Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release 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 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury reportedly sustained by a 49-year-old woman during her arrest on September 17, 2017.

Notification of the SIU

At approximately 11:10 a.m. on September 29, 2017, the North Bay Police Service (NBPS) notified the SIU of a custody injury to the Complainant. The NBPS reported that the Complainant and Civilian Witness (CW) #1 had been arrested on September 17, 2017, and jointly charged with criminal harassment stemming from an interaction with neighbours.

On Wednesday, September 27, 2017, the Complainant, while in attendance at the NBPS Headquarters, complained to WO #7 that she had been physically assaulted by the Subject Officer (SO) and Witness Officer (WO) #1 during her arrest on September 17, 2017. The Complainant reported that two days after her arrest, she had gone to a hospital where she was diagnosed with a mild concussion and soft tissue damage.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Investigators attended the area of the arrest and a canvass of the neighbourhood was completed. A video camera in a nearby school was reviewed and a press release was published in the local newspaper calling for witnesses.

Complainant:

49-year-old female interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Notes reviewed, interview deemed unnecessary

WO #4 Notes reviewed, interview deemed unnecessary

WO #5 Notes reviewed, interview deemed unnecessary

WO #6 Notes reviewed, interview deemed unnecessary

WO #7 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, notes received and reviewed

On September 17, 2017, following complaints from two citizens, the SO and WO #1 attended at the Complainant’s address in the City of North Bay in order to arrest the Complainant and CW #1 on a charge of criminal harassment contrary to s. 264 of the Criminal Code. CW #1 was arrested without incident. The Complainant, however, resisted her arrest and some force was used to subdue her. Two days later, on September 19^th, 2017, the Complainant went to a hospital and was assessed.

On September 26/27, 2017, the Complainant was at the police station for an unrelated matter when she advised WO #7 that she had suffered a concussion and a cracked vertebra arising from her arrest on September 17, 2017, and that her injuries had been caused by an excessive use of force by the SO and WO #1.

Nature of Injuries / Treatment

The Complainant was seen by a doctor two days after her arrest. Her medical records indicate that there was no contusion or abrasion to her scalp observed, “despite the fact that this event only took place two days ago”, her pupils were equal and reactive, and that otherwise everything seemed normal. A CT head scan was done and showed no evidence of acute abnormality.

X-rays were also taken of the thoracic spine, lumbar spine, and cervical spine, with no abnormalities, lesions, fractures, or soft tissue swelling noted.

The Scene

The scene of the Complainant’s arrest began at the front door of her residence and progressed to a fence which bordered her property.

Video/Audio/Photographic Evidence

The Complainant gave the SIU undated photographs of the injuries she contends she suffered on September 17, 2017. Some of the photos were of extremely poor quality while others showed some minor bruising and a scar to her mid back area which appeared unrelated to her arrest.

Closed Circuit Television (CCTV) video from a nearby school relating to the underlying charge of criminal harassment was obtained and reviewed.

Communications Recordings

The police transmissions recordings were obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NBPS:

• Arrest Reports for the Complainant and CW #1
• Background Event Chronology
• Police Transmission Communication Recordings
• Case File Synopsis
• General Occurrence Report
• In-Car Camera video from cruiser transporting the Complainant
• Video of the Complainant being booked into the station
• Cell Video
• Audio Recording of interaction between the Complainant and WO #6 at her residence on September 15, 2017, relating to a call from the Complainant
• NBPS Interview Synopses of four witnesses to original offence
• NBPS Video Interviews of four witnesses to original offence
• NBPS Synopsis of Interview of the Complainant by WO #7 on September 27, 2017, regarding allegations made by the Complainant against the SO and WO #1 from September 17, 2017
• NBPS of Interview of Complainant by WO #7 on September 27, 2017
• Notes of WO #7 and the SO
• Occurrence Summaries
• Subject Profile of the Complainant, and
• Written Statement of WO #6

The SIU obtained and reviewed the following materials and documents from other sources:

• Medical records of the Complainant related to this incident
• CCTV footage from a school near the Complainant’s residence related to underlying charge of criminal harassment, and
• Undated photos from the Complainant of the alleged injuries sustained by the Complainant

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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 30, Criminal Code - Preventing breach of peace

30 Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace.

Section 246, Criminal Code – Criminal Harassment

264(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of

1. repeatedly following from place to place the other person or anyone known to them
2. repeatedly communicating with, either directly or indirectly, the other person or anyone known to them
3. besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be
4. engaging in threatening conduct directed at the other person or any member of their family

(3) Every person who contravenes this section is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding ten years; or
2. an offence punishable on summary conviction

On September 17, 2017, in response to a 911 call that had been received during the previous night (when the North Bay Police Service (NBPS) had been tied up on other calls and could not respond) the Subject Officer (SO) attended the residence of Civilian Witness (CW) #4 in the City of North Bay. CW #4 had called the previous night reporting that the Complainant, her neighbour to the rear, had come onto her property while intoxicated and threatened to knock her down. The SO spoke to CW #4 and told her to contact police if there were any further problems. He then attended the residence of the Complainant, and spoke to the Complainant and her friend, CW #1, about the allegation. Both parties denied CW #4’s allegation but agreed that, in the future, they would walk their dog on the opposite side of the street in order to avoid any further confrontation with CW #4.

At approximately 4:30 p.m. on that same date, the SO received a second call to attend the Complainant’s residence. This second caller indicated that the Complainant was yelling at children walking on the street and was photographing them. This call did not originate from CW #4. The SO returned to the address and observed the Complainant recording children across the street on her cell phone. The Complainant told the SO that the children were harassing her and that she was recording their behaviour. When the SO asked to see the recording, she refused. The SO observed CW #1 challenge a man across the street, who appeared to be the father of the children, and he cautioned CW #1 with respect to starting a fight in front of him. The SO observed at that time that both of CW #1 and the Complainant appeared intoxicated, and their behaviour was markedly different from when he had spoken with them earlier in the day.

The SO then crossed the street and spoke with the children and their father. The children told the SO that the Complainant had been yelling at them and calling them derogatory and offensive names. One of the children then ran home and told his father. Another witness told the SO that he had witnessed the Complainant yelling at children on several occasions and that this was an ongoing problem. Based on the information received, the SO decided that he had reasonable ground to arrest both CW #1 and the Complainant for criminally harassing the children, contrary to s.264 of the Criminal Code.

It is the arrest of the Complainant that forms the basis of this investigation. During the course of the investigation, six CWs, in addition to the Complainant, and four police witnesses were interviewed, including the SO. After reviewing all of the evidence, a fairly clear picture of what occurred during the Complainant’s arrest can be extrapolated. The following is a summary of what occurred, supported by the reliable and credible evidence.

On September 17, 2017, at approximately 2:00 p.m., the SO returned to the Complainant’s residence in order to arrest both her and CW #1. The SO called for an additional unit to assist him in the arrests, and WO #1 attended and was briefed by the SO. As the two officers approached the residence, the Complainant hurried back into the house, while CW #1, who remained seated on the front step, was arrested and taken into custody. CW #1 did not resist and was placed into the rear of the SO’s cruiser without incident. This is confirmed by all four of the independent CWs, as well as CW #1 himself, and the Complainant.

Once CW #1 had been arrested, the SO and WO #1 then wished to arrest the Complainant, but the Complainant, who was standing in the doorway to her house, refused to exit. One CW estimated that the two police officers were at least an hour and a half trying to persuade the Complainant to come out.

At some point, the Complainant’s dog got out of the house and WO #1 put the dog inside of her cruiser. The Complainant was yelling and swearing at the officers throughout. Shortly thereafter, the Complainant exited the house and the two police officers moved towards her to place her under arrest.

The Complainant was then observed to run toward her fence and both the SO and WO #1 followed and cornered her. While there is some confusion between the various witnesses as to which officer actually put the Complainant to the ground, it is clear that she was taken to the ground, with both the SO and WO #1 indicating that it was the SO who took her to the ground. All of the CWs who were in a position to observe the act, however, with the exception of CW #1 and the Complainant, indicated that when the Complainant was taken to the ground, no part of her body at any time came into contact with the fence. Additionally, no police officer was seen, by any of the four independent CWs, to punch or kick the Complainant, or to apply any unnecessary force, with one CW specifically describing the acts of the police officers as professional and patient, while another indicated that he did not observe any actions by police that caused him concern, and a third described the police officers as treating the Complainant with respect.

The Complainant was described by all of the independent witnesses as not cooperating with the police, and that once she was down on the ground, a police officer knelt on her back and she was handcuffed and then stood up and placed inside of the police cruiser.

While it was alleged by CW #1 and the Complainant that the Complainant was thrown against the fence on her property and that her head was then pushed into the ground, following which the SO kicked or stomped on the back of the Complainant’s head, I am unable to accept this evidence as it is directly contradicted by all four of the independent CWs, and is not consistent with the medical evidence.

I note that the medical records indicate that although the Complainant was complaining of pain over her entire body, there were no obvious signs of bruising or swelling to any joint or on the surface of the skin, and there was no abrasion to her scalp, despite having been seen by the doctor within two days of the incident. Furthermore, all x-rays of her body and the CT scan of her head came back as normal.

It appears from the medical records that the diagnosis of a mild concussion was based solely on the self-reporting by the Complainant as to her symptoms, without any physical indications to support her complaints. I find that the Complainant has little credibility, as her version of events is directly contradicted by all of the other witnesses, with the exception of CW #1 (her on-again, off-again boyfriend) and I am left with serious doubts as to whether the Complainant suffered any serious injury at all in view of the contents of the medical records.

Certainly, had the allegations made by the Complainant and CW #1 been true, that the Complainant was slammed into a fence and then had her face pushed into the ground and her head kicked or stomped on by the SO, wearing his police issue boots, one would have expected there to have been serious injuries, or at the very least, abrasions and bruising over the Complainant’s body, none of which were observed by the doctor, nor was any injury documented in the medical records which included an X-ray report.

Additionally, I have noted that the Complainant, on September 27, 2017, while in the police station as a result of having made a complaint against CW #1 for throwing her down the stairs, made a complaint to WO #7 in which she indicated that when she was arrested by the SO and WO #1 on September 17, 2017, they grabbed her wrist and put her to the ground and that one of the two officers then placed his or her knee on her back, as a result of which she suffered a concussion and a cracked vertebra in her back. I note that this version of events, which fails to mention either being slammed into the fence or being kicked or stomped on her head, corroborates the version of events as set out by the independent CWs and the police officers present, and does not support her later allegations to SIU investigators. Furthermore, I note that her allegation of a cracked vertebra in her back is contradicted by her medical records, further undermining her credibility.

Pursuant to s. 25 (1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the 911 calls, the observations of the SO of the Complainant photographing the children, and his interviews of the children and their father, that the SO had ample evidence to support his reasonable grounds to believe that the Complainant was harassing the children. The Complainant was also clearly causing a breach of the peace which could not be allowed to continue. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the officers in their attempts to arrest the Complainant, I find that their behavior was more than justified in the circumstances and that they used no more force than necessary to subdue the Complainant, who was clearly intoxicated and abusive, and was going to great lengths to thwart the officers’ intentions of arresting her. I fully accept that the SO had to take the Complainant to the ground in order to affect her arrest and to do it quickly, without causing any more disturbance in the neighbourhood. While I have serious doubts that the Complainant suffered any injury at all, even were I to find that she was injured when the SO took her to the ground, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by both the SO and WO #1 progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance, undoubtedly fueled by her state of intoxication, and fell within the range of what was reasonably necessary in the circumstances to effect her lawful detention. I find further support in this conclusion in the fact that CW #1, who did not resist, was arrested without the need for any use of force whatsoever.

In making this finding, I am mindful of the jurisprudence that police officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.) nor should they be judged to a standard of perfection (R. v. Nasogaluak [2010] 1 S.C.R. 206).

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention, and the manner in which it was carried out, were lawful notwithstanding the injury which she may have suffered, even were I to find that the officers caused an injury, which I am not inclined to do. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: September 4, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit