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SIU Director’s Report - Case # 19-OCI-149

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

The Investigation

Notification of the SIU

On June 26, 2019, at 9:29 a.m., the St. Thomas Police Service (STPS) notified the SIU of the serious injury sustained by the Complainant during her apprehension at the request of Child and Family Services (CFS). Reportedly, the Complainant was visiting her mother in St. Thomas and was last seen at 12:30 p.m., and reported missing at 6:25 p.m. The Subject Officer (SO) located the Complainant an hour later and intended to return her to the CFS case worker. The Complainant resisted the efforts of the SO and physically assaulted the officer.

During the struggle while walking to the cruiser, the SO grounded the Complainant and landed on top of her. The Complainant was taken to the station and later complained of shoulder pain. She was taken to hospital that evening and diagnosed with a fractured clavicle.

The Team

Number of SIU Investigators assigned: 4
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

Witness Officers

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


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

The arrest of the Complainant occurred in the vicinity of a residence on Wellington Street, St. Thomas. The site was monitored by several Closed-Circuit Television (CCTV) cameras.

Video/Audio/Photographic Evidence

SIU investigators viewed CCTV video from the scene. One camera view captured the front area of the residence. In that view the SO can be seen with the Complainant prior to being handcuffed. They walked from the residence to the SO’s cruiser which is out of camera range. The Complainant appeared to strike at the SO with her hand. The actual grounding that likely caused the injury was out of camera view.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the STPS:
  • Notes of the SO;
  • Statement of the SO;
  • The communications recording;
  • Aerial photograph of the residence on Wellington Street;
  • The Computer-Assisted Dispatch report;
  • The General Occurrence report;
  • The arrest report of the Complainant;
  • Witness officers’ notes;
  • Statement of WO #2;
  • Statement of WO #3;
  • Statement of civilian witness; and
  • STPS list of involved persons.

Materials obtained from Other Sources

The SIU also obtained the Complainant’s medical records from St. Thomas Elgin General Hospital.

Incident Narrative

The material facts in question are clear on the weight of the evidence gathered by the SIU. In the evening of June 25, 2019, child welfare authorities contacted the STPS to report the Complainant missing. 

The SO was assigned to investigate the Complainant’s whereabouts and return her home. At about 7:40 p.m., the officer found the Complainant at a residence located on Wellington Street. The Complainant was uncooperative. She swore at the SO, made clear she did not wish to go and then physically resisted as the officer took hold of her arm. The Complainant struck the SO’s arm repeatedly and was arrested for assaulting a police officer.

The SO and the Complainant made their way to the officer’s cruiser across the parking lot. Once there, and still faced with a combative Complainant, the SO forced her to the ground and radioed for help. The SO had landed on top of the Complainant and stayed in that position with her weight used to keep the Complainant pinned to the ground pending the arrival of additional officers. With the arrival of WO #1, the Complainant was handcuffed, stood up and lodged in the backseat of the SO’s cruiser.

The SO and the Complainant arrived at the police station at about 10:00 p.m. At about 11:00 p.m., the Complainant was taken to hospital where diagnostic imaging eventually confirmed that she had sustained a broken clavicle bone.

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.

Analysis and Director's Decision

The Complainant suffered a fractured clavicle in the course of her arrest by the SO on June 25, 2019. 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 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 but only insofar as such force was reasonably necessary in the execution of an act that they were authorized or required to do by law. I am satisfied that the SO was at all times in the lawful execution of her duty. Based on information provided by the Complainant’s child protection worker, the officer had cause to believe that the Complainant had breached the terms of her curfew, was a child in need of protection and would be at risk of harm if not apprehended immediately under the provisions of the Child, Youth and Family Services Act, 2017. Accordingly, the SO was within her rights in seeking to apprehend the Complainant for the purpose of returning her to the care of child welfare authorities. The Complainant struck the SO’s arm trying to release her hold and was arrested when her behaviour continued. The Complainant had assaulted the officer and was clearly subject to being arrested.

As for the force used by the SO against the Complainant, I have no hesitation in concluding that it was legally justified. This essentially consisted of the SO having forced the Complainant to the ground and then maintaining the Complainant in that position until the arrival of another police officer. From the moment the SO laid hands on her, the Complainant made it clear she would not go peacefully. She repeatedly swore at the officer and physically resisted her efforts the entire way to the police cruiser. Realizing that the Complainant was of tender years, the SO exercised patience in dealing with the Complainant. That patience came to an end, however, when the Complainant’s behaviour escalated to the point of assaulting the officer; reasonably so, in my opinion. In the circumstances, I am satisfied that the takedown amounted to justifiable force as it would render the Complainant less able to continue her aggressive behaviour. In doing so, it should be noted that the SO took care to first position the Complainant over a patch of grass so as to lessen the impact with the ground.

In the result, while it is apparent that the takedown was the cause of the Complainant’s injury, I am unable on the aforementioned record to reasonably conclude that the SO acted unlawfully in arresting the Complainant and taking her to the ground to effect her purpose. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: December 16, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit