SIU Director’s Report - Case # 18-OCI-100
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Mandate of the SIU
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.
Freedom of Information and Protection of 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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 serious injury reportedly sustained by a 68-year-old female (the Complainant) during an interaction with police on March 27, 2018.
Notification of the SIUAt approximately 8:44 a.m. on April 3, 2018, the Ottawa Police Service (OPS) notified the SIU of the custody injury to the Complainant.
The OPS reported that the Complainant had been at a hospital in the City of Ottawa on March 27, 2018, visiting her husband, when she was asked to leave due to a perceived threat toward medical staff. When she refused, the OPS was contacted and asked to assist in removing the Complainant from the premises.
OPS officers arrived and asked the Complainant to leave and, when she again refused, she was physically removed by the attending police officers. The OPS reported that the Complainant was now alleging that the Subject Officer (SO) had placed his hand on her breasts, during her removal, as a result of which she instinctively bit the tip of a gloved finger on his right hand, which led to her arrest for the assault on a police officer.
The Complainant was subsequently released on an appearance notice in relation to the assault charge. The OPS reported that when she was released by the arresting police officer, no apparent injury was observed, nor was any complaint made of any injury or inappropriate touching.
On March 29, 2018, however, the Complainant contacted the OPS and notified them that she had suffered a serious injury to her left arm while being arrested by the SO on March 27, 2018.
The TeamNumber of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
SIU investigators attended and conducted interviews of relevant witnesses and involved persons and reviewed relevant policy and procedure, officers’ notes, and security video obtained from the hospital.
Complainant:68-year-old female interviewed, medical records obtained and reviewed
Civilian WitnessesCW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Not interviewed, due to medical issues.
Witness OfficersWO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
Subject OfficersSO #1 Interviewed, notes received and reviewed
For several weeks prior to this incident, the Complainant had been at odds with the facility over what she considered to be the sub-standard care her husband was receiving. The issue escalated to the point where the facility assigned a security guard to sit outside CW #5’s room whenever the Complainant was present because of what they considered the Complainant’s escalating aggressive and disrespectful conduct toward care providers.
Just prior to March 27, 2018, however, hospital staff considered the Complainant’s conduct as improving to the point where they believed that the presence of the security guard was no longer necessary.
On March 27, 2018, the Complainant was at the hospital in her husband’s hospital room, when the medical staff arrived to prepare CW #5 for bed. At that time, the Complainant again accused the staff of providing sub-standard care and, as per the previous instructions delivered to staff, they left the room and notified a supervisor, who in turn requested the attendance of the on-duty security guard.
Security attended and requested that the Complainant leave the facility; when she refused, the police were contacted to attend.
The SO and Witness Officer (WO) #2 of the OPS then attended and were met by staff who requested the assistance of police in removing the Complainant from the premises. When the Complainant again refused to leave upon being requested to do so by the two police officers, they attempted to physically remove her pursuant to the request of hospital staff and as authorized under the Trespass to Property Act (TPA).
The Complainant alleged that while the officers were attempting to remove her, her blouse became torn and the SO placed his hand on both of her breasts, and she bit him on the hand, following which she was arrested for assaulting a police officer and removed from the hospital grounds, where she was then released.
On March 29, 2018, the Complainant notified the OPS that she had sustained a serious injury during her arrest.
Nature of Injuries / TreatmentThe Complainant attended another hospital the day after her arrest, where she was diagnosed as having sustained a non-displaced radial/head fracture of her left elbow.
The SceneThe scene was located in the hospital room of CW #5.
Forensic Evidence No submissions were made to the Centre of Forensic Sciences.
Video/Audio/Photographic Evidence Closed circuit television (CCTV) footage from four distinct areas of the hospital were obtained and reviewed.
Communications RecordingsThe 911 call and the police transmissions recordings were obtained and reviewed.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the OPS:
- Computer Aided Dispatch (CAD) Call Report;
- 911 Call Recording;
- Police Transmissions Communications Recording;
- General Occurrence Reports (x2);
- Investigative Action Reports (x3); and,
- Notes of WO #s 1 and 2, and the SO.
The SIU obtained and reviewed the following materials and documents from other sources:
- Medical Records of the Complainant related to this Incident, obtained with her consent;
- CCTV footage from the hospital (from four different camera locations);
- Incident Reports (x2) from Hospital Security authored by CW #1;
- Hospital Security Incident Report; and,
- Warning Letter Issued to Complainant by the Hospital.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(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,
Section 270(1), Criminal Code -- Assaulting a peace officer
(a) assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer;(b) assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or(c) assaults a person
(i) who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or(ii) with intent to rescue anything taken under lawful process, distress or seizure.
Section 2(1), Trespass to Property Act -- Trespass an offence
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
Section 9 (1), Trespass to Property Act – Arrest without warrant on premises9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.
Analysis and Director's Decision
The following day, the Complainant attended another hospital, where her arm was X-rayed and it was discovered that she had a non-displaced radial neck/head fracture (fracture of the top of the radius bone, just below the elbow) of her left arm. The Complainant alleges that the bone in her arm was fractured as a result of an excessive use of force by the SO.
During the course of this investigation, in addition to the Complainant, four civilian witnesses (CWs), two police witnesses, and the SO, were all interviewed; all three officers also provided their notebook entries to SIU investigators for their review. In addition to the interviews, SIU investigators also had the recording of the 911 call, three videos from the interior of the hospital and one from the entrance/exit doors, as well as the medical records of the Complainant relating to her visit to the hospital for her fracture.
On evidence from all of the witnesses, there is no dispute that the Complainant was unhappy with the level of care being provided by hospital staff to her husband, CW #5, who was a long-term patient requiring the constant care of two members of hospital staff. In the weeks prior to March 27, 2018, the hospital had instituted a policy wherein a security officer had to be stationed outside of CW #5’s room whenever the Complainant was visiting, because of her alleged disruptive behaviour. In the days prior to March 27, 2018, however, things had apparently improved to a degree that the hospital rescinded this policy and removed the security officer. As such, on March 27, 2018, no security officer was present outside of CW #5’s room when the Complainant visited.
According to the Complainant, she arrived to attend to her husband as usual on March 27, 2018. When two staff members arrived to prepare CW #5 for bed, the Complainant said that she was concerned about her husband’s care, and an argument ensued between herself and the two staff members, who then left the room telling the Complainant to deal with the situation on her own. The Complainant indicated that she became further upset when the staff members left the room, leaving her husband attached to a harness which was used to lift him up onto the bed. The Complainant considered that her husband had been left in a dangerous situation and his safety was in jeopardy.
According to the two nurses who were dealing with the Complainant’s husband, CW #2 and CW #3, the Complainant began to argue with the nurses about the level of care that they were providing to CW #5, telling them that they did not know what they were doing or how to provide proper care to her husband. CW #2 indicated that she and CW #3 then left the room in order to avoid putting undue stress on CW #5, while CW #3 indicated that the Complainant asked them to leave the room, which they then did.
As per hospital policy, CW #2 then advised the on-duty security officer, CW #1, of the incident with the Complainant. CW #1 indicated that this policy of reporting to security when there was a confrontation with the Complainant was put in place because of ongoing concerns with the Complainant’s behaviour and the escalation of her disrespectful and interfering behaviour with the staff’s ability to care for CW #5.
CW #1 then went to CW #5’s room and explained to the Complainant that her behaviour was unacceptable and that she would have to leave the hospital, but could return when she had calmed down. The Complainant refused to leave, instead indicating that she would be calling the police herself to report the incident. She then placed a call, in the presence of CW #1, to the OPS and allowed CW #1 to speak to the call taker. CW #1 told the call taker that the supervisor would be calling shortly to request the attendance of the police to deal with the situation. CW #1 then spoke to the on-duty administrator, who contacted the OPS, followed shortly thereafter by the arrival of the SO and WO #2.
Following a brief meeting between CW #1, the on-duty administrator and the two police officers, CW #1 accompanied the two police officers up to CW #5’s room. According to CW #1, the two police officers made several requests of the Complainant to leave the hospital on her own, but she refused, following which the officers told the Complainant that if she did not leave, she would be physically removed from the facility. The Complainant again refused, instead going to her husband in his wheelchair and wrapping her arms around his neck, preventing the police officers from removing her. CW #1 described this action as appearing as if the Complainant was using CW #5 as a hostage. CW #1 then attended the nurses’ station and, upon his return, he observed the Complainant on the floor of the room, face down, with the police officers in the process of handcuffing her.
The Complainant indicated that when the two police officers arrived at the room, she was just leafing through a telephone book looking for the phone number of a member of the press who might be able to attend to witness her interaction with police. The SO, according to the Complainant, asked the Complainant what she was doing, and when she told him, he told her that she had one minute to collect her belongings and leave. When the Complainant then asked the SO to explain why she had to leave, her husband began to cry and she went to him and wrapped her arms around him in an effort to comfort him. WO #2 then instructed the Complainant to step away from her husband and, if she refused and an injury occurred, the Complainant would be charged with assault. According to the Complainant, the SO then grabbed her by the left arm and pulled her arm forcefully to the rear, while twisting her wrist and forcing her arm behind her back in an upward motion.
The Complainant recalled that she immediately believed that her arm might be broken and she cried out in pain. She further indicated that the pull on her arm had caused her blouse to tear, and that while the SO was pulling her arm back, he placed his gloved right hand on both of her breasts. The Complainant explained that because she was in severe pain, she instinctively reacted and bit the tip of one of the SO’s fingers.
The Complainant described the SO as then forcefully pushing her to the floor and she ended up on both knees, following which she was placed face down on the floor and handcuffed with her hands to the rear. The Complainant indicated that the handcuffs were on very tight, causing her pain, but advised that the push to the floor did not result in any injury.
The SO and WO #2 then assisted the Complainant to her feet, with the SO on her left side and WO #2 on her right. The Complainant was then dragged out of the room to the hallway, where she was forced to walk backwards down the long hallway to the elevators. The Complainant described the police officers forcing her to walk briskly backwards down the long hallway and she had difficulty keeping up and felt as if she was being dragged. Once at the elevator, the Complainant was then turned around, and she took the elevator to the first floor, after which she was escorted out to the parking lot, where the SO gave her a ticket and released her from the rear of his police vehicle. The Complainant stated that two days later, she attended a hospital where she was assessed and it was discovered that she had a non-displaced radial head/neck fracture to her left elbow.
CW #1 indicated that while he was out of the room, he heard the Complainant issuing ear piercing screams at the officers; he also heard the SO state that the Complainant “bit me, she really bit me!” Following this, the Complainant was handcuffed and taken to the elevators and removed from the building. At no time did CW #1 observe that the Complainant’s blouse was torn, nor did he observe any injuries to her; he also stated that he did not hear the Complainant make any complaint of injury in his presence.
CW #4, a friend of the Complainant’s, came to the hospital to pick her up when she called and told him that the police were coming. He waited in his motor vehicle until the Complainant was released and then drove her home. CW #4 stated that he did not recall seeing that the Complainant’s blouse was torn, nor did she complain that it had been torn. CW #4 did, however, recall that he may have seen some bruising to one of the Complainant’s upper arms when he had driven her to the hospital earlier, prior to her having been arrested.
According to the SO and WO #2, upon their arrival at the hospital, they met with the on-duty administrator and CW #1, and then accompanied CW #1 to CW #5’s room, where CW #1 was asked to wait outside.
WO #2 indicated that when she arrived at CW #5’s room, she observed that the Complainant was wearing a flower print top and that a large bruise was visible to her upper left arm. This is consistent with the statement of the SO, with the exception that he observed a large bruise on the Complainant’s upper right arm.
The SO spoke to the Complainant and told her why he was there and that she would have to leave the hospital, but she refused. The Complainant then turned the conversation to her belief that her husband was not getting adequate care at the hospital and was being abused by staff. The SO then told the Complainant that she had one minute to state her case, and then she would have to leave. At that point, the Complainant began to leaf through a telephone book and, when asked what she was doing, she indicated that she wanted to call the media.
The SO stated that while this conversation was ongoing, CW #5 was seated in his wheelchair and was not attached to any type of lifting harness.
The SO recalled that the Complainant was asked to cooperate and to leave on several occasions, but continued to refuse to do so. He then described her approaching her husband in his wheelchair and wrapping her arms around his neck, partially sitting in his lap, and interlocking the fingers of both of her hands as if using CW #5 as an anchor.
WO #2 similarly described the Complainant as going to CW #5 and wrapping her arms around his neck while screaming loudly. WO #2 then requested that CW #1 find hospital staff to remove CW #5, as she felt that the incident may be harmful to him and he appeared to be upset. WO #2 also told the Complainant that if she injured CW #5, she would be charged.
Both of the SO and WO #2 described that, at that point, the SO was on the Complainant’s right side and WO #2 was on her left. The SO described himself as then grabbing the Complainant by the arm, when the Complainant bit the SO on his right hand, causing him to pull his hand back and utter some profanity, following which the SO told the Complainant that she was under arrest for assaulting a police officer. According to both officers, the SO then pulled the Complainant away from CW #5 by pulling on her right arm, not her left, while it was WO #2 who grabbed the Complainant by the left arm and pulled her out into the middle of the room, away from CW #5.
The SO then placed the Complainant on the floor, in a controlled grounding, following which he pulled her right arm to the rear for handcuffing. The SO described WO #2 as then pulling the Complainant’s left arm behind her and the Complainant was handcuffed with her hands behind her back. The SO advised that while the Complainant was screaming and swearing throughout, at no time did she make any complaint of being injured. Additionally, the SO firmly denied any suggestion that his hand was ever on or near the Complainant’s breasts or that she ever complained that she had been inappropriately touched. At no time did the SO ever observe that the Complainant’s blouse was torn.
WO #2 similarly indicated that after the arrest, the Complainant’s top was not torn and at no time was her bra visible, as alleged, nor did she ever see the SO’s hand near the Complainant’s breasts. With respect to the Complainant’s allegation that she went and wrapped her arms around her husband in order to comfort him, WO #2 noted that CW #5 appeared to be oblivious to what was going on between his wife and the police, from which she inferred that he suffered from some sort of cognitive disability.
WO #1, who also attended the hospital but was not present for the arrest of the Complainant, indicated that when he observed the Complainant after the arrest, near the fourth floor elevators, her clothing did not appear to be torn, nor was she making any complaint that she had been injured. WO #1 further recalled that the SO told him that the Complainant had bitten him on his bare right hand.
On the basis of all of the evidence, and giving special emphasis to that which is confirmed by more than one witness, I find that I have reasonable grounds to believe the following:
- I do not accept that CW #5 was left by nursing staff hanging from the harness which was used to lift him from his wheelchair onto the bed; I note that this is inconsistent with the evidence of both police officers, as well as CW #1, all of whom saw CW #5 seated in his wheelchair when they arrived in the room and not in any precarious position inside the harness;
- I reject the Complainant’s evidence that she only went to comfort her husband when she wrapped her arms around him, accepting instead that she was using him as a shield against the police officers removing her from the room, which is consistent with the evidence of CW #1, as well as the two police officers;
- On the evidence of CW #1, CW #4, and all three police officers, as is confirmed by the closed circuit television footage, I do not find that the Complainant’s top was torn or that her bra was showing; while the torn blouse was provided by the Complainant as the explanation as to why and how the SO was able to touch her breasts, I further reject the evidence of the Complainant that the SO ever touched the Complainant’s breasts with his hand;
- On the evidence of CW #4 and the SO and WO #2, I find that the Complainant had bruising on her upper arms prior to her interaction with police and that, as such, there is some evidence that her injury may have been pre-existing;
- On the evidence of the SO and WO #2, I find that it was actually WO #2, and not the SO, who grabbed the Complainant by the left arm and pulled her away from her husband, while the SO had her by the right arm. As such, if her elbow was injured when she was pulled away from her husband, which is not clear, the injury would have been caused by WO #2, and not the SO, as alleged by the Complainant;
- I fully accept on the evidence of all parties that the Complainant bit the SO on the hand; whether he had his glove on or not at the time appears irrelevant, as he does not allege any injury in any event; and,
- Finally, based on the many other inconsistencies in the Complainant’s evidence, I do not accept that the SO pulled her left arm forcefully to the rear while twisting her wrist and forcing her arm behind her back in an upward motion, which caused her blouse to tear and allowed the SO to both pull her arm to the back while simultaneously touching both of her breasts, which seems both anatomically difficult, and would certainly have been seen by WO #2, had it occurred.
I further note, from the video, that the Complainant is walking without any difficulty while being held by the arm by each officer; there is no sign that she is in pain, or that she is favouring one arm, which I would have expected had her arm just forcefully been broken as she alleges. Furthermore, I would find it surprising that if the actions of the SO had caused her such immediate pain, that she would have waited until 11:20 p.m. the following day before going to the hospital. I accept instead that either the injury was pre-existing (based on the bruising which was seen to her upper arms prior to her interaction with police) and she was unaware of it until she was pulled by the arm by WO #2, which would certainly have been painful if the arm was already broken, or if her arm was broken during the interaction, which appears doubtful, that she was unaware of the break at the time.
Related to whether or not this was a pre-existing injury, I note that the Complainant’s medical records indicate, “Patient c/o (complains of) L (left) elbow/shoulder pain. Reports injury but would prefer not to elaborate (illegible) beyond arm twisted into back,” with the Complainant refusing to advise medical staff as to when, how, or by whom, her injury was caused.
While on the evidence before me, I find that I do not have reasonable grounds to believe that the Complainant’s arm was broken during her interaction with police, that does not end the matter. An assessment is still required to determine whether or not the actions of the SO and WO #2, in apprehending and arresting the Complainant, amounted to an excessive use of force in the circumstances thereby vitiating their protection from prosecution pursuant to s. 25 (1) of the Criminal Code.
Pursuant to s. 25(1), a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the two police officers to qualify for protection from prosecution pursuant to s. 25, it must be established that they were in the execution of a lawful duty, that they were acting on reasonable grounds, and that they used no more force than was necessary.
Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the information provided in the 911 call, and as confirmed with the administrative supervisor and CW #1 once at the hospital, that the Complainant had been asked to leave the premises by the lawful occupier of the hospital, the staff, and she had refused to do so, thereby putting her in contravention of s. 2 of the Trespass to Property Act (TPA). As such, the police officers were acting lawfully in physically removing the Complainant from the premises when she refused to do so after repeated requests. Thereafter, when The Complainant bit the SO on the hand, the police officers had reasonable grounds to then arrest the Complainant for assaulting a police officer contrary to s. 270 of the Criminal Code. Consequently, the apprehension and arrest of the Complainant by both police officers was legally justified in the circumstances.
I further find that when the Complainant wrapped herself around her incapacitated husband, as a means of avoiding police removing her from the premises, that the actions of both police officers in taking her by one arm each and pulling her away from her husband did not amount to an excessive use of force, but instead was the only option the Complainant had left to the officers in the circumstances. Thereafter, when she was taken to the floor in a controlled fashion, which the Complainant concedes did not cause her any injury, and she was handcuffed to the rear of her body, I find that these actions were fully justified both to restrain the Complainant and to avoid any further assaultive behaviour on her part. On this evidence, I conclude that both police officers acted well within the confines of s. 25 (1) and that their actions were both justified and necessary in this factual situation.
In coming to this conclusion, I have considered the direction from the Supreme Court of Canada as set out in R. v. Nasogaluak  1 S.C.R. 206, as follows:
Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):
In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]
Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.
On this record, while I find that I lack the reasonable grounds to believe that the Complainant sustained her injury during her arrest, even had that been the case, I find that the evidence does not satisfy me that either the SO or WO #2 resorted to an excessive use of force in removing an assaultive, combative, and resistant Complainant, from the premises, as they were fully authorized to do on the direction of hospital staff and the authority of the TPA, and thereafter when they arrested her following her assault on the SO.
In conclusion, I lack the necessary grounds for the laying of criminal charges, and none shall issue.
Date: February 11, 2019
Original signed by
Special Investigations Unit
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.