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SIU Director’s Report - Case # 18-OCI-069

Contents:

News Releases for this Case:

French:

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 17-year-old male (the Complainant) during his arrest on March 6, 2018.

The Investigation

Notification of the SIU

At approximately 4:45 a.m. on March 7, 2018, the Durham Regional Police Service (DRPS) notified the SIU of the Complainant’s custody injury.

The DRPS reported that on March 6, 2018, at around midnight, a police cruiser attempted to stop a motor vehicle in the City of Oshawa. The vehicle tried to hit the police cruiser and continued westbound on Hwy 401. The vehicle then went off the roadway at Hwy 412.

Three men ran from the vehicle and a K-9 unit arrived in the area. The three men were apprehended. The police dog bit one of the men in the groin area. He was taken to the hospital for examination. The man also complained of soreness to his arm and X-rays confirmed a fracture.

The Team

Number of SIU Investigators assigned: 6

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Declined to be 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
WO #5 Interviewed, notes received and reviewed
WO #6 Interviewed, notes received and reviewed


Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right, but provided a written statement


Incident Narrative

On March 6, 2018, at 11:53 p.m., WO #3 of the DRPS observed a GMC motor vehicle travelling on Simcoe Street in the City of Oshawa. A query of the licence plate revealed that the motor vehicle had been reported stolen.

When the GMC turned down a dead end street, WO #3 attempted to stop the vehicle, but the driver made a three point turn and then intentionally rammed the rear passenger side of the police vehicle, following which he accelerated away, fleeing the scene. WO #3 engaged in a vehicular pursuit of the GMC, with both vehicles travelling eastbound on Bloor Street West to Simcoe Street, northbound on Simcoe Street South to Highway 401, and then onto the westbound lanes of Hwy 401. WO #3, while still on Simcoe Street, and in anticipation that the GMC would access the 401 highway, broadcasted that he required assistance.

While travelling westbound on the 401, between Stevenson Road (in the City of Oshawa) and Thickson Road (in the Town of Whitby), the GMC began to lose debris and its front right tire lost all of its rubber and was travelling on its rim. WO #5 and WO #6 joined the pursuit and were setting up for a rolling block, when the GMC driver lost control of the vehicle, swerved to the left striking the centre concrete barrier, and then swerved across all lanes and left the roadway, entering a deep muddy ditch in the area between the exits to Hwy 412 and Lakeridge Road, in the Town of Whitby.

The Complainant and another occupant got out of the GMC and ran away. SO #2, with his police service dog (PSD) and with the assistance of SO #1, apprehended the Complainant. During the arrest, the Complainant sustained injuries and he was subsequently transported to hospital. Two other occupants of the GMC were also arrested.

Nature of Injuries / Treatment

The Complainant was originally transported to hospital as he had sustained dog bites during his arrest. When seen at hospital, it was determined that he had sustained dog bites to his left forearm, left thigh, and scrotum; there were no fractures or vascular damage associated with the bites to the arm, and no injury to the testicle or neurovascular compromise as a result of the bite to the groin. Several sutures were required and the wounds were dressed.

The Complainant was also sent for an x-ray of his right arm and was diagnosed with an “acute fracture across the proximal and midshaft of the third metacarpal (the bone which attaches the middle finger to the wrist). Mild posterior displacement of distal portion (near the fingers) of metacarpal. No significant angulation.” The right hand was placed in a splint and the Complainant was referred to the fracture clinic for follow-up; it was expected that the hand would heal without complications.

Evidence

The Scene

The scene was located at the side of the 401 highway, where the GMC rested in the muddy ditch at the side of the road in the area between the exits to the 412 Highway and Lakeridge Road, and then continued as the Complainant attempted to leave the scene on foot and ran across the 412 on-ramp, over a grass embankment or hill, and either across or around a pond, where he was arrested.

Physical Evidence

The GMC after it came to rest in the ditch, after ramming WO #3’s police vehicle and then striking the concrete centre median on the 401 Hwy.

The GMC after it came to rest in the ditch, after ramming WO #3’s police vehicle and then striking the concrete centre median on the 401 Hwy.

Damage to WO #3’s police vehicle as a result of being rammed by the GMC.

Damage to WO #3’s police vehicle as a result of being rammed by the GMC.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, but none were located. The photos taken by the DRPS Scenes of Crime Officers were obtained and reviewed.

Communications Recordings

WO #3 requested a check on a licence plate in the area of Simcoe and Bloor Streets in Oshawa; the check came back as revealing that the vehicle had been reported stolen;

WO #3 updated his location to Bloor Street, approaching Park Road, and asked if there were other units in the area;

WO #3 reported that the rear of his cruiser was “rammed” by the subject vehicle. He calmly reported the direction of travel of the subject vehicle as being northbound on Simcoe Street and requested that the OPP be notified in anticipation of the vehicle going westbound on Hwy 401;

WO #3 reported that he and the subject vehicle were westbound on Hwy 401;

WO #3 reported that he was westbound at Stevenson Road, speed 130 km/h, light traffic;

WO #3 reported that he thought the subject vehicle had blown a tire and inquired if anyone was ahead of them. A sergeant was heard on the radio asking, “What’s the pursuit for?” The Communicator came on the air and reported that it was a stolen vehicle. Another voice was heard to say, “… and it also rammed (WO #3’s police vehicle);”

WO #3 reported that the subject vehicle was not driving erratically but its speed was about 140 km/h. WO #5 and WO #6’s unit indicated that they would get in front of the subject vehicle;

WO #3 reported that the subject vehicle was going to crash; squealing tires could be heard in the background as WO #3 had his microphone open;

Someone reported that they had one party under arrest at the car;

Someone reported that one person was going northbound through the field; and

The K-9 police officer, SO #2, reported that they had one in custody, “Everything is 10-4, can you get an ambulance to Lakeridge, just north of the 401. The dog bite was to the penis.”

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

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

  • Police Transmissions Communications Recording;
  • Computer Aided Dispatch (CAD) Detailed Call;
  • Suspect Apprehension Pursuit Fail to Stop Report authored by WO #3;
  • General Occurrence Reports (x2);
  • Injury Report;
  • Motor Vehicle Collision Report;
  • Scene Photos;
  • Photos of Injuries to Complainant;
  • Photos of Involved Police Vehicles;
  • Photos of damage to WO #3’s police vehicle and damage to the GMC;
  • Notes of WO #s 1-6;
  • Procedure: Canine Unit;
  • Procedure: Suspect Apprehension Pursuits;
  • Procedure: Arrest and Warrant Applied For;
  • Procedure: Police Use of Force;
  • Training Record and Service History for PSD employed on March 6, 2018; and
  • Written Statements of SO #2 and WO #s 1, 2, and 4.

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

  • Medical Records of the Complainant related to this incident, obtained with his consent; 
  • Animal Bite Report; and
  • Region of Durham Paramedic Ambulance Call Report.

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.

Section 219 and 221, Criminal Code -- Criminal negligence causing death or bodily harm

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years

Section 249, Criminal Code -- Dangerous operation of motor vehicles ... causing bodily harm

249    (1) Every one commits an offence who operates
(a) 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

(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.

Analysis and Director's Decision

On March 6, 2018, a stolen motor vehicle, a GMC Envoy, rammed a police vehicle which was attempting a vehicle stop, following which the stolen motor vehicle fled the scene, was pursued on the 401 Highway, and eventually crashed into a ditch, with two of the three occupants then fleeing from the motor vehicle and police; the third occupant was arrested at the scene. The Complainant was arrested shortly thereafter with the assistance of a police service dog. The Complainant was later transported to hospital where he was treated for dog bites to the lower left arm, the left thigh, and his scrotum, and it was discovered that he had fractured a bone in his right hand.

In the Complainant’s statement to SIU investigators, he described having been asleep in the GMC Envoy, and being unaware of any police pursuit, until the vehicle in which he was riding crashed at the side of the 401 and he exited the vehicle and began to walk away. According to the Complainant, he was walking away from the vehicle in order to call his mother to pick him up and take him home.

The Complainant claimed that he did not hear any commands nor did he see any police officers chasing him, and that he was unaware of why the police might be chasing him, but he felt a police dog bite his left arm, following which he fell onto his right side and held his left arm up, and then he rolled onto his back. The dog, the Complainant alleges, then bit his left forearm four to five times, before it bit his testicle. A police officer, SO #2, the K-9 handler, then arrived immediately thereafter and commanded the dog to release, which the dog then did.

The Complainant indicated that he tried to push the dog off of himself, when SO #1 arrived and stepped on the Complainant’s right hand, which was positioned sideways, causing the bone fracture in his hand. He alleged that SO #1 then stated, “If you hit the dog, it’s like assaulting a police officer.” The Complainant then remained on the ground, until an ambulance arrived and he was taken to hospital.

During the course of this investigation, in addition to the Complainant, one civilian witness from the fleeing GMC Envoy was interviewed, while the second occupant of the GMC Envoy declined to provide a statement. The doctor who assessed and treated the Complainant was also interviewed with respect to the Complainant’s injuries and his medical opinion as to the possible mechanism of the broken bone in the Complainant’s hand. In addition to the civilian witnesses, six police witnesses provided statements to SIU investigators and turned over their memo book notes to be reviewed. Of the two subject officers, the K-9 officer, SO #2, declined to be interviewed, but provided a prepared written statement, while SO #1 consented to an interview; neither officer provided their memorandum book notes to the SIU, which is their legal right.

The only two civilians, other than the Complainant, who were present when the GMC crashed and the occupants fled, were the other two occupants, CW #1 and CW #2; while CW #2 declined to be interviewed, CW #1 provided a statement to SIU investigators in which he indicated that he too was an occupant, but not the driver, of the stolen motor vehicle. Unlike the Complainant, however, CW #1 described the Complainant not as walking away from the vehicle in order to call his mother, but fleeing from the scene on foot in an attempt to evade the police officers. CW #1 indicated in his statement that he saw the Complainant flee, but was unsure in which direction he ran, and that he observed SO #2 pursue the Complainant on foot, with his police service dog initially on leash, but released by SO #2 after they ran approximately five metres. CW #1 described the dog as then biting the Complainant, causing him to fall to the ground; CW #1 did not see anything more of the interaction between police, the dog, and the Complainant

In coming to my decision with respect to whether the evidence provides me with reasonable grounds to believe that any police officer involved in the pursuit, apprehension, or subsequent arrest of the Complainant committed a criminal offence, I will divide the interaction into three distinct areas: the vehicular pursuit; the apprehension of the Complainant by the police service dog leading to the Complainant being bitten on the left forearm, left thigh, and scrotum; and, the allegation by the Complainant that SO #1 caused the fracture in his hand when SO #1 stepped on his right hand, as he lay on the ground.

With respect to the first of these two areas, I note that there is no dispute as to the evidence, in that, with respect to the vehicular pursuit, the Complainant indicated in his statement to the SIU that he was asleep in the GMC and had no knowledge or awareness of any police pursuit or efforts by the police to stop the vehicle, and therefore was unable to assist SIU investigators with respect to the details of the pursuit, and with respect to the dog biting him; the evidence of the Complainant is consistent with that of the police officers present. With respect to the third arm of my analysis, that being the alleged actions of SO #1 leading to the fracture of the Complainant’s right hand, that allegation is firmly denied by SO #1 and requires me to assess the reliability of the evidence in order to come to my conclusion.

While there is no dispute as to the facts of the first two of the three interactions with police, I must still analyze all three of the interactions with a view to determining whether the actions of police were justified in the circumstances, or if they contravened the Criminal Code, thereby providing me with reasonable grounds to lay criminal charges.


The Vehicular Pursuit


While the initial portion of the interaction between the Complainant and the DRPS involved a police pursuit, since there is no allegation that any injury was sustained during the pursuit, it does not technically invoke the mandate of the SIU. As indicated earlier, however, as an investigation was launched, it is my intention to assess the actions of police in all three areas. The following facts, which are not disputed, have been gleaned from a review of all of the reliable evidence:

At approximately 11:52:30 p.m., on March 6, 2018, WO #3, of the DRPS, observed a motor vehicle, a GMC Envoy, which came to his attention because it was driving excessively slowly within the City of Oshawa. WO #3 followed the vehicle, and subsequently noted that a tail light was out. He then queried the licence plate of the vehicle on his computer, and discovered that the vehicle had been reported stolen. WO #3 then requested the assistance of other units, prior to initiating a vehicle stop. WO #3 followed the GMC onto a dead end street and activated his emergency lights, as he anticipated that the occupants of the vehicle would try to flee. WO #3 then angled his car across the roadway in order to block the potential exit of the GMC; in response, the GMC made a three-point turn and accelerated toward WO #3’s police vehicle, ramming the rear quarter panel of the cruiser, causing significant damage, before the GMC then sped away on Bloor Street.

This evidence is confirmed by the police radio transmissions, wherein WO #3 is heard, at 11:52:30 p.m., to request a ‘rolling check’ on a licence plate number in the area of Simcoe and Bloor Streets, and he received a response at 11:53:14 indicating that the vehicle was reported as having been stolen. The vehicle was described as a GMC Envoy, black in colour.

At 11:53:29 p.m., WO #3 can be heard to acknowledge this information and he updates his location as being westbound on Bloor Street, approaching Park Road. Shortly thereafter, he requested other units in the area to assist him, and he received a response from an unidentified officer that he will be ‘right there’.

At 11:53:55 p.m., WO #3 transmits that he is travelling westbound and then, at 11:53:59 p.m., he reports his location as Park Road South and Bloor.

At 11:54:25 p.m., WO #3 reports that, “He’s going to try and go around me here,” followed seven seconds later by, “He rammed me, Control! He’s going to be eastbound Bloor … Eastbound Bloor!” and, at 11:54:41 p.m., he is heard to report, “He rammed at the rear end … about Park and Bloor.”

WO #3 then pursued the GMC while constantly updating his location, as follows:

At 11:55:06 p.m., the dispatcher enquired, “Are you in pursuit?” and at 11:55:06 p.m., WO #3 responded, “I’m trying to catch up to him. He’s going to be northbound Simcoe from Bloor.”

At 11:55:18, WO #3 requested, “Can you notify OPP? He’s likely gonna hit the highway. It’s a stolen vehicle from Scarborough, I believe.”

Thereafter, numerous unidentified officers are heard to update their locations and to indicate that traffic was light; they also transmitted the speeds of their respective vehicles as they continued on the 401 heading westbound.

At 11:56:22 p.m., WO #3 transmitted that, “His vehicle is losing debris here. I think he’s blown a tire … yeah, I think he’s blown a tire. I’m going to get ready … (transmission is poor here, and words are unclear, but may possibly be) they’re going to bail here.”

At 11:57:11p.m., and thereafter, there was discussion about setting up a rolling block and that there was no traffic in the area. A sergeant is heard on the radio requesting the reason for the pursuit and providing direction to the responding officers.

At 11:59:15 p.m., WO #3 again updated the dispatcher indicating that the suspect vehicle was not driving erratically and was maintaining its lane. There is then further discussion about the positioning of police vehicles to perform a rolling block.

At 12:00:10 a.m., WO #3 broadcast, “He’s going to crash here!”

And at 12:00:31 a.m., an officer is heard to yell, “Get on the ground!”

At 12:00:39 a.m., an officer reported that he was in foot pursuit and at 12:00:04 a.m., it was reported that one party was under arrest and the officer is ‘10-4’ (all in order).

At 12:01:19 a.m., an officer reported, “We got one that’s running southbound ... or northbound through the fields. K-9 is on him.”

WO #3 then remained with the GMC, while other officers took up the foot pursuit.

I accept this sequence of events as accurate not only because it is not disputed by any of the three occupants of the GMC Envoy, but because it is fully consistent with the communications recording, which provides a real time narration of events which were recorded by the communications centre as police officers called them in, without the opportunity for memories to fade, or be influenced by others.

From this evidence, it is clear that WO #3 was acting within his lawful duties both when he initially attempted to stop and investigate the GMC under s. 216 of the Highway Traffic Act (HTA) because it was driving excessively slowly and it had one burnt out tail light, but even more so after his police vehicle was intentionally rammed by the driver of the GMC, when he clearly had more than sufficient grounds to pursue the GMC, not only for the criminal offences of dangerous driving and assault with a weapon, but also based on the information received by him that the motor vehicle was stolen.

Furthermore, I note that WO #3, along with all of the police officers engaged in the vehicular pursuit, did so in compliance with Ontario Regulation 266/10 of the Ontario Police Services Act entitled Suspect Apprehension Pursuits, in that they notified and were in constant contact with the communications centre, they constantly updated the dispatcher as to the location and speed of the GMC and their own police vehicles, they resorted to alternative measures in that they attempted to box in the motor vehicle to try and stop it, and a sergeant, WO #4, was monitoring and assessing the pursuit in order to determine whether or not to discontinue the pursuit and if the risk to public safety that may result from the pursuit outweighed the risk to public safety that may result if an individual in the fleeing motor vehicle was not immediately apprehended. Ultimately, however, the driver lost control and the vehicle left the roadway and crashed into the ditch before either any alternative measures could be put into place, or a determination to possibly discontinue the pursuit could be made.

In addition to complying with the Suspect Apprehension Pursuit Policy, and based on the undisputed evidence that: the weather was good, the roads were dry, the area of the pursuit was well lit by artificial lighting, and that traffic was extremely light, and finding no evidence that any of the officers involved in the pursuit posed a danger to other drivers nor did they interfere with other traffic, it is further clear that I lack any reasonable grounds to believe that any of the officers involved in the pursuit of the GMC Envoy committed a criminal offence, in that their driving did not rise to the level of being dangerous and therefore in contravention of s.249 (1) of the Criminal Code, nor did it amount to criminal negligence contrary to s.219 of the Criminal Code, as defined by the Supreme Court of Canada [1] and by our Court of Appeal, [2] respectively.

As such, based on the undisputed evidence, I find that the vehicular pursuit of the GMC Envoy does not provide me with reasonable grounds to believe that any police officer involved in the pursuit ran afoul of the aforementioned provisions of the Criminal Code.


Deployment of the Police Service Dog (PSD)


According to SO #2, in his written statement, he is an experienced canine handler and his dog is trained to chase down and apprehend fleeing suspects; the definition of apprehend, as it applies to PSDs in general, and SO #2’s dog in particular, is that the dog will grip and compress his mouth on (or bite) any available part of the suspect person’s body to prevent escape, stop violence toward police, and to gain control and compliance in order to allow police to effect a safe arrest. Furthermore, SO #2’s dog was trained to maintain his hold on a suspect (or not to release him from his bite) until he was commanded to do so by his handler, SO #2.

On March 6, 2018, after the GMC Envoy had left the roadway and crashed into the ditch, SO #2 observed the Complainant exit the driver’s door of the Envoy, which caused SO #2 to believe that the Complainant was the driver of the motor vehicle and therefore, of necessity, the party who was responsible both for the ramming of WO #3’s police vehicle, as well as the operation of a speeding stolen motor vehicle which had fled from police at great speeds on both city roads and the 401 highway.

When SO #2 observed the Complainant run from the stolen vehicle into a darkened field and away from the police, SO #2 and his dog gave chase on foot, with SO #2 yelling several times for the Complainant to stop, but the Complainant continued running. I accept this evidence over that of the Complainant’s version that he simply walked away from the car and neither heard any police commands, nor was he aware that police were chasing him until he was bitten by the dog, based on the evidence of CW #1 that the Complainant was running from police in an effort to escape, and on the communications recording, which confirms the evidence of SO #2 in that a police officer is heard to yell very loudly, at 12:00:31 a.m., to, “Get on the ground!” following which an officer is heard to report that they were now in a foot pursuit. Based on the evidence of SO #2, I accept that he was the officer making these radio transmissions.

According to SO #2, the Complainant was some 80 to 100 metres ahead of him, SO #2 was unable to gain any ground on the Complainant and, despite SO #2 giving the Complainant numerous opportunities to stop and give himself up, the Complainant refused to stop, which SO #2 interpreted as a clear desire to escape at any cost.

SO #2 indicated, in his written statement, that he gave the Complainant several warnings that he should either stop or the dog would be released, without any apparent effect on the Complainant, who continued to run. SO #2 advised that at that point he felt he had no choice but to deploy his dog, as a last resort, to safely arrest the Complainant, at which point he released the dog, who then immediately ran after the Complainant; this evidence is entirely consistent with that of both the Complainant and CW #1

SO #2 observed his dog then closing the gap on the Complainant, who then turned onto a pathway and disappeared from SO #2’s view, around a dirt berm. When SO #2 also made his way around the berm, he saw the Complainant on the ground fighting with the PSD and trying to get the dog off of him. SO #2 described seeing the Complainant’s arms going toward the dog’s head several times, while the PSD had the Complainant grounded and was holding him until SO #2’s arrival, as he had been trained to do. I find this evidence also to be fully consistent with the account of the Complainant as to what occurred when SO #2’s dog caught up to him and bit him.

As SO #2 approached the Complainant, he yelled at the Complainant to stop fighting and he would get the dog off of him, at which point the Complainant showed one of his arms, but not the other, which was still out of the sight of SO #2 and therefore still capable of wielding a weapon, should he have one. SO #2 then observed that his dog had a hold of the Complainant by the crotch area, and he again told the Complainant to show both of his hands; once the Complainant complied, SO #2 then took control of the PSD and removed the dog from the Complainant Again, I accept this evidence as being confirmed both by the Complainant himself, and by the communications recording, wherein an officer is first heard to report, at 12:01:19 a.m., that, “We got one that’s running southbound … or northbound through the fields. Canine’s on him,” and later, at 12:01:29, when yelling is heard in the background and a voice is heard to yell, “Stop!”, and finally, when SO #2 is heard to advise that he had one male in custody and he requested an ambulance, later advising that he needed the ambulance for a, “dog bite. I think it’s to the penis.”

While clearly SO #2’s dog was an extension of the police, and was in effect a use of force option, on the basis of this evidence, which appears not to be in dispute, I find that it would have been unsafe [3] for SO #2 to run blindly into the dark fields to search for a possibly armed and dangerous party and that it was far more prudent to send the dog ahead, after first giving the Complainant ample warnings and opportunities to surrender.

While it is clear on all of the evidence that the police service dog bit the Complainant and caused his injuries, it is equally clear that had the Complainant not taken active steps to run from police, he would not have been bitten. The PSD was behaving exactly as he was trained to do, in that, upon locating the Complainant, he gripped and compressed his mouth on (or bit) any available part of the Complainants body to prevent his escape. I further accept that the Complainant tried to fight off the dog, causing him to be bitten on more than one occasion, both on the arm, and later in the groin area. I also find that while SO #2, in the darkness and running through the fields, was unable to gain any ground on the Complainant, who was apparently continuing his efforts to escape, that the only option other than to allow the Complainant to run off, was to send in the dog to apprehend him, and that it would have been unwise for SO #2, even had he been able to catch up to the Complainant, to apprehend the Complainant in the darkness, while not knowing exactly what he might be facing, and with the knowledge that this party may have already been responsible for ramming a police vehicle, which clearly indicated a desire on his part to escape at any cost, including the cost of police lives or safety.

SO #2’s dog apprehended the Complainant as he was both trained and directed to do, and held onto him until he was told to disengage by his handler. It may well be that the time it took for SO #2 to come around the dirt berm, to catch up to the PSD and the Complainant, to convince the Complainant to show both of his hands, and then to approach and apprehend the Complainant, when it was safe to do so, delayed his ability to disengage the dog, and may therefore have caused the PSD to remain latched onto the Complainant longer than would be the case in other circumstances, I cannot help but conclude that this situation was one of the Complainant’s own making and could have been easily avoided had he simply come out and given himself up to police, rather than running and then fighting the dog when the PSD located him.

In finding that this did not amount to an excessive use of force, I am mindful of the state of the law 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. In the final analysis, I am of the opinion that it was the actions of the Complainant that caused the police to have to resort to the use of the PSD both to catch up to, and to apprehend, the Complainant, and it was the further actions of the Complainant, in first fighting the dog and then refusing to show his hands, which caused the PSD to repeatedly have to bite the Complainant in order to maintain his hold on him until his handler arrived and told him to release. Furthermore, it appears that it was the direct reaction of the dog to being fought and pushed by the Complainant that then caused him to bite him on more than one occasion, and on more than one area of his body, thereby causing the injuries to the Complainant. I also accept on the evidence of the Complainant himself, that at no time did SO #2 direct the dog to bite the Complainant and, as soon as SO #2 arrived at the Complainant’s location and the Complainant complied with the officer’s demands to show his hands, SO #2 immediately released the dog and took him under his control and away from the Complainant

On all of the evidence, I find that the Complainant, of his own volition, decided to ignore the numerous commands by SO #2 to stop and get down on the ground and instead chose to run into the dark fields in his further bid to escape from the police. I also accept on the Complainant’s own evidence that he chose to try to push the dog off, rather than submitting; he clearly made the wrong choice. It was incumbent upon police to apprehend and arrest those responsible for ramming WO #3’s police vehicle, an action which clearly showed that the occupants of the GMC were both capable of violence and were intent on fleeing from police, and to arrest them.

Had the Complainant simply come forward and given himself up, there would have been no need to deploy the PSD. I do not accept the Complainant’s claims that he simply exited the GMC, without any knowledge of the presence of police. His account is contradicted not only by the radio communications recording and the police officers present, but by CW #1, the apparent accomplice of the Complainant, who clearly indicated that the Complainant exited the car and ran from police in a bid to escape. The Complainant rolled the dice and lost. These were decisions made by him and him alone, with the full knowledge and numerous warnings that the dog would be dispatched if the Complainant did not comply. On the evidence before me, I find that I do not have reasonable grounds to believe that SO #2 resorted to an excessive use of force in deploying his PSD and therefore do not have reasonable grounds to believe that he committed any criminal offence and no charges will issue in this regard.


SO #1 and the Fracture of The Complainant’s Hand


As alluded to above, I find that I am unable to accept the evidence of the Complainant as being credible and reliable, for a number of reasons, a sampling of which follows:

  • The Complainant’s assertion that he was asleep in the GMC both during the ramming of WO #3’s police vehicle, which, judging from the damage to WO #3’s vehicle appears to have been of significant force and impact, and during the subsequent police pursuit, at high speeds, which covered a fair distance with numerous involved police vehicles all with lights and sirens activated, appears suspicious at best. I find it highly unlikely that the Complainant would have been oblivious to these fairly loud and forceful events. Furthermore, the fact that SO #2 observed the Complainant to exit through the driver’s door makes it more than likely that the Complainant was the actual driver of the stolen motor vehicle and therefore could not possibly have been oblivious to the police pursuit;
  • The Complainant’s assertion that he simply walked away from the crashed motor vehicle and had no knowledge as to the presence of police, or that they wanted him, seems equally questionable, if not more so, especially in light of the fact that his fellow occupant of the stolen motor vehicle described him as running away in a bid to flee from police;
  • The Complainant’s assertion that he heard no police commands to stop and give himself up is directly contradicted by the shouting of police officers to “Stop!” and “Get on the ground!”, which is evidenced on the recording as having been yelled extremely loudly;
  • The Complainant’s assertion that SO #1 stepped on his hand fracturing a bone appears questionable in light of the fact that neither the paramedics’ report, nor the Complainant’s medical records, indicate that he at any time made any mention of being injured by police, other than the dog bites, and, in fact, medical staff appeared to even be unaware of the injured hand until much later in the hospital visit, when the Complainant first indicated that his hand was hurting. While there is no obligation on the Complainant to report any police abuse, I find it odd that he would not have mentioned to medical staff that a police officer had broken his hand; and
  • Instead, I find it more likely that the Complainant’s hand was injured at some point, either in the vehicle collision, or when he fell to the ground when the PSD caught up to him (as witnessed by CW #1), and he simply did not realize that his hand was broken until a later time, when he tried to piece the facts together to coincide with his injury. I find that the opinion of the medical expert, with respect to the mechanism of this injury, as possibly being a fall, striking his hand on the ground, trying to punch the dog, or a compression injury from being stomped on or having his hand compressed between two hard surfaces, makes it very likely that either the car crash, or the fall, could have caused this injury.

I have taken particular note that the Complainant does not allege that SO #1 stomped on his hand, but only that he stepped on his hand when he, the Complainant, was trying to push off the dog. Indeed, while I have serious concerns about the Complainant’s reliability and do not accept his version of events as accurate, even had SO #1 stepped on his hand in order to stop the Complainant from fighting the dog, I would not find this to amount to an excessive use of force. As indicated earlier, Canadian case law indicates that police officers, acting in the execution of their duties, are not expected to measure the degree of their responsive force to a nicety nor should they be judged to a standard of perfection. As such, even were I to accept the Complainant’s version of events, which I find would be unwise given the amount of proven inconsistencies in his evidence, I would be unable to find that the evidence leaves me with reasonable grounds to believe that SO #1 resorted to an excessive use of force on these facts.

In conclusion, I find that all of the available reliable evidence, with respect to all three distinct areas of the police interaction with the Complainant, leaves me without reasonable grounds to believe that any police officer involved in the pursuit and subsequent apprehension and arrest of the Complainant acted outside of the limits of the criminal law. As such, as I lack the necessary bases for the laying of criminal charges, none shall issue.


Date: January 28, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) In R. v. Beatty, [2008] 1 S.C.R. 49, the Supreme Court of Canada defines s.249 as requiring 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” and 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.” [Back to text]
  • 2) In R. v. Sharp (1984), 12 CCC (3d) 428 Ont CA, the Court of Appeal defines the offence under s.219 as requiring “a marked and substantial departure from the standard of a reasonable driver in circumstances” where the accused “showed a reckless disregard for the lives and safety of others.” [Back to text]
  • 3) Potential danger would have been obvious to the officers because they knew that the Complainant was wanted for having rammed a police vehicle, following which he was at the very least a passenger in the vehicle which had fled the scene and he was continuing to make every effort to escape, first during the police pursuit, and later on foot through the dark fields at the side of a highway. Further, given the Complainant’s willingness to evade capture despite a significant collision the fact the police did not have any information as to whether or not the Complainant may have been armed with a weapon would have undoubtedly been a serious concern. [Back to text]