SIU Director’s Report - Case # 17-PCI-124
Issued: March 1, 2018
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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 reportedly sustained by a 45-year-old woman during her arrest on April 6th, 2017.
Notification of the SIU
On May 5th, 2017, SIU investigators were in Sioux Lookout regarding SIU File 17-PCI-101 and spoke to the Complainant’s mother. The Complainant’s mother said that her daughter, the Complainant, had been arrested and had a possible fracture to her arm. The Complainant was contacted and she advised that she had been arrested by Sioux Lookout Ontario Provincial Police (OPP) officers around April 10, 2017 and lodged at the detachment. The Complainant’s wrist was sore and swollen when she was released. The Complainant mentioned this to a female guard, who told her to have it checked. The Complainant’s wrist was x-rayed, diagnosed with a fracture and placed in a cast.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
45-year-old female interviewed, medical records obtained and reviewed
No Civilian Witnesses to this interaction came forward to speak with Investigators, nor could they be located.
WO #1 Interviewed and notes received and reviewed
WO #2 Interviewed and notes received and reviewed
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Notes reviewed, interview deemed not necessary
Police employee witnesses
PEW #1 Not interviewed due to medical issues
PEW #2 Interviewed
SO #1 Interviewed, and notes received and reviewed
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right
On April 6th, 2017, OPP officers went to a wooded area in Sioux Lookout after receiving information that there were intoxicated persons at that location. SO #1 arrived and saw the Complainant asleep on the ground in an intoxicated condition. SO #1 arrested the Complainant and handcuffed her. SO #2 assisted SO #1 in walking the Complainant to a police vehicle. The Complainant was cooperative when taken to the Sioux Lookout OPP Detachment, searched and lodged. The Complainant was unsteady on her feet and fell to the floor while being searched.
Three days later, the Complainant had her wrist examined and she was diagnosed with having sustained a distal radial fracture.
The Complainant was arrested in a wooded area near 109 Fourth Avenue in Sioux Lookout.
The OPP video showed the sally port, booking area, and cell #15 at the Sioux Lookout Detachment. The Complainant was escorted from the sally port to the booking area and to her cell without incident.
There were no submissions made.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
- Civilian Witness Info
- Duty Roster
- Event Details Report
- Incident History for the Complainant
- Involved Officer List
- Notes of WO #s 1-6, and
- Written Statement of WO #1
The SIU also obtained and reviewed Medical documents for the Complainant.
Section 31(4), Liquor Licence Act – Intoxicated in a public place
31 (4) No person shall be in an intoxicated condition,
- in a place to which the general public is invited or permitted access
Section 265, Criminal Code - Assault
265 (1) A person commits an assault when
- without the consent of another person, he applies force intentionally to that other person, directly or indirectly
- 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
- 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
- the application of force to the complainant or to a person other than the complainant
- threats or fear of the application of force to the complainant or to a person other than the complainant
- fraud; or
- the exercise of authority
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 April 6th, 2017, at approximately 6:15 p.m., a call was received at the Sioux Lookout Ontario Provincial Police (OPP) Detachment requesting police assistance with a number of intoxicated persons located in a wooded area at the end of Fourth Avenue in Sioux Lookout. Three OPP officers, SO #1, SO #2, and WO #2, attended the area in response. Upon arrival, officers located a number of persons in various stages of intoxication and consciousness who were arrested and transported to the station and lodged for the night. Among those arrested was the Complainant. The following morning, the Complainant noticed that her left wrist was swollen and painful; three days following her release, the Complainant attended the hospital and had her wrist x-rayed and it was discovered that she had sustained a non-displaced distal radial fracture to her left wrist. She returned the following week and a cast was applied.
The Complainant, unfortunately, could not assist the investigation as she advised that she had no recollection of her interaction with police on the date in question.
During the course of this investigation, the only civilian witness interviewed was the Complainant; no other witnesses having come forward. Additionally, three police officers were interviewed, including one of the subject officers. SO #2 declined to make himself available, as was his legal right. There was no closed circuit television footage of the arrest, nor was the search of the Complainant carried out on camera. Investigators had access to video footage from the inside of the OPP Detachment, including the booking hall, the sally port and Cell #15 where the Complainant was lodged, as well as the Complainant’s medical records.
SO #1, in his statement, advised that a call was received at the detachment on April 6th, 2017, at approximately 6:15 p.m., advising that a number of intoxicated persons were in the bush area at the end of Fourth Avenue. SO #1, SO #2, and WO #2 attended the area in separate police vehicles. SO #1 approached one of those persons, who he observed to have difficulty standing on his own and had slurred speech, and he placed him under arrest as he was concerned for his safety. SO #2 arrested the second party and she was subsequently placed into SO #1’s police cruiser for transportation, while the first party was placed into SO #2’s vehicle.
According to SO #1, they then heard other persons in the bush and SO #2 observed a third male party run into the bush and trip and fall, while he observed the Complainant lying on the ground on her left side, and another fourth male person, who SO #1 knew to be a sexual offender, was standing nearby, totally sober. SO #1 observed the Complainant to be asleep and believed her to be highly intoxicated; he also observed empty bottles of Kelly’s Wine strewn about nearby and the contents of the Complainant’s purse had been emptied out onto the ground. SO #1 advised that he was aware that the Complainant had been reported missing a month prior. SO #1 indicated that he was concerned for the safety of the Complainant, as it was getting colder and she might freeze if she was left on the ground sleeping. As a result, he handcuffed her while she was still asleep and arrested her for being intoxicated in a public place contrary to s. 31(4) of the Liquor Licence Act (LLA). SO #1 advised that he then used his thumb to apply pressure to the pressure points at the bottom of the Complainant’s ear to wake her. When the Complainant awoke, SO #1 described her as being incoherent, uncooperative, screaming, yelling, and flailing her legs. SO #2 assisted CO #1 in getting the Complainant to her feet and escorting her to the police vehicle; the Complainant resisted throughout and dug her heels into the snow. SO #1 advised that he then applied a technique that he had been trained to use in Police College, an ‘escort level two’ position, wherein he grabbed her left arm with his left hand and grabbed her left hand with his right hand and bent it inwards towards her wrist, but the Complainant continued to dig in her heels. SO #1 advised that they had to walk some 200 metres to the police cruiser, and due to the resistance being offered by the Complainant, he was already tired after 50 metres.
Consequently, SO #1 observed SO #2 to put his hand through the Complainant’s arms, which were cuffed behind her back, and place his hand on her shoulder and bend her forward. SO #1 then did the same on the Complainant’s other shoulder and, though this was not a technique that SO #1 was familiar with, he advised that it was effective and he and SO #2 were then able to effectively walk the Complainant to the cruiser and place her inside without difficulty. Once at the detachment, the Complainant was turned over to two female police officers to be searched and then placed in the cells. SO #1 advised that he was unaware that the Complainant had been injured, but would have provided her medical aid had she made any complaint. He also indicated that he was unaware as to how she came to be injured.
WO #2 advised that he also responded to the call for intoxicated persons and observed SO #1 and SO #2 with some persons under arrest and he did not observe that they required any assistance. He then heard someone inside the bush and he entered and arrested an additional party for being intoxicated and transported him to the detachment. WO #2 advised that he had no contact with the Complainant.
WO #1 advised that the Complainant was turned over to her to be searched and that she escorted the Complainant into a private area in a small interview room for that purpose. WO #1 described the Complainant as intoxicated and that she had trouble both standing and walking on her own. WO #1 advised that the Complainant was so unsteady that she had to lean her against the wall to keep her upright, and when she asked the Complainant to lift one foot, the Complainant slid down the wall and landed on her left shoulder. WO #1 then helped her to sit in a chair to complete the search. WO #1 advised that she asked the Complainant if she was alright, if she had any complaints, or if there was anything she wished to say. WO #1 advised that she routinely asks these questions so that the person under arrest can feel free to speak privately. The Complainant advised that she was fine and she had no complaints. WO #1 also indicated that the Complainant was continuously apologizing to her, but that she was unaware of the reason for which she was apologizing.
While there is a very small possibility that the Complainant injured her wrist either when SO #1 bent her hand inside towards her wrist in order to gain compliance in walking her to the cruiser, or when she fell onto her left shoulder when she was being searched, it appears quite unlikely. According to the American Academy of Orthopaedic Surgeons website, the most common cause of a distal radius fracture is a fall onto an outstretched arm. When the Complainant was first located by SO #1 and SO #2, she was already unconscious on the ground and there is no evidence of the means by which she came to be there, or if she had fallen at any time prior to arriving at that location. What is clear on the evidence is that the Complainant was quite intoxicated and had difficulty in both standing and walking without assistance and, during the course of being searched, she fell to the floor. In the absence of some evidence, either from the Complainant herself or any other witness, as to how, when, and where the Complainant came to be injured, it is impossible to form reasonable grounds that the source of her injury was by means of an assault; even if that much were possible, it is impossible to determine who might have perpetrated that assault.
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 arrest and apprehension of the Complainant, the officers had reasonable grounds to believe that the Complainant was intoxicated in a public place and she could be arrested under the LLA. Additionally, it was cold outside, there was snow on the ground, the Complainant was passed out or asleep on the ground and appeared to be in such a state of intoxication as to be unable to care for herself, and there was a basis for real concern that if she was left where she was found, she would come to some harm;
With respect to the amount of force used by SO #1 and SO #2 in their attempts to arrest and escort the Complainant to the police cruiser and then on to the police detachment, I find that their actions consisted of an extremely minimal amount of force being applied and certainly not of such a degree as to attract criminal sanctions. In light of the fact that the Complainant was actively resisting by digging in her heels, yelling, screaming, and flailing her legs, I have no doubt that it would have been easier for the police officers to simply abandon their efforts to assist the Complainant and to leave her behind in the cold, but they were duty bound to remove her from harm’s way and they did so with the minimum amount of force required for that purpose. As such, I find that their behaviour was justified in the circumstances and that they used no more force than necessary to subdue and move the Complainant, who was clearly extremely intoxicated, incoherent and actively resistant. In coming to this conclusion, I am mindful of the jurisprudence from the Supreme Court of Canada in R. v. Nasogaluak,  1 S.C.R. 206, that police actions should not be judged against a standard of perfection and from the Ontario Court of Appeal in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.
Similarly, I find that the actions of WO #1, in searching the Complainant before she was lodged in the cells in order to ensure that she was not in possession of anything that could harm herself or others, only applied the minimum amount of force to do so, and that the Complainant fell to the floor as a result of her own level of intoxication and not as a result of any actions of WO #1. On the evidence, it appears that WO #1 was aware of the Complainant’s situation and was mindful of it when dealing with her, and she was both patient and open to the Complainant, should she have any complaint to make, which she apparently did not. On all of the evidence, while I am unable to determine the source or cause of the Complainant’s injury, I find that it is far more likely that it occurred prior to the Complainant being located on the ground passed out, than it did while she was in police custody. If I am wrong, and the Complainant was somehow injured while in police custody, on the scant evidence available, I am unable to determine when, by whom, or how she sustained her injury and am unable to attribute it to the actions of any of the police officers who had direct contact with her. On all of the available evidence, I cannot find that any police officer who dealt with the Complainant on April 6th, 2017, subjected her to any more than the minimal use of force required to achieve their lawful purpose and there is no evidence whatsoever that an excessive use of force was ever employed.
In the final analysis, in the absence of any concrete evidence, I am unable to determine when, by what mechanism, or at whose hands, if any, the Complainant sustained her injury and am thus unable to form reasonable grounds to believe that any officer who had contact with the Complainant on April 6th, 2017, was responsible for that injury. On the record before me, I am satisfied that the actions exercised by the three police officers who had direct contact with the Complainant fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.
Date: March 1, 2018
Original signed by
Special Investigations Unit
- footnote Back to paragraph Either because of the cold or by being intoxicated and passed out while in the presence of a known sexual offender.