Director's Report Details

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.

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.

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 the serious injury sustained by a 28-year-old man during his arrest on June 11^th, 2017.

Notification of the SIU

At approximately 7:40 a.m. on Sunday, June 11^th, 2017, the Windsor Police Service (WPS) notified the SIU of a custody injury (dog bite) involving the Complainant.

The WPS reported that on June 11^th, 2017, at 12:30 a.m., WPS officers went to a residence in the City of Windsor to arrest the Complainant for armed robbery. Once there, they determined that the Complainant was hiding somewhere in the residence. The WPS started negotiations with him but to no avail. At approximately 5:30 a.m., after negotiations had stalled, the police officers entered and began a methodical search of the house with a leashed police service dog (PSD) and his handler, the Subject Officer (SO). The Complainant was located by the PSD under some insulation in the attic. During an interaction with the PSD, the Complainant was extracted from the attic, during which he sustained dog bites to his neck.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

WO #5 Interviewed, notes received and reviewed

WO #6 Interviewed, notes received and reviewed

WO #7 Interviewed, notes received and reviewed

Additionally, the notes from 3 other officers were received and reviewed.

Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed

On May 11^th, 2017, the WPS Emergency Services Unit (ESU) attended at a residence in the City of Windsor to apprehend the Complainant on a number of outstanding charges, including armed robbery. After attending the residence, the ESU and the Canine Unit attempted to clear the residence and all of the occupants exited the house, other than the Complainant.

Numerous call outs were made by the police for the Complainant to exit the house, without response. After hours of attempting to negotiate the Complainant’s exit from the house, all without a response, the door to the home was breached and continued calls were made into the house advising of the presence of the Canine Unit and that the Complainant should show himself. There was no response or movement inside the house. Eventually the Canine Unit entered the house and the dog searched the basement and main level, without results.

Some insulation particles were noticed below the hatch leading into the attic and the hatch was opened and further call outs were made advising the Complainant that if he did not come out, the PSD would be dispatched. There was no response. Eventually, the dog was hoisted into the attic where he located the Complainant hiding under a tarp. In apprehending the Complainant, the dog bit and held the Complainant until the SO was able to enter the attic, determine that the Complainant was unarmed and not a threat to the SO, and remove the dog. The Complainant was then arrested and removed from the attic, following which he was transported to hospital.

Nature of Injury/Treatment

The Complainant was treated for three lacerations to the left side of his neck and two lacerations to the right side of his neck. A number of sutures were used to close the lacerations. As a precaution, a probe was inserted into the Complainant’s trachea to check for possible damage, but none was found.

The Scene

The scene was within a private residence in the City of Windsor.

Video/Audio/Photographic Evidence

The SIU reviewed the photos of the scene taken by the WPS.

Communications Recordings

The Communications recordings were received and reviewed.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the WPS

• Detailed Call Summary
• Duty Roster
• Communications recordings
• Photos taken of scene and injuries to the Complainant
• Event Summary
• Notes of WO #s 1-7, the SO and three undesignated police officers
• Person Hardcopy
• Written Statements of Witness Officer (WO) #s 1-5 and undesignated police officer
• WPS Crime Bulletin
• WPS Known Wanted Poster of Complainant
• WPS Mugshot of Complainant, and
• WPS Witness Statements of Civilian Witness (CW) #1 and one undesignated CW

The SIU obtained and reviewed the following materials and documents from other sources:

• The Complainant’s medical records

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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.

Section 343, Criminal Code – Robbery

343 Every one commits robbery who

1. steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property
2. steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person
3. assaults any person with intent to steal from him; or
4. steals from any person while armed with an offensive weapon or imitation thereof

Section 344, Criminal Code – Robbery with Firearm

344 (1) Every person who commits robbery is guilty of an indictable offence and liable

1. if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
   1. In the case of a first offence, five years, and
   2. In the case of a second or subsequent offence, seven years

(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

2. in any other case, to imprisonment for life

On Monday June 5^th, 2017, at approximately 12:55 p.m., a male entered a pawn shop in the City of Windsor with a sawed-off shotgun. The store was occupied at the time with both employees and customers. The male robbed the premises at gunpoint, removing all property and placing it into his knapsack, then fled the scene. Approximately $30, 000 to $40, 000 worth of merchandise was allegedly taken during the robbery.

On June 6^th, 2017, a wanted poster was released to the public by the Windsor Police Service (WPS) requesting assistance in identifying and locating the robber. A photo from the surveillance camera inside the store was included, showing the robber, with the firearm, robbing the store. The robber’s face was covered by a bandana and he was wearing a brimmed cap, thereby obscuring his identity. On June 7^th, 2017, the WPS were made aware that the robber was the Complainant and the media release was updated with that information.

Through further investigation, police came to believe that the Complainant may be residing in a residence in the City of Windsor and at 12:06 a.m. on Sunday, June 11^th, 2017, the Emergency Services Unit (ESU) and Witness Officer (WO) #1 attended the residence and established containment.

At 12:24 a.m., a telephone call was made by police to the residence and, a few minutes later, two of the occupants exited the house, leaving only the Complainant inside.

According to WO #2, he was tasked with communicating with the Complainant by way of a loud hailer, and he did so announcing, “(Complainant’s name), this is the WPS. You are under arrest. We know you are inside. Come to the front door. (Complainant’s name), this is the WPS Tactical Unit. You are under arrest. Come to the front door with your hands up. (Complainant’s name), if you wish to speak with your lawyer you can call the WPS and we will put you in touch with a lawyer. (Complainant’s name), this is the WPS. You are under arrest. We have a police dog on scene. If you do not come out, we will have to send the dog in and you may get bitten.” There was no response from the Complainant with respect to any of these call outs. Efforts were also made to contact the Complainant by way of his cell phone, but he did not answer.

This evidence is confirmed by Civilian Witness (CW) #1, who estimated that the police shouted out literally hundreds of warnings from outside of the house directing the Complainant to come out, which took place over a period of some five hours. Police officers also used a loud hailer and warned the Complainant that they had a police service dog (PSD). At no time did the Complainant respond.

At 2:07 a.m., the door to the residence was breached and numerous call outs were made through the now open door stating, “You’re under arrest. There’s a Police K9 on scene. Exit with your hands up.” Additionally, a reconnaissance robot was deployed, without success. There was no response or movement from inside the house.

At 3:00 a.m., at the request of WO #1, WO #2 and the Subject Officer (SO) had the PSD bark both at the open door and at the open windows to attempt to convince the Complainant to come out from his hiding spot.

The cell phone provider for the Complainant’s cell phone tracked his location and confirmed that he was still within the immediate area of the residence.

The Complainant’s lawyer was contacted at home and asked if she would attend to assist in the peaceful apprehension of her client; while she declined, she did attempt to contact her client by cell phone but he did not respond. The lawyer then left a message for the Complainant at approximately 4:03 a.m.

At 4:08 a.m., WO #1 requested that the SO and his dog search the basement of the residence. The SO entered and called, “Windsor Police Canine. You’re under arrest. Show yourself. Come to the door.” Police then waited for a minute, and when there was no response or movement, a second call out was made, following which the dog was deployed and he searched the basement and main floor of the house.

WO #3 stated that when he looked in the second bedroom, he observed a scuff mark on the wall and found insulation on the floor directly below an attic access hatch. Using a broomstick, WO #3 pushed open the wooden hatch but he was unable to see into the attic. For the next 30 minutes, numerous callouts into the attic went unheeded. WO #3 then inserted a remote camera into the attic, but it did not reveal the Complainant’s location. The SO yelled repeated warnings that a PSD would be placed into the attic, with no response.

WO #1 indicated that he had concerns that the Complainant could suffer heat related health issues due to the temperature in the attic and the number of hours that he had been in there, and he authorized the SO to release his PSD into the attic. WO #1 observed that the SO initially had his dog on a long leash, but then released the PSD from the leash to allow him to search.

The SO, in his note book entries, indicated that at 5:20 a.m. he lifted his dog into the attic, while still attached to his long leash. It had been decided that it was not safe to put police officers into the attic while it was unknown whether or not the Complainant may still be in possession of the shotgun used during the robbery. The attic was unlit with the only source of light being from the open hatch.

The SO ordered his dog to lie down and again ordered the Complainant to surrender and warned him that the dog was in the attic and would search for him if he failed to surrender himself. There was still no response. After another 30 minute wait for the Complainant to respond or to show himself, the dog was ordered to search. The SO was positioned at the entrance to the attic and retained hold of the dog’s leash. After two minutes, the dog was released, without his leash, while the SO peeked into the interior of the attic.

Until this point in time, there is no dispute in the evidence as between the Complainant and the police witnesses. The Complainant stated that he was aware that the police were outside and had the house surrounded. Once he saw the police, he closed the door and chose to go and hide in the attic. The Complainant stated that he heard police commands for him to come out or they would release a PSD, but he ignored them. He then fell asleep and awoke to the PSD biting his neck, which continued for about five minutes. The Complainant alleged that a WPS police officer was also present and allowed the dog to bite him. After the dog was called off, he was dragged downstairs and arrested.

In a follow up interview, four days later, the Complainant provided a second version of events, which added some details not provided in the first interview and, in some instances, substantially changed his original statement.

In the second interview, the Complainant stated that the police had tried to speak to him, or arrest him, a few days earlier at his previous residence, so he ran off. He stated that on June 11^th, when the occupants of the house were outside speaking with police, he closed the front door and locked it. Then he waited 30 minutes and watched a movie. He described everything as being quiet outside, and he did not see any emergency lighting, nor did he hear any loud speakers or commands from WPS police officers. Additionally, the Complainant alleged that his cell phone never rang and there were no knocks at the door.

The Complainant then hid under a tarp in the attic, where he fell asleep. He indicated that the attic was very hot and he slept for about two hours, next awakening to a dog biting him in the neck. He described the dog as being unleashed. He also indicated that at no time had he heard any barking nor any commands from any WPS police officers. The dog bit him for about five minutes, before a WPS officer came up into the attic and grabbed the dog by its collar. At that point, he indicated that there were four or five police officers in the attic and he questioned why they had used a PSD.

The SO, in his notes, indicated that he observed the dog to be “in odour” meaning that he had detected a human scent. In attempting to locate the source of the scent, the dog stepped on a blue tarp and insulation and apparently stepped on the Complainant, who was hiding beneath.

A moment later, the SO observed the dog being violently thrown three feet to the west by something from under the tarp. The dog landed on his back, but quickly got back up and reacted by lunging at the tarp and insulation and grabbing the tarp. The SO was able to see that the Complainant, who was still under the tarp, was actively resisting the dog, as the tarp was vigorously shaking and the dog was being thrashed from side to side.

The SO then yelled out “Stop fighting the dog, you’re under arrest.” This shout was heard by WO #2 and WO #1, who were standing below the attic, and by WO #3, who was standing in the doorway to the bedroom.

The SO indicated that the Complainant ignored his command to stop fighting the dog. The SO called down to WO #1 below, to let him know what was happening. He then un-holstered his service pistol and entered the attic where he could see the dog, but not the Complainant. The SO approached slowly and yelled at the Complainant to show his hands, as he continued to struggle with the dog. The SO then illuminated the area with his flashlight and saw the dog, with his face stuffed with tarp and insulation, biting the Complainant on his upper neck area. The SO then observed that the Complainant had his hands around the dog’s neck and throat area and he ordered the Complainant to release his grip, and he complied.

The SO then quickly looked for the shotgun, and when he was satisfied that the Complainant did not have access to any weapons, he re-holstered his own pistol, quickly grabbed the dog’s collar and ordered him to release the Complainant, which he immediately did. The SO then alerted WO #1 and asked that Emergency Medical Services be contacted. WO #1 and WO #2 then quickly took possession of the Complainant, who was bleeding from the bite wounds on his neck, and the SO quickly exited the scene with his dog.

The Complainant’s medical records indicate that he had been in the attic, which was described as “++ hot”, for at least four hours, that he had ingested crystal meth earlier, and that he had three puncture marks to his left neck area and two to his right neck area from a dog bite.

There is very little dispute as to the facts as between the Complainant and the police officers at the scene, with the primary differences not being as to what occurred, but rather whether or not the actions of the SO were appropriate and justified in the circumstances.

On this evidence, the main two discrepancies that I can see between the evidence of the Complainant and police is, firstly, that the Complainant, in his second statement, advised that he did not hear any warnings from police, nor any barking from the PSD, while he was inside the house.

This evidence is contradicted not only by a CW, who clearly indicated that the police had shouted out literally hundreds of warnings over a five hour period, but also by the Complainant himself, in his initial statement to investigators on June 11^th, wherein he had indicated that he heard the police commands for him to come out or they would release the dog, and he ignored them. On all of the evidence, I have no hesitation in finding that police officers, during the lengthy and ongoing standoff with the Complainant, repeatedly and loudly, and by using various resources, attempted to communicate with the Complainant and that they both commanded him to come out and warned him about the release of the police dog if he failed to do so.

The second significant discrepancy noted is the allegation by the Complainant in his first statement that a WPS officer was present and watching while the dog was biting him. This assertion is again contradicted by his own second statement, wherein he indicated that it was only after the dog had been biting him for some five minutes that an officer came up into the attic and grabbed the dog.

On the basis of these two considerable inconsistencies in the Complainant’s own evidence, I am not inclined to accept any of his evidence as reliable, particularly taking into account his fairly illogical assertion that he was inside the house watching a movie and heard and saw nothing, while the evidence of a CW clearly confirms the evidence of the police officers present that there was a substantial police operation going on outside of the house.

On an assessment of all of the evidence, which I have already previously indicated differs in respect of the struggle between the PSD and the Complainant in only minor aspects, I accept the evidence of the SO, as based on the notations he made shortly after the incident, that the Complainant was actively resisting and fighting the dog, and had thrown the dog, prior to the dog returning and latching onto to the Complainant’s neck. I do so not only on the basis of the evidence of the SO, but on the evidence of each of the other police officers who were in the area of the bedroom below the attic who heard the SO yell at the Complainant not to fight the dog.

I also accept on all of the evidence that the police gave the Complainant ample opportunity to come to the door, while they were still outside of the house, and to show himself and come out from hiding, when they were inside the house. I fully accept on all of the evidence, including the Complainant’s own, that the Complainant was aware that police were present, that they were directing him to show himself, and that the PSD was present. I also find that the SO warned the Complainant numerous times that if he did not come down from the attic, the dog would come up.

I have also considered the opinion of WO #6, the lead canine handler and trainer for the WPS. WO #6 reviews all instances where a PSD is deployed and/or bites and he reviewed this particular incident. WO #6, after reviewing all of the facts, was of the opinion that both the SO and his service dog did everything that they were trained to do and indicated that he had no concerns with either the PSD deployment or the actions of the SO.

WO #6 stated that the WPS service dogs are trained to bark and hold, meaning they search, and when they locate the party, they bark to notify their handler. Where the party then makes any movement to flee or attack, the dog will bite the person, which is clearly what occurred here. While his opinion is obviously not conclusive, I have taken it into account in coming to my decision.

Pursuant to s. 25 (1) of the Criminal Code, police officers are protected from prosecution if they are acting pursuant to their lawful duties and they use only as much force as is necessary for that lawful purpose. On the record before me, it is clear that based on the information provided to police, as well as their own investigation which had led to an identification of the armed robber on June 5^th as being the Complainant, the police had reasonable grounds to arrest the Complainant for armed robbery.

Furthermore, since the police had the homeowner’s permission to enter the house, they were acting lawfully when they entered, searched for, and removed the Complainant from the residence. As such, it is clear on these facts that the police were acting within their lawful duties at the time when they entered and attempted to apprehend the Complainant and their actions were justified, as long as they did not resort to an excessive use of force.

With respect to the amount of force used in the apprehension of the Complainant, it is clear that no police officer used any direct physical force on the Complainant, other than the minimum required to handcuff him and bring him to his feet and down from the attic, and there were no allegations to that effect.

While clearly the PSD was an extension of the police, and was in effect a use of force option, in this factual situation, where the Complainant was wanted on charges of armed robbery and, rather than coming out and speaking with police, he had gone to the extreme option of hoisting himself up and hiding in the attic, and while police did not have any information as to whether or not the Complainant may have been armed with a weapon, I agree with the assessment of the police that it would be unsafe to blindly send a police officer into the attic to search for a possibly armed and dangerous party and that it would be more prudent to send the dog into the attic, after first giving the Complainant ample warnings and opportunities to surrender.

I also note that in this particular circumstance, the police did not act quickly or rashly, instead attempting to convince the Complainant to come out of the house over a period of time spanning some five hours, and that the decision was not made to deploy the dog into the attic until WO #1 determined that it would be unsafe to leave the Complainant in the overheated attic for any longer.

While it is clear on all of the evidence that the PSD bit the Complainant and caused his injuries, it is equally clear that had the Complainant not taken active steps to hide from police, he would not have been bitten. The PSD was behaving exactly as he was trained to do, in that, upon locating the Complainant, he initially barked to warn him and to alert his handler, and then, when the Complainant struck out at the dog, he responded, as he had been trained to do, and he bit him. Until the PSD had engaged the Complainant, it was not safe for the SO, or any police officer, to enter the attic to deal with the Complainant, who was still at that time a possibly armed and violent individual.

The PSD apprehended the Complainant as he was both trained and directed to do, and held onto him until he was told to disengage by his handler. It may well be that the time it took for the SO to hoist himself into the attic, and approach and apprehend the Complainant, delayed his ability to disengage the dog, and may therefore have caused the dog to remain latched onto the Complainant longer than would be the case in other circumstances, I cannot help but conclude that this situation was one of the Complainant’s own making and could have been easily avoided had he simply come out and given himself up to police, rather than hiding under the insulation in the attic and then fighting the dog when it located him.

In finding that this did not amount to an excessive use of force, I am mindful of the state of the law that officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.) nor should they be judged to a standard of perfection (R. v. Nasogaluak [2010] 1 S.C.R. 206.

In the final analysis, I am of the opinion that it was the actions of the Complainant that caused the police to have to resort to the use of the PSD to search the house, and it was the further actions of the Complainant, in refusing to come out and show his hands, which forced the SO to deploy his PSD into the attic. Ultimately, it was the direct reaction of the dog to being struck by the Complainant that then caused him to bite, thereby causing the injuries to the Complainant.

On all of the evidence, I find that the Complainant, of his own volition, decided to ignore the numerous commands by police to come out and speak with them and instead chose to secrete himself in a dark attic in the hopes that he would either not be found or the police would simply give up and leave. I accept on the Complainant’s first statement that he decided to take his chances and ignored the repeated warnings that the police dog would be sent up to the attic to apprehend him; he clearly made the wrong choice. It was incumbent upon police to arrest the Complainant for the outstanding, and very serious, charges related to the armed robbery and they clearly were not going to leave without doing so.

Had the Complainant simply come forward and given himself up, there would have been no need to deploy the PSD. I can only infer from the Complainant’s comments that he was aware that he was wanted by police that he hid from police for that reason. The Complainant rolled the dice and lost. These were decisions made by him and him alone, with the full knowledge and numerous warnings that the dog would be dispatched if the Complainant did not comply. On the evidence before me, I find that I do not have reasonable grounds to believe that the SO resorted to an excessive use of force in deploying his PSD and therefore do not have reasonable grounds to believe that he committed any criminal offence and no charges will issue.

Date: April 19, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit