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 31-year-old man on January 12, 2017, during the execution of a search warrant on his home.

Notification of the SIU

On January 12, 2017 at 10:30 a.m., the Halton Regional Police Service (HRPS) notified the SIU about a custody injury, which occurred on January 12, 2017 at 1:35 a.m. when the HRPS Tactical Rescue Unit (TRU), executed a search warrant at a residence in Milton.

The HRPS reported that the TRU deployed a distractionary device (DD) into the residence and the home owner, the Complainant, complained that he was unable to hear out of his left ear. The Complainant was taken to the hospital where he was diagnosed with hearing loss.

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:

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

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Police Employee Witness

PEW Not interviewed, but notes received and reviewed[1]

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Not interviewed, but notes received and reviewed[2]

WO #7 Interviewed

WO #8 Not interviewed, but notes received and reviewed[3]

WO #9 Not interviewed, but notes received and reviewed[4]

WO #10 Interviewed

WO #11 Not interviewed, but notes received and reviewed[5]

Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right.

The Scene

The scene was a residence in Milton. The residence was a two-level townhouse, which faced north, and was attached to other residences on each side. The front entrance was a two-part door and the west side of the door had visible damage to the lower half of the door.

At the south side or rear of the residence a black irregular shaped, circular pattern was observed on the east-side sliding glass, patio door. This door was in the dining area and led to a walk-out wooden deck area. The black pattern was on the exterior side of the sliding glass door and there was a yellow-brown burn mark on the trim edge of the sliding door. The deck and grassy area of the back garden was searched for spent cartridges and none were found. Information was later received that the HRPS was in possession of the expended DD. The DD was deployed from the rear fence and that area was searched for the safety pin and lever. A black handled lever was found resting on the soil and a small sticker on the flat end of the lever indicated MFG 201. The safety pin for the DD was never found.

Physical Evidence

The SIU attended the HRPS headquarters and received a sealed property container which contained a spent DD.

Members of TRU employ diversions as part of dynamic entries and DD’s create a diversion. The advantage of using a DD is that fear has a systemic effect over most individuals. The DD used by the HRPS TRU is the CTS 7290 Flash Bang. Light from a DD is rated at six to eight million candela. The light bleaches the retina and causes constriction of the pupil for up to two minutes. Normal vision is restored between ten to 30 minutes. The sound from a DD at five feet (1.52 metres) is rated at 175 decibels. The DD has a standard pull ring safety clip, which has to be turned clockwise to release before the ring is pulled. The use of a DD in an exterior environment can give distraction near the entry point or distraction opposite the entry point. An example would be a doorway located in the opposite direction to the point of entry.

Video/Audio/Photographic Evidence

Photographs

The Complainant was photographed while in custody because of complaints about injuries including loss of hearing in his left ear, a small cut to his left wrist, and burns on his left forearm. The photos showed no visible injuries to his head or facial area, but showed that the hair on his left forearm had been singed.

Custody Video Report

At 2:12:29 a.m., January 12, 2017, the Complainant was brought into the booking hall by a non-designated officer. There was no sound to the recording. The Complainant held his left forearm and looked at it. He kept touching his left ear with his right hand and then he looked at the fingers he used to touch his ear. He sat and held his left ear with his left hand. He went through the booking process and was incarcerated. At 6:29:28 a.m., the Complainant exited the booking hall and was placed in the back seat of a police cruiser.

HRPS Video Interview of the Complainant

At 4:55:24 a.m., January 12, 2017, the Complainant was interviewed by a non-designated officer whose name was not known. The charges were read. The interviewing officer outlined the investigation to the Complainant. At 5:17:35 a.m., the interview finished. At no point did the Complainant complain about pain in his ear and he never showed that he was in discomfort. He never complained about the entry or being injured and there was no discussion about the entry, or the use of a DD.

Communications Recordings

The radio transmissions started at 1:03 a.m., January 12, 2017, and finished at 2:04 a.m. There was no time stamp for the transmissions and the times listed came from information obtained during the investigation. WO #1 advised that nothing had been seen or heard at the residence. The target’s bedroom was above the garage at the front of the residence and when the light was on it was believed that he was trafficking. At 1:31 a.m., WO #7 (COMMAND) gave permission to WO #1 to move and he turned over compromised authority and control to WO #1.

At 1:34 a.m., WO #1 advised ALPHA (front door team), CHARLIE (rear containment), and K9 to move into position. WO #1 advised that there were lights on in the target’s second floor bedroom. He voiced code words which signaled the entry to commence. WO #3 at the rear advised that there was movement at the rear and something had been thrown to the rear yard of the residence to the south. WO #2 and WO #4 were at the rear door as were the SO and WO #3. WO #1 called for a secondary clearance of the residence and then he transmitted that secondary clearance was complete and he asked for Criminal Investigation Bureau (CIB) investigators to come to the front so that the target and residence could be turned over to them.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HRPS

• Radio Communications
• Video recordings from the booking area, sallyport and cell
• Arrest Report
• Crown Case Synopsis
• Directive - Tactical Rescue Unit
• Directive - Search of Premises and Vehicles
• Emails from HRPS re Distractionary Device Training
• Event Chronology
• Event Information
• General Occurrence Report
• HRPS Operational Plan
• HRPS Medical Incident Report
• HRPS Operations Manual
• HRPS Tactical Rescue Unit Operations Manual
• HRPS TRU Powerpoint Training on Distraction Devices
• Intergraph Computer Aided Dispatch (ICAD) Unit History
• Introduction to Chemical Munitions - Lesson Plan
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9, WO #10 and WO #11
• Notes of the PEW
• Occurrence Details
• Occurrence Summary
• Prisoner Custody Record
• Prisoner Property Record
• Peel Regional Police Course Training Standards Accreditation
• Photos of the scene taken during the execution of the Search Warrant
• Supplementary Occurrence Report
• Tele-warrant to Search
• Training Record – the SO
• TRU Training Record Involving Distractionary Devices
• Video statement of the Complainant, and
• Witness List - Part A and Part B

During the early morning hours of January 12, 2017, members of the HRPS TRU attended at the Complainant’s residence to execute a search warrant under the Controlled Drugs and Substances Act (CDSA). The plan was to do an unannounced, forced entry through the residence’s front door, immediately followed by the deployment of a DD near the rear door as a distractionary measure, to allow the officers to safely enter the residence.

The SO was in the rear yard of a neighbouring property, awaiting the signal to deploy the DD. He did not have a view of the Complainant’s rear door at the time. The house was in darkness, except for a light from a second story bedroom. Unknown to the SO, the Complainant had exited the rear door and was on his back deck when the SO threw the DD towards the rear door.

The DD detonated beside the Complainant, burning the hairs on the Complainant’s left forearm. The sound of the DD exploding caused the Complainant to have some hearing loss in his left ear. The Complainant was later taken to the hospital where he was diagnosed with a perforated tympanic membrane in his left ear (ruptured ear drum).

On January 11, 2017, evidence was obtained which provided the HRPS with reasonable grounds to believe that the Complainant was involved in trafficking in narcotics contrary to the CDSA. Based on the information in their possession, police applied for and were granted a search warrant into the residence of the Complainant to search for illegal narcotics. Police categorized the search as a high risk, Level Three search operation. A briefing was held with the HRPS TRU and a plan for a “no knock, hard entry” was relayed to the police officers. A “no knock, hard entry” involves police officers breaching the door to a residence without announcing themselves first, in order to prevent the destruction of evidence. This type of entry is most commonly used in high risk situations and/or where drugs, which can easily be disposed of, are the subject of the search.

WO #1, supervisor of the TRU, formulated a plan wherein the front door would be forcefully breached with the use of a battering ram while police officers at the rear of the residence were to deploy a DD in close proximity to a rear exit door contemporaneous to the breaching of the front door. This plan was approved by the Critical Incident Commander, WO #7. The purpose of the deployment of the DD at the rear door was to draw the occupants’ attention away from the front door and thereby allow police at the front door safe entry into the residence. The use of the DD was not meant to cause injury to any occupant. All police officers involved in the search were made aware that the SO and WO #3 had been detailed to the rear of the residence and that the SO was to deploy the DD as soon as the front door was breached; this was an approved procedure for this type of entry and search and one which the TRU routinely employed in order to ensure the safety of its police officers during high risk entries.

Following the briefing, WO #7 turned over authority and control of the operation to WO #1 and everyone moved into place. The SO and WO #3 were situated in the rear yard of the townhouse adjacent to the Complainant’s residence, as the Complainant’s residence was surrounded by a 2.13 metre fence preventing entry. WO #3 was situated on a ladder propped up against the fence and was able to see over the fence into the backyard of the Complainant’s residence; the SO was somewhere to his right, on the ground, and did not have a view into the Complainant’s backyard.

In order to deploy the DD used by the HRPS, the standard pull ring safety clip has to be turned clockwise to release the ring, which can then be pulled out, activating the device. Once the device is activated, there is a one and one half second delay before the DD will explode.

At 1:34 a.m., WO #1 voiced the code word order which was the signal to commence the entry and the front door was breached. Following this initial radio communication which set everything in motion, there were no further radio communications advising police officers when the door was breached or when the DD should be deployed.

Although the SO did not provide a statement to investigators, as is his legal right, according to WO #3, who was in the adjacent backyard with the SO, it was raining and very dark in the backyard. WO #3, who was on the third rung of the ladder, was able to see into the Complainant’s backyard with the assistance of the flashlight which was appended to his C8 rifle. The SO, who was standing somewhere on the ground below with the DD, could not see over the fence and did not have that advantage.

According to WO #2, who breached the front door with a non-designated officer, as soon as the door was breached and WO #2 and the non-designated officer entered, he heard the DD being deployed to the rear of the house, as per the plan set out by WO #1 and approved by WO #7. Unfortunately, despite the detailed plan which the SO followed, there were a number of unforeseen developments which caused the Complainant to be injured. When the order was given to breach the door, the only light on in the house was in the second floor bedroom of the Complainant, the remainder of the house was in darkness. On this basis, I can infer that at the time the order was given, it would have been presumed that the Complainant was in his bedroom and not in the dark on the first floor going out onto the back deck. There is no evidence about whether or not the SO saw or heard WO #3 address the Complainant on the back deck before the front door was breached, as WO #3 was not aware of exactly where the SO was located in the neighbour’s yard, however, it is clear that as soon as the front door was breached, the SO turned the ring clip, withdrew the ring and threw the DD into the Complainant’s backyard and, one and one half seconds later, the DD deployed mid-air in the vicinity of the Complainant, who then suffered a ruptured ear drum.

The planning and execution of a dynamic entry is not an exact science and regardless of the amount of planning or the experience of the police officers involved, there will always be variables that are unforeseen and which may alter the events as planned. In this particular case, the SO followed the plan as set out; unfortunately, the Complainant exited his back door just prior to the dynamic entry and was on the back porch at the moment that the DD was deployed. The SO, due to circumstances beyond his control, was not in a position to see into the Complainant’s backyard and had to be guided in his actions by the sound of the front door being breached. Once the front door was breached, the SO was duty bound to follow the plan and deploy the DD in order to ensure the safety of his fellow police officers who were entering the residence from the front; in the absence of any knowledge of the Complainant being on the back porch, there was no reason for him not to do so. There is no evidence on this record that the SO knew of the whereabouts of the Complainant at the time that he launched the DD or that he was doing anything other than following the plan as had been set out by his superior officers. There is absolutely no evidence that the SO intended the DD to land anywhere near the Complainant and the injury to the Complainant was completely unforeseeable and the result of a series of unfortunate events that the SO was unaware of due to his location on the other side of a high fence in an adjoining yard.

While I find that the deployment of the DD was not meant as a use of force, but rather, as its name implies, as a distractionary device, I still find the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, relevant in this instance, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances.

On the basis of the foregoing, I find that the injury suffered by the Complainant was an unfortunate accident that was completely unforeseeable, that the DD was deployed without any intention on the part of the SO to use force against the Complainant and that there is no evidence that the SO was even aware of the presence of the Complainant. As such, I find that there is an absence of any reasonable grounds to believe that a criminal offence has been committed here and I am satisfied that there are no grounds for proceeding with charges in this case.

Date: November 2, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The PEW assisted WO #6 when transporting the Complainant to the hospital. [Back to text]
• 2) [2] WO #6 transported the Complainant to the hospital. [Back to text]
• 3) [3] WO #8 transported the Complainant from the hospital to the courthouse. [Back to text]
• 4) [4] WO #9 was second in command. [Back to text]
• 5) [5] WO #11 attended the hospital to check on the Complainant’s injury. [Back to text]