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.

This report relates to the SIU’s investigation into a multi-vehicle collision on April 9, 2016 which resulted in the death of a 33 year old male driver of a Honda Accord, and the serious injuries to a 35 year old female passenger in another vehicle. Prior to the collision, Peel Regional Police officers had been surveilling and had attempted to arrest the driver of the Honda Accord.

Notification of the SIU

On Saturday, April 9, 2016, at 11:10 p.m., Peel Regional Police (PRP) notified the SIU of a man’s vehicle injury. The man, who was not expected to survive his injuries, was transported to hospital where he later died.

It was reported that officers were conducting surveillance on the man, a suspected drug dealer. The man’s vehicle pulled off the roadway in the area of Willowdale Avenue and Cummer Avenue in Toronto. When two police officers approached the vehicle on foot, the man sped away. At 9:07 p.m., his vehicle collided with four civilian vehicles a short distance away.

The Team

Number of SIU Investigators assigned: 5

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 scene by way of notes, photography, videography, sketches and measurements. The Forensic Investigators attended and recorded the post-mortem examination. A collision investigation team from the Toronto Police Service (TPS) also investigated the collision as they were obligated to conduct an investigation with regard to the Highway Traffic Act (HTA).

Complainants

Complainant #1 33-year-old male, deceased

Complainant #2 35-year-old female, declined to be interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Not interviewed, did not witness events

CW #7 Interviewed

CW #8 Not interviewed, next-of-kin

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Notes reviewed, interview deemed not necessary

WO #6 Notes reviewed, interview deemed not necessary

WO #7 Interviewed

WO #8 Notes reviewed, interview deemed not necessary

WO #9 Notes reviewed, interview deemed not necessary WO #10 Notes reviewed, interview deemed not necessary WO #11 Interviewed

WO #12 Interviewed

WO #13 Interviewed

WO #14 Notes reviewed, interview deemed not necessary

Subject Officer

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

The Scene

Willowdale Avenue intersects Cummer Avenue at near right angles. The intersection is controlled with functioning traffic lights and pedestrian signals along with white painted crosswalks and stop bars. The intersection has solid yellow paint markings near the centre of the road to define the directionally opposed traffic flow. Artificial lighting is located on the northeast and southwest corners of the intersection. The speed limit is posted at 50km/h.

The area is primarily urban residential and there are concrete sidewalks and boulevards borders on both sides of the roads.

Scene Diagram

Expert Evidence

The SIU Reconstructionist Conclusions

• at the time of the collision Complainant #1 was operating a Honda Accord SE,
• after Complainant #1’s interaction with the PRP police officers, he drove southbound on Maxome Avenue then westbound on Cummer Avenue in the through lane entering the intersection with Willowdale Avenue on a red traffic signal at a high rate of speed,
• the speed limit on Cummer Avenue and Willowdale Avenue is posted at 50 km/h,
• at the same time a Ford Escape operated by CW #1 drove northbound in the northbound curb through lane of Willowdale Avenue,
• the complete front end of the Ford Escape came into collision with the two left doors and the left rear fender of the Honda Accord SE, breaking the left rear wheel at the axle and deflating the left rear tire,
• the Ford Escape rotated counterclockwise into the northbound passing lane and the two left doors were impacted by the right front bumper of a Toyota Prius which was driven by CW #2 which then travelled slowly northbound in the northbound passing lane of Willowdale Avenue;
• the Ford Escape continued northwest and the front end came into collision with the left front fender and driver’s door of a Mercedes CLA45 which was driven by CW #5 and travelled slowly southbound in the passing southbound lane of Willowdale Avenue,
• the Ford Escape, the Prius and the Mercedes CLA45 came to rest immediately after impact,
• the Honda Accord SE continued westbound on Cummer Ave. without having come into collision with the Prius or the Mercedes CLA45,
• the right front fender of the Accord SE was impacted by the left front fender of a Volkswagen Rabbit which was operated southbound in the southbound curb lane of Willowdale Ave. by CW #4,
• the left front tire of the Volkswagen Rabbit and the right front tire of the Honda Accord SE were damaged,
• the Volkswagen Rabbit rotated clockwise as the Honda Accord SE rotated counterclockwise creating a secondary impact on the rear fenders between these vehicles,
• the Volkswagen Rabbit rolled out westbound on Cummer Ave. with the damaged left front wheel creating a mark on the road,
• the Volkswagen Rabbit came to rest facing northwest some 34 metres west of Willowdale Ave. across both eastbound lanes of Cummer Ave.,
• the Honda Accord SE rotated counterclockwise about 275 degrees immediately after impact then rolled southwest with the right front tire creating a mark on the road,
• the Honda Accord SE came to rest facing northeast on the south sidewalk of Cummer Ave. some 11 metres west of Willowdale Ave., and
• there is no evidence to suggest the grey 2010 Accord EX PRP surveillance vehicle was involved in a collision.

Video/Audio/Photographic Evidence

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

Materials Obtained from Police Service

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

• Collision Reconstruction Field Notes;
• General Occurrence;
• ICAD-Event Details Report;
• Motor Vehicle Accident Report;
• Notes for WO #1, WO #2, WO #3, WO #4, WO #6, WO #7, WO #8, WO #9, WO #10, WO #11, WO #12, WO #13 and WO #14; and
• Total Station.

On April 9, 2016, members of PRP were engaged in surveillance of a man as a result of information that the man was a drug dealer and was actively trafficking narcotics from his motor vehicle (the target male). PRP had previously observed the target male carrying out drug transactions from two vehicles, one of them being a silver Honda Accord SE registered to the target male’s brother.

Three police vehicles were involved in the surveillance operation, with WO #1 and WO #12 each riding alone, and the SO riding with WO #2. During the surveillance, a silver Honda Accord was observed pulling into the driveway of the target male’s residence. A man exited the vehicle wearing a hoodie concealing his face and entered the residence. This same man, believed to be the target male, later exited the residence and re-entered the Honda. The surveillance team followed this motor vehicle into the Toronto area. Unknown to the surveillance team, the man driving the vehicle was not the target male, but instead was the target male’s brother (Complainant #1).

When the vehicle stopped along a curb in the area of Centre Avenue and Pamcrest Drive, the SO directed the team to conduct a tactical vehicle takedown. The vehicle being operated by the SO stopped in front of the Honda Accord, and both the SO and WO #2 approached the suspect vehicle with their firearms drawn. WO #1 then arrived on scene and saw the Honda suddenly reverse. WO #1 maneuvered his vehicle in behind the Honda in order to box it in. The Honda then accelerated and drove away. WO #12, who had not yet arrived at the location where the vehicle was pulled over, observed the Honda Accord pass by him at a high rate of speed. Over the radio, the SO directed that police were not to engage the vehicle in a pursuit. Consequently, WO #1 followed the vehicle but stayed well back. The Honda Accord was observed to drive southbound on Maxome Avenue, and enter the intersection of Cummer Avenue and Maxome Avenue against a red light, almost striking a westbound motor vehicle being driven by CW #3. The Honda Accord then turned right onto Cummer Avenue. WO #1 broadcast over the radio that the driver of the vehicle was driving dangerously and had nearly caused a collision. WO #1 continued to follow the vehicle at a safe distance.

The driver of the Honda Accord, driving on Cummer Avenue, entered the intersection with Willowdale Avenue from westbound Cummer Avenue on a red traffic signal at a high rate of speed, and became involved in a collision with a northbound Ford Escape, being driven by CW #1. The Ford Escape rotated counterclockwise into the northbound passing lane and became involved in a collision with a Toyota Prius being driven by CW #2, and then with a Mercedes CLA45 which was being driven by CW #5. After striking the Ford Escape, the Honda Accord continued westbound on Cummer Avenue and was involved in a collision with a Volkswagen Rabbit, being driven by CW #4. Complainant #2 was a passenger in the Volkswagon Rabbit.

Complainant #1, the driver of the Honda Accord, was taken to hospital but succumbed to his injuries on April 13, 2016. A post-mortem examination was conducted the following day in Toronto and the cause of death was reported as blunt impact head and chest trauma. As a part of the post-mortem examination, biological samples from Complainant #1 were forwarded to the Centre of Forensic Sciences (CFS) for analysis. On October 7, 2016, the SIU received the analysis report, and it revealed the presence of midazolam [a benzodiazepine] in the hospital admission blood.

Complainant #2 was transported to hospital for treatment of a head injury and was diagnosed with an acute subdural hematoma (a brain bleed).

Section 25(1), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

1. as a private person,
2. as a peace officer or public officer,
3. in aid of a peace officer or public officer, or
4. by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

On April 9, 2016, members of PRP were engaged in surveillance of a party they believed to be the target male, who was a possible suspect in relation to trafficking in narcotics. During the course of the surveillance, a decision was made to arrest the target male. Unknown to the surveillance team, it was not the target male, but actually Complainant #1, the brother of the target male, who was driving the motor vehicle under surveillance and fled when approached by two armed officers intending on arresting him. Shortly thereafter, Complainant #1 was involved in a fatal collision when he ran a red light and collided with a number of other vehicles that were lawfully within the intersection. The SO was the officer who made the decision to attempt to arrest the target male / Complainant #1.

The target male had previously been observed by PRP officers carrying out three drug transactions, one of which was from a silver Honda Accord SE registered to Complainant #1. The purpose of the surveillance was to attempt to gain additional intelligence and information.

During the briefing on April 9, 2016, the above information was relayed to the PRP officers who were going to be carrying out the surveillance. The surveillance team was to consist of WO #1, WO #2, WO #12 and the SO. Three police vehicles were involved in the surveillance operation with WO #12 and WO #1 each riding alone while the SO was with WO #2, who was designated as the note taker. Initially the SO and WO #2 were watching the target male’s residence, but then WO #1 took over. WO #1 observed the grey Honda Accord pull into the driveway and a tall skinny man exited the vehicle wearing a hoodie concealing his face and entered the residence. This same man later exited the residence and re-entered the Honda. It was believed that this male was the target male. The surveillance team followed this motor vehicle into the Toronto area. At some point, WO #1 heard WO #12 indicate over the radio that the vehicle had pulled over and stopped. WO #1 advised that the SO then directed the team to conduct a tactical vehicle takedown, which caught WO #1 completely off guard as no arrest had been anticipated and he was not prepared. WO #1, in his statement to investigators, was unable to assist as to what had changed that would have convinced the SO that he now had reasonable grounds to arrest.

WO #1 located the vehicle stopped along a curb in the area of Centre Avenue and Pamcrest Drive. He also observed that the SO and WO #2’s vehicle was stopped in front of the Honda Accord and the SO and WO #2 were approaching the suspect vehicle with their firearms drawn. WO #1 observed the grey Honda Accord to suddenly reverse and he, WO #1, maneuvered his vehicle in behind the Honda in order to box it in. He then observed the Honda to accelerate towards the SO and WO #2 and WO #1 believed that the officers were going to shoot the driver of the Honda, but, instead, WO #2 kicked the rear driver’s side passenger door in order to move himself out of the way of the vehicle.

WO #1 advised that he continued to follow the vehicle, although he did not engage in a pursuit. Instead, he explained, he followed to see if any firearms or drugs were tossed out of the vehicle. WO #1 stated that the SO was heard over the radio directing that police were not to engage the vehicle in a pursuit. Consequently, WO #1 stayed well back of the Honda Accord and at some point lost sight of the vehicle. At the intersection of Newton Drive and Maxome Avenue, WO #1 again observed the Honda Accord up ahead as it entered the intersection of Cummer Avenue and Maxome Avenue against a red light, almost striking a westbound motor vehicle driven by CW #3. WO #1 broadcast over the radio that the target male / Complainant #1 was driving dangerously and nearly caused a collision. WO #1 continued to follow the Honda Accord, at what he described as a safe distance since he did not wish to give the driver the impression that he was being pursued by police, when he heard from the SO over the radio that the vehicle had been involved in a bad collision.

The statement of WO #12 accords with that of WO #1 with a few additional details. WO #12 at all times believed that the driver of the motor vehicle they were following was the target male. WO #12 advised that at one point during the surveillance he heard a radio transmission from WO #2 indicating that the Honda Accord had pulled over to the right curb and WO #12 believed that the driver was checking to see if police were following him. Consequently, WO #12 advised, it was the SO along with himself who made the decision to arrest the target male / Complainant #1 for trafficking in a narcotic at that point. WO #12 does not provide any details as to why there was a change of mind from the earlier decision to only surveil the target male / Complainant #1, to now arresting him. WO #12 advised that shortly after the SO had broadcast his direction to arrest the target male / Complainant #1, the vehicle sped off. WO #12, who had not yet arrived at the location where the vehicle had pulled over, observed the Honda Accord pass by him at a high rate of speed and WO #12 transmitted over the radio to let the vehicle “ATR”, meaning “allow to run”, directing team members not to engage in a pursuit.

According to WO #2, he formed the opinion that the target male / Complainant #1 was involved in some form of illicit drug activity when he drove into a driveway in an industrial area while under surveillance, although no transactions were observed. He also advised that he became aware that the target male / Complainant #1 had pulled his vehicle over in a residential area and may have been checking to see if he was being followed. WO #2 advised that it was as a result of this action, that the SO made the call for the tactical takedown of the target male / Complainant #1 and arrest him for possession of drugs. WO #2 confirmed that he and the SO exited their vehicle and approached the motor vehicle to affect the arrest of the target male / Complainant #1, at which point the driver put his vehicle into reverse. WO #1 then drove in behind the Honda Accord in an attempt to box it in and the driver drove forward and sped away out of WO #2’s sight. WO #2 indicated that the SO then directed the team not to initiate a pursuit as they knew where the target male lived.

It is the mandate of the SIU to determine if serious injuries or deaths may have resulted from criminal offences committed by police officers. Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty.

I turn first to the lawfulness of Complainant #1’s apprehension. As the SO declined to provide a statement to investigators, as is his legal right, and WO #12 is silent in his statement as to the reasonable grounds to arrest Complainant #1, it is unclear on all of the evidence on what basis the SO issued the directive for a tactical vehicle takedown involving the target male / Complainant #1. From the statements of all of the officers who spoke to investigators, it is clear that no additional information had been gathered during the surveillance, no drug trafficking transactions had been observed, no customers had been arrested, there was no indication that the target male / Complainant #1 had drugs in his possession in the motor vehicle and police were not in possession of a warrant to arrest anyone for the hand to hand transactions observed during a prior surveillance operation. On this evidence, it is dubious that any arrest of the target male, and certainly not of Complainant #1, would have been lawful. As such, the officers would not have been acting in the execution of a lawful duty when they moved in to arrest the driver of the Honda Accord.

It is also troubling that the decision to arrest was made and immediately thereafter, the SO and WO #2 were out of their vehicle approaching the vehicle with guns drawn, before the rest of their team had even arrived. WO #1 was very clear that the decision to arrest caught him completely off guard and that he was totally unprepared for an arrest, and yet when he arrived on scene, the SO and WO #2 were already executing the takedown at gunpoint. Similarly, WO #12 stated that he tried to retrieve items out of his bag necessary for the arrest, but ran out of time; he observed the target male / Complainant #1 speeding away before he had even arrived at the scene where the SO and WO #2 were attempting to affect the arrest. I find the statement of WO #12 that he and the SO jointly made the decision to arrest inconsistent with his own evidence that he was not prepared for the arrest and did not arrive on time, as well as the fact that both of the other officers attributed both the decision to arrest and the decision to let the vehicle run and not pursue, to the SO alone.

Although I find on the evidence available to me that the officers were not in the lawful execution of their duties when they attempted to arrest Complainant #1 at gunpoint, there must nevertheless be a nexus between the injury and/or death and the actions of the officers. All of the civilian witnesses were clear that they did not observe any police vehicle, either marked or unmarked, pursuing the Honda Accord as far back as the intersection at Maxome Avenue and Cummer Avenue or leading up to the point of impact at Cummer and Willowdale Avenues.

The evidence of the civilian witnesses confirms that WO #1 remained back a safe distance from Complainant #1 after he sped off. This also appears to confirm that a directive was issued over the radio that no officers were to pursue.

I am therefore satisfied, on a review of all of the evidence, that there is no direct nexus between the actions of Complainant #1 that led to his own death and the unfortunate injury of Complainant #2 and the actions of police. It is, of course, impossible to know what was in the mind of Complainant #1 when he decided to drive in a dangerous manner, at high rates of speed and with a lack of regard for the traffic signals on at least two different controlled intersections, in order to evade police. It may well be that he mistakenly believed that police were in pursuit; but be that as it may, the evidence of the independent civilian witnesses confirms that police were not in pursuit at the time that Complainant #1 chose to drive in the reckless and dangerous fashion that he did and that he was clearly the cause of his own demise as well as the five-car collision that resulted in the injury to Complainant #2.

In the final analysis then, I am satisfied on this record that there are no grounds for proceeding with criminal charges against any officer in this case.

Date: August 16, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit