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 sustained by a 26-year-old woman during her arrest on February 21, 2017.

Notification of the SIU

On February 21, 2017 at 8:40 p.m., the Toronto Police Service (TPS) notified the SIU of the custody injury to the Complainant.

TPS reported that on February 21, 2017, at 11:00 a.m., TPS police officers responded to a residence for a report of a break and enter in progress. The police officers found the Complainant in the basement of the home. She was arrested after a short struggle and taken to a TPS division. The Complainant complained of a sore nose and was taken to the hospital and diagnosed with a minimally displaced nasal bone fracture.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators (FIS) assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scene associated with the incident by way of notes and photography.

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Not interviewed, but notes received and reviewed

Additionally, the notes from one other, non-designated officer were received and reviewed.

Subject officers

SO Interviewed, and notes received and reviewed.

During the morning of February 21, 2017, the Complainant broke into a residence in Toronto through a rear basement window. At one point while she was in the residence, the Complainant came up the basement stairs to the main floor, triggering a surveillance camera set up beside the stairway. This action caused the home security system to electronically notify CW #1 that there was someone inside the residence, and provided a live feed from the camera on his cell phone. CW #1 called 911 to report the intruder, and remained on the phone, updating the 911 dispatcher with what he could see on his cell phone, while police officers were dispatched to his home.

When WO #1 arrived at the address, he found the screen on one of the rear basement windows had been removed. Several other officers, including the SO, arrived.

WO #1 broke the glass in the side door, and he and WO #2 entered the house and went to the basement where they were joined by the SO. WO #2 located the Complainant hiding in a closet in the crowded storage room. WO #2 ordered the Complainant out of the closet but she did not move. He grabbed a hold of her jacket, pulled her out of the closet and handed her over to the SO, in the course of which the Complainant landed on the ground. The Complainant struggled when the officers attempted to handcuff her, but they eventually were able to pull her hands from underneath her body and complete the arrest.

When the SO was bringing the Complainant up the basement stairs to his cruiser, she fell, face first, onto the stairs. The SO, who was still holding onto the Complainant by her arms, stumbled as well, but pulled the Complainant up from the floor and out to his cruiser.

The Complainant was taken to a TPS division, and later transported to the hospital where she was diagnosed with a fractured nose.

The scene

The residence was a single detached family residence. The basement window at the northeast corner of the residence was intact but a small screen from one of the two sliding windows was on the ground and slightly damaged.

A rear door into the residence was located on the west side of the residence behind the garage. The back door opened to a small landing. There are several stairs leading straight up to the main living area of the home. Immediately to the left (north), the stairs lead down to the basement area. On the window ledge of the west side window adjacent to this set of stairs was a small security camera. It was positioned to activate and record anyone going to the basement area.

The basement area contains several rooms, including a family room, a storage room, a bathroom, a laundry room, and a workshop area. The workshop area in the southeast corner of the basement corresponded with the insecure window and damaged screen on the outside of the residence.

The Complainant had been arrested in the storage room which was located in the centre of the basement along the east wall, between the family room at the north end and the workshop at the south end of the basement. This room was carpeted and was cluttered with many boxes. A couple of boxes were slightly tipped over. There were two windows in this room with both being shut and secure. The windows had plastic window blinds covering on the inside. The exterior of these windows were covered with plastic window well covers. The carpeted area of the storage room was examined for any signs of a red blood-like substance with negative results.

It was established that the house had been entered through a basement window to a work/hobby room which was full of tools and handiwork equipment. The window in question was quite narrow and the room could only be entered by someone either going in head or feet first. Secured to the wall below the window inside the room was some shelving stacked with tools and handiwork equipment. This shelf had been knocked off the wall and was consistent with someone having used the shelf as a support upon entry. The shelf had been secured back onto the wall, by the home owner, prior to the arrival of FIS investigators.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. CW #2 provided photos of the scene. CW #1 provided closed circuit television (CCTV) video recordings taken by the camera mounted beside the rear, internal stairs leading into the basement.

Summary of CCTV footage

10:35:37 a.m.

• A female wearing a blue jacket with fur on the hood, black gloves, blue jeans, blue running shoes, and with a black bag strapped across her right shoulder and hanging against her left hip [now known to have been the Complainant] was recorded walking up the stairs from the basement. She walks past the rear side door, turns left, walks up a flight of stairs to the residence main floor, and is heard to say, “Police….Police”

10:48:01 a.m.

• The Complainant, who now had a beige coloured scarf over her head, opens the rear side door of the residence. She looks outside, closes, and locks the door from inside, and runs back down the stairs into the basement. A man’s voice can be heard from outside the residence and the silhouette of a person is recorded walking up to the rear side door

10:50:00 a.m.

• A uniform TPS police officer [now known to have been WO #1] enters the residence through the rear side door. WO #1, who has a baton in his left hand, goes down the stairs to the basement. He is followed down to the basement by two other TPS uniform police officers [now known to have been WO #2 and the SO]. The SO has his firearm in his right hand. The rear side door of the residence is left open and the glass in the door is broken

10:54:06 a.m.

• The camera is activated as the Complainant was being brought up the basement stairs by the SO. The Complainant, who was handcuffed with her hands behind her back, falls forward onto her face on the stairs. A loud thud can be heard as she hits the floor. The SO was holding her arms behind her back, stumbles forward. The SO pulls the Complainant up from the stairs, into an upright position, and pushes her out the rear side door of the residence. The beige coloured scarf the Complainant had around her head is dragging along the floor on her right side and the SO appears to step on the scarf with his right foot

TPS In-Car Camera System (ICCS) footage

SIU investigators also obtained and reviewed the ICCS for each TPS police cruiser which attended the residence. The first police cruiser to arrive was a Ford Taurus police cruiser operated by WO #1. The footage was consistent with the accounts given by the SO and various witness officers.

Communications recordings

Summary of 911 communications recordings

CW #1 called 911 and reported there was an unauthorized person in his house. He told the 911 operator he had security cameras in his house and that he saw who he believed to be a woman [now known to have been the Complainant], with long brown hair, wearing a blue coat with a fur collar and gloves and carrying a black bag in the house.

CW #1 accessed live video from his security cameras on his cell phone and remained speaking with the 911 operator on speaker. The 911 operator told CW #1 that police officers and a Canine (K9) unit were on the way.

CW #1 was watching a live feed from the cameras to his cell phone and reported hearing the Complainant in the house. He reported that the house front door was still closed. He then reported seeing the Complainant inside the house at the rear side door. She looked out the door, as if she was going to leave the house, and then went back down into the basement. The 911 operator told CW #1 that the police officers outside the house had seen the Complainant slam the rear side door shut, and they were asking for his permission to force his side rear door in.

CW #1 replied he had seen the Complainant lock the rear side door and he gave permission for the police officers to force it in. The 911 operator asked CW #1 to confirm if the Complainant was still in the basement. He replied he believed that she was, as he was watching the camera live and had not seen her come up from the basement. The 911 operator told CW #1 the police officers had found the Complainant in the basement.

Summary of radio communications recordings

Radio dispatcher:

• It’s a woman with long brown hair, a bag, and blue coat. The blue coat is with fur lined hood as per the text. Black bag. Appears to be a woman, the caller is not 100% sure, wearing black gloves. The caller advises he has cameras that are motion sensored and the cameras for the entrances have not been set off so she is most likely still inside and has not left through one of the front or rear entrances. The caller has a dog which was in a kennel in the dining room

WO #1:

• Yeah woman still in the house, she slammed the back door, she’s gone back inside

Radio dispatcher:

• An update from the owner, said they have gone into the basement, again the woman has gone into the basement

Unknown unit:

• (Shouting) Got her in the basement

Radio dispatcher:

• 10-4 one in custody at 1054 a.m.….and any unit on scene advise if an ambulance is required

The SO:

• Negative no ambulance required dispatch

Materials obtained from Police Service

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

• Event Details Report
• General Occurrence
• Initial Injury Report
• Injury Report
• Notes of WO #1, WO #2, WO #3 and WO #4
• Notes of a non-designated officer
• Prisoner Record
• Recognizance of Bail – the Complainant
• Automated Dispatch System (ADS) Summary Sheet - Summary of Conversation
• Training Record (Use of Force) – the SO
• TPS Procedure - Use of Force (with Appendix A and B)
• Communications recordings
• ICCS from attending cruisers
• TPS scene photos, and
• Station booking videos

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 348(1), Criminal Code - Breaking and entering with intent, committing offence or breaking out

348 (1) Every one who

1. breaks and enters a place with intent to commit an indictable offence therein
2. breaks and enters a place and commits an indictable offence therein, or
3. breaks out of a place after
   1. committing an indictable offence therein, or
   2. entering the place with intent to commit an indictable offence therein
4. is guilty
5. if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
6. if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction

On February 21^st, 2017, CW #1 was notified via cell phone security alerts sent from surveillance cameras mounted at his home that an unidentified person was in his home. CW #1 then contacted 911 and a number of TPS police officers were dispatched to CW #1’s residence in the City of Toronto. Police accessed the home and located the Complainant hiding in the basement under a pile of clothing and other items. The Complainant was removed from where she was hiding, put down onto the floor and handcuffed. She was then removed from the residence and later taken to the hospital where she was diagnosed as having a fractured nose.

During the course of this investigation, three civilian witnesses, including the Complainant, and four police witnesses, including the SO, were interviewed. Additionally, SIU investigators had access to the CCTV footage from the interior surveillance cameras from the residence, as well as the communications recordings, the ICCS videos, the booking videos and the memorandum notes of all officers who attended. There were unfortunately no civilian witnesses present to observe the arrest of the Complainant.

At approximately 10:35 a.m., CW #1 received notifications via his cell phone that an intruder was inside his home and he called 911. CW #1 remained online with the 911 operator while police attended his residence and updated them as to the location of the intruder inside his home. WO #1 was the first police officer to arrive on scene and was able to locate the point of entry as a basement window which he observed to have had the screen removed. Later investigation by SIU forensic investigators determined that this window was of such a size that it would only allow someone to enter head or feet first. It was also discovered that a shelf below the window appeared to have been knocked off the wall which was found to be consistent with the shelf having been used to support the weight of the intruder as he or she was entering and possibly collapsing.

The intruder inside the home, the Complainant, had no recollection as to how she came to be inside CW #1’s home, how she had gained entry or what she was doing there. This seems inconsistent with the presence of house breaking tools found in her possession upon arrest, and stolen property from the residence, including cash and jewelry, found in her bag as well as the surveillance video which shows the Complainant going upstairs from the basement while covering her face with her shawl and announcing “police, police”. The Complainant’s position in her interview regarding her response to seeing the police outside the home also appears inconsistent with the surveillance video, which shows the Complainant coming down the stairs, opening the side door and appearing to be about to leave the residence when she looks out, apparently sees and hears police presence, and then immediately slams and locks the door and runs downstairs.

The Complainant’s statement regarding the behaviour of the officers once inside the home is also contradicted by the video. For instance, it is alleged that a number of officers were angrily swearing and cursing because of their inability to find the Complainant. However, upon reviewing the surveillance video many times, which had audio, I could only make out one officer raising his voice and swearing. This appeared to be WO #2, who was the officer who located the Complainant hiding under the objects. WO #2 is heard to raise his voice and say “You … fucking … Get over here now!” I was unable to hear any other cursing by any other officer and no further cursing after this initial epithet by WO #2. The Complainant alleges that in the basement, one of the police officers grabbed her from behind by her back and hands and threw her face down to the floor violently and held her down. The Complainant was unable to describe which part of her body made contact with the floor first. She also did not know how many times the police hit her head on the floor.

WO #2 advised that he located the Complainant in the far left corner of the room in the basement and that she was sitting on something, possibly a box, with her back towards the wall and hunched over to make herself as small as possible. WO #2 then alerted other police officers that he had located the intruder and advised the Complainant that he could see her. WO #2 told the Complainant several times to get up, but she neither responded nor moved. WO #2 advised that he had to climb over a number of items in order to get hold of the Complainant by her jacket, whereupon he used both hands and dragged her out backwards and passed her along to the SO. WO #2 openly conceded that he did not move the Complainant gracefully as he had to get her out and move her around him while he was off balance, due to the many items around him and the Complainant, preventing him from being able to move with her as he moved her. WO #2 advised that in moving the Complainant, she was already on her way down to the ground when he physically handed her over to the SO, who then brought her the rest of the way down to the floor whereupon she placed her hands underneath her body. The SO advised that he heard WO #2 shout words to the effect of “get out here” and, upon entering the laundry room, he observed WO #2 grab the Complainant and pull her out from underneath some clothing and into the open area of the room. The SO believed that the Complainant may have already been lying face down on the floor with her hands crossed underneath her chest when he joined WO #2 in attempting to move her hands behind her back in order to handcuff her. Both WO #2 and the SO described the Complainant as not actively resisting but refusing to comply with commands to give up her hands. This is also consistent with the evidence of WO #1 and WO #3.

WO #2 advised that he did not see how the SO brought the Complainant to the floor as he was moving over the items strewn all over the room and his footing was all over the place. He advised that he next observed the Complainant on the floor with WO #3 on her right side and the SO on her left, with each telling the Complainant to give them her hands which she kept against her chest and refused to give up. WO #2 then got out of the clutter and approached the Complainant and grabbed and twisted her foot as a pain compliance maneuver meant to get her to give up her hands, but this was ineffective. WO #2 advised that no use of force options were deployed against the Complainant - the officers only using the strength in their hands to pull her hands out from underneath her body. WO #2 advised that at no point was the Complainant’s face pulled up and slammed into the ground.

WO #3 also advised that at no time did any police officer slam the Complainant’s head against the ground nor use any force against her. WO #3 advised that the Complainant did finally release one of her hands and he grabbed her right wrist and put it behind her back while the SO got her other hand out and applied the handcuffs.

WO #1, who advised that he was right by the Complainant’s head although not involved in trying to restrain her, indicated that he did not observe the SO deliver any punches, strikes or knee strikes to the Complainant, nor did he observe the SO slam her face into the floor. WO #1 advised that this would not have been possible, as he was right by the Complainant’s head and he would have been struck if that had occurred.

The SO advised that he then took the Complainant from the basement and placed her into his cruiser and transported her to the TPS division. Once in the cruiser, the SO advised that he observed the Complainant to have some redness to her right cheek and a swollen lip. While the SO did not recall falling on the stairs with the Complainant, the surveillance video clearly shows the SO walking up the stairs behind the Complainant, who has her hands cuffed behind her back, and that at one point the Complainant falls and hits her face against the stairs, whereupon the SO also stumbles forward. The SO then straddles her and picks her up by the inside of her arms and continues up the stairs with her. While continuing up the stairs and out of the side door, the Complainant’s long shawl is dragging on the floor and the SO appears to step on it.

On the basis of the evidence provided by the Complainant, I can place little credence in her version of events for a number of reasons. Firstly, the Complainant advised that she had no knowledge as to how she came to be in the residence, why she was there or what she was doing there, despite the fact that she came armed with burglary tools and was in possession of stolen property from the home. Moreover, the Complainant’s alleged mental state at the time, and its impact on her behaviour, is also questionable and thus impacts the reliability of her account. The Complainant has a history of psychosis, schizophrenia[1], which is why it is alleged she did not know what was going on inside the house. If the Complainant was in a psychotic state at the time that she entered the home up until and including her interaction with police, I can only find that her version of events would be greatly influenced by that same psychotic state which would have prevented her from having the ability to accurately either recognize or recall the events which led to her injury. In the alternative, if the Complainant’s statement is simply self-serving and meant to mislead SIU investigators as to what actually occurred, that would severely damage her credibility with respect to her version of events overall and make her evidence equally unreliable. A third option, of course, is a combination of the first two - that she was both in an altered state of mind due to her mental health issues and she fabricated and pieced together a version of events to make up for her psychotic state. Whatever the case, on any of these scenarios, I am unable to safely rely on the evidence provided by the Complainant.

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 statement of CW #1 and CW #2 that the Complainant was in their home without their consent and that she had broken into their home. On that information, which had been relayed to police from the 911 call, combined with finding the Complainant in the home upon their arrival and in possession of property stolen from the home, police had more than reasonable grounds to believe that the Complainant was in the process of committing the offence of break, enter and theft into a dwelling house contrary to s. 348(1)(d) of the Criminal Code. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, I find that the only force used by officers to subdue and handcuff the Complainant was the pain compliance technique WO #2 used on the Complainant’s foot to attempt to get her to give up her hands, and the efforts by the SO and WO #3 to physically bring the Complainant’s hands out from under her body to handcuff her. I find that this behavior was more than justified in the circumstances and that they used no more force than necessary to subdue the Complainant.

I find, however, that there are a number of other scenarios which may have led to the injuries suffered by the Complainant which were not in an effort to subdue or handcuff her. Firstly, it is possible that the Complainant, when she entered through the basement window and supported her weight on the shelf which ultimately collapsed, may have injured herself in doing so. However, if the Complainant’s injuries were caused by police, either when WO #2 pulled the Complainant out from where she was hiding or when the SO fell with her on the stairs and she struck her face, I still do not find either of these scenarios to involve an excessive use of force.

Dealing first with WO #2, whose evidence indicated that he had to pull the Complainant out from where she was hiding, in a manner which he described as “not gracefully”, and had to drag her backwards from her hiding spot, after climbing over a number of items that obstructed his path, and pass her backwards to the SO, while he was off balance and was unable to move with the Complainant, I find that this is very possibly how the Complainant came to be injured. I come to this conclusion on the basis that WO #2 indicated that the Complainant was already on her way down to the ground when he passed her over to the SO and that he did not see how the SO put her on the ground, while the SO advised that he never put the Complainant on the ground but that he believed that WO #2 had already done so and that the Complainant was already down when he first saw her. On this evidence, I find that it is very possible that WO #2 may have believed he was handing the Complainant backwards to the SO but that the SO never actually received the Complainant, and that she then went to the floor on her own, striking her face. I find that this would be consistent with the Complainant’s evidence that she was grabbed from behind by her back and hands and thrown violently face down onto the floor where she was held down by the officers.

I find it as consistent, however, as depicted in the video, that the Complainant suffered her injury when she fell face first onto the steps leading up to the side door while she was handcuffed behind her back and unable to reach out a hand to prevent her face striking the edge of the stairs.

While I find that each of these scenarios is equally consistent with the nature of the injuries suffered by the Complainant, I still cannot find that either scenario amounted to an excessive use of force. In each case, the Complainant’s fall was unintentional and as a result of circumstances beyond the officers’ control. The first was caused by WO #2 being off balance and having to grab the Complainant and move her backwards, while the second was likely as a result of the Complainant either tripping on her own and falling on the steps or of the SO tripping over her shawl and they both fell forward together, with the Complainant smashing her face on the step.

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.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s injuries were unintentional and not as a result of an excessive use of force by either WO #2 or the SO, but the result of an unfortunate accident occurring during an unpredictable and difficult situation. 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: January 15, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] For which the Complainant takes medications, although she indicated she did not take medications on the day in question. [Back to text]