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SIU Director’s Report - Case # 18-PFI-177

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 64-year-old female (the Complainant), during an interaction with police on June 12, 2018.

The Investigation

Notification of the SIU

At approximately 11:25 a.m. on June 12, 2018, the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s firearm injury.

The OPP reported that at 10:15 a.m., on that same date, OPP officers had attended a residence in the town of Almonte in search of a person wanted for a sexual assault. When the police officers arrived at the scene, they were attacked and bitten by a dog. When the police officer discharged her firearm at the dog, one of the projectiles struck the Complainant in the leg.

The police officers and the Complainant were subsequently transported to hospital for their injuries. The Complainant was later transported to a second hospital for further treatment.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 3

The SIU forensic investigator (FI) made a digital photographic record of the scene, collected physical evidence, seized exhibits, took measurements, and completed scale drawings of the scene relevant to the incident. 
 

Complainant:

64-year-old female interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed



Subject Officers

The SO Declined interview and to provide notes, as is the subject officer’s legal right


Incident Narrative

At approximately 10:15 a.m. on June 12, 2018, the SO and WO #1 attended a residence in the Town of Almonte in search of a party wanted for sexual assault.

The SO and WO #1 arrived at the front porch of the residence and rang the doorbell. As the Complainant opened her front porch door, two dogs exited her house, attacking and biting the SO and WO #1. In order to stop the attack, the SO discharged her firearm at one of the dogs; as she did so, the Complainant tripped and fell, in front of the SO, and one of the projectiles which the SO had discharged, at the dog, struck the Complainant’s right lower leg.

An ambulance was summoned and the SO, WO #1, and the Complainant were all transported to hospital, where the Complainant was treated for the firearm injury and the SO and WO #1 were treated for dog bite injuries.

Nature of Injuries / Treatment

The Complainant was assessed at hospital and was diagnosed as having sustained a gunshot wound to the calf with an entry and exit wound; the injury was diagnosed as a soft tissue injury along the soft tissues in the posterior medial right calf with no underlying fracture seen.

Evidence

The Scene

The scene was located at the front porch of a farm house located in the Town of Almonte.

SIU FI examination of the scene revealed three cartridge cases (later identified as being fired from the SO’s firearm) in the area of the front porch of the Complainant’s residence.

Physical Evidence

Firearm Examination


The SO’s personal clothing, including handcuffs, Oleoresin Capsicum (OC or colloquially referred to as pepper spray) and her Glock model firearm were seized by the SIU. An examination of the SO’s firearm revealed that it was loaded with one cartridge in the breech and 14 in the magazine.

WO #1’s personal clothing and duty belt, including handcuffs, two spare magazines, and her Sig Sauer model firearm were seized by the SIU. An examination of WO #1’s firearm revealed that it was loaded with one cartridge in the breech and 12 in the magazine. Each spare magazine was loaded with 12 and ten rounds of ammunition.

WO #1’s firearm was inspected and it was determined by the SIU FI that she had not discharged her firearm, which was also consistent with the Closed Circuit Television (CCTV) recordings obtained at the scene.

Forensic Evidence

The SO’s Glock model firearm and three cartridge cases were submitted to the Centre of Forensic Sciences for examination; that report had not yet been received at the time of writing this report.

Video/Audio/Photographic Evidence

CCTV Recordings


There were four CCTV cameras located at the Complainant’s property, of which three recorded the incident. The recording time stamps were off by approximately six hours (Eastern Standard Time) and depicted the following (the times noted below are from the 24 hour clock and reflect the actual time that the incidents would have taken place):

1021:11 hrs: A vehicle [later identified as an OPP unmarked police vehicle] arrived at the address and parked in the driveway of the Complainant’s house;

1021:38 hrs: Two females [later identified as WO #1 and the SO] exited the unmarked police vehicle and walked towards the front porch of the Complainant’s house. The SO knocked on the front door;

1022:02 hrs: The SO slightly opened the screen door. Two dogs, one beige-coloured and the other dark brown, ran out of the house. The beige-coloured dog lunged forward towards WO #1 and bit her left arm. The Complainant tried to grab the collar of the beige-coloured dog, but she fell onto the ground, along with WO #1. WO #1 tried to move her arm away from the beige-coloured dog, but it continued to bite her. A dark brown dog exited the house behind the Complainant and ran towards the SO;

1022:26 hrs: As the SO removed her firearm from her holster, the dark brown dog lunged at her and bit her buttocks;

1022:31 hrs: As the Complainant tried to stop the beige-coloured dog from biting WO #1, she and WO #1 fell onto the ground. The beige-coloured dog ran towards the driveway and then started back towards WO #1 and the Complainant, in an aggressive manner. The SO pointed her firearm towards the beige-coloured dog, while the dark brown dog continued to bite her. As the SO struggled to get the dark brown dog off her back, she fired her handgun. The Complainant appeared to be in distress and lifted her right leg towards the SO. As the beige-coloured dog neared WO #1, the SO discharged her firearm again, twice, at the beige-coloured dog;

1022:46 hrs: The beige-coloured dog limped towards the driveway;

1022:52 hrs: WO #1 ran towards her unmarked police vehicle and used her portable radio; and

1022:55 hrs: The SO ran inside the house to grab a jacket, which she then placed under the Complainant’s right leg.

Communications Recordings

The SIU received the communication recordings related to this incident from the OPP and they were reviewed. The communication recordings did not have a time stamp and depicted conversation between WO #1 and the dispatcher.

WO #1 told the dispacther that two police officers had been bitten by dogs and a woman [later identified as the Complainant] had been shot in the leg. She then requested that an ambulance attend at the address. 

Event Chronology Report:


The SIU investigators obtained and reviewed the event chronology report relevant to this incident and found it consistent with the OPP communications recordings.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP, Lanark County Detachment:

  • Communications Recordings;
  • Event Chronology Report;
  • Notes of WO #1;
  • Public Service Report of Protected Firearm Inventory;
  • OPP Policy and Procedure: Use of Force; and
  • Regulation 926: Equipment and Use of Force (PSA).

The SIU obtained and reviewed the following materials and documents from other sources:
  • CCTV recordings from the Complainant’s property;
  • Lanark County Ambulance Service Call Report; and
  • Medical Records (x2) of the Complainant related to this incident, obtained with her consent.

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.

25 (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservations of any one under that person’s protection from death or grievous bodily harm.

Section 219 and 221, Criminal Code -- Criminal negligence causing 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

Analysis and Director's Decision

At approximately 10:15 a.m. on June 12, 2018, the SO and WO #1, of the Lanark County Detachment of the OPP, attended a residence in the Town of Almonte in regard to an investigation unrelated to this matter.

Upon arrival at the residence, they parked their unmarked police vehicle in the driveway and approached the front door and knocked. The resident of the home, the Complainant, who was familiar with the SO from prior encounters, looked out of her window, saw the officers, and went to open the front door in order to advise the officers that she needed a minute to confine her dogs; the Complainant had two pit bull dogs in the house at the time, which she knew to be fierce and vicious and who did not respond well to strangers, as illustrated by the fact that one of the dogs had bitten a friend of hers in the past.

The SO opened the screen door to the house as she was waiting at the door. When the Complainant opened the interior door to speak with the officers, one of her dogs, a beige-coloured pit bull, managed to escape the house.

The entire interaction between the Complainant, the SO and WO #1, and the dogs, once they were all outside of the house, was captured on CCTV cameras that were mounted on the property.

During the course of this investigation, SIU investigators interviewed one civilian witness in addition to the Complainant, and one police witness; the subject officer declined to be interviewed or to provide her memorandum book notes for review, as was her legal right. Additionally, SIU investigators had access to, and reviewed, the CCTV footage of the incident, the memorandum book notes prepared by WO #1, and the communications recordings of the incident. There is no disagreement as to the facts, which follow.

According to the CCTV footage, and as agreed to by both WO #1 and the Complainant, the SO walked onto the front porch, and to the front door, of the residence, where she knocked; she then slightly opened the screen door as she waited for a response. A beige-coloured pit bull then suddenly ran out of the house and lunged at WO #1, biting her on the arm. The Complainant tried to grab onto the collar of the beige dog to pull it back from WO #1, but both she and WO #1 then fell to the ground. WO #1 tried to protect herself from the dog by pulling her arm away, but the dog continued to bite her.

A second dog, a dark brown pit bull, then ran out of the house behind the Complainant and ran at the SO. The SO then removed her firearm from her holster, as the dark brown dog lunged at her and bit her on the buttocks.

The beige-coloured dog, who had run toward the driveway, then returned to the location where WO #1 and the Complainant were still on the ground; the dog can be seen on the CCTV to be moving towards them aggressively.

As the beige-coloured dog continued towards WO #1, the SO pointed her firearm toward the dog, as the dark brown dog continued to bite her. As the SO struggled to get the dark brown dog off her back, her firearm appears to have discharged in the direction of the Complainant, striking the Complainant in the leg. I note that the Complainant agrees that, in her opinion, the SO did not intentionally fire at her, but that she, the Complainant, had placed herself in between the SO and the beige-coloured pit bull and had thereby inadvertently been shot.

The Complainant can then be seen, on the CCTV, lifting her injured leg and appearing to be in distress. As the beige-coloured dog continued toward WO #1, the SO then discharged her firearm twice more, this time intentionally firing at the dog, which then limps off towards the driveway, where it is later located, after having died from the gunshot wound.

WO #1 then ran toward her police vehicle to notify the communications centre of what had occurred and to request an ambulance, while the SO entered the house and then returned with a jacket to assist the Complainant.

This version of events is consistent as between all witnesses, the CCTV footage, and the communications recordings.

The only criminal charge open for consideration, on these facts, would be one of criminal negligence causing bodily harm contrary to s.221 of the Criminal Code, with the only question being whether or not the SO, in unholstering her firearm as she was being attacked by the dog, showed a wanton or reckless disregard for the life or safety of the Complainant (s.219 of the Criminal Code: definition of criminal negligence).

There are numerous decisions of the higher courts defining the requirements to prove an offence of criminal negligence; while most relate to offences involving driving, the courts have made it clear that the same principles apply to other behaviour as well. In order to find reasonable grounds to believe that the SO committed the offence of criminal negligence causing bodily harm, one must first have reasonable grounds to believe that the actions of the SO, pursuant to the decision of the Supreme Court of Canada in R. v. J.F. (2008), 3 S.C.R. 215, represented ‘a marked and substantial departure from the conduct of a reasonably prudent person in circumstances’ where the SO ‘either recognized and ran an obvious and serious risk to the life’ of the Complainant ‘or, alternatively, gave no thought to that risk’.

On all of the evidence, although the SO intentionally drew her sidearm to defend herself and her partner against the dog attacks, there appears no dispute that the shot that was fired, and which struck the Complainant in the leg, was accidental and either as a direct result of the attack by the dark brown dog on the SO, or as a result of the Complainant placing herself between the beige-coloured dog and the SO, causing the shot that was directed at the dog to strike the Complainant instead.

The only question, then, is whether or not the SO was criminally negligent when she pulled her sidearm while she and WO #1 were being attacked by two apparently aggressive and vicious pit bulls, with both officers already having been bitten on at least one occasion, and while the risk of increased bodily harm, if not death, from these dogs was very high.

In finding that the actions of the SO, in what I can only describe as an extremely fluid, dangerous, and high adrenaline situation, with both officers under direct attack, did not amount to an act of criminal negligence, I have considered the words of the highest court in our country, the Supreme Court of Canada, in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows: 
 
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

While we are without the benefit of the SO’s thinking when her firearm was initially discharged, in reviewing the CCTV footage and the extremely fast-paced and dangerous situation in which the SO found herself, not only do I find that her actions in drawing her sidearm were prudent and justified, but that she would have been foolish, if not negligent, if she had failed to do so in defence of both herself and her partner against this vicious dog attack. While the continued attack by the dark brown dog may have caused the inadvertent discharge of the SO’s firearm, or the SO may have intentionally discharged her firearm at the dog and the Complainant unexpectedly placed herself in the line of fire, I find that the injuring of the Complainant was not intentional on the SO’s part, and was beyond her control.

On this record, I cannot find reasonable grounds to believe that the actions of the SO satisfy the elements required in order to pursue a charge under s.221 of the Criminal Code in that she neither omitted to carry out any duty to act; nor did her actions amount to a marked and substantial departure from the conduct of a reasonably prudent person in her circumstances; and she did not show a wanton or reckless disregard for the life or safety of the Complainant.

As such, I find that the evidence does not leave me with reasonable grounds to believe that the SO acted outside of the parameters of the criminal law when she drew her sidearm; I further find that had she failed to draw her weapon and failed to act quickly and decisively to eliminate the threat to both herself and her partner, that failure may well have been negligent in these circumstances.

In conclusion, since I lack the necessary grounds for the laying of criminal charges, none shall issue.


Date: March 20, 2019



Tony Loparco
Director
Special Investigations Unit