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SIU Director’s Report - Case # 18-OCI-036

Contents:

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Mandate of the SIU

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.

Information restrictions

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.

Mandate engaged

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 male (the Complainant) following a vehicle pursuit on February 7, 2018.

The Investigation

Notification of the SIU

At approximately 7:00 a.m. on February 7, 2018, the Durham Regional Police Service (DRPS) notified the SIU of an injury sustained by the Complainant.

The DRPS reported that at 3:00 a.m. on that same date, the DRPS received a phone call from a taxi driver in regards to an impaired driver in a burgundy coloured Sport Utility Vehicle (SUV) at a McDonald’s restaurant parking lot located at Simcoe Street North in the City of Oshawa. A DRPS officer attended the parking lot and observed the SUV driving southbound on Mary Street North and followed the vehicle. The SUV turned right and drove eastbound on Beatrice Street East where it collided with a hydro pole and a house.

Three men exited the vehicle and fled on foot. A DRPS canine officer tracked one of the men [later identified as the Complainant] in a ravine and arrested him. The Complainant was subsequently transported to the hospital and diagnosed with a fracture to his ankle.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed

Subject Officers

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


Incident Narrative

On February 7, 2018, at approximately 3:06 a.m., a 911 call was received by the DRPS Communications Centre wherein the caller reported that he had observed two vehicles in the parking lot of a McDonald’s restaurant in the City of Oshawa. He opined that the drivers of the vehicle were likely impaired. The caller reported that at that time both cars were parked in the parking lot, waiting for their food. 

The 911 operator transmitted this information over the radio and WO #4, who was already in the area, responded and attended at the parking lot. When WO #4 arrived at the parking lot, she observed a burgundy coloured SUV in the parking lot, which then immediately drove off; WO #4 followed the SUV

The SUV travelled northbound on Simcoe Street North and turned right on Glovers Road. WO #4 activated her police vehicle’s emergency equipment to conduct a traffic stop of the SUV, but the SUV did not stop and began to travel at a high rate of speed. The SUV initially collided with a stop sign, but continued on, again at a high rate of speed. The SUV then crashed into the fence of a residence located on the south-east corner of Beatrice Street East and Mary Street North. Two men, the Complainant and CW #1, exited the damaged vehicle and fled, climbing over a fence and running to a nearby ravine. 

DRPS officers, including a K-9 Unit officer, were dispatched to track the fleeing men. At approximately 3:55 a.m., the Complainant and CW #1 were located hiding under a pine tree and arrested. The Complainant indicated he had pain to his left ankle, as a result of which, paramedics were requested to attend and the Complainant was transported to hospital.

Nature of Injuries / Treatment

The Complainant sustained a comminuted fracture of his left medial malleolus (the bone on the inner side of the ankle). The ankle was placed into a cast.

Evidence

The Scene

The motor vehicle collision scene was located at the south-east corner of the intersection of Beatrice Street East and Mary Street North in the City of Oshawa. The intersection is controlled with overhead traffic signal lights.

Beatrice Street East is a two lane paved asphalt road that permitted two-way vehicular movement in the east-west direction. Mary Street North is a two lane paved asphalt road that permitted vehicular movement in the north-south direction. A ravine [later identified as Northway Court Park] was located east of Mary Street North behind a residential development.

A burgundy coloured SUV collided against a wooden fence of a house located south east of the intersection. An examination of the SUV involved in the collision revealed extensive damages to its front.

Resting place of the SUV after having left the roadway and struck the fence beside a residence.

Resting place of the SUV after having left the roadway and struck the fence beside a residence.

Close up of the SUV after colliding with the fence.

Close up of the SUV after colliding with the fence.


The SIU forensic investigators (FIs) made a digital photographic record of the scene, collected physical evidence, seized exhibits, took measurements, and completed scale drawings of the scene of the incident. The SIU FI also photographed a firearm that was seized by the DRPS officers during the search of the SUV after its collision.

Scene Diagram

Diagram of Collision Scene

Scene diagram

Route followed by Motor Vehicle Leading up to Crash

Route followed by motor vehicle leading up to crash

Physical Evidence

Automated Vehicle Locater (AVL) Data from WO #4’s Police Vehicle:


The SIU received and reviewed the AVL data from WO #4’s police vehicle. The AVL data depicted the following:

At 0316:36 hrs WO #4’s police vehicle exited the parking lot of the McDonald’s restaurant and travelled northbound on Simcoe Street North at a rate of 37 km/h;

At 0319:18 hrs WO #4’s police vehicle travelled eastbound on Glovers Road to Ormond Drive at a rate of 71 km/h. She then travelled southbound on Mary Street North at a rate of 82 km/h; and

At 0320:10 hrs WO #4’s police vehicle travelled southbound towards the intersection of Mary Street North and Beatrice Street East at a rate of 91 km/h.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Closed Circuit Television Recordings (CCTV) – 1100 Mary Street North


The SIU received and reviewed the CCTV recordings from an apartment building located at 1100 Mary Street North. The time stamps on the recordings were approximately one hour off from Eastern Standard Time and there was no audio. The recording depicted the following:

At 0422:08 hrs An SUV [later identified as the SUV involved in the collision] travelled southbound on Mary Street North at a high rate of speed towards the intersection of Mary Street North and Beatrice Street East;

At 0422:52 hrs The SUV activated its rear brake lights as it neared the intersection, and then turned left against a red traffic signal and mounted the south-east curb of the intersection, colliding with a wooden fence of a residence;

At 0422:58 hrs A police vehicle [later identified as being driven by WO #4] with its emergency equipment activated travelled southbound on Mary Street North towards the intersection of Mary Street North and Beatrice Street East. The police vehicle stopped near the collision scene; and

At 0424:52 hrs Several other DRPS vehicles arrived at the scene.

Communications Recordings

911 Calls and Police Transmission Communication Recordings from the DRPS:


The SIU investigators obtained and reviewed the audio communication recordings and the event chronology report from the DRPS. The audio communication recordings did not have time stamps. The time stamps were derived from the event chronology report. The communication recordings depicted the following:

At 0306:29 hrs The DRPS dispatcher received a 911 call reporting possible impaired drivers in two vehicles [one later identified as the burgundy coloured SUV] in the parking lot of a McDonald’s restaurant;

At 0318:26 hrs WO #4 arrived at the parking lot of a McDonald’s restaurant located at the intersection of Taunton Road East and Simcoe Street North;

At 0319:40 hrs WO #4 reported that the SUV was being driven by a black man and it was travelling southbound on Mary Street North. She further told the dispatcher that the SUV had travelled through a red traffic signal light at the intersection of Mary Street North and Taunton Road East;

At 0319:40 hrs WO #4 reported that the SUV was now travelling southbound on Mary Street North;

At 0320:04 hrs WO #4 reported that she was in pursuit of the SUV and believed that the driver of the SUV was possibly impaired;

At 0320:42 hrs WO #4 reported that the SUV had collided against the side of a house. Two men [later identified as the Complainant and CW #1] exited the SUV and ran behind the house. WO #4 further reported that she believed one person was still inside the SUV;

At 0320:52 hrs WO #4 reported that the Complainant and CW #1 were climbing and jumping over a fence and that the Complainant may have hurt himself after landing on the ground;

At 0355:19 hrs The SO reported that the police officers had located the Complainant and CW #1 in a ravine and they were being compliant with the police officers; and

At 0357:28 hrs The SO reported that CW #1 had been arrested and the Complainant complained that his leg was broken.

The event chronology report and the occurrence report obtained from the DRPS were consistent with the communication recordings.



Materials obtained from Police Service

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

  • Detailed Call Summary Report;
  • 911 Call Recordings (x5);
  • Police Transmissions Communication Recording;
  • AVL data from WO #4’s police vehicle;
  • List of Involved Officers;
  • Notes of WO #s 1-4;
  • Written Narratives prepared by WO #s 2-4; and
  • Typewritten Statement of WO #3.

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

  • Medical Records of the Complainant related to this incident; 
  • Ambulance Call Reports (x2); 
  • EMS Incident Reports (x2); and
  • CCTV footage from 1100 Mary Street North.

Relevant Legislation

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
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) 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.

Analysis and Director's Decision

On February 7, 2018, at 3:06:09 a.m., a 911 call was received by the DRPS Communications Centre reporting two suspected impaired drivers in two motor vehicles in the parking lot of a McDonald’s restaurant located at Simcoe Street North and Taunton Road in the City of Oshawa. The 911 caller described one of the two vehicles as being a burgundy SUV and provided the licence plate number to the dispatcher. WO #4, who was near the location, indicated that she would attend the call. Upon WO #4’s arrival at the McDonald’s parking lot, the previously described burgundy SUV immediately left the area at a high rate of speed and WO #4 followed with the intention of conducting a vehicle stop in order to investigate the 911 call.

Inside the burgundy motor vehicle at the time were the Complainant and CW #1 and possibly other persons. Neither the Complainant nor CW #1 would admit to driving the motor vehicle, nor would they identify the person they claimed was driving.

As WO #4 attempted a vehicle stop of the SUV, she activated her emergency lighting system, but the vehicle continued at a high rate of speed. WO #4 notified the dispatcher that she was involved in a vehicular pursuit. The SUV then mounted the curb at the intersection of Glovers Road and Ormond Drive, struck a stop sign, and continued to drive off at a high rate of speed. WO #4 continued to follow. At the intersection of Mary Street North and Taunton Road West, the SUV entered the intersection against the red light, and then continued southbound on Mary Street.

WO #4 was unable to keep up with the excessive speed of the SUV and she fell back and was only able to see the vehicle in the distance. The occupants of the SUV believed that they had successfully evaded police at that point, but they continued on at the same high rate of speed, and the SUV failed to negotiate a left turn at the intersection of Mary Street North and Beatrice Street East, mounted the sidewalk on the corner, and then collided with the fence on the property of a residence. The Complainant and CW #1 immediately exited the vehicle and fled on foot.

WO #4 observed both men run toward the backyard of a residence on Beatrice Street East and she exited her vehicle to follow. WO #4 observed both men climb a chain link fence and jump over, following which the Complainant apparently injured his leg as he landed on the other side. Both men then continued running towards a ravine located behind the house, with the Complainant running with an obvious limp, when WO #4 was ordered back to the collision scene by a supervisor.

The evidence of WO #4 in this regard is corroborated by that of the Complainant, who indicated that as they fled the scene, he and CW #1 jumped over two ten foot high fences. The Complainant recalled that he then began to limp, after he landed on the ground, but he continued to follow CW #1 to a nearby ravine where they hid under a tree.

CW #1 described the Complainant as falling down an eight foot steep icy hill on their way to the ravine, prior to their hiding in the trees in the ravine, and that the Complainant told CW #1 that he had broken his leg as a result of that fall.

Shortly thereafter, four police officers, the SO, along with WO #1 and WO #2, and a police service dog, tracked the Complainant and CW #1 to their hiding spot where they were arrested.

The Complainant indicated that when the police officers arrived at the ravine and located them, the officers yelled at them to remain on the ground with their hands up, and he did so, telling the officers that he was not resisting. The Complainant alleges that WO #1 then approached him, placed his hands behind his back, and handcuffed him, following which the SO walked towards the Complainant’s lower torso and placed his, the SO’s, shin on the back of the Complainant’s left leg. The Complainant professed that he then felt a pain in his lower leg and believed that he had been injured as a result of the SO exerting force on his leg with his shin. The Complainant alleges that when he was assisted to his feet, he told WO #1 that he could not walk as his leg was broken because of the SO exerting force on it with his shin. The Complainant was certain that he had not injured his leg during the motor vehicle collision and adamantly asserts that his injury was caused by the SO.

After his arrest, the Complainant was transported to hospital where his leg was x-rayed and it was discovered that he had sustained a comminuted fracture of his left medial malleolus (the bone on the inner side of the ankle), and his leg was placed into a cast.

I note that both paramedics, who attempted to assess the Complainant en route to the hospital, stated that the Complainant refused to disclose how he had been injured.

During the course of this investigation, in addition to the Complainant and CW #1, two other civilian and four police witnesses were interviewed, as well as the SO. Based on the evidence before me, I must reject the allegations of the Complainant as to the source of his injury, as it is contradicted by the other credible and reliable evidence.

On the basis that WO #4 observed the Complainant to have been injured when he landed after jumping over the first fence, which she immediately communicated to the other officers searching for the Complainant, and on the evidence of the Complainant himself that he began to limp after he jumped over two ten foot high fences, as well as the evidence of CW #1, that he observed the Complainant fall down an eight foot steep icy hill on their way to the ravine, following which, prior to police arrival at their location, the Complainant told him that he had already broken his leg as a result of the fall, I find that I do not have reasonable grounds to believe that the Complainant was injured as he alleged in his interview with SIU investigators, accepting instead his version of events as provided to his friend, CW #1, at the time and as corroborated by the evidence of WO #4.

Additionally, based on the evidence of WO #3, I note that when the officers arrived at the ravine and located the Complainant and CW #1, prior to the police having any direct contact with either man, WO #3 shouted at the Complainant to approach him, and the Complainant responded that he could not, as his leg was broken and he could not move. This is also consistent with the evidence of both WO #1 and the SO, who also heard the Complainant indicate that his leg was broken when he was directed to approach WO #1, and prior to any police contact. Furthermore, I note that all of the police officers present indicated that the SO effected the arrest of CW #1, and had no physical contact with the Complainant, who was arrested and handcuffed by WO #1.

Finally, I reject the evidence of the Complainant on the basis that his assertion as to how his injury occurred appears to be inconsistent with the injury itself, in that he alleges that as soon as the SO placed his shin on the Complainant’s leg, he felt pain, and he thereby surmised that this action had fractured his ankle. While it may well be true that had someone placed their shin on the Complainant’s leg, after his ankle had already been fractured during his earlier fall, that he would have immediately felt pain, I cannot comprehend how simply placing one’s shin on the Complainant’s leg could be of a sufficient force to fracture the bony protuberance on the inner side of the Complainant’s left ankle.

In conclusion, based on all of the reliable evidence before me, I am unable to find reasonable grounds to believe that the Complainant was injured as a result of the intentional infliction of force by any police officer, but rather find that the preponderance of the evidence supports the conclusion that the Complainant sustained his injury as a result of his efforts to flee from police, without any direct interaction or involvement with any police officer.

Furthermore, on the credible evidence before me, even were I to accept that the Complainant was injured, or that his previously sustained injury was aggravated by a police officer placing his shin on the Complainant’s leg, despite the Complainant specifically identifying the SO as the officer so responsible, I find that there is no evidence upon which I could identify this act as having been done by the SO, who dealt solely with CW #1. If an officer did indeed place his shin on the Complainant’s leg, which I do not find on the evidence before me, and which, even if it did occur, is highly unlikely to have caused any injury to the Complainant, I would have to conclude that the officer involved was WO #1, as all those present indicate that she was the officer who arrested and handcuffed the Complainant. In the unlikely event that this was the cause of any type of injury to the Complainant, I would also hasten to add that this would in no way possibly amount to an excessive use of force.

In coming to this conclusion, I have directed my mind to the decision of 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 indicated earlier, however, on the basis that CW #1 indicated that no force was used by any police officer in the arrest of the Complainant and himself, and the evidence of all police officers present that both of the Complainant and CW #1 were cooperative and compliant once found and no force was required or used against them, I conclude on the record that the credible evidence does not satisfy me that there are reasonable grounds to believe that the Complainant was injured as alleged by him.

As such, having found that the source of the Complainant’s serious injury was not caused by any police officer, but occurred during the Complainant’s efforts to escape when he fell

and injured himself, I can find no basis for the laying of criminal charges against any police officer and none shall issue.


Date: December 10, 2018



Tony Loparco
Director
Special Investigations Unit