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SIU Director’s Report - Case # 18-OCI-314

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 October 24, 2018, at 7:17 a.m., the Chatham-Kent Police Service (CKPS) notified the SIU of an injury to the Complainant. The Complainant suffered a fracture to his small finger on his right hand as a result of a bite from a Police Service Dog (PSD). 

The Team

Number of SIU Investigators assigned: 2
 
The scene was canvassed for surveillance video and witnesses. One civilian witness was identified. The civilian witness was interviewed along with two witness officers. Applicable procedures were reviewed. A third witness officer identified as the canine trainer and certifier from Windsor Police Service was interviewed. CKPS witness officers not interviewed were identified as being assigned to respond to the incident but did not attend before its conclusion. General Procedures, occurrences and communications recordings were reviewed. 

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Not interviewed, but notes received and reviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Not interviewed (not on scene)
WO #5 Not interviewed, but notes received and reviewed
WO #6 Interviewed
WO #7 Interviewed


Subject Officers

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


Evidence

The Scene

The area was a residential zone in Chatham bordered by a light industrial area. The home on Inshes Avenue had a deep backyard with a standalone garage and a shed. The area did not have auxiliary lighting. There was no video surveillance of the property. 

Communications Recordings

At 2:49:40 a.m., WO #1 broadcast a request for an additional unit for “someone fleeing behind [the Inshes Avenue home].” Two police units broadcast they would respond to the area to assist. WO #1 broadcast a description of the Complainant. There were several responding police units that discussed the location while a containment perimeter was established.

The SO broadcast at 2:51:27 a.m., that he was going to conduct a search. At 2:53:13 a.m., the SO broadcast, “Got him in the backyard,” indecipherable yells could be heard in the background of the transmission. Indecipherable commands could be heard from the SO. The PSD is heard barking in the background. At 2:53:37 a.m., the SO broadcast, “Do you guys want to come over, we’re on Inshes.” The search and arrest was concluded in less than four minutes.

WO #6 broadcast he was transporting the Complainant to hospital at 3:06:11 a.m.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from CKPS:
  • Arrest Report occurrence;
  • Canine Unit Training Logs January to October 2018;
  • General Occurrence Report;
  • K9 Apprehension report;
  • K9 Recertification Training Record 2018;
  • Notes and Will State-WO #1, WO #3, WO #5 and WO #6;
  • CKPS Forensic Identification photos of injuries;
  • CKPS Canine Unit Procedure; and
  • Operational Communications occurrence.

Incident Narrative

With important exception, the events in question are relatively clear on the investigation conducted by the SIU. In breach of his curfew, the Complainant was out riding his bicycle in Chatham at about 2:40 a.m. on October 24, 2018. WO #1 was on patrol at the time and noticed the Complainant. He sought to stop the Complainant to investigate him for a potential infraction of the Highway Traffic Act, namely, the offence of riding a bicycle without proper lights. WO #1 called out to the Complainant, whereupon the Complainant accelerated away from the officer along Inshes Road. The Complainant ditched his bicycle and fled into the backyard of the residence on Inshes Road where he hid lying on the ground between a shed and fencing in the yard behind the house.

At the request of WO #1, the SO arrived to assist in locating the Complainant. With the PSD on a long lead, the SO followed the dog into the backyard of the Inshes Road residence. The PSD located the Complainant quickly. As to what happened next, there is discrepancy in the evidence.

There is some evidence that the Complainant surrendered upon seeing the dog and that the dog nevertheless bit the Complainant’s right hand before biting his left thigh. The dog was removed by its handler, and he was handcuffed. In the SO’s report filed after the incident, which was reviewed by WO #7 and conveyed to the SIU in WO #7’s interview, the PSD is said to have first latched onto the Complainant’s left thigh when the Complainant, upon being revealed, attempted to flee from the scene. Thereafter, the PSD bit the Complainant’s right hand in response to the Complainant punching the dog. Following the bite to the hand, the PSD released its hold and the Complainant was arrested.

Relevant Legislation

Sections 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

Section 177, Criminal Code – Trespass at night

177 Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.

Analysis and Director's Decision

In the early morning of October 24, 2018, the Complainant was arrested by officers with the CKPS. One of those officers – the SO – used his police service dog – “the PSD” – to assist in locating the Complainant prior to his arrest. The PSD bit the Complainant’s left thigh and right hand, causing a fracture to the Complainant’s right small finger. For the reasons that follow, I am satisfied there are no reasonable grounds to believe the SO committed a criminal offence.

The SO’s potential criminal liability is, in my view, best assessed via the offence of criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is one of penal negligence and is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. Assuming without accepting the more incriminating version of events for purposes of these reasons, I am not satisfied on reasonable grounds that it discloses conduct that runs afoul of the limits of care prescribed by the criminal law. For starters, the decision to deploy the dog in search of the Complainant seems a reasonable one. It was dark, the Complainant was wearing dark clothing and he had fled from police onto private premises, thereby rendering himself subject to lawful arrest for trespassing at night contrary to section 177 of the Criminal Code. Once discovered, the dog bit the Complainant twice before it was quickly removed, and the Complainant handcuffed without further incident. This behaviour on the part of the dog is an apparent departure from the training it receives, which instructs the dog to only take hold of a subject in these circumstances if it perceives the subject to be attempting to flee or is otherwise a threat. However, in view of the dog’s recent training records and its recertification as a police dog in April and May of 2018, there is no reason to believe that the SO had any cause to be concerned that the PSD would act contrary to its training. On this record, I am unable to reasonably conclude that this instance of aberrant behaviour on the part of the dog, if it be such, is the result or indicative of criminally negligent conduct on the part of the SO vis-à-vis the dog’s deployment. Accordingly, there are no grounds to proceed with charges in this case and the file is closed.


Date: September 13, 2019



Joseph Martino
Interim Director
Special Investigations Unit