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 42-year-old man during his arrest on August 20^th, 2017.

Notification of the SIU

At approximately 9:15 a.m. on August 21^st, 2017, the Kingston Police Service (KPS) notified the SIU of a custody injury to the Complainant.

The KPS advised that on August 20^th, 2017, at 10:50 p.m., police officers responded to a Walmart store in the City of Kingston regarding a shoplifter, the Complainant, who was being pursued by security guards. The Complainant ran across the street to an LCBO store and stopped. He put his hands into his pockets, stated that he had a weapon, and then ran into a wooded area behind the LCBO store. The security guards stopped pursuing the Complainant.

Police officers contained the area and a K-9 officer was requested to assist with the search for the Complainant. While checking in the woods, the Police Service Dog (PSD) found the Complainant and grabbed onto his left arm. The Complainant was taken to the hospital to be treated for large and small puncture wounds.

The Team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Notes reviewed, interview deemed not necessary

WO #4 Notes reviewed, interview deemed not necessary

WO #5 Notes reviewed, interview deemed not necessary

Subject Officers

SO #1 Interviewed, notes received and reviewed

On Sunday, August 20^th, 2017, at about 10:00 p.m., the Complainant entered a Walmart store in the City of Kingston.

At about 10:30 p.m., the Complainant was observed by the Loss Prevention Officer (LPO) selecting merchandise and concealing it inside a backpack, which he had also taken from the store.

The Complainant left the store through an emergency exit door which activated a security alarm. The LPO, along with another store employee, ran out of the store after the Complainant, who ran south on the sidewalk and across the street to a parking lot on the west side of the street. The Complainant stopped in the parking lot of the LCBO and confronted the LPO, placing one hand behind his back, stating that he had a weapon and that the security officer should not get any closer. The Complainant dropped the backpack containing the stolen merchandise and ran into a grassy field area to the west of the LCBO parking lot. The LPO called the KPS and police officers responded to the scene.

Containment was set up in the area and a canine handler with the KPS, the SO, was called in from home with his police service dog to assist in locating the Complainant. The SO, his police service dog, and a cover officer, WO #2, entered the field off of the LCBO parking lot, from the south side. The dog was on a 20 foot leash ahead of the SO and located the Complainant lying face down in the field. The SO heard the Complainant scream and approached and removed the dog from the Complainant. The Complainant was then arrested, handcuffed, and walked out of the field into the LCBO parking lot. The Complainant told the SO that he had been too scared to stand up and indicate that he was there.

The Complainant’s left arm was examined by police officers in the parking lot. He had a puncture wound in the top of his triceps and a small but deep gash near his triceps and armpit area. An ambulance was called and the Complainant was transported to hospital, where he was treated for his injuries. The Complainant was later released from hospital and was taken to the police station, where he was held pending a show cause (bail) hearing.

Nature of Injuries / Treatment

The Complainant sustained a dog bite to his left medial arm. He was treated at hospital for a deep wound, at least five cm in diameter, to the upper left arm. The wound was irrigated and he was referred to the plastics clinic.

The Scene

The grassy field area was directly west of the paved parking lot of the LCBO store in the City of Kingston. Using Google Maps for measurement, the start of the field at the parking lot is about 97 metres west of Midland Avenue. The field itself is rectangular in shape and measures about 70 metres long by 34 metres wide. The grass in the field is uncut and fairly high, with an uneven and rough ground surface. On the west side of the field there was a tall fence which ran parallel to the rear of single houses in a subdivision. There was parking lot lighting at the LCBO, however, the overhead lights are on a timer and had been cycled off at the time of this incident. The Complainant was located approximately in the middle of the field area.

Using Google Maps, the distance measured from the emergency exit door of the Walmart store to the parking lot of the LCBO, is approximately 285 metres.

Video/Audio/Photographic Evidence

The video from the KPS of the Complainant being booked into the station was obtained 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 KPS:

• Detailed Call Summary
• General Occurrence Report
• Notes of WO #s 1-5 and the SO
• Procedure: Use of Force
• Procedure: Arrest Procedures
• Procedure: Canine Unit
• Training Records of the SO
• Training Schedule - Carbine Day
• Training Schedule - Defensive Tactics 2017
• Training Schedule - Firearms 2017, and
• Booking Video of the Complainant

The following documents were obtained from other sources:

• Medical records of the Complainant

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 322(1), Criminal Code – Theft

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

1. to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it
2. to pledge it or deposit it as security
3. to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
4. to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted

Section 334, Criminal Code - Punishment for theft

334 Except where otherwise provided by law, every one who commits theft

1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is a testamentary instrument or the value of what is stolen exceeds five thousand dollars; or
2. is guilty
   1. of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
   2. of an offence punishable on summary conviction, where the value of what is stolen does not exceed five thousand dollars

Section 354(1), Criminal Code - Possession of property obtained by crime

354 (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from

1. the commission in Canada of an offence punishable by indictment; or
2. an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment

On August 20^th, 2017, at approximately 10:50 p.m., the loss prevention officer (LPO) at a Walmart store located in the City of Kingston observed the Complainant selecting merchandise inside the store, concealing it in his backpack, and then exiting the store through an emergency side exit and triggering a security alarm. The LPO and a second store employee pursued the Complainant and advised him that he was under arrest for theft from the store. The Complainant, however, ran across the street, dropped the backpack containing the stolen merchandise, ran into the adjacent LCBO parking lot, and then stopped and turned to face the LPO, who was on the phone with the Kingston Police Service (KPS) at the time.

The 911 call record from the KPS revealed that a 911 call was received by the KPS at 10:54:10 p.m. from the LPO advising that he was following a male in the parking lot, when the male, who had his hand in his pocket, advised the LPO that he had a weapon. The KPS dispatched WO #1, WO #2, WO #3, WO #4 and WO #5 to respond to the call.

Once on scene, a request was made to have the canine officer (the SO) and his dog also attend. The Complainant was subsequently arrested and transported to hospital where he was found to have sustained a dog bite to the left medial arm with a deep wound, at least five centimetres in diameter, to the left upper arm.

The Complainant alleged that as he was hiding in the field, he heard the sound of a dog nearing and, at one point, the dog walked closely past and over top of him, before it came back and grabbed his left arm, biting him on his upper left bicep; the dog did not let go. The dog handler, the SO, then told the Complainant that it was his dog and that he could not get the dog to let go. The Complainant advised that he did not hear the SO issue any verbal commands before the dog bit him.

WO #1 advised that he responded to the call from the LPO and he was concerned for both officer and public safety, based on the information that he had received that the Complainant had a weapon. As a result, he had officers set up containment in the area and he requested that a canine officer attend.

The SO advised that he was off duty and was contacted at home at approximately 11:00 p.m. and asked to come in; he and his dog then attended the scene at the LCBO parking lot, where he was briefed by WO #1. He was partnered with WO #2, who was to cover him as he and his dog tracked the Complainant. He harnessed his dog on a tracking harness with a 20 foot leash and started to track from the parking lot where the Complainant was last seen. The SO had no use of force options in his hands and did not have a flashlight illuminated.

The SO advised that he and WO #2 entered the field in ‘stealth-mode’ and that they did not call out to the Complainant. Within about one minute, he heard the Complainant scream and he yelled out to WO #1 that his dog got him, but he did not know exactly where the dog was at the time.

The SO then tried to move in closer to the Complainant to check for a weapon but the Complainant was hunched over lying on his stomach and was pulling away from the dog, while the SO kept telling the Complainant to stop moving. The SO then performed a “lift-off technique” with the dog and, as he was walking backwards, he noticed that one of the dog’s teeth was caught on the Complainant’s sweater. He then freed the sweater and the Complainant was handcuffed and walked out of the area. When asked why he did not just stand up and tell the police where he was, the Complainant told the SO that he had been too scared to do so.

WO #2’s evidence is consistent with that of the SO, adding that he was walking about six feet behind the SO when he heard the Complainant screaming, but he did not see the initial interaction between the dog and the Complainant. WO #2 then approached the Complainant and saw him on his knees with one hand tucked into his body, while the dog had control of the other arm and they appeared to be engaged in a tug of war with the Complainant’s left shirt sleeve. He saw the SO standing behind the dog and it appeared that the Complainant’s sleeve was caught on one of the dog’s teeth. The SO then took control of the dog’s collar and pulled him back and off of the Complainant.

WO #1’s evidence was also consistent with that of the SO. He advised that he approached the Complainant, who was lying face down on the ground with WO #2 on his right and the SO and his dog on his left, and he observed that the dog was up on his hind legs and the SO had him by the collar; he then reached in and pulled the sweatshirt sleeve off of the dog’s tooth. The Complainant was then handcuffed.

On all of the evidence, I see little disagreement between the evidence of the Complainant and that of the other witnesses, both civilian and police, other than that the Complainant did not mention that he verbally threatened that he had a weapon, when he reached behind his back, which the LPO clearly stated in his evidence and is confirmed in the 911 call which he made contemporaneously with the events as they were unfolding. Regardless of whether or not the Complainant actually had a weapon, however, clearly that was the information relayed to the police officers on scene and they had to respond with the necessary precautions on that basis.

Furthermore, it is clear on the evidence of the Complainant, which confirms the evidence of the SO and the other police officers on scene, that at no time did the SO give any verbal command to the dog to bite the Complainant, but rather he immediately made efforts to get the dog to disengage once he and WO #2 arrived at his location and had the Complainant in their control. While it appears on the evidence of the Complainant that the SO said that he was unable to get the dog off of him, I infer on the evidence of all three of the officers that what was being referred to there was that the dog’s tooth was caught on the Complainant’s sleeve, not that the SO was unable to get the dog to disengage, as he appears to have successfully done almost immediately upon his arrival.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear on all of the evidence that police were in possession of information, which WO #1 had confirmed with the LPO upon arrival at the scene, that the Complainant had stolen merchandise from the Walmart store and, in his efforts to escape, he had threatened the LPO and another store employee not to come towards him as he had a weapon. Based on this information, police clearly had reasonable grounds to apprehend and arrest the Complainant for theft of merchandise contrary to the Criminal Code, and to investigate him for possible weapons offences. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

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, except the minimum required to handcuff him and bring him to his feet, and there were no allegations as such. While clearly the police service dog was an extension of the police officer, and was in effect a use of force option, in this factual situation, where the Complainant had recently committed a criminal offence, he had threatened the use of a weapon, and he was now hiding from police in a dark field, it would have been foolish for police to enter and search for the Complainant without the assistance of a police service dog.

While it is clear on all of the evidence that the police service dog 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 by the dog.

The police service dog was behaving exactly as he was trained to do, in that he grabbed the Complainant as soon as he located him and held onto him until he was told to disengage by his handler. Because the dog was on a 20 foot tracking leash and, in the darkness, it took a few seconds for the SO to catch up to where the dog was holding the Complainant, with the Complainant struggling to pull away from dog, (described by WO #2 as a tug of war) unfortunately, the resultant injury was exacerbated.

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 police service dog, and it was the actions of the Complainant, although likely an instinctual reaction, in trying to pull away from the dog, which caused his injuries to be more serious than what might have otherwise been the case.

Furthermore, on all of the evidence, and as specifically confirmed by the Complainant, the SO at no time issued any verbal commands to the dog to bite the Complainant, and he immediately pulled the dog off as soon as he arrived at the Complainant’s location. On these facts, there is no basis upon which I can form reasonable grounds to believe that the SO exercised an excessive use of force against the Complainant. The police service dog behaved exactly as he was trained to do, after having located a possibly armed and dangerous man hiding in the brush in the dark, he latched on and held until his handler arrived and told him to disengage.

On all of the evidence, I find that there are no reasonable grounds to believe that the SO committed any criminal offence here and no charges will issue.

Date: March 29, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit