SIU Director’s Report - Case # 21-PCI-322
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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.
- 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 serious injuries sustained by a 29-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 serious injuries sustained by a 29-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU
On September 27, 2021, at 2:17 p.m.,[1] the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant of Fort Frances.The OPP reported that the Complainant was arrested on September 27, 2021, at 2:16 a.m., for Trespass by Night. Afterward, she complained of a sore shoulder and was taken to La Verendrye Hospital - Riverside Health Care. The Complainant was sent back to the police station due to staffing issues at the hospital. At 8:00 a.m., the Complainant was returned to the hospital and an X-ray examination was completed. At approximately 1:00 p.m., the OPP were advised the Complainant had a confirmed fractured clavicle.
The OPP reported that the Complainant either fell or was grounded, which resulted in two fractures to her left clavicle.
The Team
Date and time team dispatched: 09/28/2021 at 6:59 a.m.Date and time SIU responded: 09/28/2021 at 9:57 a.m.
Number of SIU Investigators assigned: 3
Affected Person (aka “Complainant”):
29-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 29, 2021.
Civilian Witnesses
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
The civilian witnesses were interviewed on September 29, 2021, and September 30, 2021.
Subject Officials
SO Interviewed, and notes received and reviewedThe subject official was interviewed on December 15, 2021.
Witness Officials
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Interviewed
WO #6 Not interviewed, but notes received and reviewed
The witness officials were interviewed on October 1, 2021.
WO #4 and WO #6 were not interviewed as they were not involved in the arrest of the Complainant. WO #6 had been identified by the OPP as being involved in this incident, but her notes revealed she was involved in an arrest of the Complainant on September 26, 2021, the night before the incident under investigation. WO #4 reported for duty at 8:00 a.m. on September 27, 2021, and was tasked with transporting the Complainant to the hospital. He noted she made no utterances to him.
Evidence
The Scene
Walker Avenue is generally a residential area. The address on Walker Avenue where the arrests of the Complainant and her friends occurred is a small residential home with a long driveway.Video/Audio/Photographic Evidence[2]
Computer Assisted Dispatch (CAD) Report and Communications Recordings
The CAD report relating to the arrest of the Complainant on September 27, 2021 started at 2:16 a.m., with police officers reporting they were on Walker Avenue and had arrested two people they found going through vehicles. At 2:21 a.m., a police officer reported he had two individuals in his vehicle, and he was transporting them to the police station. At 2:29 a.m., it was reported a male had also been arrested.The communications recordings initially received by the SIU related to an investigation of individuals who had been observed breaking into a vehicle on September 26, 2021.
On December 20, 2021, the OPP were asked to provide a copy of the recordings related to the September 27, 2021 arrest of the Complainant. Those recordings were received by the SIU on December 21, 2021. The communications recordings from September 27, 2021 were consistent with the CAD record.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the OPP Rainy River District:- Arrest Report;
- CAD Report;
- Communications recordings;
- Duty Roster - Fort Frances Log Nightshift;
- Form 10 Release;
- General Report;
- Notes of SO and WOs;
- Officer and Civilian Witness List;
- Prisoner Report;
- Show Cause Hearing Report;
- Supplementary Report by WO #1; and
- Training record – the SO.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources:- Medical records from the Riverside Health Care system.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant, the SO, and other police and non-police witnesses who observed the incident in parts.
In the early morning hours of September 27, 2021, the SO, in the company of his partner, WO #1, were on patrol in Fort Frances when they came upon the Complainant on Walker Avenue. The Complainant was with an acquaintance – CW #1. Suspecting they were engaged in thefts, the officers confronted the women on the driveway of a residence on Walker Avenue.
The Complainant denied that she had done anything wrong. After WO #1 spoke with the occupant of the residence, who said that the women had no reason to be on the property, WO #1 advised them both that they were under arrest for trespassing.
The SO moved in to take hold of the Complainant. The Complainant protested her arrest, and refused to surrender her arms to be handcuffed. Having secured one of the cuffs to her left wrist, the SO was unable to sufficiently control the Complainant’s right hand to affix the other. The SO decided to ground the Complainant, who fell forward onto the driveway, after which he managed to handcuff her arms behind her back.
Following her arrest, the Complainant was taken from the scene to the station. She subsequently attended a health care centre where she was diagnosed with a fractured left collarbone.
In the early morning hours of September 27, 2021, the SO, in the company of his partner, WO #1, were on patrol in Fort Frances when they came upon the Complainant on Walker Avenue. The Complainant was with an acquaintance – CW #1. Suspecting they were engaged in thefts, the officers confronted the women on the driveway of a residence on Walker Avenue.
The Complainant denied that she had done anything wrong. After WO #1 spoke with the occupant of the residence, who said that the women had no reason to be on the property, WO #1 advised them both that they were under arrest for trespassing.
The SO moved in to take hold of the Complainant. The Complainant protested her arrest, and refused to surrender her arms to be handcuffed. Having secured one of the cuffs to her left wrist, the SO was unable to sufficiently control the Complainant’s right hand to affix the other. The SO decided to ground the Complainant, who fell forward onto the driveway, after which he managed to handcuff her arms behind her back.
Following her arrest, the Complainant was taken from the scene to the station. She subsequently attended a health care centre where she was diagnosed with a fractured left collarbone.
Relevant Legislation
Section 25(1), Criminal Code -- Protection of persons acting under authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(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,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Section 177, Criminal Code – Trespass at night
177 Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.Analysis and Director's Decision
On September 27, 2021, the Complainant was seriously injured in the course of her arrest by an OPP officer in Fort Frances. The arresting officer – the SO – was identified as a subject official for purposes of the SIU investigation, which is now concluded. 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 arrest and injury.
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
I am satisfied that the SO was proceeding to lawfully arrest the Complainant. The evidence suggests that at least one of the women was engaged in the theft of property from Walker Avenue on the morning in question. While that evidence may not have been sufficient at the time to ground an arrest for theft, coupled with the women’s unauthorized presence on the driveway of a residence on Walker Avenue at about 2:15 a.m., it gave rise to a reasonable belief that the Complainant and CW #1 were trespassing by night contrary to section 177 of the Criminal Code.
As for the Complainant’s injury, while I accept that it resulted from pressure brought to bear on her left shoulder as she was taken down by the officer, there is insufficient evidence to reasonably conclude the force used by the SO was unlawful. The only allegation of excessive force is that the SO broke the Complainant shoulder when he intentionally came down on her left shoulder with his right knee after she had been grounded. It would be unwise and unsafe, however, to rest charges on the strength this evidence. Its source said that the officers arrived on scene in a cruiser, and that the Complainant was taken away to the station in a vehicle occupied by the SO and WO #1. On the contrary, the weight of the evidence indicates that the officers arrived at the address on foot, and that the Complainant left the scene in a cruiser operated by a single officer – WO #2. This narrative was also significantly at odds with the accounts provided by two civilian witnesses who were present on Walker Avenue.
As for the remainder of the civilian evidence, there is an indication that the SO kneeled over the Complainant after she had been taken to the ground. For his part, the SO suggests he and the Complainant both fell to the ground as he wrestled with her on their feet, his upper body unintentionally impacting her back and shoulder area in the process. Neither scenario gives rise to the suggestion of excessive force.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his engagement with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 25, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.
I am satisfied that the SO was proceeding to lawfully arrest the Complainant. The evidence suggests that at least one of the women was engaged in the theft of property from Walker Avenue on the morning in question. While that evidence may not have been sufficient at the time to ground an arrest for theft, coupled with the women’s unauthorized presence on the driveway of a residence on Walker Avenue at about 2:15 a.m., it gave rise to a reasonable belief that the Complainant and CW #1 were trespassing by night contrary to section 177 of the Criminal Code.
As for the Complainant’s injury, while I accept that it resulted from pressure brought to bear on her left shoulder as she was taken down by the officer, there is insufficient evidence to reasonably conclude the force used by the SO was unlawful. The only allegation of excessive force is that the SO broke the Complainant shoulder when he intentionally came down on her left shoulder with his right knee after she had been grounded. It would be unwise and unsafe, however, to rest charges on the strength this evidence. Its source said that the officers arrived on scene in a cruiser, and that the Complainant was taken away to the station in a vehicle occupied by the SO and WO #1. On the contrary, the weight of the evidence indicates that the officers arrived at the address on foot, and that the Complainant left the scene in a cruiser operated by a single officer – WO #2. This narrative was also significantly at odds with the accounts provided by two civilian witnesses who were present on Walker Avenue.
As for the remainder of the civilian evidence, there is an indication that the SO kneeled over the Complainant after she had been taken to the ground. For his part, the SO suggests he and the Complainant both fell to the ground as he wrestled with her on their feet, his upper body unintentionally impacting her back and shoulder area in the process. Neither scenario gives rise to the suggestion of excessive force.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his engagement with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 25, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) All times in this report are denoted in Central Time, the time zone for Fort Frances. [Back to text]
- 2) 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.