SIU Director’s Report - Case # 23-PCI-061
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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 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 the serious injuries of a 60-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 the serious injuries of a 60-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU [1]
On February 28, 2023, at 11:59 a.m., the OPP contacted the SIU with the following information.On February 15, 2023, at 5:09 a.m., OPP officers responded to an ‘unwanted person’ call for service at an apartment on Barrie Road in Orillia. The unwanted person was the Complainant. The keyholder of the apartment wanted her removed. The Complainant was taken to the OPP Orillia Detachment and lodged in a cell to sober up. Later that day, the Complainant complained of soreness to her shoulder and was taken to Orillia Soldiers’ Memorial Hospital (OSMH) where she was subsequently cleared for any injuries. On February 28, 2023, the Complainant notified the police service that she had suffered a fractured humerus as a result of her arrest on February 15, 2023.
The Team
Date and time team dispatched: 02/28/2023 at 12:53 p.m.Date and time SIU arrived on scene: 02/28/2023 at 1:35 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
60-year-old female; interviewed; medical records obtained and reviewedThe Complainant was interviewed on February 28, 2023.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal right.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
Evidence
The Scene
The events in question transpired in the bathroom of an apartment on Barrie Road, Orillia. Video/Audio/Photographic Evidence [2]
Orillia OPP Custody Video
On March 16, 2023, at 12:41 p.m., the SIU received from the OPP a copy of the video footage of the Complainant’s time in police custody on February 15, 2023.The Complainant was captured being brought into the booking area at 6:08 a.m., on February 15, 2023. She was wearing dark pants and a sweatshirt with a hood. Numerous OPP officers were in the area. The Complainant was holding her right arm and appeared to be in pain. She was searched and left the area.
At 6:13 a.m., the Complainant was taken to her cell. She walked slowly and appeared to favour her right arm and shoulder. The Complainant was doubled-over, holding her right arm. She only moved from that position to drink water.
At 12:55 p.m., a female, believed to be WO #3, was at the cell door.
At 1:08 p.m., WO #3, her partner, and a uniformed OPP officer entered the cell to speak to the Complainant. After speaking with her, the officers left.
At 1:22 p.m., a uniformed OPP officer opened the cell and the Complainant exited.
Communications Recordings and Computer-assisted Dispatch (CAD) Report
On March 6, 2023, at 3:03 p.m., the OPP provided the SIU the pertinent communications recordings and CAD report. The following is a summary of the information derived from these records. On February 15, 2023, at 5:09 a.m., an OPP dispatcher broadcast that there was an unwanted person at an address on Barrie Road in Orillia. The 911 caller indicated that someone had locked themselves in the bathroom for 20 minutes. The caller said they had been drinking, and the person was not violent, but he wanted the person to leave. Several OPP officers responded to the call.
At 5:24 a.m., there was a transmission requesting an ambulance.
At 5:29 a.m., there was a broadcast that the Complainant was in custody.
At 5:35 a.m., the ambulance was cancelled.
At 5:41 a.m., the Complainant was transported to OSMH by OPP officers.
911 Call
On March 6, 2023, at 3:03 p.m., the OPP provided the SIU a copy of the pertinent 911 call.The caller resided in an apartment on Barrie Road, Orillia. On February 15, 2023, at 5:08 a.m., he contacted 911 to advise that a person (now known to be the Complainant) was in his apartment and would not leave. The caller referred to the person as a man and said that he had locked himself in the bathroom for about 20 minutes and refused to open the door.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP between March 2 and 8, 2023:- Arrest Report;
- CAD report;
- Communications recordings;
- Involved Person Report;
- Involved Officers Report;
- Notes - WO #3;
- Notes - WO #2;
- Notes - WO #1;
- Cell video;
- 911 call recording; and
- Supplementary Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Medical records from OSMH received March 7, 2023; and
- Medical records from a family doctor received March 8, 2023.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may briefly be summarized. 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 February 15, 2023, officers, including the SO, were dispatched to deal with an ‘unwanted person’ in an apartment on Barrie Road, Orillia. The person – the Complainant – had spent the night as a guest of the unit holder. Intoxicated, she had passed out in the bathroom tub and was unwilling or incapable of leaving, despite the unit holder’s repeated requests that she do so. The unit holder contacted police to assist in evicting the Complainant.
The SO located the Complainant in the bathtub fully clothed and spoke to her, asking that she get up and leave. The Complainant indicated that she was too tired and refused to leave. This went on for a period, after which the officer told the Complainant that she would be arrested for trespassing if she did not leave. When the Complainant continued to refuse, the SO told her she was under arrest and took hold of her. Specifically, the officer placed his right hand under the Complainant’s right shoulder, and his left hand near the top of the same shoulder, thereafter, pulling her out of the tub onto the floor with one yank.
Once out of the bathtub, the SO and another of the attending officers – WO #1 - picked the Complainant up and carried her to the front door of the unit. The Complainant was handcuffed to the front and taken to hospital.
At hospital, the Complainant was refused treatment because of her agitated behaviour. She was taken to the police station and subsequently returned to hospital later in the day. On that occasion, the Complainant was diagnosed for a right shoulder dislocation and fracture.
In the morning of February 15, 2023, officers, including the SO, were dispatched to deal with an ‘unwanted person’ in an apartment on Barrie Road, Orillia. The person – the Complainant – had spent the night as a guest of the unit holder. Intoxicated, she had passed out in the bathroom tub and was unwilling or incapable of leaving, despite the unit holder’s repeated requests that she do so. The unit holder contacted police to assist in evicting the Complainant.
The SO located the Complainant in the bathtub fully clothed and spoke to her, asking that she get up and leave. The Complainant indicated that she was too tired and refused to leave. This went on for a period, after which the officer told the Complainant that she would be arrested for trespassing if she did not leave. When the Complainant continued to refuse, the SO told her she was under arrest and took hold of her. Specifically, the officer placed his right hand under the Complainant’s right shoulder, and his left hand near the top of the same shoulder, thereafter, pulling her out of the tub onto the floor with one yank.
Once out of the bathtub, the SO and another of the attending officers – WO #1 - picked the Complainant up and carried her to the front door of the unit. The Complainant was handcuffed to the front and taken to hospital.
At hospital, the Complainant was refused treatment because of her agitated behaviour. She was taken to the police station and subsequently returned to hospital later in the day. On that occasion, the Complainant was diagnosed for a right shoulder dislocation and fracture.
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 9 (1), Trespass to Property Act – Arrest Without Warrant on Premises
9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer.
(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail.
Analysis and Director's Decision
The Complainant was seriously injured in the course of her arrest by OPP officers in Orillia on February 15, 2023. In the ensuing SIU investigation of the incident, one of the officers – the SO – was identified 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 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.
At the time the Complainant was taken into custody, she was clearly a trespasser in another person’s residence and was subject to arrest on that basis under section 9 of the Trespass to Property Act.
The force used by the SO in aid of the Complainant’s arrest was perhaps clumsy, but I am unable to reasonably conclude that it was unlawful force. The officer had attempted at some length to have the Complainant remove herself from the bathtub. Whether she was unwilling or incapable of doing so given her level of intoxication, the SO was within his rights in forcing her removal from the bathtub after a period so she could be taken into custody. In hindsight, he might have been better served by holding the Complainant under both shoulders as he lifted her or by enlisting the help of WO #1. Presumably, either alternative would have helped distribute the Complainant’s body weight and might have avoided injury. That said, the bathroom was small, and it is not completely clear that these options were feasible. Moreover, the medical evidence indicates that dislocations of the type suffered in this case are not necessarily the result of significant force; on the contrary, they can happen very easily. On this record, I am not satisfied with any confidence that the SO’s conduct fell outside the limits of reasonable force in the circumstances.
In the result, while I accept that the SO caused the Complainant’s injuries when he pulled her out of the bathtub, there are no reasonable grounds to believe that the officer comported himself other than lawfully throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 22, 2023
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.
At the time the Complainant was taken into custody, she was clearly a trespasser in another person’s residence and was subject to arrest on that basis under section 9 of the Trespass to Property Act.
The force used by the SO in aid of the Complainant’s arrest was perhaps clumsy, but I am unable to reasonably conclude that it was unlawful force. The officer had attempted at some length to have the Complainant remove herself from the bathtub. Whether she was unwilling or incapable of doing so given her level of intoxication, the SO was within his rights in forcing her removal from the bathtub after a period so she could be taken into custody. In hindsight, he might have been better served by holding the Complainant under both shoulders as he lifted her or by enlisting the help of WO #1. Presumably, either alternative would have helped distribute the Complainant’s body weight and might have avoided injury. That said, the bathroom was small, and it is not completely clear that these options were feasible. Moreover, the medical evidence indicates that dislocations of the type suffered in this case are not necessarily the result of significant force; on the contrary, they can happen very easily. On this record, I am not satisfied with any confidence that the SO’s conduct fell outside the limits of reasonable force in the circumstances.
In the result, while I accept that the SO caused the Complainant’s injuries when he pulled her out of the bathtub, there are no reasonable grounds to believe that the officer comported himself other than lawfully throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: June 22, 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) 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.