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 of a 58-year-old woman, sustained during her interaction with police on October 27, 2016.

Notification of the SIU

On December 5, 2016, at about 9:10 a.m., the Complainant called the SIU to report that on October 27, 2016, she was at a shelter in Windsor when police were called to the shelter for an attempted suicide. The Complainant denied she was attempting suicide. It appeared police were arresting her under the Mental Health Act (MHA). During the arrest a female officer (the Subject Officer] twisted the Complainant’s left arm behind her back, fracturing her elbow. The Complainant reported she was then “tasered” three times, and was then taken by ambulance to the hospital. She was interviewed by a Psychiatric Analysis Nurse while waiting five hours for her arm to be x-rayed. She was advised that the x-ray did not show a fracture but was requested to return to have a radiologist review the x-ray. She left the hospital at midnight.

On November 4, 2016 she went back to the hospital for a computed tomography (CT) scan. She was diagnosed with a fractured left elbow and her arm was placed in a soft cast.

The team

Number of SIU Investigators assigned: 2

Complainant

58-year-old woman interviewed, medical records obtained and reviewed

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Not interviewed, but a prepared statement and notes received and reviewed

WO #3 Not interviewed, but notes received and reviewed

WO #4 Interviewed

Subject officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.

Communications recordings

911 call

CW #1 contacted WPS non-emergency indicating the Complainant refused to leave the shelter and “basically barricaded herself in the room.” She stated that the Complainant said she would be “a harm to herself” if the shelter discharged her. She also stated that the Complainant has a history of mental illness and suicide attempts.

Radio communications

Dispatch notes were for a possible suicidal female at the shelter. The caller was an employee who indicated that a female (the Complainant) was given until 3:00 p.m. to leave. She was not violent at the time but had barricaded herself in a room and said if discharged she would be a risk to herself.

Video/audio/photographic evidence

The SIU canvassed the shelter for any video or audio recordings, and photographic evidence, but none existed.

Three photos of the Complainant’s injuries were provided by the Complainant. Below is a photo of the Complainant’s left arm:

Conducted Energy Weapon (CEW) download

WO #1’s CEW was fired on October 27, 2016 at 4:20:09 p.m. for five seconds in duration. It was only fired once.

Materials obtained from Police Service

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

• Mobile Data Terminal (MDT) Messages and Transmissions
• Notes of WO #1, WO #2, WO #3 and WO #4
• Prepared Statements – the SO, WO #1 and WO #2
• Duty Roster
• General Occurrence Report - Previous MHA apprehension of the Complainant
• 911 Call
• CEW download
• Community Outreach and Support Team (COAST) officer report
• WPS Policy – Mentally Ill Persons
• Communications recordings, and
• Supplementary Narrative – CEW Taser Download

On October 27, 2017, a shelter in Windsor contacted the WPS to assist in removing the Complainant from the shelter. As the Complainant failed to comply with the rules of the shelter, she was asked to leave by 3 p.m. on that day. The Complainant refused to leave the premises, and indicated that she would harm herself if she was evicted.

The SO and WO #1 responded to the call and attended the shelter to assist in removing the Complainant and to take her to the hospital, if necessary, given her comments of self-harm. Upon arrival, the SO and WO #1 met with CW #1 who advised them of the circumstances, as well as the Complainant’s mental health history.

At the time the officers arrived, the Complainant was in her room. The SO advised the Complainant that she had to leave the shelter and that they would take her to the hospital. The Complainant refused to leave and a struggle ensued. The SO and WO #1 grounded the Complainant who continued to resist, to the point that WO #1 was injured. WO #1 deployed his CEW and the officers handcuffed the Complainant and took her to hospital for a psychiatric assessment. At the hospital, the Complainant complained of pain in her left elbow and an x-ray of the Complainant’s left elbow revealed a fracture, which was subsequently confirmed by a CT scan.

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 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 October 27, 2016, the Complainant had been residing at a Windsor shelter. Because of the Complainant’s continued non-compliance with known rules, however, she was asked to leave by 3 p.m. The Complainant refused, and indicated that she would harm herself if she was evicted. Because of the Complainant’s threat of self-harm, WPS was contacted to assist in removing the Complainant from the premises.

The SO and WO #1 attended shortly thereafter and were met by CW #1. CW #1 advised the officers of the circumstances, as well as the Complainant’s mental health history. At the time, the Complainant was in her room. The police officers attended at the Complainant’s room and informed her that she was to leave the residence and they were going to take her to the hospital. The Complainant resisted and a struggle ensued, with the Complainant being taken to the floor. As the Complainant continued to struggle, WO #1 deployed his CEW. The officers were able to handcuff the Complainant, and she was taken for a psychiatric assessment at the hospital. The Complainant complained of a sore left elbow and an x-ray was also taken at the hospital. The x-ray revealed a suspected fracture of her left elbow. The fracture was confirmed by a subsequent CT scan.

Although the SO did not consent to an interview, as was her right, her notes indicate that when she and WO #1 went up to the Complainant’s room and spoke to her, the Complainant confirmed that she would harm herself if she was required to leave. The SO advised the Complainant that she was to come with the police officers to the hospital. At that, the Complainant attempted to go back into her room and close the door. The SO and WO #1 entered the Complainant’s room and the Complainant became more hostile towards the officers, sitting on her bed with her arms crossed, stating that she was not going anywhere. The SO advised the Complainant that she was being apprehended under the MHA. When the police officers attempted to handcuff the Complainant, she resisted and pulled her arms towards her chest and fell back onto the bed, holding her arms close to her. The Complainant also began to kick at the officers. At that point, the Complainant moved from the bed to a chair, and was flailing her arms and legs. WO #1 took out his CEW, placed it in drive stun mode and delivered a cycle to the Complainant, which caused her to slip onto the floor and lie on her side. The Complainant continued to resist being handcuffed and WO #1 advised her that if she did not cooperate he would use the CEW again. With that, the SO and WO #1 were able to place the Complainant’s hands behind her back and handcuff her.

According to WO #1, when he attended at the Complainant’s room with the SO, the Complainant told them that she did not plan on leaving that day, and if she was kicked out she would be a risk to herself. The SO explained that the police officers were there to take her to the hospital. The Complainant became visibly angry, and ran into her room. The SO followed the Complainant into the room, and WO #1 stood near the door. The room was very small, approximately 6 feet by 10 feet (1.83 metres by 3.05 metres). After about ten minutes of attempting to convince the Complainant to leave with them, the Complainant sprung up with clinched fists and stepped towards the SO, stating she was not leaving. The SO grabbed the Complainant’s left arm and WO #1 grabbed her right arm. A struggle ensued and the Complainant pushed the police officers, broke free, and fell onto her back on the bed. The Complainant then began to kick at them. The struggle moved from the bed to a chair. The Complainant would not allow either the SO or WO #1 to maintain control of her wrists, nor allow them to move her hands behind her back. At one point, the Complainant got a hold of WO #1’s thumb and bent it sideways, causing pain. At that, WO #1 warned the Complainant that if she did not cooperate he would deploy his CEW. The Complainant continued to resist, and WO #1 deployed his CEW once in drive stun mode to her upper left hip. The Complainant fell off the chair to the floor, but began to struggle again. WO #1 placed the CEW against the Complainant’s left hip again, and said that he would deploy it if she did not cooperate. At that, the Complainant allowed the police officers to handcuff her. WO #1 stated that he never saw the SO manipulate the Complainant’s left arm high or near her upper back area. WO #1 was not aware of any injury to the Complainant until he was advised by the SIU.

WO #4 arrived at the residence after the SO and WO #1 were already there. When he went to the Complainant’s room, he saw the Complainant on the bedroom floor, face first, yelling and being belligerent and rolling around on the floor. He entered the small room and told the Complainant to calm down, but she continued to flail about as the SO and WO #1 were attempting to hold her down. WO #4 then left the room as it was too small and allowed the police officers to handcuff her.

The SIU examination of WO #1’s CEW[1] indicated that, contrary to the Complainant’s recollection, it was fired only once for five seconds in duration.

Pursuant to section 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 SO and WO #1’s apprehension of the Complainant under the MHA, I accept that they were justified in making an MHA apprehension given the Complainant’s prior and repeated statements that she intended to hurt herself if she was removed from the residence, coupled with the Complainant’s known mental health history. Accordingly, both police officers were executing their lawful duty when they were attempting to take the Complainant into custody.

I do not accept the Complainant’s version, however, of how she received her broken elbow in the course of her apprehension. The Complainant alleges that the SO, who is half her size,[2] pulled her left arm back to the point that it broke her elbow bone. Given the size difference between the two women, this appears unlikely and is not corroborated by any other witness. The Complainant also significantly minimizes the level of her resistance and violence towards the two police officers, one of which was injured as a result of her actions. Accordingly, I must question the Complainant’s credibility or at the very least the reliability of her statement relating to how her injury occurred. Also, given that the Complainant is clearly wrong about the number of CEW deployments that occurred, I am also concerned about the reliability of her recollections.

All of the other witnesses, civilian and police alike, describe the Complainant as loud and angry, in the midst of a chaotic scene occurring in her small room while the SO and WO #1 lawfully attempted to place her into handcuffs. The SO and WO #1 each describe the Complainant kicking and pushing at them, refusing to give up her arms and that the CEW was deployed to subdue her enough to allow her to be handcuffed. Both police officers describe the Complainant falling to the ground at that point. Perhaps the Complainant injured her left elbow in the course of her striking out at the police officers, or perhaps it was as a result of falling onto the floor after the CEW strike. I do not believe we will ever definitively know how the Complainant received her broken elbow. But even assuming that it was caused by the actions of the SO (or WO #1, for that matter), I believe that it appears to have been inadvertent and resulting solely from the struggle the officers experienced in trying to handcuff the Complainant, who was determined not to be taken to the hospital.

Accordingly, I am satisfied for the foregoing reasons that the SO and WO #1 used such force as was reasonably necessary to apprehend the Complainant under the MHA, notwithstanding the injury which she may have suffered. The jurisprudence is clear that while police officers’ actions must be commensurate with the task at hand, they cannot be expected to measure their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)) or to be judged against a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206). I have no reasonable basis to believe that either police officer committed a criminal offence and there are no grounds for proceeding with charges in this case.

Date: October 30, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Every CEW generates a ‘report’ whenever it is discharged. On the date in question, the report indicated that WO #1’s CEW was fired one time at 16:20:09 hrs. [Back to text]
• 2) [2] Although the SO and Complainant are roughly the same height, the Complainant was more than twice the SO’s body weight. [Back to text]