SIU Director’s Report - Case # 19-OOD-158
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Contents:
Mandate of the SIU
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.
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.
Information Restrictions
Freedom of Information and Protection of 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.
- 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.Mandate Engaged
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 death of newborn baby (the “Complainant”).
“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 death of newborn baby (the “Complainant”).
The Investigation
Notification of the SIU
On June 30, 2019, the Greater Sudbury Police Service (GSPS) reported an incident involving Civilian Witness (CW) #1. The GSPS advised that GSPS officers responded to a college residence in Sudbury, to assist KENTA-Indigenous Children’s Aid [1] on June 25, 2019. CW #1 was arrested for breach of the peace at 5:04 p.m. and became violent, resulting in her being grounded. She resisted arrest and was also charged with resist arrest. She was taken to hospital and released on a promise to appear. On June 30, 2019, CW #1 gave birth to a premature baby, who passed away. The Coroner advised that CW #1 gave birth at Health Science North (HSN) on June 30, at 10:30 a.m., and the baby passed away at 11:58 a.m. The Coroner advised that CW #1 disclosed to the local coroner that she was slammed to the ground and stepped on during her arrest. She linked the arrest to her baby’s premature birth. The Coroner outlined several medical issues during the pregnancy that CW #1 had faced and may also have played a role in the premature birth. The post-mortem was to be conducted at HSN.
The Team
Number of SIU Investigators assigned: 5 Complainant:
Newborn baby, deceasedCivilian Witnesses
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
Witness Officers
WO #1 Interviewed WO #2 Interviewed
Subject Officers
SO #1 Declined interview and to provide notes, as is the subject officer’s legal rightSO #2 Declined interview and to provide notes, as is the subject officer’s legal right
Evidence
The Scene
The incident occurred outside a college residence in Sudbury. At the time of this incident on June 25, 2019, no scene was held by the GSPS. The SIU was notified of the incident on June 30, 2019; at that time, there was nothing for the SIU to examine.
Forensic Evidence
Report of Post-mortem Examination
Expert Evidence
On August 7, 2019, the SIU participated in a Coroner’s Conference Call with multiple pathologists and physicians. At that time, based on the testing the doctors had conducted, there was no definitive medical reasons to associate the birth of CW #1’s baby to any interaction with the GSPS. The birth appeared to be related to medical issues, not trauma. Video/Audio/Photographic Evidence
Summary of the College Residence Video
- 25 June 2019, 4:23:59 p.m. – CW #1 and CW #2 are standing on the sidewalk near a grey Kia. Police Cruiser #1 is parked in the parking lot beside the Kia. SO #1 and WO #2 are present. CW #1 is standing on the passenger side of the Kia with a cellular telephone in her hand. CW #2 is standing in front of the Kia;
- 4:33:00 p.m. – A child exits the Kia;
- 4:33:40 p.m. – A woman [CW #6] arrives and speaks to WO #2 near Police Cruiser #2 that is parked on the roadway. CW #1 follows CW #6 and WO #2 towards Police Cruiser #2. CW #2 takes a baby seat out of the back seat of the Kia and walks to the grassy area beside Police Cruiser #2. CW #6 speaks to CW #1;
- 4:34:30 p.m. – CW #6 walks away from the area towards the area where Police Cruiser #1 is parked. CW #1, CW #2 and the two police officers appear to be speaking. CW #1 has her cellular telephone up and appears to be recording;
- 4:42:55 p.m. – Police Cruiser #3, an SUV, arrives and parks behind Police Cruiser #2 on the street. A female officer [WO #1] exits Police Cruiser #3 and speaks with SO #1 and WO #2;
- 4:43:24 p.m. – Police Cruiser #4 arrives in the area and parks on the opposite side of the roadway than Police Cruiser #2;
- 4:44:28 p.m. – The female officer speaks with CW #1;
- 4:49:00 p.m. – WO #2 speaks to CW #6;
- 4:49:55 p.m. – CW #2 returns to the Kia with the child before returning to the grass. WO #2 speaks with CW #1. WO #1 speaks to CW #1, who raises her cellular telephone;
- 4:52:25 p.m. – WO #2 returns to WO #1 and CW #1 sits on the grass;
- 4:53:10 p.m. – WO #1 walks away towards CW #6 and speaks with her;
- 4:53:50 p.m. – A male officer [SO #2] exits Police Cruiser #4 and walks towards the area;
- 4:54:45 p.m. – WO #1 returns and speaks to CW #1. SO #2 walks towards the college entrance;
- 4:57:10 p.m. – WO #1 speaks to CW #1 alone;
- 4:55:40 p.m. – CW #2 returns carrying a laundry basket with items in it. He puts the basket on the ground and has paperwork in his hands that he shows the officers. SO #2 walks towards CW #6;
- 4:58:20 p.m. – WO #1 speaks to CW #1. WO #2 walks towards the college entrance;
- 4:59:34 p.m. – CW #2 leaves the area with the two children towards the college;
- 5:00:10 p.m. – SO #1 and SO #2 walk towards WO #1, who is speaking with CW #1. CW #1 picks up the laundry basket and attempts to walk away. WO #1 steps in front of CW #1. CW #1 steps back. SO #1 moves closer together with SO #2. CW #1 walks backwards, and WO #1 walks towards CW #1 with the other two officers following. CW #1 walks towards the college entrance. The male officers start running in the direction of CW #1;
- 5:02:10 p.m. - Everyone goes out of sight;
- 5:06:50 p.m. – WO #2 returns to Police Cruiser #2 and opens the back-passenger door. WO #1, who is holding CW #1’s left arm, along with SO #1, who is holding CW #1’s right arm, walk towards Police Cruiser #2. CW #1 is handcuffed behind her back. There is a struggle as the officers attempt to put CW #1 into the cruiser. An officer retrieves a juice bottle from the laundry basket and returns to Police Cruiser #2;
- 5:09:20 p.m. – SO #2 picks up the laundry basket and goes back inside the college;
- 5:12:20 p.m. – An ambulance arrives in the area and stops on the street near Police Cruiser #2;
- 5:13:10 p.m. – WO #1 speaks to the paramedics;
- 5:13:33 p.m. – CW #2, in the company of WO #2, approaches WO #1. CW #1 goes to the side door of the ambulance and a paramedic speaks to her;
- 5:17:34 p.m. – The side door of the ambulance closes. WO #1 and WO #2 are at the back of the ambulance and the back door is open. An officer opens the side door of the ambulance and gets inside; and
- 5:23:59 p.m. – The ambulance remains at the scene and the video ends.
Window
- 5:02:55 p.m. – CW #1 comes into view of the window. WO #1 is holding CW #1’s right arm. CW #1 is struggling to get away. SO #1 is on WO #1’s left side and SO #2 is on WO #1’s right side. CW #1 goes to the ground face first. WO #1 gets up from the ground and SO #1 goes to the ground. The officers and CW #1 are struggling. WO #1 goes back to the ground;
- 5:04:57 p.m. – A fourth officer walks in front of the window and goes out of sight. CW #1 is sat up and SO #1 and one of the other male officers picks her up and walks towards the front of the college;
- 5:12:10 p.m. – The ambulance arrives on scene; and
- 5:12:06 p.m. – The video ends.
Summary of the Cell Phone Video
- The video begins with CW #1 speaking to two uniformed police officers [now known to be SO #1 and WO #2];
- CW #1 tells the police they are being dramatic and that they have been trained in dealing with Indigenous women who are affected by [CW #1’s disability];
- CW #1 tells the police she did not want to speak to them without a lawyer present;
- A male voice says he will stay;
- CW #1 is standing beside the passenger side door of a grey Kia vehicle. SO #1 is standing on the passenger side of the Kia. WO #2 is in front of the Kia;
- CW #1 accuses the police officers of changing their tune because they are now being recorded;
- WO #2 tells CW #1 that he wants to keep telling the same story as earlier;
- CW #1 tells WO #2 that when she told him her story, he never felt it was good enough;
- CW #2 asks the police officers if there is a warrant for his arrest;
- WO #2 goes to check and he tells CW #1 that there is a warrant in Timmins for her arrest;
- CW #2 asks if he could leave with his step-children;
- WO #2 tells CW #2 that there would be no problem for him to leave but he needed to check the car seats first and needed to check the vehicle if it had been involved in a motor vehicle collision;
- CW #1 approaches WO #2 demanding that a supervisor attend;
- CW #1 speaks to SO #1 and WO #2 and accuses them of keeping young children and a 24-year-old Indigenous woman who was pregnant and threatening miscarriage;
- CW #1 asks WO #2 why she had not been arrested and he tells her the warrant is in Timmins;
- CW #1 asks SO #1 if she is being detained and says the police used the premise of taking a statement from her regarding the sexual assault she reported on her child and now she cannot leave because KINA was on the way;
- CW #1 asks if the police have an objective;
- SO #1 begins to explain and WO #2 says it would be OK if they left as long as he was satisfied with the child seats;
- CW #1 accuses the police of holding them waiting for KINA to arrive;
- CW #1 accuses the police of not being able to find them even when they were instructed where to go. She indicates she will call the Native Friendship Centre;
- WO #2 tells CW #1 that he wants to speak to the KINA worker;
- CW #1 tells WO #2 to go speak to the KINA worker;
- CW #1 becomes upset with WO #2 because he wants to speak to the KINA worker in private;
- WO #2 tells CW #1 that she can go inside and wait, and that no one is stopping her from going anywhere;
- CW #1 tells WO #2 that because she is present along with KINA, they can talk;
- KINA worker [now known to be CW #6] tries to calm CW #1 and tells her the situation is very serious and that the children are at risk of being taken into care, and that she just wants to know CW #1’s side of the story;
- CW #1 asks what the reason is that the children are at risk;
- KINA worker tells CW #1 that she will not be video recorded;
- CW #1 argues with the KINA worker about her right to record and she further advises that she has emailed her worker;
- CW #1 says that the KINA worker is refusing to speak on the recording, and she will contact legal aid;
- CW #2 asks WO #2 if it would be OK to attend the police station tomorrow and speak to a female officer about the sexual assault they were reporting;
- WO #2 explains to CW #2 that they may have to wait at the police station as there are not that many female officers;
- CW #2 tells the officer that would be fine and that now the police can leave. He further explains how the children are being provided for;
- WO #1 is seen in the background speaking to SO #1;
- WO #2 explains to CW #2 that the police have the authority under the law to determine if the children need protection;
- CW #1 begins to speak to WO #1;
- WO #1 asks CW #1 what she could explain to her;
- CW #1 complains of the conduct of SO #1 and WO #2;
- CW #1 tells WO #1 why she has the right to care for her children. She explains how she has been to see doctors and other medical people who have signed-off on her to allow her to have her children. She goes on to say that now KINA is present and have been looking for her since yesterday even though they have her contact information;
- WO #1 attempts to speak with CW #1;
- CW #1 demands that WO #1 contact her supervisor and have them attend the location;
- CW #1 accuses WO #1 of taking a threatening step towards her. She accuses the police of treating her wrong;
- WO #1 continues to try and speak with CW #1 and tells her to stop yelling or be arrested;
- SO #1 tries to speak with CW #1 and CW #2;
- CW #1 says that she is pregnant and threatening miscarriage, and wants the police to back off. She again accuses the police of taking a threatening step towards them;
- SO #1 tells CW #1 that they are just talking;
- CW #1 wants to record the interaction with the KINA worker; and
- WO #1 wants CW #1 to stop yelling.
Video ends.
Summary of Cell Phone Video
- Video begins with CW #1 speaking directly to WO #1. CW #1 says that WO #1 just told her that her children are not being apprehended;
- WO #1 tells CW #1 that she does not know yet;
- CW #1 then tells WO #1 that just two seconds ago she said her children were not being apprehended. CW #1 accuses WO #1 of lying;
- CW #1 accuses WO #1 of taking a threatening step towards her;
- CW #1 says that she has rights to stand and protect her children;
- CW #1 says that WO #1 does not get to stand there and say that they are not going to apprehended her children when she [KINA worker] just said, “I’m going to apprehend your children.”
- CW #1 accuses the KINA worker of walking away from her when she asked why the children were going to be apprehended;
- WO #1 tries to speak to CW #1, but CW #1 says she wants her (CW #1’s) version on camera;
- CW #1 describes the two male officers [now known to be SO #1 and WO #1] as having been trained in dealing with Indigenous women who are suffering from [CW #1’s disability], domestic violence and sexually abused as a child;
- CW #1 accuses the police of being against her from the start. She [describes her allegations of sexual assault against her child and states that she has the right to keep the child away from KINA or anybody that threatens their safety];
- At two minutes and 38 seconds into the video, CW #1 begins to walk and she accuses WO #1 of following her and harassing her. She says that WO #1 is aggressive and is smirking. CW #1 demands that WO #1 call her boss to attend;
- CW #1 starts to move and says, “Don’t touch me”;
- WO #1 says, “You’re not going anywhere, you’re not getting arrested [indiscernible] to calm down”;
- CW #1 tells WO #1 to stop;
- WO #1 walks towards CW #1;
- CW #1 yells, “I’m not doing anything [CW #2]”;
- WO #1 walks towards CW #1;
- Male officer and WO #1 say, “You’re under arrest”;
- Red screen on the video
- A male voice says, “You’ve been told you’re under arrest, stop resisting, you’re under arrest, OK”; and
- CW #1 screams.
Video ends.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the GSPS:- Arrest Report;
- Attestation Letter - SO #2’s Notes;
- Civilian Witness List - CW #1;
- Notes of WOs;
- Officer involvement; and
- Procedure - Search of Persons.
Materials obtained from Other Sources
The SIU also obtained and reviewed the following:- Video from College; and
- Video from cell phone.
Incident Narrative
The material events in question are relatively clear based on the weight of the evidence collected by the SIU, which included interviews with CW #1, and several civilian and police witnesses who were present at the time of the arrest. The investigation also benefitted from video recordings of CW #1’s interaction with the police captured by a cell phone and surveillance cameras in the area. In the afternoon of the day in question, SO #1, in the company of WO #2, met with CW #1 in the parking lot in front of a college residence. The meeting had been arranged to discuss CW #1’s complaint of an alleged sexual assault against her infant son. The police were also there to assist with an investigation by child welfare authorities into the safety of CW #1’s two children. Specifically, concerns had been raised that CW #1 and her partner, CW #2, were living with the children in their vehicle, involved in illicit drugs, and using defective child seats.
Shortly after the meeting began, CW #1 grew agitated with the officers fearing the authorities were only there to remove her children. CW #1 argued with the officers and decried what she believed was an injustice being perpetrated on her and her family. When pressed by CW #2 as to whether he and CW #1 were being detained, WO #2 indicated they were free to go, but that he would first have to check on the condition of the child seats inside their vehicle. CW #1’s upset escalated with the arrival of CW #6 of Kina Gbezhgomi Child and Family Services, who had been assigned to look into the children’s welfare.
About half-an-hour into the meeting, at the request of CW #1 who had demanded to speak with a supervisor, WO #1 arrived at the parking lot. She spoke with CW #1 but was unable to de-escalate the situation. Believing WO #1 was unsympathetic to her concerns, CW #1 continued to speak loudly and protest what the officers were doing. The clamour caught the attention of people in the vicinity and employees of the college, some of whom neared the scene to see what was happening. WO #1 warned CW #1 that she would be arrested unless she stopped causing a disturbance in the area. The officers asked if they could continue their meeting inside CW #1’s home away from the public, but were rebuffed by CW #1. Having spoken with CW #6, WO #1 informed CW #1 that the child protection worker would speak with her in the absence of the police but only if she did not video-record their interaction. CW #1 insisted she would audio-record their conversation. The meeting never took place.
To address the child welfare concerns that had been raised, CW #2 left the scene, went into the residence to his and CW #1’s room, and returned with a basketful of food and some paperwork. WO #2 inspected the items and satisfied himself that CW #1, CW #2 and the kids were living at the residence and had food at their disposal. The officer had also inspected the room from its doorway and saw no evidence of drug use or unsatisfactory living conditions.
At about 5:00 p.m., CW #1 picked up the basket of food and attempted to walk away from the officers in the direction of the student residence. She was prevented from doing so by WO #1, who moved to block her path. CW #1 protested loudly, and WO #1 warned her that she would be arrested if she did not desist. Within seconds, WO #1 grabbed one of CW #1’s arms and told her she was under arrest. CW #1 brushed WO #1’s hand aside and then struggled with the officer as she attempted to re-assert her hold.
SO #1 and SO #2, the latter arriving at the scene only minutes before, went to WO #1’s aid. SO #1 tripped CW #1, who landed face first onto the ground. CW #1 resisted as the officers attempted to handcuff her, refusing to release her arms. At one point, she bit or attempted to bite SO #2. In due course, the officers were able to handcuff CW #1, whereupon she was escorted to a cruiser and placed in the backseat.
Following her arrest, WO #2 called for an ambulance. He was aware that CW #1 was pregnant and was concerned following her arrest when he noticed wet spots on CW #1’s clothing around her groin area.
CW #1 was taken from the scene in an ambulance to HSN, where she was examined, cleared medically and then released from police custody on a Promise to Appear.
Shortly after the meeting began, CW #1 grew agitated with the officers fearing the authorities were only there to remove her children. CW #1 argued with the officers and decried what she believed was an injustice being perpetrated on her and her family. When pressed by CW #2 as to whether he and CW #1 were being detained, WO #2 indicated they were free to go, but that he would first have to check on the condition of the child seats inside their vehicle. CW #1’s upset escalated with the arrival of CW #6 of Kina Gbezhgomi Child and Family Services, who had been assigned to look into the children’s welfare.
About half-an-hour into the meeting, at the request of CW #1 who had demanded to speak with a supervisor, WO #1 arrived at the parking lot. She spoke with CW #1 but was unable to de-escalate the situation. Believing WO #1 was unsympathetic to her concerns, CW #1 continued to speak loudly and protest what the officers were doing. The clamour caught the attention of people in the vicinity and employees of the college, some of whom neared the scene to see what was happening. WO #1 warned CW #1 that she would be arrested unless she stopped causing a disturbance in the area. The officers asked if they could continue their meeting inside CW #1’s home away from the public, but were rebuffed by CW #1. Having spoken with CW #6, WO #1 informed CW #1 that the child protection worker would speak with her in the absence of the police but only if she did not video-record their interaction. CW #1 insisted she would audio-record their conversation. The meeting never took place.
To address the child welfare concerns that had been raised, CW #2 left the scene, went into the residence to his and CW #1’s room, and returned with a basketful of food and some paperwork. WO #2 inspected the items and satisfied himself that CW #1, CW #2 and the kids were living at the residence and had food at their disposal. The officer had also inspected the room from its doorway and saw no evidence of drug use or unsatisfactory living conditions.
At about 5:00 p.m., CW #1 picked up the basket of food and attempted to walk away from the officers in the direction of the student residence. She was prevented from doing so by WO #1, who moved to block her path. CW #1 protested loudly, and WO #1 warned her that she would be arrested if she did not desist. Within seconds, WO #1 grabbed one of CW #1’s arms and told her she was under arrest. CW #1 brushed WO #1’s hand aside and then struggled with the officer as she attempted to re-assert her hold.
SO #1 and SO #2, the latter arriving at the scene only minutes before, went to WO #1’s aid. SO #1 tripped CW #1, who landed face first onto the ground. CW #1 resisted as the officers attempted to handcuff her, refusing to release her arms. At one point, she bit or attempted to bite SO #2. In due course, the officers were able to handcuff CW #1, whereupon she was escorted to a cruiser and placed in the backseat.
Following her arrest, WO #2 called for an ambulance. He was aware that CW #1 was pregnant and was concerned following her arrest when he noticed wet spots on CW #1’s clothing around her groin area.
CW #1 was taken from the scene in an ambulance to HSN, where she was examined, cleared medically and then released from police custody on a Promise to Appear.
Relevant Legislation
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
(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,
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 31(1), Criminal Code -- Arrest for breach of peace
31 (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace.Section 175 (1), Criminal Code -- Causing a disturbance
175 (1) Every one who
(a) not being in a dwelling-house, causes a disturbance in or near a public place,(i) by fighting, screaming, shouting, swearing, singing or using insulting language,(ii) by being drunk,(iii) by impeding or molesting other persons,
Is guilty of an offence punishable on summary conviction.
Analysis and Director's Decision
On June 29, 2019, CW #1 gave birth to the Complainant. Because of the child’s premature birth, the Complainant passed away about an hour after he was born. Four days prior, CW #1 had been arrested by GSPS officers and grounded in the process. The SIU commenced an investigation based on a possible nexus between the force used against CW #1 during her arrest and the death of her child. On my assessment of the evidence, there are no reasonable grounds to believe that either of SO #1 and SO #2 committed a criminal offence in connection with CW #1’s arrest and the Complainant’s death.
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 authorized or required to do by law. WO #1, who initiated the arrest, said she did so with respect to a breach of the peace. While it is not entirely clear to me that CW #1’s arrest was lawful, I am unable to reasonably conclude with sufficient confidence that the officers lacked the requisite grounds to take CW #1 into custody.
In Fleming v. Ontario, 2019 SCC 45, the Supreme Court of Canada held that a breach of the peace is more than conduct that is merely disruptive, annoying or unruly; what is required is conduct that involves a degree of violence and risk of harm. It may be the better argument that CW #1’s behaviour, though boisterous, was not threatening in this sense. That said, the issue is whether WO #1 was of the view that there were reasonable and probable grounds to believe that CW #1 was breaching the peace and whether that view was sustainable on an objective assessment of the relevant circumstances: R v Storrey, [1990] 1 SCR 241. On this measure, it seems to me that there was some basis upon which WO #1 could legitimately believe there were sufficient grounds to effect CW #1’s arrest given the shouting, gesticulations and belligerence CW #1 directed at the officers over a protracted period of time.
What is more, it is fair to say that part and parcel of the concerns animating WO #1’s arrest decision was that CW #1 was causing a disturbance in the fashion contemplated by section 175 of the Criminal Code. Indeed, moments prior to the arrest, WO #1 had expressly warned CW #1 that she would be taken into custody for causing a disturbance if she did not desist in her behaviour. I am not persuaded on reasonable grounds that the officers lacked lawful grounds to arrest CW #1 for what, in effect, was the disturbance she was creating because of the public nature of the scene where the interaction between the officers and CW #1 took place, what I accept was CW #1’s loud protestations over a protracted period in front of a student residence, and evidence that passersby and college employees were drawn to the scene by the commotion. This, however, is not necessarily the end of the analysis regarding the lawfulness of CW #1’s apprehension.
I agree with CW #1 that she was detained by the police for some period of time prior to her arrest. WO #1 made that abundantly clear when, in response to CW #1 attempting to move past her, she blocked CW #1’s path and indicated she “wasn’t going anywhere”. The issue is whether CW #1’s detention was lawful. If it was not, then, arguably, it ill-behooved the police to apprehend CW #1 for vociferously objecting to a detention that she had a right to protest.
The case law around investigative detentions in the criminal law context is well established. In R. v. Mann, [2004] 3 SCR 59, the Supreme Court of Canada held that a person may be detained by the police for investigative purposes where there are reasonable grounds to suspect that he or she is implicated in a criminal offence. The instant case, however, is not one in which CW #1 was detained because she was suspected of a crime; rather, it appears the police were there to facilitate the conduct of a child welfare investigation. The case law in this area is less helpful.
In R. v. Dedman, [1985] 2 SCR 2, Canada’s highest court adopted the test laid out in R. v. Waterfield, [1963] 3 All ER 659 for the existence of a police officer’s powers and authority at common law. Under Waterfield, a police officer’s prima facie interference in an individual’s liberty is unlawful unless 1. the officer is acting within the general scope of a recognized police duty and 2. the interference is a justifiable use of police powers in pursuit of the duty. I accept that the officers who were present and involved in CW #1’s detention were acting within the general scope of their duty to protect and preserve life. That was, after all, the very focus of the child welfare investigation in question, namely, to ascertain whether CW #1’s children were safe in her custody, an investigation which I have no reason to doubt was based on bona fide concerns regarding the children’s wellbeing.
Less easily resolved is whether the officers exceeded the limits of their powers associated with the duty to protect and preserve life in their detention of CW #1. On the one hand, CW #1 and her fiancé, CW #2, had gone some ways to showing that the children were in good hands. They had demonstrated, for example, that the children were living in reasonable accommodations with food at their disposal. [2] On the other hand, the officers were aware that the child welfare agency had been trying to locate CW #1 and her children without success. While police officers are empowered to work as child protection workers and apprehend children, SO #1 and WO #2 had only minimal information about the child welfare concerns and one can understand why they would have wanted to defer to child welfare authorities in this regard, especially given CW #1’s heightened emotional state and erratic behaviour on hearing about their attendance. It is also noteworthy that the detention was not overly intrusive – the police provided CW #1 an opportunity to wait inside her home and did not physically engage her. In this context, I am unable to find the initial detention of CW #1 unjustifiable under the Waterfield test.
Once the child protection worker, CW #6, arrived, CW #1 indicated in words and conduct that a constructive meeting with her would not be possible. CW #1 was within her rights in refusing to cooperate with the child welfare authorities. By the same token, however, CW #1 was not permitted to obstruct CW #6 in the apprehension of the children. At that point, there is evidence that the child welfare authorities had already presumptively determined that CW #1’s children were in need of protection and should be removed from her custody. For example, while arguing with WO #1 moments before her arrest, CW #1 said, “You don’t get to stand there and say they aren’t going to apprehend your children when she [the Kina worker] just said ‘I’m going to apprehend your children’, and I said, ‘What are your reasons for apprehending my children,’ and she walked away from me.” On this record, I am not persuaded that the officers crossed the line and detained CW #1 unlawfully before the officers acted to place her under arrest. [3]
The issue turns to the propriety of the force used by the subject officers. The evidence establishes that CW #1 resisted her arrest, first by swatting aside WO #1’s hand and then refusing to surrender peacefully as SO #1 and SO #2 moved in to assist. SO #1 responded by tripping CW #1 and taking her to the ground. While SO #1 might better have been advised to exercise greater restraint, particularly as he appears to have known that CW #1 was pregnant, the fact remains that CW #1 was intent on resisting what she believed was oppressive conduct on the part of the officers, as was amply demonstrated when she bit or attempted to bite SO #2 after being taken to the ground. Accordingly, I am of the view that the tactic was not unreasonable given the situation at hand; with CW #1 on the ground, the officers would be in a better position to manage any further resistance by CW #1. Following the takedown, aside from exercising their greater manpower in wrestling control of her arms and affixing them in handcuffs, there is no evidence of CW #1 being struck by anyone.
CW #1’s baby, the Complainant, passed away shortly after he was born on June 29, 2019. The Report of Postmortem Examination attributed his death to “prematurity of undetermined cause”. In arriving at that conclusion, the pathologist noted that it was unclear whether allegations of an “assault” by police officers during CW #1’s arrest on June 25, 2019 played any role in the Complainant’s prematurity. In any event, as I am not satisfied on reasonable grounds that the officers who dealt with CW #1 on the day of her arrest committed a criminal offence, there are no grounds for proceeding with charges in this case and the file is closed.
Date: March 15, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 authorized or required to do by law. WO #1, who initiated the arrest, said she did so with respect to a breach of the peace. While it is not entirely clear to me that CW #1’s arrest was lawful, I am unable to reasonably conclude with sufficient confidence that the officers lacked the requisite grounds to take CW #1 into custody.
In Fleming v. Ontario, 2019 SCC 45, the Supreme Court of Canada held that a breach of the peace is more than conduct that is merely disruptive, annoying or unruly; what is required is conduct that involves a degree of violence and risk of harm. It may be the better argument that CW #1’s behaviour, though boisterous, was not threatening in this sense. That said, the issue is whether WO #1 was of the view that there were reasonable and probable grounds to believe that CW #1 was breaching the peace and whether that view was sustainable on an objective assessment of the relevant circumstances: R v Storrey, [1990] 1 SCR 241. On this measure, it seems to me that there was some basis upon which WO #1 could legitimately believe there were sufficient grounds to effect CW #1’s arrest given the shouting, gesticulations and belligerence CW #1 directed at the officers over a protracted period of time.
What is more, it is fair to say that part and parcel of the concerns animating WO #1’s arrest decision was that CW #1 was causing a disturbance in the fashion contemplated by section 175 of the Criminal Code. Indeed, moments prior to the arrest, WO #1 had expressly warned CW #1 that she would be taken into custody for causing a disturbance if she did not desist in her behaviour. I am not persuaded on reasonable grounds that the officers lacked lawful grounds to arrest CW #1 for what, in effect, was the disturbance she was creating because of the public nature of the scene where the interaction between the officers and CW #1 took place, what I accept was CW #1’s loud protestations over a protracted period in front of a student residence, and evidence that passersby and college employees were drawn to the scene by the commotion. This, however, is not necessarily the end of the analysis regarding the lawfulness of CW #1’s apprehension.
I agree with CW #1 that she was detained by the police for some period of time prior to her arrest. WO #1 made that abundantly clear when, in response to CW #1 attempting to move past her, she blocked CW #1’s path and indicated she “wasn’t going anywhere”. The issue is whether CW #1’s detention was lawful. If it was not, then, arguably, it ill-behooved the police to apprehend CW #1 for vociferously objecting to a detention that she had a right to protest.
The case law around investigative detentions in the criminal law context is well established. In R. v. Mann, [2004] 3 SCR 59, the Supreme Court of Canada held that a person may be detained by the police for investigative purposes where there are reasonable grounds to suspect that he or she is implicated in a criminal offence. The instant case, however, is not one in which CW #1 was detained because she was suspected of a crime; rather, it appears the police were there to facilitate the conduct of a child welfare investigation. The case law in this area is less helpful.
In R. v. Dedman, [1985] 2 SCR 2, Canada’s highest court adopted the test laid out in R. v. Waterfield, [1963] 3 All ER 659 for the existence of a police officer’s powers and authority at common law. Under Waterfield, a police officer’s prima facie interference in an individual’s liberty is unlawful unless 1. the officer is acting within the general scope of a recognized police duty and 2. the interference is a justifiable use of police powers in pursuit of the duty. I accept that the officers who were present and involved in CW #1’s detention were acting within the general scope of their duty to protect and preserve life. That was, after all, the very focus of the child welfare investigation in question, namely, to ascertain whether CW #1’s children were safe in her custody, an investigation which I have no reason to doubt was based on bona fide concerns regarding the children’s wellbeing.
Less easily resolved is whether the officers exceeded the limits of their powers associated with the duty to protect and preserve life in their detention of CW #1. On the one hand, CW #1 and her fiancé, CW #2, had gone some ways to showing that the children were in good hands. They had demonstrated, for example, that the children were living in reasonable accommodations with food at their disposal. [2] On the other hand, the officers were aware that the child welfare agency had been trying to locate CW #1 and her children without success. While police officers are empowered to work as child protection workers and apprehend children, SO #1 and WO #2 had only minimal information about the child welfare concerns and one can understand why they would have wanted to defer to child welfare authorities in this regard, especially given CW #1’s heightened emotional state and erratic behaviour on hearing about their attendance. It is also noteworthy that the detention was not overly intrusive – the police provided CW #1 an opportunity to wait inside her home and did not physically engage her. In this context, I am unable to find the initial detention of CW #1 unjustifiable under the Waterfield test.
Once the child protection worker, CW #6, arrived, CW #1 indicated in words and conduct that a constructive meeting with her would not be possible. CW #1 was within her rights in refusing to cooperate with the child welfare authorities. By the same token, however, CW #1 was not permitted to obstruct CW #6 in the apprehension of the children. At that point, there is evidence that the child welfare authorities had already presumptively determined that CW #1’s children were in need of protection and should be removed from her custody. For example, while arguing with WO #1 moments before her arrest, CW #1 said, “You don’t get to stand there and say they aren’t going to apprehend your children when she [the Kina worker] just said ‘I’m going to apprehend your children’, and I said, ‘What are your reasons for apprehending my children,’ and she walked away from me.” On this record, I am not persuaded that the officers crossed the line and detained CW #1 unlawfully before the officers acted to place her under arrest. [3]
The issue turns to the propriety of the force used by the subject officers. The evidence establishes that CW #1 resisted her arrest, first by swatting aside WO #1’s hand and then refusing to surrender peacefully as SO #1 and SO #2 moved in to assist. SO #1 responded by tripping CW #1 and taking her to the ground. While SO #1 might better have been advised to exercise greater restraint, particularly as he appears to have known that CW #1 was pregnant, the fact remains that CW #1 was intent on resisting what she believed was oppressive conduct on the part of the officers, as was amply demonstrated when she bit or attempted to bite SO #2 after being taken to the ground. Accordingly, I am of the view that the tactic was not unreasonable given the situation at hand; with CW #1 on the ground, the officers would be in a better position to manage any further resistance by CW #1. Following the takedown, aside from exercising their greater manpower in wrestling control of her arms and affixing them in handcuffs, there is no evidence of CW #1 being struck by anyone.
CW #1’s baby, the Complainant, passed away shortly after he was born on June 29, 2019. The Report of Postmortem Examination attributed his death to “prematurity of undetermined cause”. In arriving at that conclusion, the pathologist noted that it was unclear whether allegations of an “assault” by police officers during CW #1’s arrest on June 25, 2019 played any role in the Complainant’s prematurity. In any event, as I am not satisfied on reasonable grounds that the officers who dealt with CW #1 on the day of her arrest committed a criminal offence, there are no grounds for proceeding with charges in this case and the file is closed.
Date: March 15, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Kina Gbezhgomi, Child & Family Services. [Back to text]
- 2) Although, it must be said that this knowledge was largely limited to WO #2, and had not been broadly shared with the other officers on scene, including WO #1. [Back to text]
- 3) To reiterate, even if an unlawful detention occurred in the instant case, that would not necessarily give rise to an unlawful arrest. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.