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 injuries sustained by a 36-year-old man during a motor vehicle collision and subsequent arrest on May 14, 2017.

Notification of the SIU

On May 14, 2017, at 7:40 a.m., the London Police Service (LPS) contacted the SIU to report a vehicle injury involving the Complainant.

LPS advised that just prior to midnight on Saturday, May 13, 2017, two men robbed a pharmacy store located on Oxford Street in London. During the heist, a quantity of fentanyl patches were taken. The two suspects then fled the scene in a vehicle. A LPS police officer responding to the robbery attempted to stop the wanted vehicle, but the driver fled. The police officer was advised to terminate the pursuit, which she did. The wanted vehicle travelled another three kilometres before it left the roadway, flipped, and struck a tree on Hyde Park Road.

The driver of the vehicle, [now known to be the Complainant] fled the scene on foot. Sometime later, the Complainant was discovered by a Canine (K9) unit and arrested. The Complainant suffered a fractured clavicle as a result of the collision and was also treated for a dog bite to his knee. The passenger [now known to be Civilian Witness (CW) #3] was temporally trapped in the vehicle but was extricated and taken to the hospital and treated for superficial injuries.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, measurements and photography.

Complainant

36-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

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

Additionally, the notes from one other, non-designated officer, and prepared statements from 37 other, non-designated officers, were received and reviewed.

Subject officers

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

SO #2 Interviewed, and notes received and reviewed.

Just before midnight on May 13, 2017, the Complainant and CW #3 robbed a pharmacy on Oxford Street in London of Fentanyl patches and codeine. They threatened the employees with firearms, although none were seen. The two men then left in a car driven by the Complainant. The Fentanyl patches had a concealed global positioning system (GPS) tracker attached, and so when employees called 911, the LPS was able to track the location of the car.

Numerous units responded to the dispatch, but SO #1 was the first officer to locate the car. A short pursuit was conducted, but quickly called off as the Complainant continued to drive at increasingly dangerous speeds. SO #1 pulled over to the side of the road. The Complainant continued to speed along Hyde Park Road, and lost control of the car at a curve in the road, crashing in front of a residence. CW #3 was trapped in the car, but the Complainant was able to escape and ran through a neighbouring field. He then hid in the brush.

SO #2 (the K9 officer) and his police service dog (PSD) tracked the Complainant to his location, laying on his stomach in the mud. SO #2 ordered the Complainant to show his hands, but the Complainant did not comply, even after being advised of the possible deployment of the officer’s Conducted Energy Weapon[1]. Concerned about the Complainant possessing a firearm, SO #2 ordered the PSD to bite the Complainant. The PSD bit the Complainant on the leg and held him. The Complainant was handcuffed and brought to his feet. The PSD also located the bag of narcotics in the field.

The Complainant was transported to the hospital by ambulance. The Complainant suffered a displaced fracture through the midshaft of the left clavicle, and a dog bite to the left knee. He underwent minor surgery to clean out the wound before it was sutured. CW #3 suffered only superficial injuries.

The scene

Distance

It is 3.2 kms between the location where SO #1 began her pursuit and the residence on Hyde Park Road where the vehicle lost control and crashed.

It is 2.7 kms between the location where SO #1 was ordered to discontinue the pursuit and the residence on Hyde Park Road where the collision occurred.

Communications recordings

Summary time line of events

Saturday, May 13, 2017:

11:48:48 p.m.: Robbery just occurred at drug store on Oxford Street West.

11:49 p.m.: Suspects 2 men who made off with Fentanyl patches and codeine.

11:49 p.m.: Left out front door.

11:50 p.m.: Security calling in. They have GPS tracker in fentanyl package.

11:50 p.m.: The tracker is currently stationary on Royal York Road.

11:51 p.m.: Now westbound on Royal York Road.

11:51 p.m.: It is now northbound on Hyde Park Road. It is going 42 mph [67.6 km/h].

11:52 p.m.: Still northbound on Hyde Park Road past Prince Phillip. It is still going 42 mph [67.6 km/h].

11:52 p.m.: Now past Sarnia, still northbound on Hyde Park Road.

11:53 p.m.: Is now stationary on Hyde Park Road.

11:53 p.m.: OPP advised.

11:53 p.m.: Now moving northbound on Hyde Park at 20 mph [32.2 km/h], approaching South Carriage.

11:53 p.m.: SO #1’s vehicle behind the suspect vehicle

11:54 p.m.: Takes off on SO #1.

11:54 p.m.: Past Carriage Road - still northbound on Hyde Park Road at 50 mph [80.5 km/h].

11:54 p.m.: 100 mph [160.9 km/h], it is near North Routledge.

11:54 p.m.: Approaching Seagull 89 mph [143.2 km/h].

11:54 p.m.: Approaching Fanshawe 57 mph [91.7 km/h].

11:55 p.m.: Past Dyer - 90 mph [144.8 km/h].

11:55 p.m.: Still 90 mph [144.8 km/h].

11:56 p.m.: May be stopped at [a residence on] Hyde Park Road.

11:56 p.m.: GPS is stationary.

11:57 p.m.: GPS is still stationary.

11:57 p.m.: GPS appears to be moving at 2.4 mph [3.9 km/h], possible suspect is walking around.

11:58 p.m.: GPS is accurate within 50 feet [15.24 metres].

Sunday, May 14, 2017:

12:00 a.m.: Vehicle rolled in front of [a residence on] Hyde Park Road.

12:01 a.m.: One man in vehicle. One suspect is westbound on foot from [a residence on] Hyde Park Road.

12:16 a.m.: One in custody [the Complainant].

12:20 a.m.: Second [the Complainant complaining of collar bone pain].

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and received closed circuit television (CCTV) recordings from the pharmacy, as well as another store and a gas station in the vicinity. CW #4 also downloaded to the SIU website a video she had taken on her cell phone that she began filming after the crash occurred.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the LPS and the Ontario Provincial Police (OPP) Middlesex Detachment:

• Call Hardcopy
• Information Folder Hardcopy – CW #3
• LPS Call Log (Computer Aided Dispatch (CAD))
• LPS Information Folder Hardcopy – the Complainant
• LPS Job Description for PSD
• LPS List of Videos Included in first Disclosure
• LPS Procedure - Suspect Apprehension Pursuits
• LPS Procedure - Police Service Dog
• LPS Training Record – SO #2 and PSD
• Prepared statements from SO #2, WO #1, WO #2, WO #3, WO #4, WO #5, WO #6 and WO #7
• Prepared statements from 37 non-designated officers
• Video statements from the Complainant and CW #3
• LPS Witness Statement from CW #5
• LPS Witness Statements from 7 non-designated civilian witnesses
• Notes of WO #3, WO #5, WO #6 and WO #7
• Notes of a non-designated officer (Traffic Reconstruction)
• OPP Event Details
• OPP Occurrence Summary
• LPS photos of scene and exhibits
• LPS communications recordings
• OPP communications recordings, and
• LPS GPS data

Sections 1-3, Ontario Regulation 266/10, Ontario Police Services Act – Suspect Apprehension Pursuits

1. (1) For the purposes of this Regulation, a suspect apprehension pursuit occurs when a police officer attempts to direct the driver of a motor vehicle to stop, the driver refuses to obey the officer and the officer pursues in a motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle

(2) A suspect apprehension pursuit is discontinued when police officers are no longer pursuing a fleeing motor vehicle for the purpose of stopping the fleeing motor vehicle or identifying the fleeing motor vehicle or an individual in the fleeing motor vehicle.

2. (1) A police officer may pursue, or continue to pursue, a fleeing motor vehicle that fails to stop

1. if the police officer has reason to believe that a criminal offence has been committed or is about to be committed; or
2. for the purposes of motor vehicle identification or the identification of an individual in the vehicle

(2) Before initiating a suspect apprehension pursuit, a police officer shall determine that there are no alternatives available as set out in the written procedures of,

1. the police force of the officer established under subsection 6 (1), if the officer is a member of an Ontario police force as defined in the Interprovincial Policing Act, 2009
2. a police force whose local commander was notified of the appointment of the officer under subsection 6 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part II of that Act; or
3. the local police force of the local commander who appointed the officer under subsection 15 (1) of the Interprovincial Policing Act, 2009, if the officer was appointed under Part III of that Act

(3) A police officer shall, before initiating a suspect apprehension pursuit, determine whether in order to protect public safety the immediate need to apprehend an individual in the fleeing motor vehicle or the need to identify the fleeing motor vehicle or an individual in the fleeing motor vehicle outweighs the risk to public safety that may result from the pursuit.

(4) During a suspect apprehension pursuit, a police officer shall continually reassess the determination made under subsection (3) and shall discontinue the pursuit when the risk to public safety that may result from the pursuit outweighs the risk to public safety that may result if an individual in the fleeing motor vehicle is not immediately apprehended or if the fleeing motor vehicle or an individual in the fleeing motor vehicle is not identified.

(5) No police officer shall initiate a suspect apprehension pursuit for a non-criminal offence if the identity of an individual in the fleeing motor vehicle is known.

(6) A police officer engaging in a suspect apprehension pursuit for a non-criminal offence shall discontinue the pursuit once the fleeing motor vehicle or an individual in the fleeing motor vehicle is identified.

3. (1) A police officer shall notify a dispatcher when the officer initiates a suspect apprehension pursuit

(2) The dispatcher shall notify a communications supervisor or road supervisor, if a supervisor is available, that a suspect apprehension pursuit has been initiated.

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, vessels and aircraft

(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 266, Criminal Code – Assault

266 Every one who commits an assault is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction

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.

Sections 343-344, Criminal Code – Robbery

343 Every one commits robbery who

1. steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property
2. steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person
3. assaults any person with intent to steal from him; or
4. steals from any person while armed with an offensive weapon or imitation thereof

344 (1) Every person who commits robbery is guilty of an indictable offence and liable

1. if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
   1. in the case of a first offence, five years, and
   2. in the case of a second or subsequent offence, seven years

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

2. in any other case, to imprisonment for life

On May 13^th, 2017, a 911 call was received by LPS from a pharmacy on Oxford Street in the City of London advising that they had just been robbed and that the two robbers had just fled the store. Details of the robbery provided included that the two males had indicated that they were armed with firearms, but none were produced. At 11:48:48 p.m., a dispatch was sent out to all units advising of the robbery and numerous units responded. Further information received advised of the direction of travel of the wanted motor vehicle and that among the stolen narcotics was a package of Fentanyl patches which was equipped with a GPS tracker that was transmitting the location of the robbers. During the course of the wanted motor vehicle’s attempts to evade police, the driver of the motor vehicle, the Complainant, crashed his motor vehicle and both he and his passenger, CW #3, were injured. The Complainant then fled from the overturned vehicle and was later bitten by a police canine and apprehended by police. The Complainant was transported to hospital where he was diagnosed with a broken clavicle (shoulder blade) and a dog bite to his left knee, which required surgery to disinfect. CW #3 only suffered minor injuries.

In their statements to investigators, both the Complainant and CW #3 openly conceded that they had robbed the pharmacy on May 13^th, 2017 of various narcotics and then fled in a motor vehicle. Neither the Complainant nor CW #3 were of the view that police were responsible for their collision.

During the course of this investigation, six civilian witnesses, including the Complainant and CW #3, and nine police officers were interviewed, including the two subject officers. All witness officers also provided prepared statements for review. Investigators also had access to the medical records of both the Complainant and CW #3, and the police radio transmission recordings. There is no dispute as to the facts.

On May 13^th, 2017, LPS officers received a radio transmission at 11:48:48 p.m. advising that a robbery had just occurred at a pharmacy on Oxford Street in the City of London. SO #1 was patrolling on Fanshawe Park Road when she heard the call, followed shortly thereafter by a second transmission advising that the stolen Fentanyl had a concealed GPS tracking device which had tracked the wanted motor vehicle travelling northbound on Hyde Park Road. SO #1 immediately advised the dispatcher that she was in the area and activated her emergency lights and sirens. She was made aware from the GPS information that the wanted motor vehicle was travelling at 77 km/h and that, a moment later, it was stationery on Hyde Park Road, north of Sarnia Road. SO #1 saw the motor vehicle make a U-turn onto Hyde Park Road and she stopped behind the vehicle momentarily, before the driver sped away. WO #3 and WO #4, in separate cruisers, both fell in behind SO #1.

Simultaneously, WO #1 and WO #5 also heard the robbery call and WO #1 retrieved a spike belt from the trunk of his cruiser and deployed the belt in the northbound curb lane of Hyde Park Road as he observed the wanted motor vehicle approaching at 120-140 km/h. Unfortunately, the spike belt did not fold out properly and the motor vehicle drove over the belt, but the spikes did not make contact, and it sped away. WO #1 then alerted the dispatcher and the three northbound police cruisers led by SO #1 of the deployment of the spike belt.

SO #1 also updated the dispatcher advising that the car had just sped away but that she had managed to get the licence plate number. SO #1 initially intended on pursuing the vehicle, but when she drove over the spike belt that had been laid on the road by WO #1, she concluded that it was not safe to do so, and she discontinued and pulled over to the side of the road just as the dispatcher advised her to discontinue the pursuit.

WO #3 and WO #4 also heard the dispatcher direct that any pursuit was to be terminated, as there was a GPS tracking device in the stolen property, and they also pulled over to the side of the road behind SO #1 and all three turned off their emergency equipment. All three officers advised that they could see that the wanted motor vehicle was one kilometre down the road at that point. All three police cruisers remained at the side of the road until they observed WO #2 pass by and they fell in behind him.

WO #2 advised that he heard SO #1 transmit that she had spotted the wanted vehicle and before he could send a message in response, he heard the Communication Sergeant direct that the wanted vehicle was not to be pursued and he heard SO #1 acknowledge the message and advise that she had discontinued and had pulled to the side of the road. WO #2 observed the three police cruisers stopped on the side of the road as he passed; he did not see any other police cruisers as he continued northbound on Hyde Park Road. A radio transmission was then received advising that the wanted motor vehicle had slowed to 2 miles per hour [3.2 km/hr] in the area of Dyer Drive and he instructed all LPS units to converge in the area in an attempt to locate the suspects. As WO #2 arrived in the area of a residence on Hyde Park Road, he observed the wanted vehicle on its roof with CW #3 trapped inside. The homeowner advised that the Complainant had fled by way of their backyard, and WO #2 arranged for three OPP officers and SO #2, the canine officer, along with his service dog, and WO #1, to track the Complainant.

SO #2 and his service dog also went to the residence on Hyde Park Road. SO #2 attached a 30 foot [9.14 metre] tracking leash to the service dog and, accompanied by WO #1 and WO #5, as well as OPP officers WO #6 and WO #7 (both OPP officers), who were both armed with rifles, began to track for the suspect. The two OPP officers each advised that they were specifically asked to accompany the canine unit because the suspect was possibly armed and each OPP officer had a rifle in his possession. SO #2 also advised that he was aware that the suspect was possibly armed. The service dog tracked through an adjacent field, locating a pill bottle and a bag containing packages of narcotics, before coming to a forested/bush area. The only lighting in the area was by way of flashlight, there being no artificial lighting.

SO #2 advised that at approximately 12:14 a.m., the service dog, who is trained to “bark and hold”, began to bark, thereby indicating the presence of a possible suspect and SO #2 observed a man lying face down in the brush with his hands underneath him. SO #2 issued commands for the Complainant to show his hands as he was concerned about the firearm that had been mentioned in the initial robbery broadcast. WO #7 advised that he also issued several commands to the Complainant to “Show me your hands, turn onto your stomach, do not use a weapon. I have a Taser and you will be Tased.” This evidence is confirmed both by the Complainant himself, as well as a nearby civilian witness, CW#4, who heard shouts of “Get down, get down on the ground, and don’t move” and heard a dog barking.

SO #2 had the service dog bark again and again ordered the Complainant to show his hands. The Complainant did not respond. SO #2 waited for six seconds and then ordered his service dog to bite. SO #2 advised that he gave the command because he knew the Complainant was wanted for robbery, that he may have been armed, and that the Complainant must have known that the police dog was close by, as he was barking loudly. The dog then grabbed onto the Complainant’s left leg and pants and, once WO #6 and WO #7 gained control of the Complainant, SO #2 ordered the dog to release.

WO #1 advised that he heard the command “show me your hands” and a reply “my shoulder hurts, take it easy”. When WO #1 neared, he observed the dog engaged and biting on the left pant leg of the Complainant and, within seconds, SO #2 ordered the dog to release, which he did.

WO #6 indicated that because of the darkness, he could not see, but heard, SO #2 order the Complainant to put his hands behind his back but the Complainant did not comply. He then heard SO #2 issue a command to the service dog and the dog grabbed the Complainant’s leg. The Complainant was then heard to complain that he could not put his hands behind his back as his collarbone was broken. The Complainant then rolled onto his stomach and was handcuffed.

WO #5 advised that she too heard the commands “Show us your hands and get on your stomach,” and then saw SO #2 pull the dog off of the Complainant’s leg, whereupon the Complainant rolled onto his stomach but had difficulty placing his hands behind his back due to shoulder pain.

On all of the evidence, I have to consider whether or not the actions of the police give me reasonable grounds to believe that a criminal offence has been committed in either of two different scenarios. The first question to be considered is whether or not there are reasonable grounds to believe that SO #1 committed the offence of dangerous driving causing bodily harm contrary to s. 249 of the Criminal Code in that her actions potentially led to the collision in which the Complainant fractured his collarbone. The second question is whether there are reasonable grounds to believe that SO #2 used excessive force in directing the police service dog to engage the Complainant and that there are therefore grounds to consider a charge of assault causing bodily harm contrary to s.267 of the Criminal Code.

With respect to the first question, it is clear on all of the evidence that SO #1, having received information via the dispatcher that a robbery had just occurred and that the suspect motor vehicle was travelling northbound on Hyde Park Road, followed the directions as relayed from the GPS device and observed a motor vehicle, which she reasonably believed was the suspect motor vehicle, and pulled in behind it and obtained its licence plate number. When the motor vehicle fled, although SO #1 initially intended to pursue, she almost immediately discontinued and pulled over to the side of the road, as did the two police cruisers behind her. It is clear on all of the evidence that SO #1 immediately advised the dispatcher of her observations of the suspect vehicle; that she observed, recorded and transmitted the vehicle identification information and its location of travel; and, after considering the public safety, she terminated her pursuit and pulled over to the side of the road. Her assessment of the public safety factor was then almost immediately confirmed by the Communication Sergeant, who also directed that any pursuit was to be terminated. This evidence is fully confirmed by the Complainant, CW #3 and CW #5.

While I find that SO #1 had reasonable grounds to attempt to stop and investigate the suspect motor vehicle for the Criminal Code offence of robbery, I find that once the vehicle had sped off and sharply accelerated, SO #1, after the initial momentary pursuit and immediately upon driving over the spike belt, terminated the pursuit and pulled over. It is further clear that when the suspect motor vehicle approached and entered the curve on Hyde Park Road, the occupants of the motor vehicle believed they had already outrun police and the collision occurred directly as a result of the excessive speed of the motor vehicle and the Complainant’s loss of control of the vehicle. I fully agree with the assessment of both the Complainant and CW #3 that the actions of police were completely appropriate and did not contribute to the single vehicle collision which caused the injury to the Complainant.

With respect to SO #1’s very brief initial pursuit, I find that she did so in full compliance with Ontario Regulation 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits in that she obtained the vehicle information, she contacted the Communications Operator that the driver had fled and updated the dispatcher as to the location and direction of travel of the suspect vehicle, and she turned off her emergency equipment and pulled over to the side of the road immediately upon her assessment that it was not in the interests of public safety that she continue her pursuit.

The offence that arises for consideration in this matter is dangerous driving causing bodily harm contrary to section 249 of the Criminal Code. This offence is predicated on conduct that amounts to a marked departure from a reasonable level of care in the circumstances. The decision of the Supreme Court of Canada in R. v. Beatty, [2008] 1 S.C.R. 49, indicates that s.249 requires that the driving be dangerous to the public, having regard to all of 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. The driving must be such that it amounts to “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances”.

I find that there is no evidence that SO #1’s driving created a danger to other users of the roadway. At no time did SO #1 interfere with any other traffic, the environmental conditions were good, and although she briefly reached high rates of speed in her initial pursuit, she then immediately terminated and pulled over. As such, SO #1’s driving was clearly not a factor in the Complainant crashing his motor vehicle. I find that SO #1 did nothing to exacerbate the suspect vehicle’s pattern of dangerous driving - in fact, on the evidence of all of the witnesses including the occupants of the suspect motor vehicle, the police cruiser was not even in sight prior to the vehicle approaching and entering the curve in the road wherein it lost control and was involved in a single vehicle collision which caused the injuries to the Complainant and CW #3.

On this evidence, it is clear that the Complainant made a voluntary decision to try to outrun police and, in doing so, he fled at a dangerous rate of speed and in a reckless manner with no regard for other people using the road, and that he continued to do so both when the police officers attempted to stop him and after the officers had abandoned that intention in the interests of public safety and the suspect motor vehicle was lost from view. On all of the evidence, the Complainant chose to enter the curve in the road at speeds that were excessive for that maneuver, lost control of his vehicle, entered the ditch, and then became airborne before the vehicle landed on its roof in the driveway of a residence on Hyde Park Road. As such, the Complainant alone is responsible for the injuries he suffered in the collision which were a direct result of his driving at the excessive rates of speed he attained in order to make good his escape.

I find on this evidence that the driving of SO #1, as she briefly pursued the suspect vehicle, does not rise to the level of driving required to constitute “a marked departure from the norm” and I find that there is no causal connection between the actions of SO #1, or any police officer, and the motor vehicle collision that caused the Complainant’s injuries. In fact, in reviewing the evidence in its entirety, it is clear that not only did SO #1 respond to the situation in full compliance with the Criminal Code, the Highway Traffic Act, and the Ontario Police Services Act, but she behaved at all times professionally, prudently and with good common sense. I cannot find any criticism of SO #1’s actions and, as such, find that there is no basis here for the laying of criminal charges.

Turning then to the second question, that being whether or not SO #2 used excessive force when he directed his police service dog to engage with the Complainant. It is clear on the evidence that there is no disagreement between the Complainant and the police officers who were present for his arrest as to what occurred, with the exception possibly of exactly what commands were issued by the police before the dog was deployed and bit the Complainant in the knee. I find that a number of police officers were yelling directions at the Complainant, which included that he should get down and that he should put his hands behind his back. I further fully accept that the Complainant did not put his hands behind his back and that his failure to do so may have been directly attributable to his broken clavicle, which injury SO #2 was unaware of at the time. Furthermore, even had SO #2 heard the Complainant indicate that his clavicle was broken, being in possession of information that the robbery suspects had indicated to the employees at the pharmacy that they were armed with firearms, he could not safely have taken the Complainant at his word and simply assumed that he was unarmed and not a danger to the officers on scene. As such, I find that the command from SO #2 to his service dog to engage with the Complainant, when the Complainant failed to put his hands behind his back but instead kept them under his body, did not amount to an excessive use of force. In coming to this conclusion, I have considered the prevailing jurisprudence from the higher courts as to the actions of police in fast paced situations of some urgency. The state of the law has been 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. On this record, it is clear that the force used by SO #2 in subduing the Complainant and ensuring that he was not armed with a firearm fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention and to remove the risk that he continued to pose as long as he potentially had access to a weapon under his body and until he was fully subdued and handcuffed.

In the final analysis, in response to each of the questions posed above, I find that I do not have reasonable grounds to believe that a criminal offence was committed by either of SO #1 or SO #2 in their efforts to apprehend and arrest a potential robber who had just robbed a store while alleging that he was in possession of a firearm. On this basis, I find that there is no basis for the laying of criminal charges and none shall issue.

Date: January 16, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

In the Director’s report dated January 16, 2018, reference is made to SO #1 driving over the spike belt. In, fact, she only drove over the rope from the spike belt, the belt itself not having been fully deployed, as is indicated in the report. Furthermore, while she immediately thereafter pulled over to the side of the road, there is no evidence that she did so because she drove over the rope of the spike belt.

Date: October 2, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit