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 sustained by a 38-year­ old man on February 28, 2017 during his arrest for impaired driving.

Notification of the SIU

On March 1, 2017 at 1:40 a.m., the Ontario Provincial Police (OPP) notified the SIU that the Complainant suffered a fractured ankle[1] during his arrest on February 28, 2017.

The OPP reported that at approximately 12:00 p.m. on February 28, 2017, Elgin County OPP responded to a call regarding a possible impaired driver operating a transport truck eastbound on Highway 401. OPP officers located the vehicle and attempted to stop it but the driver, the Complainant, failed to comply. OPP officers initiated a pursuit but were ordered to terminate the pursuit. The OPP officers were, however, authorized to follow the vehicle. After travelling an additional 43 kilometres, the Complainant encountered stopped traffic in the area of Highway 401 and Colonel Talbot Road, in London.

The police officers approached the Complainant’s stopped vehicle and pulled the Complainant from the cab to the ground, where a short struggle took place. Once in custody, the Complainant complained of a sore foot and he was subsequently taken to the hospital in London. He was released without a diagnosis and returned to the London OPP detachment, where he was processed and held for a bail hearing.

At approximately 6:00 p.m., the OPP were notified by hospital staff that the Complainant had sustained a fractured left heel and would require surgery to repair the damage. The fracture was described to the OPP to be a "high energy impact" injury.

The scene of the arrest had not been preserved and the involved police officers had reported off duty.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Not interviewed, but notes received and reviewed[2]

WO #5 Interviewed

WO #6 Interviewed

WO #7 Not interviewed, but notes received and reviewed[3]

WO #S Interviewed

WO #9 Interviewed

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

Subject officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

Just after noon on February 28, 2017, the Complainant was operating his transport truck on Highway 401, approximately midway between Chatham and London. He was intoxicated, and was observed swerving all over the highway, from lane to lane and shoulder to shoulder. The CW and other motorists called 911 to report the Complainant’s dangerous driving behaviour.

WO #2 responded to the call, and was able pull up beside the Complainant’s truck, signalling him to stop with his lights and sirens. The Complainant, however, continued driving. WO #2 followed the Complainant and maintained observations.

The SO drove to the area of Highway 401 and Colonel Talbot Road and prepared to position his police cruiser in front of the Complainant in order to alert motorists in front of the truck to the oncoming hazard. When WO #2 reported that the Complainant was approaching Colonel Talbot Road, the SO pulled in front of another transport truck which stopped, causing the traffic on the highway, including the Complainant, to also stop.

Once the Complainant stopped his truck, the SO opened the door of the Complainant’s truck and ordered him to turn off the vehicle. The truck was rolling forward. The Complainant did not comply and the SO and WO #2 pulled him from the vehicle. The Complainant landed on his feet, and continued to resist. The SO and WO #2 brought the Complainant to the ground, handcuffed him and transported him to the London OPP station.

Once at the station, the Complainant complained of pain in his foot. He was taken by ambulance to the hospital, where it was determined he had suffered a fracture to his left heel.

Physical evidence

Intoxilyzer readings

Breath samples were obtained from the Complainant while he was at the hospital. The breath samples resulted in blood alcohol measurements of 229 milligrams (mgs) of alcohol per 100 millitres (ml) of blood, and 236 mg of alcohol per 100 ml of blood.

Search of the Complainant’s Transport Truck

WO #6 reported that a search of the tractor-trailer revealed a 40 ounce bottle of Gibson’s Finest Whisky, stored between the seats and it was approximately three-quarters full. The alcohol was found in a Duty Free bag, in which there was a receipt indicating the whisky was purchased at the Detroit border crossing at 10:30 a.m. on February 28, 2017.

Video/audio/photographic evidence

The SIU contacted the Ministry of Transportation Traffic Operation Centre in London. The SIU was advised the COMPASS traffic camera system did not include cameras in the area of Colonel Talbot Road.

A video was provided by a non-designated civilian witness. WO #2 also provided a video of the incident.

Video-WO #2

Using his cellular telephone, WO #2 recorded the Complainant’s driving as WO #2 followed the Complainant’s vehicle. The video clearly documented the Complainant’s vehicle swerving dramatically from lane to lane on Highway 401. The video recording provided to the SIU did not include any images of the Complainant’s arrest. WO #2 told the SIU he stopped recording once the Complainant’s vehicle was stopped.

Communications recordings

At 12:34 p.m. on February 28, 2017, the CW contacted the OPP and reported he was following a transport truck that was swerving all over the road and had almost collided with other vehicles. The CW reported other motorists were afraid to pass the tractor-trailer. The CW described the Complainant’s truck moving from the left lane all the way over to the right shoulder and back, repeatedly.

Elgin County OPP units were notified of the situation and they were provided the licence plate information and vehicle markings of the Complainant’s vehicle. WO #2 volunteered to respond to the call.

The CW then reported that the Complainant was pulling into an OnRoute service centre. He reported the company name on the side of the tractor-trailer and the vehicle fleet number. The CW reported there was another vehicle that appeared to be following the Complainant and the dispatcher confirmed they were receiving other calls on the matter. The CW reported that the Complainant had parked and had exited his truck and walked to the rear of the trailer. The CW described the Complainant just standing at the side of his truck and the CW commented perhaps the Complainant was urinating. The dispatcher told the CW a police officer should be there in a second. The CW reported that the Complainant had re-entered his vehicle and was driving back onto Highway 401. The CW also reported he saw a police officer [now known to be WO #2] travelling past the service centre.

The CW reported that WO #2 was behind the Complainant but was having a hard time getting the Complainant to pull over. The CW explained that WO #2 had his emergency lights activated while travelling in the left lane but there was no response from the Complainant.

WO #2 reported that he could see the Complainant ahead in the distance and it would take him a minute to catch up to the Complainant. WO #2 reported he could see the Complainant’s vehicle swerving all over the place, and that WO #2 was trying to get through traffic to catch up to him. With his siren sounding in the background, WO #2 reported the Complainant was not paying attention to him and was continuing to swerve all over Highway 401.

A dispatcher asked WO #2 for his speed, and WO #2 responded it was 80 km/h. He reported he had pulled up beside the Complainant but the Complainant was not paying attention, and was continuing to swerve all over both lanes. The dispatcher asked WO #2 if he was in pursuit and WO #2 responded that, given the fact he had his lights on to get the driver’s attention, he would say yes. WO #2 suggested that if the others wanted him to terminate, he could pull over. The dispatcher stated the communications sergeant was just grabbing a headset. WO #2 reported he had turned off his front [emergency] lights, hoping the Complainant would pay less attention to him and pay more to the road, but he had his rear lights activated to keep traffic back. WO #2 was just passing Currie Road at that point.

The communications supervisor entered the conversation and asked for the reason for the pursuit. WO #2 responded it was a traffic stop and a tractor-trailer was swerving all over the road. WO #2 reported he had pulled up beside the Complainant with his lights and siren activated but the Complainant did not pay any attention to him. WO #2 stated that he had turned his front lights off but he was keeping his rear lights on to keep traffic back. The communications supervisor instructed WO #2 to terminate his efforts, and WO #2 responded that he had pulled over to the side of the road. WO #2 provided a description of the tractor-trailer and he requested permission to continue eastbound in an attempt to meet up with other units to set up a roadblock. That permission was granted.

The responding police officers attempted to coordinate an effort by which they would get in front of the Complainant’s vehicle and attempt to slow or stop him. WO #2 continued to provide ongoing descriptions of the Complainant’s driving behaviour and location. WO #2 asked for permission to activate his rear lights to keep traffic back and the communications WO #2 reported he was approximately one kilometre behind the Complainant’s vehicle and could see it swerving all over, from the shoulder and then back into the left lane.

A female police officer [believed to be WO #8] reported being at Colonel Talbot Road and she asked if they wanted her to try to lay down a spike belt. A sergeant advised that a spike belt would not work on a transport truck. He stated they were going to attempt to block the vehicle. A number of other police officers reported they were at Colonel Talbot Road and a male police officer stated they were not planning on blocking the Complainant, his intention was to get in front of the Complainant, who simply might not have noticed WO #2’s efforts earlier.

WO #2 reported that he and the Complainant would be at Colonel Talbot Road in approximately two minutes. WO #8 reported she was on the eastbound on-ramp, and she asked WO #2 to tell her when they were approximately ten seconds away, as she was seeing a lot of white trucks. The SO reported that he and WO #3 were at Colonel Talbot Road as well, and the SO asked WO #2 to let them know when they were going under the Colonel Talbot Road overpass. WO #2 reported they were travelling at approximately 100 km/h and the Complainant’s vehicle was swerving all over and the Complainant was tailgating a Discount Rental truck. The police officers coordinated their plan to get in front of the Complainant.

At 1:03 p.m., WO #2 reported that the Complainant was in the left lane trying to pass another tractor-trailer. He suggested the police units positioned at Colonel Talbot Road should be able to see the Complainant’s truck. WO #8 said she thought she saw the Complainant’s vehicle beside a blue truck and WO #2 confirmed that she had the correct target vehicle. The communications sergeant reported the company owner was on the telephone to the Complainant and if all went well the Complainant should be pulling over. WO #2 reported that they would be going under the Colonel Talbot Road Bridge in five seconds, and a police officer reported traffic was very slow, which should be of assistance.

WO #8 soon reported that they had the Complainant’s vehicle stopped. At 1:07 p.m., the dispatcher asked the involved police officers to confirm they had the vehicle stopped and at 1:08 p.m., a male police officer reported that they had someone under arrest. That police officer reported the Complainant had resisted them while he was in the truck. The police officer reported that they had to jump into the truck to stop it from moving.

At 1:27 p.m., there was a request to have an ambulance dispatched to London OPP detachment. The dispatcher asked for confirmation that the Complainant was conscious, just highly intoxicated. A police officer responded that the request for an ambulance was in relation to a foot injury.

Materials obtained from Police Service

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

• Communications recordings
• Event History report
• lntoxilyzer Alcohol Results
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, and WO #8
• Notebook entries of one additional, non-designated officer
• OPP Witness Statement- two civilian witnesses
• OPP Witness Statement- the CW
• A list of witnesses, and
• A video recording captured by WO #2

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 Ill of that

(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(1), 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…

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

On February 28, 2017, numerous 911 calls were received by the OPP that a tractor-trailer was being driven on Highway 401 in the areas of Elgin and Middlesex Counties, in an erratic and dangerous manner. Based on the evidence of civilian motorists and the police officers who interacted with the operator of the tractor-trailer, as well as the alcohol found in his vehicle and the lntoxilyzer results of the breath samples taken from him, there is no doubt that the operator of the tractor-trailer, the Complainant, was intoxicated and his ability to operate a motor vehicle was impaired by alcohol; additionally, the manner in which his motor vehicle was being driven posed a danger to other users of the highway.

WO #2 was the first officer to respond to the 911 complaint and attempted to bring the Complainant’s vehicle to a safe stop, as he was lawfully entitled to do both under the Highway Traffic Act and the Criminal Code as WO #2 had reasonable grounds to believe that the Complainant’s ability to operate a motor vehicle was impaired by alcohol and/or that he had more than 80 mgs of alcohol in 100 mls of blood and was arrestable as a result.

The Complainant either did not see WO #2, with his emergency roof lighting and siren activated on a fully marked OPP cruiser, or was unwilling to stop. WO #2, pursuant to his obligations under the Ontario Police Services Act (OPSA), Suspect Apprehension Pursuits, Ontario Regulation 266/10, notified the dispatcher that he was in pursuit and was directed by the communications supervisor to discontinue the pursuit and to pull over, which he then did. All events until this point in time are fully confirmed by the independent evidence of three civilian motorists, the communications recordings and a cell phone video made by WO #2 as he followed the Complainant’s vehicle.

Following the discontinuation of the pursuit, a plan was implemented which successfully brought the Complainant and his tractor-trailer to a stop and he was subsequently arrested. The manner in which the Complainant was removed from his motor vehicle and the actions by police thereafter is not as clear. What is clear, is that the Complainant’s left heel was fractured during his interaction with police.

The Complainant, the operator of the tractor-trailer, was unable to assist in the determination of the sequence of events leading to his injury for two reasons; the first being that he had no recall of events after he was pulled from his truck by police, and the second being that his recollection of events prior to being stopped by police is directly contradicted by the physical evidence as well as the evidence of the independent civilian motorists. The evidence of the civilian motorists as to his manner of driving and the observations of police as to his level of intoxication, as well as the physical evidence, that being that the bottle of whisky located in the Complainant’s truck, which in fact had closer to 235 mgs of alcohol missing (the estimations were either one third or one fifth of the 40 oz. bottle were missing from the bottle) rather than the amount that the Complainant finally admitted consuming, and his lntoxilyzer readings of 229 and 236 mgs of alcohol per 100 mls of blood, confirm the Complainant’s blood alcohol level and his level of intoxication despite his assertions to the contrary. There are two aspects of the Complainant’s evidence which I accept as accurate, in that they are confirmed by both the independent civilian witness and the police witnesses, the first being that the Complainant was pulled from the cab of his truck by police and the second, that there is a three to four foot [0.91 to 1.22 metre] drop from the driver’s seat of the Complainant’s cab to the pavement.

I further accept the evidence of WO #1 and WO #2 that when the Complainant was removed from the cab of his truck, he had one shoe on and one shoe off; WO #1 specifically recalling that the Complainant had been wearing Crocs (slip on shoes) and that one remained behind in the cab of the truck when he was removed.

On the limited evidence of the Complainant which I accept as accurate, as well as the evidence of the independent CW, the notes of the SO and the statements provided by WO #1, WO #2 and WO #3, there is no dispute that the Complainant was forcefully removed from the truck cab by police. The evidence of the three police officers involved in the removal of the Complainant from the truck, and his subsequent arrest and handcuffing, that the Complainant was resisting during his arrest and handcuffing, is also further confirmed by the evidence of the CW, and contradicts the evidence of the Complainant that he was cooperative and compliant throughout.

Despite the belief of the CW, that the Complainant was neither taken to the ground by police nor was he ever struck by the police, three police officers conceded in their statements that they did, in fact, ground the Complainant and one police officer employed two distractionary strikes to the Complainant’s upper right back, due to his continued resistance and struggling. While on the basis of this contradictory evidence, it is impossible to determine what actually happened after the Complainant was removed from the cab of his truck, it is clear that neither of the actions, as conceded by police, caused the Complainant’s injury and therefore the inability to determine that issue does not prevent a finding with respect to whether or not the Complainant’s injury to his heel was caused by an excessive use of force.

On the evidence of all of the witnesses who were in a position to observe the Complainant’s removal from the truck, I have no difficulty finding that the Complainant, who was only wearing one shoe and who was forcefully removed from the cab of his truck and came down some three to four feet [0.91 to 1.22 metres] from the cab of his truck sustained the fracture to his heel when he landed hard on the pavement on one unshod foot as a result of the momentum of his being forcefully pulled from the cab, coming down from a height and landing on his bare foot.

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 all of the information relayed to police in their 911 calls, as well as the direct observations by police, that police were lawfully in a position to stop and investigate the Complainant both pursuant to the Highway Traffic Act, as well as the Criminal Code. Furthermore, based on the obvious erratic driving of the Complainant, police officers had reasonable grounds to believe that the Complainant was operating a motor vehicle while impaired or driving dangerously and was arrestable for those offences. As such, the initial pursuit and subsequent apprehension of the Complainant were legally justified in thecircumstances.

With respect to the amount of force used by police officers in their attempts to remove the Complainant from his motor vehicle and place him under arrest, I find that their behaviour was justified in the circumstances and that they used no more force than necessary to remove the Complainant, who had already failed to stop for police and continued to pose a danger to other motorists as long as he continued to sit behind the steering wheel of his motor vehicle with the key still in the ignition and thus continued to have the capability of starting his vehicle up and driving away. The danger was further highlighted when police officers observed the Complainant’s vehicle move slightly forward, putting both the police vehicles parked in front of his truck and other motorists at risk. In light of the fact that the Complainant had already engaged police in a fairly lengthy operation in their efforts to bring his vehicle to a safe stop, and the fact that he had both failed to stop and was thereafter resisting his removal from the cab of his motor vehicle, it was a reasonable possibility that the Complainant could again set his vehicle in motion in order to evade police, making it a priority to remove him from his vehicle as quickly as possible. While I find that the Complainant sustained the fracture to his heel when he was resisting and police officers and was forcefully removed from the cab of his truck, causing him to land hard on his feet, one of which was bare, when he came down to the pavement some three to four feet [0.91 to 1.22 metres] from the height of the drivers’ seat, I cannot find their actions to have been 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 police 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 the SO and the other police officers involved in the removal of the Complainant from his truck 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 was seated in the driver’s seat of his very large truck.

While on the evidence of the independent CW who did not observe any other force used on the Complainant, other than that required to remove him from the cab of his truck, this would end the matter, I feel obliged to deal with the admissions made by the SO (in his notes) and WO #2, that they grounded the Complainant when he continued to resist and that WO #2 struck the Complainant twice in the upper right back with a closed fist as a distractionary measure in order to gain his compliance when he refused to surrender his hand for handcuffing. As previously indicated, on the evidence of the CW alone, but supported by all three police officers, the Complainant was resistant and refusing to give up his hands for handcuffing. I have no difficulty finding in these circumstances, where there has been a lengthy operation attempting to bring the Complainant’s motor vehicle to a safe stop after his failure to stop for police, and where traffic is now backed up on Highway 401 as a result of the eventual stop, that there would have been some urgency to get the Complainant out of his cab, handcuffed and taken away, in order to allow the flow of traffic to start up again and to eliminate the ongoing risk to police officers, the Complainant and other motorists, as long as the Complainant continued to resist in the middle of an active and busy highway. In these circumstances, I find that the actions of both the SO and WO #2 were proportionate to the resistance offered by the Complainant and were not excessive, being no more than required to gain control of the Complainant and handcuff him. Furthermore, as previously indicated, the methods used by police officers to gain control and handcuff the Complainant were not of such a nature as to cause his injury and no further force was used once the handcuffs were applied.

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. I am therefore satisfied on reasonable grounds on this record that the actions exercised by the police officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: November 22, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The Complainant’s injury was actually a fractured heel. [Back to text]
• 2) [2] WO #4 was the police officer who administered an lntoxilyzer test to the Complainant and was not involved in the arrest. [Back to text]
• 3) [3] WO #7 was involved in maintaining custody of the Complainant at the hospital. [Back to text]