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 suffered by a 43-year-old woman in Huntsville, Ontario that was revealed following her arrest for being intoxicated in a public place when she was taken to the hospital for another, unrelated injury.

Notification of the SIU

On May 14, 2016, at 11:06 a.m. the Ontario Provincial Police (OPP) notified the SIU of the custody injury to the Complainant.

The OPP advised that at approximately 1:46 a.m., the Complainant was arrested for being intoxicated in a public place. While the Complainant was being arrested, a struggle ensued. Once the Complainant was in police custody, she was transported to the OPP detachment where officers became aware of a gash to her right finger. The Complainant was transported to hospital and received stitches to her cut finger and then discharged from hospital back into the custody of the OPP. The Complainant was taken back to the police station and lodged in cells. In the morning, the Complainant complained of localized pain in her lower ribs and chest and was taken back to the hospital by the OPP where it was determined that she had a collapsed lung and rib fractures.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant

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

Civilian witnesses

CW Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Not interviewed, but notes received and reviewed

WO #6 Not interviewed, but notes received and reviewed

Subject officers

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

The scene

The scene was not secured at the time of the incident. The SIU was notified several hours after the incident and therefore it was not documented or photographed.

Video/audio/photographic evidence

SIU investigators canvassed the area of the scene for camera equipment that may have recorded the incident. It was learned the cameras at the intersection of Main Street and Fairy Avenue operate in a motion detected real-time mode only and do not record the intersection and street activity. No other cameras were identified.

Communications recordings

The communication recordings obtained from the OPP revealed the following:

On May 14, 2015 at 1:16 a.m., the dispatcher requested another police unit at Main Street West and Chaffey Street. The SO informed the dispatcher he was out with an intoxicated woman [now known to be the Complainant] and WO #2 advised she was en route to the SO’s location. A short time later WO #3 arrived on scene and then another police unit arrived on scene.

At 1:25 a.m., the SO informed the dispatcher that he was transporting the Complainant to the detachment and at 1:34 a.m., the SO informed the dispatcher he was taking the Complainant to the hospital for a “nasty cut on her hand”. The background event chronology was consistent with the communication recordings. The audio recordings provided no indication as to how the Complainant received her injuries.

Station video

On May 14, 2016 at 2:34 a.m., the Complainant was placed in cell #2 by a uniformed OPP police officer. At around 2:35 a.m., the Complainant was searched by WO #2. The Complainant was holding her right side off and on with her right hand while she was in the cell. From 2:37 a.m., to 7:47 a.m., the Complainant remained in her cell without incident. This video recording provided no indication of how the Complainant received her injuries.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP Huntsville Detachment:

• Background event chronologies
• communication recordings
• OPP cell video
• email from WO #4 re incident of May 14, 2016
• notes of WO #1, WO #2, WO #3, WO #4, WO #5 and WO #6; and
• prisoner custody report.

On May 14, 2016, at approximately 1:00 a.m., the Complainant was walking along Chaffey Street, in the City of Huntsville. She was intoxicated, observed to be falling down, and had a cut to her right hand. Witnesses notified the SO, who located the Complainant and attempted to arrest her for being intoxicated in a public place. A struggle ensued, and the SO pushed the Complainant to the ground. She was eventually handcuffed and transported to the hospital to receive treatment for the cut on her hand.

At the hospital, it was determined that the Complainant may have a fractured rib, although she was returned to police custody without an x-ray. The next morning, the Complainant complained of pain to her right side and she was returned to the hospital. X-rays confirmed that she had sustained a small to moderate right apical pneumothorax (collapsed lung) with a non-displaced right side lateral rib fracture to the seventh and eighth ribs.

Section 34, Liquor Licence Act – Unlawful possession or consumption

31 (4) No person shall be in an intoxicated condition,

1. in a place to which the general public is invited or permitted access; or
2. in any part of a residence that is used in common by persons occupying more than one dwelling in the residence.

(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.

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 (1), Criminal Code - Defence — use or 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.

On May 14^th, 2016 at approximately 1:46 a.m. and shortly thereafter, the Complainant was observed walking along Chaffey Street, in the City of Huntsville, in an apparently drunken state. The SO apprehended the Complainant and transported her to the detachment. She was later assessed at hospital and found to have sustained a small to moderate right apical pneumothorax (collapsed lung) with a non-displaced right side lateral rib fracture to the seventh and eighth ribs.

The evidence of all the witnesses is consistent that the Complainant was intoxicated when she was arrested. The Complainant’s memory of the interaction, however, was incomplete. She fell to the ground and “blacked out” but did not know how she got there and she had no recollection that she had struggled or fought with the SO which might explain what may have led to the injury to her ribs. All the evidence confirmed that the injury to her finger occurred before the events in question.

The SO made himself available to SIU investigators for an interview and advised that on May 14^th, 2016, at approximately 1:00 a.m., he was on patrol when he was approached by two women in a car and told that they had seen a very intoxicated woman walking in the area of the courthouse and that they had observed her to fall a couple of times. They advised that when they last saw her, she was seated on the ground and yelling.

The SO attended the area of Chaffey Street and observed the Complainant walking on the west side and she appeared to be very drunk. At the time of his initial observation, the Complainant was on her cellphone yelling into the phone and swaying from side to side. The SO pulled up beside the Complainant and spoke to her through the window of his cruiser. He asked her where she was going and the Complainant replied that she wished to be left alone and kept walking. The SO then stopped his cruiser and exited, approaching the Complainant on foot while she continued walking and ignoring him. The SO indicated that he then stepped out in front of the Complainant and again asked her where she was going and she indicated she was fine and did not know where she was going. While speaking with the Complainant, the SO observed her to be obviously drunk and she had a bleeding gash to her right finger.

The SO then advised that he told the Complainant that she was under arrest for being intoxicated in a public place and she became upset and starting screaming at him. The SO called for backup and then took a step towards the Complainant in an attempt to effect an arrest, whereupon the Complainant stepped backwards off of the sidewalk and into the street, causing the SO concern for her safety. The SO then advanced towards the Complainant and grabbed her wrist in an effort to move her back onto the sidewalk, at which point she began to kick him and waved her bloody hand in his face. At that point, according to the SO, he was concerned that she was going to get blood in his face and he gave her what he described as a strong push with his right hand and arm striking her just above her chest and causing her to land on her buttocks first and then her back. This fall was also observed by WO #3, who had responded to the call for back up, and he described it as the Complainant attempting to pull away from the SO and falling backwards onto her buttocks and back, where she continued to yell and swear. According to the SO, the Complainant remained lying on the ground and continued to kick at him whereupon he moved her onto her side and placed his right knee on the back of her legs to stop the kicking and then placed her in handcuffs.

Another officer who responded to the call for backup, WO #1, came on the scene and observed the Complainant on the ground, lying on her back and handcuffed to the front. He described the Complainant as apparently drunk, slurring her words and with disjointed speech. WO #1 advised that later the Complainant complained that her wrists were sore and he and the SO readjusted her handcuffs. While WO #1 was guiding the Complainant to his police cruiser for transport, she lost her footing and fell forward, landing on the pavement where she then rolled over onto her back. WO #1 indicated that the Complainant was then helped to her feet and did not complain of any injury from the fall. Once at the station, WO #1 observed the nature of the injury to the Complainant’s finger and took her to hospital. It was only at hospital that the Complainant first complained of pain in her ribcage and WO #1 observed her to be guarding her right side. When asked about the cause of her pain, WO #1 indicated the Complainant stated that she could not recall but that she had gone for a “few tumbles”. The Complainant was then returned to the detachment, booked in and lodged in a cell. The cell video confirms that the Complainant was holding her right side on and off with her right hand.

On the basis of the evidence provided by the Complainant herself, the two initial witnesses who reported the Complainant to the SO, and the SO and WO #1, there appear to be a number of scenarios wherein the Complainant may have sustained the injury to her rib cage. The injury to her finger, of course, does not involve any police intervention. With respect to the injury to her ribs, however, it is open to a finding that the Complainant was injured when she “went for a few tumbles” on her own, as conceded by the Complainant and witnessed by the two female complainants and prior to police attendance, or that the injury resulted from the SO pushing her above the chest area when she was kicking at him and waving her bloody hand in his face or, finally, it would also be consistent with her falling forward when being escorted to the cruiser by WO #1. The fall as a result of the push by the SO appears not to be the source of the injury, as she fell on her buttocks; the falls before police arrival, are of course an unknown quantity. Only the fall while the Complainant was being escorted to the cruiser, as witnessed by WO #1, wherein she fell forward onto her front, is consistent with the injury observed by the CW, as is the strong push by the SO, although he described it as being above her chest area and nowhere in the area of the seventh and eighth ribs that were fractured (those being lower down in the rib cage).

Although it would be impossible to precisely determine the cause of the Complainant’s injury, when she herself is unable to explain how she was injured, on the basis that it is possible that her injury was caused by police interaction, I will deal with the actions by police and whether or not they amounted to an excessive use of force.

Dealing first with what the SO described as a strong push to the area above the Complainant’s chest area, due to the location of the contact, it is unlikely that this push caused the injury to the lower area of the Complainant’s rib cage. In the unlikely event that it did, however, 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 arrest, it is clear from the statements of all persons who observed the Complainant, that the Complainant was intoxicated in a public place, out on the streets of Huntsville, and as such was in breach of s. 31(4) of the Liquor Licence Act of Ontario. As such, the arrest of the Complainant was legally justified in the circumstances.

The actions of the SO in giving the Complainant a strong push with his right hand and arm striking her just above her chest and causing her to fall onto the pavement, require an assessment of the relevant legislation, that being s.34 and s.25(1) of the Criminal Code of Canada. In all the circumstances, including the fact that the Complainant had already stepped out into the street which caused the SO concern for her safety, and the fact that she was actively kicking out at him and waving her bloody hand in his face, I find that the push from the SO was justified pursuant to s.34 of the Criminal Code as being in self-defence and that the SO, in defending himself and ultimately protecting the Complainant from herself, used no more force than was necessary to effect his lawful purpose pursuant to s.25(1) of the Criminal Code. In coming to this conclusion, I am mindful of the jurisprudence that 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).

Alternatively, if the Complainant’s injury was caused when she fell of her own accord, after having been handcuffed and was being escorted to the cruiser, falling forward onto her front, I find that her fall was due to her own level of intoxication and was not the result of any police action. On all of the evidence, I find that this is the most likely cause of her injuries to the seventh and eighth ribs and the consequent pneumothorax.

It is notable that at no time were any allegations made against any police officers by the Complainant, with respect to any inappropriate actions on their part, and she herself attributed her injury to having taken “a few tumbles”. On a review of all of the evidence I am satisfied on reasonable grounds that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges in this case.

Date: August 14, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit