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 21-year-old man who was involved in a multi-vehicle collision in downtown Toronto on December 2, 2016. The man had been involved in a police pursuit prior to the collision.

Notification of the SIU

The SIU was notified of the incident by the Toronto Police Service (TPS) on December 2, 2016 at approximately 7:30 a.m.

TPS reported that at 2 a.m. on Friday, December 2, 2016, TPS officers set up Reduce Impaired Driving Everywhere (RIDE) lanes near Richmond and Portland Streets. When a vehicle sped through the RIDE lane without stopping, the Subject Officer (SO) initiated a very short pursuit with emergency equipment activated. The pursuit was almost immediately discontinued. The fleeing vehicle continued on and struck three other vehicles before rolling over. Two males fled on foot, but were arrested a short distance away and were taken to hospital.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 2

Number of SIU Collision Reconstructionists 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 collision scene was secured by TPS and was processed and examined by the SIU and TPS, who conducted a parallel investigation.

Complainant:

21-year-old male, medical records obtained and reviewed

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

WO #4  Interviewed

WO #5  Interviewed

WO #6  Interviewed

WO #7  Interviewed

WO #8  Not interviewed, but notes received and reviewed

Subject Officers

SO Interviewed, and notes received and reviewed

The Scene

The police involvement with the Complainant began at the intersection of King Street West and Bathurst Street. The SO was eastbound on King Street, in the left lane at the west side of the intersection when he initially saw the Audi, operated by the Complainant. The Audi travelled north on Bathurst Street before turning right onto eastbound King Street West. It then travelled east for one city block before turning left at the next intersection with Portland Street. The Complainant drove north on Portland Street and crossed Adelaide Street.

Just north of that intersection, the right front area of the Audi struck the left rear area of a Mini Cooper that was parked on the east side of the street. The Mini’s left rear wheel assembly was sheared off and the car was pushed forward as it rotated clockwise. It subsequently struck a Honda Civic, also parked on the east side of Portland Street. The Honda in turn was pushed forward, striking a Volkswagen Jetta parked in front of it.

As a result of the collision, the Audi rolled onto its roof as it slid about 35 metres north before coming to rest on the west side of Portland Street, as seen in the photo below:

Scene Diagram

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following:

In-Car Camera System (ICCS) Recording from the SO’s Cruiser:

2:53:59 a.m.:

The ICCS recording from the SO’s cruiser commenced while the cruiser was stopped at the red light on eastbound King Street West at Bathurst Street.

2:54:17 a.m.:

The light for Bathurst Street traffic turned yellow. Three seconds later, the light turned red.

2:54:23 a.m.:

The traffic light turned green for King Street traffic. About one second after the light turned green, a silver sedan, believed to be the Audi, appeared, travelling north on Bathurst Street. The Audi made a sharp right turn onto eastbound King Street West, crossing the centre line of the road as it turned, and where vehicles were about to proceed west, through the intersection.

2:54:28 a.m.:

The cruiser started driving through the intersection. Data on the video recording indicated that the cruiser’s emergency lights were activated. There was no audio in the recording but the “Siren” indicator flashed several times. The cruiser drove in the left lane at some distance from but directly behind the Audi. The Audi moved from the curb lane to the left lane with the left turn indicator flashing, then moved to the left lane of oncoming westbound King Street West and overtook three eastbound taxis. The cruiser also moved into the oncoming lane.

2:54:40 a.m.:

The indicator for the cruiser’s emergency lights deactivated. The cruiser also passed the three taxis before returning to the proper eastbound lane. It appeared that the cruiser’s emergency lights were deactivated while it was in the oncoming lane.

2:55:09 a.m.:

The cruiser slowed in traffic and came to a stop behind a taxi at the red light at Portland Street. When the light turned green, the cruiser waited for oncoming traffic to clear before the emergency lights and siren activated and it turned left. The cruiser drove north and proceeded slowly through the red traffic control signal at Adelaide Street before arriving at the collision scene.

2:56:44 a.m.:

The cruiser, which drove north of the scene and then turned right, stopped in a laneway. From there, the Complainant was seen scaling a chain link fence before WO #1 ran after him.

2:57:55 a.m.:

WO #5 arrived on a bicycle.

ICCS Recording from WO #3’s Cruiser:

The ICCS recording from WO #3’s cruiser commenced with the cruiser stopped at the red light on King Street West at Bathurst Street, immediately behind the SO’s car. WO #3’s emergency lights activated as he started moving.

This recording confirmed that the SO’s emergency lights deactivated as he moved into the oncoming westbound lane, about 11 seconds after starting to drive from the intersection.

WO #3’s emergency lights remained activated until 2:55:02 a.m.

This recording revealed that as the SO slowed for the red traffic light at Portland Street, a male entered the westbound lanes, approached the cruiser and appeared to advise the police officers regarding the direction of the Audi.

At 2:55:23 a.m., the SO’s emergency lights activated as he turned left onto Portland Street.

Restaurant Security Closed Circuit Television (CCTV) Recording:

A restaurant located at the northeast corner of King and Portland Streets had a security camera mounted to view the northeast corner of the intersection. At 2:54:36 a.m., a light coloured sedan, believed to be the Audi, turned left onto Portland Street. About 43 seconds later, a TPS cruiser, believed to be that of the SO, travelled in the same direction with emergency lighting activated. Another cruiser, believed to be that of WO #3, immediately followed with emergency lighting activated.

Communications Recordings

In the initial radio recording, police officers reported that they were going to conduct a RIDE check at Adelaide and Portland Streets.

In the next transmission, a male police officer, now known to be the SO, reported that a silver sedan “Just took off eastbound” and “Went through a red light. We were gonna light it up but we just let it go.” He provided the licence plate and said the car was last seen travelling north on Portland Street.

In the next transmission, a siren was heard in the background as the SO reported that someone told him the car collided north of their location.

Police officers subsequently reported the collision details and that someone was still in the back seat of the vehicle that was on its roof.

After a female police officer requested a rush on the ambulance, a male police officer reported that he had a suspect running westbound in a laneway. Shortly thereafter, he reported that he had one person in custody.

Forensic Evidence

The Complainant’s medical records indicate that his blood samples revealed a blood-alcohol concentration well above the legal driving limit [1] and the presence of various non-prescribed drugs.

Materials obtained from Police Service

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

• TPS Division Vehicle Log – the SO’s cruiser
• Automatic Vehicle Location (AVL) Data Table-Fleet – the SO’s cruiser
• Contact information for Civilian Witnesses
• Communications Audio Request
• Event Details Reports
• General Occurrence
• Involved Officers List
• Notes for WO #1, WO #2, WO #3, WO #4, WO #5, and WO #8
• Parade Sheet Reports
• Procedure - Suspect Apprehension Pursuit, and
• Service History of the SO’s cruiser

During the early morning hours of December 2, 2016, the SO and WO #1, in separate police cruisers, were en route to Portland and Adelaide Streets in order to set up and conduct a RIDE program spot check.

Both cruisers were stopped at the red light on eastbound King Street West, at the Bathurst Street intersection. Approximately one second after the signal for Bathurst Street turned to red, a silver Audi made a wide right turn from Bathurst Street onto King Street West without stopping, and entered onto King Street West. The Audi crossed the center line of the road into the oncoming lane of traffic, where westbound vehicles were about to proceed through the intersection, and then swerved back into the proper lane of traffic.

The SO’s cruiser entered the intersection with emergency lighting and siren activated. The cruiser followed behind the Audi, which moved from the curb lane to the left lane and then into the oncoming lane of traffic to pass three eastbound taxis. The SO’s cruiser also moved into the oncoming lane of traffic, with emergency equipment deactivated. Upon passing the three taxis, the cruiser returned to the eastbound lane of traffic.

The Audi then turned left onto Portland Street, at which point the vehicle was out of view of the SO and WO #1. Just north of the Portland Street and Adelaide Street intersection, the right front area of the Audi struck a Mini Cooper, which subsequently struck a Honda Civic, that in turn was pushed forward, striking a Volkswagen Jetta parked in front of it.

As a result of the collision, the Audi rolled onto its roof and slid before coming to rest on the west side of Portland Street.

The SO and WO #1 came to a stop behind a taxi at a red light at the intersection with Portland Street, and were approached by a civilian and advised that there had been a collision on Portland Street north of Adelaide Street. The officers came upon the Complainant’s vehicle resting on its roof in the roadway among a number of other extensively damaged vehicles. The Complainant, who was driving the silver Audi, ran from the vehicle and climbed a fence as he was pursued by WO #1. CW #1 remained in the rear of the vehicle.

WO #1 pulled the Complainant down off of the fence and the Complainant appeared to be injured. The Complainant was transported to hospital. It was determined that he had sustained a compression fracture to the L2 vertebrae, a small bony fragment off the C6 vertebrae, a left occipital hematoma and a small laceration to his right kidney.

Section 2, O. Reg. 266/10: Suspect Apprehension Pursuits - Initiating or continuing pursuit

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

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

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

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

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

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

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

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

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

249 (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

On December 1^st, 2016, the SO and WO #1 observed a motor vehicle being operated by the Complainant enter the intersection of Bathurst Street and King Street West in the City of Toronto; the Complainant’s vehicle, a silver Audi, entered the intersection at a high rate of speed and against a red light, making a wide right turn onto King Street West from northbound Bathurst Street, narrowly missing striking oncoming motor vehicles as it made its turn. As a result of this observation, the SO activated his emergency lighting as the Audi sped off through traffic; the SO initiated a pursuit, but immediately de-activated his emergency lighting when he observed that the Audi was not going to stop but rather it continued on at a high rate of speed. The SO then sent a message out over the radio that the Audi had fled at a high rate of speed and slowed his cruiser to approximately 10 km/h due to heavy traffic, while the Complainant continued to weave through traffic making a left turn onto northbound Portland Street, at which point the Audi was out of view of the SO and WO #1. While stopped at a red light at Portland Street, the police officers were approached by a civilian and advised that there had been a collision on Portland Street north of Adelaide Street. The officers then activated their emergency lighting system and came upon the Complainant’s vehicle resting on its roof in the roadway among a number of other extensively damaged vehicles.

The Complainant was pointed out by a civilian motorist, as he was attempting to flee the scene by climbing a fence and running off; as he was climbing a second fence, WO #1 pulled him down off of the fence and the Complainant appeared to be injured as he cried and screamed that his arm hurt. The Complainant then indicated to officers that it was his fault, he had a drug problem, he had been out celebrating his birthday and he was sorry. The Complainant was then transported to hospital where he was assessed and it was discovered that he had sustained a compression fracture to the L2 vertebrae, a small bony fragment off the C6 vertebrae, a left occipital hematoma and a small laceration to his right kidney. The toxicology screen of the Complainant revealed that his blood/alcohol level was well above the limit at which one can legally operate a motor vehicle in Ontario; the Complainant also tested positive for the presence of benzodiazepines, cannaboids, and oxycodone and he indicated that he had taken two tablets of Molly (Ecstasy).

In addition to the Complainant and CW #1, two civilian and eight police witnesses were interviewed, including the SO; their version of events was confirmed by the ICCS of the two police cruisers involved, as well as CCTV video from a local business and the radio transmission recordings. There is no dispute as to the facts.

The initial radio transmission, at 2:50:46 a.m., revealed that two police cruisers were en route to Portland and Adelaide Streets in order to set up and conduct a RIDE program spot check.

The ICCS from the SO’s vehicle confirmed that their cruiser was stopped at the red light on eastbound King Street West, and that they were stationary there while their traffic signal turned to green and the traffic signal for Bathurst Street turned to red. Approximately one second after the signal for Bathurst Street turned to red, a silver Audi is seen to make a wide right turn from Bathurst Street onto King Street West, without stopping, and enter onto King Street West, crossing the center line of the road into the oncoming lane of traffic, where westbound vehicles were about to proceed through the intersection, and then swerve back into the proper lane of traffic.

At 2:54:28 a.m., the SO’s cruiser is seen to enter the intersection with emergency lighting and siren activated. The cruiser is following behind the Audi, but some distance back, when the Audi is observed to move from the curb lane to the left lane and then into the oncoming lane of traffic to pass three eastbound taxis. At 2:54:40 a.m., the SO’s cruiser is also seen to move into the oncoming lane of traffic, but then deactivates its emergency equipment, passes the three taxis and returns to the eastbound lane of traffic.

At 2:55:46 a.m., the SO is heard to report that a silver Audi “just took off eastbound” and “went through a red light. We were gonna light it up but we just let it go”. He also provided the licence plate of the motor vehicle and its last location and direction of travel.

At 2:55:09 a.m., the cruiser is seen to slow in traffic and then come to a stop behind a taxi at a red light at the intersection with Portland Street. Once the traffic light turns to green, the cruiser is seen to wait for oncoming traffic to clear and then its emergency lighting and siren are reactivated and it turns left onto Portland Street. The cruiser drives north on Portland, slowly proceeding through a red traffic control signal at Adelaide Street, before arriving at the collision scene.

The next transmission from the SO indicates that “someone’s saying they may have crashed”, and by the time the dispatcher has asked him to repeat, at 2:56:13 a.m., the report came in that the car had flipped on its roof.

From all of the evidence, it appears that the SO and WO #1 observed a speeding Audi being driven erratically and attempted to initiate a traffic stop. The cruiser lights and sirens were activated for a total period of 12 seconds, when officers decided to abandon the attempt, deactivated their emergency equipment and returned to the proper lane of traffic; the officers, while continuing to travel in the same direction as the Audi, lost sight of the Audi due to their much lower rate of speed. The evidence further establishes that roughly 93 seconds later, the officers came upon the collision scene and observed the Audi on its roof and at least two other vehicles damaged.

It is clear on all of the evidence, that at the time that the SO and WO #1 first observed the motor vehicle driven by the Complainant, it was in contravention of numerous provisions of the Highway Traffic Act, and, from the observed very poor driving, the driver was possibly impaired. As such, the officers were duty-bound to investigate, and would have been negligent had they not attempted to stop the vehicle before it, or any other persons in its path, came to harm.

I note that the evidence of the SO, as confirmed by the ICCS, the communications recordings, as well as the other four police officers who observed part or all of the pursuit of the Audi, fully substantiates the fact that the SO was not in a vehicular pursuit at the time of the multi car collision in which the Complainant was injured, nor had he been in pursuit immediately prior to the collision, having abandoned his efforts to apprehend the Complainant shortly after he initially activated his emergency equipment and began to pursue the Complainant’s motor vehicle. On all of the physical evidence, which is not in dispute, it is clear that although the SO initially attempted to bring the Complainant’s vehicle to a stop, which he was lawfully required to do, at no time did he shorten the gap between his own vehicle and that of the Complainant and, after the Complainant entered the oncoming lane of traffic in order to overtake and pass three other motor vehicles on the roadway, the SO de-activated his emergency equipment, slowed his cruiser and lost sight of the Complainant’s motor vehicle as he yielded to other traffic in the area. It is clear from both the ICCS, as well as the communications recording, that within seconds of the SO initiating his pursuit, he notified the dispatcher and advised that the Audi “just took off eastbound” and “went through a red light. We were gonna light it up but we just let it go”. From the point where the Complainant’s erratic driving was first observed by the officers, until the point where the SO deactivated his emergency equipment and pulled back into traffic, no more than 12 seconds had elapsed. From the time when the emergency equipment was deactivated, until the time of the Complainant’s collision, a further 93 seconds had elapsed. As such, I can find no causal connection between the driving of the SO, and the injuries sustained by the Complainant, which are solely attributable to his decision to drive in the manner that he did.

It is worthy of note that the SO fully complied with O Reg 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits, and the companion TPS Policy - Suspect Apprehension Pursuit, in that, within seconds of pursuing the Complainant’s vehicle, he notified the dispatcher that he had observed a motor vehicle commit a Highway Traffic Act infraction, had intended to pursue, but had then abandoned that pursuit advising that he had “just let it go”; he further advised the dispatcher as to the location where the vehicle was last seen and kept the dispatcher updated; he determined 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, outweighed the risk to public safety that may result from the pursuit (s.2(3)) and he reassessed the determination made under subsection (3) and discontinued the pursuit when the risk to public safety that may result from the pursuit outweighed the risk to public safety that may result if an individual in the fleeing motor vehicle was not immediately apprehended (s.2(4)).

The final question to be determined is whether or not there are reasonable grounds to believe that the SO, in his initial pursuit of the Complainant, 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.

The decision of the Supreme Court of Canada R v Beatty, [2008] 1 S.C.R. 49, sets out the law with respect to s.249 in that it 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”.

On a review of all of the evidence, I find that there is no evidence that the driving of the SO created a danger to other users of the roadway or that at any time did he interfere with other traffic; he used his emergency equipment prudently, initially activating his emergency equipment to attempt to stop the Complainant, but immediately deactivating his equipment when it became clear that the Complainant was not going to stop; the environmental conditions were good and the roads were dry. Furthermore, the evidence establishes that the SO did nothing to exacerbate the Audi’s pattern of dangerous driving; it is clear from the ICCS that the Complainant was already speeding, driving erratically and ran the red light at Bathurst and King Street West before the SO ever activated his emergency equipment. On this evidence, it is clear that the Complainant had made a voluntary decision to drive in a reckless manner long before he came upon the SO, and that he continued to do so both when the officer attempted to stop him and after the officer had terminated the pursuit in the interests of public safety and the Audi was lost from view.

As such, I find that the evidence of the SO’s driving does not come close to the level of driving required to constitute “a marked departure from the norm” and, as indicated earlier, there is no evidence to support a causal connection between the actions of the SO and the motor vehicle collision caused by the Complainant. In fact, in reviewing the evidence in its entirety, it is clear that not only did the SO respond to the situation in full compliance with the Criminal Code and the Ontario Police Services Act, but he behaved at all times professionally, prudently and with good common sense and, as such, I find that there is absolutely no basis here for the laying of criminal charges.

Date: October 11, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The legal limit for driving is 17 mmol/L. [Back to text]