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 sustained by a 28-year-old woman during her arrest on August 26^th, 2017.

Notification of the SIU

At approximately 12:25 p.m. on August 26^th, 2017 the Sarnia Police Service (SPS) notified the SIU of a custody injury sustained by the Complainant.

The SPS reported that SPS members had attended the Complainant’s residence at 3:00 a.m. that morning after she contacted them by way of a 911 call to report that she was suicidal. The Complainant was arrested on an outstanding charge. During the arrest, her nasal bone was fractured.

The Team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

In the late evening hours of August 25^th, 2017, the Complainant approached a police officer who was conducting a vehicle stop unrelated to the complainant, in the area of the Complainant’s residence, and uttered threats to the police officer. After a number of warnings by the police officer, the Complainant was told that she would be arrested for uttering threats. The Complainant then retreated to her home and refused to allow police entry, thereby thwarting their attempts to arrest her. The Complainant was told that a warrant would be issued for her arrest.

In the early morning hours of August 26^th, 2017, the Complainant made a number of calls to the SPS indicating her desire to end her own life. As a result, the SO and WO #1 were dispatched to her residence to do a wellness check, and/or to execute the warrant for her arrest. When the Complainant refused to come out of her residence in order that police could confirm that she was not going to take her own life, but placed her body partially outside of her residence in order to hand her cell phone to the SO, the SO took the opportunity to place her under arrest and tried to pull her the remainder of the way out of her residence.

The Complainant then punched the SO approximately five times to his head and facial area, following which the SO struck the Complainant in the face in order to defend himself against her attack. When the Complainant continued to resist, and the officers and the Complainant fell to the floor inside the doorway of her residence, where she then kicked the SO and the SO delivered one additional punch to the Complainant, causing her nose to bleed. The Complainant was then arrested and transported to the station. In the morning, the Complainant was transported to hospital.

Nature of Injury/Treatment

Initially the Complainant had a facial x-ray which revealed no fractures. As a result of the swelling to her nasal area, a CT scan was then performed which revealed “a largely non-displaced subtle fracture of the right nasal bone” with no specific treatment required. She was expected to make a full recovery.

The Complainant was also committed on a Form One under the Mental Health Act as being a danger to herself or others.

The Scene

The scene was at the residence of the Complainant, in the City of Sarnia. The front door to the residence was accessed from the driveway. There were two wooden steps with railings to a deck outside the front entrance. The deck is estimated to be about 45 inches by 45 inches. The door had a screened window in the centre. The arrest and conflict occurred at the threshold to the partially open door.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Photographs of the injuries to the SO and to the Complainant were received from the SPS and reviewed.

The photos of the SO revealed a large welt-like injury inside his lower lip, alongside a second laceration inside his lip which would appear to be consistent with the inside of his lip striking his teeth as a result of trauma.

The photos of the Complainant showed dried blood around her nasal area and two small abrasions or road-rash type injuries to her left elbow area.

Communications Recordings

On August 26^th, 2017, the Complainant called the SPS via 911. She inquired if there was a warrant for her arrest and could she surrender at headquarters. Her call was transferred to CW #3.

At 2:39 a.m., the Complainant called SPS Communications. She indicated that WO #3 had lied to her about bail court appearances on a Saturday. The Complainant stated, “Let (WO #3) know that after what she did, I still hope her daughter gets raped and she can rot in hell. Goodbye, goodbye, I’m going to write in my suicide note that I hope she rots in hell.”

At 2:40 a.m., Communications advised WO #2 about the calls from the Complainant. WO #2 directed a unit be dispatched to check on the Complainant’s welfare. At 3:05 a.m., the SO advised Communications that the Complainant was in custody and advised of an additional charge against her for assaulting a police officer. The Complainant arrived at the SPS cells at 3:11 a.m.

At 3:19 a.m., SPS communications received a 911 call from CW #1, who reported a distressed call he had received from the Complainant earlier, as well as the presence of blood on the stoop of her residence. SPS Communications advised CW #1 that the Complainant was in their care.

Calls from the Complainant to WO #4’s Voicemail

WO #4 was a member of the SPS, but also worked part time as an instructor for the Law and Security course at the local Community College where the Complainant had been a student and was therefore acquainted with WO #4.

Between Tuesday, August 22^nd and Sunday, August 27^th, 2017, the Complainant left eight voice mail messages for WO #4 at his SPS office. The SO, WO #1, and the Communications personnel were not aware of the voice mails at the time of this incident.

The voicemails from the Complainant referred to a continuous theme of the SPS provoking and harassing the Complainant. The messages on August 26^th, 2017, prior to the Complainant’s arrest, expressed her intention to commit suicide. The Complainant was heard to be sobbing and sounded intoxicated. During the voice mails, the Complainant expressed a variety of complaints about the conduct of the SPS, primary of which was her belief that SPS members were being sent to harass her and drive her to commit suicide.

Materials obtained from Police Service

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

• Background Event Chronologies (x4) and associated communications recordings
• Case File Synopsis
• CPIC Query for the Complainant
• Custody Record for the Complainant
• General Occurrence Reports (x2) and associated communications recordings
• Interview Summary from SPS re an undesignated civilian
• Notes and Written Statements of WO #1 and WO #4
• Recording of WO #4’s SPS voicemail account
• Notes and Written Statements from two undesignated police officers
• Witness Statements from two additional undesignated police officers
• Occurrence Summary
• Occurrences (Niche Entries) involving the Complainant
• PARIS Entry for the Complainant
• SPS Waiver for ride along dated August 25^th, 2017
• Facebook entry posted by the Complainant on August 27^th, 2017, with an account of the events
• Photos of injuries to the Complainant and the SO by SPS Forensic Identification
• Supplementary Occurrence Report from an undesignated police officer
• Procedure: Arrest, Detention, Care and Handling of Prisoner
• Procedure: Police Response to Persons who are Emotionally Disturbed, and
• Procedure: Use of Force.

The following materials and documents were obtained from other sources:

• The medical records of 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 34, Criminal Code - Defence of Person – Use of Threat of Force

34 (1) A person is not guilty of an offence if

1. They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person
2. The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force, and
3. The act committed is reasonable in the circumstances

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

1. the nature of the force or threat
2. the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force
3. the person’s role in the incident
4. whether any party to the incident used or threatened to use a weapon
5. the size, age, gender and physical capabilities of the parties to the incident
6. the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
   1. (f.1) any history of interaction or communication between the parties to the incident
7. the nature and proportionality of the person’s response to the use or threat of force, and
8. whether the act committed was in response to a use or threat of force that the person knew was lawful

Section 175 (1), Criminal Code – Causing a Disturbance

175 (1) Every one who

1. not being in a dwelling-house, causes a disturbance in or near a public place
   1. by fighting, screaming, shouting, swearing, singing or using insulting language
   2. by being drunk
   3. by impeding or molesting other persons

Is guilty of an offence punishable on summary conviction.

Section 264.1, Criminal Code - Uttering threats

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

1. to cause death or bodily harm to any person
2. to burn, destroy or damage real or personal property; or
3. to kill, poison or injure an animal or bird that is the property of any person

Section 265, Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. 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
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

(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.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

1. the application of force to the complainant or to a person other than the complainant
2. threats or fear of the application of force to the complainant or to a person other than the complainant
3. fraud; or
4. the exercise of authority

Section 270(1), Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure

Section 17, Mental Health Act - Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person
5. serious bodily harm to another person; or
6. serious physical impairment of the person

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

On August 26^th, 2017, the SO and WO #1 of the Sarnia Police Service (SPS) attended the residence of the Complainant in the City of Sarnia in order to do a wellness check and, if necessary, to execute a warrant for her arrest. During the course of her arrest, the Complainant sustained a bloody nose and was taken to hospital in the morning where she was assessed as having sustained “a largely non-displaced subtle fracture of the right nasal bone” with no specific treatment required. The only issue to be determined is whether or not the actions of the SO, which led to the Complainant’s injury, amounted to an excessive use of force in the circumstances and therefore constitute the offence of assault contrary to s. 265 of the Criminal Code.

There is no dispute as to the facts, nor that the Complainant was intoxicated at the time of her interaction with police.

On August 25^th, 2017, in the late evening, WO #3 was in the area of the residence of the Complainant on unrelated duties, conducting a vehicle stop. The Complainant, due to her belief that the SPS was engaged in a conspiracy to harass her, believed that WO #3 was there to further provoke and harass her. The Complainant approached WO #3, who was seated inside her police vehicle, and made numerous derogatory remarks to her of a very offensive nature. WO #3 cautioned the Complainant about causing a disturbance. The Complainant then went on to threaten bodily harm and/or death to both WO #3 and her immediate family, following which the Complainant returned to her residence before she could be arrested.

WO #3 awaited the arrival of a second police officer and then attended the Complainant’s residence to arrest her, but the Complainant refused to exit her residence. As a result, WO #3 told the Complainant that she would be issuing an arrest warrant for the Complainant on charges of uttering threats and/or causing a disturbance, and the officers left the residence.

At approximately 12:40 a.m., on Saturday August 26^th, 2017, the Complainant contacted the SPS Communications and, while initially indicating that she wished to apologize to WO #3 and turn herself in, she then went on to indicate that she had intentions of taking her own life.

As a result of the calls both from the Complainant and from the Complainant’s employer, indicating concerns that the Complainant intended to end her life, the SO and WO #1 were dispatched to the Complainant’s residence to do a wellness check on her. Both police officers were also made aware of the outstanding charges against the Complainant.

The Complainant was on the telephone speaking to her employer at the time of the arrival of police. The Complainant spoke to the police officers initially through the open window of the closed door to the residence, but then opened the door in order to hand the phone to the SO, at the request of her employer. As the SO was unable to assess the Complainant’s wellness, due to her refusal to open the door, as soon as the Complainant partially stepped out of the door in order to hand the SO the phone, the SO advised her that she was under arrest, grabbed her by the wrist, and tried to pull her fully out of the door.

The SO indicated that he was aware that he could not enter the residence in order to execute the warrant for the arrest of the Complainant, and he never did so, instead waiting for his opportunity when she put her body partially outside of the door to pull her out completely and place her under arrest.

The Complainant then tried to disengage from the SO and struck out at him. According to the SO and WO #1, the Complainant delivered approximately five hammer-style punches to the SO’s face, striking him in the cheek and mouth area, which caused his head to snap back, but he never released his grip on the Complainant’s sweater.

Upon being struck by the Complainant, the SO struck her twice in the head area and they both then fell through the door onto the floor inside the house. According to the SO, the Complainant then kicked the SO and he punched her one additional time in the head. The SO advised that due to the close quarters, he had no other options available to him to repel the kicks of the Complainant.

WO #1 advised that due to the close confines, he was unable to move in to assist the SO when the Complainant began to punch him. WO #1 heard the SO tell the Complainant to stop resisting and observed the punches to the SO, including hits to the side of his head, one of which broke his glasses, and others landing below his eye and near his mouth. He described the SO as lowering his chin and closing his eyes as he was repeatedly struck by the Complainant. During the last strike, WO #1 was able to grab the Complainant’s left hand and all three then fell to the floor, where WO #1 believed that the SO then delivered two punches to the Complainant’s head and face area as they fell through the doorway.

The Complainant was then handcuffed and escorted to the police vehicle, where she refused to get inside. When WO #1 pushed her into the back seat, she kicked at him three times, striking him once on his side.

All three parties recall, with very little difference in their recollections, that once at the police station being booked in, the Complainant made a comment to the SO to the effect that “you really pounded me” to which the SO responded, “Yes, you really pounded me, about five times.”

The booking sergeant recalled the Complainant making a comment to the SO to which the SO responded, “If you’re gonna punch someone in the face, you’re gonna get it back,” and the Complainant then stating, “You got me a good one,” and the SO responding, “Yeah, you got me a good one too.”

WO #3, who overheard a similar conversation in the cell area between the SO and the Complainant, thought that the words spoken were that the Complainant indicated that the SO was not supposed to punch a girl, to which the SO responded that she broke his glasses when she punched him first, and then the Complainant stating, “You got me pretty good,” and the SO responding, “You got me pretty good too,” with the Complainant acknowledging, “Yeah, I did.”

Whatever the actual words spoken, there appears no dispute that the Complainant assaulted the SO, which led to the events that ultimately led to her injuries.

In assessing whether or not these actions by the SO amount to an excessive use of force in these circumstances, I have considered that pursuant to s. 25(1) of the Criminal Code, police officers are protected from prosecution if they are acting pursuant to their lawful duties and they use only as much force as is necessary for that lawful purpose.

On the record before me, it is clear that based on the information provided to police in the calls from the Complainant, as well as the call from her employer, that they had reasonable grounds to believe that the Complainant was intent on taking her own life, and as such, they were duty bound to investigate and to get the Complainant whatever help that she might need while she was in crisis.

Police also had reasonable grounds to believe that the Complainant had earlier that day committed the offences of causing a disturbance and utter death threats as relating to WO #3 and her family, for which WO #3 had obtained, or was in the process of obtaining, arrest warrants.

When the Complainant, after repeatedly threatening to take her own life, refused to exit her residence in order to be properly assessed and assisted by police, the SO was very resourceful in that he relied upon the outstanding charges, and the Complainant’s partial exit from her residence, in order to achieve the goal of assisting the Complainant by any reasonable and lawful means available.

As such, it is clear on these facts that the SO was acting within his lawful duties at the time that he arrested the Complainant and forcefully attempted to completely remove her from her residence. While it may seem that the way that the Complainant was dealt with in her time of crisis was harsh, it appears it was the only option available at that time in order to prevent the Complainant from returning inside her residence and potentially taking her life, for which she had apparently already made all the necessary preparations.

With respect to the amount of force used by the SO, I note that while he was clearly attempting to apprehend the Complainant, he was also having to act to defend himself against the unwarranted assault by the Complainant, which appears to have constituted five hammer-like punches to the SO’s head and face area.

It appears clear that the actions, or reactions, of the SO were both measured and proportionate to the resistance being put up by the Complainant and that he only responded to her force, with force, until she was down on the floor and handcuffed, after which no further blows were delivered. As such, not only did his actions not amount to an excessive use of force in these circumstances, but they were justified pursuant to s. 34 (1) of the Criminal Code wherein it sets out that:

34 1) A person is not guilty of an offence if

1. They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person
2. The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force, and
3. The act committed is reasonable in the circumstances

Based on this provision, it is clear that the SO would not be guilty of an offence for punching the Complainant, because he

1. had reasonable grounds to believe that she was using force against him
2. the punches delivered by him were for the purpose of defending or protecting himself against the Complainant, and
3. the act was reasonable in the circumstances

Furthermore, despite the fact that the Complainant ultimately sustained a non-displaced nasal bone fracture as a result of being punched by the SO, I have considered the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

In these circumstances, where the Complainant is actively and repeatedly delivering hammer-style punches to the SO’s head and face area, for which he too suffered some injury, albeit not a serious injury, and he was in a confined space in a fast moving situation where the Complainant was actively resisting his efforts to assist her and respond to her calls for help, it is evident that he had little time to stop and measure out the degree of force that he delivered to the Complainant in self-defence and in order to stop her active and violent resistance and take her into custody.

On this record, I have no hesitation in finding that the actions of the SO were the only reasonable option available to him when he suddenly and unexpectedly found himself subjected to a barrage of punches delivered by the Complainant, and WO #1 was unable to assist due to the confined space.

In conclusion, I accept that the SO was justified in resorting to the amount of force which he did in order to repel the attack by the Complainant and find that the evidence does not satisfy me that I have reasonable grounds to believe a criminal offence was perpetrated by the SO and therefore no charges shall issue.

Date: May 31, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit