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SIU Director’s Report - Case # 18-PCI-317

Contents:

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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 serious injuries sustained by a 23-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On October 26, 2018, at 9:00 a.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury resulting from a Police Service Dog (PSD) bite. On October 25, 2018, at approximately 9:30 p.m., several armed and masked suspects entered a marijuana grow-op situated on Highway 3 in Norfolk County and proceeded to rob the premises. The suspects fled on foot. Norfolk OPP responded with their Tactical and Rescue Unit (TRU), the PSD and air support.

The PSD tracked to the rear bush area of the property on Highway 3 and two suspects were arrested. One ended up being bitten by the PSD and suffered an injury to his right leg and his left arm. The man was identified verbally as the Complainant. He was transported to Norfolk General Hospital (NGH) to be seen by emergency physicians. At 8:20 a.m., the physicians at the NGH referred the Complainant to see the plastic surgeon on duty at the Brantford General Hospital (BGH) for further assessment. At 2:00 p.m., the OPP called to advise that the Complainant had been admitted to the BGH for surgery for his injuries. 
 

The Team

Number of SIU Investigators assigned: 2

Complainant:

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


Civilian Witnesses [1]

CW #1 Not interviewed
CW #2 Not interviewed
CW #3 Not interviewed
CW #4  Not interviewed
CW #5 Not interviewed
CW #6 Not interviewed
CW #7 Not interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed

Additionally, the notes from one other officer were received and reviewed.


Police Employee Witnesses

PEW Interviewed


Subject Officers

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


Evidence

The Scene

The scene of the arrest was located in a rural area, on a tractor trail used by a farmer within a thick bushy, wooded area located about a kilometre north of Highway 3.

Communications Recordings

The communications captured in real time how the events unfolded, the OPP making notifications and updates, and providing information learned from witnesses. CW #1 reported seeing a 270 pound man enter the house. The communications supported the information supplied both by civilian witnesses to the OPP and police officer interviews leading up to the tracking of the Complainant.

During the tracking, the communications of the TRU team were recorded on an antiquated piece of equipment called the logger recorder. It was learned that the OPP tested the recorder and it was functioning properly. After the fact, when the recording was reviewed there were no communications recorded that were made by TRU or the PSD handler as the tracking occurred.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • CAD-Event Chronology;
  • Communication recordings;
  • Charge list-the Complainant;
  • Charge List of three people arrested with the Complainant;
  • Event Details Report;
  • General Report;
  • Involved Officers;
  • OPP Ambulance Call Report;
  • OPP map with markings;
  • OPP Photo of a Springfield Armoury 9mm XDS-9 with laser scope found in driveway;
  • OPP Photo of a Springfield Armoury XD-9 and magazine with a 16 round capacity;
  • OPP photos of injuries;
  • Training records for the SO;
  • Will State of WO #6; and
  • Witness Statement of civilian witnesses.

Incident Narrative

The following scenario emerges largely uncontested from the information collected by the SIU in its investigation, which included statements from the Complainant, the SO and several other police witnesses who were present for parts of the dog’s encounter with the Complainant. At about 9:45 p.m. of October 25, 2018, a 911 call was received by police. The caller indicated that upon her return to her home at an address on Highway 3, she observed suspicious persons in and around her residence. As the caller was still on the line, she reported that vehicles had pulled onto the driveway and men wearing hoodies, balaclavas and half-masks appeared on the property. In fact, the address, the site of a legal marijuana grow operation and dispensary, was being invaded by armed robbers.

An OPP Emergency Response Team was dispatched and set up containment around the address while two Tactics and Rescue Units (TRU) were being mobilized for deployment. The TRU teams began to arrive in the area at about 1:30 a.m. A command post was set up at a towing company in the vicinity of the address that had been invaded. The overall Critical Incident Commander for police operations that were unfolding authorized a mission plan for TRU’s deployment with the objectives of entering onto the property to search for suspects and victims, and ensuring the safety of investigators.

One of the TRU teams was assigned the task of clearing the area on foot while the other team would remain mobile in a TRU vehicle around the property. The SO and his dog were to lead the ground crew in a track for the suspects. The team entered onto the property at about 2:00 a.m. and rendered assistance to three males who had been tied up. The assailants - about six to seven in total - had fled the home. Noticing footwear impressions in a field at the rear of the home, the SO led the team on a track of the suspects northward.

The PSD caught a scent of interest and made his way to a bushy and wooded area upwards of one kilometre from the residence. It was there that the PSD came upon a group of four males, including the Complainant. The dog bit the Complainant multiple times, including in the leg. It maintained its grip as the Complainant thrashed on the ground, flailing his legs. WO #4 approached the Complainant, rolled him onto his stomach and handcuffed his arms behind his back, at which point the SO released the dog’s grip from the Complainant’s right leg. The time was about 4:15 a.m.

The Complainant was subsequently taken to hospital where he was treated for his dog bite wounds.

There is some suggestion that the Complainant was needlessly bitten by the dog as he was at all times ready to surrender peacefully to the police officers and did not physically resist arrest once he was engaged by the dog. I am unable to place much if any weight on this suggestion owing to significant frailties associated with the trustworthiness of the evidence from which it derives.

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.

Analysis and Director's Decision

On October 26, 2018, the Complainant was twice bitten by a dog – a Belgian Malinois – in Norfolk County. The first bite caused puncture wounds to his left upper arm. The second resulted in a deep gash to his right lower leg. The dog – the PSD – was a police dog; the dog’s handler, the SO. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injuries.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used while on duty provided such force is reasonably necessary in the execution of an act that they are required or authorized to do by law. The officers had ample grounds to believe that the Complainant was implicated in the armed home invasion that had just occurred at the address on Highway 3. They were clearly within their rights in seeking to arrest him. The issue is whether the use of the dog in aid of the arrest was legally justified. In my view, it was. The officers, including the SO, were aware that three males inside the address on Highway 3 had just been robbed and assaulted at gunpoint by assailants who had fled the residence. It was dark out and the officers were making their way over unfamiliar and uneven terrain in search of the perpetrators. They had good cause to approach the situation with extreme caution. In these circumstances, I am satisfied that the use of the PSD to physically engage the suspects at a distance was a reasonable tactic. I am satisfied that remains the case even if the Complainant had no intention of resisting his arrest when located by the dog. Knowing what they knew of the violence with which the home invaders had pursued their purpose only moments prior, the distinct possibility that they were armed with guns, and without the luxury of time, I can find no fault with the decision to deploy the PSD as soon as the suspects were located.

I am similarly not persuaded that the length of time the PSD remained attached to the Complainant, between 30 to 60 seconds on the estimates offered by the witnesses, did not cross the line into excessive force. The Complainant was thrashing about on the ground in pain, no doubt, but also, I am sure, trying to force the dog off his leg. While that seems a very human reaction, the off-shoot is that it created an additional challenge to the officers as they endeavoured to secure him in handcuffs. Moreover, it must be remembered that the Complainant was not the sole focus of the officers’ attention given the presence of three other male persons who were in the area and needed to be dealt with. As soon as the Complainant was handcuffed, the PSD was removed from his leg. On this record, I am unable to reasonably conclude that the length of time during which the Complainant was bit fell outside the range of what was reasonably necessary in the circumstances to effect his arrest. [2] In arriving at this conclusion, I have in mind the common law principle that police officers who find themselves in dangerous situations are not expected to measure their responsive force to a nicety; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.).

In the result, as I am reasonably satisfied that the force used against the Complainant, namely, bites delivered by a police service dog, were legally justified, there are no grounds for proceeding with criminal charges in this case and the file is closed.


Date: September 23, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The civilian witnesses were interviewed by the OPP and a copy of their witness statements were reviewed. [Back to text]
  • 2) Having resolved the matter of the SO’s potential criminal liability by way of the framework set out in section 25(1) of the Criminal Code, I see no need to address potential issues of criminal negligence. This is particularly so as the dog was said by its handler to have acted in line with his training in these circumstances, namely, as an instrument of force at the command and control of his handler. [Back to text]