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.

“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 reportedly sustained by a 25-year-old man during his arrest on June 21^st, 2017.

Notification of the SIU

At approximately 11:30 a.m. on June 21^st, 2017, the Durham Regional Police Service (DRPS) notified the SIU of the serious injury sustained by the Complainant.

The DRPS reported that at 2:20 a.m., the Complainant was driving eastbound on Highway (Hwy) 401, near Hwy 412, in Durham Region, at approximately 160 km/h, according to witnesses, when he collided with a commercial vehicle and fled the scene.

At 3:29 a.m., the Complainant was located in a swamp by canine police officers [now known to be Witness Officer (WO) #10 and the Subject Officer (SO)]. The Complainant refused to obey commands and he was bitten by a police service dog (PSD). The emergency medical services (EMS) attended but the Complainant refused treatment.

Custody of the Complainant was then turned over to the Ontario Provincial Police (OPP). The Complainant complained of injury and was taken to the hospital where he was diagnosed with a fractured bone in his right hand and a fractured cheek. He was released to the OPP.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Notes reviewed, interview deemed not necessary

WO #4 Written statement provided, interview deemed not necessary

WO #5 Interviewed, notes received and reviewed

WO #6 Interviewed, notes received and reviewed

WO #7 Interviewed, notes received and reviewed

WO #8 Interviewed, notes received and reviewed

WO #9 Interviewed, notes received and reviewed

WO #10 Interviewed, notes received and reviewed

WO #11 Interviewed, notes received and reviewed

WO #12 Interviewed, notes received and reviewed

WO #13 Interviewed, notes received and reviewed

WO #14 Interviewed, notes received and reviewed

WO #15 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

On June 21^st, 2017, at approximately 2:20 a.m., the Complainant’s motor vehicle collided with a transport truck on the eastbound Hwy 401, near Hwy 412, in the Town of Whitby, in the Region of Durham. After the collision, the Complainant ran through a swampy area nearby, jumped over two fences, and hid in the bushes south of Hwy 401 and north of the Sobeys Distribution Centre (SDC). DRPS and OPP officers attended the collision scene and began to search for the Complainant.

At 3:29 a.m., the Complainant was located by WO #10 and the SO, of the DRPS, and a police service dog (PSD). He was escorted to a fence close to the SDC parking lot and custody of the Complainant was transferred to DRPS officers, WO #14 and WO #13. The Complainant was taken to the SDC parking lot and then transported to the OPP Whitby Detachment. He was later taken to the hospital.

Nature of Injury/Treatment

While at the hospital, the Complainant was X-rayed and a CT scan was performed, following which he was diagnosed with an acute fracture of the mid shaft of the 5^th metacarpal (the bone in the pinky finger) with significant angulation corvex dorsally and overlap of fracture fragments of the right hand. He also had an un-displaced subtle fracture in the distal 3^rd nasal bone and a possible more subtle fracture of the nasal spine.

The Scene

The motor vehicle collision (MVC) scene was located in the eastbound lanes of Hwy 401, between Hwy 412 and Brock Street in the Town of Whitby. The Complainant ran southbound from Hwy 401, through the tall grass and swampy area. He climbed over a fence into the GO Train lot, ran over the train tracks, and jumped over a second barbed wire fence. The Complainant was apprehended in the bushes, north of the SDC and south of Hwy 401. After he was apprehended, the Complainant was escorted to the curb in the SDC parking lot.

Physical Evidence

Dodge Charger motor vehicle driven by the Complainant

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

GO Transit Closed Circuit Television Video (CCTV)

CCTV footage was received from GO Transit for June 21^st, 2017 and revealed the following:

At 2:22:50 a.m., the Complainant walked south from the Hwy 401 ditch, climbed a fence, and went into the GO Transit yard at 1300 Henry Street in the Town of Whitby. He ran over the GO Transit railroad track toward a barbed wire fence. He climbed over the fence, landed on his feet, and walked over the CN railroad tracks.

At 2:26:07 a.m., the Complainant walked north toward the barbed wire fence, then west along the fence. He staggered as he walked.

At 2:26:45 a.m., the Complainant walked west on the north side of the barbed wire fence. He pulled his pants up with both hands.

At 2:27:48 a.m., the Complainant walked east along the GO Transit railroad track then west.

At 2:40:51 a.m., a police sports utility vehicle (SUV) with emergency lights activated drove on Henry Street into the GO Transit railroad yard and parked. Two police officers [now known to be WO #10 and the SO] got out of the police vehicle. WO #10 got his PSD from the police vehicle. WO #10, the SO and the dog walked south toward the GO Transit railroad track.

SDC CCTV

The SDC provided CCTV for June 21^st, 2017. The CCTV for the employee parking lot was reviewed from 1:00:00 a.m. to 4:59:59 a.m. The south facing camera captured the north side of the SDC and the north employee parking lot.

At 3:46:04 a.m., one person walked south from the green space towards the parking lot and at 3:46:08 a.m., four people walked from the green space towards the parking lot.

At 3:51:36 a.m., the Complainant was sitting on the curb, surrounded by about ten police officers.

At 3:58:41 a.m., the DRPS arrived.

The CCTV recording did not reveal any police officer striking the Complainant.

Ministry of Transportation (MTO) CCTV

CCTV was retrieved from the MTO for June 21^st, 2017. The footage did not capture any information relevant to this investigation.

OPP Custody Video

Custody video was received from the OPP for June 21^st, 2017 and revealed the following:

At 4:02:54 a.m., WO #5 escorted the Complainant into the detachment.

At 4:07:43 a.m., the Complainant entered the holding cell.

At 4:10:39 a.m., the Complainant examined his hands.

At 5:26:45 a.m., paramedics entered the detachment and went into the holding cell. The paramedics spoke to the Complainant.

At 5:34:27 a.m., the Complainant, WO #5, and the paramedics, left the detachment.

At 11:14:40 a.m., a police officer and the Complainant entered the detachment. The Complainant’s right hand was in a cast.

At 11:35:59 a.m., the Complainant entered the cell.

At 13:29:26 a.m., the Complainant and a police officer left the detachment.

Communications Recordings

DRPS Communications Recording

Communications recordings were received from the DRPS for June 21^st, 2017 and revealed the following:

At 2:24:39 a.m., the DRPS communications operator received a person injury call on the eastbound lanes of Hwy 401, east of Hwy 412. A man (the Complainant) had fled on foot.

At 2:25:01 a.m., the communications operator stated that the man fled on foot eastbound on the train tracks. The vehicle had been travelling at over 185 km/h at the time of the collision.

At 2:25:41 a.m., the communications operator stated that the Complainant’s vehicle had struck a tractor trailer.

At 2:29:31 a.m., the communications operator stated that an off-duty Toronto Police Service (TPS) officer observed the Complainant leave the collision scene and jump the highway fence. The Complainant went south towards the train tracks.

At 3:28:05 a.m., WO #10 stated that he had made contact with the Complainant and confirmed, at 3:29:05 a.m., that the Complainant was in custody.

At 3:31:44 a.m., WO #10 advised communications that they were trying to get the Complainant under the fence on the SDC side, but the Complainant was not complying. He refused to get up and walk and the police officers would have to drag him out of the bush.

At 3:32:51 a.m., WO #10 stated that the Complainant had been hiding and lying in the tall grass under a tree when found. The Complainant was apprehended by the police service dog. The injury he suffered did not seem to be serious.

At 3:33:16 a.m., WO #9 told communications that they were able to get the Complainant under the fence and they would escort him south.

At 3:39:54 a.m., WO #9 indicated that he did not see any wounds from the dog, but requested an ambulance. The Complainant had facial injuries from the collision.

At 3:49:58 a.m., WO #9 stated that he saw scrapes to the left rear back of the Complainant but that the injuries did not need stitches.

At 3:58:45 a.m., WO #10 indicated that the custody of the Complainant had been transferred to the OPP and he was going to the OPP Whitby Detachment.

DRPS 911 Communications Recordings

The information in the 911 Communications recordings was consistent with the DRPS Communications recording.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP Aurora Detachment (Highway Safety Division/Headquarters); Burlington Detachment (Highway Safety Division); the DRPS; and the TPS

• DRPS Detailed Call Summary
• DRPS Officer Involvement List
• DRPS Person Query for the Complainant
• DRPS Policing Standards Manual (2000): Officer Note Taking
• DRPS Procedure: Arrest and Warrant Applied
• DRPS 911 Recording
• DRPS Police Transmissions Communication Recording
• DRPS Scene of Crime Photos
• Narrative Text (General Occurrence) Report
• Notes of WO #s 1 – 16
• OPP Arrest Report
• OPP Computer Aided Dispatch (CAD) Details
• OPP CPIC for the Complainant
• OPP Interview Report for CW #s 1 and 2
• OPP MTO Driving Record for the Complainant
• OPP MVC Report
• OPP Occurrence Details Report
• OPP Offence Detail Report
• OPP Prisoner Care Manual
• OPP Prisoner Custody Report
• OPP Show Cause Hearing Report
• OPP SOCO Photos of the Complainant’s Injuries
• OPP SOCO Photos of Dodge Charger
• Procedure: Memo Book and Note Taking Procedures
• Use of Force Report (K9 Apprehension), and
• Written Statements from WO #s 4, 6 -11 and 13 – 16

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

• CCTV from the MTO
• CCTV from the SDC, and
• Medical Records of the Complainant related to this incident

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 June 21^st, 2017, at 2:20 a.m., the Complainant was in a Dodge Charger motor vehicle and was involved in a motor vehicle collision. The collision occurred in the eastbound lanes of the 401 Highway (Hwy), between Hwy 412 and Brock Street, in the Town of Whitby, Durham Region.

Civilian Witness (CW) #2 and Witness Officer (WO) #4 observed the Complainant driving at a high rate of speed estimated to be in the area of 160 kilometres per hour. The witnesses then observed the Complainant’s vehicle collide with the back of a transport truck, spin out of control, and stop in a ditch on the south side of the highway.

After the collision, both CW #2 and WO #4 saw the Complainant run away from the collision scene into the swamp, south of Hwy 401. Both witnesses observed the Complainant climb over a fence into the GO Train lot; run over train tracks; and jump over a second barbed wire fence.

The Complainant was later apprehended in the bushes, north of the Sobey Distribution Centre (SDC). After he was apprehended, the Complainant was escorted to the curb in the SDC parking lot. WO #2 of the Ontario Provincial Police (OPP) arrived at the collision scene at 2:29 a.m. and performed the duties of an officer-in-charge (OIC) supervising police constables during the shift and took charge of the motor vehicle collision scene.

WO #2 spoke to CWs who stated that the Complainant had crashed into a commercial vehicle and that the Complainant’s vehicle went into the ditch. WO #2 saw extensive damage to the front passenger side of the vehicle which was torn apart and noted that the airbags were deployed, and that there was blood on the driver’s side airbag.

After interviewing the CWs at the scene, WO #2 authorized a perimeter search south of Hwy 401 and north of the SDC. Based on the information he had gleaned from the witnesses, WO #2 formed reasonable and probable grounds to arrest the Complainant for the Criminal Code offences of Dangerous Operation of a Motor Vehicle and Failing to Remain at the Scene of an Accident.

The Complainant alleges that he was not the driver of the Dodge Charger, but was only a passenger, and that he ran from the collision because he panicked as a result of having consumed alcohol[1] and because he was the person who had rented the vehicle. The Complainant then fled from the collision scene and hid in the field for about 30 minutes, in an attempt to escape from the pursuing police officers.

The Complainant further alleges that sometime between 3:00 and 4:00 a.m., a police service dog (PSD) located him and bit him in the area of his left waist. Subsequently, the Complainant was handcuffed to the rear, and as a result of his refusal to walk, he was eventually dragged to an open grassy area beside a fence and near water. The Complainant alleges that his injuries were sustained when he was at the fence and on the ground, in police custody and handcuffed behind his back, and an unidentified police officer approached him and stomped on his right hand, fracturing it, following which a second unidentified police officer then bent over in front of the Complainant, punching him once in the mouth and once in his right eye.

At about 3:00 a.m., CW #5 and CW #4, both paramedics, received a call to attend the SDC in Whitby to attend to a male who was in police custody who had been involved in a motor vehicle collision and was subsequently bitten by a PSD.

At approximately 3:10 a.m., both paramedics arrived at the north side of the SDC parking lot. The Complainant was sitting on the curb with his hands handcuffed behind his back and was surrounded by a three foot semi-circle of about ten DRPS officers, two DRPS canine officers, and one OPP officer.

CW #5 noted that the Complainant was agitated and swearing at the police officers. When CW #5 asked the Complainant what had happened, the Complainant said, in a confrontational manner, “What do you think happened?” The Complainant lifted his shirt and exposed scratches on his back as a result of the dog bites. The Complainant did not complain of any other injuries. WO #5 observed blood on the Complainant’s face, but the Complainant refused to be placed on a stretcher and requested that he be placed in a police cruiser instead. At that point, WO #16 decided not to send the Complainant to the hospital, under these circumstances.

Later that evening, the same paramedics received a call to attend the Whitby OPP detachment where the Complainant was in custody. At 5:24 a.m., the paramedics arrived at the OPP detachment and a police officer indicated that the Complainant wanted to go to the hospital. The Complainant had been sleeping in the cell and informed CW #5 that his ribs were hurting him and he had difficulty breathing. The Complainant was observed to have abrasions on his hands and swelling on his hands and knuckles, which CW #5 had not seen earlier at the SDC parking lot. The Complainant did not mention how he sustained his injuries and denied having been in a motor vehicle collision.

At 5:39 a.m., the Complainant was taken by ambulance to the hospital and brought to the emergency department in the custody of two OPP officers. The doctor who assessed the Complainant noted that he showed signs of being under the influence of alcohol. A CT scan as well as X-rays of the Complainant’s right hand and face were ordered, the results of which indicated that the Complainant had an acute fracture of the mid shaft of the 5^th metacarpal (the bone in the little finger) with significant angulation convex dorsally and an overlap of fracture fragments with overlying moderate soft tissue swelling. In addition, there was a subtle fracture in the distal 3^rd of the nasal bone as well as potentially additional subtle fractures of the nasal spine. A cast was put on the Complainant’s right hand. The doctor indicated that this type of hand fracture was consistent with being involved in a motor vehicle collision, with falling while running, or with any type of physical interaction with police officers. The doctor added that he found it difficult to offer an opinion on the exact mechanism of the Complainant’s injury.

At 2:00 a.m., CW #2 was driving his vehicle eastbound in the passing lane on Hwy 401, approximately 500 metres east of Hwy 412, when he noticed a Dodge Charger without its headlights on, rapidly approaching his vehicle. When CW #2 moved to the center lane to allow the Charger to pass, he noticed that only the rear running daylights were on.

CW #2 observed that the Charger was travelling at approximately 160 km/h and almost collided with a Hyundai in the passing lane. CW #2 saw that approximately 500 to 600 metres ahead, the Charger then lost control, spun out, and flipped one rotation from side to side, landing upright on its wheels. CW #2 noted that the Charger rolled off Hwy 401 and stopped in a ditch beside the shoulder. CW #2 stopped on the south shoulder and called the 911 operator. He observed damage on the passenger, as well as the driver’s side of the Charger and noted that the driver’s door was open. Significantly, CW #2 saw the driver of the Charger, the Complainant, exit the driver’s door staggering and off balance, and with blood on his head. CW #2 noted that there was no one else in the Charger.

CW #2 observed that the Complainant walked south over a ditch, climbed over a fence without any difficulty, and then ran parallel towards the GO Transit yard. CW #2 then witnessed that the Complainant walked over to the GO Transit railroad tracks, between two stationary GO Transit trains, and then jumped over a barbed wire fence. Approximately three minutes later, CW #2 witnessed that the Complainant climbed back over the barbed wire fence onto the GO Transit railroad track, and then walked west between the fence and the GO Transit train. At this point, CW #2 lost sight of the Complainant. CW #2 went to check the Charger for additional occupants and found none. CW #2 did not see the Complainant again after he climbed over the fence.

CW #1 was driving eastbound in the center lane on Highway 401, between the Highway 412 and Brock Street exits, when without any warning CW #1 felt a jolt at the rear of his truck. He looked in his driver’s side mirror, and saw that a dark red car- a Charger- had struck the left rear corner of his trailer; the front passenger side of the Charger was riding up on the left rear wheel of his trailer. The Charger eventually broke free from the wheel of the trailer and began spinning in circles. CW #1 witnessed the Charger then strike the wall of the concrete center median, slide across three lanes of traffic, and careen down a deep ditch on the south side of Hwy 401. CW #1 noted that the Charger was travelling in excess of the posted speed limit and that the front headlights were off. CW #1 witnessed that the Complainant then climbed an eight foot chain link fence that ran parallel to the south side of Hwy 401, ten metres from the south shoulder, and he did so without any difficulty. He then saw that CW #2 had stopped to assist and had checked the Charger for passengers.

An off-duty police officer, WO #4 of the Toronto Police Service, was driving home eastbound on Hwy 401 in the passing lane when he noticed a Charger approaching him quickly with the headlights off. WO #4 swerved out of the way to avoid colliding with the vehicle. WO #4 observed the Charger drive around the bend in the Highway, west of Brock Street, drift onto the shoulder and barely miss the center median. The Charger continued at a high rate of speed and passed another vehicle driven by CW #2. At that instant, the Charger drifted out of its lane and collided with the rear of a tractor trailer, spinning out of control and striking the center median, after which it then continued spinning, finally stopping in the grass on the south side of the highway.

At 2:20 a.m., WO #4 stopped his vehicle on the shoulder of the highway and was speaking with the 911 operator while walking towards the Charger. WO #4 witnessed the driver, the Complainant, emerge from the grass in the ditch, stumble a few times, run southbound through the marsh towards the GO Transit train tracks, climb a fence, run over the train tracks, continue southbound, climb a barbed wire fence, and then continue to run southbound. WO #4 returned to his vehicle and waited for the arrival of emergency personnel.

The Complainant was later apprehended because of the coordination between two canine officers and their PSDWO #10 was dispatched to assist the OPP with a collision on Hwy 401, east of Hwy 412; when the Subject Officer (SO) arrived on scene, both officers drove to Victoria Street and were parallel to the area where the Complainant was last seen.

At 2:38 a.m., both officers entered the GO Transit lot and at 2:42 a.m. WO #10 removed his dog from his vehicle. As WO #10 walked westbound along the train tracks, the dog detected a human scent and, within a minute, guided WO #10 into a large swampy ditch area between the two sets of train tracks. Both WO #10 and the SO heard someone running/crashing through the swampy area and both police officers shouted several K9 challenges, including: “I know you are in there, you are under arrest, come out now, surrender yourself now or I am going to release the dog to search.” At no time did the Complainant respond.

WO #10 continued tracking and stopped at an eight foot chain link fence that had barbed wire across the top dividing the CN property from the SDC. At 3:05 a.m., the reactions of the dog indicated to WO #10 that the individual being chased had gone over the fence from south to north. At 3:09 a.m., WO #10 saw the silhouette of someone’s head moving westbound along the fence and he requested that WO #9 deploy a second canine unit on the south side of the fence. At approximately 3:12 a.m., WO #13 was deployed as a cover officer with WO #14 to assist WO #9 with the search.

WO #1, from the OPP Emergency Response Team, then arrived and assisted WO #9. WO #9 and his service dog began to track on the south side of the SDC parking lot, heading north and west towards WO #10. WO #9 could be heard shouting the K9 challenge several times for the Complainant to surrender himself. The dog then went to a point on the south side of the fence and began barking, indicating that the Complainant had gone back over to the north side of the fence.

At 3:18 a.m., WO #9 immediately notified WO #10 that the Complainant was again on the north side of the fence. WO #10 and the SO searched west along the fence and at 3:28 a.m., WO #10’s dog located the Complainant lying in very tall grass and engaged (bit) him on his left arm or side. WO #10 immediately gave the dog the command to release, and moved the dog 15 feet away from the Complainant. The SO was shouting at the Complainant to show his hands and to stop resisting. The SO observed blood coming from a laceration on the bridge of the Complainant’s nose and swelling on the left side of his face.

The SO attempted to take physical control of the Complainant’s right side and pushed the Complainant onto his back and then rolled him onto his stomach. The SO tried to pull both the hands and arms of the Complainant behind his back to handcuff him. The Complainant continued to actively resist and began shouting obscenities at both police officers. The SO delivered four closed fist punches to both sides of the Complainant’s back, following which the Complainant stopped resisting and the SO handcuffed him behind his back.

When the Complainant refused to stand up and walk, the SO picked him up under his right arm pit and escorted him 20 feet up a hill to the north side of the SDC fence. The SO noted a strong odour of alcohol on the Complainant’s breath. WO #1 used wire cutters to cut the bottom links of the fence. [2] Once the fence was cut, the SO pulled the bottom of the fence up and slid the Complainant under the fence transferring custody to WO #14 and WO #13. WO #9 stood back with his dog.

The Complainant refused to walk on his own and became a dead weight. WO #14, WO #13, and WO #15 dragged the Complainant to the SDC parking lot, where he was seated on the curb. The Complainant’s nose was swollen and bleeding and he was spitting blood, and shouting obscenities and derogatory comments directly at the attending constables. When WO #9 approached the Complainant and asked if he needed medical attention, the Complainant kept asking WO #9 to punch him in the face. WO #13 stated that there were approximately 12 DRPS officers in a semi-circle in front of the Complainant, as well as WO #5 and WO #1 from the OPP.

At 3:10 a.m., the ambulance arrived on scene but the Complainant refused any medical treatment. At that time, WO #5 informed the DRPS that the OPP was taking over the investigation and custody of the Complainant. At 4:00 a.m., the Complainant was transported to the Whitby OPP detachment. The Complainant did not complain to WO #5 about any pain or his treatment by any attending DRPS or OPP officers.

The SO, WO #14, WO #15, WO #13, WO #7, WO #8, as well as WO #16, and WO #1 and WO #5 from the OPP, all indicated that the Complainant had a strong odour of alcohol on his breath.

The reliable available evidence indicates that the SO was the only police officer who used force at the scene in order to gain compliance from a continuously uncooperative, resisting, and angry Complainant. No other DRPS or OPP officers either employed any use of force or witnessed any use of force on the Complainant. Both paramedics who attended the scene did not witness any physical force being applied by any DRPS or OPP officers.[3] In addition, none of the video from the Go Transit CCTV, the SDC CCTV, or the MOT CCTV captured any DRPS or OPP officers striking the Complainant at any point.

It is my opinion that the vast majority of the Complainant’s recollection of the June 21^st, 2017 motor vehicle collision was not credible or reliable and certainly was not corroborated by any of the CWs, WOs, or video from the various sources. The Complainant was a very poor historian and a totally unreliable source of information. Specifically, the Complainant denied driving the Dodge Charger and stated that an unidentified friend was driving the vehicle involved in the collision. Two credible witnesses, CW #2 and WO #4, contradicted the Complainant as they observed him exit the vehicle from the driver’s seat. Both CW #2 and WO #4 observed no other occupant either in the vehicle or exiting the vehicle, nor was any other individual found near the Charger or in the area, despite a canine search. Overall, the statement by the Complainant that his friend was the individual who was driving the motor vehicle is simply untenable. In addition, the Complainant denied sustaining any injuries from the collision despite CW #2 observing blood on the Complainant’s head as he exited the Charger, and the SO, prior to arresting the Complainant, observing blood and swelling on the Complainant’s face. In addition, the driver’s side airbag was found to have blood on it.

There is no doubt that the police had grounds to arrest the Complainant given the information about the collision at their disposal, and thus the only question I have to address is whether the admitted strikes by the SO to the Complainant’s back were reasonable to affect his arrest in these circumstances.

The emergency room physician who treated the Complainant found that the only significant injury suffered by the Complainant was a fractured hand. He indicated that the type of fracture sustained by the Complainant was consistent with being involved in a motor vehicle collision, falling while running, or any type of physical interaction with the police officers. The doctor concluded that he found it difficult to offer an opinion as to the exact mechanism of the Complainant’s injury.

In my opinion it is much more than likely that the Complainant sustained his injuries from the violent motor vehicle collision that he was involved in at high speed, and much less likely that his injury somehow resulted from the strikes of the SO. In sum, the evidence supports the conclusion that the Complainant’s injuries were not caused by the actions of any DRPS or OPP officers at the scene.

In addition to the unjustified use of force allegation, the Complainant further alleged that unidentified attending DRPS officers called him names and were laughing at him (he alleged that the paramedics laughed at him as well). In this respect he is supported somewhat by WO #5 of the OPP who observed DRPS officers taunting and antagonizing the Complainant in response to the Complainant’s abusive and belligerent attitude towards the police, while he was sitting on the curb in the SDC parking lot.[4] Such conduct is certainly uncalled for and unprofessional and such conduct and attitude by some of the DRPS officers could be deemed to be discreditable conduct under part VII of Ontario Regulation 268/10 despite the belligerence of the complaint, Schedule Code of Conduct, s. 2(1), which reads as follows:

Any chief of police or other police officer commits misconduct if he or she engages in,

(a) discreditable conduct, in that he or she,

(v) uses profane, abusive or insulting language or is otherwise uncivil to a member of the public.

However, despite WO #5 clearly observing what could be classified as unprofessional discreditable conduct by DRPS officers, that behaviour could not by itself amount to criminal conduct.

In sum, in reviewing carefully the totality of the evidence, I am satisfied that the evidence fails to give rise to a reasonable belief that the subject officer committed a criminal offence during his interactions with the Complainant.

Pursuant to section 25 (1) of the Criminal Code, police officers are entitled to use force in the execution of their lawful duties, as long as the force in question is reasonably necessary in the circumstances.

In my opinion, the force used by the SO to effect the arrest of the Complainant was reasonable in all the circumstances. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206 as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, while the conduct in question must be commensurate with the task at hand, the Court of Appeal in R. v. Baxter (1975) 27 C.C.C.(2d) 96 (Ont. C.A.) has indicated police officers are not expected to measure the degree of their responsive force to a nicety.

In the final analysis, I am satisfied for the foregoing reasons that the arrest of the Complainant and the manner in which it was carried out were lawful notwithstanding the injury which he suffered, even were I to find that the police caused the injury by causing him to fall on his hand while chasing him, which I am not inclined to do. I do not find that the three punches to the Complainant’s back, when he refused to give up his hands for handcuffing, would have caused the injury to his hand. The injuries sustained by the Complainant most likely arose from the motor vehicle collision, but if they were caused by the police, they were as a direct result of the Complainant’s own non-compliance with the commands of any of the officers at the scene and reflected the attitude that he was going to evade capture at all costs.

The aggravating factor of operating a motor vehicle with an excess of alcohol that registered twice the legal limit at which one can legally operate a motor vehicle resulted not only in a potentially fatal motor vehicle collision, but appears to have contributed to the Complainant’s persisting resistance, aggressiveness, and use of obscenities directed at the DRPS and OPP officers. I am, therefore, satisfied on reasonable grounds that the actions of the SO, and all the other police officers involved in the Complainant’s apprehension and arrest, fell within the limits prescribed by the criminal law. Accordingly, I can find no grounds for proceeding with criminal charges in this case and none will issue.

Date: June 11, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The Complainant’s breath samples revealed a blood alcohol level of 176 and 153 milligrams of alcohol in 100 milliliters of blood, or the equivalent of approximately twice the legal limit for driving. [Back to text]
• 2) [2] The officers did not want to lift the Complainant over the barb wired fence. [Back to text]
• 3) [3] Specifically, no DRPS or OPP Constables witnessed the Complainant’s hand being stomped on or the Complainant being punched. [Back to text]
• 4) [4] In his interview with SIU investigators, WO #5 stated that that there were some members of the DRPS who, in his words, were ‘ramping up’ the Complainant. WO #5 observed, however, that the person that he heard from the most was the Complainant, because he was being the loudest participant. WO #5 stated that he `…did not understand the purpose of taunting, antagonizing, engaging in conversation, in any sort of negative conversation with him, to quote-unquote, you got the bad guy, who bad guy, who needs it, why continue?”. Needless to say I agree with WO #5. [Back to text]