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 41-year-old man on October 12, 2016 after being struck by a motor vehicle travelling at a high rate of speed that was being followed by a police cruiser.

Notification of the SIU

On October 12, 2016, at 12:40 p.m., Toronto Police Service (TPS) reported a motor vehicle collision resulting in the death of the Complainant.

TPS reported that a fatal motor vehicle collision occurred in the area of Midland Avenue and Eglinton Avenue East. At 11:17 a.m., the Subject Officer (SO) checked the licence number on a white BMW and the query came back as “unattached” twice. The SO sounded his air horn in an attempt to get the driver’s attention. The SO radioed that he was trying to stop the BMW. In the area of Midland Avenue and Eglinton Avenue East, the BMW struck and killed a construction worker [now known to be the Complainant] and ran over the foot of another TPS officer who was doing a paid duty assignment at the construction site. The BMW did not stop at the scene and was found abandoned. TPS investigators later identified the driver.

The Team

Number of SIU Investigators assigned: 8

Number of SIU Forensic Investigators assigned: 1

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.

Complainant:

41-year-old male, deceased

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Interviewed

CW #10 Interviewed

CW #11 Interviewed

CW #12 Refused to be interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

Subject Officers

SO #1 Interviewed, and notes received and reviewed

Scene Diagram

SO’s Vehicle Automatic Vehicle Locator (AVL) and In Car Camera (ICC) Video

AVL data from the SO’s TPS cruiser was provided to the SIU. The following data was reported every 400 metres of travel or four minutes of time, whichever came first.

The SO’s cruiser also had his ICC activated. Below is a summary of what was recorded:

Expert Evidence

Reconstruction Report

The SIU collision Reconstructionist’s assessment of the collision yields the following conclusions:

At about 11:17 a.m. on Wednesday, October 12, 2016, the SO drove a marked 2011 Ford Crown Victoria, eastbound on Eglinton Avenue just west of Kennedy Road approaching Midland Avenue in Toronto, Ontario. The emergency lighting was active and the SO was attempting to stop a 2013 BMW 328xi which was being driven at a high rate of speed eastbound on Eglinton Avenue East in the centre eastbound lane from the centre of the rail overpass towards Midland Avenue. Both vehicles were travelling in an area which was cordoned off with orange traffic cones for the purpose of road construction in the curb and centre lanes of Eglinton Avenue East just west of Midland Avenue. At the same time, a road construction worker, the Complainant, was in the closed off centre lane holding a measuring tape.

While travelling eastbound on the north side of the centre lane, the right front bumper, fender and hood of the BMW came into collision with the Complainant. The BMW was travelling a time/distance calculated speed of 96 km/h at the time of impact but prior speeds cannot be calculated. The Complainant and the equipment in his possession were thrust airborne and eastbound in the centre lane. The Complainant’s body struck the driver’s door and he came to rest against the backside of the left front tire of a Ford F550 truck which was parked facing east in the eastbound curb lane of Eglinton Avenue East just west of Midland Avenue. The driver of the BMW fled the scene and the vehicle was recovered some 1.6 kilometres away.

The speed of the SO’s cruiser was time/distance calculated at an average of 92 km/h while travelling eastbound on the west side of the railroad overpass but slowed to a time/distance average speed of 64 km/h east of the railroad overpass. The SO’s cruiser was over 130 metres to the west of the collision when it occurred and was not directly involved in the collision. About nine seconds after the collision, the SO’s cruiser was driven through the scene straddling the curb and centre eastbound lanes at a time distance calculated average speed of 8 km/h. The SO’s cruiser was then driven eastbound on Eglinton Avenue East a considerable distance behind the BMW which was out of sight.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and located CCTV footage from three different locations in the area and obtained the dash camera footage from CW #10’s truck.

Communications Recordings

It appears that the SO alerted the TPS Communications Operator post collision. Intergraph Computer Aided Dispatch (ICAD) records the start of the call at 11:17:14 a.m. The following is a summary:

SO

Call [cruiser number].

Communications Operator

Go ahead.

SO

Just had a white BMW take off at high rate.

Communications Operator

Whereabouts are you?

SO

It’s a high rate of speed [licence plate of BMW provided], I am not pursuing it. [in the background you can hear screaming]

SO

We’ve got a pedestrian struck in relation to that, Midland and Brimley [in background you can hear screaming], Rush VSA?

Communications Operator

10-4 What’s your location?

SO

Dispatch it just wiped out at Gilder and Eglinton, sorry.

SO

It looks like it’s going northbound on Gilder.

Communications Operator

Are you pursuing the vehicle?

SO

Negative I am not pursuing the vehicle, I am heading over to Gilder to see where it is, I am not in pursuit, I cannot see the vehicle.

Materials obtained from Police Service

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

• AVL Data,
• COMM-Summary Conversation,
• ICC from the SO’s cruiser,
• Event Details Report,
• General Occurrence,
• ICAD Report,
• Motor Vehicle Accident Report (completed),
• Notes of WO #1 and WO #2,
• TPS Policy - Suspect Apprehension Pursuit, and
• TPS News Release.

On October 12, 2016, the Complainant was working in a construction zone along Eglinton Avenue East, just west of Midland Avenue. The construction zone gradually limited the available lanes, so that Eglinton Avenue East was reduced to just one live lane before the intersection at Midland Avenue.

At the time, the SO was operating a fully marked TPS cruiser, and was driving eastbound on Eglinton Avenue East towards the construction zone. While crossing Kennedy Road, the SO noticed a white BMW also travelling east along Eglinton Avenue East. The SO ran the licence plate for the BMW, and it came back as unattached[1]. The driver of the BMW, allegedly CW #12, also made evasive maneuvers which raised the officer’s concern. As the SO and the BMW approached the beginning of the construction zone on Eglinton Avenue East, the SO activated his light and gave one blast of his siren. The BMW took off at a high rate of speed through the construction zone. The SO followed with his lights activated.

As the BMW approached Midland Avenue, it continued to accelerate at a high rate of speed, and its right side struck the Complainant, sending him into the air. The BMW was travelling at 96 km/hr at the point of impact, and continued through the intersection and sped away across Eglinton Avenue East. The SO stopped briefly at the accident scene, then also drove through the intersection in an attempt to locate the BMW.

The Complainant was pronounced dead at the scene.

Sections 219-220, Criminal Code - Criminal negligence causing death

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.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

1. where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
2. in any other case, to imprisonment for life.

Section 249, Criminal Code - Dangerous operation of motor vehicles causing death

(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…

(4) Every one who commits an offence under subsection (1) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

On Wednesday October 12^th, 2016 shortly after 11:17 a.m., the Complainant was working construction in the area of Midland Avenue and Eglinton Avenue East, in the City of Toronto, when he was struck and killed by a speeding white BMW allegedly driven by CW #12. Seconds earlier, CW #12’s motor vehicle had been observed by the SO behaving in an erratic manner; the SO ran a computer check on the licence plate and found it to have the status of being unattached. Consequently, the SO activated his roof lights and attempted to stop and investigate the motor vehicle.

Eleven witnesses in the general area of Eglinton and Midland Avenues just prior to, during or immediately after the collision which tragically took the life of the Complainant, agreed to being interviewed by SIU Investigators. The alleged driver of the white BMW did not. Of the 11 witnesses interviewed, there are, not surprisingly considering that this entire incident unfolded in matter of seconds, numerous different viewpoints as to what occurred.

The witnesses interviewed included members of the construction crew, motorists or passengers stopped in traffic at various points along the route of the white BMW, and pedestrians in the intersection of Midland and Eglinton Avenues.

We are fortunate that the SO had the foresight to activate his ICC early on in his observations of the white BMW, in that we have the advantage of being able to have the exact same viewpoint as did the SO at the time that this incident occurred, and can see in hindsight when and where certain actions took place. It is clear that both the white BMW and the police cruiser were travelling in the third lane right up until the time when the BMW changed into the second lane immediately prior to the deadly impact. The ICC also confirms that the siren on the police cruiser, other than one short blast early on, was not activated by the SO.

The statement of CW #6 is fully corroborated by the ICC and by the SO himself. Many of the other witnesses, due, one would expect, to the trauma of the incident, the speed with which things occurred and trying to piece together certain incidents, diverge on many of the salient facts. All of the civilian witnesses except two are consistent in indicating that they saw the roof lights on the police cruiser activated, but that they did not hear any sirens prior to the impact occurring. No doubt the witnesses who were directly on the construction site where the cement saw was being operated, had their ability to hear severely impaired.

Various witnesses described the white BMW as travelling anywhere from 70-80 km/h, to 100-120 km/h and as high as 150 k/h prior to impact. What is clear from the surveillance footage obtained from a nearby plaza is that the white BMW was travelling at an incredible rate of speed and the police cruiser was driving at quite a lesser speed and quite a distance back. Other than one civilian witness, none of the witnesses indicate that the police cruiser was actively engaged in a pursuit of the white BMW. Their evidence varies from seeing no police cruiser at all, to seeing a cruiser “following” the white BMW and arriving from the west heading eastbound anywhere from a few seconds, to approximately ten seconds, and finally one to two minutes after the impact had occurred.

Both the ICC as well as the CCTV video confirm that the white BMW approached the construction site in the curb lane and moved to the second lane just before impact.

Where some of the evidence of a witness is substantially confirmed by physical evidence (i.e. the ICC or CCTV footage), it is my view that the remainder of their evidence is likely more reliable than the statements of those witnesses whose observations have been proven to be inaccurate by the physical evidence. As such, I am inclined, on a preponderance of the evidence, to accept the observations of the eight to nine witnesses who all confirmed that the white BMW was travelling at an extremely excessive rate of speed and that the police cruiser was well back, or even out of view, travelling at a lesser speed and not actively engaged in a pursuit.

In making my findings, then, I have relied primarily on the ICC from the SO’s vehicle as well as the CCTV footage from two retail locations in the area. The ICC footage clearly indicates the following incidents occurred at the following times as listed:

(The above three statements in quotes are actually one continuous conversation, I have noted the times as the words were said. These should not be read as if there was a gap between the words, in fact, the officer is continuously speaking throughout once he is acknowledged by the dispatcher.)

We are also fortunate to have been provided the dash camera footage from CW #10’s truck. That footage reveals that from the point that the BMW is seen to come through the intersection at Midland and Eglinton at a very high rate of speed after the impact, another 11 seconds pass before the police cruiser comes into view west of the intersection.

The CCTV footage from three different camera locations also reveals that the white BMW enters the view of the camera travelling at an extremely high rate of speed. Five to six seconds later, a police cruiser is seen to enter the camera view travelling at a much lesser rate of speed.

On all of this evidence, I am satisfied that the SO observed a high end motor vehicle with unattached plates driving in an odd fashion back and forth between lanes two and three and that he attempted to stop and investigate the vehicle, at the very least for a Highway Traffic Act infraction but possibly more, judging from the BMW’s active maneuvers in attempting to evade the police cruiser. I find that he pulled up behind this BMW and activated his roof lights and gave one short blast of his siren which occurred at 11:17:04 a.m. according to the ICC. In the next four seconds, it appears that the vehicle may be moving into the closed lane to stop for the officer and I see nothing in the evidence that should have alerted the SO at that point to suspect that the car was going to speed off and that he should contact the Communication Centre. At 11:17:13 a.m., nine seconds later, it becomes clear that the BMW is not going to stop but accelerates sharply and speeds off. At this point, the SO makes contact with dispatch. While it is true that, in hindsight, the SO could have contacted dispatch five seconds earlier when the BMW initially knocked down the traffic cones and started to drive in the closed lane of traffic, I cannot hold the SO to a level of perfection that is only attainable in hindsight and not foreseeable in a very fluid, fast moving situation.

While I find that the SO was still on the radio with dispatch at 11:17:29 a.m., some 16 seconds later when he comes into the area of the construction zone and the Complainant has already been struck down, and that is the first time that he confirms that he is not in pursuit of the motor vehicle, I do not conclude that he only made the comment that he was not in pursuit because he had observed that an impact had occurred; rather, I find that his communication was ongoing and it was only the incredible speed and movement of the white BMW which lead to this tragic conclusion before the SO could even complete his on air comments.

It is clear that the SO had reasonable grounds to attempt to stop and investigate the white BMW for a Highway Traffic Act infraction. Additionally, the movements of the BMW in actively attempting to avoid the attention of the officer would have heightened the SO’s suspicion that there was possibly more criminal conduct going on here. I find, however, that once the BMW had sharply accelerated and was driving dangerously in the closed lane of traffic that the SO did not actively engage in a pursuit. It may well be simply a matter of semantics, but I find that though the officer followed in the curb lane at a greater speed than the posted speed limit allowed, his speed was far lesser than that of the BMW, the BMW was no longer in view and he was not actively engaging with the BMW in an attempt to bring it to a stop after his initial blast of the siren and activation of his roof lights. It is my view that this interpretation of events is confirmed by nine civilian witnesses as well as the ICC and the other CCTV footage as well as the dash camera of CW #10’s truck.

Even if the SO’s following of the BMW can be categorized as a pursuit, I find that the officer did not breach the TPS Policy on Suspect Apprehension Pursuit in that he did, almost immediately (within five seconds), if not immediately, contact the Communications Operator of the driver’s refusal to stop and continuously updated the dispatcher with all of the required information.

The offences that arise for consideration in this matter are dangerous driving causing death and criminal negligence causing death contrary to sections 249 and 220 of the Criminal Code respectively. Both offences are predicated on conduct that amounts to a marked departure from a reasonable level of care in the circumstances. I find that there is no evidence that the SO’s driving created a danger to other users of the roadway. At no time did he interfere with any other traffic, the environmental conditions were good and he used his emergency equipment prudently, activating his roof lights but not his siren as he was concerned that might aggravate the BMW’s driver’s already dangerous driving; he also maintained a substantial distance at all points while following the BMW, as is evidenced by the ICC. The officer did nothing to exacerbate the BMW’s pattern of dangerous driving. It was the recklessness of the driver of the BMW that brought about the tragic death of the Complainant.

In the final analysis, I am satisfied on this record that the SO was acting lawfully when he first attempted to stop the BMW to investigate an obvious Highway Traffic Act offence and a possible Criminal Code offence and that his conduct thereafter fell within the limits of care prescribed by the criminal law. Accordingly, there are no grounds for proceeding with charges against the officer.

Date: September 7, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] An unattached plate does not correspond to the vehicle being driven. [Back to text]