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 39-year-old male just before midnight on July 25, 2016 when his bicycle was hit by a marked police cruiser at a traffic intersection.

Notification of the SIU

On July 26, 2016 at 2:18 a.m., Toronto Police Service (TPS) notified the SIU of the vehicle injury to the Complainant.

TPS reported that around midnight on the night of July 25, 2016, the Complainant was riding his bicycle westbound on Merrian Road. At the intersection of Merrian Road and Kennedy Road, the Complainant impacted with a marked TPS police cruiser. He was taken from the scene by ambulance to the hospital where he was diagnosed with having a traumatic brain injury, multiple left rib fractures and a flail chest, a fractured nose and a laceration to his right hand and left knee.

The Team

Number of SIU Investigators assigned: 4

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:

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

Civilian Witnesses

CW#1 Not interviewed[1]

CW#2 Not interviewed[2]

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed

The Scene

Kennedy Road travels in a north/south direction with a slight downward grade in a northerly direction. Merrian Road travels in a westerly direction and intersects Kennedy Road at a controlled intersection. At the west of the intersection is an entrance to a plaza. All road surfaces were in good condition and pavement markings were visible and in good repair. Traffic signals at the intersection appeared to be operating properly. There were three vehicles involved within the confines of the guarded area.

Vehicle #1 was a white 2014 Ford Interceptor. This vehicle was a marked police cruiser that displayed markings as designed by TPS. Emergency lighting was installed on the vehicle but not in operation at the time of this incident. The police cruiser was oriented in a northerly direction in the northbound centre lane north of the intersection. There was front end collision damage to the front bumper, hood and windshield.

Vehicle #2 was a white 2011 Ford Crown Victoria. This vehicle was a marked police vehicle that displayed markings as designed by TPS. Emergency lighting was installed on the vehicle and was in operation at the time of this incident. The police cruiser was oriented in a southerly direction in the southbound centre lane south of the intersection. There was no collision damage to this vehicle that could be attributed to this incident.

Vehicle #3 was a white bicycle of unknown make. The bicycle was oriented northbound in the southbound curb lane between Vehicles #1 and #2. There was collision damage to the entire bicycle. In close proximity to the bicycle was a piece of clothing, an area of suspected blood staining and some personal items. In the area of the intersection were a pair of ear buds and a pair of sunglasses.

Tire marks were located at the rear of Vehicle #1. The police cruiser appeared to have been travelling north on Kennedy Road prior to the collision. Vehicle #1 was examined for latent development on the front hood area. A partial palm impression was developed; however, it was not suitable for comparison. Also located was a fabric impression on the left front fender.

Scene Diagram

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

The AVL data is approximate and is collected every 125 metres when a vehicle is travelling. The SO’s SUV was recorded as accelerating from 50 km/h to 84 km/h along Kennedy Road from Danforth Road, until his speed decreased to 76 km/h at Foxridge Drive. The last recorded speed was 76 km/h when his SUV was about half way between Corvette Avenue and Merrian Road. His speed was then 0 km/h.

On July 25, 2016 at 11:59 p.m., the SO’s vehicle travelled northbound on Kennedy Road. The street was lit with street lights and the road appeared to be clear.

At 11:59:29 p.m., a green traffic light was illuminated for northbound traffic at Merrian Road. The cruiser appeared to be well south of the intersection.

At 11:59:35 p.m., the police cruiser was just south of the intersection at Merrian Road. The intersection was controlled by a traffic light and the light was green for northbound and southbound traffic. Visible from the east was a bicycle travelling west. The bicycle approached on a slightly northern angle and entered the intersection from Merrian Road. A red flashing light was illuminated below the seat of the bicycle.

The rider of the bicycle [now known to be the Complainant] wore a dark coloured top, light coloured pants and a helmet.

At 11:59:37 p.m., within the intersection and in lane one, the cruiser impacted with the bicycle head on. G-force indicator was illuminated on the ICC system. There was no speed recorded for the police cruiser. The bicycle and the Complainant were propelled off screen to the west of the cruiser. At 11:59:39 p.m., the cruiser stopped in lane one. At 11:59:48 p.m., a male voice [known to be the SO] can be heard requesting an ambulance immediately to the scene. The SO advised dispatch that a “male just biked in front of me, smashed him, he’s laying on floor unconscious”.

On July 26, 2016 at 12:00:49 a.m., a police cruiser arrived on scene. The cruiser was heading southbound on Kennedy Road with its emergency lights illuminated.

The ICC continued to run, capturing the emergency response and at 4:07:30 a.m., the recording ended.

Expert Evidence

Collision Reconstruction Report

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

At about 11:59 p.m., Monday July 25, 2016, the Complainant operated a bicycle westbound on Merrian Road towards Kennedy Road in Toronto, Ontario. The weather was clear and the roads were dry. The intersection was well lighted but the Complainant was wearing dark clothing. The Complainant’s speed was unknown but thought to be significant as the rear sprocket was in high gear.

At the same time a 2014 Ford Interceptor was operated by the SO northbound in the passing northbound lane of Kennedy Road approaching Merrian Road travelling at speeds ranging between 76 km/h to 84 km/h. The speed limit on Kennedy Road was 50 km/h.

The Complainant entered the intersection through a red traffic signal travelling northwest in front of the SO and was impacted 2.4 seconds after entering the intersection. The traffic signal for northbound Kennedy Road was green for 7.8 seconds prior to the SO entering the intersection. The front of the SO’s vehicle came into collision with the left side of the Complainant’s bicycle. Time distance calculations, pedestrian vault and threshold braking calculations indicate the SO’s vehicle was operated at a speed between 54 km/h and 64 km/h at the time of impact. The Complainant was thrown over the hood and into the windshield of the SO’s vehicle then northwest onto the pavement of Kennedy Road along with his bicycle. He came to rest in the curb southbound lane of Kennedy Road and the SO brought his vehicle to rest facing north in the passing northbound lane partially straddling the centre line of Kennedy Road.

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.

Communications Recordings

There were no 911 calls. The recorded transmissions were consistent with the information provided from all other sources.

Materials obtained from Police Service

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

• Communication Recordings and Summary,
• ICC Videos,
• AVL data,
• Intergraph Computer Aided Dispatch - Event Details Report,
• Motor Vehicle Collision Report,
• Notes of WO #1 and WO #2,
• Parade Sheet Report -July 26, 2016,
• Service Vehicle Collision Report,
• TPS Scene Photos,
• TPS Audio Interview – CW #2,
• TPS Audio Interview – additional witness,
• TPS Witness Statement of WO #1, and
• TPS Witness Statement of WO #2.

On July 25, 2016, just seconds before midnight, the Complainant was riding his bicycle westbound on Merrian Road. At the intersection of Merrian Road and Kennedy Road, the Complainant had a red light. For an unknown reason, the Complainant continued to ride into the intersection.

The SO was operating a fully marked TPS SUV cruiser northbound on Kennedy Road at the time, and entered the intersection with the green light. The SO’s SUV struck the Complainant, sending the Complainant and his bicycle over the SUV’s hood and into the windshield. The SO immediately stopped the SUV and called for an ambulance.

The Complainant was rushed to hospital and diagnosed with a traumatic brain injury, a small left hemothorax[3] and multiple bilateral rib fractures, a left sided flail chest[4], multiple abrasions to the forehead, left knee, left upper chest, a hematoma[5] in lateral aspect of the left guteal musculature and a broken nose.

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…

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

At around midnight on the evening of July 25, 2016, the SO was driving a marked TPS SUV when he struck a cyclist, the Complainant. The SO was travelling northbound through the intersection of Kennedy Road and Merrian Road as directed by a green traffic light, while the Complainant was peddling westbound contrary to a red traffic light at the same intersection. The collision sent the Complainant to hospital with critical injuries. For the reasons that follow, I am satisfied that the SO bears no criminal liability in connection with the collision.

The evidence collected from the Complainant, the SO, the ICC video and AVL data from the SO’s SUV, and the scene, in addition to a collision reconstruction analysis, revealed a straightforward set of events that culminated in the collision. On the night of July 25, 2016, the Complainant was riding his bicycle. He had a white light affixed to his front handlebars and a rear red light attached to his seat post. The SO was driving a white marked police Ford SUV northbound on Kennedy Road between 76 km/h and 84 km/h[6] in a 50 km/h zone as he approached the Merrian Road intersection. He was on general patrol and not responding to a call. It was dark outside and the roads were dry.

As the SO entered the intersection at Merrian Road northbound on a green light, his speed had reduced to about 60 km/h.[7] The SO recalled looking to his left to see who was in the parking lot of the adjacent Giant Tiger store. In his peripheral vision, the SO noticed movement by the right front corner of his SUV. Suddenly, he saw a bicycle about a foot and a half in front of him. The SO applied the brakes but struck the cyclist, propelling him over the hood and into his windshield. The Complainant landed in the southbound lanes about 3 metres northwest of where the SO’s cruiser stopped. An ambulance responded and the Complainant was taken to the hospital. He was diagnosed with a traumatic brain injury, hemothorax, bilateral rib fractures, a flail chest, broken nose, left gluteal hematoma and multiple abrasions. The Complainant had no memory of the collision or the events immediately prior.

The offence that arises for consideration is dangerous driving causing bodily harm pursuant to s. 249 of the Criminal Code. This offence is predicated on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. There is no question that the SO was proceeding lawfully through a green light at a controlled intersection when he struck the Complainant, who had disobeyed a red light and driven into his path. Yet, the SO was not without fault. Firstly, he was exceeding the speed limit as he approached the intersection, which reduced to about 10 km/h over as he entered the intersection. Secondly, he was distracted by the Giant Tiger parking lot to his left and was not directing his attention in his direction of travel. The ICC video confirmed that the SO remained in his lane and made no evasive move to avoid the cyclist, which is supportive of his assertion that he did not see the cyclist until the last moment. His speed at the time of impact was between 54 km/h and 64 km/h.[8] It was dark outside and the intersection was partially illuminated with artificial lighting. Notably, the Complainant wore darker clothing, but his bike and tires were white.

The possibility exists that had the SO’s attention been directed forward and had he been driving at the speed limit, that the collision may have been avoided. However, driving is an inherently dangerous activity. The court in R. v. Beatty, [2008] 1 S.C.R. 49, held that a driver could not be convicted of dangerous driving due to a momentary lapse in attention, even if the driving was objectively dangerous during that time, which was further supported in R. v. Roy, [2012] 2 S.C.R. 60. To that end, I do not believe that the SO’s admitted lack of attention to the road ahead, as he lawfully proceeded through the intersection, combined with his slightly excessive rate of speed amount to a marked departure from the standard of care expected of a reasonable person in the circumstances. Accordingly, while it is regrettable that the collision occurred and the Complainant suffered serious injuries as a result, in my view there are no reasonable grounds to believe that the SO’s driving fell outside the limits of care prescribed by the criminal law and therefore, no charges will issue.

Date: September 6, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] CW #1 could not be located by SIU investigators. SIU investigators were given witness information by TPS for CW #1. CW #1’s telephone number did not have a message service and attempts to contact him were unanswered. Investigators attended at CW’s address and learned he only lived there for a couple of weeks and had not been seen for several weeks. [Back to text]
• 2) [2] CW #2 could not be located by SIU investigators. SIU investigators were given witness information by TPS for CW #2. CW #2’s telephone number was not assigned. Attendance at her given address and subsequent conversation with the Superintendent of the building could not identify if she was a resident there. Their records did not list her as a tenant. [Back to text]
• 3) [3] Hemothorax is a collection of blood in the space between the chest wall and the lung (the pleural cavity). [Back to text]
• 4) [4] Flail chest is a life-threatening medical condition that occurs when a segment of the rib cage breaks due to trauma and becomes detached from the rest of the chest wall. [Back to text]
• 5) [5] Hematoma is an abnormal collection of blood outside of a blood vessel. It occurs because the wall of a blood vessel wall, artery, vein, or capillary, has been damaged and blood has leaked into tissues where it does not belong. [Back to text]
• 6) [6] SIU collision reconstruction calculations, supported by AVL data from the SO’s SUV. [Back to text]
• 7) [7] SIU collision reconstruction calculations. [Back to text]
• 8) [8] SIU collision reconstruction calculations. [Back to text]