RunnersCruiser and motorbikeCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 18-PCI-237

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 a serious injury sustained by a 51-year-old woman (the “Complainant”).

The Investigation

Notification of the SIU

On August 7, 2018, at 2:25 p.m., the Ontario Provincial Police (OPP) contacted the SIU and relayed the following information.

On August 5, 2018, at about 3:00 p.m., OPP responded to a residence in Barry’s Bay in relation to a domestic disturbance call. Upon arrival, police officers spoke to the Complainant who was seated on the front porch of the residence. OPP police officers went inside the residence and spoke with the Complainant’s mother. The Complainant does not reside with her mother and had been visiting for approximately one week. After speaking with the Complainant’s mother, OPP police officers informed her that she was no longer welcome at the residence and she was to leave within five minutes. The Complainant then became defiant and was subsequently arrested for failing to leave premises when directed. The Complainant was physically removed from the residence and placed into a police vehicle. She was returned to the Killaloe OPP detachment where she was held overnight in order to prevent a further breach of the peace. She was released in the morning charged under the Trespass to Property Act (TPA). Upon her release, the Complainant attended St. Francis Memorial Hospital where she was diagnosed with a fractured elbow.

The Team

Number of SIU Investigators assigned: 2
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Not interviewed, but notes received and reviewed
WO #3 Not interviewed, but notes received and reviewed


Police Employee Witnesses

The notes from one police employee witness were received and reviewed.


Subject Officers

SO Interviewed, and notes received and reviewed



Evidence

The Scene

The arrest scene is inside a home in Barry’s Bay. The house was a very large bungalow situated on a corner lot. The arrest took place in the large kitchen area near the sink/counter top area opposite the fridge.

Video/Audio/Photographic Evidence


Cell Video Summary:


The video is 13 hours and 9 minutes in duration commencing at 6:48 p.m., on Sunday, August 5, 2018, to 7:57 a.m., on Monday, August 6, 2018. There is no audio.

At 6:48 p.m., on Sunday, August 5, 2018, the Complainant is placed in the cell inside the OPP Killaloe Detachment. She is observed swinging both arms side to side and appears to be doing stretching exercises. She has no issues using both hands/arms at this time;

At 6:53 p.m., the Complainant is observed looking at her left arm and elbow area, rubbing and squeezing it with her right hand;

At 8:14 p.m., the Complainant removes an outer layer of her top clothing and makes a makeshift sling supporting her left arm;

At 10:31 p.m., a uniformed police officer enters into the cell and is seen speaking with the Complainant (there is no audio);

At 12:42 a.m., the same uniformed police officer entered into the cell and looked closely at the left arm of the Complainant. He picked up a white colored Styrofoam cup and left the cell, leaving the cell door open. He entered back into the cell and wearing a black coloured pair of gloves closely examined the left arm area of the Complainant. He remained inside the cell for a few minutes having a conversation with the Complainant then pointed to the cell camera and left the cell, closing the door;

At 6:18 a.m., the same uniformed police officer entered into the cell and again looked at the left arm of the Complainant. He was observed lightly touching her elbow area with his right hand. The Complainant did not react to that and the police officer was observed standing near the open cell door and had a conversation with her. He appeared to use a motion with his own arm, requested the Complainant to try and stretch her left arm out, which she did slowly and with some discomfort; and

At 7:57 a.m., the cell door was opened and the Complainant was observed walking out of the cell and the video ends.

Communications Recordings


911 Call to OPP:


The recording is 10 minutes and 54 seconds in duration and commences at 4:34 p.m.

911: Ontario Provincial Police, where is your emergency?

CW #1: CW #1 tells the dispatcher that she lives in Barry’s Bay and there is a mother and daughter living near her. There has been yelling and arguing going on for about two weeks between the two. All afternoon today the mother and daughter have been yelling and screaming and she is afraid the daughter is going to hurt the mother.

911: And you are afraid the daughter is going to hurt the mother?

CW #1: The last thing CW #1 heard was the daughter yelling at her mother saying she could have broken her ‘fucking’ face if she wanted to.

CW #1: She described the daughter as being in her 40s and provided the mother’s name and address.

911: She said she could have broken her?

CW #1: The daughter said she could have broken her ‘fuckin’ face and this fighting has been going on for two weeks. It is constant and she is concerned about the mother’s safety.

911: Is she in there with her mother?

CW #1: No she is visiting from Burlington and she will not leave. The daughter tried to break her glasses according to another neighbour. The daughter has a bipolar disorder and according to the mother, her daughter is not taking her medication that has been prescribed to her.

911: What is your name?

CW #1: I don’t want to get involved but name is [CW #1]. All the neighbours have heard the yelling and screaming all afternoon.
911: Have you seen any weapons?

CW #1: She has not seen any weapons but has heard the mother’s voice so she assumes she is okay. This has been going on for a long time, she has been putting it off but had to call in.

911: The 911 dispatcher called the OPP communication dispatcher to have the call dispatched.

OPP Dispatcher (Smiths Falls): Advised responding OPP units of a family dispute call in Barry’s Bay called in by a concerned neighbour involving a mother dealing with a 40-year-old daughter who has bipolar disorder who is not taking her medication and it sounds like a well-being check.

OPP Communications Summary:


On Sunday, August 5, 2018, at 4:40 p.m., the OPP dispatcher broadcast a well-being check in Barry’s Bay to area patrol officers advising that a concerned neighbour called and is concerned about a family living next door involving a 40-year-old daughter who was bi-polar and was not taking her medication.

OPP police officers were tied up on other calls and the dispatcher advised he would hold the call until a unit became available.

At 5:30 p.m., the SO and WO #1 told the OPP dispatcher they were on the way to the call, arriving on scene at 5:42 p.m. At 6:13 p.m., WO #1 asks the OPP dispatcher to check the Complainant on CPIC. At 6:25 p.m., the SO told the OPP dispatcher they are en route to the OPP Killaloe Detachment with one woman under arrest and arrived at the detachment at 6:42 p.m.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • Communications (x2)
  • Email from WO #1 re Female in Cells-Aug 6, 2018;
  • General Report;
  • Notes of the SO, all witness officers and a special constable;
  • Occurrence Details;
  • OPP Request for Comm Tape;
  • Prisoner Custody Report;
  • Prisoner Log;
  • Prisoner Meal Log;
  • Prisoner Security Check; and
  • Training Records of the SO and WO #1.

Incident Narrative

The material events in question are largely uncontested. In the evening of the day in question, the SO and his partner, WO #1, arrived at an address in Barry’s Bay to investigate a 911 call that had been received. The call had been made by a neighbour, complaining of a prolonged and loud argument between a mother and daughter inside the house. The neighbour also expressed concern for the mother’s well-being, noting that the daughter – the Complainant – had threatened to assault her. The officers found the Complainant outside the residence. She was irritated with the police presence and asked to know who had called them. The officers were welcomed inside the home by the Complainant’s mother. She told them that her daughter had been living with her the last couple of weeks and had been abusive. The Complainant’s mother was tired of the constant fighting and wanted the Complainant out of the house. The Complainant was asked to leave by the officers, but refused. The SO told her she had a short period of time to gather her belongings and leave, or she would be arrested. The Complainant objected, arguing she needed more time to pack her stuff. When some time had passed and it seemed clear to the officers that the Complainant had no intention of leaving any time soon, the Complainant was placed under arrest. The Complainant’s hands were secured behind her back and she was escorted out to the officer’s cruiser and lodged in the back seat, whereupon she was taken to the police station and lodged in cells. The following morning, the Complainant was released from custody, attended hospital and was diagnosed with a left elbow fracture.

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 2(1), Trespass to Property Act -- Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Section 9, Trespass to Property Act – Arrest without warrant for trespass

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

Analysis and Director's Decision

The Complainant was arrested by OPP officers on August 5, 2018. It appears she suffered a fracture to her left elbow in the course of having her arms handcuffed behind her back. The SO was one of the arresting officers and the subject officer in the SIU’s investigation. I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injury.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of an act that they are required or authorized to do by law. I have no hesitation in finding that the officers were within their rights for arresting the Complainant under the Trespass to Property Act (TPA). When the Complainant repeatedly refused to leave the premises at the direction of the officers, acting on the wishes of her mother, she committed an offence under the statute and was subject to arrest without warrant pursuant to sections 2 and 9 of the TPA. While there is some evidence suggesting the SO forcefully grabbed the Complainant’s left arm as he moved in to arrest and handcuff her, all other witnesses, while acknowledging the officers taking hold of the Complainant and handcuffing her, describe only minimal force having been applied. More specifically, while the officers concede that some force was used to control the Complainant as she resisted the officers’ efforts to restrain her, at no point was the Complainant punched, kicked or otherwise struck. On this record, while it seems likely that the Complainant’s left arm was fractured in the course of her arrest, I am unable to reasonably conclude that the officers ran afoul of the limits prescribed by the criminal law when they wrested control of the Complainant, who was combative, and took her into custody.


Date: August 19, 2019



Joseph Martino
Interim Director
Special Investigations Unit