Cruiser and motorbikeRunnersCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 17-TCI-228

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 a serious injury reportedly sustained by a 32-year-old woman during her arrest on August 23, 2017.

The Investigation

Notification of the SIU

At approximately 11:30 p.m. on August 23, 2017, the Toronto Police Service (TPS) notified the SIU of a custody injury sustained by the Complainant on that same date at approximately 6:00 p.m.

The Team

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

Complainant

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 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 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed
WO #6 Interviewed, notes received and reviewed



Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Incident Narrative

At approximately 6:00 p.m. on August 23, 2017, the Complainant was observed by the Subject Officer (SO) selling drugs on the north side of Queen Street East, just east of Jarvis Street, in front of the Moss Park Armouries in the City of Toronto. The SO, a uniformed bicycle police officer, arrested the Complainant. The Complainant admitted she was high on drugs at the time and she became agitated and thrashed around while handcuffed with both hands behind her back. She was then transported to the police station, after kicking out the rear window of a police cruiser, and she was paraded in front of Witness Officer (WO) #4. A level three search (strip search) was performed on the Complainant by WO #5 and WO #6, two female police officers, who observed what appeared to be a piece of cocaine in the Complainant’s mouth. The Complainant admitted that it was cocaine and she swallowed it, following which she was taken to hospital.

Nature of Injuries / Treatment

Upon arrival at hospital, the Complainant indicated that she had pain in her right wrist and x-rays were ordered which revealed that she had a small fragment of bone which projected over the dorsal aspect of the carpal bones suspicious for an acute triquetral fracture.

Evidence

The Scene

This was a scheduled response and the scene was not held. The scene was located between the north sidewalk of Queen Street East and the south fence of Moss Park Armouries, on the north side of Queen Street, east of Jarvis Street, in the City of Toronto.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Booking Video

The booking video started on August 23, 2017 at 6:41 p.m., with the Complainant and a police officer [now known to be the SO] in the sally port. The Complainant was handcuffed with her hands behind her back. The Complainant was taken to a desk in the booking hall and the SO explained the charges to the booking sergeant [now known to be WO #4].

WO #4 asked the Complainant a number of questions and she responded that she was not injured. The Complainant did not indicate that she had pain in her right wrist. She was taken by two female police officers [now known to be WO #5 and WO #6] to another area for a level three search.

At 6:50 p.m., the Complainant was returned from the search area. One of the police officers reported to WO #4 that she had observed the Complainant ingest a piece of crack cocaine. The Complainant admitted that it was cocaine that she had swallowed. WO #4 advised that the Complainant must be taken to the hospital. The Complainant was taken out of the booking hall and at 7:12 p.m., she returned to the booking hall with her hands handcuffed in front of her body. Paramedics were present and the handcuffs were removed and exchanged for another set of handcuffs. The Complainant complained that the handcuffs hurt and the police officer appeared to adjust them on her wrists. At 7:37 p.m., she was taken to the sally port and, at 7:40 p.m., the ambulance left the police station.

On August 23, 2017, at 10:50 p.m., the Complainant returned to the booking hall and she had a hard cast on her right wrist. The police officer explained that while at hospital, the Complainant was found to have a small fracture in her right wrist.

Communications Recordings

At 6:02:47 p.m., the SO is heard to request a check on the Complainant who was at the corner of Queen Street and Jarvis Street. The dispatcher responded with the Complainant’s details.

At 6:08:41 p.m., the SO requested a unit for transportation of a prisoner and at 6:08:49 p.m., a cruiser with WO #1 and WO #2 was dispatched to assist.

At 6:09 p.m., the SO advised he was being swarmed. Other units were dispatched and at 6:09:40 p.m., the SO was asked if an ambulance was required and he replied, “No.” A request was put out for a unit with shackles. WO #1 and WO #2 transported the Complainant to the police station.

Materials obtained from Police Service

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

  • Booking Hall Video;
  • Police Transmissions Communications Recording;
  • Event Details Report;
  • General Occurrence Report;
  • Computer Aided Dispatch (CAD) Report;
  • Notes of WO #s 1-6;
  • Summary of Conversation; and
  • Training Record of the SO.

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

  • Ambulance Call Report;
  • EMS Incident Report; and
  • Medical Records of the Complainant relating to this incident.

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 August 23, 2017, at approximately 6:00 p.m., the Complainant was arrested in the area of Queen Street East and Jarvis Street in the City of Toronto by the SO, of the Toronto Police Service (TPS), for trafficking in cocaine contrary to the Controlled Drugs and Substances Act (CDSA). Following her arrest, the Complainant was taken to hospital for ingesting cocaine and while there, she complained of pain in her right wrist. An x-ray revealed ‘a small fragment of bone projected over the dorsal aspect of the carpal bones (on the side of the wrist adjacent to the pinky finger) suspicious for an acute triquetral (at the base of the wrist on the side of the pinky finger) fracture’. According to various medical websites, triquetral fractures occur in one of two ways: a fall onto an outstretched hand (FOOSH), or direct trauma from a hard object on the backside of the wrist, and are most common in sports activities (snowboarding or skateboarding) or car accidents [1].

The Complainant alleged that on August 23, 2017, she was arrested by the SO for trafficking in narcotics and she was told to stand up, which she did, whereupon the SO pulled her arms behind her back and handcuffed her wrists very tightly behind her back. The Complainant then sat with her back to a fence and she became upset over what she believed was an unjust arrest, following which she became loud and verbally abusive. She described the SO as pulling on her handcuffs to tip her forward onto her stomach onto the ground, whereupon he applied pressure to her back with his knee. The Complainant advised that she felt pain in her wrist and thought that the handcuffs were too tight. She was then transported to the station where she advised the booking officer that her right wrist hurt. She advised that a police officer saw something white in her mouth and thought that she may have ingested more drugs and she was taken to hospital. Once at hospital, her right wrist was x-rayed and found to have a fracture and was casted.

The booking video from the Complainant’s attendance at the station does not support her assertion that she told the booking officer that her right wrist hurt; on the contrary, when asked if she had any injuries, she responded in the negative and made no complaints of pain or injury.

The notes of the paramedics who transported the Complainant to hospital indicate that:

Pt (patient) admits to ingesting crack cocaine … pt states she feels fine, no other complaints to note.

In their interviews, both paramedics confirmed that the Complainant was handcuffed during her transport to hospital and that she admitted to having swallowed a piece of crack cocaine, but made no complaint of injury or pain.

The police radio communications recording reveals that:

At 6:02:47 p.m., the SO advised that he had made an arrest at the corner of Queen and Jarvis Streets and asked to run a check on the Complainant. The Complainant is heard to be screaming in the background and the communications officer asked if the officer required any assistance; and
At 6:04:41 p.m., the SO requested a unit attend to transport a prisoner. The Complainant is still heard to be screaming in the background and the SO is again asked if he required assistance, to which he then responded that he was getting swarmed and was being surrounded. Other units were then dispatched to the area.

Civilian Witness (CW) #1, who was in the area at the time, observed the Complainant seated with her back to a fence with her hands handcuffed behind her back. The Complainant was in the presence of the SO. CW #1 indicated that the Complainant showed her hands to CW #1, and she observed them to be purple in colour. The Complainant then became distraught and hit her own head against the metal fence. The SO pulled on the handcuffs between the Complainant’s wrists, lifted her arms, and tipped her forward onto her stomach on the ground, whereupon the SO used his knee as leverage to get the Complainant forward because she was resisting his efforts to push her onto her stomach. CW #1 described the Complainant as moaning and crying as the SO knelt with one knee on her back to keep her from moving about. Once seated in the police cruiser, the Complainant leaned backwards across the seat and kicked the rear door window out of its track.

CW #3 stated that he observed the SO trying to restrain the Complainant on the ground while the Complainant was verbally abusive towards him. CW #3 observed that the Complainant was handcuffed behind her back and she was seated on the ground near a fence, when she suddenly struck the left side of her head against the metal fence. The SO then immediately “Yanked her quite forcefully” by her upper arm to get her away from the fence, as he kept watch on both the gathering crowd and the Complainant. CW #3 estimated the level of force used by the SO as a seven on a scale of one to ten, and described it as a firm sudden jolt. The SO then positioned the Complainant on her stomach and kept control of her by kneeling on her back with his right knee. CW #3 observed that several agitated persons had gathered in the area and he described them as an unsupportive crowd, and that the SO looked concerned and yelled at them forcefully to stay back. The SO then retrieved a small, black canister and held it out, which CW #3 assumed was mace.

CW #2 described hearing the Complainant scream and observed her to be sitting cross-legged on the ground in the presence of the SO. CW #2 observed the Complainant to have her hands handcuffed behind her back and saw the SO pull the Complainant forward so that she was on her stomach, whereupon the Complainant cried out in pain. The SO had a can of pepper spray in one hand, while he held the Complainant down on the ground with his other hand.

Although the SO did not make himself available to be interviewed, he did provide his notes to SIU investigators for review. In his notes, the SO indicated that he arrested the Complainant after observing what he believed was a drug transaction in which she was seen to be selling narcotics. Upon her arrest, the Complainant denied having any drugs and offered to shake her bra in order to confirm that fact; in doing so, a small package of cocaine fell to the ground along with a $10 bill and a quantity of change.

When the SO handcuffed the Complainant, she became agitated and he had to push her against a fence to complete the handcuffing. He described the push as involving very little force. The Complainant then asked for the return of her money, and when the SO refused, she began to cry and scream and then got to her knees and struck her face on the ground several times. The SO told her to stop, at which point she then crawled on her knees to the fence and started to smash her head against it. This is confirmed by the evidence of CW #1 and CW #3. The SO advised that he then took physical control of the Complainant to prevent her from injuring herself, and he turned her away from the fence and placed her face down on the grass. This is also confirmed by CW #1 and CW #3, as well as CW #2.

The SO described in his notes a number of people started to surround him, and he felt that they might try to free the Complainant, so he removed his pepper spray in preparation for any assault upon himself and called for assistance. This is confirmed as having been observed by CW #3 and CW #2, and is heard on the police communications recording. Once the Complainant was placed in a police cruiser for transport, she almost immediately kicked the rear window out, which was further confirmed by CW #1.

The SO indicated in his notes that the doctor at the hospital indicated to him that an x-ray of the Complainant’s right wrist showed a small fracture, but the doctor was uncertain whether this was a new injury or an older previous injury. The SO in his notes indicated that he was unable to explain how this injury might have occurred during his interaction with the Complainant.

All of the police officers who had contact with the Complainant at the police station were consistent in that all indicated that the Complainant showed no signs of limited mobility in her right arm or wrist, nor did she favour that arm. She was not observed to have any injury, and she made no complaint of any injury. In fact, she specifically denied that she had any injury when asked.

On review of all of the evidence, I find little dispute as to the facts as set out by the Complainant, the observations of the CW’s, and the notes of the SO. While the Complainant never actually specified how her injury was caused, she appeared to primarily take issue with the fact that she believed the handcuffs were too tight. It appears evident that tight handcuffs could not have been the source of her injury.

The Complainant also described the SO pulling on her handcuffs to tip her forward onto her stomach on the ground, whereupon he applied pressure to her back with his knee, and the Complainant felt pain in her wrist and thought that the handcuffs were too tight. Based on the evidence of CW #1, CW #3, and CW #2, and as is consistent with the notes of the SO, the SO appears to have taken this action in order to move the Complainant away from the fence where she appeared intent on causing injury to herself by striking the fence with her head.

The actions of the SO are described variably by the three CW’s as follows:

The SO pulled on the handcuffs between the Complainant’s wrists, lifted her arms, and then tipped her forward onto her stomach on the ground, whereupon the SO used his knee as leverage to get the Complainant forward, because she was resisting his efforts to push her onto her stomach, and he then knelt with one knee on her back to keep her from moving about (CW #1);

Immediately following her striking her face against the fence, the SO “Yanked her quite forcefully” by her upper arm to get her away from the fence as he kept watch on both the gathering crowd and the Complainant. CW #3 estimated the level of force used by the SO as a seven on a scale of one to ten and described it as a firm sudden jolt. The SO then positioned the Complainant on her stomach and kept control of her by kneeling on her back with his right knee (CW #3); and

The Complainant had her hands cuffed behind her back and the SO pulled the Complainant forward so that she was on her stomach, whereupon the Complainant cried out in pain (CW #2).

Despite the varying descriptions of how the SO got the Complainant onto her stomach and away from the fence so she could not injure herself, none appear to correlate to the type of mechanism required to cause the injury sustained by the Complainant. On this evidence, I find that I am unable to determine how, or even if, the Complainant received her injury during her interaction with the SO. The Complainant’s lack of complaint to either the booking officer or the paramedics, the fact that neither swelling nor any injury was observed to the Complainant’s wrist, nor did anyone observe the Complainant exhibiting any signs that she was in pain or favouring her right arm or hand, would appear to support the hypothesis that this injury may well have been pre-existing and that the Complainant experienced pain from this pre-existing injury when the handcuffs were applied. On the basis, however, that the SO did use some force in his dealings with the Complainant, I will address the question of whether or not his actions amounted to an excessive use of force.

Pursuant to section 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 Complainant’s apprehension, it is clear from the notes of the SO of his observations of a hand to hand drug transaction (a term which is used to describe cash which is concealed in the palm of the first person’s hand being exchanged with drugs that are secreted in the palm of the second person’s hand) between the Complainant and an unidentified male, that the SO had reasonable grounds to form the belief that the Complainant was trafficking in a narcotic.

When the Complainant offered to disprove that she was in possession of any narcotic and shook her upper body to dislodge whatever was in her bra, it resulted in both cash and a baggie of what appeared to be cocaine falling onto the ground. Thus, the SO’s grounds to arrest were reinforced. As such, the arrest and apprehension of the Complainant were legally justified in the circumstances.

On all of the evidence, I am unconvinced that the Complainant’s complaint about her handcuffs being too tight was the possible source of her injury, as it does not fall within the possible mechanism for a triquetral fracture. While it is possible, however, although unlikely, that the Complainant may have sustained her injury when the SO “Yanked her quite forcefully” by her upper arm to get her away from the fence, I find that pursuant to section 25(1) of the Criminal Code, this was a use of force that was no more than was reasonably necessary in the execution of his lawful duties which includes the duty to prevent the Complainant from injuring herself.

In coming to this conclusion, I have considered 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 Complainant was loudly and dramatically screaming her innocence and was resisting the SO. As a result, a crowd of ‘unsatisfied’ and apparently hostile onlookers was forming despite the fact that other than handcuffing the Complainant, the only use of force employed by the SO was to pull the Complainant away from the fence where she was attempting to injure herself. Thereafter, the SO was put in the position of trying to maintain control of the Complainant while simultaneously keeping the crowd at bay by holding out his pepper spray.

In these circumstances, I accept that the SO was in no position to measure the exact amount of force he used and if there was an injury caused, which is by no means definite, the SO was acting under extreme pressure and in the best interests of the Complainant while attempting at the same time to preserve his own safety from the gathering hostile crowd. On this fact scenario, I have no hesitation in accepting that the force used by the SO to ensure the safety of the Complainant, while maintaining control over her, was no more than was reasonably necessary in the circumstances. As such, I am satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and that there are no grounds to believe he committed a criminal offence, and no charges will issue.


Date: June 25, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) Source: epainassist.com; handandwristinstitute.com; handtoelbow.com/fractures-wrist [Back to text]