Cruiser and motorbikeCruiser accidentRunners
thick blue gradient line

SIU Director’s Report - Case # 19-OCI-002

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

The Investigation

Notification of the SIU

On January 2, 2019, at 1:52 p.m., the London Police Service (LPS) reported an injury to the Complainant. According to the LPS, on January 1, 2019, at 9:45 p.m., the Complainant was arrested for break and enter after a foot chase. The Complainant resisted arrest and a Conducted Energy Weapon (CEW) was deployed. She was finally taken down to the ground by a member, or members of the LPS. She made no complaint of injury until she was at court on the morning of January 2, 2019, following which she was taken to London Health Sciences Centre and diagnosed with a left foot fracture.

The Team

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

SIU investigators canvassed for closed circuit television (CCTV) data, and interviewed civilian and police witnesses. The SIU forensic investigator photographed the area where the Complainant was arrested and collected exhibits relevant to the incident.

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed


Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The scene of the incident was at the rear of a residence on St. George Street, London.
There was an open area along the side of the residence that led into the backyard. While examining the grassed area along the side of the residence there were defects in the grass that suggested something or someone had been dragged along this area. Direction could not be determined.

The building had a rear entrance. In the area of this entrance were refuse and recycling containers. There was also an area of scattered garbage.

The dwelling had a raised porch area adjacent to a fence. This area led to a dead-end along the south side of the residence. In this area a CEW had been deployed. Two, lime-green ‘blast doors’ from the CEW’s projectile cartridge were located with CEW Anti-Felon Identification Discs (AFIDs) in the immediate vicinity of the blast doors. The blast doors and AFIDs were collected and the latter were subsequently matched to the CEW deployed by the SO.

The SIU forensic investigator and lead investigator also attended a restaurant about one block from the arrest scene. Recent damage to the walls and fixtures of the men’s bathroom, including broken drywall with holes on either side of the toilet near floor-level, and in the ceiling, and superficial damage to the surface of the fixtures was observed and photographed.

Forensic Evidence


Data Downloaded from the SO’s CEW


The data downloaded from the SO’s CEW indicates that it was discharged once for a period of five seconds around the time of the Complainant’s arrest on January 1, 2019.

Video/Audio/Photographic Evidence


LPS 911 Communication Audio Recordings


On January 1, 2019, at about 9:30 p.m., someone from the restaurant called 911 reporting that a man [now known to be the Complainant] had damaged a washroom in his restaurant and that the man was armed with a knife.

The 911 caller pursued the Complainant and confirmed with the 911 operator that in fact the person he was pursuing westbound from his business on foot was a woman and that she had thrown the knife away.

The caller was having difficulty giving the 911 operator clear and unambiguous information, and about seven minutes and forty-seven seconds into the 911 call, he handed his cellular telephone to an unidentified man who was able to communicate more effectively with the 911 operator. About three minutes later, the unidentified man informed the 911 operator that he had tracked the Complainant to the residence on St. George Street and that LPS officers had arrived.

Video/Audio/Photographic Evidence


LPS Station Video


The booking video, with audio, depicted the Complainant’s presentation to the booking sergeant during which, at about 10:30:55 p.m., she complained, “My foot hurts,” and glanced at her left foot momentarily then continued with giving the sergeant a false name and asking for water. She was evasive answering the booking sergeant. She admitted drinking alcohol and consuming “a lot of cocaine.” She reported that the SO told her if she ever tried to stab him again, he would kill her.

When asked if she had any health issues or medical concerns whilst in police custody, the Complainant stated, “I’m allergic to amoxicillin, I have a real high intolerance to drugs at this point. I’m pretty bruised back here and the back of my head.” When asked if she had any injury, the Complainant responded that she had bruises on her back and elbows and on the back of her head and that she takes Percocet tablets “illegally” saying it’s “an addiction problem.” The procedure concluded with the sergeant telling the Complainant she was not leaving the police station until they find out her real name, and the Complainant saying, “I’m high as shit right now” and that she would talk to them when she has spoken to her lawyer and when sober. As she was escorted to the fingerprint area, she commented, “Hey hey…my ankle’s fucked up.”

In the fingerprint area, the Complainant complained that what the police were doing was “illegal” by denying her water, denying her healthcare and complaining that her ankle was “fucked up,” and that she was being forced to submit to fingerprinting. She said she deserved to be taken to the hospital and to be given water. The LPS cadet who was preparing to collect fingerprints from the Complainant left the room for a few moments to consult with other LPS officers and returned to inform the Complainant she would be taken to the ‘phone room’ when this was done.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the LPS:
  • Cell Book-In info-the Complainant, including custody area videos;
  • CEW assignment document (x2);
  • CEW data download (x2);
  • Communications audio recordings;
  • General Occurrence Report including witness officer notes of WO #1;
  • In-service training 2018-the SO;
  • In-service Training Schedule;
  • Notes of witness officers;
  • Photographs;
  • Procedure-CEW;
  • Procedure-Use of Force;
  • Seized Property;
  • Taser Requalification Certificate-the SO;
  • Taser Requalification sign-in-the SO;
  • Will State-WO #6; and
  • Will State-WO #5.

Materials obtained from Other Sources

The Complainant’s medical records were obtained and reviewed.

Incident Narrative

The following sequence of events around the Complainant’s injury emerges relatively uncontested in the evidence collected by the SIU. In the evening of January 1, 2019, the Complainant was significantly intoxicated by alcohol and cocaine. While at a restaurant near the scene of her arrest, she damaged the men’s bathroom and then fled the premises. Police were called by someone at the restaurant, who was on the phone chasing the Complainant on foot. He reported that the Complainant was in possession of a knife, and then indicated she had thrown it away. Police officers arrived in the area. At about 9:45 p.m., the SO located the Complainant in the rear of a property at St. George Street and proceeded to take her into custody following a physical altercation that included the officer discharging his CEW once for a period of five seconds.

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 430, Criminal Code -- Mischief 

430 (1)  Every one commits mischief who wilfully
(a)  destroys or damages property;
(b)  renders property dangerous, useless, inoperative or ineffective;
(c)  obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d)  obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

Analysis and Director's Decision

The Complainant was arrested by the SO on January 1, 2019 at the rear of a residential property on St. George Street, London. The following day, she was seen at hospital and diagnosed with a fractured left foot. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and 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 is reasonably necessary in the execution of an act that they are required or authorized to do by law. There appear to have been sufficient grounds for the Complainant’s arrest for mischief, contrary to section 430 of the Criminal Code, based on the damage she was reported to have done to the men’s bathroom of a restaurant from which she had taken flight. The real question is whether the SO used excessive force in effecting the Complainant’s arrest.

While it appears that the SO and the Complainant were engaged in an altercation of some type as the officer attempted to arrest her, the details of the altercation are not entirely clear. There is evidence suggesting the SO chased the Complainant into an alley and deployed his CEW, causing her to fall to the ground. This evidence suggests the SO restrained the Complainant’s arms in handcuffs before kicking her in the head a couple of times. Acting in self-defence, the Complainant picked up a pair of scissors lying on the ground beside her but then dropped them. While handcuffed and still face down on the ground, the SO grabbed her left foot with both hands and snapped it broken.

If true, the foregoing version of events would certainly provide reasonable grounds for charging the SO with an unlawful assault. However, the source of this information was intoxicated and lacked recall of the incident. With respect to the mechanism of the Complainant’s injury, the was other evidence suggesting that her fracture did not likely occur as described, but, rather, was the result of the Complainant rolling her ankle.

The SO did not interview with the SIU or authorize the release of his notes, as was his legal right. However, in utterances made to other officers in the wake of the arrest, the SO reportedly asserts that the Complainant wielded a pair of scissors in his direction as he attempted to take her into custody, prompting the officer to deploy his CEW at close range. Indeed, his right pant leg was photographed and seen to be ripped in several places. His right leg was also photographed, depicting a cut to the officer’s calf / shin area just below the knee. The SO is said to have also indicated that, following the CEW discharge, he was able to handcuff the Complainant following a struggle.

On the aforementioned record, I am unable to reasonably conclude that the force used by the SO fell outside the range of what was reasonably necessary in the circumstances to arrest the Complainant. All that can be ascertained with any degree of confidence is that the SO was confronted with the Complainant, who was intoxicated, resisting arrest and wielding a pair of scissors in his direction, and that he responded with a single CEW discharge, following which she was taken into custody. It seems to me that the SO’s resort to force in these circumstances was a measured and proportionate response to the risk at hand that fell within the latitude of permissible force prescribed by the criminal law.


In the result, whatever the cause of the Complainant’s fractured left foot, I am satisfied there are no grounds for proceeding with criminal charges against the SO and the file is closed.


Date: October 7, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit