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 34-year-old man during his arrest on April 25^th, 2017.

Notification of the SIU

At approximately 12:08 a.m. on April 25^th, 2017, the Ontario Provincial Police (OPP) notified the Special Investigations Unit (SIU) of the vehicle injury to the Complainant.

The OPP reported that at 12:30 a.m. on April 25^th, 2017, Perth County OPP received a call for a suspicious person at a Tim Hortons in the community of Mitchell in the Municipality of West Perth. When a police officer arrived, the vehicle the suspicious man had been driving had left the area. The officer checked the licence plate and learned it was registered to the Complainant.

The police officer co-ordinated with another police officer to stop the suspect’s vehicle and used their police cruisers to box the vehicle in on Highway (Hwy) 23 between Mitchell and Monkton. The two police officers got out of their cruisers and walked towards the vehicle. The police officers issued commands to the Complainant, but he refused to co-operate. The Complainant reversed his vehicle and smashed the cruiser parked behind it. When the Complainant started to drive forward, one of the police officers discharged his firearm. The Complainant drove out of the box and left the scene and went out of sight. A ‘Be On The Lookout’ alert (BOLO) was put out for the vehicle.

At 6:30 a.m., the Stratford Police Service (SPS) responded to a fail to remain call for a vehicle involved in a motor vehicle collision (MVC). It was determined to be the same vehicle that the Complainant had been driving and the SPS put out another BOLO.

At 7:00 a.m., an OPP police officer spotted the Complainant’s vehicle on Hwy 7 travelling towards London. The Complainant’s vehicle was again boxed in, with the assistance of another police officer, in the area of Medway Drive and Clarke Road in the London area.

The Complainant’s vehicle then struck a tree on Clarke Road. The Complainant ran from the vehicle and was taken into custody at 6:52 a.m. after a Conducted Energy Weapon (CEW) was deployed. The Complainant was taken to hospital by ambulance. At 10:00 a.m., medical staff told the OPP that the Complainant had suffered a broken clavicle (collar bone).

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 2

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

CW #3 Interviewed, notes received and reviewed

CW #4 Interviewed, notes received and reviewed

CW #5 Interviewed, notes received and reviewed

CW #6 Interviewed, notes received and reviewed

CW #7 Interviewed, notes received and reviewed

CW #8 Notes received and reviewed, interview deemed unnecessary

The memo book notes of CW #8 were reviewed and it was established he only arrived after the event and therefore did not possess any evidence to further the investigation.

Subject Officers

SO #1 Interviewed, but notes were not provided

At approximately 12:06 a.m. on April 25^th, 2017, police officers from Perth County OPP responded to a 911 call regarding a complaint of a possible impaired driver, [now known to have been the Complainant], in Mitchell, Ontario. The caller, who wished to remain anonymous, provided details of the Complainant’s vehicle as being a Chevy Tahoe, and provided a licence plate number. (The correct number was actually one letter off from that reported). The caller reported the Tahoe was northbound on Hwy 23.

WO #1 was on duty driving a marked OPP police cruiser in the area of Highway (Hwy) 23 in Mitchell when he heard the call regarding the Complainant. He spotted the Complainant’s Tahoe, pulled up behind him, and conducted a traffic stop in the area of Hwy 23 and Line 44.

The Complainant pulled over without issue and provided his driver’s licence to WO #1, who then returned to his police cruiser to run a check on him. WO #1 learned from his checks that there were some arrest warrants in existence for the Complainant. He informed the Provincial Communications Centre (PCC) that he would be arresting the Complainant.

WO #2, who was patrolling nearby, heard WO #1 report over the radio that he had stopped the Tahoe and that there was a possibility he was going to arrest the Complainant on the strength of the arrest warrants. He attended at WO #1’s location and placed his police cruiser in front of the Tahoe, to prevent its escape.

WO #1 and WO #2 approached the Complainant, who by this time had rolled up his driver’s door window to within an inch of being completely closed and locked the doors. The police officers attempted to talk the Complainant into coming out of the Tahoe, without success. WO #1 then told the Complainant that he would break his door window if he did not unlock it and, when the Complainant refused, he returned to his police cruiser and retrieved an orange coloured glass breaking tool.

WO #1, with the glass breaking tool in his hand, told the Complainant that he was going to break the window. Without warning, the Complainant put the Tahoe into reverse and rammed WO #1’s police cruiser, which was parked about one and a half metres behind him. The force pushed the police cruiser back some three to four feet (approximately 1 to 1.2 metres).

WO #1, who did not know where WO #2 was at that time, drew his firearm and yelled “Stop!” but the Complainant put the Tahoe into drive. The Tahoe moved forward and headed toward WO #2’s police cruiser, and the last known location of WO #2. Fearing for the safety of WO #2, WO #1 initially threw the glass breaking tool at the driver’s door window, breaking it and, when the Complainant continued to drive toward the last known location of WO #2, WO #1 then discharged one shot from his service pistol at the Complainant. The Complainant then drove off at speed along Hwy 23, but WO #1 did not follow him, on the instructions of WO #2.

Since the Complainant was not struck or injured by the projectile fired by WO #1, WO #1 remained a WO.

The Complainant then spent the remainder of the morning hiding behind farm buildings and occasionally sleeping. He removed the tail lights from the Tahoe and disabled the headlights in order to prevent the police from spotting him and, as he drove, he used a flashlight to allow him to see while driving along various side roads which were not illuminated by street lights.

The next sighting of the Complainant occurred at approximately 6:00 a.m. on April 25^th, 2017, when the SPS notified the OPP PCC that the Complainant’s Tahoe had been involved in a Motor Vehicle Collision (MVC) in Stratford and that he had failed to remain at the scene. The PCC broadcast details of the collision to OPP units and the Tahoe was sighted by the SO on Hwy 7 near Stratford.

The SO, who was operating an unmarked OPP vehicle, informed the PCC that he had the Tahoe in sight and that he was strategically following, but not pursuing it. He noted that the Tahoe had damage to the front and that no taillights were working, except for the third brake light, as the taillight units on the Tahoe had apparently been removed.

He followed the Tahoe from a distance along a series of highways and side roads while efforts were being made by other OPP units to set up spike belts to stop the Tahoe. At one point, in order not to alert the Complainant that he was being followed, the SO pulled over and subsequently lost sight of the Tahoe.

The SO searched some side roads for the Tahoe and noticed a vehicle with only one brake light ahead in the distance. He followed this vehicle and updated other OPP units in the area. Due to the distance he was behind the vehicle with the one brake light, however, the SO again lost sight of it on Nine Mile Road.

Having heard the SO’s radio broadcasts, WO #3, who was accompanied by WO #4, went to the area. As he turned onto Nine Mile Road, WO #3 saw the Tahoe approach from the opposite direction. He activated his emergency lights and pulled his police cruiser across the road in an effort to block the Tahoe. The Complainant drove around, and almost struck, WO #3’s police cruiser before he continued south on Clarke Road towards London.

WO #3 pursued the Complainant south on Clarke Road and the SO, who had backtracked on Nine Mile Road, followed from a distance. An attempt was made to use a spike belt to stop the Tahoe on Clarke Road, but the Complainant avoided it by driving onto the gravel shoulder.

WO #3 decided to conduct a rolling block of the Tahoe, in an effort to stop it, and was given authorization from the PCC supervisor to do so. He moved his police cruiser alongside, and to the front of, the Tahoe and slowed down. The Tahoe drove off the road onto the gravel shoulder before turning back onto the road and striking the front passenger door of WO #3’s police cruiser.

The Complainant then turned right off Clarke Road and into the yard of a business premises. He continued to drive along a dirt track towards a landscaping business but his route was blocked by a stopped pick-up truck on the track. At the last minute, the Complainant swerved to his right, to avoid the stopped pick-up truck, and crashed into a tree. WO #3, who was directly behind the Tahoe, appeared to bump the rear of the Tahoe and then pinned it against the tree with his police cruiser.

The Complainant exited the Tahoe and ran through the landscaping yard to a gully and wooded area. He was pursued on foot by the SO, WO #4 and WO #3. He attempted to climb a barbed wire fence in the gully, but got his clothing caught and fell forward onto the ground. The SO, who had caught up with the Complainant but was on the opposite side of the barbed wire fence, drew his CEW and ordered the Complainant to stay on the ground or he would be ‘Tasered’.

The Complainant ignored the SO’s instructions and got up from the ground. The SO deployed his CEW, but it had little effect. He then deployed his CEW a second time, knocking the Complainant to the ground, but he immediately got up and started to run away. The SO crawled over the barbed wire fence and, with a football like tackle, took the Complainant to the ground. The Complainant alleges that he then received four or five elbow strikes into the back of his left shoulder, which caused his injury.

Because the Complainant alleged that he sustained his injury when he was taken to the ground by the SO, and not during the vehicular collisions, the classification of this case was changed from a vehicle injury to a custody injury.

Nature of Injuries / Treatment

The Complainant was seen at hospital on April 25^th, 2017, at 8:18 a.m. An x-ray was taken of his left shoulder and showed a fracture of the distal clavicle (the portion of the collar bone closest to the shoulder joint) with an approximate 13 mm elevation of the clavicle. There may also have been a fracture of the inferior neck of the glenoid (shoulder joint).

The Scene

The scene was at a business premises on Clarke Road in Arva. Entry to the business was from Clarke Road and lead into a parking lot where a truck weigh scale house was located. At the north side of the scale house office building was a large tower with a security camera located at the top. At the south west end of the lot there was a small driveway that lead up to a small landscape supply business. This driveway was blocked off by a black Ford F150 pick-up truck.

Leading up to where the Ford pick-up truck was parked, there were tire marks in a grassy area that travelled off of the driveway and ended at a tree. The tree showed signs of fresh damage suggesting it had been struck. There were also pieces of debris at the base of the tree. A search a revealed the area of arrest, as there was a large area of disturbed foliage on the ground. Also located in this area was evidence of a CEW deployment.

At the south side of the landscape property there was a fence between that property and the next property, which appeared to be an old gravel pit. At one point, on the fence amongst a stand of trees, a piece of fabric was found snagged on barbed wire on top of the fence. On the south side of the fence at this point, CEW wire and deployment components (Anti-Felon Identification Discs or AFIDs) were found in an area where the ground had been disturbed.

Physical Evidence

CEW Download

On April 25^th, 2017, the SO’s CEW was examined and the record of its deployment downloaded. The download provided the following information:

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Closed Circuit Television (CCTV) Footage from the Business Premises from April 25^th, 2017

The CCTV footage is an extract of the event and did not capture times.

• A dark pick-up truck is recorded entering the yard. This truck was later determined to be a black Ford F150 belonging to CW #1

• The pick-up truck is almost at the end of a diversion in the yard which led to the adjoining landscaping business. A convoy of vehicles can be seen on Clarke Road, heading southbound. The lead vehicle was the Tahoe driven by the Complainant

• A few feet behind the Tahoe was a fully marked OPP police cruiser, driven by WO #3. About a car length behind WO #3’s cruiser was an unmarked police sport utility vehicle (SUV) which was a dark colour and operated by the SO

• The Complainant drove to the far left of the entrance and was heading directly in the path of the Ford F150 driven by CW #1. As the Complainant was about half way into the lot, WO #3’s police cruiser made contact with the Complainant’s Tahoe, by bumping him from behind. The police SUV was about three car lengths behind WO #3

• The Complainant was now on the diversion road to the landscaping business, and was directly behind the Ford F150. The brake lights on the F150 engaged and the Complainant could not proceed as another vehicle was parked at the end of the roadway. WO #3’s cruiser was about a car length behind at that time, and the police SUV was still about three car lengths behind

• The Complainant made a hard right turn into an area with just grass and trees to avoid colliding with the Ford F150. Brake lights could be seen on the Ford F150 and on WO #3’s cruiser, but not on the Complainant’s Tahoe

• The Complainant’s Tahoe collided with a tree. WO #3’s cruiser made contact with the Complainant’s Tahoe, pinning it against the tree. Almost immediately, the Complainant exited the driver’s side of the Tahoe and ran towards the yard of the landscaping business

• The SO pulled in to the right of WO #3’s police cruiser and exited. At the same time, the passenger door of WO #3’s police cruiser opened, and a person, [now known to have been WO #4], exited

• The Complainant ran southbound into the landscaping yard, with the SO and WO #4 in pursuit. As this occurred, another OPP cruiser was seen entering the business from Clarke Road, and

• WO #3 exited his police cruiser and engaged in a foot pursuit of the Complainant

Communications Recordings

OPP 911 Communications Recordings April 25^th, 2017

The OPP PCC 911 emergency telephone call recording was obtained and reviewed.

12:05:06 a.m

• A male caller, who wished to remain anonymous, called the PCC 911 emergency line and supplied a licence plate and said it was on a Chevy Tahoe. He said that a friend gave the driver, [now known to have been the Complainant], directions and they just left the Tim Horton’s parking lot in Mitchell, Ontario. There was a really bad smell of alcohol on the Complainant, and

• The man reported that the Complainant was now heading northbound on Hwy 23 and had just passed a transport truck in town. The caller said he was driving behind the transport and that the Complainant was doing about 110 km/h

OPP Radio Communications Recordings - April 25^th, 2017

The OPP PCC radio communications recordings were obtained and reviewed.

12:09:08 a.m

• WO #1 was informed of a possible impaired driver heading northbound on Hwy 23. The dispatcher said the marker reported was similar to [edited out] and there was no return on the plate

12:11:51 a.m.

• WO #1 reported he had the Tahoe in sight and would attempt to stop it by Line 44

• WO #2 said he was coming northbound from Mitchell and he could see WO #1’s roof lights

• WO #1 reported the licence plate to be [edited out] and that the driver, before the emergency equipment was turned on, had pulled over on Hwy 23 north of Line 44. Another police officer reported that he was a couple hundred metres from WO #1, but he could see his police cruiser
• WO #1 told the dispatcher that he thought the driver wrongfully identified himself. The dispatcher reported the plate to be attached to a Chevy Tahoe and it was registered to the Complainant. Further, there was a “positive return on the Complainant”

• The Complainant was ‘flagged’ on the PCC computer which indicated there were arrest warrants for him, and

• WO #1 said he and WO #2 were going to attempt to arrest the complainant and WO #2 said he was going to pull in front of the Complainant’s vehicle

12:18:01 a.m.

• WO #2 reported that the Complainant rammed a police vehicle and fled northbound toward Moncton. WO #1 reported he discharged his firearm and WO #2 told WO #1 not to go after the Complainant, and

• WO #2 said that they attempted to make an arrest and the complainant had reversed and rammed WO #1’s police cruiser. WO #1 discharged a round when the Complainant went toward and around WO #2 and continued northbound

12:33:51 a.m

• WO #2 called a sergeant and told him that the Complainant had almost hit him and he, WO #2, was starting to calm down now. When asked if the Complainant drove at him, WO #2 replied it seemed like it

• WO #2 told the sergeant that there was a traffic complaint that resulted in the traffic stop. The Complainant went through Tim Hortons and a smell of an alcoholic beverage was noticed. He drove northbound on Hwy 23 and passed a tractor trailer unit doing 110 km/h

• WO #1 spotted and stopped the Tahoe as WO #2 came up to WO #1. The Complainant supplied his identification and there was a warrant. Knowing the Complainant would be arrested, WO #2 pulled in front of the Tahoe, diagonally. The Complainant’s window was seven eighths of the way up and he refused to roll it down or unlock the door

• They tried to encourage the Complainant to roll the window down, but again he refused. WO #1 had a tool to break windows. The Complainant was repeatedly warned that the window would be broken unless he rolled his window down. The Complainant said, “Don’t break the window” and it was believed the Complainant was going to open the door

• As the window was popped, the Complainant put it in reverse and rammed the Tahoe into the front of WO #1’s police cruiser. The Complainant put the Tahoe in drive and drove forward in a diagonal direction toward WO #2
• WO #2 explained he moved out onto the roadway and he was not aware WO #1 pulled his firearm. WO #1 discharged a round. WO #2 reported it was dark and he had no idea if the round struck the Tahoe. WO #2 said they had the Complainant’s driver’s licence and, when the Complainant left, his driver’s window was broken, and

• The sergeant inquired how the window was broken and WO #2 replied with WO #1’s tool, which is now inside the Tahoe. The sergeant confirmed that there had been a clear identification of the Complainant. WO #2 spoke of another police officer who had been 800 metres up the road doing a traffic stop and of going on the radio and instructing WO #1 to let the Complainant go

OPP Radio Communications Recordings - April 25^th, 2017

The OPP PCC radio communications recordings were obtained and reviewed.

6:19:09 a.m.

• Information was broadcast to Perth County police officers that the Tahoe was involved in the collision in Stratford and was last seen heading southbound on Mornington Street, which was also known as Road 119. There was front end damage to the Tahoe

• The SO reported that he had sighted the Tahoe by Road 26 at Hwy 7. The SO was following the Tahoe reporting fluctuating distances behind it, from 500 metres to about one kilometre

• He kept updating his location, speed and traffic. None of the speeds or driving by the Complainant, which were reported, caused a safety concern. The lowest speed was 40 km/h and the highest was between 120 to 130 km/h

• The Communications Sergeant from the PCC gave directions for other police units to set up in an attempt to use alternative measures to stop the Tahoe. He further indicated that there would be no pursuit of the Tahoe

• The SO continued reporting their direction of travel. He reported losing visual on the Tahoe in the area of Nine Mile Road and Clarke Road. The SO suspected the Complainant drove into a residence to hide and began back tracking on Nine Mile Road

• WO #3 reported that he was head to head with the Tahoe and that the Complainant had tried to ram his police cruiser, but drove around the back end. WO #3 said he was not in pursuit and the Complainant was southbound on Clarke Road doing about 60/km/h

• CW #8 reported that the Tahoe had driven around his spike belt at Eight Mile Road and Clarke Road

• CW #3 reported that the Tahoe was doing 100 km/h as it approached the curves in Clarke Road and at 80 km/h as it was approaching Medway Road, and

• CW #3 passed the Tahoe and was trying a rolling block

6:31:19 a.m

• The Tahoe was reported to be in the business premises on Clarke Road and the Complainant was on foot

6:32:56 a.m

• A female voice reported the Complainant was in custody. The SO reported that he had discharged his CEW on two occasions and it was effective. He said there were no injuries to the Complainant or any police officer

Materials obtained from Police Service

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

• Event Details Reports
• Notes of WO #s 1-8
• OPP Interview Report of WO #4, and
• Training Records of the SO

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

• Dispatch Details
• General Occurrence Report, and
• MVC Report

Further documents obtained and reviewed:

• Google Satellite Map-marked by the SO
• Google Satellite Map-marked by WO #7
• Medical Records of the Complainant
• Paramedic Records of the Complainant
• Drawing of Scene-the Complainant (x2)
• Drawing of Scene-WO #7, and
• Drawing of Scene-WO #3 (x2)

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.

Section 249, Criminal Code - Dangerous operation of motor vehicles

249 (1) Every one commits an offence who operates

1. a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place&hellip

(3) Every one who commits an offence under subsection (1) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Section 253(1), Criminal Code - Operation while impaired

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

1. while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
2. having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood

Section 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. causes bodily harm to the complainant

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 270(1), Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure

Section 216 (1) Highway Traffic Act of Ontario – Power of Police Officer to Stop Vehicles

216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

216 (2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, subject to subsection (3),

1. to a fine of not less than $1, 000 and not more than $10, 000
2. to imprisonment for a term of not more than six months; or
3. to both a find and imprisonment

On April 25^th, 2017, at approximately 12:06 a.m., the Perth County Detachment of the Ontario Provincial Police (OPP) received a 911 call from an unidentified caller advising that a Chevy Tahoe with a licence plate, which he was able to recall within one letter, had just left the Tim Hortons restaurant in the Community of Mitchell in the Municipality of West Perth. The caller advised that the driver smelled of alcohol and he had followed the vehicle and observed it to pass a tractor trailer on Highway 23 travelling at an approximate speed of 110 km/h. OPP officers responded to the call and, after attempting to arrest the driver of the Chevy Tahoe and following the vehicle for some length of time, the Complainant was eventually arrested. He was then transported to the hospital where he was diagnosed with a fractured clavicle.

The Complainant was driving on Hwy 23, when he saw the emergency lights of a police cruiser in the distance ahead of him and he pulled over; the police cruiser passed him and then made a U-turn and pulled in behind him. WO #1 then exited his cruiser and approached the Complainant, advising him that there had been a complaint and a concern that he may have been drinking; the Complainant denied drinking and told WO #1 that he was lost but now had directions and was trying to follow them to get back home.

WO #1 then requested and received the Complainant’s driver’s licence and went back to his police cruiser. WO #2 then pulled up in a second police cruiser and angled his cruiser in front of the Complainant’s Tahoe, blocking him. The Complainant then rolled up his driver’s window to within one inch of the top. WO #1 and WO #2 then both came to the Complainant’s driver’s door and WO #1 ordered him to open the door while the Complainant questioned why. After the officers repeatedly asked him to open the door and he repeatedly refused, WO #1 told him that he would get a tool from his cruiser and break the window if the Complainant did not open it. WO #1 then went to his cruiser and returned with the glass breaking instrument, but the Complainant still refused to open the door and WO #1 made two motions with the tool as if to break the window. When WO #1 motioned a third time, the Complainant reversed his vehicle towards WO #1’s cruiser. The Complainant then put the car into drive. As the Complainant was driving forward, WO #1 threw the glass breaking tool at the driver’s window, smashing it, and then WO #1 went for his firearm.

With a few exceptions, the evidence to this point is fairly consistent as between the Complainant, WO #1 and WO #2. WO #1 advised, however, that when the Complainant reversed his motor vehicle, he rammed WO #1’s cruiser and pushed it backward approximately four feet; the force of the impact cracking the cruiser’s push bar and pushing it upward. Additionally, at the time that the Complainant was accelerating towards WO #2’s cruiser, WO #1 did not know the location of WO #2 but had last seen him standing by his cruiser and feared for WO #2’s life, as a result of which he drew his firearm and discharged one shot at the Tahoe, which then drove away northbound on Hwy 23.

WO #2’s evidence is similarly consistent with the Complainant’s, again with the exception that the Complainant did actually reverse and strike WO #1’s cruiser with great force, causing it to move back three to four feet. When the Complainant then accelerated forward, WO #2 had to jump out of the way and jump backwards into the live lane of traffic, at which point he lost WO #1 from view. WO #2 described the Complainant as turning the Tahoe’s wheels to the left and coming directly at WO #2 and he believed that the Complainant was going to hit him and he had to jump back to avoid being struck; as he jumped backwards, he heard the pop of a firearm being discharged and the Complainant drove right by him.

WO #2 also advised, that despite the belief of the Complainant that police continued to pursue him, when WO #1 went to get into his cruiser to follow the Complainant, WO #2 told him not to as they had identified the driver and they had his driver’s licence which matched the person driving the car. WO #2 also directed a second police officer, who was dealing with a traffic stop nearby, not to pursue the Tahoe. This evidence is consistent with the evidence of WO #1 and positively confirmed by the radio transmission recordings wherein WO #2 is heard at 12:18:01 a.m. to report that they had attempted to arrest the Complainant when he rammed WO #1’s police vehicle and fled northbound and that WO #1 had discharged his firearm when the Complainant was driving toward, and then around, WO #2. WO #2 is also heard to report that he directed WO #1 not to pursue the Complainant’s vehicle. The radio communications tape recorded a further transmission from WO #2 wherein he advised a sergeant that the Complainant had almost hit him; that WO #2 was just now starting to calm down; and that it seemed to him that the Complainant had driven at him.

The SO advised that when he came on shift at 6:00 a.m. on the morning of April 25^th, 2017, he was advised by the night shift of the incident from the previous evening and that the Complainant was still outstanding and was possibly an impaired driver. The SO then parked his police cruiser east of Highway 7 and Line 26 approximately two kilometres south of Stratford and, after five minutes, he observed the Tahoe travelling south on Hwy 7 and observed that the driver’s side headlight was out, there were no tail lights illuminated, one of the tail lights was hanging off, only the centre brake light was operational, and there was damage to the front left of the Tahoe. The SO then notified the PCC and began to strategically follow the Tahoe, remaining approximately 400 metres back. The SO advised that he did not initiate a pursuit, that neither his siren nor his emergency lighting equipment were activated, and he stayed well back in order to prevent the Complainant discovering that he was being followed. The SO continuously updated the PCC with respect to the location, direction of travel and speed of the Tahoe, along with the weather conditions. He suggested that other police units could position themselves in an attempt to stop the Tahoe. The SO advised that he lost sight of the Tahoe in the area of Nine Mile Road but then heard a radio broadcast from WO #3 advising that the Tahoe had rammed his cruiser.

WO #3, in his statement, advised that he heard the SO report that he had lost sight of the Tahoe while driving eastbound on Nine Mile Road and he turned onto Nine Mile Road and immediately saw the Tahoe travelling westbound towards him. WO #3 advised that he activated his emergency lights and attempted to block the road by putting his cruiser sideways across the road, but the Complainant drove into the north ditch, around the rear of the police cruiser, and then back onto the roadway and southbound on Clarke Road. WO #3 advised that he then turned off his emergency equipment, updated the PCC, and took up a constant position of about one third of a kilometre behind the Tahoe, which was travelling consistently between approximately 89 and 98 kms/h. At Clarke Road and Eight Mile Road, WO #3 observed WO #8 deploy a spike belt in an attempt to stop the Complainant, but the Tahoe swerved around it and continued on. The memorandum book notes of WO #8 indicate that at 6:48 a.m., he threw the spike belt across the road as the Tahoe approached but that the Tahoe swerved onto the gravel shoulder, avoided the spike belt, and continued on. The evidence of WO #1, WO #3 and WO #8 are all fully confirmed by the radio communications recordings.

WO #3 indicated that after the Complainant drove around his cruiser and managed to avoid the spike belt placed on the road by WO #8, he continued to follow the Complainant and he observed him to drive through a red light on Clarke Road. WO #3 then decided to attempt a rolling block and he advised the PCC and received permission from the supervisor to do so. WO #3 then passed the Tahoe and began to slow down, while the Complainant made attempts to get around his cruiser, and WO #3 kept maneuvering his cruiser so that the Complainant could not pass. WO #3 then began to move to the right, while slowing down, and the Complainant turned into the side of WO #3’s cruiser. WO #3 then continued to keep the Tahoe from coming back onto the roadway by keeping his cruiser tight against the side of the Tahoe while they were travelling at about 60 kms/h, resulting in the Complainant turning right into the driveway of a business on Clarke Road and driving up the laneway.

WO #3 indicated that he observed the Complainant try to get around a pick-up truck on the right side and WO #3 struck the rear end of the Tahoe after the Tahoe had struck a tree. He then observed the Complainant to quickly exit and run away. This evidence is fully corroborated by two independent civilian witnesses who were on the business premises at the time.

The Complainant alleges that the SO deployed his CEW at him once, causing him to fall, but he got back up and kept running, after which the SO deployed his CEW at him a second time, and he again fell. When the Complainant then attempted to get up and run again, he alleges that the SO tackled him from behind and, once he was down on the ground, the SO then gave him three to five knee strikes to his right side and about four or five elbow strikes to his left back shoulder area and the back of his head, which caused his injuries.

The SO indicated that he observed the Tahoe crash into a tree, after which WO #3 used his police cruiser to pin the Tahoe against the tree and the Complainant quickly exited the Tahoe and ran off. The SO chased after the Complainant shouting commands for him to stop, identifying himself as police, and telling him to get down on the ground and to show his hands; the Complainant ignored the SO and kept running. This too is confirmed by the civilian witnesses.

As the Complainant ran, the SO saw him with his right hand in his right front pocket and he appeared to be hunched over as he ran, which caused the SO to fear that the Complainant might have a weapon. As a result, the SO drew his firearm and shouted further commands at the Complainant, who continued to ignore him and run on. As the Complainant approached the edge of a wooded area, the SO observed him to remove his hand from his pocket and the SO saw that he was empty handed, so he holstered his firearm and drew his baton. He advised that he was closing the gap on the Complainant.

The SO then observed the Complainant to climb over a fence and fall over the top of it, head first, landing heavily on his left shoulder and the left side of his head. The SO described the Complainant as falling like a sack of potatoes and he observed the Complainant lying on the ground and facing him and he told the Complainant to stop and to stay on the ground. He then drew his CEW and warned the Complainant that he would be tased if he did not remain on the ground; at which point the Complainant started to get up, and the SO deployed his CEW, which was ineffective. The SO then deployed his CEW a second time, which was also ineffective with the Complainant getting up and running. The SO then climbed the fence to follow the Complainant and, while running after the Complainant, the SO tackled him from behind in a football-style tackle which involved the SO wrapping both of his arms around the Complainant’s torso and they both went to the ground with the Complainant landing face first and the SO landing on top of him.

The SO advised that while he was lying on top of the Complainant, he continued to shout “stay down” and “show me your hands” and was trying to control the Complainant’s head and hands; the SO indicated that he still feared the Complainant may have a weapon. The SO then gave the Complainant a knee strike to the right arm/bicep in an attempt to gain control, and when the first strike missed, he delivered a second one, which connected, and the Complainant gave up his right arm and the SO took control of it. The SO advised that at no time did he deliver any strikes with his hands or arms as those were occupied trying to control the Complainant’s head and hands. The SO was then assisted by WO #5, WO #3, and WO #7 and the Complainant was handcuffed. A silver folding knife was located in the Complainant’s front pocket, upon being searched, and when asked, the Complainant conceded that he had used cocaine, crystal meth, methadone and alcohol.

This evidence is consistent with that of CW #5, who also heard the Complainant admit that he had used methadone and crystal meth within the previous 24 hours and heard him complain about his left shoulder.

WO #3, who also pursued the Complainant after he exited his vehicle and fled, advised that he observed the Complainant grabbing his grey sweater at the waistband as he ran and he yelled to WO #4 to stay behind the SO as he, WO #3, drew his firearm. WO #3 then lost sight of the Complainant, the SO, and WO #4 as they entered the tree line, but he heard the sound of a CEW being discharged for five seconds and the SO yelling out police commands of “Police! Don’t move!” and “get on the ground” while WO #4 was heard to yell “Taser! Taser!”

Once in the tree line, WO #3 observed the Complainant rolling on the ground with nothing in his hands, and he re-holstered his firearm. After assisting WO #4, who was caught up in the barbed wire fence, they both ran to the Complainant, who was then standing on his feet while the SO continued to yell commands at him. The Complainant then ran again and the SO deployed his CEW a second time, whereupon the Complainant then fell to the ground and WO #3 saw the SO lying on top of him and struggling, while the Complainant was flailing and fighting to get away. At no time did WO #3 observe the SO to deliver any strikes to the Complainant. The SO continued to tell the Complainant to stop fighting and resisting as he tried to control his arms, and WO #4 got on top of the Complainant’s legs while the SO moved up the Complainant’s upper body to gain control of his arms. Other officers then arrived and the Complainant was handcuffed.

The evidence of WO #4 is consistent with that of WO #3. WO #4 advised that when WO #3 was attempting a rolling stop of the Complainant’s vehicle, the Complainant turned the left front corner of the Tahoe into the passenger side of the police cruiser front door and dislodged the mirror on the cruiser. Additionally, she observed the Complainant go over the barbed wire fence and fall on the other side, landing on his lateral and upper back portion of his right shoulder. She then observed the Complainant immediately get up and heard the CEW being deployed and she yelled “Taser, Taser, Taser” to WO #3. She then observed the Complainant get up again and walk toward the bush while swatting at the CEW wiring. As WO #4 began to go over the fence, she heard the CEW being deployed a second time after which she observed the Complainant lying on his stomach with the SO on top of him with his knee on the Complainant’s centre back trying to bring the Complainant’s left arm behind his back while the Complainant continued to struggle and tried to get up. WO #4 also indicated that she did not observe the SO strike the Complainant in anyway.

The paramedic records confirm that the Complainant admitted to them that he had consumed alcohol, methadone, cocaine and crystal meth. This evidence is confirmation of the statements of WO #5 and the SO wherein they indicated that the Complainant admitted, when asked, that he had consumed crystal meth, cocaine, methadone and alcohol within 24 hours prior to his arrest and directly contradicts the evidence of the Complainant wherein he told SIU investigators that he had not consumed any alcohol or drugs on the date in question.

Similarly, the medical records of the Complainant indicate that he told medical personnel that he had consumed crystal meth three hours prior and had a history of use of cocaine and methadone. I find this to be a blatant misrepresentation by the Complainant to SIU investigators that is extremely damaging to the Complainant’s credibility. On this basis, I am unable to accept the Complainant’s further self-serving statements wherein he denied ramming WO #1’s cruiser during the initial stop and accept instead the evidence of both WO #1 and WO #2, as confirmed by their immediate transmissions to the PCC, which was recorded. Since these utterances were made contemporaneous with the incident being described and without any opportunity for fabrication, I accept those statements as accurate and reject the Complainant’s version of events. Having made these findings which undermine the overall credibility of the Complainant, I further reject his allegation that it was WO #3 who rammed his vehicle, rather than that he rammed WO #3’s vehicle, which behaviour I find to be fully consistent with his previous behaviour wherein he had rammed WO #1’s cruiser and almost ran into WO #2.

Additionally the medical records of the Complainant indicate the following:

Pt (patient) states unsure of how he injured shoulder – was climbing fence and states OPP took pt down, landing on left shoulder.

I find this statement to be fully consistent with the evidence of the SO, wherein he indicated that the Complainant fell over the fence landing on his left shoulder and that he tackled him thereafter, and totally inconsistent with the allegations made for the first time by the Complainant in his statement to SIU investigators that he received three to five knee strikes from the SO to his right side and about four or five elbow strikes to his left back shoulder area and the back of his head, after which he realized that his shoulder had been injured.

On the whole of the evidence, although I find that the Complainant’s evidence, where substantiated by other witnesses, is truthful with respect to the underlying facts, I reject his evidence where it is directly contradicted by other evidence. I specifically find that the Complainant was untruthful with respect to his own actions in his efforts to evade police and that he provided self-serving statements in this regard meant to minimize his own culpability. As such, I accept the following as fact, contrary to the assertions of the Complainant:

• The Complainant was under the influence of both alcohol and drugs at the time of his interactions with police

• The Complainant rammed WO #1’s cruiser and almost ran over WO #2 in his efforts to flee from police after the initial vehicle stop

• The Complainant turned into the police cruiser being operated by WO #3 when WO #3 was trying to block him in

• The Complainant, while fleeing from police and to avoid colliding with the pick-up truck in the laneway, collided with a tree

• The Complainant, when he went over the fence while being pursued on foot by the SO, fell heavily onto his left shoulder and the left side of his head

• The Complainant continued to actively resist after the SO had twice deployed his CEW and the Complainant was on the ground with the SO on top of him, and

• The SO only delivered one distractionary knee strike into the right arm/bicep of the Complainant in an attempt to gain control of him, and did not deliver any additional knee strikes nor did he deliver any distractionary strikes using his hands or arms as they were occupied with holding onto the Complainant’s hands and head

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the 911 call that the police had ample grounds to stop and investigate the Complainant’s vehicle pursuant to s. 216 of the Highway Traffic Act based on the information received that he was operating a motor vehicle while possibly impaired. Following the Complainant ramming the cruiser of WO #1 and almost hitting WO #2, police had more than reasonable grounds to stop and arrest the Complainant for a number of Criminal Code offences, including, but not limited to, dangerous driving and assault with a weapon; police also had grounds to apprehend the Complainant based on the outstanding warrants for his arrest. As such, the pursuit and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the officers in their attempts to apprehend and subdue the Complainant, I find that their behaviour was more than justified in the circumstances and that they used no more force than necessary to apprehend, arrest, and handcuff the Complainant who was clearly intent on going to great and drastic lengths to avoid being arrested.

Following the foot pursuit of the Complainant, I find that the SO’s actions in tackling the Complainant to the ground and delivering one knee strike to his right side in order to get him to give up his hands to be no more than was required to finally stop and handcuff the Complainant who continued to fight and resist. I also find that it is more than likely that the Complainant suffered his injury when, while fleeing on foot from police, he fell over the fence and landed heavily on his left shoulder and head area, as he opined at the hospital; however, even if it were caused by the SO taking him to the ground and landing on top of him, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by the SO progressed in a measured and proportionate fashion to meet and overcome the Complainant’s unflagging resistance and the great lengths he was willing to go to in order to avoid apprehension, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention and did not amount to an excessive use of force.

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, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that 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 Complainant’s detention, and the manner in which it was carried out, were lawful notwithstanding the injury which he suffered, even were I to find that the SO caused the injury, which I am not inclined to do. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

On a side note, I wish to acknowledge the level headed and professional behaviour of WO #2 who, despite having just witnessed the Complainant ram WO #1’s vehicle, and almost being run down by the Complainant, declined to engage the Complainant in a police pursuit, instead putting the safety of the public ahead of his desire to apprehend the Complainant. WO #2’s comments that since they had identified the Complainant as the driver they would be able to get him another day, was in full compliance with Ontario Regulation 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits, and exhibited a calm, rational, and professional approach which was extremely admirable in the circumstances.

Date: March 26, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit