SIU Director’s Report - Case # 22-OCI-291
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 28-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injuries of a 28-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On November 3, 2022, at 11:07 a.m., the London Police Service (LPS) notified the SIU of an injury to the Complainant.According to the LPS, on November 3, 2022, at 8:00 a.m., LPS officers responded to a disturbance at a residence near Wellington Street and Horton Street East, London. Prior to their arrival, the Complainant had fled the scene in his girlfriend’s vehicle. LPS officers located the vehicle on Sholto Drive and, when the Complainant exited, engaged him in a foot pursuit. The Subject Official (SO) released his police service dog, resulting in the dog biting the Complainant’s left ear off. He was taken to London Health Sciences Centre (LHSC) for treatment.
The Team
Date and time team dispatched: 11/03/2022 at 1:42 p.m.Date and time SIU arrived on scene: 11/03/2022 at 2:10 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
28-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on November 3, 2022.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
The civilian witnesses were interviewed on November 3, 2022.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed between November 7, 2022, and March 15, 2023.
Evidence
The Scene
SIU forensic investigators arrived on scene on November 3, 2022, at 2:10 p.m. 100 Stroud Crescent was a multi-residential, bungalow-style condominium complex. The actual scene of the interaction was an asphalt parking lot situated between two units.
Figure 1 – Google Maps aerial view of the scene
Scene Diagram
Physical Evidence
The scene was found to be unremarkable except for a small blood pool. Forensic Evidence
SIU forensic investigators mapped the scene using a Total Station device, completed a scene diagram and took photographs. Video/Audio/Photographic Evidence [2]
Police Radio Communications Recordings
The police radio communications were requested by the SIU on November 7, 2022, and received from the police service on November 8, 2022. At 7:59 a.m., November 3, 2022, dispatch advised that CW #1 was reporting that her ex-boyfriend, the Complainant, was at her apartment door trying to break in. The Complainant was on methamphetamines and possibly driving a stolen SUV. The Complainant had fled before police arrived, but a witness saw him run out the front door of the apartment building to a SUV, which was pulling a trailer.
From 8:07 a.m. to 9:34 a.m., there were multiple radio communications in connection with LPS attempts to stop the Complainant in his vehicle.
At 9:34:45 a.m., the Complainant abandoned the vehicle at 92 Stroud Crescent.
At 9:41:10 a.m., WO #2 and WO #3 were with WO #1 and the SO, and tracking into the adjacent complex at 100 Stroud Crescent.
At 9:41:28 a.m., the Complainant was running northbound.
At 9:41:35 a.m., a police officer advised dispatch, “Got a hold of him now.”
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the LPS between November 7 and 8, 2022:- Use of Force Procedure;
- Tactical Unit and Police Service Dogs Procedures;
- Computer-assisted dispatch report;
- Notes - WO #1;
- Notes - WO #2;
- Notes - WO #3;
- Communications recordings; and
- General Occurrence Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- The Complainant’s medical records from LHSC.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and officers involved in his arrest, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the morning of November 3, 2022, LPS officers were dispatched to a residence in the area of Wellington Street and Horton Street East, London. A female occupant of the address had called to report her estranged partner – the Complainant – was attempting to break into the residence and she was concerned for her personal safety. Before the officers could arrive at the address, it was reported that the Complainant had departed the area driving a white SUV with a trailer hitched. The time was shortly after 8:00 a.m.
Over the course of the next hour-and-a-half, officers in their vehicles attempted to locate the Complainant. They encountered him on several occasions, but aborted any effort to pursue the Complainant when he failed to stop for police. The police eventually located him outside the SUV in the area of Exeter Road, west of Wellington Road.
Having parked the SUV in the area, the Complainant scaled the fence that lined the west perimeter of the address at 676 Exeter Road, and entered onto the grounds of a townhome complex at 92 Stroud Crescent. He made his way westward along the southern end of the grounds and came across another fence that divided 92 Stroud Crescent from the townhome complex at 100 Stroud Crescent. Having climbed over that fence as well, the Complainant travelled north a short distance behind a row of homes.
Officers convened in the area, including the SO. The SO was a dog handler and had with him a police service dog. Anticipating a search of the Complainant, the officer had been mobilized to conduct a track with the dog. With the SO were WO #1 and WO #3, and WO #2. The police service dog picked up the Complainant’s scent and led the officers westward along the southern perimeter of the housing complex at 92 Stroud Crescent to the fence at 100 Stroud Crescent. The dog and the SO were over the fence, and WO #1 was making his way up when, from a heightened position, the officer observed the Complainant a distance north of the officers’ position. Aware of the Complainant’s location, the SO called to him. He directed the Complainant not to run or he would release his dog.
The Complainant turned to run. He fled north, rounded the corner of a unit and took a few strides northwest across a parking lot when he was engaged by the police dog. The dog took the Complainant to the ground and bit him several times, including in the buttocks, and left upper arm and wrist. The most serious injury was one to his left ear, much of which had been ripped off by the police service dog.
The SO was the first officer at the scene of the takedown, followed shortly by WO #1. The police service dog’s grip of the Complainant was removed, and he was handcuffed without further incident.
The Complainant was taken from the scene in ambulance to hospital.
In the morning of November 3, 2022, LPS officers were dispatched to a residence in the area of Wellington Street and Horton Street East, London. A female occupant of the address had called to report her estranged partner – the Complainant – was attempting to break into the residence and she was concerned for her personal safety. Before the officers could arrive at the address, it was reported that the Complainant had departed the area driving a white SUV with a trailer hitched. The time was shortly after 8:00 a.m.
Over the course of the next hour-and-a-half, officers in their vehicles attempted to locate the Complainant. They encountered him on several occasions, but aborted any effort to pursue the Complainant when he failed to stop for police. The police eventually located him outside the SUV in the area of Exeter Road, west of Wellington Road.
Having parked the SUV in the area, the Complainant scaled the fence that lined the west perimeter of the address at 676 Exeter Road, and entered onto the grounds of a townhome complex at 92 Stroud Crescent. He made his way westward along the southern end of the grounds and came across another fence that divided 92 Stroud Crescent from the townhome complex at 100 Stroud Crescent. Having climbed over that fence as well, the Complainant travelled north a short distance behind a row of homes.
Officers convened in the area, including the SO. The SO was a dog handler and had with him a police service dog. Anticipating a search of the Complainant, the officer had been mobilized to conduct a track with the dog. With the SO were WO #1 and WO #3, and WO #2. The police service dog picked up the Complainant’s scent and led the officers westward along the southern perimeter of the housing complex at 92 Stroud Crescent to the fence at 100 Stroud Crescent. The dog and the SO were over the fence, and WO #1 was making his way up when, from a heightened position, the officer observed the Complainant a distance north of the officers’ position. Aware of the Complainant’s location, the SO called to him. He directed the Complainant not to run or he would release his dog.
The Complainant turned to run. He fled north, rounded the corner of a unit and took a few strides northwest across a parking lot when he was engaged by the police dog. The dog took the Complainant to the ground and bit him several times, including in the buttocks, and left upper arm and wrist. The most serious injury was one to his left ear, much of which had been ripped off by the police service dog.
The SO was the first officer at the scene of the takedown, followed shortly by WO #1. The police service dog’s grip of the Complainant was removed, and he was handcuffed without further incident.
The Complainant was taken from the scene in ambulance to hospital.
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.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by LPS officers on November 3, 2022. In the ensuing SIU investigation of the incident, the SO was identified as the subject official. The investigation is now concluded. 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.
The Complainant was subject to lawful arrest at the time the SO released the police service dog. There were a number of warrants out for his arrest, he had violated the terms of a release order requiring that he abide by a curfew, and he had been operating a stolen vehicle and trailer.
I am also satisfied that the SO’s decision to send the police service dog after the Complainant constituted a legally justifiable use of force. Police dogs are among the tools at an officer’s disposal to locate and capture subjects attempting to conceal themselves or flee from arrest. The Complainant was doing just that. The evidence indicates that he was aware, at least at several discrete points during his travels that day, that the police were after him. On each of these occasions, the Complainant had made it clear that he was not inclined to surrender into police custody. Against this backdrop, having been located trying to hide on the grounds of the townhouse complex, and having fled notwithstanding the SO’s direction to the contrary, the use of the police service dog to thwart the Complainant’s flight would appear a reasonable tactic in the circumstances. There was some urgency in taking the Complainant into custody, and a real risk that he might successfully escape if not for the dog.
The fact that the police service dog caused injury to the Complainant also raises questions of possible criminal negligence. Certainly, any time a police dog is deployed in these types of circumstances, there is potential for injury to the subject. As I understand it, police dogs are trained to bark and hold when a subject stops their flight and effectively surrenders. Where that does not happen, a police dog is expected to bite and hold pending the arrival of the dog handler. The number of bites should be the minimum required to subdue a subject, and the neck and head area are to be avoided. In the instant case, the Complainant suffered a gruesome injury – his left ear was severed – at the hands of the dog. He was also bit multiple times. There is a claim put forth that the Complainant offered no resistance to the dog. That evidence is contested to an extent by the police evidence. Be that as it may, I am satisfied the evidence falls short of any reasonable belief that the SO transgressed the limits of care prescribed by the criminal law in connection with the use of the dog.
The offence that arises for consideration in this context is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It 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. Had there been any notice of a real risk that the police service dog would, without warrant, inflict the type of serious injury suffered by the Complainant, there might have been an articulable case for liability under this section. However, having examined the dog’s history and training, no such flags were raised. As far as the evidence suggests, the police service dog was fully certified and qualified for a deployment of this nature. On this record, the evidence does not meet the threshold of criminal negligence when it comes to the SO.
In the result, while it is highly regrettable that the Complainant was injured in the way he was by the police service dog, there are no reasonable grounds to believe that the SO comported himself other than lawfully throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: July 12, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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.
The Complainant was subject to lawful arrest at the time the SO released the police service dog. There were a number of warrants out for his arrest, he had violated the terms of a release order requiring that he abide by a curfew, and he had been operating a stolen vehicle and trailer.
I am also satisfied that the SO’s decision to send the police service dog after the Complainant constituted a legally justifiable use of force. Police dogs are among the tools at an officer’s disposal to locate and capture subjects attempting to conceal themselves or flee from arrest. The Complainant was doing just that. The evidence indicates that he was aware, at least at several discrete points during his travels that day, that the police were after him. On each of these occasions, the Complainant had made it clear that he was not inclined to surrender into police custody. Against this backdrop, having been located trying to hide on the grounds of the townhouse complex, and having fled notwithstanding the SO’s direction to the contrary, the use of the police service dog to thwart the Complainant’s flight would appear a reasonable tactic in the circumstances. There was some urgency in taking the Complainant into custody, and a real risk that he might successfully escape if not for the dog.
The fact that the police service dog caused injury to the Complainant also raises questions of possible criminal negligence. Certainly, any time a police dog is deployed in these types of circumstances, there is potential for injury to the subject. As I understand it, police dogs are trained to bark and hold when a subject stops their flight and effectively surrenders. Where that does not happen, a police dog is expected to bite and hold pending the arrival of the dog handler. The number of bites should be the minimum required to subdue a subject, and the neck and head area are to be avoided. In the instant case, the Complainant suffered a gruesome injury – his left ear was severed – at the hands of the dog. He was also bit multiple times. There is a claim put forth that the Complainant offered no resistance to the dog. That evidence is contested to an extent by the police evidence. Be that as it may, I am satisfied the evidence falls short of any reasonable belief that the SO transgressed the limits of care prescribed by the criminal law in connection with the use of the dog.
The offence that arises for consideration in this context is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It 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. Had there been any notice of a real risk that the police service dog would, without warrant, inflict the type of serious injury suffered by the Complainant, there might have been an articulable case for liability under this section. However, having examined the dog’s history and training, no such flags were raised. As far as the evidence suggests, the police service dog was fully certified and qualified for a deployment of this nature. On this record, the evidence does not meet the threshold of criminal negligence when it comes to the SO.
In the result, while it is highly regrettable that the Complainant was injured in the way he was by the police service dog, there are no reasonable grounds to believe that the SO comported himself other than lawfully throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: July 12, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [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.