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 reportedly sustained by a 45-year-old man during his arrest on February 5^th, 2017.

Notification of the SIU

At approximately 12:09 p.m. on May 4^th, 2017, Counsel for the Complainant reported a custody injury to her client. Counsel indicated that the Complainant was arrested in the attic of a friend’s home for the offence of break and enter by the Windsor Police Service (WPS) on February 5^th, 2017. She advised that the Complainant had entered the residence through the window, but he had his friend’s permission to be in the residence. 

Counsel advised that the WPS sent their canine into the attic without the handler and the dog attacked the Complainant, inflicting numerous punctures wounds and damage to his arm.  The Complainant was subsequently treated at hospital and was diagnosed with permanent damage to the arm muscle and the arm has been disfigured by the injury. 

The Team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Interviewed and notes received and reviewed

WO #2 Interviewed and notes received and reviewed

WO #3 Notes reviewed, interview deemed not necessary

WO #4 Notes reviewed, interview deemed not necessary

WO #5 Interviewed and notes received and reviewed

WO #6 Notes reviewed, interview deemed not necessary

WO #7 Interviewed and notes received and reviewed

WO #8 Interviewed and notes received and reviewed

Subject Officers

SO #1 Declined to be interviewed, but notes and a written statement were received and reviewed

On February 5^th, 2017, a neighbour of a residence observed a male person entering the residence by climbing in a window. As the male climbing into the residence did not resemble the homeowner, the neighbour called 911. WPS officers arrived with a canine unit and called out to the Complainant inside the residence, but he refused to come out. Police then forcefully entered the residence to arrest the Complainant for breaking and entering. Once inside, police observed insulation on the floor below the attic entrance, and believed the intruder was hiding in the attic. Police called out to the Complainant that if he did not show himself, the police service dog (PSD) would be deployed. The Complainant did not respond. The dog was hoisted up into the attic and engaged with the Complainant on its own, following which the SO and a second officer entered the attic and arrested the Complainant. The Complainant was bitten by the dog prior to the officers entering the attic and pulling the dog off. The dog bite caused a serious injury to the Complainant’s left arm.

Once the homeowner was located and interviewed, it was discovered that he had given the Complainant permission to enter his residence and, as such, the Complainant was not charged with break and enter. He was, however, arrested and held on outstanding arrest warrants.

Nature of Injuries / Treatment

The Complainant was taken to the hospital on February 5^th, 2017. Triage notes indicated that the PSD bit the Complainant on his upper left arm. He had seven deep puncture wounds over the deltoid, biceps and triceps. He had superficial claw marks on the right side of his head, just behind his ear. He had multiple lacerations on his left humerus, which was X-rayed and found to be normal.

His wounds were cleaned and packed, and he was given a referral to a plastic surgeon. All of his wounds were cleaned and medicated, but left open due to the high risk of infection. No wounds were stitched or stapled. He was seen the next day (February 6^th, 2017) by a plastic surgeon. She removed the packing and there was no sign of infection.

The Scene

As this call came in several months after the incident, the only scene photographs were the ones taken by the WPS.

Attic Entrance in ceiling

Video/Audio/Photographic Evidence

No closed circuit television (CCTV) could be located due to the passage of time.

Communications Recordings

Communications Report

The 911 caller indicated that a guy climbed in a window over on York Street. She did not know if it was a break and enter or if he lived there, but a tall guy just climbed through the window, and he did not look like the owner of the house. She did not know the exact address but said the person entering the home was a taller male and the owner of the home was shorter.

Initially, much of the 911 call was about finding the right house that was supposedly broken into. The 911 caller would not provide her name, and was only able to provide the block of York Street. Once the home was located, the PSD became involved and located the suspect in the attic.

There were no times stamps on the recording but the total length of time from the initial 911 call to running a check on the Complainant to see if he had any warrants for his arrest was 11 minutes and 43 seconds. The Complainant was already in custody at the time they ran a check on him for warrants.

Materials obtained from Police Service

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

• Booking Sheet
• CAD Call Log
• CV for the SO and his PSD
• Notes of WOs #1-8 and the SO
• Person Hardcopy-the Complainant
• Photos of the scene and injuries to the Complainant
• Prisoner Inspection Sheet
• Procedure 782-09-Police Dog Unit Deployment
• Procedure 811-02-Response to Hostage Takings and Armed Barricaded Persons
• Training Record-the SO
• Written Statements from WOs #1-7 and the SO
• WPS Procedures Manual-Police Dog Unit
• 911 Call Recording
• Police Radio Transmission Recordings
• WPS Query Location, and
• WPS Civilian Witness Statement taken 2017-02-05

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

• Medical documents for the Complainant
• Ambulance call report, and
• Photos of injuries to 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 348(1), Criminal Code - Breaking and entering with intent, committing offence or breaking out

348 (1) Every one who

1. breaks and enters a place with intent to commit an indictable offence therein
2. breaks and enters a place and commits an indictable offence therein, or
3. breaks out of a place after
   1. committing an indictable offence therein, or
   2. entering the place with intent to commit an indictable offence therein
   3. is guilty
4. if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
5. if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction

Section 349, Criminal Code - Being unlawfully in dwelling-house

349 (1) Every person who, without lawful excuse, the proof of which lies on that person, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

(2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein.

On February 5^th, 2017, a 911 call was received by the Windsor Police Service (WPS) at approximately 11:11 a.m., requesting police assistance as the caller advised that he had observed that “a guy just climbed in a window over on York Street. I don’t know if it’s a B and E (break and enter) or if he lives there, but he climbed in the window – a tall guy – he doesn’t look like the owner of the house … it was a taller fella, the guy who lives there is a shorter guy”. As a result, WO #1, WO #2, WO #5, and the SO, with his police service dog (PSD), were dispatched to the area and located the residence in the City of Windsor. Once on scene, the Complainant was located by the police service dog (PSD) while hiding in the attic and the dog engaged him, biting him on the left arm, after which he was arrested and transported to hospital, where he was treated for seven deep puncture wounds over the deltoid, biceps and triceps. He also had superficial claw marks on the right side of his head, just behind his ear.

The Complainant advised that he heard someone shout “Come out!” and he realized that the police were outside. The Complainant then hid in the attic and buried himself under the blown-in insulation. The Complainant advised that the dog then came up to the attic, with no leash, and latched onto the right side of his head, and then his left shoulder and bicep area. The SO then came up and restrained the dog by its collar, but let the dog bite him again.

During the course of this investigation, the only civilian witness located and interviewed was the Complainant himself, as no one else observed the interaction between himself, the PSD, and the police. Four WOs were interviewed and provided their notes for review, while an additional three officers provided their notes and all seven officers provided prepared statements. The SO declined to be interviewed, but provided both his notes and a prepared statement. The lead canine handler for the WPS also reviewed this incident, as he does all incidents where a PSD has been deployed and/or has bitten someone, and provided his input to SIU investigators. Investigators also had access to the 911 and police transmission recordings, as well as scene photos, and the medical records and photos of the Complainant’s injuries.

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.

The SO’s notes indicate that he and his PSD were dispatched on a break and enter call. He advised that the dog was being held on a 12 foot long leash. The notes indicate that the SO went to the window, where it was believed that the suspect had entered the house, and called “Windsor Police canine, show yourself – you’re under arrest”. He then observed a male at the window, who said, “who’s that” and the SO again responded that it was Windsor Police, that they were investigating a break and enter, that the Complainant was under arrest, and he should go to the front door to speak to the police. Instead, the Complainant first indicated that he had to put his pants on and then indicated that he had been about to take a shower. The SO then observed the Complainant run through the residence to the back of the house, and specifically noted that he was, in fact, already wearing pants.

The SO then heard items being moved or thrown around inside the house and he called again that he was the canine unit with Windsor Police and that the Complainant was under arrest and to come to the door. The Complainant did not respond.

WO #2 advised that when he heard banging from within the residence, and then total silence, he began to question whether this might actually be a home invasion robbery.

The SO then went to the rear of the house and continued to call out the same information and commands. This evidence is consistent as between all three police officers present, as well as the Complainant.

The SO, in his notes, indicated that he had grounds to believe that the Complainant had broken into the house and he was refusing to comply with police commands.

WO #1 advised that it was then decided, amongst all of the officers present, that they were going to enter the residence to apprehend the Complainant for break and enter and he, WO #1, breached the rear door.

The SO’s notes indicate that he then commanded the dog to bark, to compel the Complainant to show himself. Again, the Complainant did not respond. The SO then unleashed the dog and commanded him to search the main level and the basement, but no one was located. This evidence is also consistent as between all of the police officers present.

The SO then observed insulation particles on the floor of the bathroom directly below the hatch to the attic and he used his baton to lift up the hatch and again yelled out identifying himself as the canine unit and that the male was under arrest and to show himself. There was no response or movement from the attic.

WO #1 advised that it was decided that it would be unsafe to blindly send a police officer into the attic to search for the intruder and that the safest method would be to send the dog into the attic, after first giving the Complainant additional opportunities to surrender by calling up to him, without any response.

The SO’s notes indicate that he then re-attached the dog to his leash, and lifted him into the attic. This is consistent with the evidence from WO #2, while WO #1 indicated that he believed the dog was hoisted into the attic without his leash. The SO reasoned that it would have been unsafe for an officer to enter the attic, since the Complainant was actively concealing himself and it was not known if the Complainant had a weapon.

The SO’s notes indicate that he continued to yell into the attic, while commanding the dog to search. The SO held onto the end of the leash while the dog was above him in the attic searching. WO #1 advised that approximately 30 to 45 seconds passed with the dog in the attic, before he began to bark. WO #1 concluded that the dog had made contact with the intruder and the SO and WO #2 then went up into the attic.

WO #2 advised that he heard the dog barking about 90 seconds after he had entered the attic and he also heard the sound of a muffled voice. WO #2 then pushed the SO up into the attic and he heard him say “you’re under arrest for break and enter, place your hands behind your back,” following which he heard a struggle in the attic and he hoisted himself up to assist the SO. WO #2 advised that once in the attic, he observed that the SO had his dog contained and he was telling the Complainant to stay down. The Complainant was then handcuffed without incident.

The SO indicated that when the dog began to bark, the SO stuck his head up into the attic and saw the Complainant hiding in the insulation, with the dog next to him, barking. The SO again yelled out that he was the canine unit and to show himself. When the Complainant still did not move, the SO commanded the dog to apprehend (bite) the Complainant.

The SO indicated in his notes that he commanded the dog to bite because the Complainant was concealing his hands, and it was still unknown whether or not he was armed or had access to any weapons. The dog bit the Complainant’s left bicep area and the Complainant then screamed to get the dog off of him. The Complainant was then instructed to crawl toward the SO and lie face down while showing his hands, which the Complainant then did. Once it was clear that the Complainant was not armed, the SO entered the attic and secured the Complainant and told him again that he was under arrest for break and enter. WO #2 then also came up to assist and handcuffed the Complainant behind his back while the SO gave the command for the dog to release the Complainant.

WO #1 advised that as the SO and WO #2 were bringing the Complainant down from the attic, the Complainant said, “it’s my fault, I shouldn’t have hid.”

On this evidence, the only two discrepancies that I can see between the evidence of the Complainant and the SO is that the Complainant believed that the dog was not on leash when he came into the attic, while the SO indicated that he was, and the Complainant’s assertion that he was bitten twice by the dog.

On the basis that the Complainant was hiding under the insulation, that the leash was very long, and that the SO was holding the other end from below, outside of the view of the Complainant, I can easily understand how the Complainant may have believed that the dog was off leash. On the basis, however, that both the SO and WO #2 indicated that the dog was on leash when he entered the attic, while both WO #1 and the Complainant indicated that he was not, I am unable to determine definitively whether or not the dog was leashed when he entered the attic. I find, however, that this detail is not germane to whether or not I have reasonable grounds to believe that the SO resorted to an excessive use of force in these circumstances, since, in either scenario, the SO would not have been in a position to control the dog by use of the leash in any event, while he was standing down below, holding onto the leash, without the ability to see what the dog may have been doing in the attic above.

The second discrepancy, that being the assertion by the Complainant that the police dog had initially latched onto his head and that, once the SO entered the attic, he then allowed the dog to bite him again, I find does not coincide with the medical evidence. The medical evidence clearly indicates that the injuries to the Complainant’s head were superficial claw marks, and not consistent with a bite. I suspect that the claw marks were the dog digging in the insulation where he sensed the presence of the Complainant, with his claws making contact with the Complainant’s head; these marks are totally inconsistent with a bite.

The only bite mark found was the seven deep puncture wounds to the Complainant’s upper left arm, which are consistent with one bite and seven teeth entering his flesh. I find that the medical evidence confirms the evidence of the SO that the dog only bit the Complainant once, that being after the dog had located the Complainant and was barking and the SO had poked his head up into the attic and again issued several warnings to the Complainant to show his hands. When the Complainant continued to refuse to do so, the SO directed the dog to apprehend the Complainant, at which point the dog bit into his upper arm and held him until he was released by the SO, which only occurred after the SO was able to hoist himself into the attic and determine that the Complainant did not have a weapon in his hands or accessible to him.

On an assessment of all of the evidence, which I have already previously indicated differs in only minor aspects, I further do not accept that the PSD entered the attic and immediately latched onto the Complainant, as contended by him, on the basis that all three officers who were standing below heard the dog barking for a period of time before there was silence. Clearly, the dog could not have been barking if he had his teeth in the Complainant’s arm, and, once he did latch onto the Complainant, there would have been silence, as indicated by the officers.

I accept on all of the evidence that 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 also 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, if he did not come down from the attic, the dog would come up. It is clear on the Complainant’s own evidence, that despite this knowledge, he was willing to roll the dice on the expectation that the dog would not be able to come up into the attic and he did not foresee that the police would hoist the dog up.

I have also considered the opinion of CW #8, the lead canine handler and trainer for the WPS. CW #8 reviews all instances where a PSD is deployed and/or bites and he reviewed this particular incident. CW #8, 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 advised that he had no concerns with either the PSD deployment or the actions of the SO. 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 in the 911 call, the police officers had reasonable grounds to believe that a break and enter, contrary to s. 348 (1) of the Criminal Code, was in progress and they were acting lawfully in investigating that allegation. Furthermore, I have no doubt that the actions of the Complainant in refusing to speak with police, upon their repeated requests, but instead hiding in the attic, would have strengthened the officers’ beliefs that the Complainant was committing a criminal offence. As such, it is clear on these facts that police were acting within their lawful duties at the time that 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 as such. While clearly the PSD was an extension of the police officers, and was in effect a use of force option, in this factual situation, where the Complainant was suspected of having unlawfully entered the residence 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 without any information as to whether or not the Complainant may have been armed with a weapon, I agree with the assessment as indicated by WO #1 that it would be unsafe to blindly send a police officer into the attic to search for the intruder and that it would be safer to send the dog into the attic, after first giving the Complainant ample warnings and opportunities to surrender. While I cannot agree with the police officers’ assessment that the Complainant’s hiding in the attic required immediate action on their part, and would rather have seen them call in for a supervisor, I do not associate their conduct with any criminal act or intent.

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 continued to refuse to come out and show his hands, he responded to the SO’s direction to engage with the Complainant and he bit him. Until the dog 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 an unknown, unresponsive, and possibly armed intruder. The PSD apprehended the Complainant as he was both trained and directed to do, and held unto 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 PSD 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 explained himself to police, rather than hiding under the insulation in the attic.

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 further actions of the Complainant in refusing to come out and show his hands, which forced the SO to deploy his PSD and thereby cause 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 police would simply give up and leave. I accept on the Complainant’s own evidence 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 investigate the information they had been provided about a break and enter into a residence that was in progress. Had the Complainant simply come forward and identified himself and the homeowner, who could then confirm that he was lawfully in the residence, there would have been no need to deploy the PSD. 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.

In conclusion, 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 in the circumstances, and therefore do not have reasonable grounds to believe that he committed any criminal offence and no charges will issue.

Date: March 20, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit