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SIU Director’s Report - Case # 19-OCI-171

Contents:

News Releases for this Case:

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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 a serious injury sustained by an 18-year-old woman (the “Complainant”).

The Investigation

Notification of the SIU

On July 24, 2019, at 8:50 a.m., the Peel Regional Police (PRP) notified the SIU of the Complainant’s injury.

The PRP reported that on July 23, 2019, at 11:30 p.m., PRP officers initiated a very brief pursuit of a vehicle whose occupants were wanted for thefts and break and enters. The pursuit was terminated and the vehicle was later found to have been involved in a collision. The Subject Officer (SO) - a K-9 officer - attended and tracked one of the occupants to a rear yard on Fortune Place in Mississauga. The Complainant was located and then bitten on the upper arm by the Police Service Dog (PSD); she suffered a large bite to her upper right tricep which would require surgery. She was currently in Credit Valley Hospital. The scene was processed by PRP and released.

The Team

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

Three SIU investigators and one forensic investigator (FI) were assigned to investigate. The FI photographed and took measurements of the scene.

SIU investigators conducted a canvass of the area for witnesses.

The Complainant was interviewed and consented to the release of her medical records to the SIU

An individual was identified as a potential witness, as he was with the Complainant at the time of her arrest. SIU investigators located the individual but he declined to be interviewed by investigators.

The SO was designated as a subject officer on July 29, 2019. Following the advice of his legal counsel, the SO chose to remain silent and did not consent to the release of his notebook entries to the SIU
 

Complainant:

18-year-old female 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 Interviewed


Subject Officers

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


Evidence

The Scene

The residence on Fortune Place, Mississauga, is a two-story, detached, brick home in a subdivision. The backyard is enclosed with a wooden fence and has a wooden gate situated on the west side of the residence.

A wooden barrier on the east side of the house joined the wooden fence along the east side of the perimeter. The barrier and fence were 6’ 2 ½” (1.89 m) high. Located between the house and the fence was a small space, measuring 9’ 3” (2.82 m) in length and 2’ 1” (0.62 m) in width, on the east side of the house. Paving stones and debris rested on the ground in this space.

Communications Recordings

The communications recording of the events of July 23, 2019, leading up to the Complainant’s injury, are consistent with the Computer-Assisted Dispatch printouts. In addition, the radio communications were consistent with the statements of the witness officers and the PRP supporting documentation.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:
  • The SO’s Training Certificates;
  • The SO’s Training Records - Agility;
  • The SO’s Training Records - Explosives;
  • The SO’s Training Records - Manwork;
  • The SO’s Training Records - Obedience;
  • The SO’s Training Records - Searches;
  • The SO’s Training Records - Tracking;
  • Communications Report-Phone Calls;
  • Communications Report-Radio Transmissions;
  • The SO’s PSD Bite History;
  • Disclosure Log-Aug 6, 2019;
  • Event Chronology Report (x4);
  • Notes of WO #1, WO #2 and WO #3;
  • Occurrence Details Report;
  • Person Details-the Complainant;
  • Scene Photographs;
  • Procedure-Canine Unit;
  • Procedure-Incident Response; and
  • SIU request letters with markings by PRP (x2).

Incident Narrative

On July 24, 2019, at approximately 11:30 p.m., PRP officers engaged in a vehicular pursuit of a white pickup truck which was reportedly involved in several break and enters and thefts. When the pickup truck failed to stop and was driving in an unsafe manner, the pursuit was terminated in the interests of public safety. Sometime later, that same pickup truck was found to have been involved in a single vehicle motor vehicle collision; two of the occupants were found standing at the side of the road and were arrested. As all four doors of the motor vehicle were found open, it was surmised that there had been additional occupants of the motor vehicle at the time of its collision who had fled the scene.

The SO (a K-9 officer) and his PSD were dispatched to the area to attempt to locate the remaining parties. The Complainant and a second party, who had fled the white pickup truck, were located by the PSD hiding in a small space, measuring about a half metre in width and 2.8 metres in length, in the backyard of a residence on Fortune Place in the City of Mississauga. This area was between the house and a fence about 1.9 metres in height. The PSD, having sniffed out the hidden parties, entered the area and gripped (bit) the nearest body part, that being the upper right thigh of the Complainant. Within moments, the Complainant was arrested. She was taken from the scene to hospital and treated for a dog bite injury.

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.

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

Analysis and Director's Decision

In assessing the subject officer’s criminal liability in connection with the Complainant’s arrest and injury, I have considered the witnesses interviewed by SIU investigators; the evidence of an expert in the training of police service dogs; and, the photographs and measurements of the area in which the Complainant had secreted herself.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties to the extent that such force is reasonably necessary in the execution of an act that they are required or authorized to do by law. At the outset, I have no hesitation in concluding that the Complainant’s arrest was lawful. There were, in my view, reasonable grounds to believe that she was associated with the stolen pickup truck that had just been involved in a pursuit and was located nearby on Stonecutter Crescent.

With respect the SO’s use of the dog to assist in the Complainant’s apprehension, I am also satisfied that it was a reasonably necessary tactic in the circumstances. In this particular matter, due to the extremely narrow size of the area in which the two suspects were hiding and the fact that it was dark out, it would not have been safe for the SO to enter the area not knowing what he might expose himself to, including the suspects possibly being armed. As such, he determined, reasonably in my view, that the police dog should be sent into the area to apprehend and hold the suspects. I find that this was a prudent option in the circumstances.

The offence of criminal negligence causing bodily harm, contrary to section 221 of the Criminal Code, is also raised on some of the evidence gathered in the investigation. Specifically, there is some evidence that after the Complainant raised her arms and effectively surrendered, the PSD bit her again for no apparent reason (a departure from its training). While this evidence is at odds with the evidence of a police witness, I am prepared to accept it for purposes of these reasons. In my view, on this record, there are no reasonable grounds to believe the SO was criminally negligent in his use of the dog.

As an offence of penal negligence, liability for the crime of criminal negligence causing bodily harm 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 observed in the circumstances. The Complainant and her associate were observed lying with their heads toward the fence, and their legs exposed, specifically the Complainant’s right leg and her associate’s left leg. The police dog, as it was trained to do, entered the confined space and latched onto the nearest limb, that being the Complainant’s right leg, biting into her right thigh. If the dog, having released its grip, bit the Complainant a second time after she had effectively surrendered to the police, that would be a cause for concern. However, in the absence of some showing that the SO was aware that the dog was prone to such behaviour, I am satisfied that its use in this case did not transgress the limits of care prescribed by the criminal law. On the contrary, the dog’s training records and prior history indicate that the police dog had been performing its tasks satisfactorily.

For the aforementioned reasons, I have concluded that the actions of the SO do not run afoul of the Criminal Code and no charges will issue.


Date: April 14, 2020

Electronically approved by


Joseph Martino
Director
Special Investigations Unit