SIU Director’s Report - Case # 16-OCI-297
Issued: October 13, 2017
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Mandate of the SIU
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 13-year-old female on October 2, 2016 during her interaction with officers at her residence.
Notification of the SIU
On November 29, 2016, at 12:00 p.m., the Niagara Regional Police Service (NRPS) notified the SIU of the Complainant’s custody injury.
According to NRPS, a report of a custody injury came to the attention of the NRPS via a complaint filed with the Office of Independent Police Review Director (OIPRD). The complaint stated that on October 2, 2016, at 9:30 a.m., two NRPS police officers, identified as the Subject Officer (SO) and Witness Officer (WO) #1, attended a residence in Pelham, to assist with a 13-year-old girl who was “acting out.”
When the police officers arrived, the Complainant began harming her arm with a plastic coat hanger. The complaint from the Complainant was that when the police officers wrestled her to the floor she suffered a concussion.
NRPS received the OIPRD complaint on October 14, 2016, and had been treating it as a public complaint. Through the Complainant’s legal guardian, NRPS were able to confirm that the Complainant was diagnosed with a concussion.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
SIU Forensic Investigators responded to the scene and documented the relevant scenes associated with the incident by way of notes and photography
13-year-old female interviewed, medical records obtained and reviewed
CW #1 Interviewed
CW #2 Not interviewed (Complainant’s legal guardian)
CW #3 Interviewed
CW #4 Interviewed
WO #1 Interviewed
WO #2 Not interviewed, interview deemed not necessary
SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.
The Complainant’s residence is a bungalow located in Pelham in the Region of Niagara. The Complainant’s bedroom was at the rear on the second level of the elevated portion of the bungalow.
The incident occurred two months before notification. Accordingly, the damage to the residence had been repaired and the layout of the Complainant’s room had been reconfigured. Below is a photo of the Complainant’s bedroom as seen by SIU investigators.
Below is a photo of the damage to the NRPS cruiser.
Materials obtained from Police Service
Upon request the SIU obtained and reviewed the following materials and documents from NRPS:
- Arrest Record
- Booking area Closed Circuit Television (CCTV) data
- Brief Synopsis, Potential Witness List, Summarized Charges
- Communications audio recordings
- Copy of the OIPRD complaint and supporting correspondence
- Crown Brief
- Damage Estimate
- Detailed Call Summaries
- Disclosure Log re: SO training record
- General Order - Persons in Custody
- General Order - Use of Force
- General Order - Young Persons
- General Order - Powers of Arrest
- Notes of WO #1 and WO #2
- Recording from Master Logger
- Request for Recording from Master Logger
- SOCO photos made by NRPS
- Supplemental Report - Damage Estimate
- Training Record of Subject Officer
- Witness Statements of CW #1 and CW #4
In late September 2016, the Complainant was subject to a court ordered condition that she keep the peace and be of good behaviour. On October 2, 2016, the Complainant threw a dish of food at an employee at her residence, ripped a railing from the wall in a hallway of the home, and then threatened to kill the employee. NRPS was called. When officers arrived, the Complainant was in her bedroom.
WO #1 arrived at the residence first, followed by the SO. When WO #1 told the Complainant she was about to be arrested for breaching her condition, the Complainant backed up into a corner of the room on her bed. In front of WO #1 and the SO, the Complainant broke a plastic coat hanger and tried to cut her forearms using the broken end. Concerned for the Complainant’s safety, both officers pulled the Complainant to the edge of the bed and onto the floor.
Once on the floor, the Complainant continued to struggle, kicking at the officers and banging her head on the floor. In an effort to handcuff the Complainant, the SO delivered an open hand strike somewhere on the Complainant’s head. She was subdued, and arrested and handcuffed. As the police officers tried to bring the Complainant through the hallway to the cruiser, the Complainant threw herself to the floor, landing on her left side. She also banged the back of her head two or three times against the wall.
The next day, the Complainant was transported to the hospital and diagnosed with an acute concussion.
Section 264.1(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
- to cause death or bodily harm to any person
- to burn, destroy or damage real or personal property; or
- to kill, poison or injure an animal or bird that is the property of any person
Section 430(1), Criminal Code – Mischief
430 (1) Every one commits mischief who wilfully
- destroys or damages property
- renders property dangerous, useless, inoperative or ineffective
- obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
- obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property
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
- as a private person
- as a peace officer or public officer
- in aid of a peace officer or public officer, or
- 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
On October 2, 2016, the Complainant, who was a 13-year-old girl at the time, threw a dish and food at CW #4, an employee at her residence and then ripped off a railing in the hallway. She then threatened to kill CW #4. At the time, the Complainant was subject to a court ordered condition that she keep the peace and be of good behaviour. CW #4 called police. When CW #4 told the Complainant that the police would be there in about five minutes, the Complainant told CW #4 she had about five minutes to kill her.
WO #1 arrived at the residence first, and went to the Complainant’s room. The Complainant was on her bed at the time. After CW #4 told WO #1 what happened, and he reviewed the Complainant’s documents, he decided to arrest the Complainant. When WO #1 told the Complainant that she was going to be arrested, the Complainant backed up into the corner of her bedroom with her back to the wall and her legs facing the doorway. At that point, the SO arrived, and stood outside the Complainant’s room with WO #1. The Complainant grabbed an object, and there was a struggle. The Complainant was taken to the ground in her room. The Complainant resisted efforts to handcuff her, and the SO struck her on her head or face. She was eventually handcuffed, escorted out of the house to the police cruiser, and taken to the police station.
On October 3, 2016, the Complainant attended the hospital and was diagnosed with a concussion. The Complainant’s medical records noted bruising on the right side of the Complainant’s head, behind her right eye. The Complainant alleges that after she was taken to the ground, the SO banged the left side of her head on the floor, and then punched the right side of her face and upper right cheek. The SO acknowledges striking the Complainant in an effort to gain control and handcuff the youth. The issue, therefore, is whether the SO used excessive force in his efforts to handcuff the Complainant.
CW #4 described the Complainant’s behaviour that morning which led to the decision to call the police. She described the Complainant as out of control, throwing dishes and food at her, and ripping a railing off the stairway in the hall. When the Complainant was told that if she continued to damage the property, the police would be called, the Complainant threatened to kill CW #4. At that, the police were called.
The Complainant’s version of events given to SIU investigators is markedly different from CW #4’s. At no time during her statement to investigators, however, did the Complainant disclose that she had assaulted or threatened staff members, or damaged property, prior to the police officers’ arrival. Nor did the Complainant mention that she threw herself to the floor after she was handcuffed, or hit her head several times on the wall as she was led through the hallway.
The Complainant also gave a somewhat different version of events at the hospital. The information received when the Complainant attended the hospital was that on the previous morning, the Complainant had been in an altercation with police officers and during the altercation she was taken to the ground and the left parietal area of her skull (the back, upper half of her skull) struck the ground. The Complainant said a police officer punched her on her left temple. The records indicate that the Complainant did not indicate any other impacts elsewhere on her body. The Complainant did not indicate that any police officer had struck the left side of her temple off the floor after she was grounded, or had punched the right side of her face and upper right cheek, even though there were visible injuries to that area.
WO #1 told investigators that when he arrived at the residence, he observed wooden spindles knocked out of the porch railing and a table upside down in the driveway. Upon going upstairs to the Complainant’s bedroom, he saw that the hand railing to the upper level had been ripped out of the wall, and there was a hole in the wall. CW #4 told him that the Complainant had punched the hole in the wall. CW #4 also told WO #1 that the Complainant was subject to a court condition to keep the peace and be of good behaviour. WO #1 viewed a copy of the condition. When WO #1 opened the door to the Complainant’s bedroom, the Complainant was seated on the bed with her back against the wall. WO #1 advised the Complainant that she was subject to a court order to keep the peace and be of good behavior, and he was going to arrest her for failing to comply with the order and mischief. WO #1 told the Complainant to stand up, but the Complainant did not respond. WO #1 stepped into the bedroom and told the Complainant that if she did not come with him then he would have to physically handcuff her. The Complainant turned her body toward WO #1 and reached for an article on the floor, picking up a white plastic coat hanger. The Complainant snapped the hanger into two pieces and tried to cut her wrist. WO #1 approached the Complainant and she started to kick at him. WO #1 grabbed both of the Complainant’s legs and pulled her off the bed. The Complainant landed on her buttocks and turned her body towards WO #1. WO #1 grabbed her left arm and put it behind her back. The Complainant continued to struggle while laying on her stomach with her right arm under her body and kicking her feet. At that point, the SO entered the bedroom. He tried to get the Complainant’s right arm out from under her body by pulling on it, but the Complainant banged both sides of her head onto the floor. She started to spit and kick her legs at the police officers. WO #1 held onto the Complainant’s left arm and knelt onto her lower back to restrain her head and prevent her from banging her head on the floor. The SO was on the Complainant’s right side and he gave the Complainant an open-hand strike somewhere to the back of her head. The open handed strike was a pushing type of motion with the palm of his hand. After the strike, the Complainant gave up her right arm and screamed “I can’t believe that you just punched me in the fucking head!” The Complainant was then handcuffed. The Complainant initially refused to get up onto her feet, but eventually got up and walked out of the bedroom. While walking down the hallway, the Complainant threw the right side of her body against the wall in the narrow hallway. The right side of her head in the area of her right ear hit the drywall, which left a mark on the drywall. The Complainant then sat down on the floor and crossed her legs. She eventually got back up onto her feet and was led outside. Once the Complainant was placed in the back of the police cruiser, she started to bite the roll-bar and the head-rest.
Although the SO did not agree to an interview, SIU investigators were able to seize a copy of his notes from the original prosecution brief. In his notes, the SO describes arriving as WO #1 is arresting the Complainant and directing her to stand up. The SO entered the bedroom after he saw WO #1 stepping forward to effect the arrest. At that point, the SO saw the Complainant leaning back on her bed, holding a white object (later identified as the broken plastic coat hanger) in her right hand. The Complainant was yelling that she didn't want to go to jail and kicking her feet toward the police officers. WO #1 was trying to grab the Complainant’s feet, and pulled the Complainant from her bed, while the SO reached for her arm and knocked the coat hanger free. As the SO was holding onto the Complainant’s right wrist, she continued to yell and began flailing her body and kicking her feet toward his knees. At that point, the SO let go of her wrist, stepped back, and then advanced forward to take control of the Complainant’s upper right arm. The Complainant was pulled forward and onto her stomach on the ground. WO #1 had control of the Complainant’s left arm. In an effort to get the Complainant’s right arm from under her body, the SO used “a soft, open hand, distraction technique” to the right side of the Complainant’s face. The Complainant was then handcuffed. Once in handcuffs, however, the Complainant continued to struggle. WO #1 and the SO were able to get her to her feet, but the Complainant would use her size to sit back down and flop on the ground. At one point, the Complainant flung the left side of her head into the drywall. Eventually, the police officers were able to walk the Complainant outside to the police cruiser.
Based on all the evidence, there is no doubt that the Complainant was out of control the morning that police were called to, and attended at, the residence. She had assaulted and threatened an employee of the residence, damaged property, and was clearly breaching a court ordered condition. When WO #1 and the SO entered her bedroom, the Complainant was arrestable for several offences, including threatening death, mischief to property and failing to comply with a court condition. It is clear that WO #1 and the SO were lawfully attempting to arrest the Complainant that morning. Nevertheless, 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.
I also have no doubt that the Complainant was resisting the police officers’ attempts to arrest and handcuff her. All of the witnesses are consistent on her squirming and struggling while the officers are trying to handcuff her. In the Complainant’s effort to resist her arrest, she went so far as to kick at the police officers, as well as grab a clothes hanger, break it in half, and attempt to injure herself. All of this was happening in a small room that was littered with debris. And although the Complainant was only 13 years old, she was a large person
Once onto her stomach, the Complainant claims that the SO banged her head onto the floor, with the left side of her temple striking the floor, and then punched the right side of her face and upper right cheek. I accept, based on WO #1’s statement and the SO’s admission in his notes, that the SO struck the Complainant’s head or face in the course of the SO’s attempt to handcuff her. Both describe it as an open hand strike, whereas the Complainant describes it as a punch. Although the Complainant’s bruises are consistent with a punch, I have significant concerns about the reliability and credibility of the Complainant’s recollection of the events, given the inconsistencies in the versions she provided to the SIU investigators and at the hospital; the Complainant’s clear attempts to minimize her own conduct that morning; and the contradictions between the Complainant’s version and what was witnessed by CW #4. Given the consistent observations by witnesses that the Complainant hit her head on the wall several times as she was being led out of the house, I also cannot conclude that the Complainant’s injuries were caused by the SO’s actions that morning. The Complainant’s efforts at self-harm provide an alternative explanation for the observed bruises and tenderness to her head, and reported dizziness afterwards. Nonetheless, even if the SO’s head strike caused the Complainant’s concussion, I find that it was done in the course of his attempts to handcuff a large, strong person in a small, littered and confined space, while the Complainant was kicking and struggling to prevent his efforts.
Accordingly, I am satisfied that the SO’s strike of the Complainant’s head during his and WO #1’s efforts to handcuff the Complainant was reasonably necessary given her size and violent behaviour towards herself and the police officers once it became clear that she was going to be arrested. The Complainant was out of control, kicking at the police officers, attempting to cut her wrists with broken plastic, and squirming and resisting even once she was on the floor. The Complainant’s resistant behaviour continued after she was handcuffed, as she struck her head against the wall as she was led out of the home, and bit parts of the police cruiser once she was placed inside. 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,  1 S.C.R. 206). Given that, and the evidence described above, I have no reasonable basis to believe that the SO committed a criminal offence and there are no grounds for proceeding with charges in this case.
Date: October 13, 2017
Original signed by
Special Investigations Unit
- footnote Back to paragraph WO #2 was the NRPS Scenes of Crime Officer (SOCO) that photographed the scene after the Complainant had been arrested and transported to the police station. WO #2 was not present when the Complainant was arrested or transported to the police station, and he had no interaction with the Complainant at any time.
- footnote Back to paragraph Approximately 5’9” and 250 lbs. is her reported height and weight.