Damage to the Toyota pick-up truck included: the front passenger side bumper, front passenger quarter panel, front driver’s door and the two air bags in the driver’s compartment were deployed. [Back to text]
• 2) [2] Damage to the white Ford pick-up truck included: front passenger side quarter panel, front passenger side mirror missing from its frame/bracket, front passenger door indented and front hood displaced. [Back to text]
• 3) [3] Based on the SIU analysis of the DRPS communications recording, it appears that times on the Esso CCTV security cameras were approximately 11 minutes behind Eastern Standard Time (EST). [Back to text]
• 4) [4] This vehicle is most likely the Toyota truck driven by CW #2. [Back to text]
• 5) [5] CW #5 believed that the SO had deployed his CEW twice; the first time as he chased the Complainant into the field and the second when he chased him back towards the Honda. Despite his belief, CW #5 said it was not the SO’s fault that the Complainant ran into the southbound lanes of the highway. [Back to text]
• 6) [6] The presence of morphine (and/or heroin), fentanyl, cocaine, benzoylecgonine and dextromethorphan was found in the Complainant’s mixed heart blood and/or urine by the CFS. Those substances did not cause or directly contribute to his death in this case. What effect they might have had on the Complainant’s behaviour and decision-making is unknown. [Back to text]