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SIU Director’s Report - Case # 19-OCI-238

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 the injuries that a 32-year-old woman (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On Monday, September 30, 2019, at 11:00 a.m., the Guelph Police Service (GPS) notified the SIU of an injury to the Complainant. The GPS understood that at 1:00 a.m., that same date, the Complainant was arrested at her residence for domestic assault. She was armed with a knife and resisted. At the police station, she complained of pain in her ribs and was taken to the Guelph General Hospital where she was diagnosed with a fractured 10th rib on her left side. 

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 32-year-old female interviewed, medical records obtained and reviewed


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Not interviewed, notes received and reviewed
WO #7 Not interviewed, notes received and reviewed
WO #8 Not interviewed, notes received and reviewed
WO #9 Not interviewed, notes received and reviewed


Subject Officers

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




Evidence

The Scene

The incident occurred just outside the front entrance of an apartment unit on the 3rd floor of a building on Eramosa Road, Guelph.

Physical Evidence

Data downloaded from WO #2’s CEW indicates that, on September 30, 2019, it was discharged three times, each time for a one second duration, starting at the following times: 1:02:17 a.m., 1:02:30 a.m., and 1:02:37 a.m.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the GPS:
  • Civilian Witness Statement containing allegations against the Complainant;
  • Custody Tracking Form detailing the Complainant’s custody;
  • A list of all documents and other evidence in connection with this case that the GPS disclosed to the SIU;
  • Computer-Assisted Dispatch details relating to the GPS’s interactions with the Complainant;
  • Redacted notes from WO #6;
  • Unredacted notes from WOs #1-5, #7-8.
  • Crown Brief Synopsis listing and discussing criminal charges against the Complainant;
  • Crown Brief Synopsis listing and discussing criminal charges against the Complainant’s former partner;
  • Records relating to WO #2’s deployment of a CEW during this incident; and
  • Will-Say notes from WO #9.

Incident Narrative

On September 30, 2019, following a dispute between the Complainant and her former partner, GPS officers attended at her residence and placed her under arrest for the offences of assault and mischief to property, contrary to the Criminal Code. Following her arrest, the Complainant was transported to the GPS station, where she was lodged in the cells. She was later transported to the hospital where she was diagnosed as having sustained a fracture to one of her ribs. There is some evidence the Complainant’s injury was caused by an excessive use of force by the SO.

The SIU’s investigation into the circumstances surrounding the Complainant’s injury consisted of interviews with the Complainant, the SO, and five WOs. The SIU also obtained and reviewed the notes of four additional WOs and the statement of a civilian witness. From a review of this evidence, and for the reasons that follow, I am unable to find that the force use against the Complainant was excessive and therefore have no reasonable grounds to believe that any police officer committed a criminal offence in relation to her injury.

The reliable evidence before me establishes the following factual scenario.

During the late evening hours of September 29, 2019, the Complainant was observed, by an independent civilian witness, assaulting her former partner. The witness also observed the Complainant to receive an injury to her eye, which the witness opined was as a result of the Complainant’s own bracelet striking her in the eye. A second witness later observed the Complainant to slash all four of the tires on her former partner’s car with a knife. Both of these witnesses relayed their observations to police, based upon which the police officers investigating the incident, WO #3 and WO #5, formed reasonable grounds to arrest the Complainant for the offences of assault and mischief to property. Prior to approaching the Complainant’s residence, however, based on a concern as a result of prior incidents of violent behaviour on the part of the Complainant, WO #3 and WO #5 called for assistance. WO #1 and WO #2 and the SO responded to the call.

Shortly after 12:42 a.m. on September 30, 2019, four of the police officers attended at the door of the Complainant’s residence on the 3rd floor of the building located on Eramosa Road, while WO #1 positioned himself at the rear of the property in case anyone tried to exit the property. WO #5 knocked on the Complainant’s door and the Complainant answered, following which WO #5 advised her that she was under arrest for assault and mischief. The Complainant immediately became uncooperative, claiming that she did not know what they were talking about, while placing one hand behind her back. As arranged in advance, WO #5 and WO #3 grabbed the Complainant by one arm each, and handed her over to the SO, while they entered the unit to search for the former partner, who was in breach of a court order by having contact with the Complainant.

The Complainant became very resistant towards the SO and WO #2, flailing her arms and pulling away from the officers, as she attempted to regain entry into her apartment. The Complainant was repeatedly told to stop resisting. When she continued to flail about, the SO and WO #2 took her to the floor of the stairwell landing, face down, by grabbing her shoulders. The Complainant immediately placed her hands under her body. Since the police officers were in possession of information that the Complainant had earlier been in possession of a knife, it was of utmost importance that the officers gain control over the Complainant and ensure that she was not armed. The SO repeatedly told the Complainant to show her hands. When the Complainant moved her hands toward the jacket she was wearing, the SO delivered one closed-fist punch to the lower left side of her back.

Because of the tight quarters of the landing, and the stairs leading up to them, WO #2 repeatedly lost his footing as the Complainant continued to thrash about. The Complainant tried to kick the SO and WO #2 and, at one point, grabbed a hold of the banister. The SO, who was extended over the Complainant, got his foot entangled in the wrought iron railing and he yelled out, at which point WO #2 moved in and deployed his CEW in drive stun mode (meaning the CEW was applied directly to the Complainant’s body) three times. [1] The first deployment of the CEW was to the Complainant’s lower back area, which caused her to scream, but she continued to thrash about; the second and third were to her thigh and upper leg area, at which point the Complainant stopped thrashing about and was handcuffed and removed from the area.

While allegations were made that the Complainant received her rib injury when the SO placed his knee on her back and a foot hit her left side, I am unable to place any credence in this version of events as it is materially contradicted by other reliable evidence. For example, while the allegation claims that the Complainant received the injury to her eye when her former partner headbutted her in the face, an independent civilian witness observed that it was, in fact, the Complainant who was assaulting the former partner, while the former partner at no time retaliated. Furthermore, the witness observed the Complainant to receive her injury while she was assaulting her former partner, possibly as a result of her own bracelet flying off her wrist and striking her in the face. Additionally, while the allegation denied that the Complainant had ever been in possession of a knife and denied that the Complainant had slashed her former partner’s tires, a second independent witness observed the Complainant to do so. On this basis, I am unable to place any credence in the version of events that is more incriminatory towards the SO. In contrast, I find that the evidence of the five police officers interviewed is consistent in all aspects. As such, where the evidence of the incriminating allegation is inconsistent with that of the police officers, I have relied on the evidence of the police officers as accurate.

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

Pursuant to section 25(1) of the Criminal Code, a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. The SO and WO #2 were in the execution of their duties in arresting the Complainant for assault and mischief on the information supplied by two independent civilian witnesses that the Complainant had assaulted her former partner and had slashed all four of the tires on her former partner’s motor vehicle. [2] Based on the information received that the Complainant had earlier been in possession of a knife, I have no difficulty in finding that when the Complainant continued to refuse to show her hands and continued to thrash, kick out, and flail about as the officers were attempting to handcuff her, there was some urgency in getting the Complainant under control and restrained for the safety of the officers and the Complainant. On this basis, I find that the action of the SO, in delivering a single blow to the Complainant’s left back area, did not constitute an excessive use of force in these circumstances. I find that this conclusion is further emphasized by the fact that the Complainant continued to fight and thrash about even after the blow was delivered and was only subdued when WO #2 deployed his CEW against the Complainant on three different occasions over a period of some 20 seconds.

On this record, while the single blow delivered by the SO was very likely the source of the Complainant’s injury, I am satisfied that this level of force was reasonably necessary in the circumstances to not only ensure that the Complainant was prevented from accessing a possible weapon, but also to subdue the Complainant, whose resistance, despite her diminutive size, was unflagging and continued over several minutes, only subsiding when she was finally subjected to the discharge of WO #2’s CEW. Accordingly, I am unable to form reasonable grounds to believe that either of the SO or WO #2, or any of the police officers involved in the arrest of the Complainant, committed a criminal offence in connection with the Complainant’s injury. As such, no charges will issue, and this file is closed.


Date: May 4, 2020

Electronically approved by


Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) This is confirmed by the downloaded data from WO #2’s CEW, which recorded the CEW as being deployed on three occasions, for a duration of one second on each occasion, with the first deployment at 1:02:17 a.m., the second at 1:02:30 a.m. and the third at 1:02:37 a.m. [Back to text]
  • 2) There is some question whether the Complainant was arrested inside or out of her apartment. In the absence of exigent circumstances, police officers generally require a Feeney warrant to forcibly enter into a dwelling-house to effect an arrest. Named after the Supreme Court of Canada decision in R. v. Feeney, [1997] 2 SCR 13, a Feeney warrant, obtained pursuant to sections 529 and 529.1 of the Criminal Code authorizes such entry. In the final analysis, the point is of no import as I am satisfied that the officers were within the exigent circumstances exception to the warrant requirement given their information that the Complainant was in possession of a knife that she had used to slash her former partner’s car tires, her former partner was inside the apartment, and the Complainant had assaulted her former partner a short time ago. [Back to text]