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SIU Director’s Report - Case # 19-OCI-268

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

The Investigation

Notification of the SIU

On November 12, 2019, the Durham Regional Police Service (DRPS) reported an injury to the Complainant. At 5:15 p.m., the Complainant escaped from Lakeridge Health Oshawa Hospital (LHOH) while DRPS officers were guarding him. He was located by a DRPS canine unit in a building across the street from the hospital. He suffered from a five-inch wound on his leg with flesh torn off and eight puncture wounds. The Complainant was admitted to the hospital and formed under the Mental Health Act (MHA). He was involved in a domestic assault and threaten suicide.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Not interviewed, but notes received and reviewed
WO #10 Interviewed
WO #11 Interviewed


Subject Officers

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


Evidence

The Scene

The scene was a utility room in the basement of an apartment building located on Simcoe Street North in Oshawa, Ontario. [1]

Police Communications Recordings

The DRPS provided a copy of the DRPS communications recordings for November 12, 2019. At 5:12 p.m., WO #7 reported that the Complainant escaped from LHOH. He was last seen running south on Simcoe Street North.

At 5:18 p.m., it was reported that the Complainant was in custody for domestic assault and threatening death. He was on a Form One under the MHA. He had 11 previous convictions, flagged for firearms and violence, and had many convictions that were alcohol-related.

At 5:59 p.m., dispatch confirmed a photograph of the Complainant was distributed to all units by email. A police officer confirmed the Complainant’s ex-wife was staying at a shelter.

At 6:06 p.m., police officers were at Simcoe Street North and were checking the parking garage.

At 6:10 p.m., police officers reported the parking garage at Simcoe Street North was cleared.

At 6:13 p.m., the dispatcher reported that the Complainant was suicidal and on a Form One.

At 6:24 p.m., the duty inspector requested information about the Complainant’s spouse, and a police officer said he spoke to her at the shelter. There was no one at the matrimonial home.

At 6:31 p.m., the dispatcher reported that the Complainant’s mother said the Complainant told her he was in the basement of a building on Simcoe Street North. The Complainant wanted a ride.

At 6:31 p.m., the duty inspector assigned several police officers to attend the building on Simcoe Street North to secure it.

At 6:33 p.m., the duty inspector requested tactical officers and a negotiator to attend the address.

At 6:34 p.m., the telephone number that the Complainant had called his mother from was provided.

At 6:39 p.m., the duty inspector requested confirmation that a breaching tool was on scene.

At 6:42 p.m., a police officer reported that a tenant at the building on Simcoe Street North saw a male in hospital attire enter the building an hour earlier.

At 6:42 p.m., a police officer reported that the SO and his police service dog (PSD) were in the basement about to search an office.

At 6:43 p.m., the robbery unit was searching the stairwells at both ends of the building.
At 6:44 p.m., the negotiator, WO #3, was on scene.

At 6:47 p.m., the building superintendent confirmed the telephone number was attached to two telephones: one telephone was in a basement office and the other telephone was in a utility room. A police officer reported that the office was searched but the lock on the utility room door was not working.
At 6:48 p.m., the robbery unit reported that the stairwells were searched, and they found a hospital gown on the north stairwell in the basement level.

At 6:50 p.m., the duty inspector requested that each room in the basement be searched for tenant safety concerns.

At 6:51 p.m., WO #1 reported that he was outside the utility room and the key provided by the building superintendent was not working. The lock seemed to be tampered with from inside the room.

At 6:51 p.m., the duty inspector advised that the room should be cleared with the help of the canine unit.

At 6:52 p.m., the dispatcher said he spoke to the Complainant’s mother again and she said there were no further telephone calls.

At 6:57 p.m., a police officer confirmed that the stairwells were checked earlier but no clothing was found; however, if the robbery unit found clothing during their search, the Complainant was in the building.

At 7:00 p.m., WO #1 reported that police officers tried to communicate with the person in the room several times but there was no response. The lock was still not working. WO #1 asked for approval to breach the door.

At 7:01 p.m., the duty inspector authorized breaching the door and using entry-trained police officers.

At 7:05 p.m., WO #1 reported that the male was in custody.

At 7:06 p.m., a police officer requested an ambulance.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the DRPS:
  • Computer-Assisted Dispatch Report;
  • Communications recordings;
  • Canine Training Records;
  • Directive - Arrest;
  • Directive - Canine;
  • Directive - Perimeter control;
  • Directive - Use of Force;
  • General Occurrence - Involved Civilian Contact list;
  • Narrative Text of WO #7 and WO #9;
  • Notes of WO #1, WO #2, WO #3, WO #8, WO #10 and WO #11;
  • Subject Profile – the Complainant;
  • Training Record – the SO;
  • Will State of WO #1, WO #5, WO #6 and WO #7
  • DRPS Scenes of Crime Officer Photo-brief; and
  • Letter from DRPS Regarding Use of Force Report.

Incident Narrative

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO and ten witness officers. On the day in question, the Complainant was being held on a Form One under the MHA at the LHOH. He had been sent to the hospital for psychiatric assessment following comments made in police custody indicating he was suicidal. The Complainant was also under arrest at the time on domestic violence and threatening charges.

At about 5:10 p.m., despite being under police guard, the Complainant escaped from the hospital and made his way into the basement of an apartment building on Simcoe Street North where he sought refuge in a utility room. The police were alerted to the Complainant’s abscondence and dispatched officers to the area to search for him. They learned that the Complainant had called his mother from the building and converged on the address. While there, the officers were also advised from the building’s superintendent that the number from which the Complainant had contacted his mother was associated with a phone in the basement’s office or utility room.

The SO, with his PSD, was among the officers that arrived at the building. Having assisted in the search of the basement office with negative results, the SO gathered with other officers outside the locked utility room. The officers tried to unlock the door using the key provided by the superintendent to no avail. Suspecting that the Complainant was hiding in the room, the SO and other officers, including a trained negotiator – WO #3 - knocked on the door repeatedly and attempted to elicit a reaction from the other side. None was forthcoming.

The Complainant was aware that police officers were outside the door looking to take him back into custody. He had successfully prevented their entry by manually holding the deadbolt in place as the officers endeavoured to open the door with the key.

At about 7:00 p.m., an inspector who had been monitoring the situation and deploying police resources to the area, authorized a forced entry into the utility room to search for and apprehend the Complainant. With the go-ahead in place, the officers on the ground devised a plan of entry. WO #8 would use a battering ram to break open the door, following which the SO would release the PSD after providing a final caution to whomever was in the room to surrender or be confronted by the dog. The SO and WO #3, together with WO #4 and WO #2, would then enter to effect the arrest.

With the door open, and receiving no response from anyone inside, the SO released the PSD. The dog quickly encountered the Complainant behind the door and bit into his left leg. The Complainant kicked at the dog and managed to release its grip, whereupon the dog bit him again in the left leg. The SO and WO #4 entered the room and told the Complainant to stop kicking the dog. The officers engaged the Complainant and he was turned onto his stomach and handcuffed, after which the SO released the PSD from its grip.

The Complainant was brought back to hospital and treated for several dog bite wounds on his left leg.

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

The Complainant was arrested by DRPS officers in the evening of November 12, 2019 and suffered serious injuries in the process. Specifically, a PSD was used in his apprehension and inflicted several bites wounds to the Complainant’s left leg. The SO was the PSD’s handler at the time and identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.

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 provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. [2] The Complainant was under lawful arrest at the time he escaped from the hospital. Clearly, the police were entitled to search for the Complainant and re-assert custody over him. The real issue is with the propriety of the force used against the Complainant in his apprehension.

This case is close to the line. Was it really necessary to send the PSD into the utility room knowing full well that the dog, as it was trained to do, would bite the Complainant if he was in there? In his interview with the SIU, the SO attempted to justify the decision to deploy the dog with reference to a fear that the Complainant, having been arrested for domestic assault, might return to assault the victim. This, in my view, was speculative and proffered as an after-the-fact rationalization; the fact is the police had no articulable reason to suspect that the Complainant represented a threat of this nature at the time. It seems to me the real reason the dog was used was to avoid the possibility of a physical confrontation with the Complainant. While I accept that this concern was honestly held and short of sheer speculation, was it legitimate and enough to justify the dog’s deployment?

Needless to say, risk is inherent in the nature of police work. While we expect and train police officers to mitigate that risk in the conduct of their duties, we also understand that they are sometimes obliged to act in the face of danger. That is why the law countenances the use of force by police officers to protect themselves in the administration and enforcement of the law, but only such force as is commensurate with the danger at hand. At the time that the PSD was sent in to bite hold of the Complainant, neither the SO nor WO #4 had laid eyes on him. Though they feared he might be armed or combative or self-destructive, they knew none of those things to be actually true. In the circumstances, did the officers act precipitously in deploying the dog when, arguably, the concerns underpinning the decision had yet to crystalize? Perhaps, but I am not persuaded the officers’ conduct crossed the line into excessive force.

Police officers are not expected to weigh their use of force to a nicety. While officers may not use force in the course of their duties unless it is necessary, the law affords them some latitude within which to operate: what is required is a reasonable response, not necessarily an exacting one: R v Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.). As the officers stood outside the utility room door contemplating what to do, they would have known that the Complainant was likely inside the room and refusing to come out. They would also have gathered from the Complainant’s obstinance, and the lengths he had taken to escape and avoid police apprehension, that he might not surrender peacefully if confronted by police. That he had recently been arrested for domestic assault and threatening bodily harm, and was flagged on police records for firearms and violence, would have also weighed on their minds, as would the fact that he was being held in hospital for being suicidal, lending credence to their concerns that the Complainant might resort to violence to physically resist his arrest. And while they had no specific information that the Complainant had access to a weapon, I am unable to dismiss the officers’ concerns that he might be armed as fanciful; he was, after all, holed up in a utility room where tools of one type or another might be found. Finally, it is important to note that the SO warned the Complainant that the PSD would be released if he did not surrender himself. I am not suggesting that the Complainant’s failure to heed the warning per se gave the SO free rein to deploy his dog. I am suggesting, however, that it was one further fact adding weight to the officers’ concerns at the time. On this record, whether the officers’ erred in their approach to arresting the Complainant, and I am not persuaded that they did, I am unable to reasonably conclude that their miscalculation was so wanting as to transgress the limits of justifiable force prescribed by the criminal law.

In the final analysis, I am satisfied on reasonable grounds that the officers acted lawfully in using the PSD to aid in the Complainant’s arrest notwithstanding the serious bite wounds he suffered as the result of the dog’s deployment. While the SO and the officers may have been better advised to confront the Complainant ahead of releasing the dog, their decision to have the PSD engage the Complainant when they did was nevertheless based on a reasonable assessment of the prevailing risks. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: May 19, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) An SIU forensic investigator was not dispatched to the scene. DRPS provided the SIU with scene photographs. [Back to text]
  • 2) There was no question of criminal negligence raised on the evidence in this case. The dog, whose history revealed no cause for concern, did what it was trained and expected to do; namely, latch onto the subject upon finding him or her, and to keep hold of the subject until released by its handler. [Back to text]