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SIU Director’s Report - Case # 19-TCI-042

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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 33-year-old woman (the “Complainant”).

The Investigation

Notification of the SIU

On February 23, 2019, at 9:10 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

The TPS reported that on February 23, 2019, at 2:32 a.m., TPS officers responded to a call in regards to a 911 complaint of someone breaking and entering an apartment located in the Parkdale neighbourhood of Toronto.

TPS officers located a woman [later identified as the Complainant], took her to the ground and arrested her. The Complainant was transported to the police station where she complained of a sore ankle. She was subsequently taken to St. Joseph’s Hospital and diagnosed with a fracture to her ankle. 

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

33-year-old female interviewed, medical records received and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Not interviewed (Next-of-kin)

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

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


Evidence

The Scene

The scene of the arrest, where the Complainant’s injury likely occurred, was a first-floor stairwell landing adjacent to a glass exit door of an apartment building in the Parkdale neighbourhood of Toronto.

The SIU canvassed the area for Closed Circuit Television (CCTV) recordings and witnesses.

Video/Audio/Photographic Evidence


CCTV Recordings from Toronto Community Housing Corporation (TCHC):


The SIU received the CCTV recordings from the TCHC. The CCTV camera was located in the first-floor stairwell landing. The recordings were approximately seven minutes and did not capture any audio. The recordings depicted the following:
  • At 3:47:18 a.m., two people [later identified as the SO and CW #2] escorted a woman [later identified as the Complainant] to the first-floor stairwell landing.
  • At 3:48:59 a.m., CW #2 opened the industrial glass one-way exit door to let a police officer [later identified as WO #2] into the first-floor stairwell landing area. WO #2 then opened the industrial glass one-way exit door to let another police officer [later identified as WO #1] into the stairwell landing area.
  • At 3:51:01 a.m., WO #1 grabbed the Complainant’s left hand while the SO grabbed and pulled the Complainant’s right arm. The Complainant lunged towards the industrial glass exit door and fell on the ground. The SO pushed the Complainant’s upper body away from the industrial glass exit door. The industrial glass exit door remained ajar due to the struggle. The Complainant lay on her stomach while the SO handcuffed her hands behind her back.
  • At 3:52:24 a.m., the Complainant was assisted to her feet by the SO, WO #1 and WO #2, and searched.
  • At 3:53:06 a.m., the Complainant was escorted out of the first-floor landing area by WO #1 and WO #2.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the TPS:
  • TPS General Occurrence Report;
  • Computer Aided Dispatch; and
  • Witness Officers’ Notes.

Materials obtained from Other Sources

Upon request the SIU obtained and reviewed the following materials and documents from the TCHC:
  • TCHC Incident Report by CW #2; and
  • Video Recording of the incident.

Incident Narrative

The events in question are relatively clear thanks to statements obtained from each of the participants in the Complainant’s arrest, save for the SO who, as was his right, declined to interview with the SIU or authorize the release of his notes. The investigation also benefited from a CCTV recording of the arrest captured by a surveillance camera. At about 2:30 a.m. on February 23, 2019, the SO and WO #1 arrived at an apartment building located in Parkdale, Toronto to investigate a suspected break and enter. A resident of the building had called the police upon observing a woman – the Complainant – break the window of a basement apartment and enter through the broken glass into the unit. As the building was owned by the TCHC, the officers were joined at the scene by CW #2, a special constable with the TCHC’s Community Safety Unit.

The SO and CW #2 encountered the Complainant in the hallway outside the apartment in question. They asked for her name and what she was doing in the building. The Complainant ignored their questions and walked away from the officers down the hall toward a set of stairs leading to a first-floor landing and a heavy glass exit door; the officers followed. At the landing, the Complainant identified herself and was soon told she was under arrest for breaching a court order when the SO learned from the police dispatcher that she was under house arrest. By this time, WO #1 and WO #2 were also present on the landing, the latter having been asked to attend the apartment building as a Scenes of Crime Officer. The Complainant physically resisted as the SO and WO #1 grabbed her right and left arms, respectively. Following a brief tussle between the Complainant and the four officers, the Complainant was brought to the floor and handcuffed in short order. While on the ground, the Complainant complained when her left foot became wedged between the bottom of the glass door and an elevated step outside the door frame. WO #1 opened the door to allow the Complainant to remove her foot, whereupon she was stood up, walked to WO #1’s cruiser and placed inside for transport to the station.

Once at the police station, WO #1 and WO #2 decided to take the Complainant to the hospital when she started vomiting and complained of foot pain.

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

The Complainant was arrested by TPS officers in the early morning hours of February 23, 2019 and suffered a fractured ankle in the process. The SO was among the arresting officers and identified as the subject officer for purposes of the SIU’s investigation. On my review of the information gathered by the SIU in its investigation, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. It is clear on the evidence that the Complainant was detained by the SO for investigative purposes when he was together with her on the first-floor stairwell landing of the apartment building. On my review of the evidence, one has the strong sense that the Complainant would not be allowed to walk away without the officer having an opportunity to ask her some questions and check her name against police records. Pursuant to the seminal case of R. v. Mann, [2004] 3 SCR 59, the Supreme Court of Canada decided that investigative detentions could only be condoned where there were reasonable grounds to suspect that the subject of the detention was implicated in a crime. On my assessment of the circumstances that prevailed at the time of the Complainant’s detention, including the fact that the Complainant was located in the hallway outside the apartment unit that had just been broken into, I am satisfied that the SO’s suspicion that the Complainant was the perpetrator of the break and enter was reasonable.

Turning to the question of the Complainant’s arrest, which immediately preceded the force used by the officers and the injury she sustained, I have no hesitation in concluding that it too was lawful. By that time, the SO had reliable information that the Complainant was in breach of a court order requiring that she remain within certain premises at all times, with limited exceptions. The officer was therefore within his rights in seeking to arrest the Complainant.

With respect to the force that was used in effecting the Complainant’s arrest, this consisted of a brief wrestling contest in which the SO and WO #1, aided by WO #2 and CW #2, attempted to control the Complainant’s movements, and the act of bringing the Complainant prone to the floor. I am unable to find any excessive force in the conduct of the officers. As the video recording makes apparent, the Complainant initiated the altercation when she objected to her arrest and struggled to break free of the officers as they attempted to secure her in custody. The grounding that occurred was measured and controlled; no blows were struck by any of the officers; and, the unfortunate injury that likely occurred when the Complainant’s foot was caught between the door and an exterior step appears to have been completely accidental. On this record, I am satisfied that the force in question fell within the range of what was reasonably necessary to subdue the Complainant and effect her arrest.


In the final analysis, as I am of the view that the SO and the other officers used only legally justified force in lawfully arresting the Complainant, there are no grounds for proceeding with criminal charges in this case and the file is closed.


Date: October 16, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit