SIU Director’s Report - Case # 18-PCI-076
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.
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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.
The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.
“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.
This report relates to the SIU’s investigation into a serious injury sustained by a 24-year-old female when she was arrested by the Ontario Provincial Police (OPP) in Chatham.
Notification of the SIUOn March 12, 2018, at 5:00 p.m., the Complainant called the SIU to report an incident involving the OPP. According to the Complainant, on March 10, 2018, at about 11:30 p.m., she was driving on Park Avenue West in Chatham-Kent when she dropped her cellular phone onto the floor of her vehicle, which caused her to swerve on the roadway. The Complainant was immediately pulled over by an OPP officer.
According to the Complainant, the police officer was aggressive and rude, and punched the Complainant in the face.  Other OPP officers pulled the Complainant out from her vehicle and took her to the ground.
The Complainant’s friend, civilian witness (CW) #1, arrived immediately after the Complainant was stopped by the police and video recorded the interaction using her cellular phone.
The Complainant was taken to a hospital in Chatham, where she refused treatment. The Complainant was then taken to the OPP Detachment in Chatham-Kent where she was charged with assaulting a peace officer. She was then released from police custody.
The Complainant travelled to Victoria Hospital in London where she was diagnosed with a broken nose and a concussion.
The TeamNumber of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
On March 13, 2018, an SIU Forensic Investigator (FI) photographed the Complainant’s injuries and clothing. An SIU FI attended Chatham Towing to photograph the Complainant’s vehicle, and the OPP Detachment in Chatham-Kent to photograph SO #1’s police vehicle.
Complainant:24-year-old female interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
Witness OfficersWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
Subject OfficersSO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.
SO #2 Declined interview, as is the subject officer’s legal right. Witness statement received and reviewed.
On March 11, 2018, at around 12:10 a.m., the Complainant was driving in Chatham when her vehicle swerved and she was pulled over by SO #1 of the OPP. SO #1 suspected that the Complainant had been drinking and demanded that the Complainant provide a breath sample. The Complainant was reluctant to do so without speaking to a lawyer so SO #1 gave her an opportunity to call a lawyer.
As the Complainant spoke on her phone, SO #1 requested that another unit attend. When she returned to the Complainant’s vehicle, she learned that the Complainant had not contacted a lawyer yet. SO #1 cautioned her that she would be arrested if she failed to provide a breath sample but the Complainant continued to insist on speaking with a lawyer first. Witness officer (WO) #1 arrived on scene while SO #1 continued explaining the procedure to the Complainant. At 12:26 a.m., SO #2 also arrived with a civilian “ride-along.” At some point, the Complainant’s friend, CW #1, arrived along with CW #5.
At 12:28 a.m., SO #1 returned to the Complainant’s vehicle and asked her to exit it. The Complainant refused and tried to start her vehicle. SO #1 physically grabbed the Complainant to prevent her from turning the vehicle on but the Complainant pulled away. During the struggle, the Complainant raised her arm and appeared as if to strike SO #1.
The Complainant was eventually removed from her vehicle and SO #2 grounded her, causing her face to strike the roadway. Her nose bled heavily and SO #2 controlled the Complainant, who was face down on the ground, with his knee on the back of her head and neck. The Complainant was handcuffed with her hands behind her back and stood up. She was spitting blood and refused to look away from the officers, so her head was held in place against a police vehicle while she was searched.
At approximately 12:33 a.m., the Complainant was transported to Chatham-Kent Health Alliance (CKHA) but refused medical treatment. She sought medical treatment once she was released from police custody.
The ScenePark Avenue West, northeast of Lacroix Street, is a residential neighbourhood, with two lanes of traffic travelling in a northeast direction separated by a broken white line and two southwest lanes also separated by a broken white line. Two solid yellow lines separate the directions of travel. The area was lit by artificial street lighting. The SIU was notified of the incident almost two days after the fact and as a result there was no scene to examine.
Vehicle ExaminationSO #1 operated a marked, black and white, Ford SUV Interceptor police vehicle. An unknown stain was located on the plastic molding on the passenger side rear wheel and a sample was collected. The rear seat area of the vehicle was examined and nothing of evidentiary value was found.
Communications RecordingsOn March 11, 2018, at 12:15 a.m., SO #1 advised the OPP communications centre in London that she would be conducting a roadside [breath test] with the registered owner, the Complainant.
At 12:18 a.m., SO #1 requested that a second unit attend and bring an extra battery for her portable radio, as she was not receiving communications. WO #1 said she was en route. A male police officer, now known to be SO #2, asked SO #1 whether someone was being difficult or they failed and SO #1 needed continuity on the vehicle. No answer was received. SO #2 said he would respond. SO #1 said that there was no hurry as WO #1 was on her way from the detachment.
At 12:31 a.m., SO #2 said that the police had a “10-92” (person in custody). A brief struggle and yelling was heard in the background of the radio transmission.
At 12:33 a.m., WO #1 said that the police were transporting the Complainant to CKHA.
At 12:36 a.m., a woman, believed to be the Complainant, yelled “police brutality” in the background of the transmission.
At 1:13 a.m., SO #1 said she was transporting the Complainant to the detachment. SO #2 asked WO #1 if the OPP were bringing the Complainant back for tests or “doing her for a refuse a roadside?” WO #1 responded the Complainant was under arrest for impaired operation, resist arrest and assault a peace officer.
Video/Audio/Photographic EvidenceSIU Investigators canvassed the scene for witnesses and for closed-circuit television (CCTV) video. SIU investigators also canvassed the CKHA for CCTV.
Video Recording by Civilian WitnessThe video recording began with the Complainant on her stomach on the ground on the driver’s side of her vehicle. SO #2’s left knee was over the back of the Complainant’s head and neck. SO #1 was over top of the Complainant’s back and she handcuffed the Complainant’s hands behind her back. WO #1 stood next to the Complainant, holding a flashlight.
CW #1 told the Complainant not to fight. The Complainant said that she did not do anything. Either SO #1 or WO #1 told the Complainant she was resisting. CW #1 said the Complainant was not resisting and the Complainant was sitting in her car. SO #2 said the Complainant took a swing at SO #1. The Complainant said she did not, SO #1 did. The Complainant said she was not asked to come out of the car. SO #2 told the Complainant that she was under arrest. SO #1 and SO #2 lifted the Complainant to her feet and walked with the Complainant toward a police vehicle with flashing emergency lighting behind the Jeep.
The Complainant was dressed in a black sweatshirt with the word “Puma” written in white across the front and black sweat pants. She was bleeding significantly from her nose and there was a puddle of blood on the ground where the Complainant’s face had been positioned.
Video from OPP Detachment On March 11, 2018, at 1:20 a.m., WO #1 entered the breath room and spoke with a male police officer, who was outside of the room. WO #1 said, “she does not like men.” The male police officer asked if they needed to put a spit mask on the Complainant, and WO #1 replied only if she spat again.
At 1:22 a.m., the Complainant entered the breath room with WO #1 and SO #1. WO #1 told the Complainant that if she cooperated then the handcuffs would be removed. The Complainant’s appearance was disheveled, her face was soiled in blood and she had blood over the word “Puma” across the front of her pullover. WO #1 asked the Complainant if she was having a bad day. There was an echo in the room and the Complainant’s words were inaudible. WO #1 said, “So you had a bad day”, and provided the Complainant with tissue. SO #1 removed the handcuffs from the Complainant’s hands. The Complainant appeared upset and was crying. SO #1 calmly asked the Complainant for her personal information. SO #1 asked the Complainant whether she had bitten her tongue or mouth. The Complainant became upset and replied that she did not. The rest of the Complainant’s comments were inaudible due to the echo in the room. SO #1 read a caution pertaining to the risk of taking drugs then she asked the Complainant if she had taken anything. The Complainant replied no. The Complainant said that the police officers pulled her out of her car, and she demanded to speak to her lawyer. At 1:36 a.m., everyone left the room.
At 5:42 a.m., WO #1, SO #1 and the Complainant returned inside the breath room. SO #1 read the Complainant the charges against her including failing to provide a breath sample. There was no reaction from the Complainant. SO #1 continued with the list of charges. The police officers offered to take the Complainant home. At 5:53 a.m., everyone left the breath room.
Materials obtained from Police ServiceUpon request the SIU obtained and reviewed the following materials and documents from the OPP:
- Approved Screening Device Demand;
- Call and Booking video;
- Communication Recordings – March 11, 2018;
- Event Details;
- Mobile Public Safety (MPS) Messages regarding OPP Technical Analyst;
- MPS Messages Search;
- Notes of SO #1, WO #1, WO #2, WO #3 and WO #4;
- OPP Detachment Log On Sheet for March 10, 2018;
- Prisoner Custody Report;
- Subject Profile – Charges against the Complainant;
- Training Record for SO #1 and SO #2;
- Witness Statement authored by SO #2; and
- Witness List and Involvement.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) by virtue of his office,
Analysis and Director's Decision
On March 11, 2018, shortly after midnight, the Complainant sustained a broken nose and a concussion when she was arrested by the Ontario Provincial Police (OPP) in Chatham for failing to provide a breath sample. Subject Officer (SO) #1 and SO #2 were designated as subject officers in the SIU’s investigation. Neither subject officer consented to an interview; however, SO #1 provided a copy of her duty notes and SO #2 provided a written statement. The Complainant, five civilian witnesses (CWs) and four witness officers (WOs) were interviewed, and the Complainant’s father and his wife provided a written statement. Text messages and video of the incident were also reviewed. After a thorough review of this evidence, I am satisfied that the force used during the Complainant’s arrest was reasonably necessary and therefore have no reasonable grounds to believe that either subject officer committed a criminal offence in relation to the Complainant’s injuries.
There is no dispute that on March 11, 2018, at around 12:10 a.m., the Complainant was driving in Chatham when her vehicle swerved erratically and she was stopped by SO #1. What happened next is more contentious.
SO #1’s duty notes indicated that she approached the Complainant’s vehicle, smelled alcohol on her breath, and noticed that her eyes appeared glossy. She demanded that the Complainant provide a breath sample and asked her to exit her vehicle. The Complainant insisted on speaking with her lawyer first and SO #1 gave her the opportunity to call a lawyer. As the Complainant spoke on her phone, SO #1 requested via police radio that a second unit attend. When SO #1 returned to the Complainant’s vehicle, the Complainant had not contacted her lawyer and SO #1 advised her she would be arrested if she failed to provide a breath sample. The Complainant continued to refuse to exit her vehicle or to provide a breath sample.
Other WOs and CWs began arriving on scene during this exchange, including WO #1. WO #1 witnessed SO #1 repeatedly explain the breath sample procedure to the Complainant but the Complainant refused to exit the vehicle. At 12:26 a.m., SO #2 also arrived on scene with CW #3, a civilian “ride-along”.
At 12:28 a.m., SO #1 again approached the Complainant’s vehicle and she was still on her phone. SO #1’s notes state that she asked the Complainant to exit her vehicle but the Complainant held her palm up and said she was speaking with her dad. SO #1 repeated her request again and the Complainant said she would not step out of the vehicle. The Complainant then grabbed the keys to her vehicle, which she had previously placed on the passenger’s seat, and put them into the ignition. The dashboard lights of her vehicle flickered on. SO #1 was worried the Complainant would drive away so she opened the driver’s door and grabbed the Complainant to pull her out of the vehicle. The Complainant pulled away, then raised her right arm, made a fist and swung towards SO #1. SO #1 moved back to avoid being struck.
WO #1 was standing on the driver’s side of the Complainant’s vehicle and witnessed this altercation. She confirmed that SO #1 asked the Complainant to get out of the vehicle but the Complainant refused and attempted to turn on the vehicle, illuminating the dashboard. She saw SO #1 lean in to control the Complainant’s right wrist and the Complainant pull away. She saw SO #1 lean further in and push the Complainant’s head down. The Complainant yelled, “Stop fucking pulling my hair you bitch.” The Complainant punched at SO #1 twice but SO #1 backed away to avoid being struck. WO #1 did not see SO #1 strike the Complainant at any time.
SO #2 was standing at the rear of the vehicle and also witnessed this altercation. SO #2 heard SO #1 tell the Complainant to get out of the vehicle but the Complainant refused. Suddenly, SO #1 reached over the Complainant’s lap and attempted to remove something from her hand. The Complainant flailed her arms and SO #1 aggressively attempted to gain control of the Complainant by clutching her arms, shoulders, waist and hair. SO #1 leaned back twice while she grasped the Complainant.
At this point, SO #2 moved in and physically removed the Complainant from her vehicle. SO #2’s written statement indicated that the Complainant stepped out of the vehicle and took a hard swing in the direction of SO #2’s face before he grounded her. However, SO #1 and WO #1 both described SO #2 removing the Complainant from the vehicle and placing her on the ground in one motion. WO #1 commented that the Complainant’s right arm was free, but she made no attempt to break her fall. The Complainant’s nose was observed to strike the roadway, which WO #1 believed caused her injury.
The Complainant continued to resist arrest while on the ground. SO #2 and WO #1 both said that SO #2 controlled the Complainant with his knee on her back, although this was confirmed to be inaccurate on a review of a video of the incident which showed SO #2 putting his knee on the back of the Complainant’s head and neck. The officers quickly handcuffed the Complainant and she was brought to her feet. At this point, SO #1, SO #2 and WO #1 all noticed that there was a significant amount of blood on the Complainant’s face and on the ground.
The Complainant was escorted to SO #1’s police vehicle where SO #1 and WO #1 performed a pat down search. During the search, SO #1 asked the Complainant to look away from the officers because she was bleeding profusely from her face and SO #1 was concerned about the Complainant spitting. The Complainant refused to turn away from the officers so SO #1 held her head in place against the police vehicle.
After the search, the Complainant was placed into the rear of SO #1’s police vehicle and, while facing the open door, spat blood at the officers. WO #1 said the door was closed as a result of the spitting and that it took two attempts to close the door. The Complainant was transported to a hospital but refused treatment.
The allegation contradicts the police witness accounts and states that SO #1 was immediately aggressive towards the Complainant. SO #1 allegedly grabbed the Complainant’s right arm and twisted it,  causing the Complainant to raise her left arm in defence. SO #1 then struck the Complainant in the nose with her right elbow and yelled, “You punched me.” The Complainant’s nose bled. The Complainant was then removed from the vehicle, striking the ground face first. She was pinned face down on the ground and SO #2 placed his knee on the Complainant’s head, forcing her face into the pavement. 
In addition, it is alleged that a police officer slammed the Complainant’s head into the side of the police vehicle several times as she was searched. The Complainant was still bleeding profusely and spat blood as she talked. The officers said, “There’s another assault” after she spat. The Complainant was placed into the police cruiser and one of the police officers slammed the door on the Complainant’s legs in an attempt to close the door.
After a careful review of this evidence, I am unable to form reasonable grounds to believe that an OPP officer unlawfully assaulted the Complainant. I believe that SO #1 was acting within the execution of her lawful duties when she requested a sample of the Complainant’s breath and when she arrested the Complainant for failing to provide a breath sample. It is alleged that the Complainant was never asked to provide a breath sample. However, WO #1 witnessed SO #1 repeatedly explain the breath sample procedure to the Complainant and the remainder of the evidence is also consistent with SO #1 requesting a breath sample.  The fact that SO #1 was heard immediately broadcasting for an approved screening device after she pulled the Complainant over, belies the Complainant’s assertion.  I thus find in all the circumstances that SO #1 requested a breath sample and that the Complainant refused to provide one. The Complainant further insisted that she was never asked to exit her vehicle, however this was contradicted by all the witness officers and two civilian witnesses, who were otherwise highly critical of the police officers’ actions. Given these discrepancies between the Complainant’s account and the accounts of all the other witnesses, I do not believe the Complainant to be a credible witness. Thus in my view, after she refused to provide a breath sample, SO #1 had reasonable grounds to arrest the Complainant for failing to do so.
While it is clear that the OPP officers used relatively significant force during the Complainant’s arrest, I am unable to conclude that the level of force exceeded the scope of that permitted by law. Pursuant to section 25(1) of the Criminal Code, police officers are permitted to use force that is reasonably necessary in the execution of their lawful duties. Although I am unable to determine with certainty exactly what happened, I am satisfied that the subject officers’ use of force fell within the scope of this provision. The Complainant believes her injury occurred when SO #1 struck her in the face, but it is also possible she sustained her injury when she was grounded. I cannot find with certainty that the Complainant was elbowed, as alleged, but even if she were elbowed, I believe it would not have been unreasonable in the circumstances.
Instead, I believe that the Complainant likely sustained her injury when SO #2 took her to the ground face first. While the police witness accounts were not identical with each other and were inaccurate at times , I am satisfied that the Complainant was taken down in a manner that could have caused her injury. I am similarly satisfied that it was necessary and reasonable to ground the Complainant because she, at the very least, appeared to be violent towards SO #1 when she raised her arm or fist and swung towards SO #1 in an apparent punch. It was therefore necessary to control her to protect officer safety and I am satisfied grounding her was reasonable. I have also reviewed CW #1’s video of the arrest and I do not believe SO #2 caused the Complainant’s injury when he pinned her to the ground with his knee on the back of her head and neck. I appears that he did this to control the Complainant while she was being handcuffed and that the Complainant’s injury was already caused at this point as her nose was already bleeding.
Even if I am incorrect and the Complainant’s injury was caused by SO #1 elbowing the Complainant in the face, I am nevertheless satisfied that this use of force would fall within the scope of force permitted by law.  The jurisprudence is clear that the standard to which police officers are to be held is not perfection (R. v. Nasogaluak,  1 S.C.R. 206) nor are police officers expected to measure the degree of their responding force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.). It is clear that the Complainant was not cooperating or exiting the vehicle. I believe the Complainant pulled away from SO #1 to prevent SO #1 from removing her from her vehicle. I also believe that she put the key in the ignition and turned on the dashboard lights, indicating her desire to start the vehicle and flee. It is similarly clear that she raised her arm or fist but did not successfully strike SO #1. In these circumstances, I am satisfied that the Complainant was actively resisting arrest and appeared to be behaving in a violent manner towards SO #1. I also note that the Complainant could have seriously harmed SO #1 if she had successfully managed to drive away while SO #1 was trying to control her in the vehicle. The Complainant would have also presented a potential danger to the public if she successfully drove away if she were, in fact, impaired. I therefore believe that an intentional elbow to the face, when less forceful attempts to gain the Complainant’s compliance had already failed, if it in fact occurred, would not exceed the level of force permitted by law in these circumstances.
In closing, I believe that the Complainant sustained her injury when she was grounded by SO #2 after failing to provide a breath sample. Even if SO #1 elbowed the Complainant, as is now alleged, I do not believe that this action exceeded the scope of force permitted to be used by law. I therefore have no reasonable grounds to believe that either subject officer committed a criminal offence in relation to the Complainant’s injuries and this file will be closed.
Date: February 22, 2019
Special Investigations Unit
- 1) The allegation made to the SIU was that subject officer (SO) #1 elbowed the Complainant. [Back to text]
- 2) The SIU reviewed the OPP radio communications and at 12:15 a.m., on March 11, 2018, SO #1 advised the OPP communications centre that she would be conducting a roadside breath test on the Complainant. At 12:18 a.m., SO #1 requested a second unit to attend with an extra battery for her portable radio. [Back to text]
- 3) Quaere, if the grabbing was intended to be for the purpose of pulling a driver out of the car, why would you grab the driver’s right arm? This would mean that you’d have to reach across the driver’s body, which would be a more difficult action than merely grabbing the left arm and pulling. It is more likely that a grab of the right arm is to prevent the ignition from being engaged. [Back to text]
- 4) At this moment, CW #1 started filming the incident. This video shows the Complainant being restrained on the ground with her nose bleeding profusely. The Complainant was also spitting blood out of her mouth. [Back to text]
- 5) For instance, the other witnesses, civilian and police, were all advised at various times that SO #1 was waiting for the Complainant to provide a breath sample. [Back to text]
- 6) And frankly, in these circumstances, it does not make sense to tell everyone else but the allegedly impaired driver. I do not believe that the Complainant would also not have been advised of SO #1’s intent to take a breath sample. [Back to text]
- 7) For example, SO #1 describes being punched at once while WO #1 describes her being punched at twice. SO #2 said the Complainant took a hard swing at SO #1 after stepping out of the vehicle, but the other police witnesses did not describe this and said SO #2 removed her from the vehicle and placed her on the ground in one motion. SO #2 and WO #1 also said SO #2 placed his left knee on the Complainant’s back but a review of the video shows the knee was on her head and neck. [Back to text]
- 8) This is particularly so as SO #1 was trying to quickly prevent the Complainant from restarting the car and at the same time worrying about being punched by her. It is not disputed that the Complainant raised her arm in a motion that could be interpreted as an attempted punch. [Back to text]