Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the serious injury of a 55-year-old man (the “Complainant”).

Notification of the SIU [1]

The Team

The Scene

Video/Audio/Photographic Evidence [2]

Still Images – Hydro One

The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.

In the early morning of November 18, 2023, LPS officers were dispatched to the Hydro One facility at 935 Power Street, London. A security company monitoring the site via live camera feed had called police to report a break and enter in progress by two males.

The SO, a police dog handler, arrived on scene with his police service dog – PSD. Accompanied by WO #1, the SO embarked on a track for the males. After some time, the PSD picked up a scent in an area of thick brush off a pathway that travelled across the south side of the power station. The SO released the dog’s leash and allowed the PSD greater freedom of movement. Within moments, yelling was heard.

The yelling came from the Complainant. The PSD had latched onto the Complainant’s head. The SO arrived and told the Complainant to stop punching the dog before delivering a kick to his midsection. WO #1 followed seconds behind the SO and took control of the Complainant’s right hand, at which point the SO released the dog’s bite. Several more seconds elapsed, and the PSD latched onto the Complainant’s left hand. WO #1 took control of the left hand, and the dog again released its grip. The Complainant was subsequently handcuffed and escorted to a cruiser.

An ambulance attended and transported the Complainant to hospital where he was diagnosed with multiple puncture wounds of the left hand, and lacerations to the back and right sides of the head.

Section 25(1), Criminal Code -- Protection of Persons Acting Under Authority

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

Sections 219 and 221, Criminal Code -- Criminal Negligence Causing Bodily Harm

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or 

(b) an offence punishable on summary conviction.

The Complainant was seriously injured in the course of his arrest by LPS officers on November 18, 2023. The SIU was notified of the incident and initiated an investigation naming the SO the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injuries.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.

I am satisfied that the SO was seeking to lawfully arrest the Complainant at the time of the events in question. The Complainant was in the area of the reported break and enter and had secreted himself in nearby brush with the arrival of the police, factors that coalesced to provide the officer a lawful basis for the Complainant’s arrest.

I am also satisfied that the use of the dog in the Complainant’s apprehension was legally justified. The suspects in the break and enter had fled the scene of the crime by the time of the officers’ arrival. However, the police had established a perimeter around the area and it was reasonable to assume one or both of them were still in the vicinity. In the circumstances, it made sense to deploy a police dog to assist in the search, particularly as it was dark out and the search would involve areas of brush. It also made sense to let the dog loose when the SO did knowing, as the officer did, that the PSD was trained to bite and hold the Complainant if he found him. During the search, the SO had come across some discarded insulated rubber from copper wire, suggesting the suspects had stolen copper wire and were equipped with a knife or sharp tool to strip the wire. With the risk of a weapon being brought to bear, it was reasonable for the officer to first distract and detain the Complainant with a dog before physically engaging with him. [3]

The fact that the Complainant sustained multiple and serious dog bite injuries raises another issue of potential criminal liability, and that is whether the bodily harm he suffered was the result of criminal negligence on the part of the SO contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s injuries. In my view, there was not.

The investigation learned that the PSD was trained to bite at moving limbs and not the head, and yet, the Complainant was repeatedly bit in the head. The evidence also suggests that the PSD might have bit the Complainant’s left hand without any express instruction from the SO. The fact that the Complainant seems to have punched the dog even after being told to refrain by the SO is perhaps some reason why the dog acted as it did. Beyond that, allowance must be made for the possibility that sentient creatures may not always conform with their training in dynamic situations. The real issues are (1) whether there was any reason for the SO to believe that the dog’s conduct would stray significantly from its training and (2) whether the officer maintained reasonable control of the dog throughout its engagement with the Complainant. Having reviewed the dog’s training records, I would answer the first question in the negative. There is ostensibly nothing in the PSD’s history to suggest he was a problem dog. With respect to the second issue, it would not appear that the fact that the SO might have failed to prevent his dog from biting the Complainant’s left hand at a time when there was no reason for the dog’s intervention was anything more than a momentary lapse of attention. In the circumstances, I am unable to reasonable conclude that the SO’s indiscretion, if it be such, amounted to a marked and substantial departure from a reasonable level of care.

For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO in this case. The file is closed.


Date: March 9, 2024

Electronically approved by

Joseph Martino
Director
Special Investigations Unit