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SIU Director’s Report - Case # 19-PCI-152

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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 17-year-old youth (the “Complainant”).

The Investigation

Notification of the SIU

On June 27, 2019, at 10:51 a.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury.

The OPP reported that on June 27, 2019, at 2:30 a.m., the Complainant was a passenger in a stolen vehicle. The vehicle was owned by the Complainant’s mother, who then did not want to support charges. The Complainant was intoxicated, and her mother refused her return. The driver of the vehicle had advised the police officers that the Complainant had earlier spoken of suicide. The Subject Officer (SO) was transporting the Complainant to the station when the back-passenger door opened. The SO applied the brakes as the Complainant fell out of the vehicle, injuring herself. The Complainant was not handcuffed, and the window was down with bars blocking any exit through the window. Emergency Medical Services responded and transported her to the Lake of the Woods District Hospital (LWDH). The Complainant was diagnosed with having a fractured right ankle and was awaiting transfer to Thunder Bay for surgery.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Subject Officers

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


Evidence

Scene

The scene was the backseat of the SO’s police cruiser.

Figure 1- The SO's cruiser which the Complainant fell from.

Figure 1- The SO's cruiser which the Complainant fell from.

Figure 2 - A close-up of the bars on the back window with a measuring tape showing their spacing.

Figure 2 - A close-up of the bars on the back window with a measuring tape showing their spacing.

Forensic Evidence


Summary of Mobile Public Safety (MPS) Data

3:34:55 a.m. - 3:38:18 a.m. Unit #1 is travelling from northwest on Hwy # 17A just west of 5th Street South to the traffic circle exit westbound on Hwy 17A, pulls into the parking area, and remains stationary.

4:03:32 a.m. - 4:07:59 a.m. Unit #1 left the parking area and arrived at the residence of the stolen vehicle’s driver.

4:09:50 a.m. - 4:10:22 a.m. Unit #1 is travelling at 45 km/h.

4:11:14 a.m. Unit #1 turns onto Valley Drive and continues at speeds between 40 and 72 km/h.

4:12:03 a.m. - 4:12:25 a.m. Unit #1 is on Ninth Street North at 35 km/h and then at 82 km/h.

4:12:32 a.m. Unit #1 crosses Main Street Rideout at 77.7 km/h.

4:12:36 a.m. Unit #1 is stationary just east of Main Street Rideout.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • Computer-Assisted Dispatch-Event Details;
  • MPS data and related records;
  • Notes of an undesignated officer;
  • Unit History;
  • Communication recordings; and
  • OPP Photos.

Materials Obtained from Other Sources

Upon request the SIU obtained and reviewed the following documents from the LWDH:
  • Medical records of the Complainant.

Incident Narrative

The material events in question are not in dispute. At about 3:30 a.m., on June 27, 2019, the OPP received a call from a woman indicating that her daughter – the Complainant – had just stolen her vehicle from her home in Kenora. About ten minutes later, the SO, who was on patrol, radioed that he had located and stopped the vehicle. In the front passenger seat was the Complainant. The driver was another woman. The Complainant was intoxicated.

The SO did not arrest either of the females as the Complainant’s mother did not wish for any charges to be laid. The officer lodged them in the backseat of his cruiser and drove first in the direction of the driver’s home to drop her off. While there, the driver’s mother informed the officer that her daughter and the Complainant had taken the car to drive to a bridge as the Complainant wanted to commit suicide by jumping from the bridge.

Upon learning of the Complainant’s intentions, the SO decided to arrest her for public intoxication as her mother had earlier advised the officer that she did not wish her daughter returned home while she was intoxicated. While on Ninth Street North in the area of Main Street Rideout en route to the detachment, the Complainant, who was seated in the back behind the driver’s seat, opened the door and exited the cruiser. The SO, hearing the door open behind him, applied the brakes as the Complainant was in the process of leaving the vehicle.

The Complainant fell to the ground beside the police vehicle as it came to a stop. She complained of foot pain and was transported to hospital via ambulance.

Relevant Legislation

Section 219, 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 31(4), Liquor Licence Act -- Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,
(a) In a place to which the general public is invited or permitted access; or
(b) In any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

Section 31(5), Liquor Licence Act – Arrest without warrant

31(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.  

Analysis and Director's Decision

In the early morning of June 27, 2019, the Complainant broke her right ankle when she jumped from the rear seat of a moving police cruiser. The Complainant was in the custody of the SO, who was driving the cruiser back to the OPP detachment at the time. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injury.

The offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is predicated, in part, on conduct that amounts to a marked and substantial departure from a reasonable level of care in the circumstances. The fact that the Complainant was able to jump out of a moving police cruiser is disconcerting. Having placed her under arrest pursuant to section 31(5) of the Liquor Licence Act, lawfully, in my view, given her state of intoxication, lack of a place to stay and suicidal ideations, the SO was under a legal obligation to ensure the Complainant’s safety while she was in his custody. He failed to do so. Arguably, the officer ought to have handcuffed the Complainant prior to lodging her in the cruiser and ensured the backseat windows were rolled up, especially knowing as he did of her desire to harm herself. Neither happened and, as a result, the Complainant was able to slip her hands through the bars of the open window and open the rear door from the outside. On the other hand, the SO’s failure to restrain the Complainant’s hands is tempered to an extent by the fact that she was a young person and had been arrested primarily so the officer could take her to a safe location while she sobered, and not for any law enforcement purposes. It is also important to note that the SO reacted quickly as soon as he heard the rear door opening and slowed the vehicle significantly by the time the Complainant hit the ground, thereby minimizing the potential for even greater injury. In the final analysis, while it would appear the SO shares in some of the responsibility for the injury to the Complainant, I am unable to reasonably conclude on balance that his conduct was so wanting as to transgress the limits of care prescribed by the criminal law.

In the result, as I am not satisfied on reasonable grounds that the SO’s conduct amounted to marked and substantial deviation from the level of care that a reasonable person would have observed in the circumstances, there is no basis to proceed with criminal charges and the file is closed.

Date: December 9, 2019


Original signed by

Joseph Martino
Interim Director
Special Investigations Unit