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 29-year-old man on July 3, 2016 during his arrest.

Notification of the SIU

On July 3, 2016 at 12:59 p.m., the North Bay Police Service (NBPS) reported to the SIU that at 12:30 p.m., police officers responded to a domestic dispute at a residence in North Bay. The Complainant got into a vehicle and drove away. A short pursuit was initiated and the Complainant’s vehicle was involved in a motor vehicle collision with another civilian vehicle. The Complainant and the occupants of the other vehicle were taken to the hospital.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 3

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, photography, sketches and measurements.

Complainant:

29-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

CW #6 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

[Note: A witness officer is a police officer who, in the opinion of the SIU Director, is involved in the incident under investigation but is not a subject officer.

Upon request by the SIU, witness officers have a duty under Ontario Regulation 267/10 of the Police Services Act, to submit to interviews with SIU investigators and answer all their questions. The SIU is also entitled to a copy of their notes from the police service.]

Subject Officers

SO Interviewed, and notes received and reviewed

The Scene

On Sunday, July 3, 2016, SIU forensic investigators attended the scene. The weather was clear and hot and the roads were dry. The intersection where the collision occurred had one street that runs in a general north-south direction, is paved and the area is a residential neighbourhood. The intersecting street runs in a general east-west direction, is paved and is controlled with a stop sign at the intersection. A Toyota was located in the southwest corner of the intersection and was facing in a southwest direction and partially in the ditch. The vehicle had extensive front end damage and the driver’s air bag had deployed.

Located to the south of the intersection and on the east side of the roadway is a residential duplex bungalow. The driveway to the unit on the south side is at the front of the residence and continues along the south side of the residence to a double car garage located at the east end of the property. The panel to the overhead garage door facing front (west) was damaged and there was bloodstaining visible around the damaged panel. Measurements were obtained.

Scene Diagram

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications Recordings

Communications Tape (Summary)

• At 11:03:02 a.m., the SO and WO #3 were dispatched to a residence regarding a domestic assault
• The dispatcher advised that the Complainant had a non-communication order with a female
• At 11:03:58 a.m., the SO and WO #3 advised they were in a pursuit and the vehicle being pursued had been in a collision with another vehicle
• At 11:07:30 a.m., the SO and WO #3 advised that they had one in custody and everything was okay, and
• An ambulance was dispatched at 11:07:47 a.m

No other information was obtained from the communication recording that could assist in the investigation of this incident.

Materials obtained from Police Service

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

• Communications recordings
• Disclosure Log-July 18, 2016
• Event Information
• Notes of WO #1, WO #2 (redacted) and WO #3
• Occurrence Summary
• Prior occurrences for the Complainant (3), and
• Procedure - Suspect Apprehension Pursuit

Around lunchtime on July 3, 2016, 911 was called regarding the Complainant and a female with whom he was required to have no contact. The SO and WO #3 were dispatched and, upon arrival, observed the Complainant leave the residence in a Toyota. The officers followed and observed the Complainant strike another vehicle at a nearby intersection. The driver of that car was uninjured. The Complainant, however, failed to stop and continued driving to the next intersection. Once there, the Complainant jumped out of the Toyota while it was still running, causing it to come to a stop in a ditch. The Complainant ran up the driveway of a nearby residence.

The SO ran after the Complainant and pushed him, causing the Complainant to strike the garage door of the residence and fall to the ground. Once on the ground, the Complainant was handcuffed and escorted to the SO and WO #3’s cruiser. The Complainant complained of pain to his hip. An ambulance was called and the Complainant was transported to hospital, where he was diagnosed with a fractured pelvis.

Section 25, 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

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…

Section 252(1), Criminal Code - Failure to stop at scene of accident

252 (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

1. another person
2. a vehicle, vessel or aircraft, or
3. in the case of a vehicle, cattle in the charge of another person

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

Section 253(1), Criminal Code - Operation while impaired / Over 80

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

On July 3, 2016, the SO and WO #3 were dispatched to a domestic dispute at a residence in the City of North Bay. Upon arrival, officers observed the Complainant leave the residence in a motor vehicle and they followed. The Complainant was involved in a motor vehicle collision with another vehicle at a nearby intersection, where he failed to stop and continued on to the next intersection where he jumped from the moving vehicle and ran. He was pursued on foot by the SO and eventually apprehended. He was transported to hospital where he was diagnosed with a small avulsion fracture (an injury to the bone in a location where a tendon or ligament attaches to the bone) of the anterior iliac crest (a bone in the pelvis) with overlying soft tissue hematoma and bruising.

The SO made himself available for an interview with investigators. Additionally, the Complainant, six civilian and three police witnesses also provided statements. Upon a review of all of the evidence, there is no dispute as to the sequence of events.

On July 3, 2016, police were called to a residence regarding a domestic dispute involving the Complainant and a female. The Complainant was on a court order not to have contact with the female. The Complainant and the female were in the street outside of the Complainant’s mother’s residence arguing when the SO and WO #3 arrived. The Complainant was then observed to enter his mother’s motor vehicle, a Toyota, wearing only his boxer shorts, and leaving the scene. The SO and WO #3 followed in their police cruiser.

The officers observed the Complainant collide with a motor vehicle at a nearby intersection and then to leave the scene without stopping. The officers continued to pursue the Complainant and observed his vehicle to slow, at which point the Complainant bailed from the moving vehicle and ran off. The vehicle continued on unmanned and ended up in the ditch.

Once the Complainant abandoned his mother’s motor vehicle, he ran into the laneway of a nearby residence. As soon as the Complainant abandoned his motor vehicle and ran, the SO also exited his cruiser and pursued him on foot. The Complainant alleges that the SO tackled him from behind and he fell into a garage door, causing his injuries.

The SO indicated in his statement that while he was chasing after the Complainant, he contemplated using his conducted energy weapon (CEW) but as the Complainant was running away, he decided against it, and opted to push the Complainant to the ground; as he did so, the Complainant fell into the garage door of a residence. The SO then handcuffed the Complainant and advised him he was under arrest for dangerous driving. No other person, either civilian or police, observed the SO take the Complainant to the ground. WO #3 arrived either after or during the handcuffing and, according to the SO, assisted with lifting the Complainant to his feet while WO #3 recalled that the Complainant got to his feet unassisted. WO #3 observed that the Complainant was bleeding from his hand and he and the SO then escorted him back to the cruiser. Once at the cruiser, the SO recalled the Complainant complain about pain to his hip. The Complainant was given a roadside Breathalyzer demand at the cruiser and blew a fail. An ambulance then attended and the Complainant was taken to hospital where he was diagnosed with a fractured pelvis and an injury to the index finger of his right hand. Additionally, he had numerous scrapes, bruises and road rash type injuries.

The Complainant and the SO are both in agreement that the police cruiser never made contact with the motor vehicle in which the Complainant was driving and, other than being taken to the ground, no officer used any force against the Complainant nor did he resist after having been taken to the ground and handcuffed.

Neither the Complainant nor the SO are able to say definitively if the injury to the Complainant’s pelvis was caused by the motor vehicle collision or when the SO attempted to push the Complainant to the ground and he ended up striking the garage door. The Complainant’s other injuries, being the various scrapes and abrasions and the injury to his index finger, are as consistent with occurring during the motor vehicle collision, as they are with his being pushed/tackled by the SO. As such, I am unable to determine with any certainty how the Complainant came to sustain his pelvic fracture. Clearly, the motor vehicle collision, which was of sufficient force to cause the driver side airbag to deploy, very likely could have caused the Complainant’s injury.

I find little distinction between the Complainant’s allegation that the SO tackled him and the SO’s assertion that he pushed the Complainant with the intention of taking him to the ground. On both versions the Complainant struck the garage door and then landed on the ground. The distinction, if there is any, is one of semantics and the particular viewpoint of each party. There is, however, no disagreement that the SO used some force to take the Complainant to the ground, during which he struck the garage door with enough force to damage the panel of the door. With some modern garage doors, however, the amount of force required to cause such damage could be negligible.

In the final analysis, whether it was a push or a tackle, 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 that the Complainant was in breach of a court order and was arrestable as such. Additionally, he then fled the scene operating a motor vehicle while having more than 80 milligrams of alcohol in his blood, he failed to remain at the scene of an accident and he was, at the very least, behaving recklessly when he exited his motor vehicle while it was still in motion and allowed it to continue on unmanned. 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 SO in his attempt to apprehend the Complainant after having already fled from police initially, then having fled from a motor vehicle collision and finally fleeing from a moving motor vehicle, I find that the actions of the SO in attempting to stop the fleeing Complainant by taking him to the ground was more than justified in the circumstances and that he used no more force than necessary to subdue the Complainant, who was clearly not going to give himself up to police willingly. I also find that it is at least as likely, if not more than likely, that the Complainant suffered his injury when he was involved in the motor vehicle collision as it is that he suffered his injury when taken to the ground by the SO and hitting the garage door on his way down. However, even if his injuries, or some part of his injuries, were caused by the efforts of the SO to apprehend and arrest the Complainant, I cannot find that to have been an excessive use of force. In coming to this conclusion, I am mindful of the case law, as set out by the higher courts, that officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)) nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206). On this record, it is clear that the force used by the SO fell within the range of what was reasonably necessary in the circumstances to effect the Complainant’s lawful detention, and the fact that he fell against the garage door after being pushed was unfortunately unforeseeable in a fast paced and fluid situation in which the Complainant continuously went to great efforts to escape.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s apprehension and the manner in which it was carried out was lawful notwithstanding the injury which he may have suffered during his arrest (although I am not at all convinced that the injury was due to the SO’s actions). I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: November 9, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit