SIU Director’s Report - Case # 23-OSA-032
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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 section 14 (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 a sexual assault reportedly perpetrated by a police officer against a 42-year-old man (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 a sexual assault reportedly perpetrated by a police officer against a 42-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On January 30, 2023, at 1:15 p.m., the SIU received a report of sexual assault.According to the report, on November 4, 2021, at about 11:00 a.m., the Complainant was in a vehicle with other occupants in a parking lot in the area of Pine and McNabb Streets in Sault Ste. Marie when police conducted a high-risk takedown of the vehicle and he was instructed to exit. An officer took control of him, handcuffed him, and began to search him in public view. The officer proceeded to grope his testicles inquiring as to what was in his pants. The Complainant responded that it was his “nuts”, after which the officer placed his hands inside his pants, underneath his underwear, and continued to grope his testicles. There, the officer located a quantity of crack cocaine.
The Team
Date and time team dispatched: 01/31/2023 at 8:07 a.m.Date and time SIU arrived on scene: 01/31/2023 at 9:11 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
42-year-old [2] male; interviewedThe Complainant was interviewed on February 3, 2023.
Civilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Not interviewed; declined
CW #5 Not interviewed; declined
The civilian witnesses were interviewed between February 3 and March 31, 2023.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed
The witness officials were interviewed between February 8 and April 27, 2023.
Evidence
The Scene
The events in question transpired in the parking lot of 731 Pine Street, Sault Ste. Marie.Video/Audio/Photographic Evidence [3]
Police Custody Video
On January 31, 2023, the SIU requested a copy of the custody video related to the Complainant’s detention on November 4, 2021, at Sault Ste. Marie Police Service (SSMPS). On February 1, 2023, at 8:12 a.m., a staff sergeant of the Professional Standards Bureau advised that there was no custody video available to disclose as the service had been under a cyber-attack at the time of the incident under investigation and had lost the ability to record.
Police Communication Recordings
On February 2, 2023, at 12:36 p.m., the SIU received a copy of the relevant communications recordings from the SSMPS. The SO was captured making a transmission requesting that WO #7, WO #2, and WO #9 attend Pine Street and Allard Street for a high-risk traffic stop of a male wanted by police. The male was identified as CW #1.
At 10:13 a.m., one person [now known to be CW #1] was in custody.
At 10:17 a.m., the male driver [now known to be the Complainant] was refusing to exit a Dodge Charger. The officers were unable to identify the two occupants [now known to be CW #4 and CW #5] in the back seat.
At 10:23 a.m., the driver [now known to be the Complainant] exited the vehicle and was placed in police custody.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP Sault Ste. Marie Detachment and the SSMPS between February 1 and April 20, 2023:- SSMPS communications recordings;
- SSMPS Arrest Report and Checklist;
- SSMPS Arrest Report;
- SSMPS Exhibit List;
- SSMPS Event Details;
- SSMPS Notes and Witness Statement–WO #5;
- SSMPS Notes – WO #3;
- SSMPS Notes and Witness Statement-WO #7;
- SSMPS Notes and Witness Statement-WO #8;
- SSMPS Notes and Witness Statement-WO #9;
- SSMPS Notes and Witness Statement-WO #6;
- SSMPS Notes and Witness Statement-WO #1;
- SSMPS Notes and Witness Statement-WO #2;
- SSMPS Occurrence (Person) - the Complainant;
- Office of the Independent Police review Director (OIPRD) Complaint - the Complainant;
- OIPRD Complaint;
- OPP Notes and Witness Statement - WO #4;
- SSMPS Policy - Search of Persons;
- SSMPS Policy - Arrest;
- SSMPS Prohibition Order;
- SSMPS Property (Occurrence);
- SSMPS Release Order;
- SSMPS Scenes of Crime Officer photographs;
- SSMPS Warrant for Arrest - the Complainant; and
- SSMPS Warrant for Arrest of Defendant - the Complainant.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Cell phone video and photographs of scene taken by CW #3; and
- Drawing of scene made by the Complainant.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and a number of officers present at the time of the events in question, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the morning of November 4, 2021, the Complainant was an occupant of a Dodge Charger parked in the rear lot of an apartment building on Pine Street, Sault Ste. Marie. With him in the vehicle were three other persons. The Complainant and his associates had been in the Charger a short time when several police cruisers pulled up and blocked their vehicle, after which officers exiting the cruisers confronted them at gunpoint.
The SO was a member of the SSMPS Emergency Services Unit (ESU) and present at the time of the takedown of the Charger. He and other members of the ESU had been called to assist in the arrest of the vehicle’s occupants when an officer had earlier that morning recognized the Complainant and the front seat passenger as individuals wanted on outstanding arrest warrants.
Each of the four individuals were ordered out of the Charger by the officers and surrendered to police without incident. The Complainant, the last to exit, was handcuffed and searched prior to being placed inside a cruiser for transport to the police station.
The Complainant was subjected to a strip search at the police station, in the course of which illicit drugs were discovered when he removed his underwear.
In the morning of November 4, 2021, the Complainant was an occupant of a Dodge Charger parked in the rear lot of an apartment building on Pine Street, Sault Ste. Marie. With him in the vehicle were three other persons. The Complainant and his associates had been in the Charger a short time when several police cruisers pulled up and blocked their vehicle, after which officers exiting the cruisers confronted them at gunpoint.
The SO was a member of the SSMPS Emergency Services Unit (ESU) and present at the time of the takedown of the Charger. He and other members of the ESU had been called to assist in the arrest of the vehicle’s occupants when an officer had earlier that morning recognized the Complainant and the front seat passenger as individuals wanted on outstanding arrest warrants.
Each of the four individuals were ordered out of the Charger by the officers and surrendered to police without incident. The Complainant, the last to exit, was handcuffed and searched prior to being placed inside a cruiser for transport to the police station.
The Complainant was subjected to a strip search at the police station, in the course of which illicit drugs were discovered when he removed his underwear.
Relevant Legislation
Section 265, Criminal Code -- Assault
265 (1) A person commits an assault when
(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.(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.
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.(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.
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 January 30, 2023, the SIU was notified of a sexual assault that was reportedly perpetrated by a SSMPS officer against a male – the Complainant - on November 4, 2021. The SIU initiated an investigation and named the SO as the subject official. 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 sexual assault complaint.
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. With respect to whether the contact in question was inherently sexual, the case law prescribes an objective test, namely, would a reasonable person characterize the contact as sexual having regard to all the circumstances.
Taking the case at its highest in favour of the allegation, I am unable to reasonably conclude that the impugned contact was sexual. The Complainant says that the SO stuck his hand underneath his underwear waistband and fondled his testicles before recovering a baggie from the area that contained several grams of crack cocaine. The suggestion implicit in the complaint is that the officer’s contact with the Complainant’s genitalia was more than was necessary to locate and recover the drugs. I am not so convinced with any degree of confidence. Rather, it seems equally plausible that the SO’s conduct was consistent with a bona fide search of the area which would have entailed, by necessity, some level of contact with the Complainant’s testicles. In arriving at this conclusion, I note that: the officer was within his rights in searching the Complainant for evidence on his person pursuant to his common law power of search incident to lawful arrest; the arrest itself was lawful given the warrants in effect at the time; and, the officer reached into the Complainant’s underwear only after a pat-down search revealed an object in the area, which the Complainant confirmed was ‘crack’; and, the Complainant has previously characterized the contact in question in less graphic terms, describing it as a “touch” in a public parking lot.
In the result, as there are no reasonable grounds to believe that the incident included anything more than contact that was part and parcel of a legitimate law enforcement exercise, there is no basis for concluding the contact was sexual in nature or, by extension, that it amounted to a sexual assault. The file is closed.
Date: May 29, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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. With respect to whether the contact in question was inherently sexual, the case law prescribes an objective test, namely, would a reasonable person characterize the contact as sexual having regard to all the circumstances.
Taking the case at its highest in favour of the allegation, I am unable to reasonably conclude that the impugned contact was sexual. The Complainant says that the SO stuck his hand underneath his underwear waistband and fondled his testicles before recovering a baggie from the area that contained several grams of crack cocaine. The suggestion implicit in the complaint is that the officer’s contact with the Complainant’s genitalia was more than was necessary to locate and recover the drugs. I am not so convinced with any degree of confidence. Rather, it seems equally plausible that the SO’s conduct was consistent with a bona fide search of the area which would have entailed, by necessity, some level of contact with the Complainant’s testicles. In arriving at this conclusion, I note that: the officer was within his rights in searching the Complainant for evidence on his person pursuant to his common law power of search incident to lawful arrest; the arrest itself was lawful given the warrants in effect at the time; and, the officer reached into the Complainant’s underwear only after a pat-down search revealed an object in the area, which the Complainant confirmed was ‘crack’; and, the Complainant has previously characterized the contact in question in less graphic terms, describing it as a “touch” in a public parking lot.
In the result, as there are no reasonable grounds to believe that the incident included anything more than contact that was part and parcel of a legitimate law enforcement exercise, there is no basis for concluding the contact was sexual in nature or, by extension, that it amounted to a sexual assault. The file is closed.
Date: May 29, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) Age at the time of the alleged incident. [Back to text]
- 3) 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.