Director's Report Details

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.

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.

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 reportedly sustained by a 52-year-old woman during her arrest on September 14, 2017.

Notification of the SIU

At approximately 11:13 p.m. on September 14, 2017, the Halton Regional Police Service (HRPS) notified the SIU of a custody injury to the 52-year-old Complainant.

The HRPS reported that at approximately 2:00 p.m. on that same date, the Complainant was stopped by two HRPS officers for suspicion of driving while disqualified. During the traffic stop, the Complainant suddenly drove off and eventually made her way to the Burlington Mall, where she parked her vehicle near a Canadian Tire outlet. The two officers followed the Complainant and confronted her in the parking lot. She was arrested and grounded. She was taken to the station where she complained of pain in her left shoulder. She was subsequently taken to hospital where she was diagnosed with an avulsion fracture of her left shoulder.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

52-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 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, notes received and reviewed

On September 14, 2017, the HRPS were on the look-out for the Complainant, as she was known to be prohibited from operating a motor vehicle and was known, despite the prohibition, to be continuing to operate her mother’s motor vehicle.

At approximately 2:10 p.m., the SO and WO #3 observed the Complainant to be operating a motor vehicle in the City of Burlington and partially blocked her motor vehicle with their van. Both officers then exited their vehicle to arrest the Complainant. While WO #3 was speaking to the Complainant and demanding that she produce her driver’s licence, the Complainant drove away.

The officers followed the Complainant to the Canadian Tire store parking lot in the Burlington Mall, where they observed her to stop her motor vehicle. The officers again blocked her vehicle with their own and shouted at the Complainant that she was under arrest and to exit her vehicle. When the Complainant did not do so, and her car began to move forward, the SO reached in and forcefully pulled her from the vehicle by her left arm, following which she was placed on the ground and handcuffed.

When the Complainant later indicated that she felt pain in her left arm, she was transported to hospital and assessed.

Nature of Injuries / Treatment

The Complainant was diagnosed with having sustained an avulsion fracture (the detachment of a bone fragment that results from the pulling away of a ligament, tendon, or joint capsule) of her left shoulder.

The Scene

The scene was located in the parking lot of the Canadian Tire store located at the Burlington Mall, 777 Guelph Line, in the City of Burlington.

Video/Audio/Photographic Evidence

The SIU canvassed the area of the Canadian Tire store for video footage. There was a video camera on the Canadian Tire property but it did not cover the parking lot. There were no further cameras found on adjoining properties in the vicinity of the parking lot.

Communications Recordings

The Police Transmissions Communication Recording was obtained and reviewed.

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 HRPS

• Arrest Report of the Complainant
• Police Transmissions Communication Recording
• Event Chronology
• Notes of WO #s 1-4 and the SO
• Prisoner Custody Report for the Complainant, and
• Written Statement of WO #3

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

• Medical Records of the Complainant

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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 259 (4), Criminal Code – Operate a Motor Vehicle while disqualified

259 (4) Every offender who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from doing so, other than an offender who is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and who complies with the conditions of the program,

1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
2. is guilty of an offence punishable on summary conviction

Section 216 (1), Highway Traffic Act of Ontario – Power of Police Officer to Stop Vehicles/ Escape by Flight

216 (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a vehicle, other than a bicycle, to stop and the driver of a vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, subject to subsection (3),

1. to a fine of not less than $1, 000 and not more than $10, 000
2. to imprisonment for a term of not more than six months; or
3. to both a fine and imprisonment

(3) If a person is convicted of an offence under subsection (2) and the court is satisfied on the evidence that the person wilfully continued to avoid police when a police officer gave pursuit,

1. the person is liable to a fine of not less than $5, 000 and not more than $25, 000, instead of the fine described in clause 2 (a), and
2. the court shall make an order imprisoning the person for a term of not less than 14 days and not more than six months, instead of the term described in clause (2) (b), and
3. the court shall make an order suspending the person’s driver’s licence,
   1. for a period of five years, unless the subclause (ii) applied, or
   2. for a period of not less than 10 years, if the court is satisfied on the evidence that the person’s conduct or the pursuit resulted in the death of or bodily harm to any person

(4) An order under subclause (3) (c) (ii) may suspend the person’s driver’s licence for the remainder of the person’s life.

On September 14, 2017, the SO and WO #3 of the HRPS were both assigned to the Risk Mitigation Team (RMT), the purpose of which is to execute outstanding warrants of arrest and to keep an eye out for known repeat offenders in order to be proactive with respect to crime apprehension and prevention.

The SO and WO #3 had been provided a list of known repeat offenders for whom to keep an eye out; included in the list was the Complainant, who was a disqualified driver as a result of previous convictions for impaired driving and driving while disqualified and who was known to operate her mother’s motor vehicle.

In the course of their duties, the SO and WO #3 stationed themselves in an unmarked minivan in the area of the parking lot and parking garage of the building in which the Complainant and her mother were resident, in order to observe whether or not the Complainant was unlawfully operating a motor vehicle.

The Complainant advised that she was indeed operating her mother’s motor vehicle on the 14^th of September, while fully aware that she was legally prohibited from doing so. While driving, the Complainant indicated that she stopped at an LCBO store and purchased a bottle of wine, which she opened and from which she then drank one glass. The Complainant advised that at approximately noon, she returned to her residence.

At 2:10 p.m., both police officers observed the Complainant operating her mother’s motor vehicle and WO #3 pulled their minivan in front of the Complainant, in order to block in her vehicle, and activated the van’s emergency lighting system. WO #3 then got out of the van, holding his police badge in front of him, and the SO followed, after notifying the communication centre.

The Complainant observed a black van pull in front of her vehicle and block her, while WO #3, who was in plainclothes, exited the van and asked for her identification. The Complainant could not recall whether or not WO #3 identified himself, but she was aware that he was a police officer. The Complainant indicated she told WO #3 that she did not have any identification, following which he asked her if her driver’s licence was suspended. The Complainant did not respond, but instead drove her Kia around the black van and drove away in a panic. The Complainant indicated that she did not notice if the van had followed her, but as her panic subsided, she drove to a Canadian Tire store and parked in the parking lot, where she observed the police van pull up behind her and block her in.

The Complainant saw one of the police officers then jump out of the van and run towards her shouting words to the effect that she was to get out of the car. The Complainant knew the man was a police officer, but she just sat there and she may have reached for the door handle. The SO then opened her driver’s door and grabbed her by the left arm and the next thing that the Complainant recalled was being face down on the asphalt, screaming, with the SO on top of her with his knee pressing on her back as he pulled her left arm higher. The Complainant said she was then told that she was under arrest and she was handcuffed behind her back. The Complainant was initially taken to the police station, but then, due to pain in her shoulder, she was transported to the hospital where she was diagnosed with an avulsion fracture of her left shoulder.

WO #3 stated that he observed the Complainant staring straight ahead of her as he questioned her about her driver’s licence, following which she then drove off at a normal rate of speed, while he yelled at her to stop, but she ignored him.

The SO indicated that as he was walking around his own motor vehicle when he heard the engine of the Complainant’s motor vehicle rev, and then he saw it drive around their stationary van. The SO stated that he held out his badge and yelled, “Police, Stop!” and made eye contact with the Complainant, before she drove away. The SO then radioed for assistance and both police officers re-entered their motor vehicle and decided to track the Complainant’s vehicle, rather than pursuing it, and they de-activated their emergency lighting system and followed the Complainant to the Canadian Tire store parking lot.

At approximately 2:12 p.m., WO #3 pulled his van in front of the Complainant’s Kia, partially boxing it in, while the SO quickly jumped out and positioned himself near the driver’s door of the Complainant’s vehicle. The SO again displayed his police badge to the Complainant and yelled that she was under arrest and to get out of the car. WO #3 stated that he too ordered the Complainant to get out of her car and he observed her to be staring straight ahead and ignoring him.

The SO said that he observed the Complainant to have large and fixed pupils, her mouth was open, and she appeared to be in a state of panic. The Complainant stared at the SO and ignored their commands, as a result of which the SO opened the driver’s door while both officers continued to shout that the Complainant was under arrest and ordered her to get out of the car.

The SO observed that the Complainant still had the keys in the ignition and feared that she might drive forward and strike the police van, or reverse and strike the SO, in another attempt to evade police.

WO #3 advised that he observed the Kia begin to roll forward, while the Complainant sat inside and appeared oblivious. The SO then reached into the motor vehicle and, with his left hand, grabbed the Complainant’s left wrist while continuing to yell at her that she was under arrest and to get out of the car.

The SO observed that the Complainant immediately stiffened and leaned back in her seat when the SO took hold of her wrist, so he reached in and placed his right hand on the Complainant’s left bicep and managed to pull her out from behind the steering wheel, while WO #3 took control of her right side as she pulled away and screamed.

According to the SO, as soon as the Complainant’s feet cleared the foot well of her motor vehicle, the car started to roll forward and WO #3 reached into the car and applied the emergency brake. The SO then lowered the Complainant face first onto the pavement, while maintaining control of her left arm and, with the assistance of WO #3 who had control of her right arm, the Complainant was handcuffed behind her back, while she continued to scream and resist. WO #3 stated that no use of force was applied to the Complainant. WO #3 then placed the Complainant under arrest for driving while disqualified and failing to stop for police.

WO #3 also noted that the Complainant had an odour of alcohol on her breath and formed the opinion that she was impaired, as a result of which he demanded that she provide a breath sample as required pursuant to the Criminal Code, but she refused.

The SO subsequently searched the Complainant’s motor vehicle, where he located several full and several empty wine bottles along with a vial of pills.

When the Complainant was later taken to hospital, she was assessed as having sustained an avulsion fracture of her left shoulder, which the doctor opined was consistent with either blunt force or a pulling motion of the arm.

On all of the evidence, I find that there appears to be very little dispute between the evidence of the Complainant and that of the SO and WO #3, except as related to their individual perspectives and their thought processes.

At no time is it alleged that any force was used against the Complainant other than to remove her from her motor vehicle by pulling on her left arm and placing her face down on the asphalt and then to pull her hands behind her back for handcuffing. There are no allegations that any use of force options were resorted to, nor that either police officer ever struck, punched, kneed or kicked the Complainant. On this evidence, it is clear that the injury suffered by the Complainant, if it happened during the interaction with police, occurred while the SO was removing her from the vehicle by pulling her out from behind the steering wheel by her left arm, when she refused to exit voluntarily.

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, on the admission of the Complainant herself, and based on the information in the possession of police at the time, it is clear that police had reasonable grounds to believe that the Complainant was operating a motor vehicle while she was disqualified from doing so contrary to section 259 (4) of the Criminal Code.

Furthermore, once the Complainant fled from the police in her motor vehicle, they also had reasonable grounds to arrest her for failing to stop for police contrary to 216(1) of the Highway Traffic Act. As such, the arrest and apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in removing the Complainant from her motor vehicle, I have taken the following factors into account in assessing whether or not I have reasonable grounds to believe that an excessive use of force was applied by the SO:

• The Complainant had already once evaded police by driving off after police had partially blocked her vehicle in, and while WO #3 was actively speaking to the Complainant about her driver’s licence
• When police blocked the Complainant’s vehicle in a second time at the Canadian Tire store parking lot, the Complainant refused to acknowledge that she was under arrest and again refused to exit her vehicle;
• The Complainant still had the means in her possession to again set her motor vehicle in motion and drive off in order to evade police
• As long as the Complainant remained in the motor vehicle, the risk continued that she might either strike the police vehicle and/or one of the police officers
• The Complainant presented with dilated pupils, her mouth was hanging open, she had an odour of alcohol on her breath, and she appeared oblivious to the fact that her motor vehicle was rolling forward and was putting the police officers at risk, and
• The Complainant refused to exit her vehicle despite numerous shouted commands by both police officers to do so

Based on the aforementioned evidence, I find that the actions of the SO in pulling the Complainant from her vehicle were justified in the circumstances and that he used no more force than necessary to remove the Complainant, who had already failed to stop for police and continued to pose a danger to other motorists as long as she continued to sit behind the steering wheel of her motor vehicle with the keys in her possession and the ability to start her vehicle up and drive away.

The danger was further highlighted when both police officers observed the Complainant’s vehicle begin to roll forward towards the police vehicle and WO #3, putting both at risk. In light of the fact that the Complainant had already once fled from police, that she was ignoring commands to exit her vehicle and failing to acknowledge that she was under arrest, and that she was resisting her removal from the driver’s seat, it was a reasonable concern that the Complainant could again set her vehicle in motion in order to evade police, making it a priority to remove her from her vehicle as quickly as possible.

While I find that the Complainant in all likelihood sustained the fracture to her shoulder when she resisted and had to be forcefully removed from the driver’s seat of her car, I cannot find that to have been an excessive use of force 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]

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 the removal of the Complainant from her motor vehicle fell within the range of what was reasonably necessary in the circumstances to affect her lawful detention and to remove the risk that she continued to pose as long as she was seated in the driver’s seat.

Furthermore, I accept that the injury to the Complainant was unforeseeable in the circumstances and that the SO was under significant pressure to remove the Complainant from behind the steering wheel as quickly as possible and before she either intentionally drove, or inadvertently rammed, into either the SO or WO #3, or their police vehicle.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention, and the manner in which it was carried out, were lawful notwithstanding the injury which she sustained. I am therefore satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: July 12, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit