In any investigation of a serious motor vehicle collision the downloading of crash data from a vehicle’s event data recorder must be a primary activity. Yet Ontario’s Special Investigations Unit (SIU) often fails to gather that critical evidence in their investigations. Why this happens is unclear.
An example of this is demonstrated in the SIU Director’s Report with respect to a cyclist who was struck by a Toronto police vehicle on Pembroke Street in downtown Toronto on July 12, 2023. While the incident was of a less-serious nature a review leads to broader issues of SIU transparency.
Brief SIU History
The SIU has a long history of continuous struggles with transparency. The very reason for its existence commencing in 1990 is that there was a lack of transparency when police departments were allowed to investigate their own potential misconducts. The SIU was formed to provide the important transparency to ensure the public. As has been noted numerous times by others: Justice must not just be done, it must be seen to be done. That “seeing” is the difference between an autocratic regime that we want to avoid, and one that is a benefit to our society by providing assurance that the rule of law is carried out blind to all biases.
Key criticisms in past history have included the reports of Ontario’s Ombudsman, Andre Morin, who highlighted the political interference with the SIU’s investigations in years around 2008. To many it became clear that the SIU’s operations were too secretive. In April, 2016, Toronto’s Mayor John Tory had the following comment:
“When people can’t see what’s going on, no matter what the result is they tend to have less faith in the process that lies behind it,” Tory said. “There’s not enough transparency now and I think as a result people misunderstand what goes or what they think goes on.”
In April, 2016 an article published by the Canadian Press noted:
“Despite years of outcry from critics saying the public should be able to scrutinize the watchdog’s decisions, particularly in cases where an officer is not charged, the document is considered confidential by the SIU and Ministry of the Attorney General.“
In April, 2016 a comprehensive review of the SIU’s operations was assigned to Ontario Court of Appeal Justice Michael Tulloch. The following year he released his report outlining 129 recommendations, including the general premise that more power be given to Ontario’s police oversight bodies. In the fall of 2017 the Safer Ontario Act was supposed to act on many of Tulloch’s recommendations and the law was passed in March of 2018. Yet, in the summer of 2018 a new Progressive Conservative government, led by Doug Ford, quashed the new law describing it as “anti-police” legislation. A new law entitled the Comprehensive Police Services Act was introduced in the late winter of 2019, which generally cut back on the powers of the SIU.
The report of Justice Michael Tulloch was to improve the operations of the SIU. But after much work, expense and delay it was shelved by Doug Ford’s government. And so this is where we stand today.
The Cyclist Incident
In the subject incident the cyclist allegedly had attempted a robbery and assaulted a store owner before he fled on his bicycle. During the subsequent police chase the cyclist came to be riding southbound along the narrow confines of Pembroke Street. The SIU did not provide a view of the collision site in their report. The image below is taken from Googlemaps and is a view looking south from the north end of Pembroke Street. The SIU reported that the collision with the cyclist occurred about 100 metres south of this location, or in the background of this view.
Pembroke is a one-way street, is short in length and parking is allowed along its east side. It contains a posted speed limit of just 30 km/h. The southward view below shows the area where the SIU reported that the impact occurred, which is in the vicinity of #109 Pembroke Street.
One can see in the above image that there are fences at the edges of the properties of both sides of the road so there is no practical way that the cyclist could have exited the road. Thus he either had to travel on the road or on the sidewalk. Also this is a downtown location and parking is limited so that one would expect the parking spots to be filled with parked vehicles at the time of the collision.
A subsection of the SIU Director’s Report was entitled “The Scene” and such a section would normally contain information and evidence gathered from an examination of the collision site. However there was no mention about anything related to the site of the collision. In a further section of the report a note contained the following “Date and time SIU arrived on scene: 07/12/2023 at 6:10 p.m.” So it would seem that SIU investigators did attend the collision site. However there was no mention in the SIU report as to what was done or what was found. Instead “The Scene” subsection began with a discussion of the damage to the struck cycle and the impact evidence on the striking police vehicle. This finding is odd at best.
As someone who has conducted thousands of collision investigations for various clients I would certainly examine a collision site as quickly as possible knowing that crucial evidence can easily be destroyed. Failing to find any evidence at a site examination is odd, particularly because the SIU was notified perhaps 5 or 6 hours after the incident occurred, which, in terms of my experience, is a short delay. Given the severity of the impact to the cycle, at a minimum, scrapes should have been observed on the road surface showing the path of the cycle to final rest. And sometimes a tire mark can be seen from the rear tire of a cycle as this is pushed down into the pavement. Thus this could identify the point of impact.
Timing of the incident events is also confusing in the SIU report. The SIU reported that it was informed of the collision by the Toronto Police Service (TPS) on July 12, 2012, at 4:03 p.m., and the TPS told the SIU that the TPS received an initial 911 call on July 12, 2022 at 11:24 a.m. informing them of the attempted robbery and assault. Yet, in the section of the SIU report entitled “Global Positioning System (GPS) Data” it was reported that the collision occurred “At about 10:09:25 a.m.” or about an hour and 15 minutes before the robbery was even reported. Clearly this discrepancy is not difficult to observe. Yet the SIU report made no mention of it. Even if there was some reasonable explanation, that was obvious to the SIU, that explanation should have been provided in their report.
Furthermore, in the “TPS Communications Recordings” section of the report the opening sentence stated as follows:
“On July 12, 2023, at 9:27 a.m., a man called 911 and reported that another man had “assaulting a store owner”. Banging could be heard in the background. The caller said the man had thrown things at the store owner. Within the first minute of the call, the caller said the Complainant had left the store riding a bicycle towards Gerrard Street East.
At 9:32 a.m., two officers were dispatched.
Starting at about 9:40 a.m., the store owner called 911. A few minutes into the conversation, it sounded as if he said the police had arrived. The phone call was disconnected.“
So once again there is confusion. A call was made to the TPS at 0927 a,m. reporting the assault of the store owner. Why did the TPS inform the SIU that the initial 911 call was made at 11:24 a.m.? There could be some reason for this difference in times but the SIU has not provided any comment about these obvious discrepancies.
The analysis of the GPS data from the police vehicle made it obvious that such data does not provide precise information about vehicle speed. Rarely has this been acknowledged in previous SIU reports with respect to other previous collisions. The SIU report made that acknowledgement, as follows:
“The GPS data did not assist with determining whether the SO had accelerated or decelerated prior to the collision, or as the collision occurred. Only a Crash Data Retrieval (CDR) system download of the cruiser could determine if such had occurred. No CDR download was provided to the SIU, likely because there was insufficient force or damage for the air bag module to have recorded an event.“
Any investigation of a collision involving a modern, light-duty, motor vehicle must assess whether there is crash data stored in an event data recorder (i.e. “Black box”). The SIU correctly informed readers that the GPS data could not determine important facts such as braking or acceleration or even the precise speed of a vehicle in a collision. GPS data can only provide an estimate of an average speed between two points in time. And since those points in time could be substantially distant from a collision reconstruction point of view, it can be of minimal “assistance”. The SIU correctly confirmed that only a download of the data using a Crash Data Retrieval system can obtain that important collision reconstruction evidence. But note the wording used in the SIU report: “No CDR download was provided to the SIU, likely because there was insufficient force or damage for the air bag module to have recorded an event”.
No CDR data was provided? Not provided by Whom? Who was responsible for providing the CDR data to the SIU? Was the TPS, which is not an independent entity, and who might be held liable for the actions of its officer, supposed to provide the data to the SIU? Why does the SIU wait for CDR data that never arrived when its own investigators should have been responsible for going to the police vehicle and conducting the CDR download themselves?
And note the words again in the SIU report. The CDR data was not provided “likely because”? Did the SIU know the reason why the CDR data was not provided? Their wording indicates that the SIU assumed and that makes no sense. The SIU should have attempted a download and, if there was no recorded data, should have made sure that there was no malfunction of any sort, and then should have reported, in their report, what actions they took along with the result.
If the SIU does not possess a CDR system including the up-to-date software accompanying it then that is a huge problem. No investigative agency, and particularly an agency that must evaluate sensitive collision issues on a regular basis, can operate effectively without a CDR system and without qualified personnel trained in operating the system and interpreting its results.
This is why the impact analysis of the SIU becomes questionable. The SIU reported that, at the time of impact, the police vehicle was travelling “about 41 km/h”. But there was no explanation how that speed was determined. The SIU reported that the police vehicle slowed to about 24 km/h as it turned onto Pembroke Street and that it took about 10 seconds to travel 100 metres to the point of impact. It is true, as stated in the SIU report that a travel time of 10 seconds over a distance of 100 metres results in an average speed of about 36 km/h. And if the SIU believed that the police vehicle was travelling at 24 km/h at the beginning of that 100 metres then it might be travelling at something like 41 km/h at the end of the 100 metres, if the 36 km/h average was to be accomplished. But who knows? The SIU did not explain its analysis methods it only reported its conclusions.
The SIU report indicated that the police vehicle was stopped 15 to 20 metres south of the location of the collision at about 11 seconds after impact. The SIU report then indicated:
“The distance between the collision site and where the SO stopped after the collision would suggest he did not apply the brakes immediately before or during the collision and skid to a stop. Had he applied the brakes immediately before or during the collision, he would have skidded to a stop in about eight metres.“
Yet the SIU did not see anything inappropriate with this set of facts. An obvious question is, why did the subject police officer not apply his brakes to any degree of severity at any time before or during the collision? The SIU report indicated that the cyclist had been travelling on the east sidewalk but then a police cruiser turned and blocked the cyclist’s path. The cyclist then turned onto the road. The SIU concluded that when the cyclist turned onto the road just before impact this did not give enough time for the Subject Officer to apply his brakes. But what view obstruction existed that prevented the officer from seeing the cyclist?
The SIU appeared to accept that the public did not need to see the video footage that would have come from the forward facing camera of the striking police vehicle. Copying a frame from such video and posting it in their report would have clarified what the Subject Officer experienced just before impact. And posting such frames is not a difficult task. Yet it was not done. So the SIU interpretation of that video footage must be accepted without verification. But clearly readers on not fooled by this lack of transparency. In part of that interpretation the SIU reported:
“The SO’s cruiser came into view just a short distance behind the Complainant’s bicycle and continued until it struck him. The Complainant screamed and was flung about a couple of metres ahead to the side of the roadway near the west sidewalk. The SO came to stop. WO #1 approached the Complainant, who continued to scream in pain, and held him to the ground. He and WO #2 took control of the Complainant, who kept screaming in pain and said, “I didn’t do nothing,” while struggling with officers. He had bruises to his right elbow.“
Recall that the SIU believed the police vehicle was travelling at 41 km/h when it struck the cycle. Yet the cyclist was “flung about a couple of metres ahead”. If the cycle and cyclist were struck by the front of the police vehicle at 41 km/h the cyclist and cycle would have to be accelerated to something close to 41 km/h as the police vehicle would not be slowed by the impact and the police vehicle did not magically pass through the victim. Yet why does the SIU use this very imprecise description that the cyclist was flung “a couple of metres ahead”? If the collision site was properly assessed the SIU should have known precisely how far the cyclist and cycle were thrown after the impact. But it seems the SIU did not have information about that. Or perhaps they just decided not to report it? Unresolved questions like these are developed that bring suspicions to the SIU’s credibility.
If the cyclist was fleeing police when he was struck one would have to believe that a cyclist speed of 20 km/h would be the lowest possible speed that would fit this scenario. The speed of 20 km/h is about average for a rider of a road bike who is not in any particular hurry to get anywhere. But if the police cruiser was travelling a 41 km/h when it struck the cycle then the difference in speed between the cycle and the police vehicle would have to be about 21 km/h or less. Looking at the damage to the rear wheel of the cycle does not suggest that the speed of impact was 21 km/h or less. The SIU chose to describe the impact as “…the SO’s vehicle bumped the rear tire of the bicycle” that would hardly be an accurate description. Viewing the collapsed rear wheel of the bicycle this was more than just a “bump”, it was a solid impact.
The SIU report also makes no comment about how poorly the cyclist was treated after the impact. While the cyclist sustained a fractured ankle other injuries should have been apparent. Falling onto the ground from a speed close to 41 km/h should have produced obvious abrasions to the cyclist’s body but these injuries were never noted. Although contusions at the cyclist’s right arm were reported that would not be the only visible injuries.
From the video recording we have the following SIU interpretation:
“The Complainant was placed on his stomach and his hands were cuffed behind his back. He stopped struggling but kept screaming. The officers placed him in a recovery position before he was lifted to his feet.
The Complainant was led to a TPS cruiser parked a short distance behind the SO’s cruiser. He limped and continued to scream and protest his innocence. He was placed against the hood of the cruiser, read his rights, and informed that he had been arrested for a robbery.
The Complainant’s backpack was cut off with a knife and he was searched. The Complainant kept screaming in pain, but an officer was heard saying he was fine, and nobody was hurting him. The Complainant said they hurt his leg. After the search, the Complainant was placed in the back seat of the cruiser.”
The cyclist had sustained a fractured ankle as a result of the collision and this is why he would have been “screaming” in pain. Yet, rather than address his injuries he was “lifted to his feet”. The SIU report indicated that between 10:10 a.m. and 10:46 a.m. the video “recording continued with little activity”. So the cyclist was left with no attention to his injuries for a period of 36 minutes. At 10:59 a,m. the cyclist was asked to step out of the police vehicle, without any consideration to his fractured ankle.
On a couple of occasions the SIU reported that the cyclist had fallen asleep. Again this is an interpretation that is not necessarily accurate. The cyclist could have sustained a concussion. While there were numerous occasions where the cyclist complained of his injuries, those complaints appeared to have been ignored. The cyclist was not delivered to a hospital until 11:27 a.m.
Much of the report on this cyclist incident has left unexplained questions. Questions that could easily have been answered. The most crucial of these is why the SIU did not take the action of obtaining the event data from the police vehicle. But also the SIU failed to provided frames from the video of the police vehicle that should have provided an indication of what opportunity the Subject Officer had to prevent or reduce the severity of the impact. Such unexplained failures do not help with the SIU’s credibility. Looking back over the years of the SIU’s turbulent history it has always struggled with transparency.
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