SIU Director’s Report - Case # 23-OVI-423
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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.Mandate Engaged
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 20-year-old man (“Complainant #1”) and a 27-year-old man (“Complainant #2”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 20-year-old man (“Complainant #1”) and a 27-year-old man (“Complainant #2”).
The Investigation
Notification of the SIU [1]
On October 17, 2023, at 6:04 a.m., the Durham Regional Police Service (DRPS) notified the SIU of an injury to Complainant #1.According to DRPS, at 4:16 a.m., DRPS officers responded to a report of an automobile theft in progress at an address near Strouds Lane and Whites Road North, Pickering. Complainant #1 and two other men attempted to escape and rammed a DRPS cruiser. Complainant #1 was taken to Sunnybrook Health Sciences Centre and diagnosed with a fractured leg. Another occupant of the vehicle, Complainant #2, was taken to Ajax Pickering Hospital and diagnosed with a dislocated wrist. The third occupant, the Civilian Witness (CW), was being held at 19 Division station.
The Team
Date and time team dispatched: 2023/10/17 at 6:38 a.m.Date and time SIU arrived on scene: 2023/10/17 at 8:06 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
Number of SIU Collision Reconstructionists assigned: 1
Affected Persons (aka “Complainants”)
Complainant #1 20-year-old male; interviewed; medical records obtained and reviewed Complainant #2 27-year-old male; interviewed; medical records obtained and reviewed
The Complainants were interviewed on October 17, 2023.
Civilian Witness
CW InterviewedThe civilian witness was interviewed on October 17, 2023.
Subject Official (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on October 31, 2023.
Witness Officials (WO)
WO #1 Interviewed; notes received and reviewedWO #2 Interviewed; notes received and reviewed
WO #3 Not interviewed
The witness officials were interviewed on October 23, 2023.
Evidence
The Scene
The events in question transpired on the roadway in a residential area near Strouds Lane and Whites Road North, Pickering. Scene Diagram
An Acura vehicle travelled about 43 metres from where it was parked to the area of impact with the SO’s cruiser.The following scene drawing captures the locations of involved vehicles post-collision.
Physical Evidence
The incident occurred during darkness at 4:16 a.m., October 17, 2023, in a residential subdivision with the area illuminated by artificial lighting. The asphalt-paved roadway was in good repair with concrete curbs.
Figure 1 – The Acura
Figure 2 – The SO’s vehicle
Forensic Evidence
Forensic examination of the scene was shared by the SIU and DRPS due to DRPS’s ongoing investigation and charges laid against the occupants of the Acura vehicle.
SIU’s Collision Investigation
The SIU collision reconstructionist’s review of the incident found the following:- 5.0 seconds before the collision impact, the Acura was stopped.
- 4.5 seconds before impact, the Acura’s accelerator pedal was depressed 100%.
- 4.0 seconds before impact, the Acura continued steering to the left as it pulled away from the curb.
- The Acura continued accelerating with heavy steering input as the stability control engaged.
- At the time of impact, the Acura was travelling 62 km/h with the accelerator depressed 100%.
- The SO’s cruiser drove steadily between 30 and 33 km/h between eight and five seconds before impact.
- 1 second prior to impact, the SO braked hard from 31 km/h, the anti-lock braking system engaged and the SO steered to the right.
- The cruiser was travelling at 22 km/h at the time of impact.
Video/Audio/Photographic Evidence [2]
Security Camera Recordings
The security camera recording from the home of the attempted vehicle theft was of no evidentiary value. Although it appeared the collision occurred within the camera field of view, glare from the SO’s cruiser’s emergency lights washed out the imagery.A camera at the front entrance of another home on the street captured video and audio recording of the collision. The following screenshot from the recording captured a view of both vehicles as the SO’s cruiser appeared to be travelling on the left side of the roadway and the Acura travelled on the opposite side, attempting to move past the cruiser.
Body-worn Camera (BWC) Recordings
BWC recordings were received from all involved police officers.The SO’s BWC captured the police officer driving the cruiser when the collision occurred at 4:16:03 a.m., October 17, 2023. After the air bags deployed, the SO exited the vehicle and drew his firearm as the recording audio activated.
The SO approached a man on a nearby driveway while a siren and the steady sound of a vehicle horn emanated in the background.
At 4:17:57 a.m., the siren stopped while the vehicle horn continued.
As the SO moved about, police officers engaged with two other persons in custody, lying on the roadway. One of the men, now known to be Complainant #1, complained of injury to his right leg above the knee.
At 4:26:33 a.m., the SO told the acting sergeant, “We were hugging the left corner there. They come over and around, to go to swing around us. I slammed the brakes. They rammed us and popped up.”
WO #2’s BWC captured similar events, including his egress from the cruiser by climbing over the centre console.
WO #3’s BWC captured him grasping the front right door handle and opening the door as the cruiser travelled and the emergency lights reflected outside. At 4:16:00 a.m., the cruiser stopped to the left of a vehicle, now known to have been the Acura, as, just above the door windowsill, the roofline of the Acura was seen moving away.
As the cruiser turned left, at 4:16:03 a.m., the emergency lights of another police vehicle, now known to have been the SO’s Tahoe, came into view. At 4:16:09 a.m., WO #3 exited the cruiser with his firearm drawn. As he moved away from the cruiser, the vehicle was seen rolling forward, colliding into the front-end of the SO’s Tahoe.
911 Call
On October 17, 2023, at 4:10 a.m., a man called police to report the theft of his car in progress on his driveway.Six minutes and one second into the call, the caller said, “Okay, the cops are here,” followed by, “Now it’s a chase.”
At six minutes and eight seconds into the call, a sound consistent with a collision was heard on the recording, followed by the caller saying, “Oh. Police officers hit ‘em,” and, “The car rammed, hit the police car. I can’t see around the corner. I hope the policemen are okay.”
Communications Recordings
Communications recordings captured the police dispatch to the report of the auto theft in progress.At 4:16:40 a.m., October 17, 2023, a police officer was heard reporting “a car accident here” while indecipherable yelling was heard in the background.
At 4:17 a.m., a police officer responded to the dispatcher’s inquiry if everything was okay, requesting the attendance of firefighters and an ambulance.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the DRPS between October 20, 2023, and November 16, 2023:- Communications recordings;
- Crash Data Retrieval (CDR) data – Acura;
- CDR data – the SO’s cruiser;
- List of involved police officers;
- Arrest Reports;
- Call Summary Report;
- Forensic photographs;
- Computer-aided Dispatch Report;
- Occurrence Report;
- Video footage;
- Notes – WO #1;
- Notes – WO #2;
- GPS data – the SO’s cruiser;
- BWC recordings; and
- Motor Vehicle Collision Report.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between October 17, 2023, and November 30, 2023:- Complainant #1’s medical record;
- Complainant #2’s medical record; and
- Video footage from two residences.
Incident Narrative
The evidence collected by the SIU, including interviews with Complainant #1 and Complainant #2, the SO and other police witnesses to the events in question, and video footage that captured the incident in parts, gives rise to the following scenario.
In the early morning of October 17, 2023, the SO was operating a marked police SUV with WO #2 as his passenger. They were dispatched to an automobile theft in progress near Strouds Lane and Whites Road North, Pickering. The 911 caller had reported that a number of males were attempting to make off with his Toyota parked on his front driveway.
The officers arrived in the area at about 4:15 a.m. and met with another pair of officers in a separate police SUV, also responding to the 911 call, some distance from the incident scene. The officers in the separate cruisers decided they would approach the residence from opposing directions. Seconds later, they came upon the suspects as they were re-entering the vehicle they had arrived in – an Acura TLX.
Approaching from the rear of the Acura, WO #1 maneuvered his cruiser alongside its driver’s side and then pursued it briefly as the vehicle accelerated away. The Acura travelled a short distance at speed and struck the front passenger side of the SO’s cruiser, which had been travelling towards it. The Acura came to a stop and its occupants – three of them, including Complainant #1 and Complainant #2 – were arrested.
Following the collision, Complainant #1 and Complainant #2 were transported to hospital. They were diagnosed with various fractures.
In the early morning of October 17, 2023, the SO was operating a marked police SUV with WO #2 as his passenger. They were dispatched to an automobile theft in progress near Strouds Lane and Whites Road North, Pickering. The 911 caller had reported that a number of males were attempting to make off with his Toyota parked on his front driveway.
The officers arrived in the area at about 4:15 a.m. and met with another pair of officers in a separate police SUV, also responding to the 911 call, some distance from the incident scene. The officers in the separate cruisers decided they would approach the residence from opposing directions. Seconds later, they came upon the suspects as they were re-entering the vehicle they had arrived in – an Acura TLX.
Approaching from the rear of the Acura, WO #1 maneuvered his cruiser alongside its driver’s side and then pursued it briefly as the vehicle accelerated away. The Acura travelled a short distance at speed and struck the front passenger side of the SO’s cruiser, which had been travelling towards it. The Acura came to a stop and its occupants – three of them, including Complainant #1 and Complainant #2 – were arrested.
Following the collision, Complainant #1 and Complainant #2 were transported to hospital. They were diagnosed with various fractures.
Relevant Legislation
Section 320.13 (2) Criminal Code – Dangerous operation causing bodily harm
(2) Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public and, as a result, causes bodily harm to another person.
Analysis and Director's Decision
Complainant #1 and Complainant #2 were seriously injured in a motor vehicle collision in Pickering on October 17, 2023. As the collision involved a DRPS cruiser, the SIU was notified of the incident and initiated an investigation. The SO was identified as the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the collision.
The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, the offence is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which the SO operated his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
The SO and the other officers were lawfully placed and engaged in the execution of their duties when they arrived on scene and sought to apprehend Complainant #1 and Complainant #2. Given the information at their disposal from the 911 call about a vehicle theft in progress, the officers had cause to take the individuals into custody.
I am also satisfied that the SO comported himself with due care and regard for public safety, including the safety of the occupants of the Acura, in the series of events culminating in the collision. The plan to approach the suspects from both ends of a roadway made sense as it would significantly limit the possibility of escape. Implicit in the officers’ tactic was a blockade of sorts and a risk of vehicle-to-vehicle contact, particularly if the Acura chose to attempt an escape. That risk, in my view, was a calculated one and did not unduly jeopardize public safety. The cruisers each approached the Acura at moderate speeds with their emergency lights activated. There was no traffic on the roadway – either pedestrian or vehicular – given the time of day. And the operator of the Acura had been provided reasonable opportunity to avoid a contact with the SO’s cruiser had he been so inclined. Regrettably, he instead chose to veer around it at speed, failing in his bid at escape and striking the cruiser. On this record, it is apparent that the SO did not transgress the limits of care prescribed by the criminal law in his seconds-long engagement with the Acura.
For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: February 13, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offence that arises for consideration is dangerous driving causing bodily harm contrary to section 320.13(2) of the Criminal Code. As an offence of penal negligence, a simple want of care will not suffice to give rise to liability. Rather, the offence is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which the SO operated his vehicle, sufficiently egregious to attract criminal sanction, that caused or contributed to the collision. In my view, there was not.
The SO and the other officers were lawfully placed and engaged in the execution of their duties when they arrived on scene and sought to apprehend Complainant #1 and Complainant #2. Given the information at their disposal from the 911 call about a vehicle theft in progress, the officers had cause to take the individuals into custody.
I am also satisfied that the SO comported himself with due care and regard for public safety, including the safety of the occupants of the Acura, in the series of events culminating in the collision. The plan to approach the suspects from both ends of a roadway made sense as it would significantly limit the possibility of escape. Implicit in the officers’ tactic was a blockade of sorts and a risk of vehicle-to-vehicle contact, particularly if the Acura chose to attempt an escape. That risk, in my view, was a calculated one and did not unduly jeopardize public safety. The cruisers each approached the Acura at moderate speeds with their emergency lights activated. There was no traffic on the roadway – either pedestrian or vehicular – given the time of day. And the operator of the Acura had been provided reasonable opportunity to avoid a contact with the SO’s cruiser had he been so inclined. Regrettably, he instead chose to veer around it at speed, failing in his bid at escape and striking the cruiser. On this record, it is apparent that the SO did not transgress the limits of care prescribed by the criminal law in his seconds-long engagement with the Acura.
For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: February 13, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Unless otherwise specified, the information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.