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SIU Director’s Report - Case # 20-OCI-045

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 injury that a 29-year-old woman (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On February 28, 2020, at 5:23 a.m., the Peel Regional Police (PRP) notified the SIU that, at 2:09 a.m., Witness Officer (WO) #3 and the Subject Officer (SO) were dispatched to Maguire’s Irish Pub (Maguire’s) at 284 Queen Street East for an impaired driver. Upon arrival, police officers found the Complainant trying to leave the parking lot. WO #3 and the SO tried to arrest the Complainant and a struggle ensued. During the struggle, the police officers heard a popping sound. WO #1 and WO #2 arrived after the arrest. The Complainant was transported to William Osler Health System - Brampton Civic Hospital (WOHS-BCH) and a physician diagnosed her with a spiral fracture of one of the left humerus.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2

Complainants

Complainant: 29-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 Not interviewed, but notes received and reviewed
WO #2 Interviewed
WO #3 Interviewed


Subject Officers

SO #1 Interviewed and notes reviewed


Evidence

The Scene

Maguire’s Irish Pub was located at 284 Queen Street East in a commercial plaza. Maguire’s was located near the north-west corner of the plaza, unit 126. The front of Maguire’s faced south and the main door was near the south-east corner of Maguire’s. There were four parking spaces in front of Maguire’s. The Complainant’s vehicle occupied one of the parking spaces.

Video/Audio/Photographic Evidence


CW #4’s Cell Phone Video


CW #4 provided a copy of his cellular telephone recording dated February 28, 2020. The recording was eight minutes and 48 seconds in length.

WO #1 and the Complainant’s companion [1] were standing on the sidewalk in front of the Complainant’s car. WO #3’s police vehicle was parked parallel to the Mazda in the parking space beside the driver’s side of the Mazda. The Complainant was facing the passenger side of WO #3’s police vehicle, bent forward at the waist on the hood of WO #3’s police vehicle. The SO was on her left, WO #2 was to her right and WO #3 was standing behind her. The Complainant’s companion was unsteady on her feet, yelling at WO #1 and trying to move closer to the Complainant. WO #1 told the Complainant’s companion to stay where she was.

At 27 seconds into the video, WO #3 was behind the Complainant searching her. The SO was on her left and WO #2 on her right. Someone asked if CW #4 was recording and CW #4 confirmed he was. At 38 seconds into the video, the SO told WO #1 that they needed an ambulance. At 55 seconds into the video, the SO told the Complainant, “Absolutely, listen, you can’t fight us like that,” then, “Listen, why would you fight us? I don’t understand.” The Complainant said, “You guys broke my arm, you guys broke my arm.” She was handcuffed with both her arms behind her back.

At 4:50 minutes into the video, the Complainant was standing outside WO #3’s police vehicle near the rear of the vehicle. The SO was on her left and WO #2 on her right. At 5:07 minutes into the video, the Complainant was seated in the rear of the police vehicle, with the door left open. The Complainant was crying. At 8:30 minutes into the video, the Complainant yelled, “I can’t move my fucking arm.”

Police Communications Recordings


Communication Telephone Recording


The PRP provided the SIU with a copy of telephone communication recordings. The call was ten minutes and 58 seconds in length. At 1:51:07 a.m. on February 28, 2020, CW #3 called the PRP. CW #3 said she was calling from Maguire’s at 284 Queen Street East. There was a girl [known to be the Complainant] causing a ruckus. She told the Complainant not to drive but, at the moment, the Complainant was getting into the car and driving off. CW #3 described the car. She said the Complainant was with a friend [known to be the Complainant’s companion] in the car and they were fighting. The car was in the parking lot with the engine and lights on.

CW #3 said that when the Complainant left Maguire’s, she smashed or kicked a window and tried to break it. As CW #3 was talking, she exclaimed, “Oh my God, she just tried to drive away and instead of reversing she went forward, she didn’t come, oh my God!” CW #3 said the Complainant got out of her car and was “freaking out.” The Complainant drove the car on the sidewalk toward the building. The Complainant reversed and almost hit another car. The other driver had to use the car’s horn. Then CW #3 said the Complainant was reversing and almost struck her vehicle. The Complainant was driving around the parking lot and not leaving. The Complainant and the Complainant’s companion continued to fight in the car. Again, the Complainant was reversing in the parking lot and almost struck another car.

CW #3 asked other patrons at Maguire’s if they knew the Complainant’s name, but no one did. CW #3 said the Complainant was still in the car, but it was parked with the lights on. She was lighting a cigarette. CW #3 also said that three police officers arrived. CW #3 said the Complainant did not realize the police were behind her at the moment. 

Communication Radio Recording


The PRP provided the SIU with a copy of their radio communication recordings on February 28, 2020.

At 1:52:44 a.m., the dispatcher asked for units to attend an impaired driver call at 284 Queen Street East, Maguire’s. An intoxicated woman [known to be the Complainant] got into a black or grey Mazda with her friend [known to be the Complainant’s companion]. The Mazda was still in the parking lot. WO #2 and WO #3, and WO #1, responded to the call.

At 1:55:01 a.m., the dispatcher updated the responding units. The location was the parking lot of Maguire’s and the Complainant drove forward instead of reversing. She almost drove into the bar.

At 1:57:43 a.m., the dispatcher added that the Complainant reversed and almost struck a pedestrian. The Complainant and the Complainant’s friend were fighting in the car, but the car was still in the parking lot. At 2:01:37 a.m., WO #2 said all units were on scene with the Mazda. At 2:04:10 a.m., the SO was added to the call. At 2:07:42 a.m., WO #2 said he was okay and busy. The Complainant could be heard in the background, but her utterances were indecipherable. At 2:09:04 a.m., WO #1 requested an ambulance at Maguire’s. At 2:17:47 a.m., WO #1 said they required a breathalyzer technician at WOHS-BCH and, at 2:19:55 a.m., WO #2 said Emergency Medical Services arrived. At 2:27:55 a.m., WO #3 said he was in the ambulance with the Complainant to escort her to the hospital. Another police officer followed the ambulance.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:
  • Audio Copy Report-Phone Communications;
  • Audio Copy Report-Radio Communications;
  • Communication Recording – Phone;
  • Communication Recording – Radio;
  • Event Chronology;
  • Notes-the SO - 28 February 2020;
  • Notes-all WOs;
  • Occurrence Details;
  • PRP-Directive-Impaired Operation Offences;
  •  RPP-Directive-Criminal Investigations; and
  •  RPP-Directive-Incident Response.

Materials obtained from Other Sources

In addition to the materials received from the PRP, the SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records from WOHS-BCH; and
  • A cell phone video captured by CW #4.

Incident Narrative

The material events in question are clear on the weight of the evidence collected by the SIU, which included interviews with the Complainant, the SO, two other WOs who took part in the arrest and several civilian eyewitnesses. Shortly before 2:00 a.m. on February 28, 2020, CW #3, the bartender and manager at Maguire’s Irish Pub located at 284 Queen Street East, placed a 911 call to police. She was calling to report that an intoxicated woman – the Complainant – was driving a vehicle in the parking lot of the plaza housing the bar. Officers were dispatched to investigate.

The Complainant and her friend, the Complainant’s companion, had been at the bar and were asked to leave due to the Complainant’s level of inebriation and belligerence. The Complainant proceeded to operate her vehicle in a reckless fashion as she travelled forward and back, nearly striking other vehicles parked in the lot. After a few moments of this, the Complainant returned and parked her car in the same parking spot.

Officers arrived on scene at about 2:00 a.m. In addition to the SO, WO #2 and WO #3 were in attendance, together with WO #1. WO #2 approached the Complainant, who was seated in the driver’s seat of her vehicle parked in front of the bar. He spoke with her and made a demand for a breath sample. When the Complainant objected and refused to take the test, the officers decided to take her into custody.

The Complainant verbally and physically resisted her arrest. She twisted and turned, trying to break free from the officers as they took hold of her arms and led her to the front hood of WO #3’s nearby cruiser, where they bent her over. The SO had hold of her left arm and, together with other officers, heard a “pop” in and around the time the handcuffs were being affixed. The “pop” was the sound of the Complainant’s arm breaking.

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

On February 28, 2020, the Complainant’s left arm was broken in the course of her arrest. The SO was among the arresting officers and the one most likely to have caused the fracture. He was identified as the SO for purposes of the SIU investigation. 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 provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. I accept that the officers were proceeding to lawfully arrest the Complainant when they laid hands on her. The Complainant was clearly impaired by alcohol, had operated her vehicle while inebriated, and was sitting in the driver’s seat of her vehicle when first approached by the officers. The issue turns to the propriety of the force used by the officers.

When the Complainant reacted by attempting to pull away from the officers’ hold after having been told she was under arrest, they were entitled to resort to a measure of force to effect their purpose. In my view, they did so lawfully. The Complainant was not much of a physical challenge to the officers and they acted appropriately in employing only moderate force to control her movements. This essentially consisted of the officers grabbing her arms and forcing her over the front trunk of one of their cruisers. For his part, the SO explained he used a “Kimura” hold on the Complainant’s left arm, a technique which he indicated was part of his police training. As I understand it, the maneuver consists of an individual taking hold of a subject’s arm in such a fashion as to create a torqueing effect on the limb. Once applied, any additional pressure placed on the arm by the movement of either party can result in pain or injury. While the force used by the SO would have left the Complainant vulnerable to injury, I am satisfied it was not the SO’s application of the hold per se that resulted in the Complainant’s broken arm so much as it was her physical resistance to it. In arriving at this conclusion, I accept the SO’s evidence that he did not crank or lift the SO’s arm behind her back notwithstanding her efforts to break free, evidence consistent with the general tenor of other evidence.

In the result, as I am unable to reasonably conclude on the aforementioned-record that the SO conducted himself other than lawfully throughout his engagement with the Complainant, there is no basis for proceeding with charges in this case and the file is closed.

Date: August 24, 2020
Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The Complainant’s companion, whose identity is known, declined requests from the SIU for an interview, as was her legal right. [Back to text]