Mandate of the SIU

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.

Information restrictions

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.

Mandate engaged

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 injury sustained by a 32-year-old male during an interaction with a police officer.

The investigation

Notification of the SIU

On June 5, 2018, at 10:24 p.m., the Toronto Police Service (TPS) reported an injury that occurred earlier that day. The TPS reported that at 9:25 a.m. on that date, a sergeant (the subject officer) was conducting a traffic stop at 200 Adelaide Street West when he opened his cruiser’s driver door and struck a cyclist, the Complainant, as he rode past the cruiser.

Paramedics attended the scene and the Complainant was checked and cleared. Later in the evening, the Complainant notified the TPS that he had sustained a fracture to his right wrist.

Since the TPS were not immediately made aware that the Complainant had sustained a serious injury, notification of the SIU was delayed until the TPS learned of the serious injury, resulting in the scene not being held for examination by the SIU.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

Subject Officer

SO Interviewed, notes received and reviewed

Evidence

The Scene

This incident occurred in the bicycle lane of Adelaide Street West in the City of Toronto, in the area between the entrance and exit of a multi-level parking lot at 211 Adelaide Street West. Duncan Street is situated to the west and Simcoe Street to the east. Adelaide Street West is an asphalt-paved road aligned for one way eastbound traffic with three marked lanes and a designated bicycle lane at the right (south) side of the road, immediately adjacent to the concrete curb and sidewalk.

As a result of a canvass for video surveillance recordings, the SIU obtained and reviewed recordings from The Burger’s Priest restaurant at 212 Adelaide Street West and Cake Bar and Nightclub at 214 Adelaide Street West.

Scene photo

Location where the subject police vehicle was parked. The passing cyclist in the photo is not the Complainant.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Cake Bar and Nightclub Security Video Recording

Security cameras at Cake Bar and Nightclub captured video of a fully marked Ford Crown Victoria TPS cruiser as it parked at the south curb on Adelaide Street West, immediately east of construction hoarding on the south side of the street. A camera captured the police officer’s arrival, parking at 8:47 a.m. with the rear of the cruiser backed close to the east hoarding where the temporary bicycle lane was demarcated around the north side of the hoarding. The SO exited his cruiser and walked away, but returned to his cruiser shortly thereafter. He returned to the cruiser on two more occasions, and it appeared he did so in order to write infraction notices.

At 9:16:56 a.m., the SO appeared walking west to the cruiser. He remained parked there until 9:22:03 a.m., when he drove forward and out of camera view. As the cruiser left the camera view, a group of cyclists rode in a procession in the same direction. The seventh cyclist then stopped abruptly before exiting view, likely stopping as a result of the collision.

The Burger’s Priest Security Video Recording

A security camera at The Burger’s Priest restaurant also captured the incident. The camera viewed the roadway area to the southeast and captured only a partial view of the cruiser while it was stopped and this incident occurred.

At 9:19:15 a.m. on the recording, the fully marked police cruiser pulled up and stopped at the south curb, in the designated bicycle lane. No emergency or flashing lights were seen activated on the vehicle, but the windows and roof were not visible in the recording. After two cyclists passed the left side of the cruiser, at 9:19:24 a.m., the driver door opened slightly as a cyclist, now known to be CW #3, rode by the left side of the cruiser.

At 9:19:25 a.m., another cyclist, now known to be the Complainant, passed the cruiser’s driver door. At that moment, the door fully opened, striking the Complainant’s right side. He fell to the road as a number of other cyclists approached in a procession behind him.

In-Car-Camera System (ICCS) Recording from the SO’s Police Vehicle

The recording from the SO’s cruiser captured the SO as he walked north onto the roadway of Adelaide Street West where he knocked at CW #4’s passenger door window and directed her to pull over. He told her he saw her using her cellular phone while driving and advised her that his car camera was recording at the time.

The SO walked to his cruiser as CW #4 drove one lane to the right and pulled over to the south curb and parked in the bicycle lane with the four-way flashers activated. After several cyclists rode by the left side of her vehicle, CW #4 exited the car and stood at the rear of the car, advising approaching cyclists of her presence.

At 9:22:05 a.m., the SO started driving east in the curb lane, approaching CW #4’s car and stopped at 9:22:23 a.m. About seven seconds later, at about 9:22:30 a.m., a sound was heard, believed to be the driver door handle or latch engaging. Two seconds later, the collision with the Complainant was heard.

The SO immediately exited and asked the Complainant, “Are you alright?” and said, “I was opening my door. You didn’t see me?” The Complainant responded, “How am I supposed to see you when you open it that close man?”

As other cyclists questioned and challenged the police officer’s actions, the SO asked the Complainant several times if he needed an ambulance.

When a woman, now known to be CW #2, asked if he checked his mirror, the SO said, “I did. As soon as he (motioning to CW #3) passed I opened the door and that was it.”

When the Complainant said that the SO “clearly opened the door,” the SO confirmed that and said the ICCS recorded the incident.

After the SO issued a ticket to CW #4, CW #3 asked him about the law with respect to parking in bicycle lanes. The SO said that he had a vehicle stopped but would get back to him on that after seeking advice. When CW #3 asked the SO if he saw them, the cyclists, approaching, the SO responded, “Yea. I then opened it slowly and I thought he was slowing down so I opened it and he was going to go around me but he didn’t, he went into me.” The SO again told CW #3 that the incident would have been recorded on the ICCS.

Police Communications Recordings

The radio transmission recordings were obtained and reviewed. The transmissions were consistent with those captured on the ICCS.

Materials obtained from Police Service

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

  • General Occurrence Report
  • Police Communications Recording
  • TPS written statement taken from CW #2
  • ICCS video recording from the SO’s police vehicle, and
  • Notes of WO #1 and the SO

The SIU obtained and reviewed the following materials and documents from other sources:

  • Medical Records of the Complainant related to this incident
  • Ambulance Call Report
  • Three photos received from the Complainant
  • CCTV recording from the Burger’s Priest Restaurant, and
  • CCTV recording from the Cake Bar and Nightclub

Nature of Injuries / Treatment

The Complainant was assessed and his hand x-rayed at hospital. He was diagnosed with a non-displaced fracture to his right scaphoid (the largest carpal bone of the wrist located on the thumb side of the hand).

Relevant legislation

Sections 219 and 221, Criminal Code - Criminal negligence Causing Bodily Harm

219 (1) Every one is criminally negligent who

  1. in doing anything, or
  2. in omitting to do anything that it is his duty to do

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, “duty” means a duty imposed by law.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Section 165, Highway Traffic Act – Opening of Doors of Motor Vehicles

165 (1) No person shall,

  1. open the door of a motor vehicle on a highway without first taking due precautions to ensure that his or her act will not interfere with the movement of or endanger any other person or vehicle; or
  2. leave a door of a motor vehicle on a highway open on the side of the vehicle available to moving traffic for a period of time longer than is necessary to load or unload passengers

Incident narrative

The events in question leading to the Complainant’s right wrist fracture are clear on the evidence collected by the SIU, which included statements from the Complainant, the subject officer and four independent eyewitnesses, and video recordings of the incident captured by the SO’s cruiser and two surveillance cameras from commercial establishments in the vicinity. On June 5, 2018, the SO of the TPS was on duty and located in the area of 211 Adelaide Street, between Simcoe and Duncan Streets, in the City of Toronto. The SO arrived in the area at approximately 8:47 a.m.footnote 1 and parked his marked police vehicle at the south side curb. He then exited his cruiser and was on foot keeping an eye out to see if any passing motorists were in contravention of the HTA in that they were driving while using a handheld electronic device.

At about 9:16 a.m., the SO pulled over CW #4’s motor vehicle and returned to his cruiser to prepare a ticket. Several minutes later, the officer moved his police vehicle forward and parked behind the vehicle he had stopped. The officer’s cruiser was at this point stopped adjacent to a multi-level parking garage, still on the south side of Adelaide Street. In doing so, the SO parked fully in the designated bicycle lane, as did the motorist that he had pulled over. The SO did not activate his cruiser’s emergency lighting system.

At approximately 9:22 a.m., after two eastbound cyclists passed the stopped police cruiser on the driver’s side, the ICCS captured the sound of the SO opening his car door and revealed him to open his door slightly as a third cyclist passed on the driver’s side. Seconds later, the ICCS video captured the sound of a collision and depicted the Complainant passing by the driver’s side of the police cruiser as, simultaneously, the SO fully opened his driver’s door and struck the Complainant’s right side, causing the Complainant to fall to the ground.

Analysis and director’s decision

Section 165 of the Highway Traffic Act (HTA) places the onus on the party exiting a motor vehicle to ensure that the opening of his or her door will not endanger or interfere with the movement of any other person or vehicle. It is clear that the SO was at fault, and in apparent contravention of s. 165 of the HTA, in that he opened his door without first ensuring that he was not endangering or interfering with any persons who were travelling in the marked bicycle lane. Specifically, his actions in opening his door without first taking sufficient precautions to ensure that the way was clear interfered with the movement of the Complainant on his bicycle and endangered the Complainant. On this record, I am satisfied on reasonable grounds that the SO is responsible for directly causing the collision with the Complainant and causing his injury.

That, however, does not end the matter. The question remains whether the actions of the SO rose to the level required to make out the offence of criminal negligence causing bodily harm, contrary to s. 221 of the Criminal Code. As an offence of penal negligence, it is predicated in part on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. There are, in my view, reasonable grounds to believe that the SO, immediately prior to the collision between his car door and the bicycle and person of the Complainant, did not take the necessary precautions when he opened his door into bicycle traffic and thereby caused the injuries to the Complainant. Had the officer done so, I am satisfied that he would have seen the Complainant and waited for the cyclist to clear before opening his car door. On the other hand, there is evidence to suggest that the SO was in fact mindful of cyclists in the bicycle lane in the seconds preceding the collision with the Complainant and his bicycle. From the moment the officer pulled up in his cruiser behind CW #4’s vehicle, he had seen and allowed two cyclists to pass him before nudging his driver’s side door slightly ajar while waiting for a third cyclist to go by. In the final analysis, while the SO was clearly to blame for causing the accident and may well be liable for committing an offence under s. 165 of the HTA, his indiscretion amounted in essence to a momentary lack of attention and fell short of constituting a marked departure from a reasonable level of care in the circumstances. Consequently, I am satisfied that there is no basis for proceeding with criminal charges against the subject officer in this case, and the file is closed.

Date: August 3, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit