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 an allegation of a serious injury sustained by a 52-year-old woman during her apprehension under the Mental Health Act (MHA) on November 25, 2016.

Notification of the SIU

On February 28, 2017, the Complainant contacted the SIU to report that on November 25, 2016 her right elbow was fractured when she was arrested by Toronto Police Service (TPS) officers.

The Complainant reported that on November 25, 2016, she was harassed and unfounded complaints were made against her by an unknown person. She went to the City of Toronto Employment and Social Services (TESS) office at 55 John Street for advice. After she left the TESS office, she was approached by TPS officers on the northwest corner of John Street and King Street. The police officers demanded that she speak to them, but she refused. She was apprehended on a Form 1[1] under the authority of the MHA and transported to the Centre for Addiction and Mental Health (CAMH). In December 2016, the Complainant left CAMH and went to a hospital in Kingston, Ontario. She was examined by an attending physician and diagnosed with a fractured right elbow.

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

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed.

During the afternoon of November 25, 2016, the Complainant was at the TESS office at Metro Hall in Toronto. Security from the TESS office called 911 as the Complainant was causing a disturbance and would not leave the building. Moments later the Complainant also called the police because she was upset at the TESS office employees. The Complainant indicated that there would be a life or death situation if the police did not attend.

The SO and WO #2 were dispatched to the call. By the time the officers arrived, the Complainant had voluntarily left the TESS office and was located in a restaurant on John Street. The officers approached the Complainant as she came out of the restaurant washroom and attempted to speak to her about her call to the police. The Complainant refused to leave the restaurant and became verbally aggressive. The officers decided to apprehend the Complainant under the MHA, and the SO took the Complainant’s right arm and WO #2 held her left arm to escort her outside. The Complainant resisted, collapsed to the ground, and used the door frame to prevent the police officers from moving her. While she was lying on the ground, the Complainant kicked the SO on his right leg and buttocks. The SO and WO #2 dragged the Complainant through the doorway. Once WO #1 arrived, the Complainant was transported to CAMH.

The Complainant was admitted to CAMH and she complained of pain in her right elbow and wrist. On November 30, 2016, the Complainant was seen in the emergency room in a hospital in Kingston and was diagnosed with a fractured right elbow.

The scene

The Complainant was apprehended by the SO and WO #2 at a restaurant on John Street in Toronto. She was apprehended in a corridor outside the washroom and then taken outside the restaurant to a police cruiser.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. Video recordings were received from Metro Hall and a restaurant on John Street. WO #1’s cruiser was also equipped with in-car camera (ICC) video recording.

Restaurant on John Street Closed Circuit Television (CCTV) Recordings

The restaurant on John Street where the Complainant was apprehended provided CCTV recordings.

On November 25, 2016, at 3:45:45 p.m., the Complainant entered the restaurant and went into a washroom. A male police officer [now known to be the SO] entered the restaurant and walked across the hallway. Moments later, a second male police officer [now known to be WO #2] entered the restaurant and walked across the hallway. Both police officers walked towards the washroom as the Complainant came out of the washroom. WO #2 spoke to the Complainant, then he put his hand on her shoulder. The Complainant walked away from WO #2, then both police officers pointed towards the exit. At 3:46:35 p.m., WO #2 pointed towards the exit again, then held the Complainant’s left arm and the left side of her jacket with his right hand. The SO held the right side of the Complainant’s jacket with his left hand. Both police officers moved the Complainant towards the door. WO #2 was on her left side and the SO was on her right side.

At 3:46:46 p.m., as the Complainant approached the door, she began to pull away from the police officers and then she collapsed to the ground. The SO stepped in front of the Complainant and held her extended right arm by the wrist. WO #2 was holding the back of her jacket as the Complainant struggled. The SO pulled the Complainant’s right hand and pulled her along the ground. At 3:46:52 p.m., the Complainant’s left foot was caught on the edge of the doorway and the SO moved the Complainant’s foot out of the way. WO #2 held the Complainant under her left arm. At this point, the Complainant was out of view. WO #2 was kneeling on the ground and the SO was standing. At about 3:47:49 p.m., WO #2 bent over, grabbed the Complainant’s left hand, and lifted the Complainant. The door closed and they were out of view.

WO #1’s Cruiser ICC

On November 25, 2016, the Complainant was transported in a marked police cruiser to CAMH by WO #1 and the ICC was activated.

At 3:57:06 p.m., the Complainant was placed in the passenger side rear seat of the police cruiser. The Complainant was handcuffed with her hands behind her back. At 4:02:43 p.m., the police cruiser began to move. The Complainant yelled obscenities during the transport. At 4:28:21 p.m., the police cruiser stopped moving. A man [now known to be WO #2] announced over the radio that there were no threats made by the Complainant to staff or security and the staff wanted the Complainant to get help at CAMH. At 4:28:55 p.m., WO #1 advised the Complainant that they were going into CAMH to talk to some people and the Complainant said “no.” The recording ended.

Communications recordings

TPS provided communications recordings from November 25, 2016.

At 3:31 p.m., the 911 operator received a call from a woman [now known to be the Complainant]. The Complainant asked for the police to attend the TESS office. She said that the staff were pouncing on her and telling lies. The operator tried to calm the Complainant, but she continued to complain about the staff. The operator told the Complainant to contact the police directly because the call was not an emergency, then the call was terminated.

The operator called the Complainant back. The Complainant was yelling and complained that she was being intimidated and that people were following her around and giving out her personal information. A voice in the background [now known to be a security guard at the TESS office] said, “I’m going to ask you one more time to leave and if not I’m going to remove you. Do you understand?” The Complainant told the operator that a security guard was asking her to leave. The operator told the Complainant to wait for the police at the front of the building and she agreed. The Complainant started to yell and scream. Then the Complainant told the operator “You are going to need someone here real quick.” A security guard said, “We’re going to follow you right out and you can talk to them when they come.” The Complainant continued to yell. A security guard said “outside, right outside.” The Complainant continued to yell then the call ended.

At about 3:32 p.m., CW #1 called 911 and reported that the Complainant refused to leave. At 3:37:59 p.m., the dispatcher broadcast for units to attend Metro Hall because the security guards had a hysterical, delusional, and emotionally disturbed person (EDP) refusing to leave.

At 3:39:23 p.m., the Complainant called 911 requesting police to attend. She complained about the staff and said that she was going to cause a disturbance inside the building. The Complainant changed the pitch of her voice, making several comments, then she spoke in her normal voice. The operator directed the Complainant to wait outside for the police, then the call ended.

At 3:40 p.m., WO #2 and the SO confirmed that they were attending the call. At 3:41 p.m., the dispatcher said that the Complainant was upset with the staff at the TESS office and she said that there would be a life and death emergency, if the police did not attend. At 3:42 p.m., the dispatcher said “negative on CPIC [Canadian Police Information Centre].”

At 3:44 p.m., WO #2 arrived at Metro Hall and spoke to the security guards. The Complainant left the building and travelled northbound on John Street. WO #2 followed the Complainant. WO #1 was dispatched to the call. At 3:51 p.m., WO #2 said he had one in custody. WO #1 said that she was at the corner of John Street and Queen Street. At 4:07 p.m., WO #1 said that she was transporting the Complainant to CAMH. At 4:28 p.m., WO #2 said that the Complainant did not threaten anyone and the staff wanted the Complainant to get help. WO #1 said that she arrived at CAMH. At 4:33 p.m., WO #2 said that he was attending CAMH.

Materials obtained from Police Service

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

• Communications recordings
• ICC video recording – WO #1’s cruiser
• Event Details Report
• General Occurrence
• List of Involved Officers and Civilian Witnesses
• List of Police Contacts with the Complainant
• Mobile data Terminal (MDT) Transmissions
• Notes of WO #1 and WO #2
• Person Search
• Procedure - Emotionally Disturbed Person, and
• Automated Dispatch System (ADS) Summary Sheet - Summary of Conversation

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 265(1), Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

Section 266, Criminal Code – Assault

266 Every one who commits an assault is guilty of

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

Section 2(1), Trespass to Property Act - Trespass an offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,

1. without the express permission of the occupier, the proof of which rests on the defendant
   1. enters on premises when entry is prohibited under this Act, or
   2. engages in an activity on premises when the activity is prohibited under this Act; or
2. does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier

is guilty of an offence and on conviction is liable to a fine of not more than $10, 000.

Section 17, Mental Health Act - Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person
5. serious bodily harm to another person; or
6. serious physical impairment of the person

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

On November 25^th, 2016, a 911 call was received by the Toronto Police Service (TPS) from Toronto Employment and Social Services (TESS) at 55 John Street in the City of Toronto, requesting police assistance with the removal of a client (the Complainant) who was being disruptive and refused to leave the premises. Contemporaneously, the Complainant also made a 911 call complaining about the security officers at TESS and that she was going to cause a disturbance. The SO and WO #2 were dispatched in response to the calls. Prior to the police arrival, however, the Complainant had voluntarily left the building and was walking down John Street and entered a restaurant.

As the Complainant had herself made a 911 call, police entered the restaurant to look for the Complainant and located her just coming out of the washroom. Both the SO and WO #2 tried to speak with the Complainant about why she had called police and asked her to exit the restaurant so that they could talk. According to the SO, the Complainant became verbally aggressive and refused to leave the restaurant. The SO explained that police were concerned for her safety and he took her by the right arm, while WO #2 took her left arm, and attempted to escort her from the restaurant and apprehend her under the MHA. The Complainant resisted.

In her statement to investigators, the Complainant alleged that the police officers beat her, or that WO #2 took her to the ground. Both the SO and WO #2, in their statements, advised that the Complainant in fact fell to the floor, or collapsed, without any action by the police to take her to the ground. The SO advised that the Complainant then held onto the door frame to prevent officers from removing her from the restaurant and, while she was lying on the ground, she kicked the SO on his right leg and buttocks. The Complainant alleged that both officers were pulling on her right forearm to get it behind her back and that her right arm was bent at the elbow and up along her chest area and hurt.

The SO conceded in his statement that he and WO #2 dragged the Complainant through the doorway and then handcuffed her and placed her into WO #1’s cruiser for transport to CAMH, where she was involuntarily admitted under a Form 1.

The entire incident inside the restaurant was fortunately captured on CCTV video. The video revealed that the Complainant entered the restaurant and went to the washroom at 3:45:45 p.m.; moments later the SO and then WO #2 were seen to also enter and walk across the hallway towards the washroom just as the Complainant was coming out. WO #2 is seen to first speak to the Complainant and then to place his hand on her shoulder, and the Complainant is seen to walk away from both officers, who were pointing towards the exit. WO #2 then held the Complainant’s left arm and the left side of her jacket while the SO is seen to hold the right side of the Complainant’s jacket and both officers moved the Complainant towards the exit. As the Complainant is approaching the door, she is seen to pull away from the police officers and then collapse to the ground. It is clear from the video that neither officer initiated the Complainant going to the ground, but that she did so on her own. The SO is then seen to step in front of the Complainant, holding her right arm by the wrist, and WO #2 is seen to be holding the back of her jacket, as the Complainant struggles. The SO then pulled the Complainant along the ground by her right hand and her left foot is caught on the edge of the doorway, at which point the SO moves her foot clear of the doorway. WO #2 is seen to be holding the Complainant under her left arm. Shortly thereafter, WO #2 is seen to bend over and grab the Complainant’s left hand and lift her from the ground. All three are then lost from view as they exit the restaurant.

On November 25^th, 2016, the Complainant was admitted to CAMH and was assessed as having a depressed fracture involving the lateral margin of the right radial head (the small bone in the forearm near the elbow) and a small minimally distracted evulsion of the tip of the coronoid process (a sharp triangular process projecting from the ulna forming part of the elbow).

The Complainant’s medical records indicate that she told the attending physician that she had injured her elbow and wrist during a “scuffle” with police; she told a nurse that she got into a fight with a neighbour five days earlier and the neighbour grabbed her right arm; she told the physician at the hospital in Kingston that she had a disagreement with her neighbour, who twisted her arm and injured her elbow; and she told the orthopedic surgeon that she was restrained and handcuffed by police and that was how she injured her elbow.

Based on the various statements made by the Complainant to various medical personnel, it is clear that the Complainant herself does not appear to know how she received her injury. Based on the medical opinion of CW #4, however, it appears that neither the interaction with the neighbour, nor the handcuffing by police, nor the fact that the SO is seen on the CCTV footage as dragging the Complainant by the right hand and pulling her out of the restaurant, was the cause of her injury; as this type of injury is most commonly caused by a fall on an outstretched hand. On that basis, on this record, it appears that the injury to the Complainant was not caused by police, but either from her fall to the floor, which occurred without any direct physical contact with police, or occurred at some other time and location.

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 evident from the statements of all staff interviewed at TESS that the Complainant was causing a disturbance and was in violation of the Trespass to Property Act when she refused to leave the premises upon request. While the Complainant had voluntarily left the premises prior to police arrival, police were still duty bound to investigate her own 911 call wherein she had alleged wrongdoing on the part of the TESS security personnel. Due to the behaviour of the Complainant, both in refusing to speak to police about her 911 call and her other erratic behaviour, WO #2 formed the opinion that the Complainant was showing a lack of competence to care for herself and was suffering from a mental disorder which was likely to result in bodily harm to herself or another person pursuant to s.17 of the MHA and, as such, police were entitled to take her into custody and deliver her to an appropriate place for examination by a physician. Additionally, in attempting to remove the Complainant from the restaurant, the Complainant had kicked the SO and was therefore arrestable for Assault pursuant to s. 266 of the Criminal Code. As such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by police officers in their attempts to remove the Complainant from the restaurant, I find that their behavior was more than justified in the circumstances and that they used no more force than necessary to remove the Complainant, who was struggling and resisting the efforts of the officers to apprehend her. I also find that it is more than likely that the Complainant suffered her injury in some unrelated incident, as she disclosed to the various medical staff, rather than at the hands of the two police officers involved in her apprehension. On a close review of the CCTV footage, it appears that at no time during her collapse did the Complainant fall on an outstretched hand which would have been consistent with the mechanism of injury, but rather that she landed on her backside. If, however, her injury was caused by the efforts of the officers to remove the Complainant, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by both the SO and WO #2 was no more than was required to remove the Complainant from the restaurant; she was never struck nor was she kicked by the officers and she was not intentionally taken down to the ground. Whether the Complainant simply fell as a result of pulling away from the officers or purposely collapsed on the floor in order to further impede the officers’ efforts to remove her from the premises is unclear. What is certain, however, is that her fall or collapse was not instigated by police nor was it a use of force measure used by police to gain control of the Complainant. As such, I find that the actions of both police officers fell within the range of what was reasonably necessary in the circumstances to effect the Complainant’s removal from the restaurant and her apprehension under the MHA.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s apprehension and the manner in which it was carried out were lawful notwithstanding the injury which she suffered, even were I to find that the officers caused the injury, which I am not inclined to do. 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 10, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] A Form 1 is also referred to as an Application by Physician for Psychiatric Assessment, and allows a doctor to hold an individual in a psychiatric facility for up to 72 hours in order for that person to undergo a psychiatric assessment. [Back to text]