Director's Report Details

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.

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 Personal 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.

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

• 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.

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 35-year-old man (“Complainant #1”) and a 39-year-old woman (“Complainant #2”).

Notification of the SIU[1]

On December 23, 2023, at 11:00 p.m., the Toronto Police Service (TPS) notified the SIU of injuries to Complainant #1 and Complainant #2.

According to the TPS, on December 23, 2023, at 7:56 p.m., a TPS police officer was responding to a break and enter in progress with his emergency equipment activated when the cruiser collided with a civilian vehicle [later known to be driven by Complainant #1] at Bayview Avenue and Sheppard Avenue. Preliminary information indicated that Complainant #1’s vehicle was occupied by his wife and two children. Complainant #1 was transported by Toronto Paramedic Services - Emergency Medical Services to Sunnybrook Health Sciences Centre (SHSC) and diagnosed with a fractured pelvis and ribs. His wife [later identified as Complainant #2] was diagnosed with a liver laceration and was being held for monitoring at North York General Hospital.

The Team

Date and time team dispatched: 2023/12/23 at 11:45 p.m.

Date and time SIU arrived on scene: 2023/12/24 at 1:30 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Number of SIU Collision Reconstructionists assigned: 1

Affected Persons (aka “Complainants”):

Complainant #1 35-year-old male; interviewed; medical records obtained and reviewed

Complainant #2 39-year-old female; interviewed; medical records obtained and reviewed

The Complainants were interviewed between December 29 and 30, 2023.

Civilian Witness (CW)

CW Not interviewed (declined)

The civilian witness provided a typed statement on February 6, 2024.

Subject Official (SO)

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

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed on December 29, 2023.

The Scene

The events in question transpired on a stretch of roadway beginning at the intersection of Leslie Street and Finch Avenue East, continuing west on Finch Avenue East until Bayview Avenue, and then south on Bayview Avenue until the site of a motor vehicle collision at Bayview Avenue and Teagarden Court, Toronto.

Scene Diagram

Physical Evidence

On December 24, 2023, at 1:30 a.m., a SIU forensic investigator arrived on scene at the T-intersection with Teagarden Court and met with a TPS reconstructionist, WO #3, who provided a briefing. The weather was cool with a light drizzle of rain falling. A heavy presence of fog was present, and the roads were wet.

Bayview Avenue ran in a general north/south direction. The roadway was paved, and lane markings were present. The roadway was in a good state of repair.

Proceeding north on Bayview Avenue, there were two marked lanes with a left turn lane onto Teagarden Court. Bayview Avenue had a slight decline in the roadway proceeding northbound. North of the intersection with Teagarden Court, there was a raised centre median separating the northbound and southbound lanes. Southbound Bayview Avenue in the area consisted of three marked lanes. The posted speed limit was 50 km/h. Overhead streetlights were on both sides of the roadway. Pedestrian sidewalks were on both sides of the roadway. There were signs on the centre island advising that U-turns were prohibited.

Teagarden Court ran west from Bayview Avenue, which it intersected in a “T” formation. There was one lane for eastbound and one lane for westbound traffic. Eastbound traffic was controlled with a stop sign at Bayview Avenue. The posted speed limit was 30 km/h.

Two vehicles were located within the scene as follows:

Vehicle 1 was a Ford Explorer SUV, grey and white in colour. This was a marked police vehicle, which displayed graphics as designed by the TPS. The vehicle was equipped with a front mount push-bar. The vehicle was oriented in a southeast direction across lanes 1 and 2 of northbound Bayview Avenue. The vehicle had extensive front-end collision damage. Both the driver and the front passenger air bags had deployed. The Fire Department had cut the power to this unit and the emergency equipment could not be examined at the scene.

Figure 1 – Front-end damage to the SO’s cruiser

Vehicle 2 was a Toyota Camry 4-door. This vehicle was oriented in a southeast direction across lane 1 of northbound Bayview Avenue. The vehicle had extensive collision damage to the driver side of the vehicle. The driver’s door had been removed by the Fire Department. The driver side curtain air bags had deployed on the vehicle.

Figure 2 – The driver side of the Toyota Camry

An examination of the scene revealed gouge marks on lane 2 of northbound traffic on Bayview Avenue, north of the two vehicles and south of the centre dividing island. The gouge marks were highlighted with three pylons to assist with photo capture of the scene. The debris field commenced north of the vehicles and continued south of the vehicles. No tire marks were visible within the scene.

Figure 3 – View south on Bayview Avenue of the collision in the northbound lanes

At 2:55 a.m., a TPS exhibit bag was obtained. The content of the exhibit bag was a dash camera that had been removed from the Toyota Camry by Fire Department personnel and turned over to TPS staff at 33 Division.

An agreement was made with WO #3 that TPS would tow and secure the two involved vehicles at TPS garage at 2050 Jane Street. The vehicles would be examined by both police and SIU.

The scene was photographed and scanned to capture detail for the completion of a scene drawing.

Arrangements were made to have a SIU reconstructionist attend for the follow-up examination of the involved vehicles on December 29, 2023.

On December 29, 2023, at 9:40 a.m., a SIU forensic investigator attended TPS 2050 Jane Street, Toronto, with a SIU reconstructionist. In attendance were the TPS SIU liaison and two TPS reconstructionists, including WO #3. A TPS mechanic was also present to assist.

The SO’s TPS vehicle was examined. After using an auxiliary power supply, the emergency lighting was checked and found to function as designed. The unit’s siren, while displaying on the control panel, was inoperative and appeared to either have been damaged in the collision or cut by the attending Fire Department. The unit’s horn was also not operational due to the steering wheel air bag deployment. The download of the police vehicle’s Crash Data Retrieval (CDR) module data was provided on a USB from WO #3 at 12:00 p.m.

At 1:05 p.m., the Toyota Air Bag Module was removed from the vehicle and secured as Exhibit #3.

Forensic Evidence

Global Positioning System (GPS) Data – The SO’s Police Cruiser

On December 23, 2023, at 7:45 p.m., the data indicated that the SO and WO #1 were stationary on Leslie Street, north of Finch Avenue East.

At 7:51 p.m., the SO turned left onto Leslie Street and drove southbound to Finch Avenue East, where he turned right and drove westbound. Between about 7:51 and 7:53 p.m., the SO drove westbound about two kilometres on Finch Avenue East from Leslie Street to Bayview Avenue, a 50 km/h zone. He appeared to drive in the centre-most westbound lane [lane 1]. The SO drove at an average speed of 93 km/h with a maximum speed of 136 km/h.

At Finch Avenue East and Bayview Avenue, the SO turned left and drove southbound on Bayview Avenue where the speed limit was posted at 50 km/h. He drove southbound in lane 1 [centre-most southbound lane] about 1.8 kilometres to where the collision occurred just north of Sheppard Avenue East. On Bayview Avenue, the SO drove at an average speed of 108 km/h, with a maximum speed of 125 km/h just south of the traffic light-controlled intersection of Bayview Avenue and Empress Avenue/Citation Drive.

At 7:54:38 p.m., the SO drove southbound through the traffic light-controlled intersection of Bayview Avenue at Bayview Mews Lane at about 106 km/h. He continued south and passed Spring Garden Avenue.

At 7:54:41 p.m., the SO drove southbound on Bayview Avenue in northbound lane 1. He was about 20 metres south of the north end of a raised centre island and about 30 metres from the south end of the same island, the end of which was about even with the north curb of Teagarden Court. His rate of speed was 99 km/h.

At 7:54:43 p.m., the SO was southbound in northbound lane 1. His rate of speed was 70 km/h. This position was consistent with the approximate position of the police vehicle where it came to a stop after the collision had occurred.

CDR Data – The SO’s Police Cruiser and Toyota Camry

As per the two CDR reports, the SO wore his seat belt, and WO #1 did not. Complainant #1 and Complainant #2 both wore their seat belts.

About five seconds prior to the collision, the SO depressed the accelerator pedal at nineteen percent of full. There was no brake application. The steering wheel was straight. The police vehicle, traveling at 106 km/h, would have been about 138 metres north of the area of impact at this time.

About 4.4 seconds prior to the collision, Complainant #1 drove at 38 km/h. Neither the accelerator pedal nor brake pedal was depressed. The speed of the police vehicle was 105 km/h at this time was.

About 4 seconds prior to the collision, the SO had the accelerator pedal depressed at seven percent of full. The brake was not on. There was a minimal degree of steering input to the left. The speed of the police vehicle was 104 km/h.

About 3.4 seconds prior to the collision, Complainant #1’s speed was still 38 km/h, and he was not yet braking. The SO had neither the accelerator nor brake pedal depressed. The speed of the police vehicle was 103 km/h.

About 3 seconds prior to the collision, the SO had neither the accelerator pedal nor the brake pedal depressed. There was a minimal degree of steering input to the left. His speed was 102 km/h.

About 2.4 seconds prior to the collision, Complainant #1 was braking and had slowed to about 32 km/h. The SO had neither the accelerator nor brake pedal depressed. The speed of the police vehicle was 101 km/h.

About two seconds prior to the collision, the SO depressed neither the accelerator pedal nor the brake pedal. There was a minimal degree of steering input to the right. The speed of the police vehicle was 100 km/h.

About 1.4 seconds prior to the collision, Complainant #1 was still braking and had slowed to about 22 km/h. The police vehicle had slowed to 98 km/h. The SO now had the accelerator pedal depressed 20 percent.

About one second prior to the collision, the SO had the accelerator pedal depressed at 25 percent of full. The brake was not on. There was a minimal degree of steering input to the right. The speed of the police vehicle was 98 km/h.

At about 0.8 seconds prior to the collision, the SO had his foot still on the accelerator pedal at 24 percent. The speed of the police vehicle was 97 km/h.

At about 0.6 seconds prior to the collision, the SO had applied the brake pedal. He steered to the left and kept his foot on the brake pedal. The police vehicle had slowed from about 97 km/h to about 79 km/h, and the Camry had slowed from about 12 km/h to about 8 km/h.

Video/Audio/Photographic Evidence[2]

ICCS Footage – The SO’s Police Cruiser

On December 23, 2023, at 7:51 p.m., the ICCS video was activated. The cruiser’s emergency lights and siren were not yet activated. The SO turned onto Leslie Street and drove southbound. The road was wet and there was a light rain. The windshield wipers were on intermittently. A vehicle pulled into the southbound lanes from the left. The SO slowed and changed to lane 2 (numbered from the centre of the road outwards). The cruiser’s flashing emergency lights and siren were activated, which also activated the ICCS audio function.

The SO approached the traffic light-controlled intersection at Finch Avenue East, where he turned right and accelerated westbound. No other traffic was affected. The left-turn indicator of a westbound vehicle ahead of the cruiser turned on as the police vehicle approached. The westbound vehicle braked and slowed in lane 1. Either the SO or WO #1 commented that the driver of the vehicle should have pulled to the right. The SO passed the vehicle in lane 2 and continued westbound. At Finch Avenue East and Pineway Boulevard/Alamosa Drive, the traffic light was green. There were two westbound cars, neither of which were affected by the cruiser as it proceeded westbound. Six westbound vehicles were ahead of the cruiser as it travelled westbound near East Don River. They all pulled over to the right.[3] The cruiser proceeded through the intersection at Tollerton Avenue/Heathview Avenue on a green light. The SO passed two TTC buses, neither of which were affected by the cruiser.

The traffic light was red at Finch Avenue East and Bayview Avenue for westbound traffic. At about 7:53:35 p.m., the SO appeared to have stopped very briefly before proceeding into the intersection and turning left. No other traffic was affected by the officer’s maneuver. The SO continued southbound on Bayview Avenue, a 50 km/h zone. A few southbound vehicles were encountered and passed by the cruiser. At about Hillcrest Avenue, the SO approached heavier southbound traffic. He pulled into the common centre left-turn lane and continued southbound to circumvent the traffic.[4] The cruiser’s flashing emergency lights and siren were still on. At Hollywood Avenue/Foxwarren Avenue, the SO continued southbound in the common centre left-turn lane.[5] At Bayview Mews Lane, the traffic light was green. The SO entered the intersection using the left-turn lane to overtake other southbound traffic.[6] There were no issues with the other traffic. The SO passed Spring Garden Avenue, then moved further to his left and drove southbound in northbound lane 1 as he approached the start of a raised centre island. The SO had driven about 400 metres in the common centre left-turn lane overtaking southbound traffic. At the north end of the raised centre island, a Toronto Paramedic Service ambulance was captured travelling southbound in southbound lane 1.

At 7:54:38 p.m., the SO passed the north end of the raised centre island. In front of the ambulance were two vehicles travelling southbound, one in each lane. The SO drove southbound in northbound lane 1 on the east (northbound) side of the raised centre island. A white SUV, which was southbound in lane 1, braked. At 7:54:39 p.m. (about one second after the SO had passed the north end of the raised centre island driving southbound in northbound lane 1), a Toyota Camry [now known to be driven by Complainant #1], which was in front of the white SUV, started a U-turn around the south end of the raised centre island. The Camry travelled from southbound lane 1 across northbound lane 1. A male voice in the police vehicle said, “Wait.”[7]

At 7:54:40 p.m. (about two seconds after the SO had passed the north end of the raised centre island driving southbound in northbound lane 1, and about one second after the Camry was in front of the police vehicle), the front of the police vehicle collided violently with the driver side of the Camry as it was making a U-turn. The SO and WO #1 appeared to exit the police vehicle and one of them immediately notified the dispatcher of the collision.

Body-worn Camera (BWC) Footage

The footage was all post-incident.

Communications Recordings

On December 23, 2023, at 7:50 p.m., the SO and WO #1 were dispatched in connection with a “hot shot” (emergency call) related to a break and enter in North York.

At 7:54:26 p.m., the SO advised he had a “priority collision at Bayview and Sheppard. Need units please”.

At 7:55:07 p.m., the SO advised an ambulance was on scene and there were children involved. Another request was made for more police officers to assist.

At 7:55:51 p.m., an automated call was received by the TPS that the owner of an iPhone was involved in a severe car crash and not responding to the phone. The SO advised that two children and two adults were involved, and they were conscious and breathing.

At 7:58:39 p.m., WO #2 arrived on scene. WO #2 advised that the SO and WO #1 were involved in a collision with serious injuries, but not life threatening. Air bags had deployed and both officers were okay.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TPS between December 23, 2023, and January 17, 2024:

• Air Bag Control Module (ACM) data – the SO’s police vehicle;
• ACM data - Toyota Camry;
• Communications recordings;
• BWC footage;
• ICCS footage;
• Field notes – WO #3;
• Computer-assisted dispatch reports;
• Involved Officer List;
• Motor Vehicle Collision Report;
• Notes – WO #1;
• Notes – WO #2;
• Notes – WO #3;
• The SO - Blue Card (driving qualifications);
• General Occurrence Report;
• GPS data - the SO’s police vehicle;
• Policy - Use of Service Vehicles; and
• Policy - Service Vehicle Collisions.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between December 23, 2023, and February 8, 2024:

• Ambulance Call Reports;
• Paramedic Statement – the CW;
• Complainant #1’s medical records from SHSC;
• Complainant #2’s medical records from St. Michael’s Hospital;
• Dash-cam video from the Toyota Camry; and
• Video footage - 2885 Bayview Avenue.

The evidence collected by the SIU, including interviews with Complainant #1 and Complainant #2, and video footage that captured the incident, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.

In the evening of December 23, 2023, Complainant #1 was operating a Toyota Camry southbound on Bayview Avenue approaching Sheppard Avenue East. Complainant #2 occupied the front passenger seat. Their two small children were seated in the back. Complainant #1 had just driven past the Loblaws store on the east side of Bayview Avenue when, from the passing lane of Bayview Avenue, just north of Teagarden Court, Complainant #1 initiated a U-turn around the south end of a raised centre median that divided south and northbound traffic. As the Camry entered onto the northbound passing lane of Bayview Avenue, its driver side was struck by a TPS cruiser.

The SO was operating the cruiser. His partner, WO #1, was in the front passenger seat. The officers had made their way west on Finch Avenue East from Leslie Street and were south on Bayview Avenue en route to the scene of a reported break and enter in progress when the collision occurred. The cruiser’s lights and siren on, the SO had entered onto the northbound passing lane just north of the raised centre median to overtake southbound traffic when the Camry turned in front of him.

The officers exited their cruiser after the collision and rendered assistance to the Camry’s occupants. A paramedic travelling in the area also stopped to assist. The children, neither of whom was seriously injured, were removed from the Camry. The Complainants were also extricated and transported to hospital. Complainant #1 had sustained multiple rib and pelvic fractures. Complainant #2 suffered a lacerated liver and an orbital bone fracture.

Section 320.13 (2), Criminal Code – Dangerous Operation Causing Bodily Harm

320.13 (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.

Section 128 (13)(b), Highway Traffic Act – Police Vehicles and Speeding

128 (13) The speed limits prescribed under this section or any regulation or by-law passed under this section do not apply to,

(b) a police department vehicle being used in the lawful performance of a police officer’s duties;

Complainant #1 and Complainant #2 were seriously injured in a motor vehicle collision on December 23, 2023. As their vehicle was struck by a TPS 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 WO #1 were engaged in the execution of their duties responding to a priority call for service when their vehicle collided with the Camry. The issue is whether they comported themselves within the confines of the criminal law as they made their way to the scene of a reported break and enter.

I accept that there are aspects of the manner in which the SO operated his cruiser, particularly in the moments leading to the collision, that could fairly be characterized as dangerous. Entering onto an oncoming lane of traffic at speed as the SO did is bound to risk public safety. I am unable, however, to reasonably conclude that the officer’s conduct departed markedly from a reasonable standard of care in the circumstances.

The SO’s speed as he made his way across Finch Avenue East and Bayview Avenue is subject to legitimate scrutiny. For stretches of his 3.9 kilometre route to the scene of the collision, the officer was well in excess of the 50 km/h speed limit, clocking in as high as 136 km/h. The risks inherent in that kind of speed were exacerbated by the road and weather conditions at the time – wet and raining. On the other hand, it is apparent on the ICCS video footage that third-party vehicular traffic was not directly placed in jeopardy at any point prior to the final seconds before the collision. In fact, there was little traffic on the roadway on Finch Avenue East. The dangers associated with the SO’s speed were also lessened to an extent by the use of the cruiser’s emergency lights and siren, active throughout the event, which would have provided notice to traffic of the cruiser’s presence. Lastly, it is important to note that police officers are exempt from the speed limit by virtue of section 128(13)(b) of the Highway Traffic Act. While that provision does not confer carte blanche on officers to speed without regard to public safety, it does reflect a recognition in the law that police will of necessity have to speed on occasion in the discharge of their duties. In the situation that prevailed, with police responding to a priority call for service, one would expect officers to attend at the scene as quickly as safety will allow.

The wisdom of entering into the northbound passing lane of Bayview Avenue at the raised centre median, at speed, was questionable. Here too, however, the SO’s conduct was not without extenuating considerations. Too reiterate, the officers were attempting to get to the scene of a break and enter; time was of the essence. As southbound traffic was backed-up in that area, it made sense that the SO would attempt to circumvent the vehicles ahead of him by entering into the oncoming lane of traffic, which was free of traffic at that point. Nor was it clearly foreseeable that a vehicle would make a U-turn in front of the officer - the cruiser’s emergency lights and siren were on at the time, and southbound traffic was expressly prohibited from making a U-turn where Complainant #1 made his U-turn. Of course, had the SO lowered his speed as he approached and then overtook the southbound traffic in the northbound lane, he might have been able to react to Complainant #1’s vehicle by stopping ahead of a collision. That indiscretion, however, weighed in the balance with the mitigating considerations, falls short of transgressing the limits of care prescribed by the criminal law.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case.

Date: April 19, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit