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SIU Director’s Report - Case # 18-OCI-073

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 20-year-old female (the Complainant) during her arrest on March 11, 2018.

The Investigation

Notification of the SIU

At approximately 4:55 a.m. on March 11, 2018, the Peterborough Police Service (PPS) notified the SIU of a potential custody injury.

The PPS reported that on March 11, 2018 at 1:39 a.m., PPS officers responded to a disturbance call at the Social Pub on George Street, in the City of Peterborough.

The police officers had an interaction with the Complainant and force was used to arrest her for public intoxication.

The Complainant was then taken to the police station, where she complained of a sore arm. She was then taken to the hospital where she was diagnosed with a broken left humerus.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Not 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

SO #1 Interviewed, notes received and reviewed
SO #2 Interviewed, notes received and reviewed


Incident Narrative

On March 10, 2018, the Complainant, accompanied by a group of friends, attended the Social Pub on George Street, in the City of Peterborough, arriving at approximately 11:00 p.m., after having already consumed some alcohol at the Complainant’s residence.

After consuming more alcohol at the bar, the Complainant fell asleep at her table. At approximately 1:30 a.m. on March 11, 2018, bar staff woke up the Complainant and asked her to leave the bar. While staff were physically leading the Complainant out of the bar and onto George Street, she became verbally abusive.

The Complainant was advised that she would not be allowed back into the bar that morning and that she should go home. The Complainant then assaulted the two staff members who were removing her from the premises, as well as a bystander who had stopped to see what was happening.

The Complainant then attempted a forced re-entry into the bar, but was prevented from doing so by the same male staff member she had earlier assaulted. A passing PPS patrol officer, WO #1, was flagged down by security staff and he engaged with the Complainant. After issuing her a Provincial Offences Notice (PON) for public intoxication, the Complainant was instructed to leave the area and go home with one of her friends, who was now present.

As the Complainant was leaving, she approached the entrance to the Pub and began to argue with SO #1; she was warned by SO #1 to leave or she would be arrested for being intoxicated in a public place.

When it became apparent that the Complainant was not going to leave, SO #1 took physical control of her and arrested her for public intoxication. The Complainant resisted being handcuffed, resulting in SO #1 assisting SO #2.

While the officers continued to attempt to handcuff the Complainant, she dropped her weight down and tried to sit on the ground. The officers brought her to her feet and continued the handcuffing procedure, when the Complainant again attempted to drop her weight. At that time, a loud popping sound was heard in the area of the Complainant’s left arm.

The Complainant then stopped struggling and she was handcuffed with her hands behind her back. When the officers realized that the Complainant had been injured, they moved her handcuffs to the front of her body and she was transported to the PPS headquarters and paraded before the officer in charge. The Complainant was then taken to the local hospital.

Nature of Injuries / Treatment

The Complainant was assessed at hospital and was diagnosed with a minimally displaced spiral fracture of the mid distal (near the elbow) diaphysis (the shaft or central part of a long bone) of the left humerus (the bone of the upper arm between the shoulder and the elbow); the arm was placed into a plaster cast.

Evidence

The Scene

The scene of the arrest was located on a sidewalk in front of the Social Pub located at 295 George Street in the entertainment district of the City of Peterborough. George Street is one of the main arteries in the downtown core and has many licenced premises; the street is travelled by large numbers of pedestrians, particularly around closing time on weekends.

Since the scene had not been preserved pending the arrival of the SIU, it was no longer capable of providing any evidence relevant to the investigation.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

The investigation produced two videos that were relevant. One video was provided by the security company that provides both electronic and physical security at the Social Pub. The second video was provided by the PPS and provided security footage of the booking and subsequent release of the Complainant. A summary of those videos follows:


The Social Pub:

During the course of this investigation, the Social Pub provided the SIU with raw video footage relating to the events surrounding the arrest of the Complainant outside the Social Pub, located at 295 George Street in the City of Peterborough. SIU investigators obtained copies of these video recordings on March 13, 2018. 

The raw video files were labeled Channel 1, Channel 4, Channel 5, and Channel 6. These recordings contained clear video images, but no audio.


Channel 1

This camera was located on the east side of the Social Pub, on the south end of the building. The camera’s view was situated to face north on George Street and captured the sidewalk.

At 01:20:24 hrs: 
Video images captured the Complainant moving backwards from the front of the pub, where it appears that she had kicked someone. The Complainant’s friend, later identified as CW #1, was trying to pull the Complainant away from the entrance;

At 01:20:48 hrs: 
 While CW #1 was pulling the Complainant south on George Street, the Complainant was resisting her friend’s attempts to pull her away from the pub. The Complainant broke free from CW #1 and moved back toward the entrance of the pub. Several pedestrians can be seen standing on the sidewalk watching the Complainant;

At 01:21:01 hrs: 
The Complainant can be seen approaching a security guard, later identified as CW #3, who is seen wearing a security jacket uniform;

At 01:21:07 hrs: 
The Complainant used her purse, which was secured around her right wrist, to strike a second security guard, CW #2, in the head. The Complainant was again pulled away by CW #1. An unidentified male can be seen moving between the Complainant and CW #2, attempting to stop further assaults on CW #2. CW #1 can be seen trying to prevent the Complainant from assaulting the security staff, as she moves in between the security staff and the Complainant;

At 01:21:28 hrs: 
The video captures the security staff showing signs of restraint and holding their hands up, while the Complainant continuously struck them with her purse;

At 01:21:37 hrs: 
While the Complainant continued to strike the security staff with her purse, her purse fell off her wrist and landed on the sidewalk;

At 01:23:10 hrs: 
The Complainant again ran toward the front entrance of the pub, while another security guard in uniform tried to gain control of her by lifting her up and bringing her out to the sidewalk. The Complainant struck this security guard in the face, knocking a toque from his head. CW #3 interjected and grabbed a hold of the Complainant, with both arms, and lifted her off the ground and back onto the sidewalk. The Complainant can be seen struggling with CW #3, who then places the Complainant up against a wall, where he holds her until police arrive. [According to CW #3’s statement, it was during this time, while restraining the Complainant, that she bit him]. CW #3 appeared to be having a difficult time restraining the Complainant;

At 01:24:06 hrs: 
 The unidentified security officer, who was earlier struck by the Complainant, ran onto the roadway and stopped a passing police vehicle which was travelling southbound on George Street. An unidentified female can be seen trying to speak with the Complainant, while CW #3 is restraining her. An unidentified male, believed to be associated with the unidentified female, moved toward the Complainant, at which point the Complainant broke free from CW #3’s grip and struck the male civilian in the groin. Shortly thereafter, WO #1 exited his police vehicle and walked toward the Complainant. WO #1 then escorted the Complainant south on George Street and out of camera view;

At 01:25:17 hrs: 
 Two marked PPS police vehicles stopped in front of the pub, in view of the camera;

At 0128:18 hrs:
The Complainant can be seen as she re-enters camera range while she is walking northbound on George Street. She stopped near the pub, speaking with a male (believed to be CW #5) and CW #1, as well as one unidentified female. WO #1 re-entered camera range and can be seen walking northbound toward the Complainant, who remains near the entrance to the pub;

At 01:29:33 hrs: 
SO #1 and SO #2 walked over to the Complainant, where WO #1 can be seen speaking with her. It appears that the Complainant is shouting at WO #1 and refusing to leave the premises. Within a few minutes, SO #1 and SO #2 can be seen arresting the Complainant. The video images show that the Complainant is actively resisting the arresting officers. SO #1, SO #2, and the Complainant, then move to the west side of a building and out of view of the camera. Soon afterwards, a male [later identified as CW #5] can be seen running southbound towards WO #1. An altercation occurs between WO #1 and CW #5. The video images capture CW #5 being taken to the ground and arrested by WO #1 and WO #2, after which he is searched and then placed in the back seat of a police vehicle;

At 01:37:16 hrs: 
SO #1 and SO #2 returned to camera view. The Complainant’s hands are seen to be handcuffed to the front of her body and she is actively resisting the arresting officers by not walking of her own accord. The officers pull her forward, to move her toward a parked police vehicle, where she was immediately put into the back seat. At no point is the Complainant seen to be searched by the police officers nor is the Complainant ever seen to be struck by the security staff or by any of the involved police officers; and

At 01:40:00 hrs: 
 The video stops.


Channels 4, 5 and 6

These video files captured the interior of the pub. They show the interaction between the Complainant and the involved security guards prior to her arrest. The images accentuate the Complainant’s level of intoxication, showing that she was unsteady on her feet and uncooperative with the security guards while she was being directed to leave the pub. The Complainant demonstrates assaultive behaviour, hitting and kicking the security guards as she is being taken out of the pub, prior to the arrival of the police.

Peterborough Police Service Booking Recording:

The PPS provided a copy of a booking cell video that recorded the Complainant’s incarceration on March 11, 2018. The video recording was equipped with audio capability. The length of the recording was 20 minutes and four seconds.
The video showed SO #1 and SO #2 entering the booking hall with the Complainant. The Complainant was handcuffed with her hands in front of her body and she was crying and wailing that her arm was sore. The Complainant was paraded before WO #3, the station commander. An undesignated police officer entered the booking area to conduct a cursory search of the Complainant. 
 
The Complainant was uncooperative when questions were asked of her. Parts of the video became inaudible at times. WO #3 queried the Complainant about her injury. SO #1 responded to WO #3 and explained that the Complainant was given a ticket, but refused to leave the area and began yelling and screaming, at which point SO #1 and SO #2 arrested her. SO #1 further explained that while putting the handcuffs on the Complainant’s left hand, “she was resisting, she was up and down on the ground,” and, when SO #1 and SO #2 lifted her to her feet, she began complaining that her arm was injured. 
 
SO #1 can be seen demonstrating to WO #3 how he put a handcuff on the Complainant’s left hand and how she twisted to get away from him, which was the moment when she complained her arm was sore. WO #3 directed SO #1 to call for an ambulance.
While waiting for the ambulance, the Complainant was searched by the undesignated police officer. The video shows that the Complainant is unable to lift her left arm during the search. SO #1 assisted the Complainant by supporting her left arm while the undesignated officer completed the search. SO #1 can be heard telling WO #3 that it was her left bicep that was injured.

After the Complainant was searched, SO #1 helped the Complainant with her jacket and she was seated on a chair in the booking area with the assistance of SO #1. The Complainant asked SO #1 if he knew what happened to her arm. SO #1 replied that he did not know how her arm was injured, but all he knew was that she had resisted her arrest and went straight down to the ground while he was trying to put the handcuffs on her, after which she complained of an injury.

Paramedics then entered the booking area and were heard asking the Complainant medical questions. The paramedics told the Complainant that they were taking her to the hospital to be examined, and they escorted her out of the booking area followed by SO #1 and SO #2. The video ends.

Communications Recordings

The police radio transmissions 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, two undesignated officers, and SO #1 and SO #2;
  • Occurrence History Report;
  • Provincial Offences Notice (PON) Issued to the Complainant;
  • Prisoner Record of Detention;
  • Procedure: Use of Force;
  • Booking video;
  • Training Records for SO #1 and SO #2;
  • Prepared Written Witness Statements Authored by CW #2 and CW #3; and
  • Police Transmissions Communications Recording.

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; and
  • CCTV Video Footage of the Incident outside the Pub, provided by Pub Management.

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(4), Liquor Licence Act -- Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,
(a) In a place to which the general public is invited or permitted access; or
(b) In any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

Analysis and Director's Decision

On March 11, 2018, WO #1 of the Peterborough Police Service (PPS) was flagged down by security staff working at the Social Pub, at 295 George Street, in the City of Peterborough, to assist with the removal of the Complainant, an intoxicated, assaultive, and resistant patron, from the premises. The Complainant was arrested shortly thereafter by SO #1 and SO #2, following which she was handcuffed. After being transported to the police station, the Complainant complained of having sustained an injury to her left arm and she was taken to hospital by ambulance, where she was assessed and it was discovered that she had sustained a minimally displaced spiral fracture of her humerus in the area of her elbow, and the arm was placed into a plaster cast.

During the course of this investigation, in addition to the Complainant, four civilian and three police witnesses were interviewed by SIU investigators; both of the subject officers also consented to interviews. In addition to the eye witness evidence, investigators were provided with CCTV video from the Social Pub, which included footage from both inside and outside of the pub, the memorandum book notes of all police officers involved, as well as the communications recordings and video from the police station which recorded the arrest and processing of the Complainant. As a result, the facts surrounding the incidents of that night/early morning are quite clear.

In her statement to SIU investigators, the Complainant described going to the Social Pub sometime after 10:00 p.m. on March 10, 2018, after having consumed some alcohol at her residence. The Complainant indicated that she only had one beer at the pub, following which, at some point, she fell asleep at her table. The Complainant described herself as not being intoxicated, but just tired. A female security staff member then woke her up and asked her to leave; the Complainant refused, following which she was escorted to the door, where a male security staff member was posted.

The Complainant described speaking with this male, who upset her when he insulted her. At one point, the Complainant recalled the male security member grabbing her by the arms, to which she responded by delivering a “hard bite” to his hand, injuring him. The Complainant recalled then being escorted from the pub, out onto George Street, where security staff flagged down a passing PPS cruiser; shortly thereafter, two PPS marked patrol cars attended the outside of the bar.

The Complainant recalled two, or possibly three, PPS officers taking control of her and walking her toward one of the police vehicles, where she was placed under arrest. When the officers tried to handcuff her, she resisted, because she was of the view that she had done nothing wrong.

The Complainant described all three police officers then becoming involved with her, with one of them, and she was unable to describe which officer was responsible, then pulling her arms to the rear and forcing them down, which resulted in her experiencing severe pain and she heard a loud “popping” sound come from her left arm. Because the Complainant was injured and was unable to hold her arm up without support, the police officers then removed her handcuffs from the rear of her body and moved them to the front, following which she was transported to the police station. Once the Complainant advised the booking sergeant of her injured arm, he arranged for her to be taken to the hospital, where she was diagnosed with a fracture to her upper left arm.

I note with interest the comments on the medical records of the Complainant as to her indication of how she had been injured, as follows:

FOCUSED ASSESSMENT: HBD (had been drinking), was resisting arrest, dropped to ground – felt pop – states can’t feel from top down.

The evidence of both the civilian and police witnesses is materially consistent with that of the Complainant, save for the description of the Complainant’s level of intoxication and the degree of her resistant and assaultive behaviour. Despite the assertion of the Complainant that she was only tired, not intoxicated, I accept the evidence of all other witnesses who observed her behaviour, including her friend, CW #1, that the Complainant was indeed intoxicated. Additionally, I have noted that the Complainant’s behaviour, as observed on the CCTV footage, leaves little doubt that she was extremely combative and assaultive, in addition to being intoxicated, as she can be seen on video kicking at security staff, repeatedly striking them with her purse, sometimes in the head or face, striking an unidentified civilian in the groin, resisting the efforts of her friends and other unidentified civilians as they tried to both prevent her continuous assaults on security staff and to prevent her from re-entering the pub, and actively resisting the police and her arrest and handcuffing.

I find support in the conclusion that the Complainant was injured while she was resisting the police officers in an effort to avoid their handcuffing her and as she attempted to go to the ground by dropping her weight while the police officers were holding onto her arms, not only because of her comments as contained in her medical records, which are consistent with that finding, but also from the evidence of the two subject officers. Both officers corroborate the complainant’s statements to the medical staff, as well as the fact that they both overheard the Complainant telling the paramedics that she was injured because she resisted police, and the comments of SO #1, as captured by the booking video, that the Complainant was injured when, “she was resisting, she was up and down on the ground” and when he demonstrated that it was after he had placed a handcuff on the Complainant’s left hand and she twisted to get away from him, that she immediately complained that her arm was sore. I do note however, that the booking video appears to indicate that the Complainant did not actually know how her arm was injured, as she is recorded asking SO #1 if he knew what happened to her arm, to which SO #1 responds that he did not know how it was injured, but he knew that she had resisted her arrest and had gone straight down to the ground while he was trying to place handcuffs on her, after which she complained of an injury.

On the basis of all of the evidence then, including that of the Complainant, I find that the Complainant sustained her injury when she was resisting the police officers who were trying to place her in handcuffs, after she had assaulted security staff and was refusing to leave the bar, and despite numerous directions and warnings from the police, when she dropped her weight in order that she fall to the ground, in efforts to further resist being handcuffed, with the resultant combination of the officers holding her by the arms, and the sudden drop of the dead weight of her body to the ground, causing her injury.

As such, because the police may have indirectly contributed to the Complainant’s injury, an assessment is required in order to determine whether or not their actions amounted to an excessive use of force on these facts.

Pursuant to s. 25(1) of the Criminal Code, 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 two subject 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 in effecting the Complainant’s arrest.

Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information provided by the security staff to WO #1, when they first flagged him down, as well as the evidence of the three civilian witnesses present, and the video footage, that SO #1 and SO #2 clearly had reasonable grounds to arrest the Complainant for being intoxicated in a public place (s. 31(4) of the Liquor Licence Act), for failing to leave the premises when directed to do so by the lawful occupant, (s. 2 of the Trespass to Property Act), as well as for her assaults on the various security personnel. As such, SO #1 and SO #2, as well as WO #1, were all acting in the execution of their lawful duties and on reasonable grounds, when they arrested and attempted to handcuff the Complainant. As long as they did not resort to more force than was necessary in the circumstances, then, they are exempt from prosecution pursuant to s. 25 (1).

The actions of all three of these police officers, as confirmed by the Complainant, consisted of no more than attempting to place the handcuffs on her, as both police policy and the safety of the police officers dictated and required, while she continued to resist and then dropped her weight down onto the ground, immediately following which she complained of being injured. On these facts, I have no hesitation in finding that not only did they not resort to an excessive use of force, but they used no more than the absolute minimum dictated in the circumstances.

In coming to this conclusion, I have considered the direction from 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.

In conclusion, I find that SO #1 and SO #2, in attempting to handcuff a resistant, combative, assaultive, and intoxicated party, used no more force than was called for in the circumstances and, in fact, showed considerable restraint in that no force whatsoever was applied to the Complainant, other than the minimal required to place her in handcuffs. I further find that the Complainant’s injury was sustained as a direct result of her own actions whereby, in order to resist the efforts of the officers, she dropped her weight to the ground, thereby applying significant pressure onto her own arms, which were still being held by the police officers attempting to apply the handcuffs. It is quite clear, on these facts, that had the Complainant not engaged in a course of conduct meant to thwart the efforts of the police officers to apply handcuffs, she would not have been injured. Furthermore, I find that the actions of the Complainant, in suddenly dropping her weight, would not have been foreseeable to the police, preventing them from being able to act to prevent the Complainant doing so. As such, as I lack the necessary grounds for the laying of criminal charges, none shall issue.


Date: February 13, 2019

Original signed by

Tony Loparco
Director
Special Investigations Unit