SIU Director’s Report - Case # 20-PCI-312
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Contents:
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.
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 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.
- 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 41-year-old woman (the “Complainant”).
“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 41-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU
On November 18, 2020, at 9:02 a.m., the Ontario Provincial Police (OPP) reported the following.In the morning of November 18, 2020, members of the OPP Tactical Rescue Unit (TRU) and Emergency Response Team (ERT) executed a high-risk warrant at a grow operation located at a rural address in Leamington. There were multiple buildings that had to be cleared and a Canine Unit was requested to check for weapons inside the buildings.
Upon entering a house on the property, the TRU cleared it, and located nine individuals. Afterwards, two ERT police officers and the Canine Unit entered into a room where the Police Service Dog (PSD) located a woman hiding in the closet with clothes on top of her. As a result, the PSD bit the woman on the top of the head.
The woman [now known to be the Complainant] was taken to Windsor Regional Hospital - Ouellette Campus with what appeared to be serious wounds. She was awaiting plastic surgery and did not speak English.
The Team
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Complainant:
Witness Officers
WO #1 Notes reviewed, interview deemed not necessary
WO #2 Interviewed
WO #3 Interviewed
WO #4 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Interviewed
WO #8 Notes reviewed, interview deemed not necessary
WO #9 Interviewed
Subject Officers
SO Declined interview and to provide notes, as is the subject officer’s legal right, will say providedEvidence
The Scene
The scene was a large rural property in Leamington, populated for use as a commercial greenhouse business. The Complainant was located in a closet on the second floor of a bunkhouse on the property. Communications Recordings
The relevant communications started at 5:45:03 a.m., November 18, 2020, and ended at 6:40:42 a.m. They occurred on a “tactical channel” used by the TRU. There were no time stamps on the individual broadcasts, but all were consistent with the narratives provided by witness officers.The ERT supervisor asked the SO to meet him at the main building for assignment. [1]
The next transmission recorded the PSD barking in the background, and included a request for a female police officer and a medic to attend. Information followed that a woman was found hiding in a closet and was bit on the head by the police dog.
Also captured was the request for an ambulance and a tactical medic.
Materials obtained from Police Service
The SIU obtained and reviewed the following records from the OPP:
• List of Involved Officers;
• Email from OPP regarding update on injured female;
• Notes of WO #1 – WO #8;
• OPP Training - Canine;
• Search Warrant 18 November 2020; and
• Will say – the SO.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may be briefly summarized.
In the morning of November 18, 2020, teams of OPP officers, including TRU, ERT and canine units, convened in the area of a rural property in Leamington to execute a search warrant on the address. The property consisted of large greenhouses and a number of outbuildings, including a bunkhouse, and was believed to house a commercial-size illegal marijuana grow operation. The warrant, obtained pursuant to the Cannabis Act, authorized the search of the property for drugs and drug paraphernalia.
Prior to the search, officers were briefed on how the operation was to unfold. Given the prospect of firearms on the property and the destruction of evidence, TRU officers were to gain access to the buildings via dynamic entry. A dynamic entry consists of heavily armed tactical officers storming a location to ensure that overwhelming force and the element of surprise are brought to bear to neutralize potential threats before they materialize. Once the structures were deemed clear and safe, the plan was for ERT officers to enter and, with the assistance of a police dog, search the premises for illicit items.
At about 6:00 a.m., having received word that TRU officers had done their work and cleared the buildings of all persons, the SO entered the bunkhouse to start the search for evidence with his dog – the PSD. With him in support were ERT officers, including WO #2 and WO #3, who accompanied him to the second floor of the structure. With the PSD on a short lead, the SO finished searching a bedroom with negative results before entering a second bedroom across the hall. Shortly after entering the room, the PSD gave indication that there was something of interest in the closet. Suspecting his dog had detected the scent of drugs or firearms, the SO allowed the PSD to continue the search of the closet for the source of the odour. Within seconds, the PSD had located a woman, and bitten and latched onto her scalp.
The woman was the Complainant. The Complainant had hidden in the bedroom closet behind and underneath a stack of clothing and filled garbage bags. She cried out as the dog bit the top of her head. The SO, realizing the PSD had located a person rather than physical objects, ordered the dog to release its hold and pulled the PSD away from the Complainant.
The Complainant had suffered a large laceration to the top right side of her scalp. She was taken to hospital and underwent plastic surgery.
In the morning of November 18, 2020, teams of OPP officers, including TRU, ERT and canine units, convened in the area of a rural property in Leamington to execute a search warrant on the address. The property consisted of large greenhouses and a number of outbuildings, including a bunkhouse, and was believed to house a commercial-size illegal marijuana grow operation. The warrant, obtained pursuant to the Cannabis Act, authorized the search of the property for drugs and drug paraphernalia.
Prior to the search, officers were briefed on how the operation was to unfold. Given the prospect of firearms on the property and the destruction of evidence, TRU officers were to gain access to the buildings via dynamic entry. A dynamic entry consists of heavily armed tactical officers storming a location to ensure that overwhelming force and the element of surprise are brought to bear to neutralize potential threats before they materialize. Once the structures were deemed clear and safe, the plan was for ERT officers to enter and, with the assistance of a police dog, search the premises for illicit items.
At about 6:00 a.m., having received word that TRU officers had done their work and cleared the buildings of all persons, the SO entered the bunkhouse to start the search for evidence with his dog – the PSD. With him in support were ERT officers, including WO #2 and WO #3, who accompanied him to the second floor of the structure. With the PSD on a short lead, the SO finished searching a bedroom with negative results before entering a second bedroom across the hall. Shortly after entering the room, the PSD gave indication that there was something of interest in the closet. Suspecting his dog had detected the scent of drugs or firearms, the SO allowed the PSD to continue the search of the closet for the source of the odour. Within seconds, the PSD had located a woman, and bitten and latched onto her scalp.
The woman was the Complainant. The Complainant had hidden in the bedroom closet behind and underneath a stack of clothing and filled garbage bags. She cried out as the dog bit the top of her head. The SO, realizing the PSD had located a person rather than physical objects, ordered the dog to release its hold and pulled the PSD away from the Complainant.
The Complainant had suffered a large laceration to the top right side of her scalp. She was taken to hospital and underwent plastic surgery.
Relevant Legislation
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.
Analysis and Director's Decision
On November 18, 2020, the Complainant was seriously injured when she was bit by a police dog in the course of a search warrant execution by OPP officers in Leamington. The dog handler, the SO, was identified as a 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 injury.
The offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for the most serious cases of negligent behaviour, namely, cases of wanton or reckless disregard for the lives or safety of others. It is not enough to establish simple negligence to ground liability; rather, what is required is negligence rising to the level of a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which the SO deployed the PSD that caused or contributed to the Complainant’s injury and was so egregious as to attract criminal sanction. In my view, there was not.
At the outset, it bears noting that the SO was lawfully placed and in the discharge of his lawful duties throughout the train of events leading to the Complainant’s injury. A search warrant under the Cannabis Act authorizing the officers’ entry onto, and search of, the premises was in effect. The use of the dog by the officer was a reasonable incident of the search authority that had been conferred by the warrant on the police officers.
Thereafter, I am unable to reasonably conclude that the SO fell short in the manner in which he participated in the search with his dog – the PSD. The officer had just finished one of the bedrooms on the second floor of the bunkhouse, without issues, when he and his dog entered the second bedroom. Having been apprised before starting his search that the TRU officers had rounded up all persons in the building, the SO had no reason to believe anyone would be located in the bedroom closet. This was doubly so as the SO had also called-out a warning that a dog search was about to begin, and received no reply. On this record, it is difficult to fault the officer for allowing the PSD room to continue his search of the closet after it had picked up a scent coming from within. As far as he knew, and could reasonably have known, the dog was attempting to locate the source of a prohibited substance when it discovered the Complainant and bit her head. The bite itself, though inflicting serious injury, was in keeping with the training the dog had received. That is, while police dogs are taught to latch onto arms and legs as their primary targets, other parts of the body may be bit where limbs are inaccessible. That appears to have been the case with the Complainant, who had secreted herself in the closet beneath clothing and other items. Finally, there is no suggestion in the evidence that the SO did not act with dispatch as soon as it became apparent that the PSD had bit into the Complainant. Rather, the dog quickly responded to the SO’s command to disengage within seconds of the bite, after which it was pulled away from the Complainant by the officer.
In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with charges in this case and the file is closed.
Date: August 16, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for the most serious cases of negligent behaviour, namely, cases of wanton or reckless disregard for the lives or safety of others. It is not enough to establish simple negligence to ground liability; rather, what is required is negligence rising to the level of a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the issue is whether there was a want of care in the manner in which the SO deployed the PSD that caused or contributed to the Complainant’s injury and was so egregious as to attract criminal sanction. In my view, there was not.
At the outset, it bears noting that the SO was lawfully placed and in the discharge of his lawful duties throughout the train of events leading to the Complainant’s injury. A search warrant under the Cannabis Act authorizing the officers’ entry onto, and search of, the premises was in effect. The use of the dog by the officer was a reasonable incident of the search authority that had been conferred by the warrant on the police officers.
Thereafter, I am unable to reasonably conclude that the SO fell short in the manner in which he participated in the search with his dog – the PSD. The officer had just finished one of the bedrooms on the second floor of the bunkhouse, without issues, when he and his dog entered the second bedroom. Having been apprised before starting his search that the TRU officers had rounded up all persons in the building, the SO had no reason to believe anyone would be located in the bedroom closet. This was doubly so as the SO had also called-out a warning that a dog search was about to begin, and received no reply. On this record, it is difficult to fault the officer for allowing the PSD room to continue his search of the closet after it had picked up a scent coming from within. As far as he knew, and could reasonably have known, the dog was attempting to locate the source of a prohibited substance when it discovered the Complainant and bit her head. The bite itself, though inflicting serious injury, was in keeping with the training the dog had received. That is, while police dogs are taught to latch onto arms and legs as their primary targets, other parts of the body may be bit where limbs are inaccessible. That appears to have been the case with the Complainant, who had secreted herself in the closet beneath clothing and other items. Finally, there is no suggestion in the evidence that the SO did not act with dispatch as soon as it became apparent that the PSD had bit into the Complainant. Rather, the dog quickly responded to the SO’s command to disengage within seconds of the bite, after which it was pulled away from the Complainant by the officer.
In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with charges in this case and the file is closed.
Date: August 16, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) It is now known that the assignment was for the SO and the PSD to conduct a firearms search of the main building. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.