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SIU Director’s Report - Case # 18-TCI-101

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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.

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 28-year-old female (the Complainant) during her apprehension by police on April 2, 2018.

The Investigation

Notification of the SIU

At approximately 4:33 p.m. on April 3, 2018, the Toronto Police Service (TPS) notified the SIU of the serious injury sustained by the Complainant.
The TPS reported that on April 2, 2018, at 3:38 p.m., WO #1 and the SO responded to a call for assistance at the Metro Grocery store located at 3221 Eglinton Avenue East in the City of Toronto. A loss prevention officer had attempted to apprehend the Complainant for shoplifting medication, when she brandished a knife and threatened him. WO #1 and the SO pursued the Complainant and her boyfriend, on foot, when one of the police officers grabbed the Complainant’s purse strap and she fell to the ground.

The Complainant was taken to hospital where she was diagnosed with a fractured pelvis.

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 0

Complainant:

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


Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Notes reviewed, interview deemed not necessary



Subject Officers

The SO Interviewed, notes received and reviewed


Incident Narrative

At approximately 3:30 p.m. on April 2, 2018, the Complainant attended a Metro Grocery store located at 3221 Eglinton Avenue East, in the City of Toronto, to purchase syringes. While the Complainant was in the store, she took several boxes of Reactine (antihistamine medication) and a sandwich, without paying. When the Complainant left the store, she was approached by the loss prevention officer for the store, who attempted to place her under arrest for theft, and a struggle ensued. The Complainant then brandished a knife at the loss prevention officer. The Complainant eventually walked across the street towards a plaza and the loss prevention officer called 911.

WO #3 and WO #2 attended the Metro store and obtained a statement from the loss prevention officer. WO #1, along with the SO, then drove in an unmarked police vehicle along Eglinton Avenue East, searching for the Complainant. WO #1 drove to a plaza, located at 3246 Eglinton Avenue East, which he knew was an area frequented by drug users. When WO #1 drove along the front of the plaza, he and the SO saw the Complainant and her boyfriend in an alleyway within the plaza. WO #1 then drove to the back of the plaza, and he and the SO got out of their cruiser and approached the Complainant and her boyfriend in the alleyway.

The Complainant immediately ran through the alleyway and the SO ran after her. WO #1 returned to the cruiser and drove to the front of the plaza. The SO observed the Complainant about to enter into a convenience store, and he grabbed her by the strap of her purse and brought her down to the ground before she could enter the store. The Complainant fell back and landed on top of two concrete wheel stop blocks that were parallel to each other. When the Complainant was handcuffed, she complained that she was in pain. An ambulance then arrived and transported the Complainant to the hospital.

Nature of Injuries / Treatment

The Complainant was transported to the hospital where she underwent an X-ray of her pelvis, which revealed a mildly displaced fracture to her right iliac crest (pelvic bone); there was also a fracture to her right seventh rib.

Evidence

The Scene

The Metro grocery store was located at 3221 Eglinton Avenue East, at the southeast corner of Markham Road and Cedar Drive, in the City of Toronto. On the northwest corner of Eglinton Avenue East and Cedar Drive was a strip plaza, 3228 Eglinton Avenue East. Within the parking lot of the plaza was a Tim Hortons restaurant. There were several stores located in the plaza and an alleyway within the plaza that travelled north and south. In front of each store there were parking spaces which had concrete wheel blocks by the curb of each space.

The general area was fairly busy with motorists and pedestrians walking on the sidewalk and within the several plazas and stores that were aligned next to each other on the north side of Eglinton Avenue East.

Video/Audio/Photographic Evidence

Metro Grocery Store Video Footage Summary

Video footage provided by the Metro grocery store located at 3221 Eglinton Avenue East showed the Complainant inside the grocery store on April 2, 2018, at about 3:27 p.m. The Complainant was walking in the “allergy” aisle in the pharmacy department. The Complainant removed approximately six items from the shelf with her left hand and motioned towards a pink-coloured bag she was holding in her right hand. At no time did the Complainant discard the items she had taken, nor did she make her way to a cashier to pay for them.

At 3:29:17 p.m., the Complainant approached the pharmacy counter and spoke to a staff member.

At 3:29:23 p.m., the loss prevention officer entered the pharmacy counter and spoke with a staff member at the counter.

At 3:34 p.m., the Complainant left the pharmacy area with the loss prevention officer following her; they both walked out of the store and northbound along the west side of the store.

At 3:35 p.m., the loss prevention officer approached the Complainant at the northwest corner of the store, but eventually both of them walked out of camera view.

At 3:36 p.m., the Complainant and the loss prevention officer re-entered camera view and the loss prevention officer could be seen pulling on the pink bag that the Complainant was holding onto. A struggle ensued. Soon after, an unknown man got out of a white van that was parked adjacent to the west side of the store and put his hand out towards the Complainant and the loss prevention officer. The Complainant pulled her pink bag back from the loss prevention officer.


Cell Phone Video Footage Summary

On April 2, 2018, the loss prevention officer confronted the Complainant outside of the Metro grocery store, located at 3221 Eglinton Avenue East, after he saw her take several boxes of medication from the pharmacy area without paying for them. While the loss prevention officer was outside of the Metro grocery store, he recorded himself walking next to the Complainant. The Complainant was seen carrying a pink-coloured shopping bag. The Metro grocery store could be seen in the background.

The Complainant is heard to say, “Get the fuck off me,” and the loss prevention officer told the Complainant to show him her bag. The Complainant said that she did not know who the loss prevention officer was so the loss prevention officer responded that he was store security. There was a brief struggle and the Complainant told the loss prevention officer not to touch her and said, “I have hepatitis C and I will take a needle out on you.” As the struggle ensued between the loss prevention officer and the Complainant, boxes (similar in shape and size to that of Reactine allergy medication boxes) were seen scattered on the ground. The video abruptly ended as the Complainant was yelling out “No.”

Communications Recordings

On April 2, 2018, at approximately 3:37 p.m., the loss prevention officer called 911 and reported that he was a security officer working at a Metro grocery store located at 3221 Eglinton Avenue East and that a woman [now known to be the Complainant] had taken medication from the pharmacy without paying. The caller provided a description of the Complainant and what she had been wearing. The caller also reported that the Complainant had brandished a knife at him when he confronted her.

Between 3:50 and 3:56 p.m., WO #3 and WO #2 advised over the radio that they were in the area of Markham Road and Eglinton Avenue East looking for the Complainant. WO #3 and WO #2 attended at the Metro grocery store to speak with the Loss Prevention Officer. WO #3 broadcast over the radio that the Complainant was last seen walking north on Markham Road.

Between 4:03 and 4:21 p.m., a police officer broadcast that the Complainant was in custody at the intersection of Eglinton Avenue and Cedar Drive. There was also a request for the EMS and a female officer to attend.

Between 4:36 and 4:53 p.m., WO #4 broadcast that she would be escorting the Complainant to hospital.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Materials obtained from Police Service

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

  • Arrest Details for the Complainant;
  • 911 Call Recording;
  • Police Transmissions Recordings;
  • Event Details Report;
  • General Occurrence Report;
  • Computer Aided Dispatch (CAD) Report;
  • Injury Report for the Complainant;
  • Involved Officer List;
  • Notes of WO #s 1-4 and the SO; and
  • Prosecution Summary.

The SIU obtained and reviewed the following materials and documents from other sources:
  • Medical Records of the Complainant pertaining to this incident, obtained with her consent; and
  • Cell Phone Video from Loss Prevention Officer.

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

On April 2, 2018, following a call for assistance to the Toronto Police Service (TPS) from the loss prevention officer at the Metro grocery store at 3221 Eglinton Avenue East, in the City of Toronto, two uniformed and two plainclothes TPS officers responded to the area. WO #3 and WO #2, who were both in uniform and in a marked police vehicle, attended the store and took a statement from the loss prevention officer, while the two plainclothes officers, the SO and WO #1, searched for the suspect in the area, in an unmarked police vehicle. At approximately 4:04 p.m., the Complainant in this matter was placed under arrest for offences relating to the theft and the wielding of a knife against the loss prevention officer. She was transported to hospital thereafter, where she was assessed and it was discovered that she had sustained a mildly displaced fracture to her right iliac crest (pelvic bone) as well as a fracture to her right seventh rib.

During the course of this investigation, one civilian witness, in addition to the Complainant, was interviewed, as were three police witnesses, and the subject officer. Additionally, SIU investigators had access to, and reviewed, the memorandum book notes of four potential police witnesses and the subject officer, the police communications recordings, and the Complainant’s medical records related to this incident. With the exception of the two parties present during the apprehension and arrest of the Complainant, that being the Complainant herself and the subject officer, there were no witnesses to how the Complainant was injured. Having said that, however, there appears little dispute as to what actually occurred, a summary of which follows.

On April 2, 2018, the Complainant, while under the influence of narcotics, entered the Metro store and stole a number of items, following which she was approached by the loss prevention officer outside of the store. The officer requested to see the Complainant’s bag, wherein she had secreted the stolen items, but she refused, causing the loss prevention officer to reach for the bag, while the Complainant resisted, causing the bag to rip and the Complainant to fall to the ground. The Complainant then pulled a knife on the loss prevention officer, who allowed the Complainant to leave, and did not follow her, but instead called 911.

While the Complainant asserts that she believes that she only told the loss prevention officer that she had a knife, based on the loss prevention officer’s 911 call, which was placed within seconds of the incident, wherein the loss prevention officer clearly indicates that the Complainant pulled a knife on him, I reject the Complainant’s version of events, in favour of the loss prevention officer’s utterances made contemporaneous to the actual incident and before there was any opportunity for memories to fade or for the fabrication of evidence.

The Complainant observed the arrival of an unmarked police vehicle, from which two men, WO #1 and the SO, exited and told the Complainant that they were police officers. The Complainant indicated that she then became afraid and she ran from the officers, with the SO catching up to her shortly thereafter and advising her that he would resort to his “taser” if she did not stop.

The Complainant alleges that the SO, despite her having stopped running on her own, then grabbed her purse and pushed her to the ground. It is this single allegation which differs as between the version of events from the SO and that from the Complainant.

The SO, on the contrary, recalls that based on the information received from the loss prevention officer, his belief was that he had grounds to arrest the Complainant for theft and robbery, so he got out of his car and walked toward the Complainant and her boyfriend. As he approached, he shouted, “Police!” and told the Complainant that she was under arrest. He observed the Complainant to then get to her feet and run out of the alleyway, and he pursued her on foot; the SO acknowledges that he was holding his CEW in his right hand at the time.

When the SO next saw the Complainant, he indicated that she was opening the door to a convenience store. The SO reasoned that he could not allow the Complainant to enter the store, where there were potentially other civilians present, while armed with the knife which the loss prevention officer had already indicated she was more than willing to wield against others. As a result, the SO quickly ran up to the Complainant and forcefully tugged backwards on her purse strap, with the Complainant immediately stepping backwards and falling to the ground, landing awkwardly on her right side on top of two concrete wheel stop blocks.

The Complainant, in her statement, indicated that when the SO pushed her, she landed between two concrete wheel stop blocks with the SO landing on top of her very hard, causing immediate pain to the right side of her body, and causing her to believe that her ribs on the right side had been broken.

According to the evidence of both the Complainant and the SO, the Complainant was then handcuffed, assisted to her feet by both the SO and WO #1, and walked to a nearby police cruiser. While the SO described the Complainant as being taken to the cruiser, so that she could lean on it, the Complainant described herself being slammed against the hood of the cruiser by both the SO and WO #1. An ambulance was then called.

The SO, in his statement, specifically denied that the Complainant was ever slammed against the hood of a cruiser and he opined that the manoeuvre that he had used to stop the Complainant, that being to pull the Complainant by the strap of her purse to get her down onto the ground, was the safest possible action with the least amount of force used, and it accomplished the immediate goal of stopping the Complainant before she could enter the convenience store and endanger other civilians. He said he prevented her from entering the store without the need to resort to his CEW.

WO #1, in his statement, also added that when the SO ran after the Complainant, WO #1 returned to his police vehicle and drove to the south side of the plaza in an attempt to head off the Complainant, but, upon his arrival ten seconds later, he observed that the Complainant was already down and lying awkwardly on top of two concrete wheel stop blocks, while the SO was breathing heavily and telling the Complainant to put her hands behind her back and the Complainant continuously yelled, “Don’t touch me! You can’t touch me!” The Complainant was then turned onto her stomach and was handcuffed with her hands to the rear. WO #1 indicates that the Complainant cried out in pain when she attempted to stand, and it was he who then asked if she wished to lean against a police cruiser or to sit down, with the Complainant opting to stand.

Shortly thereafter, WO #4, a female officer, arrived and searched the Complainant, following which she was taken to hospital by ambulance.

While there is disagreement between the evidence of the SO and WO #1, and the Complainant, as to whether she was asked whether she wanted to lean on the police cruiser, or was slammed down onto the hood of the car, as there is no allegation that whatever happened in relation to the cruiser ended up being the source of any injury, I do not find it necessary to decide this specific fact but do note that this may simply be a difference of perspective, with the Complainant, who was undoubtedly in a great deal of pain at the time, possibly considering the action of being stood up and pressed against the police vehicle as being more forceful than the officers believed it to be. It is also possible that the Complainant may have been placed over the hood of the cruiser when she was being searched by WO #4, as there appears no need for the two arresting officers to place her over the hood, as it was never their intention to search her, and she had already been handcuffed.

With respect to the injury itself, there is no dispute that the Complainant was injured when the SO grabbed her purse strap and pulled her back and down to the ground. While the Complainant alleged that she had already come to a stop when the SO grabbed the purse strap and pushed her down, and the SO described the Complainant as attempting to enter the store when he grabbed her by the purse strap, I again find this to be more a disagreement of perspective and opinion, rather than a disagreement of the actual facts. Clearly, the Complainant, if she was attempting to open the door, would have had to come to a stop, but, from the SO’s perspective, that would not necessarily indicate that she was no longer attempting to escape, but only that she had to pause briefly to open the door.

Furthermore, I note that The SO described the interaction in his memorandum book (the notes were made shortly after the incident and while it was still fresh in his mind), as follows:
  • Chased fem (female) to doorway of 3246 Eglinton. Fem fumbling to open door. Continued yelling for fem “Get on the ground” x2 “You are under arrest” while pointing CEW at fem.
  • Fem actually yelled back, “No!” & again reached to open door. 
  • I didn’t want her getting into store & potentially in contact w (with) civilians inside
  • I didn’t want to get too close to fem knowing she was armed w knife
  • I quickly grabbed her by the purse which was slung over her shoulder & pulled her away from door, across sidewalk & to ground near parking lot.

On the basis of this evidence, then, I accept that the Complainant was attempting to evade police after having committed a criminal offence wherein it was alleged that she had pulled a weapon on a civilian. Thereafter, I find that the SO pursued the Complainant, in an attempt to place her under arrest, and that the Complainant was fully aware that the man pursuing her was a police officer and that he was attempting to arrest her. When the Complainant arrived at the convenience store, although it may technically be correct when she stated that she came to a stop, I find that it was reasonable for the SO to believe that it was the Complainant’s intent to open the door and enter the store, which could potentially put other civilians at risk and in harm’s way. I find that the SO then grabbed onto the Complainant’s purse strap and pulled her to the ground, as a result of which she was seriously injured.

The only question to be addressed then, is whether or not the actions of the SO were justified in these circumstances, or whether he resorted to an excessive use of force, for which he is not protected from prosecution under s. 25 (1) of the Criminal Code, and that there are therefore reasonable grounds for the laying of a criminal charge against the SO for assault causing bodily harm, contrary to s. 267 of the Criminal Code.

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 subject officer 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.

Turning first to the lawfulness of the Complainant’s apprehension and arrest, it is clear from the information provided by the loss prevention officer in the 911 call, as confirmed by WO #3 and WO #2 at the scene after speaking with the loss prevention officer, that the SO clearly had reasonable grounds to arrest the Complainant for, at the very least, theft under $5,000 and assault with a weapon, contrary to ss. 322 and 267 of the Criminal Code, in addition to a number of other offences. As such, the pursuit and apprehension of the Complainant by the SO was both in the execution of a lawful duty and based on reasonable grounds. As such, unless there are reasonable grounds to believe that the SO resorted to an excessive use of force, his actions would be exempt from prosecution under s. 25 (1) as being legally justified in the circumstances.

In finding that the evidence does not satisfy me that the SO’s actions were excessive or unjustified, I find, as succinctly set out in the SO’s notes, that the Complainant was actively attempting to evade police, that she was very possibly armed with a weapon, and that if she entered the convenience store, the lives and/or safety of other civilians would very possibly be put in jeopardy. I further find, on all of the evidence and based on the versions of events of both the Complainant and the SO, that the SO found himself in a fast-paced and fluid situation where he was forced to make a decision as to the quickest and safest way to apprehend the Complainant, before the risk level elevated. I have no difficulty finding, on these facts, and with only a few short seconds available to the SO to make a decision and carry it out in order to prevent the possible risk to others, that the SO acted prudently and instinctually when he grabbed onto whatever was available to him to bring the Complainant to a stop, before she was able to enter the convenience store.

While I find that the Complainant sustained a fracture to both her pelvic bone and her rib when she fell awkwardly onto the two concrete wheel stop blocks as a result of being pulled backwards by the SO, as she attempted to escape, I cannot find that to have been an excessive use of force, nor do I find that the consequences of the serious injury to the Complainant to have been reasonably foreseeable to the SO. 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]

Additionally, I have considered the decision of 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. On this record, it is clear that the force used by the SO in his attempt to stop the Complainant, before she put other civilians into harm’s way, fell within the range of what was reasonably necessary in the circumstances to effect her lawful detention and to remove the risk that she continued to pose as long as she was at large and in possession of a dangerous weapon. [1]

In conclusion, I find that the SO, who found himself in a very fluid, dynamic, and fast-moving situation, with little more than one or two seconds by which to determine how best and most safely to stop the Complainant, acted prudently and quickly to stop the risk that the Complainant continued to pose while she was at large and in possession of a weapon to which she had already proven she was more than willing to resort, should anyone get in her way of escape. As such, I do not find that the SO acted outside of the limits of the criminal law when he grabbed onto the Complainant’s purse strap and pulled her down and away from the convenience store. In sum, I lack the necessary reasonable grounds for the laying of criminal charges, therefore, none shall issue.


Date: January 29, 2019



Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) Although a knife was not located, two box cutters were found in her purse when it was searched incidental to arrest by WO #1. [Back to text]