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SIU Director’s Report - Case # 18-OCI-056

Contents:

News Releases for this Case:

French:

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.

Information restrictions

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.

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 serious injury sustained by a 52-year-old woman (the Complainant) during an interaction with police on February 23, 2018.

The Investigation

Notification of the SIU

At approximately 8:39 a.m. on February 23, 2018, the Peterborough Police Service (PPS) notified the SIU of a custody injury to the Complainant.
The PPS reported that on February 23, 2018, police officers responded to a call of an unwanted person at a women’s shelter in the City of Peterborough. Upon their arrival and at the request of the on-duty staff who did not want the Complainant remaining at the residence due to her behaviour, the police officers removed the Complainant from the residence.

During the removal, the Complainant attempted to strike one of the police officers and was subsequently arrested for assaulting police. The Complainant was then taken to the ground, where she landed on her right knee, following which she was handcuffed.

While being booked in at the police station, the Complainant made the booking officer aware that she had been injured and she was subsequently transported to the hospital where she was diagnosed with a torn tendon in her right knee, which would require surgery to repair.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
 
During the investigation, interviews of civilian witnesses, witness officers, and subject officers were conducted. Relevant policy and procedure documents were reviewed and an FIS investigator attended and video recorded and photographed the scene of the arrest and injury. Relevant medical records were also obtained and reviewed, with the consent of the Complainant.

Complainant:

52-year-old female interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed and provided a case note which included the comments made by CW #2, who declined to be interviewed by the SIU
CW #2 Declined to be interviewed
CW #3 Interviewed
CW #5 Declined to be interviewed
CW #5 Interviewed
CW #6 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed

Subject Officers

The SO Interviewed, notes received and reviewed


Incident Narrative

Upon her release from custody on an unrelated matter, the Complainant had been court ordered to reside at a residence in Selwyn, but had instead been staying at a women’s shelter in the City of Peterborough for a few days prior to the incident under investigation here.

On February 22, 2018, the Complainant was in downtown Peterborough visiting friends; she had consumed a quantity of beer and was operating her bicycle. She stopped at a drop-in centre to rest, as she was concerned that she may have had too much to drink to ride the bicycle.

After resting and visiting with friends, the Complainant walked her bicycle to the women’s shelter, arriving sometime prior to midnight. On arrival at the shelter, she joined some of her fellow residents on the porch. Shortly thereafter, the Complainant became involved in a verbal dispute with another resident, Civilian Witness (CW) #5. The discussion escalated to the point where staff came out of the house to intervene.

Staff removed CW #5 from the porch and relocated her to the office, during which the Complainant became verbally abusive and threatening to both CW #5 and staff members. Once inside the office, staff locked the door to prevent escalation of the incident, and called the PPS requesting police officers attend to remove the Complainant from the shelter, as she had contravened shelter policy regarding threatening conduct.

The Complainant then left the porch, entered the shelter, and went up to the second level, where she shared a bedroom with other residents, got undressed, and went to bed.

The Subject Officer (SO) and Witness Officer (WO) #3 responded to the call from shelter staff and attended at the shelter, where they met with staff members who advised the officers as to the details of the Complainant’s confrontation on the front porch with CW #5 and then with shelter staff, and the fact that the Complainant had been asked to leave the shelter for the night, but had not done so. En route to the shelter, the officers had already run the Complainant’s name on their computer and became aware of the conditions regarding the Complainant ’s residence requirements as per her surety release and that there were reasonable grounds for which they could charge the Complainant with a breach of her recognizance, if need be.

Shelter staff escorted the two police officers to the bedroom where the Complainant had retired, and turned on the light, waking the Complainant. The Complainant was told that she would have to get dressed and leave the shelter as a result of her previous conduct. The Complainant then became argumentative and asked the SO, a male officer, to leave the room while she got dressed. The officer refused to do so for reasons of officer and staff safety concerns.

The Complainant then got out of bed, dressed, and was accompanied downstairs by the police officers and staff members. While initially compliant, once the Complainant arrived on the front porch, she made an attempt to physically engage another resident who was out on the porch smoking. WO #3 and the SO then took physical control of the Complainant, attempting to move her down the porch steps and onto the sidewalk. While descending the stairs, the Complainant threw a punch at WO #3, which did not connect. The SO then delivered a short strike to the rear of the Complainant’s right knee with the side of his boot, in order to force her to the ground. As a result, the Complainant’s knee buckled and she went to the ground, landing on her right knee, following which she was put fully face down onto the pavement, where she was handcuffed.

The Complainant was then escorted to the police car and transported to the PPS headquarters on Water Street for booking and detention. During the booking process, the Complainant told the booking officer that she had injured her knee, following which she was taken to the hospital for assessment.

Nature of Injuries / Treatment

The Complainant was assessed and an ultrasound was performed, which confirmed a full-thickness distal patellar tendon rupture (patellar tendon rupture is the rupture of the tendon that connects the knee cap to the top portion of the shin bone, as per: www.drcoyner.com) in her right knee, which required surgery to repair. The surgery had been successfully completed prior to the Complainant’s interview on March 2, 2018.

Evidence

The Scene

The scene was located outside of the women’s shelter on the front porch, the steps down to the walkway, and the paved walkway in front of the shelter. A forensic investigator attended the shelter and video recorded and photographed the scene.

The scene was located outside of the women’s shelter on the front porch, the steps down to the walkway, and the paved walkway in front of the shelter.  A forensic investigator attended the shelter and video recorded and photographed the scene.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

The shelter was not equipped with CCTV cameras, and no other recordings or photographs were located.

Communications Recordings

The communications recordings were obtained and reviewed.

Materials obtained from Police Service

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

  • Notes of WO #s 1-3 and the SO;
  • Serious Occurrence Reports authored by shelter staff, CW #2 and CW #6;
  • Occurrence Summary;
  • Prisoner Record of Detention;
  • Procedure: Use Of Force;
  • Procedure: Arrest;
  • Procedure: Search of Persons;
  • Procedure: Prisoner Care and Control; and,
  • Promise to Appear (Release Document).


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

  • Medical Records of the Complainant related to this incident, obtained with her consent.

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.

Analysis and Director's Decision

On February 23, 2018, following an evening out, and after having consumed approximately five ‘tall boy’ beers, the Complainant returned to a women’s shelter in the City of Peterborough, where she had been residing for a few of days. Once at the shelter, the Complainant joined a number of other residents on the front porch, following which she became embroiled in a heated interaction with one of those residents, Civilian Witness (CW) #5. As a result, two staff members, CW #6 and an undesignated witness, and CW #1, came out onto the porch and intervened, removing CW #5 from the confrontation and into the front office and locking the door, in order to bring the matter to a peaceful end. While CW #5 calmed down, the Complainant continued to be loud and confrontational and was warned that if she did not desist, she would have to leave the premises. When she continued, police were called and requested to attend and remove the Complainant from the residence, as she was being disruptive. Police were also advised during the call that the Complainant had been requested to leave by shelter staff, but had refused to do so.

The Complainant then went on to make several derogatory and threatening comments to shelter staff, following which she went upstairs and went to bed.

As a result of the call to the Peterborough Police Service (PPS), Witness Officer (WO) #1 and WO #3 were dispatched to the shelter. While en route, the Complainant’s name was queried and it was discovered that she had been placed on court ordered conditions to reside with her surety at an address in Selwyn Ontario, and therefore her residency at the women’s shelter in Peterborough put her in contravention of the conditions of her release from custody. This information provided the police officers with reasonable grounds to believe that the Complainant was breaching her release conditions and was therefore arrestable pursuant to s. 145 (3) of the Criminal Code (Failure to comply with Recognizance).

During the course of this investigation, five CWs, in addition to the Complainant, three police witnesses, and the Subject Officer (SO), were interviewed. While there were several assertions made by the Complainant which were contradicted by numerous other witnesses present, both civilian and police, which made her a less than reliable witness, the fact remains that the Complainant was injured during her interaction with police on February 23, 2018, requiring a determination of whether or not the injury was caused as a result of an excessive use of force by police. The following narrative is based on the credible and reliable evidence obtained during the course of this investigation.

Upon arrival at the shelter, shelter staff briefly spoke to the two police officers, filling them in on the details of what had occurred, before then escorting them upstairs to the Complainant’s room. Upon entering the room, one of the police officers turned on the light and the Complainant was observed to be in bed. CW #1, in the presence of the police officers, told the Complainant that she had to leave the shelter. The Complainant refused to get out of bed and continued to sling offensive comments at CW #1. The Complainant then asked the SO to leave the room, to which he replied that he could not do that; this is consistent with the evidence of both shelter staff and the police officers present. While the Complainant claims that she did not wish to get out of bed because she was naked from the waist up, this is contradicted by the other four witnesses present, who all described the Complainant as wearing some clothing, but not her pants, and that both her breasts and genital area were covered.

When the SO refused to leave the room, which he indicated was due to safety concerns for the shelter staff and the second police officer present, the Complainant became upset, but eventually got out of bed and put her pants on, following which she threw a pen in CW #1’s direction, but missed, and continued on with the verbal abuse. The Complainant was then escorted down the stairs and out of the shelter by the two police officers, while both staff members returned to the office. At that time, the Complainant was being physically compliant, but verbally abusive and argumentative.

The Complainant was then escorted out onto the porch area, where a few other residents had congregated, including CW #5 with whom the Complainant had previously been engaged in a heated argument. As the Complainant was led out onto the porch, she began to yell at CW #5 and tried to get away from the police officers in order to get at CW #5.

The Complainant asserts, both in her statement to SIU investigators and in comments made to medical staff as noted in her medical records, that she simply lost her balance, due to being pulled down the stairs by the police officers, and reached out to grab WO #3, in order to avoid falling. Several of the residents, however, observed the Complainant attempt to strike WO #3, with CW #5 describing the Complainant as raising her fist toward WO #3, although she did not see if she actually threw the punch. CW #3 described the Complainant as kicking her feet at WO #3, who was backing away from her and, CW #2, who spoke to CW #1 shortly after the incident resulting in CW #1 making a case note of what CW #2 told her, indicating that when police were escorting the Complainant down the front steps, “she saw (the Complainant) try to get away from police by attempting to punch the female officer in the face” and that the police then took her to the ground and handcuffed her.

The SO described the Complainant as swinging her right arm toward WO #3’s head, which he described as a roundhouse punch which did not connect, following which he grabbed the Complainant before confirming with WO #3 that the Complainant had in fact taken a swing at her. This evidence is confirmed by CW #5, who indicated that she heard the SO ask WO #3 if she had been punched, and heard WO #3 respond “no, but almost”.

WO #3 indicated that as they entered onto the porch, the Complainant began screaming and motioning toward CW #5 and both officers had to grab the Complainant by the coat in order to prevent her reaching CW #5. WO #3 stated that she then advised the Complainant that she was under arrest for breaching her recognizance, at which point the Complainant pulled her arm away from WO #3 and threw a punch in her direction, but missed.

Based on the evidence, therefore, of the three CWs, which is consistent with the evidence of the two police officers present, I have no hesitation in rejecting the assertion by the Complainant that she simply lost her balance and reached out to grab WO #3 to prevent herself falling, accepting instead, on the considerable evidence of all the other witnesses, that the Complainant threw a punch at WO #3, but missed.

As a result of the actions of the Complainant, the SO then struck the Complainant on the back of the right leg with the side of his foot, which caused her to fall to the ground, where she was handcuffed. This was observed by both CW #5 and CW #3, and was confirmed by the SO, who openly conceded that he stepped back from the Complainant and delivered a boot strike to her right calf, which he described as being made with the side of his right foot from a distance of six to eight inches and using about 45 % of his total strength. The SO described this manoeuvre as being one that he had been taught at the Ontario Police College and was to be employed in order to gain compliance from resisting prisoners. The strike had the effect of immediately causing the Complainant to fall to the ground, landing on her right knee. The SO, using a controlled movement, then took the Complainant the rest of the way to the ground, whereupon she was handcuffed.

According to WO #3, she and the SO were attempting to control the Complainant, with each holding one of her arms, when the Complainant pulled her arm away and threw a punch in the direction of WO #3, which missed. WO #3 then regained control of the Complainant’s arm and walked her down the steps to the sidewalk, where the Complainant pulled her arms into her body and grabbed WO #3’s radio microphone, which was on her duty vest. WO #3 believed that it was her action, in trying to pull the Complainant’s arm to the rear, which caused the Complainant to go to her knees. WO #3 indicated that while she was not consciously trying to ‘ground’ the Complainant, she was trying to place her on the ground in a controlled manner, but the Complainant went to her knees, and then down onto the ground on her stomach, where she was handcuffed.

There is no dispute that the Complainant immediately screamed about pain to her leg and accused the officers of having broken her leg.

While WO #3, due to her own focus on the Complainant, apparently did not see the SO deliver the strike to the back of the Complainant’s right knee, I have no difficulty accepting that the strike is why she went to the ground, based on the evidence of the three CWs and the SO.

The Complainant was then taken initially to the police station, and then to hospital, where an ultrasound revealed that she had sustained a “full-thickness distal patellar tendon rupture”, which ultimately required surgery to repair.

Upon a review of several apparently reputable medical websites, it appears that a patellar tendon rupture is a rupture of the tendon that connects the patella (knee cap) to the top portion of the tibia (shin bone). According to www.drcoyner.com, “Patellar tendon can be ruptured by several reasons such as by fall, direct blow to the knee, or landing on the foot awkwardly from a jump” and to www.hopkinsmedicine.org, “This type of injury is usually the result of a fall or during the landing from a jump” and finally, https://orthoinfo.aaos.org attributes this type of injury to, “Falls. Direct impact on the front of the knee from a fall or other blow is a common cause of tears.”

As such, while the Complainant attributed her injury to the strike by the SO with the side of his foot to the back of her knee, it appears that it was not the strike itself which caused her injury, but her fall thereafter whereupon she landed directly on the pavement with her right knee. From the medical websites mentioned earlier, it appears clear that the impact had to be to the front of the knee, and not the back of the leg. Furthermore, the SO described his strike as being to the Complainant’s calf, and not the inside of her knee. Finally, while I note that the Complainant was a large woman, estimated as weighing approximately 245 pounds (111 kilograms), and she fell onto the pavement with her full weight as a result of her knee buckling, I believe the evidence establishes that it is most likely that she was injured when she fell onto her right knee, after throwing a punch at WO #3 and being struck on her right calf by the SO.

As such, the question to be determined is whether the grounding of the Complainant, following her assault upon WO #3, was justified in the circumstances or amounted to an excessive use of force.

Pursuant to s. 25(1) of the Criminal Code of Canada, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the officers to qualify for protection from prosecution pursuant to s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information provided by the shelter staff, that the Complainant was being disruptive and that they wished to have her removed from the premises. In addition, the information provided to the police officers en route, indicated that the Complainant was in breach of her conditions of release. Thus, the police were acting in the execution of a lawful duty, when they escorted the Complainant from the shelter pursuant to s. 2 of the Trespass to Property Act, and when they arrested her for breaching the conditions of her release, contrary to s. 145 (3) of the Criminal Code. As such, as long as the officers used no more force than was necessary and reasonable in the circumstances, their actions are protected from prosecution pursuant to s. 25.

In coming to my conclusion, I have considered that although it was the SO who delivered the strike to the back of the Complainant’s leg, WO #3 was apparently also of the view that the Complainant needed to be taken to the ground in order to maintain control over her. It is also clear that the Ontario Police College teaches and trains police officers that taking resisting prisoners to the ground is the most effective way to gain compliance and control. Additionally, I accept that the specific technique employed by the SO, that being a strike to the back of the leg, is also taught in the Police College in order to affect a grounding.

Furthermore, it appears on the evidence of both involved police officers that while each was focused on the Complainant, and not on the actions of the other, both officers were simultaneously attempting to take the Complainant to the ground. While it may well be that with both officers independently trying to take the Complainant to the ground, combined with her substantial weight and the fact that she had been drinking, that the Complainant went to the ground with more momentum than was expected, I cannot attribute this to an excessive use of force on the part of either of WO #3 or the SO.

It is clear on all of the evidence that the Complainant was being resistant and combative and that she had just attempted to punch WO #3, following which she grabbed for WO #3’s radio, as a result of which the police officers had to act, and act quickly, to take control over the Complainant, before the situation got out of hand. It also appears that in attempting to do so, both officers acted in accordance with their training, and no extraneous or unnecessary strikes were delivered, with all three of the CWs confirming that other than the strike which took the Complainant to the ground, no other strikes, kicks, or force was used against her and, as soon as she was down on the ground, she was handcuffed and then assisted to her feet and to the cruiser. On this basis, I conclude that the actions of WO #3 and the SO were both reasonable and justified in the circumstances, bringing them under the protection of s. 25.

In concluding that the actions of either or both of WO #3 and the SO do not amount to an unnecessary or excessive use of force, I am mindful of the decision of the Supreme Court of Canada as set out in R v Nasogaluak [2010] 1 S.C.R. 206, 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. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

On all of the evidence, it is clear that had the Complainant not resisted and attempted to assault WO #3, no force at all would have been used to apprehend her. As such, while I find that her serious injury was sustained during her interaction with police, and as a result of the efforts of the police to maintain control over her, the evidence does not satisfy me that there are reasonable grounds to believe that either officer acted outside of the parameters of the Criminal Code. As such, as I lack the necessary grounds for the laying of criminal charges, none shall issue.


Date: January 23, 2019


Original signed by

Tony Loparco
Director
Special Investigations Unit