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SIU Director’s Report - Case # 18-TCI-043

Contents:

News Releases for this Case:

French:

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.

Information restrictions

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.

Mandate engaged

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 75-year-old woman (the Complainant) during her interaction with police on February 14, 2018.

The Investigation

Notification of the SIU

At approximately 10:55 p.m. on February 14, 2018, the Toronto Police Service (TPS) contacted the SIU and reported a custody injury sustained by the Complainant earlier on that same date, at approximately 1:44 p.m.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed 

Witness Officers

WO #1 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, notes received and reviewed

Incident Narrative

On November 10, 2017, the Complainant purchased a used 2011 Chevrolet Cruze from a car dealership on Dufferin Street in the City of Toronto, which she financed through the dealership. The Complainant returned to the dealership on four or five occasions with complaints ranging from the car being dirty to the fact that she did not want to finance the car. On one of these occasions, the dealership detailed her car free of charge.

On February 14, 2018, at 1:24 p.m., the Complainant drove her car into a service bay at the dealership and, when she exited her car, she began to scream and caused a scene. The Complainant claimed she had a problem with the gasoline gauge and she requested to speak with the Financial Services Manager. The Complainant refused to leave the dealership when she was requested to do so by the general manager, CW #1. The police were called and at 1:59 p.m., the SO entered the service area and spoke to the Complainant, who stood at the rear of her car.

The Complainant was a 75-year-old, heavy-set woman and she was dressed in a night-gown, with socks and sandals. The Complainant acted irrationally and showed signs of suffering from a mental health issue. The service bay had CCTV cameras and the Complainant was seen to become animated with the SO. She pointed a pen at the SO and almost poked the SO. The SO requested that the Complainant get into her car and leave the premises.

At 2:18 p.m., after the SO had spoken to the Complainant for approximately 19 minutes, the SO was seen to grab the Complainant’s left elbow to turn her around and escort her out of the dealership. The Complainant fell and banged her face on a stool beside a desk, in the area where she had parked her car. The Complainant was then handcuffed and transported to the hospital by ambulance.

Nature of Injuries / Treatment

The Complainant was X-rayed at hospital and was diagnosed with a blowout fracture of the medial right orbit (eye socket).

Evidence

The Scene

The scene was located in the service bay of a car dealership located on Dufferin Street in the City of Toronto.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Video Report of Service Bay:

The service area of the dealership was video recorded with two camera angles. The first camera angle showed the side of the Complainant’s Chevrolet Cruze when it was driven into the bay. The second camera angle faced the front door and had little investigative value, as the incident occurred at the rear of the car and the body of the car blocked out any interaction. The time stamp for the video was four hours ahead of Eastern Standard Time.

At 1324 hrs: A Chevrolet Cruze was driven into the bay and numerous service employees were seen to walk in and out of the service area;

At 1329 hrs: The Complainant exited the vehicle. The video was recorded at a distance and the resolution was poor. The Complainant was dressed in a coat with what appeared to be a nightgown underneath. She wore white socks and sandals and carried a blue bag in one hand and papers in the other hand. CW #1, the general manager, and CW #2, the service manager, were seen in the service area;

At 1359 hrs: A TPS police officer [later identified as the SO] entered the service area and spoke to the Complainant while the Complainant stood with her back against the trunk of the car. The SO spoke to the Complainant for 19 minutes and the Complainant became more animated and started to point a pen at the SO;

At 1418 hrs: The Complainant appeared to poke at the SO with the pen in her right hand. The SO then grabbed the Complainant’s left elbow to turn her around and, in the process, the Complainant fell and banged her face on a stool at a work station next to where her car was parked. The SO handcuffed the Complainant with her hands behind her back while the Complainant lay on her back;

At 1426 hrs: A second police officer, later identified as WO #1, arrived in the service area; and

At 1438 hrs: Paramedics arrived on scene.

Communications Recordings

The 911 Call and Police Transmissions Communications Recordings were obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:

  • Event Details Reports (x4);
  • General Occurrence Report;
  • Notes of WO #1 and the SO;
  • 911 Call Recording;
  • Police Transmissions Communications Recordings;
  • Procedure: Arrest;
  • Procedure: Provincial Offences Act Releases;
  • Procedure: Appendix A;
  • Procedure: Appendix B; and
  • Procedure: Use of Force.

The SIU obtained and reviewed the following materials and documents from other sources:

  • Ambulance Call Report;
  • EMS Incident Report;
  • Medical Records of the Complainant related to this incident; and
  • Photos of Complainant’s injury.

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.

Section 2(1), Trespass to Property Act -- Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Section 9 (1), Trespass to Property Act – Arrest without warrant on premises

9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

Analysis and Director's Decision

On February 14, 2018, the Complainant attended a car dealership located on Dufferin Street in the City of Toronto. The Complainant had purchased a motor vehicle from the dealership in November of the previous year, and had returned a number of times with complaints about the vehicle and the method by which she had financed it; the dealership had apparently attempted to appease the Complainant, including on one prior occasion detailing the car without any cost to her.

On February 14, 2018, after speaking with the Complainant and asking her to leave, which she refused to do, management of the dealership called the TPS to have the Complainant removed from the premises. The SO attended in response to the call. During the course of the SO’s interaction with the Complainant, the Complainant sustained an injury and an ambulance was called. The Complainant was transported to hospital where it was discovered that she had sustained a blowout fracture of the medial right orbit (eye socket).

During the course of this investigation, in addition to the Complainant, two independent civilian witnesses and one police witness were interviewed, as was the SO. In addition to the witness evidence, the interaction between the SO and the Complainant was captured on video by the dealership CCTV, albeit the quality of the video was less than ideal. Upon a review of all of the evidence, it became apparent to me that the video and the civilian witness evidence was consistent with the evidence of the SO, and was inconsistent with the evidence of the Complainant, which was often confused and directly contradicted by the video evidence, with respect to basic details such as how many officers were present and dealt with the Complainant when she was injured. Based on the credible and reliable evidence before me, as confirmed by the video recording, I have found that the following is a factual accounting of the incidents that occurred on February 14, 2018, leading to the Complainant’s serious injury.

Sometime between 1:30 and 1:45 p.m. on February 14, 2018, the Complainant drove her motor vehicle into the service bay at the dealership and exited her vehicle, whereupon she began to scream and create a scene. The service manager, CW #2, and the general manager, CW #1, attended the service bay to deal with the Complainant, who was at that point already well known to them, due to prior attendances by her at the dealership to air out her concerns about the purchase of her motor vehicle.

The Complainant stood at the back of her vehicle; there was a table with a chair nearby. Both CW #2 and CW #1 approached the Complainant and asked her what they could do for her. She was described as seemingly confused, her speech was slurred, she was angry and frustrated, and she was rambling on about being at the bank and that she wished to buy out the vehicle which she had previously financed with them. CW #1 and CW #2 determined that there was nothing that they could do to assist the Complainant, and they asked her to remove her vehicle from the service bay and that police would be called if she refused to do so.

Approximately 15 minutes after the Complainant’s arrival, CW #2 called the TPS rather than engage with the Complainant any further, and he and CW #1 waited for the police to arrive.

CW #2’s call was recorded as coming in to the Communications Centre at 1:48:05 p.m. and, while initially two units were dispatched to the dealership, one unit was then preempted to another call, and the SO attended the dealership on his own. In the call to the police, CW #2 reported that an elderly woman, possibly an EDP (emotionally disturbed person), was at the dealership and was not making sense.

Shortly after the call to the police, the SO arrived at the dealership. CW #1 spoke with the SO and advised him that the Complainant had been making noise and screaming, that she was mentally disturbed, and that the dealership staff could not handle her. CW #1 also made the SO aware that the Complainant had been asked to leave the premises, but had refused.

The SO then approached the Complainant and stood approximately three feet in front of her and was heard to ask the Complainant some very simple questions; his demeanour was described by the civilian witnesses as quite calm and casual. The Complainant, on the other hand, was heard to state, in a loud tone so everyone could hear, that she wanted her car cleaned and she no longer wanted to finance the vehicle, while the SO tried to calm her. The Complainant then began to hysterically wave a pen or some similar item at the SO. According to the CCTV footage, the SO spoke with the Complainant for 19 minutes in total, during which time he asked the Complainant to leave, but she refused. The SO was described as repeatedly telling the Complainant that she had to leave the premises, and he never touched the Complainant while doing so. After the SO had requested the Complainant to leave numerous times (estimated at between seven to ten times), the volume of the Complainant’s voice increased and the SO also had to speak louder to be heard over her screaming. The SO was heard to warn the Complainant that she would be arrested if she did not leave the premises.

The SO stated that when he first approached the Complainant, she was not angry or yelling or screaming, but she simply would not leave the dealership. The SO indicated that he listened to the Complainant and found her story confusing and described the Complainant as also being confused and not fully understanding what was going on. The Complainant clearly believed that she had been bamboozled by the dealership. The SO asked the Complainant if there was a family member that he could call, but she told him that she lived alone. The SO indicated that while he initially asked the Complainant to leave, he eventually told her to leave, and gestured for her to move along. The SO considered apprehending the Complainant under the Mental Health Act (MHA), but felt that he had insufficient grounds to do so. The SO stated that he purposely and loudly told the Complainant that she was nice and he did not want to touch her, but that he was going to have to arrest her if she did not leave, despite not wishing to do so. He then warned the Complainant that he was going to count to five to give her the chance to leave, and he began to count to five. The SO estimated that he had told the Complainant at least ten times to get into her vehicle and leave.

The SO finally told the Complainant that he was going to arrest her. The Complainant was described as standing with her back to her vehicle with the SO standing about two feet to the front of her, with nothing in his hands. The SO then reached out and grabbed one of the Complainant’s wrists, following which she threw up her arms to resist the SO. The SO then stepped closer to the Complainant and tried to grab both of the Complainant’s arms; this movement was described as being more forceful than the first. The Complainant then fell backwards onto the trunk of her car, and from there, both she and the SO fell to the tiled floor, with the Complainant striking a nearby stool on her way down. The SO then immediately handcuffed the Complainant with her hands behind her back and called for back-up, followed by a request for an ambulance. The SO arrested the Complainant for contravening the Trespass to Property Act (TPA) by failing to leave the premises when directed to do so. Shortly thereafter, WO #1 arrived and the Complainant calmed down and the handcuffs were removed. At 2:40 p.m., the Complainant was taken to hospital by ambulance.

The civilian witnesses to the incident described the SO as giving the Complainant ample opportunity to leave the premises on her own, but described her as non-compliant. The SO then peacefully went to arrest the Complainant, but when she resisted, things physically escalated and she was injured. The SO’s actions were described as not being in any way inappropriate, but that the Complainant was hysterical and needed to be removed and the SO did what he had to do. At no time was the SO seen to resort to any force against the Complainant, other than grabbing her wrist to handcuff her. The Complainant was described, on a scale of one to ten for non-compliance, with ten being totally resistant, as an “eight or nine, or all the way up there,” and struggling and screaming while she and the SO were on the floor.

Pursuant to s. 25(1) of the Criminal Code, a police officer, if he acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. As such, in order for the SO to qualify for protection from prosecution pursuant to s. 25, it must be established that he was in the execution of a lawful duty, that he was acting on reasonable grounds, and that he used no more force than was necessary.

On this record, it is clear that the Complainant was in contravention of the TPA when she was repeatedly told by the management of the dealership to leave the premises, and refused to do so, and was then first asked, and then told, by the SO, at the request of management, to leave the property. Therefore, as the Complainant was in clear contravention of the TPA, the SO was acting pursuant to a lawful duty, and at the request of the property owner, when he attempted to arrest the Complainant. As such, as long as the SO used no more force than was necessary to achieve his lawful purpose, he is immune from prosecution pursuant to the provision of s. 25 (1).

While it is further evident that the Complainant was an elderly woman with possible mental health issues, on all of the evidence it is clear that the SO did not immediately resort to arresting the Complainant, but attempted to deal with her calmly and rationally to try to convince her to leave the premises for almost 20 minutes, before he was left with no other option than to arrest her. Even at that point, with no other alternatives available, the SO again warned the Complainant and counted down from five in order to give her every opportunity to get back into her car and leave the premises. It was only when all other options had proved ineffective, that the SO reached out and grabbed the Complainant’s arm to place her under arrest and attempt to forcefully remove her from the property. Consequently, I find that the evidence establishes that the SO was acting reasonably in the circumstances, and he used the minimal amount of force required to achieve his lawful purpose.

While the Complainant was injured when she resisted the SO, causing first herself, and then the SO, to fall to the tiled floor, with the Complainant striking her face against a nearby stool on the way down, it is clear on the evidence that had she not resisted, no force at all would have been resorted to by the SO. I also find that despite the Complainant’s unyielding resistance, first verbally and then physically, to the calm and rational approach being put forward by the SO, the SO at no time lost his calm and only used the absolute minimum amount of force required to remove the Complainant from the property. On these facts, I cannot find that the SO at any time resorted to an excessive use of force against the Complainant.

As such, while I find that the Complainant sustained the fracture to her eye socket when the SO grabbed onto her hand to handcuff her and she forcefully resisted, losing her footing and falling to the floor, in all of the circumstances, I find that the Complainant left the SO with no other alternatives, (he clearly could not simply allow the Complainant to remain in the dealership and continue to disrupt business), and that the option resorted to by the SO to apprehend the Complainant was reasonable in the circumstances. In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

In conclusion, while I have reasonable grounds to believe that the Complainant was injured during her interaction with the SO, I do not have reasonable grounds to believe that at any time did the SO resort to an excessive use of force, but rather used the minimal amount of force necessary to achieve his lawful purpose and that the injury sustained by the Complainant was more attributable to her resistance of the SO, than it was to any physical act on his part. As such, while I lack the basis for the laying of criminal charges, none shall issue.


Date: December 10, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit