SIU Director’s Report - Case # 23-OCI-432
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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 injury of a 34-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 injury of a 34-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU [1]
On October 23, 2023, at 3:15 p.m., the London Police Service (LPS) contacted the SIU with the following information.At about 11:11 a.m. that day, LPS officers attempted to arrest the Complainant in the area of Oxford Street East and Highbury Avenue North, London, on outstanding warrants. She resisted arrest, and a conducted energy weapon (CEW) was deployed. The first discharge was ineffective but a second deployment assisted in the Complainant’s arrest. The Complainant was transported to London Health Sciences Centre (LHSC) Victoria Hospital and diagnosed with a fractured left ring finger.
The Team
Date and time team dispatched: 2023/10/23 at 4:27 p.m.Date and time SIU arrived on scene: 2023/10/23 at 4:57 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
34-year-old female; interviewed; medical records obtained and reviewedThe Complainant was interviewed on October 24, 2023.
Civilian Witness (CW)
CW InterviewedThe civilian witness was interviewed on October 30, 2023.
Subject Officials (SO)
SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal rightSO #2 Declined interview, as is the subject official’s legal right; notes received and reviewed
The subject official was interviewed on November 14, 2023.
Witness Officials (WO)
WO #1 Interviewed; notes received and reviewedWO #2 Interviewed; notes received and reviewed
The witness officials were interviewed on November 1, 2023.
Evidence
The Scene
The events in question transpired on and around the exterior grounds of a home in the area of Oxford Street East and Highbury Avenue North, London. The address was that of a house on a residential street. Forensic Evidence
CEW Deployment Data – WO #2
On October 23, 2023, at 11:37 a.m., [2] Bay 1 was deployed for a period of five seconds. Video/Audio/Photographic Evidence [3]
Communications Recordings / Computer-aided Dispatch (CAD) Report
On October 23, 2023, at 11:08 a.m., SO #1 and SO #2 broadcast they were in the area of Oxford Street East and Highbury Avenue North with the Complainant, who was wanted. The dispatcher asked if a second police unit was required, and they responded in the negative. At 11:10 a.m., WO #2 asked dispatch to check on SO #1 and SO #2, and everything was okay at that time.
At 11:11 a.m., SO #1 and SO #2 advised they were in the backyard of a home in the area of Oxford Street East and Highbury Avenue North.
At 11:35 a.m., SO #1 broadcast she was in a foot pursuit. The dispatcher asked for a location, but there was no response. WO #1 and WO #2 advised they were close and would respond to assist.
At 11:36 a.m., inaudible sounds of yelling and commotion were heard, and LPS dispatch was trying to contact SO #1 and SO #2.
At 11:37 a.m., SO #1 advised a CEW had been deployed unsuccessfully. There was yelling and screaming in the background.
At 11:38 a.m., WO #2 asked for EMS to attend and indicated he had discharged his CEW. A LPS prisoner transport vehicle was requested, as well as a second ambulance for two LPS officers.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the LPS between October 24, 2023, and December 20, 2023:- Communications recordings;
- CAD Report;
- Notes - WO #2;
- Notes - WO #1;
- Police witness statement and notes - SO #2;
- Prosecution Summary;
- CEW deployment data;
- General Occurrence Report;
- Copy of warrant; and
- LPS statement - CW.
Materials Obtained from Other Sources
The SIU received the following material from the noted sources on November 2, 2023:- Medical records for the Complainant from LHSC Victoria Hospital.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and SO #1, gives rise to the following scenario. As was her legal right, SO #2 did not agree an interview with the SIU. She did authorize the release of her notes.
In the morning of October 23, 2023, SO #1 and SO #2 were on patrol in a marked cruiser when they came across the Complainant in the area of Oxford Street East and Highbury Avenue North, London, and decided to arrest her. The Complainant, riding her bicycle, was the subject of an arrest warrant. She asked, and was permitted, to return her bike home, which was located on the next street over. The officers followed her to the address.
Once at the Complainant’s home, SO #1 and SO #2 allowed the Complainant to smoke a cigarette before they would secure her in handcuffs. When the cigarette was done, the Complainant was accompanied to the officers’ cruiser parked out front the home. It was there that a physical altercation ensued between the Complainant and the officers.
WO #1 and WO #2 heard of the altercation over the radio and responded to the address. They located the parties in the backyard of the residence and took over from SO #1 and SO #2. Following a further period of struggle between the Complainant and WO #2 and WO #1, the Complainant was handcuffed.
The Complainant was transported to hospital after her arrest and diagnosed with a fractured left finger.
In the morning of October 23, 2023, SO #1 and SO #2 were on patrol in a marked cruiser when they came across the Complainant in the area of Oxford Street East and Highbury Avenue North, London, and decided to arrest her. The Complainant, riding her bicycle, was the subject of an arrest warrant. She asked, and was permitted, to return her bike home, which was located on the next street over. The officers followed her to the address.
Once at the Complainant’s home, SO #1 and SO #2 allowed the Complainant to smoke a cigarette before they would secure her in handcuffs. When the cigarette was done, the Complainant was accompanied to the officers’ cruiser parked out front the home. It was there that a physical altercation ensued between the Complainant and the officers.
WO #1 and WO #2 heard of the altercation over the radio and responded to the address. They located the parties in the backyard of the residence and took over from SO #1 and SO #2. Following a further period of struggle between the Complainant and WO #2 and WO #1, the Complainant was handcuffed.
The Complainant was transported to hospital after her arrest and diagnosed with a fractured left finger.
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.
Analysis and Director's Decision
The Complainant was seriously injured in the course of her arrest on October 23, 2023, in London. The SIU was notified of the incident and initiated an investigation naming SO #1 and SO #2 subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official 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.
The Complainant was subject to an arrest warrant, and SO #1 and SO #2 were within their rights in attempting to take her into custody.
Regarding the nature of the physical altercation that marked the arrest, there is conflict in the evidence. In one version of events, the Complainant was allegedly struck by the probes of a CEW discharged by SO #1 as she fled from the cruiser towards her backyard. Shortly thereafter, the officer punched her and she punched back, after which they fell to the ground. Additional officers arrived and she was subjected to a further CEW discharge. A different set of officers – WO #2 and WO #1 – repeatedly punched her on the ground before she was placed in handcuffs by the pair. On this version of events, it would appear that excessive force was used against the Complainant. On the other hand, following her first attempted flight from police, SO #1 indicates that the Complainant punched SO #2 in the head. The officer then pursued the Complainant towards the backyard of the home, firing her CEW, which had no effect. In the backyard, the Complainant and SO #1 exchanged punches to the head before the officers took her down. They were relieved by WO #2 and WO #1, who struggled to subdue the Complainant, the former delivering multiple punches to the Complainant’s head. It was only after WO #2 fired his CEW at the Complainant that she was handcuffed. On this accounting, I am satisfied that the officers used only reasonably necessary force to arrest the Complainant. WO #2’s multiple punches to the Complainant might at first blush seem cause for concern until one notes that the Complainant continued to resist throughout that use of force and was only restrained following the CEW discharge. On this record, there being no reason to believe that the more incriminating evidence is any likelier to be closer to the truth than that proffered by SO #1, and some reason to suspect it is less reliable, I am unable to reasonably conclude that the force used against the Complainant ran afoul of the limits prescribed by the criminal law.
For the foregoing reasons, there is no basis for proceeding with criminal charges on this case. The file is closed.
Date: February 16, 2024
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.
The Complainant was subject to an arrest warrant, and SO #1 and SO #2 were within their rights in attempting to take her into custody.
Regarding the nature of the physical altercation that marked the arrest, there is conflict in the evidence. In one version of events, the Complainant was allegedly struck by the probes of a CEW discharged by SO #1 as she fled from the cruiser towards her backyard. Shortly thereafter, the officer punched her and she punched back, after which they fell to the ground. Additional officers arrived and she was subjected to a further CEW discharge. A different set of officers – WO #2 and WO #1 – repeatedly punched her on the ground before she was placed in handcuffs by the pair. On this version of events, it would appear that excessive force was used against the Complainant. On the other hand, following her first attempted flight from police, SO #1 indicates that the Complainant punched SO #2 in the head. The officer then pursued the Complainant towards the backyard of the home, firing her CEW, which had no effect. In the backyard, the Complainant and SO #1 exchanged punches to the head before the officers took her down. They were relieved by WO #2 and WO #1, who struggled to subdue the Complainant, the former delivering multiple punches to the Complainant’s head. It was only after WO #2 fired his CEW at the Complainant that she was handcuffed. On this accounting, I am satisfied that the officers used only reasonably necessary force to arrest the Complainant. WO #2’s multiple punches to the Complainant might at first blush seem cause for concern until one notes that the Complainant continued to resist throughout that use of force and was only restrained following the CEW discharge. On this record, there being no reason to believe that the more incriminating evidence is any likelier to be closer to the truth than that proffered by SO #1, and some reason to suspect it is less reliable, I am unable to reasonably conclude that the force used against the Complainant ran afoul of the limits prescribed by the criminal law.
For the foregoing reasons, there is no basis for proceeding with criminal charges on this case. The file is closed.
Date: February 16, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Unless otherwise specified, 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 time is derived from the internal clock of the weapon, which is not necessarily synchronous with actual time. [Back to text]
- 3) 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.