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SIU Director’s Report - Case # 18-OCI-325

Contents:

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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 22-year-old woman (the “Complainant”).

The Investigation

Notification of the SIU

On November 4, 2018, at 3:00 p.m., the London Police Service (LPS) notified the SIU of the Complainant’s injury. According to the LPS, on November 4, 2018, at approximately 7:12 a.m., the Subject Officer (SO) and the Witness Officer (WO) responded to a residence situated at an address on Whetherfield Street for a Mental Health Act (MHA) apprehension.

The LPS was called by CW #1 and CW #2 regarding their daughter, the Complainant. The police officers located the Complainant on the rear deck of the residence. When they attempted to apprehend her, she jumped from the deck and landed on the ground approximately 10 feet below the deck. She attempted to run away but was apprehended. She was transported to the London Health Sciences Centre and treated for her injured heel, and admitted to the hospital’s psychiatric facility pursuant to a ‘Form 1’ under the MHA.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

WO Interviewed



Subject Officers

SO Interviewed, and notes received and reviewed



Evidence

The Scene

The incident occurred at the rear of the Complainant’s residence that featured an elevated wooden sundeck that incorporated a wooden railing on three sides and a flight of stairs for access to the ground.

The height of the sundeck railing over which the Complainant jumped was measured and found to be 1.195 metres. The distance from the top of the railing near the suspected area of impact on the ground was measured and found to be 3.21 metres. The suspected area of impact was examined and nothing of evidentiary value was found.

Communications Recordings

There was nothing in the audio recordings to advance the investigation that was not already known from the Complainant, and from the subject and witness officers and from other LPS data received by the SIU.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the LPS:
  • Communications audio recordings;
  • Detailed Call Summary;
  • Drawing of scene by the WO;
  • General Occurrence (x2);
  • Notes of the SO and WO;
  • Procedure-Emotionally Disturbed etc. Persons;
  • Procedure-Use of Force; and
  • Will State-WO and SO.

Incident Narrative

The material events in question are clear on the information collected by the SIU. About a week before the incident under investigation, the Complainant had been admitted to hospital for a psychiatric assessment, at which time she was prescribed medication. On the day in question, the Complainant advised her parents that she was leaving to be with her “husband”. Her parents were unaware of any marriage having occurred.

Two paramedics arrived at the family home and were met at the front door by the Complainant. She indicated she was fine and closed the door on them. The EMS called for the police to attend.

The SO and the WO arrived at the residence at about 6:40 a.m. on November 4, 2018. The paramedics told them of their experience dealing with the Complainant, noting that she appeared agitated and delusional. The Complainant met with the officers out on the front porch outside the presence of her family. She explained her intentions, namely, to travel to Toronto to be with her husband, and that her parents were upset with her new-found religiosity and were trying to prevent her from leaving. The Complainant appeared variously manic and incoherent; she spoke very rapidly and discussed topics that had little to do with her complaint. The SO began to harbour concerns for her mental well-being.
The SO entered the residence and spoke with the Complainant’s parents. They informed him of the Complainant’s sudden change in personality and recent hospitalization, and noted that she had threatened to kill them and herself when they prevented her the day before from leaving to be with her husband in Toronto. The Complainant’s father indicated that a Form 1 under the MHA authorizing his daughter’s apprehension was in effect, but he could not produce the paperwork other than to show the SO a partial photograph of the form on his cellular phone.

While the SO was on the phone with the hospital attempting to confirm the existence of the Form 1, the Complainant entered the home with the WO. She was extremely agitated and emotional with her father, accusing him of having stolen her health card and driver’s licence. The Complainant proclaimed she was leaving the house, gathered some of her belongings and made for the front doorway. The WO told her they needed her to wait a few extra minutes to allow the SO to ascertain whether there was an outstanding Form 1 in effect for her apprehension. The Complainant was crying loudly and starting to hyperventilate. She said she could not keep her husband waiting any longer and proceeded to make her way briskly past the SO toward a door at the back of the house. The door opened onto a raised deck. The SO attempted to prevent her from exiting through the door but was unable to keep his grip on the back hood of the coat she was wearing. The officer followed the Complainant onto the deck and watched as she climbed over the deck railing and jumped to the ground, some 3 metres below, breaking her left foot in the process. The time was now about 7:12 a.m.

The SO and the WO caught up with the Complainant in front of the residence and apprehended her under the MHA. The officers took her to the hospital where she was admitted for psychiatric assessment and her foot injury diagnosed.

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.

Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Section 17, Mental Health Act -- Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.


Analysis and Director's Decision

The Complainant fractured her left foot during an interaction with LPS officers on November 4, 2018. One of those officers was identified as the subject officer (the “SO”) in the SIU investigation. For the reasons that follow, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injury.

There are two questions that arise insofar as the SO’s potential criminal liability is concerned, namely, did he apply force against the Complainant in excess of what was legally justified in the circumstances, and did he by way of criminally negligent conduct cause or contribute to the Complainant’s injury. Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. The only force in issue was the SO’s failed attempt to prevent the Complainant from entering onto the balcony when he grabbed and then lost hold of the back of the Complainant’s coat. [1] The level of force here at issue was minimal and had nothing to do with the injury the Complainant sustained. Of course, even minimal force constitutes an unlawful assault if it is in aid of an illegal act. Accordingly, the analysis turns to whether the act – the Complainant’s apprehension under the MHA – was legal. I am satisfied on reasonable grounds that it was. By the time the SO attempted to grab hold of the Complainant, he was aware of her recent hospitalization and the fact that she had reportedly stopped taking her prescribed medication. He was also aware of a possible warrant in effect for her apprehension under the MHA. Combined with the Complainant’s behaviour that he had witnessed first-hand – ranging from the delusional, erratic and incoherent in various measure – the officer had cause to be concerned that she was suffering from a mental disorder and might harm herself or others if left to her own devices. In the circumstances, I am unable to conclude that the SO’s decision to apprehend the Complainant under section 17 of the MHA was unlawful.

The offence of criminal negligence causing bodily harm contrary to section 221 of the Criminal Code is predicated, in part, on conduct that amounts to a marked and substantial departure from a reasonable level of care in the circumstances. The SO attempted to lawfully take custody of the Complainant as she made her way onto the rear deck of the home. She was able to break free of his hold and, within seconds of entering onto the deck, jump over the deck railing to the ground below. There was little if anything that the SO could have done, in my view, to prevent the Complainant’s jump. On these facts, I am unable to come to a reasonable belief that the SO exercised a substandard level of care in breach of the requirements of the criminal law.

In the result, there being no reasonable grounds to believe that the force used by the subject officer was excessive or that he otherwise caused or contributed to the Complainant’s fractured foot in a criminally negligent manner, there are no grounds to proceed with charges in this case and the file is closed.


Date: September 13, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) It should be noted that the apprehension that occurred outside the front of the residence was, on the evidence, uneventful. [Back to text]