SIU Director’s Report - Case # 21-OSA-176

Warning:

This page contains graphic content that can shock, offend and upset.

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 where the person'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 person.  Upon consultation with the person in this case, the Director has decided to publish the report.

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.

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 the sexual assault allegation of a 24-year-old woman (the “Complainant”) against a police officer.

The Investigation

Notification of the SIU

On June 6, 2021, at 9:40 p.m., the Durham Regional Police Service (DRPS) notified the SIU of a sexual assault allegation made by the Complainant.

DRPS advised that the Complainant was involved in a motor vehicle collision in Bowmanville area at about 7:30 p.m. on June 6, 2021. The Complainant alleged that the Subject Official (SO) reached into her vehicle while issuing a ticket and touched her in a sexual manner. Civilian Witness (CW) #2 was in the front passenger seat, and two other witnesses were in the back passenger seats of her vehicle.

The Team

Date and time team dispatched: 06/07/2021 at 7:33 a.m.

Date and time SIU arrived on scene: 06/08/2021 at 10:11 a.m.

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

24-year-old female interviewed

The Complainant as interviewed on June 8, 2021.


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

The civilian witnesses were interviewed between June 10 and 12, 2021.

Subject Official

SO Declined interview and to provide notes, as is the subject official’s legal right


Witness Officials (WO)

WO #1 Interviewed
WO #2 Not interviewed, but notes received and reviewed

The witness official was interviewed on June 10, 2021.



Evidence

The Scene

The scene was a parked black sedan in front of Lakeridge Health located on Prince Street in Bowmanville. The Complainant sat in the passenger seat with the passenger window down. The SO approached the Complainant from the passenger side of the car and served the Complainant with traffic tickets.


Video/Audio/Photographic Evidence [1]


911 Call for a Motor Vehicle Collision (MVC)

At 4:20:09 p.m., a woman called 911 to report a motor vehicle collision at Bowmanville Avenue and Highway 2. She asked for an ambulance. She was transferred to paramedics and then the fire department. Several other unidentified callers called 911, but were told the police were aware of it.


Communication Recordings - MVC

At 4:23:53 p.m., the call for service was dispatched. The incident was said to involve a motor vehicle collision, with personal injury, at Highway 2 and Bowmanville Avenue.

At 4:31:35 p.m., the SO put himself on the call.


911 Call - Lakeridge Health

At 6:04:41 p.m., a woman [believed to be CW #2] called 911. She said she required the police. In the background a woman was heard yelling words to effect of, “You just touched my thighs.” CW #2 said she needed a police officer to attend as there was a police officer at her location whom she would like to complain about. The communicator told CW #2 if she wanted to file a complaint about a police officer, she would need to attend the police station. The communicator then hung up on CW #2.


Communications Recordings- Lakeridge Health

At 6:06:18 p.m., the SO asked for a supervisor to attend his location. Loud voices could be heard in the background.

At 6:06:23 p.m., the dispatcher asked if the SO needed a 10-3 [units to limit transmissions] and the SO said negative.

At 6:06:30 p.m., WO #1 said she was en route.

At 6:06:52 p.m., a woman said she wanted to confirm he was at the hospital.

At 6:06:55 p.m., a man [believed to be the SO] said yes.

At 6:07:11 p.m., the dispatcher said a woman also called 911, from Prince Street and Liberty Street, and that she (recording ended).

At 6:07:13 p.m., the dispatcher said words to the effect of, “She hears someone uncooperative (inaudible).”


Closed-circuit Television (CCTV) – Lakeridge Health – Bowmanville

On July 5, 2021, the SIU received a memory stick from Lakeridge Health. The CCTV footage was from the Lakeridge Health on June 6, 2021. There was no relevant footage of the incident depicted.


Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from DRPS commencing on June 10, 2021:
• Global Positioning System (GPS) / Automatic Vehicle Locator (AVL) Data;
• 911 Call and Communications Recordings;
• Motor Vehicle Collision Investigations Directive;
• Police Vehicle Operations and Safe Arrival Directive;
• Notes – WO #2;
• Notes – WO #1;
• Provincial Offence Notice (x2);
• Occurrence Report; and
• Call Summary.


Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources between June 5 and 11, 2021:
CCTV footage from Lakeridge Health, Bowmanville; and
• Cell phone video from CW #2.

Incident Narrative

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and several civilian witnesses who were present in the area at the time of the events in question. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

The Complainant was involved in a motor vehicle collision in Bowmanville in the afternoon of the day in question. Following a stay at Lakeridge Health, Bowmanville, the Complainant was a front seat passenger of a sedan operated by a friend exiting the grounds of the hospital when they observed a police cruiser on Prince Street. The SO was in the parked cruiser. He had attended the scene of the accident and was at the hospital completing his investigation. The Complainant decided she wanted to give the officer her statement in relation to the collision.

As the Complainant’s sedan pulled alongside the cruiser, she called out to the SO with her request. The officer had the Complainant’s friend park her vehicle in front of his cruiser and then exited to speak with the Complainant. The Complainant explained to the SO that she wished to provide her side of the story. The two argued when the officer indicated he did not need it as he had already determined, based on what other witnesses had told him, that she was at fault. The SO returned to his cruiser to prepare two tickets for the Complainant.

When the SO returned with the tickets, the Complainant refused to take them, directing the officer to give them to her friend and driver – CW #2. The SO explained that he needed to serve her personally and proceeded to reach through the open front passenger window and deposit the tickets on the Complainant’s lap. The Complainant immediately protested and accused the officer of having touched her thighs. At the Complainant’s request, CW #2 called 911 to ask for another officer at the scene as they wished to make a complaint about the SO. WO #1 was dispatched.

WO #1 spoke with the Complainant and the SO. She persuaded the former to accompany her to the police station to make a complaint. It was not long after the Complainant did so that the SIU was contacted by the police service and initiated an investigation.

Relevant Legislation

Section 265 (1), 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.

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 June 6, 2021, the DRPS notified the SIU of an allegation of sexual assault made by the Complainant against one of their officers – the SO. Specifically, according to the DRPS, it was alleged that the SO, while issuing the Complainant a ticket, reached into her vehicle and touched her in a sexual manner. The SIU initiated an investigation and identified 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 complaint of sexual assault.

A sexual assault consists of an assault within any of its definitions in the Criminal Code that is sexual in nature and violates the sexual integrity of the victim: R v Chase [1987] 2 SCR 293. For purposes of these reasons, I accept that the SO made contact with the Complainant’s thigh or thighs as he placed the tickets on her lap inside the vehicle. The issue is whether the contact was sexual in nature.

In assessing the character of the touch in question, the case law prescribes an objective test. That is, considered in light of the relevant circumstances, would a reasonable observer gauge the contact to have been sexual in nature. In my view, the evidence falls short of reasonably establishing that the SO engaged in sexual touching.

Put simply, I am unable to reasonably conclude that the contact was anything more than incidental and inadvertent on the part of the SO. The Complainant indicated that she did not wish to accept service of the tickets, asking that the officer deal with her friend instead. In the circumstances, as the SO was obliged to serve the Complainant personally, I am unable to fault the officer for placing the tickets on the Complainant’s lap. There is a suggestion in the evidence that the officer acted precipitously in doing so, as the Complainant was prepared to take hold of the tickets with her hands if the SO had only given her a chance. That evidence, however, is belied by the accompanying claim that the Complainant’s right arm was in a sling at the time, making it difficult if not impossible for her to use that hand to accept service. In fact, the evidence establishes that the Complainant’s right arm was not in a sling.

Moreover, it bears noting that the touch was short-lived, unaccompanied by any sexual innuendo, and carried out with three of the Complainant’s acquaintances either in the car or nearby, all of which detract from any suggestion that there was something sexual about the SO’s conduct.

In the result, as there are no reasonable grounds to believe that the SO touched the Complainant in a sexual manner as he served her with traffic tickets, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: October 4, 2021


Electronically approved by


Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]

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.