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SIU Director’s Report - Case # 18-TCI-271

Contents:

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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 a serious injury sustained by a 34-year-old female during her arrest by Toronto Police Service (TPS) officers on September 11, 2018.

The Investigation

Notification of the SIU

On September 11, 2018, at 5:30 a.m., the TPS contacted the SIU and stated that on that day, at about 2:45 a.m., two uniform police officers came upon what they believed was a street level drug deal. The police officers approached a male and female [now known to be the Complainant], and after a brief investigation determined there were no drugs involved.

The police officers determined that the Complainant was intoxicated and as a result of her being assaultive towards street people in the area, decided to arrest the Complainant for being intoxicated in a public place.

The Complainant was placed in the rear of the police cruiser and while being transported to the police station began banging her head and kicking at the cage area. [1] The police officers decided to further restrain the Complainant and stopped in the area of Dundas Street and Milan Street, in Toronto. The officers intended to place leg shackles on the Complainant and removed her from the cruiser. In the process, the Complainant fell to the ground striking her left elbow. The Complainant complained about pain to her arm and she was transported to St. Michael’s Hospital (SMH) where she was diagnosed with a fractured left arm. The Complainant was admitted to SMH as the injury would require surgery to repair. 

The Team

Number of SIU Investigators assigned: 3  

Complainant:   

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

Witness Officers

WO #1 Interviewed
WO #2 Notes reviewed, interview deemed not necessary

Subject Officers

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


Incident Narrative

On September 11, 2018, at approximately 2:55 a.m., the Complainant was arrested by two TPS officers near Sherbourne and Carlton Street in Toronto for being intoxicated in a public place contrary to Liquor License Act. The Complainant was handcuffed with her hands behind her back and placed into the rear of a police vehicle. During her transport to the police station, she became increasingly agitated and kicked toward the partition in the police vehicle. The officers stopped the vehicle and decided to shackle her legs to prevent further kicking. The subject officer (SO) opened the rear door of the police vehicle and the Complainant kicked toward him with both of her feet. The SO grabbed the Complainant’s foot and pulled her from the vehicle, causing the Complainant to fall and fracture her left arm.

Evidence

Communications Recordings

The communications audio was obtained and reviewed. On September 11, 2018, at
2:44:11 a.m., the SO’s and witness officer (WO) #1’s unit advised dispatch that they were at Dundas Street East and Sherbourne Street relating to a complaint about a fight. Dispatch asked for units to respond.

Video/Audio/Photographic Evidence

In-Car Camera System (ICCS) Footage 


The ICCS for the SO and WO #1’s TPS police vehicle was obtained and reviewed. The video started at 2:56 a.m. on September 11, 2018. The video started with a female, now known to be the Complainant, standing in front of the police vehicle with both of her hands behind her back. 

One male police officer with short blond hair and wearing a short-sleeved dark uniform police shirt was behind the Complainant and to her right. He appeared to hold her right wrist with his right hand. The second male police officer with short dark hair and wearing a long-sleeved dark police uniform shirt was behind the Complainant and to her left and his left hand appeared to be behind her back.

The Complainant was placed in the right rear passenger seat of the police vehicle. The Complainant said she wanted to go to the hospital repeatedly. The Complainant repeatedly made choking noises and spat several times.

At 2:59:25 a.m., the Complainant said, “I just threw up because I am terrified. I threw up because I’m scared. You’ve never threw up out of fear because you’re a man.”

At 3:01:31 a.m., the Complainant said in the drunk tank she would punch herself into the concrete until she bleeds and she will kill herself and it will be the their fault. She repeated that she would bang her head.

At 3:02:34 a.m., the Complainant became agitated and reached for the door lever on her right side and shouldered the door trying to open it.

At 3:02:44 a.m., the Complainant leaned back and kicked forward with her left foot. A male voice said what is going on back there.

At 3:02:47 a.m., the Complainant said, “Get me out of this fucking...” The police vehicle stopped.

At 3:02:52 a.m., the right rear passenger door opened and a male voice said, “Hey, relax. What do you think’s gonna happen?” The Complainant said she did not like what the police officer was doing to her.

At 3:02:54 a.m., the police officer [later known to be the SO] said, “You did this to yourself,” and he donned a pair of black gloves.

At 3:03:12 a.m. the Complainant said, “Can you not…” The SO pulled the strap of the upper seat belt to the right of the Complainant.

At 3:03:25 a.m., the SO let go of the seat belt and the Complainant immediately turned to her right and kicked out repeatedly with both her feet towards the SO. One kick with her right leg made contact with the SO’s right hand.

At 3:03:27 a.m., the Complainant suddenly sat up and said, “I do not want these on me,” and, “Can you at least take these off of me.” The SO reached forward towards the Complainant’s feet with his right hand.

At 3:03:28 a.m., the SO used two hands at the Complainant’s right ankle and pulled the Complainant towards the door. The Complainant kicked towards the SO with her left foot. No contact was made with the SO. At this point, the Complainant was leaning back, face up.

At 3:03:30 a.m., the Complainant kicked again with her left foot and her left foot made contact with the SO’s right hand. As contact was made the SO maintained contact and pulled, and the Complainant slid forward. The Complainant’s buttocks made contact with the rocker panel. The SO stepped towards the rear of the police vehicle.

At 3:03:31 a.m., the Complainant fell to the ground, landing on her left side, and immediately screamed in pain.

At 3:03:33 a.m., the SO pulled the Complainant back approximately one foot. The Complainant screamed in pain.

At 3:03:34 a.m., the Complainant screamed, “You just broke my arm! Oh my God!” The SO stepped away and WO #1 approached the Complainant.

At 3:04:32 a.m., WO #1 assisted the Complainant to a seated position.
The Complainant said repeatedly, “You broke my arm.”

At 3:16:37 a.m., the Complainant was wheeled away in a gurney towards the rear of the police vehicle.

Materials obtained from Police Service

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

  • CAD Event Details Report;
  • Communications recordings;
  • Event Details Report;
  • General Occurrence Report;
  • ICCS footage;
  • Injury Report;
  • Notes of WO #1 and WO #2.

Relevant Legislation

Section 219 and Section 221, Criminal Code -- Criminal negligence causing bodily harm

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.


221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years

Analysis and Director's Decision

In the early morning hours of September 11, 2018, the Complainant was arrested by the subject officer (SO) and witness officer (WO) #1 of the Toronto Police Service (TPS) for being intoxicated in a public place. She was placed in the rear seat of a police vehicle and began kicking at the partition in the police vehicle. The SO removed the Complainant from the backseat to apply leg shackles, but she fell and struck her arm on the curb of the road. The Complainant was subsequently taken to St. Michael’s Hospital (SMH) where she was diagnosed with a fracture to her left arm. For the reasons that follow, I have no reasonable grounds to believe that the SO committed a criminal offence in relation to the Complainant’s injury.

The SIU’s investigation into this incident consisted of an interview with the Complainant and one witness officer. The notes of an additional WO and the police communications recordings were also reviewed. The in-car-camera system (ICCS) footage from the SO and WO #1’s vehicle captured the moment when the Complainant was injured and the material circumstances are accordingly clear.

The SO and WO #1 were driving a police vehicle near the area of the All Saints Church at Sherbourne and Carlton Street in Toronto when WO #1 noticed the Complainant, who was well dressed, in an area frequented by homeless people and drug abusers. They drove to her location and asked her if she was okay. She said she was fine and did not need their help. The officers drove a small distance north on Sherbourne Street to attend to a different matter.

A few minutes later, the Complainant became involved in an altercation. WO #1 remembered hearing people screaming which caused the officers to return to the Complainant’s location. According to the police communications recordings the officers returned to the area at 2:44 a.m. to check on a fight. WO #1 noted that the Complainant appeared to be intoxicated. Her speech was slurred, eyes bloodshot and clothing disheveled. Her “adrenaline was pumped up” and she appeared to have been one of the combatants in the fight.

The officers initially tried to arrange for a taxi to take the Complainant home, but the Complainant punched at an unknown man in front of the officers. WO #1 felt he could not send the Complainant home in a taxi due to her level of intoxication and her use of violence, and she was arrested for being intoxicated in a public place contrary to the Liquor License Act. [2]

It is alleged by the Complainant that her arm was broken when her arms were roughly pulled behind her back to be handcuffed. WO #1 confirmed that the Complainant was leaned against the police vehicle and her hands were handcuffed behind her back, but stated that the Complainant did not physically resist (although she was yelling). He said no undue force was used to apply the handcuffs.

The remainder of the Complainant’s interaction with the police officers was captured on the ICCS in the police vehicle. The ICCS footage began after the Complainant was handcuffed and captured her standing in front of the police vehicle with her arms handcuffed behind her back. Two police officers stood next to her and held her arms. The officers and the Complainant talked to each other but there was no audio. The police officers did not appear aggressive and the Complainant was not physically resisting the officers. At 2:56 a.m., the Complainant was placed into the right rear passenger seat of the police vehicle. Once in the vehicle, the Complainant repeatedly requested that she be taken to the hospital. She made choking noises and said she was throwing up because she was afraid. The Complainant became increasingly agitated. She appeared to throw up and threatened to commit suicide, blaming the officers. She tried to open the door to the vehicle, then leaned back and kicked towards the partition between the front and back seat of the vehicle with her foot. She appeared to use her foot to press against the partition.

WO #1 reported that at this moment the officers decided to apply leg shackles to the Complainant to prevent her from kicking out a window and causing potential harm to herself.

The police vehicle stopped and the SO opened the rear door of the police vehicle. The ICCS demonstrates that the SO reached towards the Complainant, who was facing the open door, but she started kicking out of the vehicle towards him. She kicked multiple times using both her feet and appeared to make contact with his right hand. The Complainant kicked towards the SO again and he grabbed her foot and pulled her out of the vehicle. She slid out easily. Her buttocks made contact with the rocker panel of the vehicle before she fell to the ground on her left side. She appeared to land with her left side against the curb and immediately screamed in pain. She repeatedly yelled, “You broke my arm.”

The Complainant was subsequently taken to SMH where she was diagnosed with a fracture to her left arm.

On this evidence, it is clear that the Complainant’s injury was not caused when she was handcuffed but was instead most likely the result of her falling and striking the curb. The Complainant’s recollection of the night was poor and I do not believe her memory is reliable given her level of intoxication. I am therefore unable to find that she was roughly handled by the police officers without further evidence. Moreover, the ICCS provides compelling evidence that the Complainant was injured when she fell. When she fell, her left side struck the curb which reasonably explains how her arm was likely fractured. After striking her arm, the Complainant immediately screamed in pain and repeatedly yelled that her arm was broken. Prior to this moment, the ICCS video demonstrates that the Complainant made no complaint of any pain or injury to her arm, despite being highly vocal about her displeasure over being arrested. The ICCS also demonstrates that there was no visible injury to the Complainant’s arm before the fall. I accordingly believe her injury was caused when she fell out of the police vehicle and not when she was handcuffed.

The only remaining question in this context is whether the SO was criminally negligent when he removed the Complainant from the police vehicle in a manner that resulted in the injury to her arm. Criminal negligence is defined by s. 219(1) of the Criminal Code which states that “everyone is criminally negligent who, (a) in doing or, (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of the other persons.” The Court of Appeal for Ontario, in its decision of R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.), further clarifies that criminal negligence does not require proof of intention or deliberation. Indifference is sufficient to make out criminal negligence if the conduct amounted to a marked and substantial departure from the standard of a reasonable person and the person “either recognized and ran an obvious and serious risk to the lives and safety of others or, alternatively, gave no thought to that risk.”

The SO was responsible for the Complainant’s well-being while she was arrested and it was obvious that the Complainant was very intoxicated. WO #1 explained that the officers wanted to apply leg shackles because they were worried that the Complainant would break a window and cause harm to herself. This decision was not unreasonable in the circumstances. When the SO opened the police vehicle door, the Complainant was uncooperative and began kicking. The SO did not provide the SIU with a statement so his precise reasons for grabbing the Complainant and pulling her out of the vehicle are unknown; however, I believe he likely did so in order to better control her. While it is unfortunate that this action caused the Complainant’s injury, I do not believe it meets the high threshold required for a finding of criminal negligence. Removing the Complainant from the vehicle was not unreasonable in the circumstances, and the manner in which the SO did so, while having regrettable consequences, simply does not rise to the level of a marked and substantial departure from the standard of care of a reasonable person. The SO simply grabbed the Complainant’s foot and pulled quickly (after being kicked), resulting in her sliding forward and falling a short distance to the ground. This action did not pose such an obvious and serious risk to the Complainant that it could be said to amount to a wanton and reckless disregard to her safety. I therefore have no reasonable grounds to believe that the SO committed the offence of criminal negligence causing bodily harm and the file will be closed.


Date: February 25, 2019



Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) A review of the in-car camera system footage demonstrates that the Complainant did not bang her head in the police cruiser, although she threatened to do so once she was at the police station. [Back to text]
  • 2) The male who she punched did not want her to be charged with assault. [Back to text]