SIU Director’s Report - Case # 23-OCI-238
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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 injury of a 26-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 injury of a 26-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On June 24, 2023, at 4:25 a.m., the Durham Regional Police Service (DRPS) notified the SIU of an injury to the Complainant.According to the DRPS, on that date, at approximately 1:06 a.m., DRPS police officers responded to an address on Wilson Road, Oshawa, in connection with a domestic disturbance. Information was received that the Complainant had chased a woman around with his cane. When police officers arrived, he fled, but was subsequently apprehended in a neighbouring yard. The Complainant was wearing an air-cast on his leg from a previous injury. He was transported by Durham Emergency Medical Services to Lakeridge Health Oshawa, where he was diagnosed with a new fracture to the right leg. The Complainant was placed back into the air-cast and released to DRPS.
The Team
Date and time team dispatched: 06/24/2023 at 5:43 a.m.Date and time SIU arrived on scene: 06/24/2023 at 9:12 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
26-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on June 24, 2023.
Civilian Witnesses (CW)
CW Interviewed The civilian witness was interviewed on July 6, 2023.
Subject Officials (SO)
SO Interviewed, but declined to submit notes, as is the subject official’s legal right The subject official was interviewed on July 6, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed on June 26, 2023.
Evidence
The Scene
The events in question transpired in the rear yard of a residence on Cricklewood Drive, Oshawa.Video/Audio/Photographic Evidence [2]
Body-worn Camera (BWC) Footage – The Subject Official (SO)
The camera was activated June 24, 2023, at 1:53 a.m., when the SO arrived on scene in a fully marked police SUV. It was raining heavily. The SO was captured harnessing his police service dog (PSD) and removing the dog from the vehicle. At 1:54 a.m., the camera captured numerous police officers and police vehicles in the area. The SO walked around the neighborhood with the PSD.
At 2:01 a.m., the SO arrived at a residence on Cricklewood Drive. He asked WO #1 to activate his flashlight and shine it into the backyard at some thick brush. Nobody was visible. A voice subsequently yelled, “Ouch, ouch, ouch.”
At 2:02 a.m., the SO yelled at the Complainant to put his hands up and come out of the bushes. The Complainant was seen laying on his back on the grass. The PSD still had contact with the Complainant’s right foot. The SO gave the PSD a command. The Complainant was told he was under arrest, and he was handcuffed with his hands behind his back. The Complainant responded that he understood. The PSD was removed from the Complainant’s leg, out of camera view, after the Complainant was handcuffed.
Communications Recordings
At 15 minutes and 48 seconds into the recording, a person from a residence on Wilson Road North, Oshawa, called 911 on June 24, 2023, at 1:06 a.m. They requested that police officers urgently attend an address on Wilson Road North, Oshawa. A 26-year-old man, who was prohibited from being at the address [now known to be the Complainant], had fought with a woman at the residence. The caller added that another man also appeared to be involved in the fighting and provided a description. The caller provided a description of the woman and the Complainant. A police officer at the scene reported that the Complainant had fled on foot. The dispatcher asked if there were any conditions for which a search was warranted, and the police officer replied that the Complainant was in breach of his release conditions - the Complainant was not to be in the woman’s company. Another police officer announced that the Complainant had fled towards Rossland Road and provided a description of his clothing. The Complainant had a cast on his leg. Another police officer advised that the Complainant had run on Cricklewood Drive.
The dispatcher announced that a police dog handler was on the way to the scene.
The Complainant was heard to scream, and a police officer announced that the Complainant was in custody. The dispatcher asked if an ambulance was needed, and the police officer said that it was as the Complainant had been bitten by the PSD.
Custody Video
At 25 seconds into the recording, the Complainant was led into the booking room by three uniformed police officers. The Complainant had an air-cast, which covered his right foot to the area below the knee. He limped and his hands were handcuffed behind his back. WO #4 confirmed the Complainant’s identity and read him his rights. WO #4 informed the Complainant that he had been told the Complainant had a possible fracture in his ankle, and a canine bite injury. The Complainant emphasised that his ankle was broken, and it was different from the fracture he had sustained to the same ankle during a previous interaction with DRPS. WO #4 asked if he had any medical conditions aside from the reported injuries. The Complainant said he did not require any medical attention, and he had only consumed two cans of beer. The Complainant said he had injuries on his wrist, forearm, and bicep. He added that the injuries resulted from being abusively grabbed by the police officers during the arrest. The police officers removed the handcuffs, and a wheelchair was provided to the Complainant, who was wheeled away. Materials Obtained from Police Service
The SIU obtained the following records from DRPS between June 24, 2023, and August 2, 2023:- Training Record-Use of Force-the SO;
- Arrest Report-WO #1;
- BWC footage;
- Record of computer-assisted dispatch;
- Witness statements;
- Criminal Record-the Complainant;
- The SO-Training Log-Overview;
- Directive-Canine-K9-Unit;
- Directive-Arrest;
- Directive-Police Use of Force;
- Communications recordings;
- Custody video;
- General Occurrence Report;
- Duty Notes-WO #4;
- Duty Notes-WO #2;
- Duty Notes-WO #1;
- Duty Notes-WO #3;
- Probation Order-the Complainant;
- Release Order-the Complainant;
- PSD certification-2022;
- Canine Unit-Certification; and
- Involved Officers List.
Materials Obtained from Other Sources
The SIU obtained the following records between June 27, 2023, and July 7, 2023, from the following other sources: - Durham Region Paramedic Services Ambulance Call Report; and
- The Complainant’s medical records from Lakeridge Health Oshawa.
Incident Narrative
The material events in question, clear on the evidence collected by the SIU, may briefly be summarized.
In the early morning hours of June 24, 2023, the SO, a police service dog handler, was dispatched to assist with a search in relation to a 911 call involving a resident at an address on Wilson Road North, Oshawa. A woman had called to report that the Complainant had just assaulted a woman in her unit at the address. Officers arriving at the scene came to learn that the Complainant, aware of police presence, had fled on foot on Cricklewood Drive.
The SO arrived on scene with his dog, the PSD, shortly before 2:00 a.m. With WO #1 in support, the officer harnessed the PSD and embarked on a search of the exterior premises of the homes on Cricklewood Drive. The search ultimately led to the backyard of a house on Cricklewood Drive where the Complainant was located.
Aware of his impending arrest, the Complainant had attempted to conceal himself in some thick brush at the back of the house. The Complainant yelped in pain as the PSD bit onto his lower right leg, which was fitted with an air-cast at the time.
Having located and latched onto the Complainant’s lower right leg, the PSD pulled him out from underneath the bush into the open. The dog continued to bite down as WO #1 moved in and secured the Complainant in handcuffs.
Following his arrest, the Complainant was transported to hospital and diagnosed with a fractured right fibula.
In the early morning hours of June 24, 2023, the SO, a police service dog handler, was dispatched to assist with a search in relation to a 911 call involving a resident at an address on Wilson Road North, Oshawa. A woman had called to report that the Complainant had just assaulted a woman in her unit at the address. Officers arriving at the scene came to learn that the Complainant, aware of police presence, had fled on foot on Cricklewood Drive.
The SO arrived on scene with his dog, the PSD, shortly before 2:00 a.m. With WO #1 in support, the officer harnessed the PSD and embarked on a search of the exterior premises of the homes on Cricklewood Drive. The search ultimately led to the backyard of a house on Cricklewood Drive where the Complainant was located.
Aware of his impending arrest, the Complainant had attempted to conceal himself in some thick brush at the back of the house. The Complainant yelped in pain as the PSD bit onto his lower right leg, which was fitted with an air-cast at the time.
Having located and latched onto the Complainant’s lower right leg, the PSD pulled him out from underneath the bush into the open. The dog continued to bite down as WO #1 moved in and secured the Complainant in handcuffs.
Following his arrest, the Complainant was transported to hospital and diagnosed with a fractured right fibula.
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 seriously injured in the course of his arrest on June 24, 2023, by DRPS officers. One of the officers involved in the Complainant’s arrest – the SO – was identified as the subject official in the ensuing SIU investigation of the incident. 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 injury.
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.
By the time the Complainant was located in the backyard of a residence on Cricklewood Drive, the SO had information that he had assaulted a woman and violated the term of a release order by having been in her vicinity. On this record, I am satisfied that the SO was within his rights in seeking to take him into custody.
I am also satisfied that the use of the dog was legally justified. The Complainant had fled from the scene of the 911 call and secreted himself in a neighbouring property, successfully evading detection by the initial officers in the area. It made sense to use the PSD, therefore, to attempt to locate an individual who had reportedly just committed an act of violence. It also made sense to allow the dog to bite and hold the Complainant pending his restraint in handcuffs. To reiterate, the SO had information that the Complainant had just been violent, and that he had been violent with the use of a weapon – a cane. The officer also had cause to be concerned that the Complainant would resist arrest, and possibly do so with a weapon at his disposal, given his protracted concealment from the police. The use of the PSD placed the officers in a position to better and more safely manage these risks as they moved in to effect the Complainant’s arrest. Of concern is the fact that the police dog did not promptly detach from the Complainant once ordered to do so by the SO. Indeed, the dog maintained the bite for an additional 15 seconds or so before the officer was able to release the PSD’s grip. Some allowance must be made for the fact that no police dog handler ever has complete control of a dog when it is deployed – there is always an element of unpredictability when using another sentient creature as a tool in an officer’s hands. The real question is whether the SO had any reason to suspect that the PSD was not likely to respond to his release direction within a reasonable period of time. On this question, one notes that the dog’s training and certifications were up to date, such that there is no real question of any criminal want of care in this case.
In the result, while I accept that the use of the police dog by the SO to bite and hold the Complainant resulted in his fractured right leg, I do not accept that the injury is attributable to any unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: October 18, 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.
By the time the Complainant was located in the backyard of a residence on Cricklewood Drive, the SO had information that he had assaulted a woman and violated the term of a release order by having been in her vicinity. On this record, I am satisfied that the SO was within his rights in seeking to take him into custody.
I am also satisfied that the use of the dog was legally justified. The Complainant had fled from the scene of the 911 call and secreted himself in a neighbouring property, successfully evading detection by the initial officers in the area. It made sense to use the PSD, therefore, to attempt to locate an individual who had reportedly just committed an act of violence. It also made sense to allow the dog to bite and hold the Complainant pending his restraint in handcuffs. To reiterate, the SO had information that the Complainant had just been violent, and that he had been violent with the use of a weapon – a cane. The officer also had cause to be concerned that the Complainant would resist arrest, and possibly do so with a weapon at his disposal, given his protracted concealment from the police. The use of the PSD placed the officers in a position to better and more safely manage these risks as they moved in to effect the Complainant’s arrest. Of concern is the fact that the police dog did not promptly detach from the Complainant once ordered to do so by the SO. Indeed, the dog maintained the bite for an additional 15 seconds or so before the officer was able to release the PSD’s grip. Some allowance must be made for the fact that no police dog handler ever has complete control of a dog when it is deployed – there is always an element of unpredictability when using another sentient creature as a tool in an officer’s hands. The real question is whether the SO had any reason to suspect that the PSD was not likely to respond to his release direction within a reasonable period of time. On this question, one notes that the dog’s training and certifications were up to date, such that there is no real question of any criminal want of care in this case.
In the result, while I accept that the use of the police dog by the SO to bite and hold the Complainant resulted in his fractured right leg, I do not accept that the injury is attributable to any unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: October 18, 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.