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 29-year-old man during his arrest on April 20, 2017.

Notification of the SIU

On April 20, 2017, at 5:55 a.m., the Ontario Provincial Police (OPP) notified the SIU that a man had been bitten by a police dog during an arrest in the Strathroy area overnight.

The OPP reported that at 2:20 a.m., police were investigating a theft from a Hydro facility and the Canine (K9) officer [the Subject Officer (SO)] tracked a suspect to a nearby address in Strathroy. He was accompanied by Witness Officer (WO) #1. At 4:14 a.m., the Complainant was arrested. During the arrest he was bitten on the head and face by the police dog. He was treated at hospital for the lacerations and returned to Strathroy OPP Detachment and was being held for a bail hearing.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes and photography.

Complainant

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

Civilian witnesses

None

Police employee witnesses

PEW Not interviewed, but prepared statement and notes received and reviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Not interviewed, but notes received and reviewed

WO #6 Not interviewed, but prepared statement and notes received and reviewed

WO #7 Not interviewed, but notes received and reviewed

WO #8 Not interviewed, but prepared statement received and reviewed

WO #9 Not interviewed, but notes received and reviewed

WO #10 Not interviewed, but notes received and reviewed

Subject officers

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

During the early morning hours of April 20, 2017, the OPP received a call to attend at the Hydro One facility in Strathroy for a break and enter in progress. Hydro One security reported that a man had been captured on surveillance video surreptitiously entering the fenced compound which contained numerous copper wire coils (which were often the target of thefts).

OPP officers searched the facility upon arrival, but the Complainant had already fled the premises. The Complainant’s vehicle, however, was located in a farmer’s lane just north of the Hydro facility and some copper wiring was located nearby. The K9 Unit and the Emergency Response Team (ERT) were called to attend and assist in searching the area around the facility.

The SO and his Police Service Dog (PSD) arrived on scene, and tracked the Complainant to a nearby tree line at the edge of a farmer’s field. The PSD grabbed and held the Complainant by his head until he was ordered to release by the SO. The Complainant then attempted to flee again but was grounded by WO #1.

The Complainant had visible injuries to his head and face, and was transported by ambulance to the hospital. He received stitches and staples for several dog bites to the back of his head, his ear and chin.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP Middlesex Detachment (Strathroy):

• Arrest Report
• Communications recordings
• OPP scene photos
• Event Detail Report
• General Occurrence Reports (Drug Offences and Police Assistance)
• Global Positioning System (GPS) downloads
• Notes of WO #1, WO #2, WO #4, WO #5, WO #6, WO #7, WO #9 and WO #10
• Notes of the PEW
• Occurrence reports
• Operational Deployments with PSD
• OPP Canine Standard Operating Procedures Manual - Canine Unit
• OPP Canine Unit Activity Report
• OPP Curriculum Vitae – the SO
• OPP Police Orders - Canine Services
• Supplementary Occurrence Report
• Training Records (Canine Unit) – the SO (February – October 2016)
• Training Record (General Service Dog Basic Training Course) - PSD
• Training Record (Obedience) - PSD
• Training Record (Police Service Dog Apprehension) - PSD
• Training Record (Refresher Training 2) - PSD
• Training Record (Refresher Training) - PSD
• Training Record (Tracking 1) - PSD
• Training Record (Tracking 2) - PSD, and
• Prepared statements for the PEW, WO #6 and WO #8

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.

Sections 219 and 221, Criminal Code - Criminal negligence

219 (1) Every one is criminally negligent who

1. in doing anything, or
2. in omitting to do anything that it is his duty to do

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

On April 20^th, 2017, the OPP Middlesex Detachment (Strathroy) were contacted and advised that a break, enter and theft was in progress at the Hydro One facility in the former Town of Strathroy in the Municipality of Strathroy-Caradoc. As a result, WO #1 and WO #5 were dispatched to the scene, followed by the SO and his service dog. Subsequently, the Complainant was located hiding in the underbrush outside of the Hydro One compound and was arrested and taken to hospital where he was treated for a dog bite to the head.

The Complainant, in his statement to SIU investigators, acknowledged that he had attended at the Hydro One facility in order to steal copper wire from the facility. He alleged, however, that while hiding in the nearby field, the SO’s service dog was off his leash and suddenly, without warning, latched onto the right side of his jawbone behind his ear. He was then thrown to the ground by a police officer who told him not to move.

During the course of the SIU investigation, four police witnesses were interviewed. The SO declined to make himself available, but did provide his memorandum book notes for review. There were no civilian witnesses to the incident that led to the Complainant’s injuries. There is no dispute that the police service dog bit the Complainant and caused his injury.

WO #1, in his statement, advised that he and his partner, WO #5, responded to the call at 2:21 a.m. and attended at the Hydro One facility. The information in their possession at the time was that a man had been captured on surveillance video surreptitiously entering the fenced compound where the copper wire coils were located. WO #1 arrived at the scene at 2:35 a.m. and was updated that the culprit had fled the compound just as he was arriving. Other officers arrived shortly thereafter and WO #1 directed them to contain the perimeter around the compound. After the Complainant’s motor vehicle was located, along with some stolen copper wiring, WO #1 requested that the K9 Unit and the ERT attend to search the area.

At 3:47 a.m., the SO and his service dog arrived. The dog was secured with a chest harness which was attached to a long leash. WO #1 advised that he assisted the SO as the dog began his track from the hole in the fence from which the Complainant had entered and exited the compound. The dog tracked north, cutting from east to west, without picking up a scent. WO #1 advised that as the dog began to track in the area of a narrow copse of pine trees which separated the field and the roadway, he observed WO #2 and WO #4 from the OPP Emergency Response Team (ERT) arrive and begin to put on their equipment. WO #1 was some two to three metres behind and to the right of the SO, with the dog another 15 feet [4.57 metres] in front of the SO, when WO#1 observed the service dog to suddenly bolt to the tree line at the edge of the field at which point he heard a scream. WO #1 immediately entered the tree line after the SO and the service dog; he noticed that at no time did the SO release the dog’s leash while he followed him. When WO #1 came upon the Complainant, he observed that the SO had already pulled the dog away from the Complainant and was yelling “Don’t run or I will let the dog, stop resisting!” WO #1 estimated, approximately two seconds had elapsed between the dog bolting into the foliage and the SO issuing the command to the Complainant. WO #1 then observed the Complainant get to his feet and start to run, at which point WO #1 lunged forward, grabbed the Complainant and they both fell to the ground. WO #2 then arrived and assisted WO #1 and the Complainant was arrested. WO #1 indicated that while struggling with the Complainant, his uniform was torn and he bruised his knee, while the Complainant had blood on his right cheek, ear, chin and the right side of the back of his head.

The evidence of WO #1 is corroborated by that of WO #2, who advised that after having arrived at the scene, he was signaled by the use of a flashlight indicating the location of the K9 Unit following which, just as he closed the rear hatch of his police vehicle, he heard a voice shouting, “Police, don’t move” and then heard an officer yell “We have him down here.” By the time that WO #2 made his way to the bush area next to the field, the SO and his dog had already left the area and he observed WO #1 holding the Complainant on the ground. The Complainant complained to him that his head hurt as a result of a dog bite.

WO #4’s evidence is also consistent with that of WO #1, in that he indicated that upon arrival at the facility, he was signaled by the SO with a flash of his flashlight to indicate his location in the field. Just as WO #4 was putting on his gear, he heard the SO yell “Police, don’t move,” which was immediately followed by a scream. He then heard over the radio “We got him here.”

In the notebook entries of the SO, he indicated that he and his service dog were searching the area and that the dog was on a 20 foot [6.1 metre] tracking lead and was working well and steady. The notes read that as they approached the end of a line of trees, the dog had his head up and appeared to lose the track and he was not moving forward. They then moved around to the west side of the tree line moving southbound, where he observed that the ERT members were on scene and he advised them of his location. He then observed the dog to cut left and enter into a thickly treed area, when he heard a male voice screaming. He went into the trees yelling “Police!” and observed the male and that the dog had a grip on the male’s upper shoulder/head area. The SO immediately conducted the “lift off procedure”, commanding the dog with the word used to disengage, at which point the dog immediately released his grip “cleanly and right away”. He observed the male then move away from them quickly to run, and he advised him to stop. WO #1 then entered the area and took control of the male, while the SO and his service dog moved away from the arrest and left the area.

In the Complainant’s medical records, he advised the medical staff that the police service dog had made contact with his right side chin and behind his right ear. He did not indicate that there was more than one bite. He also had abrasions below his right ear lobe, which were cleaned. He apparently received four stitches to his chin, two in front of his ear and five staples at the rear of his head, was given an antibiotic, and was discharged.

On the evidence, it is clear that the SO at no time commanded his service dog to engage with the Complainant, but rather that the dog was to be employed to search for the Complainant when the Complainant, on his own admission, popped up out of the grass and brush, and was immediately latched onto by the dog. The Complainant acknowledged that the dog latched onto him without warning. Clearly, had the SO commanded or directed the dog to bite the Complainant, he would have heard that and taken it as a warning that he was at risk. On the evidence of both WO #1 and the Complainant, I find that the service dog was searching the area when the Complainant suddenly popped up and the dog, of his own accord, latched onto him as he had been extensively trained to do. Where, as here, it is clear that the SO had no way of knowing that the Complainant was even present, much less exactly where he might be, it would have been nonsensical for the SO to constantly be calling out that there was a police dog in the area, which would certainly have warned any culprit of the exact location of police at all times, thereby ensuring his successful escape from apprehension. Further, where police policy dictates that a suspect should be warned before the police service dog is commanded to engage, in this particular case, where no such command was ever issued, I cannot see that policy to be relevant. I do accept, however, the evidence of the SO that as soon as his dog bolted into the evergreen trees and he heard a male screaming, he immediately followed yelling out “police”. I find this evidence is consistent with the evidence of WO #2 and WO #4, who both heard an officer yelling “Police don’t move,” which WO #4 indicated he heard simultaneously with a scream and then the radio transmission that they had the suspect.

Furthermore, while the Complainant, whose head was inside of the PSD’s mouth at the time, may have perceived that the dog was latched onto him for a lengthy period, I accept on the evidence of all of the police officers who were in the area that the entire interaction was in fact a mere number of seconds. WO #1 specifically indicated that from the time that the dog bolted into the foliage where the Complainant had secreted himself, which was immediately followed by the scream from the Complainant which I presume was the indication that the dog had latched onto him, until the time that WO #1 observed the Complainant after he had already been released by the dog, only two seconds had passed. This is further supported by the notebook entries of the SO wherein he indicated that as soon as he observed the dog with a grip on the male he “immediately conducted lift off procedure while using the handler’s disengage expression and [the dog] released grip cleanly and right away.” This evidence also appears to be consistent with the evidence of both WO #2 and WO #4.

With respect to the Complainant’s belief that the dog was off leash at the time that he latched onto him, I find that there is no evidence to support this belief. The Complainant himself, who was face forward down in the bush, could not possibly have seen whether or not the dog was on leash or not from his position, and both WO #1 and the SO clearly indicated that the dog was on leash for the entire time that he was at the scene and that the SO never released him from his leash and harness. Moreover, it is difficult to imagine that the SO could have quickly disengaged the dog if the dog had not been attached to a leash and harness.

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 from the information received from security personnel at Hydro One that someone had just broken into their premises and was stealing their copper wiring.

Furthermore, the Complainant was then seen to leave the compound by way of the hole in the fence and his motor vehicle and some stolen copper tubing were found in the area. As such, the police had ample reasonable grounds to believe that a break, enter and theft was in progress and that the culprit was somewhere in close proximity to the Hydro One facility and police were lawfully entitled to search for, and apprehend, that culprit. On that basis, the search for, and apprehension of, the Complainant was lawful in the circumstances.

With respect to the amount of force used by officers in their attempts to locate and apprehend the Complainant, while the utilization of a police service dog is considered a less lethal use of force option, I do not find that the SO was using him as a use of force option at all at the time in question. On all of the evidence, I find that the dog was being used only to search for the Break and Enter suspect at the time that the Complainant suddenly popped up out of the undergrowth and appeared to have surprised the dog, who then immediately latched onto the Complainant without any command or direction from the SO. I accept on the evidence of WO #1 and the notes of the SO, and as supported by the evidence of WO #2 and WO #4, that the SO immediately upon arrival then directed the dog to disengage. Although the SO may have resorted to commanding the dog to engage had the Complainant continued to attempt to evade police or resisted, it is clear that at the time when the dog did engage, the SO had not issued any commands to do so and the dog acted on his own in what one can only assume he perceived as a dangerous situation or out of surprise. In fact, when the Complainant again attempted to run, WO #1 took him to the ground and the dog was not employed to subdue the Complainant. I further find on the evidence of the Complainant, and as confirmed by the nature of the injury to his head and jaw, and consistent with the evidence of WO #1 and the SO as to the extremely brief passage of time between when the Complainant screamed and the SO commanded the dog to disengage with the Complainant, that the dog only latched onto the Complainant the one time and continued to hold on until he was commanded almost immediately to disengage[1] and at no time was the dog directed to bite the Complainant or to engage in any fashion. On these facts, I find that the SO did not in fact use any amount of force to apprehend the Complainant. The only force being used was that of WO #1, when he took the Complainant to the ground as he attempted to run away.

According to the training received by police service dogs used by the OPP, once a dog has engaged or bitten a suspect, he is to continue holding until the suspect is controlled. Once controlled, the disengage command should see the dog releasing the suspect. The training records of this particular police service dog indicate that he has been extensively trained and had passed all requirements for a PSD. In this particular case, the dog did as he had been trained to do. While the dog was not directed to engage, clearly a dog can and will react to what it perceives to be a dangerous situation. In this particular case, the Complainant popped out of the undergrowth in the dark in front of the service dog and the dog reacted. Thereafter, he followed procedures and commands as he had been trained to do.

The question to be determined here is whether or not there are reasonable grounds to believe that the SO committed a criminal offence, specifically, whether or not his actions with respect to his dealings with his service dog amounted to criminal negligence contrary to s.221 of the Criminal Code, and he did thereby cause bodily harm to the Complainant. The decision of the Ontario Court of Appeal in R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. CA), defines the offence of criminal negligence as requiring “a marked and substantial departure from the standard of a reasonable person in circumstances” where the accused “showed a reckless disregard for the lives and safety of others”.

In this particular case, the SO was using his service dog to track a suspect in a break, enter and theft and he had him on a 20 foot [6.1 metre] tracking lead. The dog had undergone extensive training and his records indicate that he had excelled as a PSD and the SO was entitled to rely on that training in the belief that the dog would act accordingly. The dog had been trained to track suspects and to “grip and hold” whereby he would use his mouth to grip and hold a suspect until called off by the handler. In this particular case, despite not being commanded to engage, the dog acted in accordance with his training and gripped and held the Complainant until commanded by the SO to release. The evidence establishes that the SO immediately chased after his service dog as soon as he bolted into the evergreens and immediately commanded the dog to disengage, which he then did. On the evidence of WO #1, the dog had latched onto the Complainant for no more than two seconds. Even had the SO directed the dog to engage with the Complainant, I cannot find this to have been an excessive use of force. Police dogs are trained and used for this very purpose. The Complainant chose to run from police and secrete himself in the undergrowth and it was the dog’s job to track and grip and hold the Complainant for his handler, which he did. While normally a warning is shouted out before a service dog is commanded to engage, here, where the dog picked up the track and then was likely startled when the Complainant’s head and upper body popped out of the undergrowth, it left little time for a shouted warning, although the SO was heard to shout out the police warning almost immediately after he saw that the Complainant had been located.

In conclusion, although the utilization of a PSD is a use of force option, in this instance it appears that it was not purposefully used as such. I find that the SO did not engage the dog to attack the Complainant and that the dog simply responded to what it perceived as a dangerous situation. On this record, I am satisfied on reasonable grounds that the SO employed the PSD to track the Complainant and that when the dog, on his own initiative, probably because he was startled, latched onto the Complainant, the SO commanded him to release almost immediately. Furthermore, I find that the injury caused by the dog was not the result of criminal negligence on the part of the SO as the Complainant’s popping out of the undergrowth and the dog’s reaction were totally unforeseeable and that, once the dog engaged, the SO acted immediately to release the dog’s grip. In all, the evidence indicates that the service dog latched onto the Complainant’s head for approximately two seconds and did not bite again after the initial “grip and hold.” On that basis, I am unable to find the actions of the SO either constituted “a marked and substantial departure from the standard of a reasonable person in the circumstances” or that he showed “a reckless disregard for the lives and safety of others”. I am therefore satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges.

Date: February 22, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] And in fact, according to WO #1, the dog was pulled away. [Back to text]