Court File and Parties

COURT FILE NO.: 25086/10

DATE: 20131118

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Justin Richard Joseph Landry, plaintiff (Moving Party)

AND:

Jason Rains, Robert D. Davies, Chief of Police of the Sault Ste. Marie Police Service and Sault Ste. Marie Police Service Board, Defendants (Responding Parties)

BEFORE: E.J. Koke

COUNSEL: Joseph A. Bisceglia, for the plaintiff/Moving Party Brian G. Grant, for the Defendants/Responding Parties

HEARD: November 15, 2013

ENDORSEMENT

Supplementary Motion for Admissibility of Photographs of the plaintiff’s injuries and/or the filing of Medical Reports

Background

[1] The Plaintiff sustained serious and permanent injuries when he was bitten by a police dog while being apprehended for an alleged crime. He commenced this action for damages, alleging among other things that the defendants were negligent and that the use of the dog amounted to an excessive and unreasonable use of force, that the defendant canine officer did not follow established procedures and policies, or in the alternative, that the defendants failed to put into place reasonable procedures and policies for the deployment of the dog.

[2] The plaintiff was taken to the hospital immediately after his encounter with the police dog. At the commencement of this trial by jury, the plaintiff sought an order permitting him to tender certain photographs which were taken in the hospital, together with medical records and reports describing his injuries, treatment, prognosis and physical limitations. He also requested an order permitting him to call oral evidence from several doctors who had treated him.

[3] Prior to trial, the plaintiff and Defendants settled the issue of the quantum of damages, leaving only the issue of liability to be decided by this court. The plaintiff’s motion was denied on the basis that the photographs and medical information had no probative value in relation to the remaining issue, which was whether the police acted reasonably and in accordance with established policies and procedures.

[4] My reasons were summarized in the following paragraphs of my decision:

[15] … The quantum of damages is no longer an issue in this case, and in my view the medical evidence, including the photographs of the injuries which the plaintiff wishes to introduce into evidence, has no relevance in relation to the issue of whether the officers conducted themselves reasonably, or were properly trained. What is relevant is the conduct and actions of the police officers, which are to be viewed in the context of the circumstances in which they found themselves on the night in question. As stated by Southin J.A., the actual consequences of the force used, no matter how tragic, are not part of the analysis.

[16] Even if I could be persuaded that the nature and extent of the plaintiff’s injuries are somehow material and marginally relevant to the remaining issues, I am of the view that the prejudicial effect of admitting such evidence would outweigh its probative value. The admission of such evidence would take several days of court time, and in my mind would constitute a major distraction to the jury, and would likely interfere with the jury’s ability to properly consider relevant evidence and issues and place them in their proper context.

[5] At the conclusion of my decision I indicated that in my view it would be helpful and relevant if the jury was provided with some evidence which described the injuries generally, and my reasons therefore are set out in the following paragraph:

[19] Notwithstanding my decision to exclude the photographs and the medical records and oral medical evidence, in my view it may be helpful if the injuries sustained by Mr. Landry were described to the jury in a general and abbreviated manner. Mr. Landry has a permanent tracheostomy which is visible to the jury. Without some explanation, the jury may be inclined to speculate about the nature and extent of his injuries, and this is something which should be avoided. Also, a general description of the injuries sustained will provide a broader context for the jury. I would be willing to receive submissions from counsel on this issue if they cannot agree.

[6] The plaintiff brings this motion in response to my invitation to the parties for additional submissions on providing the jury with a description of the injuries. The plaintiff also requests that I reconsider my earlier decision in which I denied his request to tender photographic and medical evidence. He argues that he has now tendered evidence which provides a factual foundation which establishes the relevance and probative value of this medical and photographic evidence. I agreed to revisit this issue in light of the fact that evidence has now been tendered.

[7] Specifically, the plaintiff requests permission to file four colour photographs of the plaintiff taken shortly after his arrival at the hospital, as well as the operative notes and discharge summary of Dr. Rebecca Auer who performed surgery on Mr. Landry. Dr. Auer’s notes and summary would be tendered as business records.

[8] The evidence which the plaintiff has now tendered in this case is comprised of a 55-page transcript of all of the 911 radio calls and police dispatch communications concerning this matter. In these communications, the police refer to the injuries sustained by Mr. Landry, and the medical treatment which they expect Mr. Landry will receive at the hospital.

[9] The plaintiff argues that he has now established two bases for the relevance of photographic evidence.

[10] Firstly, the communications in the transcript suggest that he was bitten only once. However, plaintiff’s counsel alleges that his client was bitten more than once and that the incident should more accurately be described as an attack and a mauling by the dog than a simple dog bite. He argues that he should not be forced to rely on the police version of his injuries as contained in the transcript. He also points out that he has alleged in his pleadings that he was the victim of continual mauling and biting by the dog, that the photographs will confirm this fact, and that this evidence relates directly to the issue of whether excessive force was used. Defendants’ counsel advises that in his examination for discovery the plaintiff agreed that he was bitten only once and that there has been no evidence tendered to indicate that there was more than one bite.

[11] Secondly, he submits that the photographs can be used to challenge the credibility of the police officers, and in particular Officer Rains, on the issue of whether Mr. Landry was bitten once or more.

[12] It was pointed out by defendants’ counsel that the evidence which the plaintiff wishes to contradict is evidence which he himself has tendered in chief as part of his case. Notwithstanding this fact, I am of the view that he should be permitted to present other relevant evidence to the jury to contradict this evidence. The communications he is challenging are communications between the defendants and employees of the defendant Police Board and he should not be bound by these communications.

[13] There are four colour photographs in issue. They were taken immediately after Mr. Landry’s admission to the hospital. They are pictures of Mr. Landry’s head and neck. They are graphic and show a considerable amount of blood covering this part of his body.

[14] I agree that photographs of injuries have the potential to be relevant to the issue of whether excessive force has been used. However, for the reasons which follow I am not prepared to admit these photographs into evidence or to be viewed and examined by the jury.

[15] In my view, any inferences which a jury will be able to derive from a review of these photographs will require expert evidence, perhaps by a veterinarian or some other canine expert who has the requisite training and experience to interpret the marks on the Plaintiff’s face in the photographs. Clearly, the photographs indicate cuts and abrasions and what could be bite marks in the facial and neck area. However, there is no evidence before the jury on how to interpret these cuts and abrasions, and there is no one present to guide them in their understanding. I cannot expect the jury to know how many teeth marks would be left by this particular dog or whether the marks on the face point to one or more bites; nor is there any evidence before the court describing this police dog and how much of a person’s body would be impacted by one bite. What the jury is being asked to do is to undertake a forensic analysis of these photographs, but they do not have the training to do so.

[16] In conclusion, to permit the photographs to be placed before the jury without supporting evidence from an expert would be risky and would encourage the jury to engage in speculation. This part of the motion is therefore denied.

[17] With respect to the admission of Dr. Auer’s notes and records as business records, the plaintiff argues that these notes are relevant because they contradict the description of the events as set out in the communications in the transcript, and so they relate to the defendants’ credibility. They are also relevant in relation to the issue as to whether excessive force was used. In particular, the notes refer to more than one bite, and they describe the incident with the dog as an “attack”.

[18] I have reviewed these notes and records and in my view they should not be admitted into evidence because in her description of the bites and of the incident, Dr. Auer relies almost entirely on hearsay. For example, she commences her operative notes with the following statement:

Mr. Landry is a 20 year old, healthy gentleman who presented to the Emergency Department following a bite injury to the neck from a canine. From the story I can gather from the police and from Mr. Landry himself, he was robbing some houses and was attacked by a police dog. I am not clear on any of the details surrounding that part of the history. Apparently he was bit at approximately 3:10 by the dog in the neck.

[19] At the commencement of her Discharge Summary she writes:

Mr. Landry is a 20 year old gentleman, who was brought to the Emergency room at approximately 03:40 in the morning on June 11, 2009. What I understand from the police, Mr. Landry was involved in a break and enter and was apprehended with a police dog. At the time of the apprehension, he was bitten in the neck at least twice. This apparently happened at 03:10 in the morning. He was stable at the scene, but did have air exiting through one of the puncture wounds.

[20] In conclusion, Dr. Auer’s notes cannot be used by the plaintiff for the purposes of challenging the defendants’ credibility, or to more accurately describe the events surrounding the plaintiff’s encounter with the dog because those portions of the notes which describe the events are based on hearsay. The balance of her notes describe in considerable detail the operative procedures which were undertaken by Dr. Auer to repair the injuries, and in my view have no relevance to the liability issues.

[21] Although I was not asked to revisit the issue of the admission of the expert medical reports into evidence, I can say that I continue to be of the view that the reports of Dr. Tull and Dr. Anderson are not relevant or probative in relation to the issue of liability. These reports speak primarily to the issue of damages. I do not know when the parties resolved the damage issue but a review of these reports suggests that they were prepared for the purpose of assisting the court in the assessment of damages, and have no relevance in relation to the issue of liability.

[22] I have previously expressed my view that the jury should have a general description of the injuries sustained by Mr. Landry. For the above reasons, the photographs and expert reports are not admissible for this purpose. I understand Mr. Landry will be testifying and I expect that he will be able to provide such a description, failing which I will entertain further submissions on this issue.

[23] This application by the plaintiff is therefore denied.

E.J. Koke SCJ

Date: November 18, 2013