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SIU Director’s Report - Case # 19-OCI-017

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

The Investigation

Notification of the SIU

On January 22, 2019, at 7:49 a.m., the London Police Service (LPS) reported an injury to the Complainant. The LPS advised that at 8:19 p.m., January 21, 2019, LPS officers responded to the Complainant’s residence to check on her well-being after she sent an email to family members causing them to call 911. The Subject Officer (SO) and the Witness Officer (WO) responded with the SO arriving first. He was let into the home by the Complainant’s friend, Civilian Witness (CW) #2, who was in possession of a garage door opener. The Complainant’s ex-husband, CW #1, was also present.

The SO found the Complainant on her bedroom floor. When he tried to move her she started to struggle, striking him. The SO attempted to arrest the Complainant for assault police and by this time the WO arrived. Both police officers were involved in the arrest and both had control of the Complainant’s right arm during the handcuffing process.

Once under control she was taken to London Health Sciences Centre (LHSC) Victoria Campus where she was admitted on a Mental Health Act Form 1.

At 4:20 a.m. on January 22, 2019, LPS were advised that the Complainant had been diagnosed with a fractured right elbow.

The Team

Number of SIU Investigators assigned: 2
 

Complainant:

52-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, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

This incident occurred in the bedroom of the Complainant’s home.

Communications Recordings


911 and Communications Recordings:

The Complainant’s daughter called 911 requesting police attend her mother’s home after she and her siblings received an email from her leading them to believe she was going to commit suicide. She further said her mother had been previously hospitalized for psychiatric assessment.

The call taker said a police officer would phone her and asked how her mother would react to police attendance. The caller said it was difficult to say and it would depend on her level of intoxication.

In a radio transmission the SO calmly reported “code one” and said he needed one car to assist. The WO then reported he was turning back. The SO then calmly reported he had her on the ground as she was resisting while the Complainant was heard telling him to “get off.”

After the WO’s arrival, the police officers reported, “One in custody.”

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the LPS:
  • Appearance Notice;
  • Call Hardcopy;
  • Communication recordings;
  • Detailed Call Summary;
  • Email from the Complainant;
  • General Occurrence Hardcopy;
  • Notes of the WO;
  • Police Brief Mental Health Screener (BMHS) Report; and
  • Will States of the SO and WO.

Incident Narrative

The material events in question are clear on the weight of the reliable evidence gathered in the SIU investigation, which included statements from the Complainant, the subject officer and his colleague – the WO (who was also involved in the Complainant’s arrest), and two civilian eyewitnesses, as well as police communications recordings and documentary evidence from the police service and the Complainant’s family. Concerned with an email she had received from the Complainant at about 6:30 p.m. of January 21, 2019, suggesting the Complainant was planning to commit suicide, the Complainant’s daughter contacted police and asked that they check on her mother’s well-being.

The SO was dispatched and arrived at the Complainant’s residence at about 8:20 p.m. There he met CW #2, who identified himself as the Complainant’s common law spouse, and CW #1, the Complainant’s former husband, outside the home. CW #2 and CW #1, also concerned about the Complainant’s well-being, had arrived moments earlier to check on her. The three exchanged information and then entered the home. They made their way to the Complainant’s bedroom, whereupon the SO used CW #2’s key to unlock the door and force it open past a bench that had been placed in its path. Once inside the bedroom, the SO found the Complainant on the floor adjacent to the bed. In very short order, the officer found himself engaged in a struggle with the Complainant who reacted violently to being roused by the officer. The SO was able to subdue the Complainant on the bedroom floor while he called for and then waited for the WO’s arrival to assist in her custody.

The SO and WO handcuffed the Complainant and escorted her down the stairs and out to the SO’s cruiser, where she was lodged in the back seat having been arrested for assaulting and resisting a police officer. The Complainant was taken to the LHSC and admitted for examination. On January 22, 2019 it was confirmed the Complainant had been diagnosed with a fractured elbow.

Analysis and Director's Decision

There are no reasonable grounds, in my view, to believe that the subject officer – the SO – committed a criminal offence in connection with the fractured elbow the Complainant suffered in the course of her arrest on January 21, 2019.

The legal issues that arise on the aforementioned scenario are easily resolved. The first asks whether the SO was inside the Complainant’s home lawfully at the time he took her into custody. In my view, he was. In the seminal Supreme Court of Canada decision of R. v. Godoy, [1999] 1 S.C.R. 311, and in cases since then, Canadian courts have recognized the lawful authority of police officers to enter a private dwelling without warrant where they have reasonable grounds to believe it is necessary to do so to protect a person's life or safety. By the time the SO made the decision to enter the home, he had good reason to believe the Complainant’s health and safety were in imminent peril. The officer was aware that the Complainant’s children were sufficiently concerned with the content of an email they had received from their mother, suggesting she was planning on taking her own life, that one of them called the police asking for a check on the Complainant’s well-being. The officer’s telephone call with the Complainant’s daughter en route to the home and his conversation with CW #1 outside the home, the latter indicating that the Complainant had locked herself inside her bedroom and was not responding to his inquiries, would have further buttressed his concerns. In the circumstances, I am satisfied that the SO was acting within his authority when he gained entry to the Complainant’s home and, then, her bedroom using a key provided to him by CW #2, in order to check on her welfare.

The second question is twofold: Was the SO proceeding to lawfully arrest the Complainant at the time he purported to do so and, if so, did he use only such force as was reasonably necessary to effect his purpose. I am satisfied that both inquiries must be answered in the affirmative. When the Complainant lashed out physically at the officer immediately upon being roused, and then continued to struggle with the officer even after being informed of her arrest for assault, she gave the SO reasonable grounds to arrest her for assaulting him and resisting arrest. As for the nature and extent of the force in question, this consisted of the officer grappling with the Complainant over several minutes in an effort to wrest control of her arms. In fact, the popping sound the officer heard, which I presume corresponded with the fracture the Complainant sustained, occurred as the officer was trying to control the Complainant’s right arm as she attempted to pull it away. There is no suggestion in any of this that the SO struck the Complainant at any time. On this record, I am persuaded that the force used by the SO was no more than was reasonably necessary to overcome the Complainant’s physical recalcitrance and execute her arrest.

In the final analysis, while there is little doubt that the SO caused the Complainant’s injury in the course of their struggle, I do not have reasonable grounds to believe that the injury occurred as the result of any criminal conduct on the part of the officer. Accordingly, this file is closed.


Date: October 7, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit