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SIU Director’s Report - Case # 20-OCI-170

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 54-year-old woman (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On July 13, 2020, at 2:54 p.m., the Sault Ste. Marie Police Service (SSMPS) reported a possible injury to the Complainant.

The SSMPS reported that the SSMPS Mobile Crisis Response Team (MCRT) attended the Complainant’s residence for a mental health issue. The Subject Officer (SO) apprehended her under the Mental Health Act (MHA) and took her to the hospital.

At 2:00 p.m., while the Complainant was being examined under the MHA’s authority by a doctor, she became assaultive towards staff and the police officers. The SO grounded the Complainant, causing a suspected fracture to the right arm. The hospital would not confirm the injury but advised she was heading to surgery.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 54-year-old female not interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Notes reviewed, interview deemed not necessary


Subject Officers

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


Evidence

The Scene

The incident occurred inside a room of the Emergency Unit of the Sault Area Hospital (SAH).

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following:
  • Video from the SAH.


Video from the SAH Summary


At about 2:15 p.m. of July 13, 2020, the Complainant was attempting to exit a room. The SO entered the room, pushing the Complainant back into the room and turning her so that she landed on the bed. The Complainant used her feet to kick at and push against the SO’s legs and torso. The SO was able to hold her down on the bed on her back, but she continued to use her feet to kick and push in the area of his head and shoulders. Two nurses were present in the room.

The SO placed his right leg onto the bed in the area of the Complainant’s arm, but the exact position was unclear as the view was blocked by his body. Then, the SO had both feet back on the floor. More nurses and other staff arrived to assist. The SO held her right arm until relieved by additional security staff. He left the room, wiping his nose.

Police Communications Recordings


911 Communications Recording:


CW #1, a landlord and caregiver, called police and reported that the Complainant had refused to take her medication and was schizophrenic. She had urinated in the cat litter box or on the floor, and was breaking things in the house.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the SSMPS:
  • Civilian Statements;
  • Communications recordings;
  •  Notes-all WOs;
  • Notes-the SO;
  • Photos of the SO;
  • SSMPS Policy-Mental Illness;
  • SSMPS Policy-Use of Force;
  • SSMPS-Arrest Report and Checklist;
  • SSMPS-General Report;
  • SSMPS-Mental Health Contact Form;
  • SSMPS MCRT Agreement with SAH;
  • Training Record-Use of Force recertification-the SO; and
  • Video from the SAH.

Materials obtained from Other Sources

In addition to the materials received from the SSMPS, the SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s Medical Record-the SAH.

Incident Narrative

The events in question are clear on the information collected by the SIU, which included interviews with civilian eyewitness to the incident that resulted in the Complainant’s injury. As was his right, the SO did not interview with the SIU. He did, however, authorize the release of his incident notes. As for the Complainant, the state of her mental health precluded an interview. The investigation also benefitted from a video recording from a hospital camera which captured the incident resulting in the Complainant’s injury.

In the morning of July 13, 2020, the Complainant’s landlord, CW #1, contacted police expressing concerns about his safety as well as that of the Complainant. CW #1 reported that the Complainant had not been taking her medication for schizophrenia, and was urinating in a litter box and breaking things in the house.

The SO was dispatched to investigate and arrived at the residence – an address on Lynn Road – at about 8:30 a.m. After speaking with CW #1 and the Complainant, he formed grounds to apprehend her under the MHA, and did so at about 8:40 a.m.

Once at the SAH, the SO, with the Complainant in the back seat of his cruiser, had to wait several hours while a designated secure room was cleared and prepared for the Complainant. At 1:00 p.m., after the Complainant had calmed, the SO removed her handcuffs as they continued to wait in the cruiser.

The Complainant was finally escorted into the secure room at around 1:40 p.m. and examined by a doctor, who signed off on her involuntary admission to hospital for examination. At about 2:15 p.m., a registered nurse, CW #4, entered the room to sedate the Complainant with an injection. As the needle made contact with the Complainant’s arm, she jumped up and advanced on the nurse, who backed away toward the door.

The SO was standing just outside the room when he noticed what was going on and intervened to step in between CW #4 and the Complainant at the open door’s threshold. He advised the Complainant to step back into the room and then took control of her upper body when she failed to do so, pushing her onto the bed. The Complainant struggled with the SO, pushing and pulling, flailing her arms and kicking her legs. The SO was able to take control of her arms, but not before the Complainant had managed to pull off his glasses. While trying to retrieve his glasses from the Complainant’s grip, the SO used his right knee to pin the Complainant’s right arm on the bed so he could free one of his hands. As he did so, the SO heard a “dull crack” and felt his right knee sink a bit into the bed. The sound and sensation were the result of the Complainant’s arm breaking.

With the help of hospital staff, the Complainant was restrained and sedated.

Relevant Legislation

Section 34 (1), Criminal Code -- Defence - Use of threat of force

34 (1) A person is not guilty of an offence if
(a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; 
(b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) The act committed is reasonable in the circumstances.

Analysis and Director's Decision

On July 13, 2020, the Complainant suffered a broken right wrist while in the custody of the SO of the SSMPS. The SO was identified as the subject officer 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 injury.

There is no doubt that the SO used physical force against the Complainant and that the force he used resulted in the serious injury in question. Short of a lawful excuse or justification, the SO’s conduct would amount to an unlawful assault. In my view, the force used by the SO fell within the limits of permissible force under section 34 of the Criminal Code.

Section 34 of the Criminal Code prescribes the defence of self-defence and the defence of others. It shields a person from criminal liability for the use of force that would otherwise amount to an offence provided the force in question is intended to protect oneself or another from a reasonably apprehended attack and constitutes reasonable force in the circumstances.

At the outset, it should be noted that the SO was at all times in the execution of his lawful duty prior to the force in question. Based on the information at the SO’s disposal as he arrived at the address on Lynn Road, and his personal dealings with the Complainant and her landlord, CW #1, it is apparent that the SO was within his rights in apprehending the Complainant under section 17 of the MHA and delivering her to hospital.

He was also within his rights, I am satisfied, in intervening when the Complainant objected to being injected and advanced upon the nurse. The Complainant was in the lawful custody of the hospital at the time. When she refused CW #4’s lawful attempts to sedate her, and then advanced on CW #4 as she retreated from the room, the SO reasonably interjected by stepping between the two women.

Thereafter, when the Complainant refused to step back as directed by the SO, the SO was entitled to apply a measure of force to thwart her progress. The Complainant reacted violently with her arms and legs, prompting the SO’s efforts to keep her pinned on the bed while staff assisted in restraining her. In so doing, the SO placed his right knee on the Complainant’s right arm, subsequently resulting in the fracture as the parties continued to struggle and shift their weight. The Complainant proved a formidable challenge for the SO; she kicked at the SO and was able to yank his glasses off his face at one point. On this record, I am unable to reasonably conclude that the SO’s efforts to wrestle the Complainant under control – no strikes were delivered of any sort – amounted to excessive or unreasonable force in defence of CW #4 and himself.

In the result, while the Complainant’s broken right wrist was most unfortunate, I am satisfied it was the unintended consequence of lawful force used by the SO. Accordingly, there is no basis for proceeding with criminal charges in this case.


Date: September 28, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit