SIU Director’s Report - Case # 21-OSA-009
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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.
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.
The Investigation
Notification of the SIU
On January 4, 2021, at 1:10 p.m., the Barrie Police Service (BPS) contacted the SIU and reported a sexual assault allegation made by the Complainant.BPS advised that on September 12, 2020, at about 5:05 a.m., the Complainant was arrested in relation to an assault on his girlfriend, the Civilian Witness (CW), at his residence in Barrie. As a result of the arrest, the Complainant made a complaint to the Office of the Independent Police Review Director (OIPRD) that at some point while dealing with the police officers, a police officer touched his genitals. Few details were known. The involved police officers were the Subject Official (SO) and Witness Official (WO) #1. BPS would secure the cell video for the time the Complainant was in police custody.
The Team
Date and time team dispatched: 01/06/2021 at 8:23 a.m.Date and time SIU arrived on scene: 01/06/2021 at 11:35 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”)
22-year-old male interviewed on February 18, 2021
Civilian Witness
CW Interviewed on February 12, 2021Subject Official
SO Interviewed on January 28, 2021, and notes received and reviewed.
Witness Officials
WO #1 Interviewed on January 15, 2021, notes received and reviewedWO #2 Interviewed on January 18, 2021, notes received and reviewed
Evidence
The Scene
The scene, which was not held, was located inside a police cruiser outside the Complainant’s residence in Barrie.Video/Audio/Photographic Evidence
Summary of Police Communications Recordings - September 12, 2020
The recordings were received from BPS on January 20, 2021.On September 12, 2020, at 5:05 a.m., the CW called the BPS and reported that she had been choked by her boyfriend, the Complainant.
At 5:07 a.m., the SO and WO #1 were dispatched to the residence in relation to the call, arriving on scene at 5:16 a.m. WO #1 and the SO arrested the Complainant without incident.
The police officers arrived at the police station at 5:58 a.m. The Complainant was put through the booking process and lodged in a cell.
Summary of Booking Video - September 12, 2020
The video recordings were received from BPS on February 1, 2021.On September 12, 2020, at 6:12 a.m., the Complainant was brought into the lock-up area by two uniformed police officers. He was handcuffed with his hands behind his back, and wore a pair of dark pants and no shirt. The camera was at a distance and the voices were not in sync with the movement of the mouths of persons. The audio was very poor and muffled.
The officer in charge [known to be WO #2] could not be seen. The Complainant was asked a number of standard questions and he went into detail about the illnesses he had and the medications he took. At no time did the Complainant complain that he had been sexually assaulted. At 6:16 a.m., the Complainant was stood in front of a post and searched. He was then was led off camera.
Materials Obtained from Police Service
Upon request, the SIU obtained the following materials and documents from BPS between January 14, 2021 and February 1, 2021:- Arrest Report;
- Booking Video;
- Communications Recordings;
- Intergraph Computer-Assisted Dispatch Report;
- Niche Records Management System documents;
- Occurrences List;
- Policy-Arrest Procedure;
- Policy-Domestic Violence Procedure;
- Policy-Use of Force Procedure;
- Training Record-the SO;
- List of Officers Involved;
- Notes-the SO;
- Notes-WO #2;
- Notes-WO #1; and
- OIPRD Complaint.
Incident Narrative
The following scenario emerges on the evidence collected by the SIU. In the morning on September 12, 2020, the SO and WO #1 were dispatched to the Complainant’s address in Barrie, following a 911 call. The call had been made by the CW, the Complainant’s girlfriend at the time, reporting that she had been choked by the Complainant.
The Complainant was arrested and handcuffed by the officers inside the residence and led out to WO #1’s cruiser. At the station, the Complainant was lodged in a cell. The Complainant was subsequently remanded into the custody of the Central North Correctional Centre, from which institution he later filed a complaint with the OIPRD.
The Complainant alleges that the SO grabbed his testicles as he was being placed in the backseat of the police cruiser.
The SO categorically denies that he touched the Complainant’s genitals at any time, nor did he see WO #1 engage in any inappropriate contact. WO #1 says the same thing about himself and his partner.
The Complainant was arrested and handcuffed by the officers inside the residence and led out to WO #1’s cruiser. At the station, the Complainant was lodged in a cell. The Complainant was subsequently remanded into the custody of the Central North Correctional Centre, from which institution he later filed a complaint with the OIPRD.
The Complainant alleges that the SO grabbed his testicles as he was being placed in the backseat of the police cruiser.
The SO categorically denies that he touched the Complainant’s genitals at any time, nor did he see WO #1 engage in any inappropriate contact. WO #1 says the same thing about himself and his partner.
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.
Section 265 (2), Criminal Code -- Assault
265 (1) A person commits an assault when(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;(b) threats or fear of the application of force to the complainant or to a person other than the complainant;(c) fraud; or(d) the exercise of authority.
Analysis and Director's Decision
On January 4, 2021, the BPS notified the SIU of an OIPRD complaint that had been filed by the Complainant in which the Complainant reported that he had been sexually assaulted by a BPS officer. According to the complaint, the Complainant alleged that his genitals were touched by a BPS officer in the course of his arrest on September 12, 2020. The SIU initiated an investigation and identified one of the arresting officers, the SO, as the subject official. 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 allegations.
A sexual assault consists of an assault within any of its definitions in the Criminal Code that is of a sexual nature and violates the sexual integrity of the victim: R. v. Chase, [1987] 2 SCR 293.
While the Complainant’s rendition of what occurred, if true, would arguably amount to a sexual assault, I am satisfied that it would be unwise and unsafe to rest charges on the strength of his account alone. Simply put, the Complainant’s recollection of various aspects of the incident stood alone and was contradicted in multiple material ways by the remainder of the evidence. In light of the frailties associated with the Complainant’s evidence, I am satisfied that the Complainant’s account is insufficiently reliable to warrant being put to the test by a trier-of-fact.
What remains of the evidence indicates that the Complainant was arrested and maintained in police custody without incident.
In the result, as I am unable to reasonably conclude on the aforementioned-record that the Complainant was touched in a sexual manner by the SO, there is no basis for proceeding with criminal charges in this case and the file is closed.
A sexual assault consists of an assault within any of its definitions in the Criminal Code that is of a sexual nature and violates the sexual integrity of the victim: R. v. Chase, [1987] 2 SCR 293.
While the Complainant’s rendition of what occurred, if true, would arguably amount to a sexual assault, I am satisfied that it would be unwise and unsafe to rest charges on the strength of his account alone. Simply put, the Complainant’s recollection of various aspects of the incident stood alone and was contradicted in multiple material ways by the remainder of the evidence. In light of the frailties associated with the Complainant’s evidence, I am satisfied that the Complainant’s account is insufficiently reliable to warrant being put to the test by a trier-of-fact.
What remains of the evidence indicates that the Complainant was arrested and maintained in police custody without incident.
In the result, as I am unable to reasonably conclude on the aforementioned-record that the Complainant was touched in a sexual manner by the SO, there is no basis for proceeding with criminal charges in this case and the file is closed.
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.