Cruiser accidentCruiser and motorbikeRunners
thick blue gradient line

SIU Director’s Report - Case # 18-OCI-217

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 a serious injury sustained by a 27-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 21, 2018, at 7:35 a.m., the Niagara Regional Police Service (NRPS) notified the SIU of an injury sustained by the 27-year-old Complainant subsequent to his arrest in St. Catharines earlier that day.

The NRPS reported that at 4:28 a.m., on July 21, 2018, police officers responded to a residence in St. Catharines, for what was initially believed to be an abduction in progress. The police officers quickly learned that the incident was a violent domestic situation involving the former boyfriend of the caller, CW #2, who resided at the complex.

The former boyfriend, identified as the Complainant, had allegedly assaulted CW #2 and her new boyfriend and then fled the scene on foot. A Police Service Dog (PSD), handled by the SO, was in pursuit through backyards and into a bushy area. The SO and other police officers tracked the Complainant to a field behind an adjacent plaza where the PSD engaged the Complainant, inflicting bite wounds to his face and neck.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
 

Complainant

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Declined to be Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed


Subject Officers

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



Evidence

Communications Recordings

At 4:28 a.m., on July 21, 2018, CW #1 called the 911 operator from his apartment to report an incident transpiring in the parking lot. He told the police dispatcher that a woman was screaming and two men were yelling. It appeared to CW #1 that a bat or club was involved and the woman might have been forced into a van.

CW #1 further explained that the altercation had started about three to four minutes prior and the van, that he described as a dark Chevrolet SUV, was about to leave the lot. One of the men was in the van and the other was walking away northbound. The information was immediately broadcast to St. Catharines’ police officers. The SO was one of several police officers to respond.

An unidentified officer arrived within a minute and found the woman, identified at that time as CW #2, at the parking lot and safe. CW #2 had been assaulted and supplied the name of the Complainant as the culprit.

CW #1 called the dispatcher and reported that the Complainant had left the parking lot by climbing a fence and was then in the rear yard of a nearby home.

WO #1 told the dispatcher that she was escorting the SO and were tracking the Complainant. Very shortly thereafter, WO #1 reported that the Complainant had been captured and was in need of medical assistance.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the NRPS:
  • Arrest Record for the Complainant;
  • Booking Cell Video;
  • Summary of CW #2’s statement by NRPS;
  • Detailed Call Summary;
  • Disclosure Log;
  • General Occurrence Report;
  • NICE Inform Reconstruction Table-Radio Transmissions;
  • Google Maps of scene individually marked by the SO and witness officers;
  • Sketch of the scene by WO #3;
  • Notes of all witness officers;
  • NRPS Police and Civilian Witness List;
  • NRPS Communications Recording;
  • NRPS Procedure-Canine Unit;
  • Recording from Master Logger; and
  • Training Records of PSD and the SO.

Incident Narrative

The following scenario emerges from the weight of the evidence. At about 4:30 a.m. of the day in question, the police received a 911 call from a resident of an apartment complex in St. Catharines. The caller described an incident in the parking lot of the complex involving a screaming woman who might have been forced into a van by a man or men wielding weapons. Officers rushed to the scene, spoke with the woman and learned that she had been assaulted by the Complainant, who then fled the area. This information was broadcast to other officers. The SO and his police service dog were assigned to conduct a track of the vicinity to locate the Complainant while other officers were directed to establish a perimeter around the search area.

The police service dog, on a leash and in the control of the SO, quickly caught scent of the Complainant in the parking lot behind the apartment complex and tracked him north to the backyard of a home. The SO was then led east across another backyard whereupon he observed the Complainant on the next lot over further east. The Complainant ignored the SO’s direction that he stop and continued to flee in an effort to escape apprehension.

The chase continued east and then north along the rear of a Sobeys grocery store toward a barbed wire chain link fence. The Complainant was in the process of trying to scale over the fence when he was grabbed by the SO and pulled down. The SO ordered the police service dog to remain still as he attempted to arrest the Complainant. The Complainant tried to free himself from the SO’s grip by pushing at the officer. The two grappled for a period and fell to the ground where the struggle continued. The SO gave the police service dog the order to physically engage the Complainant and the dog did so. The police service dog, who was nearby, approached the Complainant and bit him in the neck and face areas, whereupon the Complainant moved his hands up to the left side of his face. After several seconds, the SO called the police service dog off, grabbed him by the harness and moved him away from the Complainant. WO #1, who had accompanied the SO during the track, and WO #4, who had found his way over to the arrest scene, then moved in to handcuff the Complainant.

Paramedics were called to the scene and the Complainant, who was bleeding from the face, was taken to hospital. He sustained multiple lacerations to the face and a couple of puncture wounds, one of which was inflicted in the neck area.

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 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

The Complainant suffered injuries in the course of his arrest on July 21, 2018 by NRPS officers when a police service dog bit him in the face and neck area. The subject of the SIU’s investigation was the dog’s handler – the SO. Upon consideration of the information collected by the SIU in its investigation, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.

The police service dog was effectively a tool in the hands of his handler, the SO, and used in this case as an implement of force which caused one or more of the Complainant’s injuries. [1] Accordingly, the primary question is whether the subject officer’s use of the police service dog was legally justified.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in the force they may use in the course of their duties to that which is reasonably necessary in the execution of an act that they are required or authorized to do by law. I accept without reservation that the SO was proceeding to lawfully arrest the Complainant at the time force was used. Officers had by then interviewed a witness who told them she had just been assaulted by the Complainant, and the officers were entitled to rely on that information in seeking to take the Complainant into custody. Thereafter, I am further satisfied on reasonable grounds that the SO used no more force than was reasonably necessary to subdue the Complainant and effect his arrest. The Complainant had recently demonstrated his propensity for violence and doggedness to avoid apprehension. In darkness, over fences, across private premises and through brush, the Complainant led the SO on a chase of several minutes and was bent on escape. When the SO finally caught up with the Complainant, the latter was attempting to scale a barbed wire fence. The officer took hold of the Complainant and was met with resistance, in the course of which both individuals fell to the ground. The Complainant continued to struggle with the SO on the ground, prompting the officer to direct the police service dog to engage. The police service dog did so and the Complainant’s resistance subsided as he turned his attention to the dog. At the SO’s further direction, the police service dog released his grip within seconds, and other officers were able to secure the Complainant in handcuffs. In my view, while the force used against the Complainant was serious and perhaps at the upper end of what was permissible in the circumstances, I am unable to reasonably conclude that it fell outside the latitude of justifiable force. In this regard, it is important to note that the law does not require a police officer confronted with violence to measure her or his degree of responsive force with precision; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.).

There is a further question, however, as regards the SO’s potential criminal liability. According to the SO, the police service dog had been trained to only bite a target’s arms and legs, not their face and neck. Was the officer’s deployment of the dog criminal pursuant to section 221 of the Criminal Code, which sets out the offence of criminal negligence causing bodily harm? In my view, there are no reasonable grounds to believe so. The evidence indicates that the SO trained with the police service dog on a weekly basis and that the dog had passed its qualifications ten times since he was assigned to the officer in 2013. According to the SO, in the over 500 times that the police service dog had been deployed, this was the first time the dog had bitten anyone. Lastly, it is clear that the officer had full control over the police service dog throughout the track of the Complainant and his arrest. On this record, while it would appear the dog’s behaviour was not altogether in line with his training, there is no reason to believe the police service dog’s seemingly deviant conduct would have been reasonably foreseeable to the SO or that the officer’s use of the dog constituted a marked and substantial departure from a reasonable level of care in the circumstances – among the tests set out for a finding of criminal negligence: see R. v. Tutton, [1989] 1 SCR 1392; R. v. Creighton, [1993] 3 SCR 3; R. v. Sharp (1984), 12 CCC (3d) 428 (Ont. C.A.).

In the final analysis, as I am satisfied there are no reasonable grounds to believe the SO’s use of force was excessive or criminally negligent, there are no grounds for proceeding with criminal charges in this case, and the file is closed.


Date: August 1, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) There is evidence to suggest that at least some of the Complainant’s injuries were caused as the result of his face making contact with the barbed wire atop the fence he was trying to scale when he was apprehended by the SO. [Back to text]