SIU Director’s Report - Case # 20-OSA-342
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EXPLANATION FOR INSTANCES WHEN SEXUAL ASSAULT DIRECTOR’S REPORTS ARE PUBLISHED
Under the Special Investigations Unit Act, 2019, the Director may exercise a discretion to not publish a Director’s Report dealing with the reported sexual assault of a person (hereinafter referred to as ‘Complainant’) where the Complainant’s privacy interests in not having the report published clearly outweighs the public interest in having the report published, subject to prior consultation with the Complainant.
In the absence of consent from the Complainant, it is the SIU’s policy to not publish the Director’s Report because of a concern that the release of information related to reported sexual assaults may further deter what is already an under-reported crime. In addition, publication could serve to undermine the heightened privacy interests of the involved parties, especially, the Complainant.
Upon consultation with the Complainant in this case, the Director has decided to publish the report as the Complainant has consented to its publication.
Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that 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 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into an alleged sexual assault on a 37-year-old woman (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into an alleged sexual assault on a 37-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU
On December 8, 2020, at 4:48 p.m., the Waterloo Regional Police Service (WRPS) contacted the SIU to report a sexual assault allegation. On December 8, 2020, WRPS Professional Standards had received a report from staff at Vanier Women’s Institution (VWI). An inmate [known to be the Complainant] disclosed that on November 29, 2020, she was sexually assaulted by a male member of the WRPS in the course of her arrest. The evidence indicated that after the Complainant was arrested she was taken to lock-up and a strip search was conducted. Apparently, the Complainant was taking too long to undress and this frustrated the male officer. It was alleged that he forcefully removed her clothes and groped her in the process. The WRPS confirmed the Complainant was arrested on November 29, 2020, for a breach of conditions. She was held for a bail hearing at WRPS central station in Kitchener. The Complainant had been denied bail and was at the time of notification being lodged at VWI.
The Team
Date and time team dispatched: 12/08/2020 at 6:13 p.m.Date and time SIU arrived on scene: 12/09/2020 at 9:52 a.m.
Affected Person (aka “Complainant”):
37-year-old female interviewedThe Complainant was interviewed on December 10, 2020.
Civilian Witnesses
CW Interviewed The CW was interviewed on December 14, 2020.
Subject Officials
SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right. SO #2 Declined interview and to provide notes, as is the subject official’s legal right.
SO #1 was interviewed in late January 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on January 8, 2021.
Service Employee Witnesses
SEW #1 Interviewed SEW #2 Interviewed
The service employee witnesses were interviewed between January 8 and January 20, 2021.
Investigative Delay
Interviews with witness officials and service employee witnesses were delayed because the witnesses and/or their counsel were on holidays or scheduled time off. Further delays were incurred because of a COVID-19 outbreak resulting in a witness being on leave.
Evidence
The Scene
The booking area at the WRPS central division. The area was audio and video recorded. 
Figure 1 - The booking area at the police station. The open green door leads to a search room.
Figure 2 - The search room.
Scene Diagram
Video/Audio/Photographic Evidence
The SIU obtained audio and video of relevance, as set out below: Police Communications Recordings
Call #1
A man called the operator and said that [the Complainant] was on bail and difficult to control. She was drunk and was not supposed to be. He asked that an unmarked police vehicle attend their home. The man said the Complainant was in her thirties. He said he would call back in half an hour.
Call #2
The same caller in Call #2 called the operator and said he was calling about the Complainant. He said the Complainant had been drinking and was still drinking. She had been temporarily living in the house but was impossible to control. A woman took the telephone and told the operator that the Complainant had alcohol and drug issues, weed and cocaine. The woman believed that the Complainant’s behaviour was because she was on drugs. She said that while she was cooking, she saw the Complainant snort a green or black substance up her nose. The Complainant was asked to leave but refused. The Complainant was not supposed to consume alcohol or drugs. The operator said the police were attending.
Central Radio Transmissions
The dispatcher told WO #1 that there was an incident at the 911 caller’s residence. The dispatcher said he would get a female to backup WO #1. The dispatcher said she received a call and the caller wanted the Complainant removed from the home. The Complainant lived at the house but was not supposed to possess or consume alcohol or other drugs.
HQ to WO #1
The officer reported that all was in order.
SO #2 to HQ
The officer advised a woman was hitting her head on the partition. SO #2 asked to have someone from the cells meet her in the sally port.
Booking Video
Booking Area – East Wall View
At 5:56:00 p.m., the Complainant entered the booking area and stood against the wall facing the booking desk. She was handcuffed to the front. SO #2 entered with the Complainant. There were two special constables in the booking area. At 4:48 minutes into the video, SO #2 removed the Complainant’s handcuffs. The Complainant was speaking, and SO #1 was behind the booking desk facing the Complainant. At 6:15 minutes into the video, the Complainant removed her shoes; she was not wearing socks. At 6:40 minutes into the video, SO #1 walked from behind the booking desk towards the search room.
At 7:16 minutes into the video, SO #1 walked toward the doorway leading out of the booking room. The Complainant walked toward the search room followed by SO #2. The Complainant entered the search room and SO #2 followed her. SEW #2 went and stood at the doorway of the search room. SEW #1 left the area and SO #1 stood at the doorway of the search room. At 7:54 minutes into the video, SEW #1 returned with a pair of socks. At 7:56 minutes into the video, SO #1 entered the search room and SEW #2 stood at the doorway behind SO #1. SEW #1 held the search room door open.
At 8:00 minutes into the video, the Complainant walked out of the search room and SO #1 was holding onto the hood at the back of the Complainant’s jacket. SO #2 followed SO #1 out of the search room. At 8:07 minutes into the video, the Complainant was put on the floor in front of the booking desk counter. SO #1 was on the Complainant’s right side holding her right arm and SO #2 was holding her left arm. At 8:17 minutes into the video, SEW #1 straddled the Complainant’s lower legs and sat on them. At 8:27 minutes into the video, SEW #2 went to the right side of the Complainant and SO #1 got up and went behind the booking desk.
At 9:08 minutes into the video, SO #1 returned to the Complainant on the floor and stood by her right side. SEW #2 removed the Complainant’s jacket and SEW #1 threw the jacket away from the area. At 9:42 minutes into the video, SO #1 was on the floor on the right side of the Complainant talking. At 9:53 minutes into the video, SEW #1 began to search the Complainant’s lower legs, pockets of her pants and back. At 10:02 minutes into the video, two sergeants [known to be WO #3 and WO #2] entered the booking area and SO #1 was on the floor, talking.
At 10:17 minutes into the video, SEW #1 pulled down the waistband of the Complainant’s track pants. She pulled at the Complainant’s pants three times and then the Complainant’s buttocks were exposed. WO #2 and WO #3 were looking away, trying to avoid looking at the Complainant. WO #3 left the booking area.
At 10:32 minutes into the video, SEW #1 and SEW #2 lifted the Complainant’s pants up a portion of the way, while she was on the floor. At 11:10 minutes into the video, SO #1 moved from the right side of the Complainant to the leg area. SEW #2 moved to the right side and SEW #1 moved to the head area of the Complainant and bent down.
At 11:16 minutes into the video, WO #3 returned to the area with a blanket. He approached the Complainant with the blanket. SO #1 avoided looking at the Complainant. WO #3 left the area with the blanket.
At 12:27 minutes into the video, SO #1 while on the floor handed property to WO #2 and WO #2 put the property on the counter of the booking desk. At 12:31 minutes into the video, SO #2 gave WO #2 property and he put it on the counter. At 12:39 minutes into the video, SEW #1 gave WO #2 property and he put it on the counter. SEW #1 removed something from the Complainant’s head then placed it on the counter.
At 13:21 minutes into the video, SO #2 and SEW #2 were on the left side of the Complainant and they lifted the Complainant from the floor. They walked to the hallway. The Complainant’s pants were not fully up, and part of her buttocks were exposed. At 13:30 minutes into the video, the Complainant was escorted out of the booking room with SO #2, SEW #1 and SEW #2, and SO #1 and WO #2.
Booking Area – West Wall View
At 5:56:00 p.m., the video began. The Complainant and SO #2 entered the booking hall. SO #1 was behind the booking counter. There were two special constables in the booking hall. SO #1 was completing paperwork and appeared to be speaking. The Complainant was standing in front of the booking counter with her hands, handcuffed, in front of her body.
At 4:48 minutes, into the video, SO #2 removed the Complainant’s handcuffs and, at 5:40 minutes, SO #2 pointed at the door to a room to the right of where the Complainant was standing.
At 5:52 minutes, SO #1 moved from behind the desk to the corner of the booking counter. At 6:15 minutes, the Complainant began to remove her shoes, kicking them off. SO #2 was holding the Complainant’s right arm. SO #1 walked toward the hallway door. At 7:09 minutes, SO #2 and the Complainant walked toward the search room. SEW #1 held the door open to the search room. SEW #2 walked to the doorway for the search room and stopped.
At 7:16 minutes, SEW #1 left the search area. SO #1 stood at the doorway to the search room and appeared to be speaking. At 7:54 minutes, SEW #1 returned to the area with a pair of socks. SO #1 moved pass SEW #2 at the doorway of the search room and entered the room. At 7:58 minutes, SEW #2 left the search room. SEW #1 held the door of the search room open. At 8:00 minutes, SO #1 was holding onto the Complainant’s hood on her jacket and escorted the Complainant out of the search room. SO #2 was behind the sergeant.
At 8:05 minutes, SO #1 with the assistance of SO #2 put the Complainant on the floor in front of the booking counter. The Complainant appeared to be moving her arms. SO #1 held the Complainant’s right arm and SO #2 held her left arm. At 8:16 minutes, SEW #1 straddled the Complainant’s leg. SEW #1 moved to the right side of the Complainant At 8:27 minutes, SO #1 stood up and went behind the booking desk. At 9:08 minutes, SO #1 returned from the desk and stood by the Complainant’s right side. SO #1 helped to hold the Complainant on the ground from the right side. SEW #2 removed the Complainant’s jacket.
At 9:42 minutes, SO #1 appeared to be speaking. At 9:53 minutes, SEW #1 began to search the Complainant’s lower legs and pockets on the left side and SEW #2 searched the right side of the Complainant At 10:02 minutes, WO #2 and WO #3 entered the booking room. SO #1 said something. At 10:17 minutes, SEW #1 forcefully pulled the Complainant’s pants down below her buttocks. SO #1, WO #2 and WO #3 appeared to avoid looking in the area of the Complainant. WO #3 left the booking area.
At 10:32 minutes, SEW #1 pulled the Complainant pants partway up. SEW #2 pulled the Complainant’s pants up. At 11:10 minutes, SO #1 moved from the Complainant’s right side to her lower leg area. SEW #2 moved to the Complainant’s right side. SEW #1 moved to the Complainant’s head area. At 11:16 minutes, WO #3 returned to the booking room with a blanket and then walked away with it. WO #2 left the booking room. At 11:56 minutes, WO #3 returned the blanket. At 12:27 minutes, SO #1 handed property to WO #2 and WO #2 put it on the booking desk.
At 12:39 minutes, SEW #1 handed property to WO #2 and he put it on the counter. SEW #1 removed further items from the Complainant’s head area and placed it on the counter. WO #3 left the booking area. At 13:24 minutes, SO #2 was on the left side of the Complainant and SEW #2 lifted her from the floor. They walked toward the doorway and out of the booking area. At 13:30 minutes, the Complainant was escorted out of the booking area by SEW #2 and SO #2. SO #1, WO #2 and SEW #1 followed.
Audio of Booking Area – Ceiling Video of Booking Desk
At 5:56:00 p.m., the audio begins. Overhead video of booking desk. A female [known to be the Complainant] said she does not have a mask. A female said they would get her one.
Male voice [SO #1]: Asked why the Complainant was here.
Female [SO #2]: Officer indicated she was here for breach, and she was living with mom and dad. She had been drinking and had conditions to not drink.
SO #1: Asked the Complainant if she wanted to speak to a lawyer. After some discussion the Complainant said her lawyer was [provided name of lawyer].
SO #1: Asked the Complainant if she had injuries.
The Complainant: Advised, “I have many.”
SO #1: Asked about mental health.
The Complainant: Advised that she may, and she may not have mental health issues.
SO #1: Asked about medications.
The Complainant: Advised she had medications but had not taken any today.
SO #1: Asked if the Complainant considered harming herself.
The Complainant: Advised she would never.
SO #1: Asked if there was any reason he should be concerned for the Complainant’s safety.
The Complainant: Advised yes.
SO #1: Asked what that was.
The Complainant: Advised that they are watching, and everyone should all be scared.
SO #1: Asked if she had used any non-prescription drugs.
The Complainant: Advised cocaine and weed.
SO #1: Asked how often and whether she had suffered withdrawal, overdose or alcohol poisoning. Then indicated would do a strip search.
The Complainant: Indicated, “Thank God for everybody.”
SO #1: Advised take them off whenever you want. [Cuffs being removed.]
SO #2: Advised the Complainant to kick off her shoes because she would be going in there.
The Complainant: Advised she did not have any socks.
SO #2: Advised she would be provided with socks, and told the Complainant to be nice and to take her shoes off.
The Complainant: Advised, “You want me to be nice.”
SO #2: Advised she just want her to cooperate.
The Complainant: Advised, “Get some fucking socks for my feet.”
SO #2: Advised that socks would be provided after the search, and said, “[The Complainant] be nice, we gonna get you socks. Come on.”
The Complainant: Advised, “Don’t pull me, I can walk by myself.”
SO #2: Advised, “We’re gonna search you.”
SO #1: Advised, “So, both of them are going in.”
The Complainant: Advised, “One at a time.”
SO #2: Advised, “[The Complainant], you’re not the one making rules here, be nice.”
The Complainant: Advised, “One at a time, what are you doing here.”
SO #1: Advised, “[The Complainant], you’re coming out, go down on the ground.”
The Complainant: Advised, “You guys like this shit [giggles]. Help, ow I can’t breathe, I can’t breathe.”
SO #1: Advised, “We are going to do a strip search out here.”
The Complainant: Talked about being in the position for five hours at home.
Female: Asked that the coat come off.
The Complainant: Advised, “I can take the coat off. Am I going to be naked right now.”
Female: Advised, “Ya.”
The Complainant: Indicated that she could take her own clothes off [screaming].
SO #1: Asked, “Are you going to cooperate with us?”
The Complainant: Advised, “Get off [screaming].”
SO #1: Indicated that she was not cooperating in there [speaking to someone].
The Complainant: Advised, “Help me [screaming] take my bra off. I can take my bra off.”
Female: Advised, “Pants are done.”
SO #1: Advised, “I’ll let you guys search the top.”
Male: Advised, “Are you doing a search right now?”
SO #1: Advised, “I was thinking the pants would come right off.”
The Complainant: Advised, “Look, what they’re doing to me [crying screaming].”
SO #1: Advised, “Mainly alcohol today but.”
The Complainant: Advised, “I love you Lord.”
[Screaming, yelling crying]
Identification Room
At 2:21:08 a.m., video begins. The Complainant entered the search room with SEW #2, and they engaged in a conversation. The Complainant was wearing a white hoody and black adidas sweatpants.
The Complainant: “I am not going to take your computer.”
SEW #2: “Policy, can’t leave you here by yourself.”
The Complainant: “Why can’t I have a blanket like everyone else?”
SEW #2: “You came in kicking and screaming and were uncooperative.”
The Complainant: “I said I wanted to do it with one lady. It wasn’t right to pull my pants down on the floor.”
SEW #2: “You gotta think of our safety first.”
The Complainant: “But why would you do it, what was wrong with it.”
SEW #2: “Because you were being uncooperative that’s why.”
The Complainant: “I never said no to you guys.”
SEW #2: “Yes, you did.”
The Complainant: “I said I didn’t want two of you there.”
SEW #2:” Yes, you were. We can ask my partner she is number one to me.”
The Complainant: “Why didn’t you do it together then?”
SEW #2: “Because, you wouldn’t let us. That’s why.”
The Complainant: “Bare naked.”
SEW #2: “Lets, start all over. How ‘bout that.”
The Complainant: “Why won’t my mom come pick me up?”
SEW #2: “Cause you breached. I don’t have the whole story just know you breached.”
The Complainant: “Whoever brought me, took me from my kitchen table and brought me here. Wasn’t doing anything. Took liquor out of my hand poured it down the sink. Thirsty [leaves room].”
[Returns]
The Complainant: “Do I have court?”
SEW #2: “Done by Skype.”
The Complainant: “Then what?”
SEW #2: “They will say if you’re released or not. Have you talked to a lawyer?”
The Complainant: “I haven’t had water, let alone speak to a lawyer.”
The Complainant: [Fingerprinted] “Feeling nausea.”
SEW #2: “We will get you a drink and water.”
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the WRPS:- Letter to SIU regarding Disclosure Request (x4);
- Letter to SIU regarding Notebook Notes of Witness Officers;
- List of the Complainant's Police Contacts;
- Notes of WOs and SEWS;
- Crown Brief Synopsis;
- List of Involved Officers;
- WRPS Policy-Search of Persons;
- WRPS - Detain Sheet; and
- WRPS –Closed-Circuit Television recordings.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Vanier Women’s Institution records.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU thanks to a video recording of the incident captured by a police camera at the station, as well as statements provided by the Complainant, SO #1 and a number of other officers present at the time. As was her legal right, SO #2 declined to interview with the SIU or provide a copy of her notes.
Following her arrest and transport to the police station just before 6:00 p.m. on November 29, 2020, the Complainant was escorted to a small room off the booking area where she was to be strip searched. As she had acknowledged drug consumption, the sergeant in charge of the cells – SO #1 – believed that a strip search was in order. SO #2, one of the arresting officers, and two special constables, SEW #1 and SEW #2, were to oversee the search. The Complainant objected to the amount of people present in and around the search room for the strip search, particularly with respect to SO #1’s presence. The sergeant was just outside the open door to the room at the time.
Within moments of the Complainant’s comments, SO #1 decided to remove the Complainant from the room in order that the strip search occur in the booking area. Once outside the room, the Complainant was taken to the floor in front of the booking desk and remained on her front as the special constables, SO #2 and SO #1 actively participated in her search. The Complainant struggled against what the officers were doing, and the officers used force to keep her pinned to the ground and her limbs under control. A jacket the Complainant was wearing was removed and her clothing checked for items of property. At one point, SEW #1 pulled the Complainant’s pants down to just above her knees, exposing her buttocks, after which her buttocks and crotch area were searched for contraband. Despite several attempts to pull the Complainant’s pants back up, her buttocks remained partially exposed through the remainder of the search and as she was escorted out of the booking area into a cell.
Following her arrest and transport to the police station just before 6:00 p.m. on November 29, 2020, the Complainant was escorted to a small room off the booking area where she was to be strip searched. As she had acknowledged drug consumption, the sergeant in charge of the cells – SO #1 – believed that a strip search was in order. SO #2, one of the arresting officers, and two special constables, SEW #1 and SEW #2, were to oversee the search. The Complainant objected to the amount of people present in and around the search room for the strip search, particularly with respect to SO #1’s presence. The sergeant was just outside the open door to the room at the time.
Within moments of the Complainant’s comments, SO #1 decided to remove the Complainant from the room in order that the strip search occur in the booking area. Once outside the room, the Complainant was taken to the floor in front of the booking desk and remained on her front as the special constables, SO #2 and SO #1 actively participated in her search. The Complainant struggled against what the officers were doing, and the officers used force to keep her pinned to the ground and her limbs under control. A jacket the Complainant was wearing was removed and her clothing checked for items of property. At one point, SEW #1 pulled the Complainant’s pants down to just above her knees, exposing her buttocks, after which her buttocks and crotch area were searched for contraband. Despite several attempts to pull the Complainant’s pants back up, her buttocks remained partially exposed through the remainder of the search and as she was escorted out of the booking area into a cell.
Relevant Legislation
Section 271, Criminal Code -- Sexual assault
271 Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Analysis and Director's Decision
On December 8, 2020, the WRPS contacted the SIU to report that a woman whom they had taken into custody on November 29, 2020 – the Complainant – had come forward with information alleging that she was sexually assaulted at the police station following her arrest. The SIU commenced an investigation and identified SO #1 and SO #2 as subject officials for purposes of the investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the allegation.
A sexual assault consists of an assault within any of its meanings in the Criminal Code that is sexual in nature and violates the sexual integrity of the victim: R v Chase, [1987] 2 SCR 293. Whether the contact in question was inherently sexual is to be assessed objectively in view of the surrounding circumstances. That is, would a reasonable person conclude that the conduct was sexual in character? In the instant case, the issue is whether the contact that took part in the course of the search, including that which occurred with the Complainant’s private areas, was sexual in nature. In my view, it was not.
At the outset, there is no reason to question the validity of the Complainant’s arrest. Officers, including SO #2, had been dispatched to her parents’ home when they called police to report that the Complainant was at their residence in breach of a release condition that she abstain from alcohol. As there is evidence that the Complainant was in fact drinking in violation of her bail, SO #2 was within her rights to take her into custody.
Thereafter, I am satisfied that the officers, more specifically, SO #1, had a reasonable basis upon which to direct that the Complainant be subject to a strip search. In R v Golden, [2001] 3 SCR 679, the Supreme Court of Canada observed that a strip search would only be appropriate where, in addition to a lawful arrest, there were reasonable and probable grounds to believe that such a search was necessary. The Complainant was clearly intoxicated by alcohol at the time. The information received from her parents and her own behaviour would have made that clear. She also, however, acknowledged having consumed cocaine and marijuana. In the circumstances, it would appear that SO #1 had a legitimate concern that the Complainant might have contraband secreted on her person and that a search was necessary in the interests of her safety while in custody.
I am also satisfied that the manner in which the search was conducted did not offend the dictates of Golden, supra. The search was ordered by a senior officer and was to be conducted by officers of the same gender as the Complainant in a private room. It was only when the Complainant objected to the presence of multiple officers in and around the room, including most emphatically that of SO #1, that she was removed from the room and searched in the booking area. While it might be that SO #1 acted with haste and might better have been advised to give the Complainant additional time to cooperate, the Complainant’s belligerence in words and gestures would have given the officer grounds to believe that the Complainant was not about to comply with the officers’ directions. In the circumstances, it was open to SO #1 to reasonably conclude that a difficult search in the small and confined search room represented a health and safety risk to all involved, and that the better course was to move the search into the larger booking area. For reasons also related to the Complainant’s belligerence, I am unable to fault the officers for bringing the Complainant to the ground to complete the search and using force to keep her movements controlled in light of her physical resistance. In so doing, it should be noted that the officers did not forcibly remove all of the Complainant’s clothing such that she was completely naked at any given time. Indeed, aside from the exposure of the Complainant’s buttocks, made necessary, in my view, if the officers were going to adequately search the area, the Complainant remained clothed throughout the process. Lastly, it is apparent that the officers were not cavalier with the Complainant’s dignity as they pulled her pants down; efforts were made by the officers to lift her pants after a period of exposure, a blanket was requested (presumably, to be used to cover the Complainant) and the male officers turned away at points to afford the Complainant a measure of privacy.
In the final analysis, while I have no doubt that the Complainant felt her sexual integrity violated by the search that occurred, I am for the foregoing reasons unable to reasonably conclude that the conduct of the officers was anything other than part-and-parcel of a legitimate law enforcement exercise. Accordingly, there is no basis for proceeding with charges in this case.
Date: March 22, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
A sexual assault consists of an assault within any of its meanings in the Criminal Code that is sexual in nature and violates the sexual integrity of the victim: R v Chase, [1987] 2 SCR 293. Whether the contact in question was inherently sexual is to be assessed objectively in view of the surrounding circumstances. That is, would a reasonable person conclude that the conduct was sexual in character? In the instant case, the issue is whether the contact that took part in the course of the search, including that which occurred with the Complainant’s private areas, was sexual in nature. In my view, it was not.
At the outset, there is no reason to question the validity of the Complainant’s arrest. Officers, including SO #2, had been dispatched to her parents’ home when they called police to report that the Complainant was at their residence in breach of a release condition that she abstain from alcohol. As there is evidence that the Complainant was in fact drinking in violation of her bail, SO #2 was within her rights to take her into custody.
Thereafter, I am satisfied that the officers, more specifically, SO #1, had a reasonable basis upon which to direct that the Complainant be subject to a strip search. In R v Golden, [2001] 3 SCR 679, the Supreme Court of Canada observed that a strip search would only be appropriate where, in addition to a lawful arrest, there were reasonable and probable grounds to believe that such a search was necessary. The Complainant was clearly intoxicated by alcohol at the time. The information received from her parents and her own behaviour would have made that clear. She also, however, acknowledged having consumed cocaine and marijuana. In the circumstances, it would appear that SO #1 had a legitimate concern that the Complainant might have contraband secreted on her person and that a search was necessary in the interests of her safety while in custody.
I am also satisfied that the manner in which the search was conducted did not offend the dictates of Golden, supra. The search was ordered by a senior officer and was to be conducted by officers of the same gender as the Complainant in a private room. It was only when the Complainant objected to the presence of multiple officers in and around the room, including most emphatically that of SO #1, that she was removed from the room and searched in the booking area. While it might be that SO #1 acted with haste and might better have been advised to give the Complainant additional time to cooperate, the Complainant’s belligerence in words and gestures would have given the officer grounds to believe that the Complainant was not about to comply with the officers’ directions. In the circumstances, it was open to SO #1 to reasonably conclude that a difficult search in the small and confined search room represented a health and safety risk to all involved, and that the better course was to move the search into the larger booking area. For reasons also related to the Complainant’s belligerence, I am unable to fault the officers for bringing the Complainant to the ground to complete the search and using force to keep her movements controlled in light of her physical resistance. In so doing, it should be noted that the officers did not forcibly remove all of the Complainant’s clothing such that she was completely naked at any given time. Indeed, aside from the exposure of the Complainant’s buttocks, made necessary, in my view, if the officers were going to adequately search the area, the Complainant remained clothed throughout the process. Lastly, it is apparent that the officers were not cavalier with the Complainant’s dignity as they pulled her pants down; efforts were made by the officers to lift her pants after a period of exposure, a blanket was requested (presumably, to be used to cover the Complainant) and the male officers turned away at points to afford the Complainant a measure of privacy.
In the final analysis, while I have no doubt that the Complainant felt her sexual integrity violated by the search that occurred, I am for the foregoing reasons unable to reasonably conclude that the conduct of the officers was anything other than part-and-parcel of a legitimate law enforcement exercise. Accordingly, there is no basis for proceeding with charges in this case.
Date: March 22, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Note:
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.