Director's Report Details

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.

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 Personal 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.

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

• 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.

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 a sexual assault reportedly perpetrated by a police officer against a 31-year-old[1] woman (the “Complainant”).

Notification of the SIU[2]

On December 13, 2023, at 4:34 p.m., the Thunder Bay Police Service (TBPS) contacted the SIU with the following information.

On December 13, 2023, members of the TBPS Professional Standards Bureau received an Office of the Independent Police Review Director (OIPRD) complaint filed by the Complainant. The Complainant alleged that on February 2, 2021, while being arrested for possession of pills, her breasts were touched by an unknown TBPS officer.

The Team

Date and time team dispatched: 2023/12/14 at 7:30 a.m.

Date and time SIU arrived on scene: 2023/12/14 at 5:00 p.m.

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

Interviewed

The Complainant was interviewed on December 18, 2023.

Civilian Witness (CW)

CW Interviewed

The civilian witness was interviewed on January 11, 2024.

Subject Official (SO)

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed

WO #2 Interviewed

WO #3 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed on January 12, 2024.

The Scene

The events in question transpired in a bedroom of an apartment in Thunder Bay.

Video/Audio/Photographic Evidence[3]

Computer-aided Dispatch (CAD) Report

On February 2, 2021, at 10:17 a.m., an officer noted that they were standing by with maintenance.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the TBPS between December 20, 2023, and January 2, 2024:

• CAD report;
• General, Supplementary and Arrest Reports;
• OIPRD Complaint;
• Notes – WO #3;

• Notes – WO #1; and
• Notes – WO #2.

The evidence collected by the SIU, including interviews with the Complainant and police and non-police witnesses, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.

In the morning of February 2, 2021, the SO, in the company of WO #2 and WO #1, attended an apartment in Thunder Bay. They were there to ensure the safety of a maintenance person who needed access to the apartment to fix a water leak. The apartment – a drug house – was frequented by many persons on a daily basis buying, selling and using illicit substances.

The Complainant was present in the apartment at the time. It is alleged that an officer confronted her in a bedroom and, while attempting to remove a vial of drugs from between her breasts, touched and squeezed her breasts for a sexual purpose.

Section 265, Criminal Code - Assault

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b) 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

(c) 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

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.

271 Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

On December 13, 2023, the TBPS notified the SIU that they were in possession of information in which it was alleged that a female – the Complainant – had been sexually assaulted by a TBPS officer on February 2, 2021. The SIU initiated an investigation naming the SO the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the complaint of sexual assault.

A sexual assault consists of an assault within any of its definitions in the Criminal Code that is sexual in nature and violates the sexual integrity of the victim: R v Chase, [1987) 2 SCR 293.

The Complainant’s complaint, if true, would constitute a sexual assault, but it would be unsafe and unwise to rest charges on the strength of her evidence. As far as could be discerned from the evidence, the SO was the subject of the Complainant’s allegation. WO #1 says that he was present with the SO when he entered the bedroom and dealt with the Complainant. According to the officer, the SO never made physical contact with the Complainant or seized any drugs. For this and other reasons, the Complainant’s complaint is insufficiently reliable to warrant being put to the test by a court.

For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO. The file is closed.

Date: April 11, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit