Director's Report Details

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.

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 serious injury a 43-year-old[1] woman (the “Complainant”) sustained.

Notification of the SIU

On September 27, 2021, at 10:24 a.m., the Guelph Police Service (GPS) notified the SIU of an injury. GPS had received a Freedom of Information Request for an incident that occurred on October 3, 2017. In the complaint, the Complainant alleged she had sustained a concussion and brain damage while being arrested by GPS police officers during a disturbance at a residence in Guelph. The Complainant indicated her injuries were documented.

GPS advised the SIU that a struggle had ensued with the Complainant while she was in the front lobby of GPS headquarters.

GPS was in the process of attempting to locate recordings, which GPS believed had been retained.

GPS also advised that the incident had been reported to the Office of the Independent Police Review Director in July 2020.

The Team

Date and time team dispatched: 09/27/2021 at 2:33 p.m.

Date and time SIU arrived on scene: 09/27/2021 at 3:00 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

Interviewed; medical records obtained and reviewed

The Complainant was interviewed on October 25, 2021.

Subject Official (SO)

SO Declined interview and to provide notes, as is the subject official’s legal right, but did provide a written statement.

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

The witness officials were interviewed on November 17, 2021.

The Scene

The events in question occurred in the lobby and the booking area of the GPS headquarters.

As this incident was reported four years after the occurrence, there was no scene for examination.

Video/Audio/Photographic Evidence[2]

GPS Booking Area Video Recording

The booking area video recording from October 3, 2017 captured colour video and audio of the Complainant being escorted and seated on the bench in the booking room.

At 8:42:51 a.m. on the recording, the Complainant’s face appeared uninjured at that time.

Almost immediately, the Complainant kicked at the SO with her right leg. Immediately responding to that, the SO and WO #1 moved in to restrain her.

As WO #3 arrived, the SO and WO #1 restrained the Complainant, appearing to hold her left side on the bench and the left side of her head wedged at the corner of the room and bench. The SO told the Complainant she was under arrest for assaulting police before releasing his hold at 8:43:21 a.m.

The police officers told her to relax and “don’t kick” as the Complainant yelled obscenities at them.

At no time during the half-minute episode, in which the SO and WO #1 physically restrained the Complainant, was the SO seen striking the Complainant. It is noted, however, that a view of the SO’s arms are obstructed by his back on the recording.

Following the physical interaction, the Complainant was seen with an obvious injury to the left side of her forehead at 8:44:18 a.m. on the recording.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from GPS between October 8, 2021 and January 10, 2022:

• Custody Tracking Forms (x4);
• Email from GPS regarding FOI request from the Complainant;
• GPS Announcement-Retention of Video at Headquarters;
• Crown Brief Synopses (x4);
• Will State-WO #1;
• General Reports (x3);
• Computer-assisted Dispatch Details (x2);
• Arrest Synopses (x3);
• Notes-WO #2 (x2);
• Notes-WO #1;
• Mugshots – the Complainant (x4);
• Written statement-the SO; and
• Booking Room Video Footage.

Materials Obtained from Other Sources

The SIU received the following record from other sources on November 2, 2021:

• Medical records – the Complainant.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and several officers who dealt with her on the day in question. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes. He did provide a copy of a written statement.

In the morning of October 3, 2017, the Complainant was arrested at her home in Guelph for assault by the SO and WO #1. The arrest followed a call to police from neighbours of the Complainant reporting that she had assaulted them. The Complainant was handcuffed and transported to the GPS headquarters.

At the station, the Complainant was grounded by the SO as they entered through the main entrance into the lobby. She was subsequently brought to her feet and escorted into the booking area where there occurred another physical altercation between the two. An agitated Complainant had kicked the SO’s right leg, and the officer reacted with a measure of force. Following that skirmish, the Complainant developed swelling on the left side of her forehead.

The Complainant was released from custody the same day, attended hospital, and was diagnosed with a concussion.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

On October 3, 2017, the Complainant suffered a serious injury while in the custody of the GPS following her arrest that date.[3] One of the arresting officers – the SO – was identified as a subject official for purposes of the SIU investigation. The investigation 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.

There is no suggestion in the evidence that the Complainant’s arrest for assault was unlawful. Once lawfully in the custody of the police, the officers who engaged with the Complainant were entitled to exercise reasonable control over her movements to ensure their safety as well as their own as she was processed through the system.

The Complainant’s account of the SO’s behaviour describes force that amounts to a criminal assault, but her evidence is insufficiently reliable to warrant being put to the test by a trier-of-fact. For example, when stacked against audio-video footage of the altercation captured by a camera in the booking room, it is apparent that the Complainant’s description of what transpired is wanting in material respect. These and other weaknesses associated with the Complainant’s narrative persuade me that it would be unwise and unsafe to rest criminal charges on the strength of her evidence.

The remainder of the evidence, including the booking room audio-video footage, indicates that the Complainant was grounded by the SO in the police station lobby after she broke free from his grasp – no strikes of any kind were delivered - and that the officer delivered a single open-handed strike to the Complainant’s face and then forced her down onto the bench, and kept her pinned there for a matter of seconds, after she had kicked his right leg. In both instances, I am unable to reasonably conclude that the force used by the SO was not reasonably necessary in the circumstances. With specific reference to the strike used by the officer, he had just been assaulted and was entitled in the moment to take immediate action to deter any further attack on his person.

In the result, while I accept that the Complainant’s concussion was likely incurred in the second of her altercations with the SO, there are no reasonable grounds to believe that her injury was attributable to unlawful conduct on the part of the officer. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.

Date: January 25, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit