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 29-year-old woman during her arrest on April 2, 2017.

Notification of the SIU

On April 2, 2017, at 8:30 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury.

TPS reported that on Sunday, April 2, 2017 at about 3:00 p.m., TPS officers arrested the Complainant on Front Street after she stole bottles of vodka from an LCBO store nearby. During the arrest, the Complainant and one of the arresting officers fell to the ground. She complained of a sore shoulder, was taken to the hospital and diagnosed with a broken left clavicle.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Complainant:

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

Civilian Witnesses

None

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

Subject Officers

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

During the afternoon of April 2, 2017, the Complainant stole alcohol from the LCBO store on Front Street East in Toronto, and was later seen walking eastbound, pulling a bundle buggy containing the stolen liquor behind her. TPS was called.

The SO and WO #3 responded to the call and located the Complainant on nearby Berkeley Street. WO #3 called out from the cruiser for the Complainant to stop, but she ignored the officers. The SO pulled the police cruiser alongside the curb just ahead of the Complainant and both officers exited their vehicle. WO #3 again told the Complainant to stop and that she was under arrest for theft. The Complainant ran across Berkeley Street, pulling her bundle buggy behind her. The SO and WO #3 chased the Complainant.

The Complainant let go of her bundle buggy, stepped off the roadway, and onto the curb. The SO reached to stop the Complainant, grabbing her by her clothing. The Complainant lost her balance and fell forward, pulling the SO along with her. The Complainant’s shoulder struck a tree, while the SO struck a light pole.

The Complainant complained of pain in her shoulder and was transported to the hospital. It was determined that she sustained a fracture of the mid-shaft of her left clavicle.

The Scene

The Complainant was arrested on a sidewalk on the east side of Berkeley Street near the northwest entrance to the Staples store parking lot at 250 Front Street East. The scene was not held for SIU purposes.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence. The SIU obtained closed circuit television (CCTV) recordings from a business on Berkeley Street, as well as from the LCBO location on Front Street East.

Berkeley Street CCTV

The recordings were captured in real time on April 2, 2017, from 3:50 p.m. to 4:06 p.m. and show the following:

• At around 3:50:55 p.m., a marked TPS police cruiser was headed south on Berkeley Street toward Front Street East
• At around 3:52:47 p.m., a second marked TPS police cruiser pulled into the oncoming southbound traffic lane on Berkeley Street and stopped on an angle near the sidewalk. Two uniform police officers [believed to be the SO and WO #3] exit the police cruiser and begin walking across the street and out of view
• At around 3:52:54 p.m., a third marked TPS police cruiser was headed southbound on Berkeley Street, and drove past the SO and WO #3 as they were walking across the street
• At 3:54:57 p.m., a fourth marked TPS police cruiser was headed southbound on Berkeley Street
• At about 3:55:04 p.m., the first marked TPS cruiser came back around and headed south on Berkeley Street, and
• At 3:56:18 p.m., the SO crossed Berkeley Street and got into his police cruiser and drove in reverse out of camera view
• A second camera was situated above the garage bay door on Berkeley Street. The sidewalk on the west side of Berkeley Street was visible and a small portion of the road and the sidewalk on the east side of Berkeley Street were also visible.
• At about 3:50:57 p.m., the camera above the garage bay door showed the first TPS marked cruiser heading south on Berkeley Street toward Front Street East
• At 3:52:38 p.m., the same camera showed the Complainant walking at a brisk pace towards King Street East. She was wearing a white hoodie and pulling a bundle buggy
• At 3:52:42 p.m., the second TPS marked cruiser drove past and came to a stop off camera
• At 3:52:58 p.m., a police officer [now believed to be the SO] fell onto the pavement, near a small tree, across the street
• At 3:53:01 p.m., a police cruiser parked in the Staples parking lot across the street and a police officer exited the police cruiser. The same police officer got back into his police cruiser at 4:00:47 p.m., and
• At 3:55:28 p.m., the first TPS marked cruiser headed south on Berkeley Street toward Front Street East

In-Car Camera (ICC) Recordings for the SO’s Cruiser

The SIU was provided ICC recordings for the SO’s cruiser (the second TPS marked cruiser seen in the Berkeley Street CCTV recordings), taken April 2, 2017, from 3:58:47 p.m. to 4:53:29 p.m.. The recordings showed the following:

• At 3:58 p.m., the recordings commenced. The SO’s cruiser was stationary in the Staples parking lot. The camera’s field of view captured Berkeley Street and the audio was not activated
• At 3:59 p.m., the recording switched to the back seat of the police cruiser where the Complainant sat. She was handcuffed with her hands in front of her and the audio was subsequently activated. The Complainant was crying and she held her left shoulder with her right hand. She screamed “ouch” several times
• At 4:00 p.m., the Complainant stated she wanted to go home and continued moaning. WO #3 reminded the Complainant she was being recorded. Moments later, the Complainant said, “oh my shoulder,” and complained it hurt. The SO was heard asking WO #3 if he saw how the incident happened and WO #3 responded by saying he did not see it in its entirety
• At 4:01 p.m., the Complainant said her shoulder was bashed into the tree and pushed forward and pushed back. Moments later, the SO was heard to say he had hit a pole hard. At this time a police officer was heard telling the Complainant she was going to the hospital
• At 4:02:01 p.m., the Complainant apologized for running from the police, and
• At 4:04:04 p.m., she held her left shoulder with her right arm and began screaming. The Complainant arrived at the hospital at around 4:08 p.m.

TPS Booking Video Recordings

TPS provided the SIU with Booking Video recordings made on April 2, 2017, at the TPS division. The recordings were captured in real time from 8:20:14 p.m. to 8:29:34 p.m. and show the following:

• At 8:20:14 p.m., the recording began showing the Complainant seated on a bench in front of the booking officer [the Booking Sergeant] who explained to her the areas in the police station where she was being recorded
• At 8:20:27 p.m., WO #5 requested a level three search[1] since the Complainant was a known illicit drug user. The Booking Sergeant allowed the level three search
• At 8:20:42 p.m., the Complainant groaned and said something that was inaudible
• At 8:20:53 p.m., WO #5 advised the Booking Sergeant that the Complainant was taken to the hospital where she was diagnosed with a fractured collar bone
• At 8:21:11 p.m., the Booking Sergeant asked the investigating police officers to complete an injury report
• At 8:21:17 p.m., the Complainant mumbled something inaudible
• At 8:21:30 p.m., the Complainant held her left shoulder with her right hand
• At 8:21:51 p.m., the Booking Sergeant asked the Complainant the standard questions about her health and well-being. He acknowledged the Complainant had a fractured collar bone. She confided consuming crack cocaine around 1:00 p.m. on April 2, 2017
• At 8:23:34 p.m., the video recording was paused to complete the level three search
• At 8:28:47 p.m., the recording resumed showing the Complainant seated on a bench. A police officer (the Female Officer) advised the Booking Sergeant the level three search resulted in a hair elastic, arm sling, and a string from the Complainant’s hoodie, and
• At 8:29:30 p.m., the Complainant was escorted to her cell by the Female Officer.

Materials obtained from Police Service

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

• Automatic vehicle location (AVL) data table – SO’s cruiser
• Global positioning system AVL data – SO’s cruiser
• Booking video
• Cell video
• Communications recordings
• Event details report
• General occurrence
• ICC recordings – SO’s cruiser
• Notes of WO #1, WO #2, WO #3, WO #4 and WO #5
• Photos of the Complainant’s and the SO’s injuries
• Automated Dispatch System - Summary of Conversation, and
• TPS witness statement – LCBO store manager

Section 322(1), Criminal Code – Theft

322 (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

1. to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it
2. to pledge it or deposit it as security
3. to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
4. to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted

Section 334, Criminal Code - Punishment for theft

334 Except where otherwise provided by law, every one who commits theft

1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years, where the property stolen is a testamentary instrument or the value of what is stolen exceeds five thousand dollars; or
2. is guilty
   1. of an indictable offence and is liable to imprisonment for a term not exceeding two years, or
   2. of an offence punishable on summary conviction

where the value of what is stolen does not exceed five thousand dollars.

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.

On April 2, 2017, at approximately 3:48 p.m., the TPS was notified that a woman pulling a bundle buggy had just stolen two bottles of Grey Goose vodka from the LCBO store located on Front Street in the City of Toronto. They also received further information that indicated that the female (the Complainant) had left the store and was walking eastbound on Front Street, pulling the bundle buggy containing the stolen liquor behind her. As a result, two police cruisers were dispatched to the LCBO store, one police cruiser was manned by the SO and WO #3 and the other by WO #1. The Complainant was eventually apprehended by the SO and WO #3; during the course of her interaction with the police, the Complainant sustained a fractured collarbone.

There were unfortunately no civilian witnesses to the interaction between police officers and the Complainant, but based on the recollection of the Complainant and the statement of WO #1 and WO #3, as well as the sequence of events as reported by the SO to WO #2, a fairly clear picture of the sequence of events was obtained. There is no dispute as to the facts.

WO #3 advised that he and the SO pulled up beside the Complainant in their police cruiser on Berkeley Street and yelled at her to stop; instead, she kept looking straight ahead and did not acknowledge them. The SO then pulled the police cruiser to the curb just ahead of the Complainant and they both exited, at which point WO #3 made eye contact with the Complainant and again told her to stop and that she was under arrest for theft. The Complainant ran across Berkeley Street pulling her bundle buggy behind her and the SO and WO #3 gave chase. The Complainant then let go of the buggy and the police officers caught up to her as they reached the east side of Berkeley Street. The Complainant stepped off the roadway and onto the curb at the same time that the SO reached out and grabbed the Complainant’s clothing; the Complainant lost her balance and fell forward pulling the SO along with her. The Complainant’s shoulder struck a tree and the SO released his hold on the Complainant but continued forward and struck a light pole. The Complainant was then arrested and did not resist any further; she indicated that she had hurt her shoulder while the SO, who appeared dazed, was bleeding from his cheek, which looked swollen.

While the SO did not provide a statement to investigators, as was his legal right, when WO #2 arrived at the scene shortly after the interaction, the SO advised him that he had chased after the Complainant when she ran across Berkeley Street and tried to grab onto her, when they both lost their footing and fell to the ground, with the SO striking a light pole and the Complainant striking something else.

WO #1, who was also searching for the Complainant, arrived at Berkeley Street in time to observe the Complainant pulling her bundle buggy just as the SO and WO #3 arrived in their police cruiser and yelled at her to stop. WO #1 observed the Complainant run across Berkeley Street, drop her bundle buggy in the middle of the road, and then continue running, while the SO and WO #3 pursued her on foot. WO #1 advised that he observed the SO and WO #3 catch up to the Complainant as she reached the east side of the street where the Complainant tripped on the curb and the SO and WO #3 grabbed on to her as she fell, causing all three to fall towards a tree and a light pole. WO #1 observed the Complainant to bounce off either a tree or a light pole as she fell, while the SO also struck his face against something.

On all of the evidence, it appears without dispute that the SO, in attempting to stop the fleeing Complainant, who had just committed the offence of theft under $5000 contrary to the Criminal Code, reached out and grabbed onto her clothing just as she reached the curb of Berkeley Street, where she tripped and, due to the built up momentum of both the SO and the Complainant moving forward, they both fell to the ground where the Complainant struck her shoulder against a tree, fracturing her collar bone, and the SO fell against the light pole, injuring his face. Other than grabbing her clothing, which may have caused her to trip and fall, there is no allegation that any police officer used any other force against 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 information in the possession of police at the time that they had reasonable grounds to believe that the Complainant had just stolen merchandise from the LCBO store and was attempting to flee with that stolen property. As such, the pursuit and 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 apprehend the Complainant, I find that their behaviour was justified in the circumstances and that they used no more force than necessary to stop the Complainant, who was clearly attempting to flee from police with the stolen property. While it is as likely that the Complainant fell of her own accord as she was running away and tripped over the curb, as it is that she tripped as a result of the SO grabbing onto her clothing[2], even if she fell and was injured solely due to the actions of the SO to stop her fleeing, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by the SO was no more than reaching out to grab onto the Complainant’s clothing as she was attempting to flee police while she simultaneously tripped over the curb which caused the built up forward momentum of both the SO and the Complainant to then be redirected downward, causing the Complainant to strike the tree and the SO to strike the light pole when they fell; as such, I find that the actions of the SO fell within the range of what was reasonably necessary in the circumstances to stop the fleeing Complainant. In coming to this conclusion, I find support in the jurisprudence that police officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)) nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206).

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s apprehension and arrest and the manner in which they were carried out were lawful notwithstanding the injury which she suffered. I also find that in making the conscious decision to flee from police, rather than stop when directed by them to do so, the Complainant brought about the series of events which caused the SO to have to chase her in an attempt to stop her, which ultimately led to her injury. Had she chosen to stop when directed, her unfortunate injury would surely have been avoided. I am therefore satisfied on reasonable grounds on this record that the actions exercised by the police officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: November 30, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Also known as a strip search. [Back to text]
• 2) [2] Or perhaps as a combination of both tripping over the curb and the SO grabbing on to the Complainant while moving forward. [Back to text]