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 custody injury sustained by a 29-year-old female while interacting with Toronto Police Service (TPS) on April 11, 2016.

Notification of the SIU

On May 2, 2016, at 10:35 a.m., a security manager at a Toronto hospital notified the SIU of the custody injury sustained by the Complainant while she was a patient at the hospital. He reported that on April 11, 2016, at 11:35 p.m., the Complainant was restrained by police officers from TPS and was subsequently diagnosed with a fractured right arm.

The Security Manager was doing a review of the incident after the hospital received a complaint and there was concern there may be a civil suit. He found that on April 11, 2016, at about 11:35 p.m., the Complainant arrived in the Emergency Department (ED) escorted by her boyfriend and two other friends. The Complainant had been at a friend’s house drinking and was upset. TPS were called and police officers followed the car with the Complainant and her friends to the hospital. While in the ED, the Complainant was somewhat out of control and it was decided she should be put in restraints. Two security officers were in a patient’s room preparing the restraints, when the Complainant walked in escorted by police officers and a nurse. She jumped onto a table and was yelling. When verbal intervention was not working, the Complainant was pulled down by the four police officers and placed face first on the gurney. She was then flipped over onto her back to be placed in restraints. It appeared that the police officers had been involved in taking physical control of the Complainant, not hospital security. The police officers left the room. A short time later, the Complainant complained that her right arm was sore. X-rays later revealed she had a fracture in her right arm.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigator(s) assigned: 0

Complainant

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

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Interviewed

CW #10 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

Subject officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right.

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right.

The scene

The scene was a single bed patient room in the ED at the hospital, referred to as Resuscitation Room 4[1]. In the room there was a hospital bed, monitor, table and chair. The room had a sliding glass entrance door with a curtain to cover the door for privacy. Below is a photo of the room provided by the hospital:

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and located video recordings of the Complainant at the hospital in the ED entrance, waiting room area and corridor, but no footage from Resuscitation Room 4 as this room did not contain cameras. The footage depicted the Complainant moving her right arm and showing no visible indication she had an injury to this limb prior to be placed in the patient room.

Communications recordings

Intergraph Computer Aided Dispatch (ICAD) summary:

On April 11, 2016, at about 10:30 a.m., CW #3 called 911 and reported that the Complainant was having a manic episode, and threatening to kill herself and others. She had locked herself in the bathroom with CW #2 and was screaming. The Complainant had been drinking but had not been violent, had no weapons and had a history of suicide attempts within the last month.

At 11:00 p.m., SO #1 and SO #2 arrived at the house, followed a few minutes later by WO #1 and WO #2. At 11:11 p.m., the Complainant drove to the hospital with family, followed by the officers in their police vehicles. At 11:19 p.m., the Complainant arrived at the hospital and the involved officers left the call. At 11:24 p.m., the triage nurse requested police re-attend the hospital and the officers arrived back at the hospital about five minutes later.

Materials obtained from police service

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

• Computer Aided Dispatch (CAD) Narrative Message Reports
• CAD Unit History Report Fleet
• General Occurrence Reports
• ICAD Event Details Report
• Narrative Message Reports
• notes of WO #1 and WO #2
• Procedure -Emotionally Disturbed Persons (with Appendix A and B)
• Procedure -Use of Force (with Appendix A and B), and
• queries of the Complainant

On April 11, 2016, around 10:30 p.m., TPS officers and paramedics received a call about the Complainant, who had locked herself in the bathroom at a friend’s house and was intending to harm herself.

SO #1 and SO #2 responded to the call and arrived at the house at 11:00 p.m. Paramedics were already there. CW #2 informed the police officers that the Complainant did not want to harm herself. CW #1, CW #2 and CW #3 drove the Complainant to the hospital, followed by SO #1 and SO #2, and WO #1 and WO #2, in their cruisers.

The Complainant arrived at the ED at 11:19 p.m. and the four involved police officers drove away. A doctor gave a verbal order for the Complainant to be physically restrained in order for chemical sedation medication to be administered and a triage nurse called for the police to re-attend the hospital to assist with the Complainant.

SO #1, SO #2, WO #1 and WO #2 re-attended and escorted the Complainant to a nearby patient room with CW #2. Also present were CW #4 and CW #5, as hospital security, and a nurse (CW #10). Once in the room, the Complainant jumped onto a small table in the room and began screaming and refused to follow direction. SO #1 and SO #2 each grabbed one of the Complainant’s arms, and WO #1 and WO #2 grabbed her legs, as they pulled the Complainant onto the bed. The Complainant resisted their efforts to move her to the bed. Once the Complainant was on her back on the bed, CW #4 and CW #5 then fastened the restraints to each of the Complainant’s arms and legs. The Complainant was given a sedative by CW #10 and she quickly calmed down. The four police officers left the hospital. When CW #10 re-attended the room, the Complainant complained of pain in her right arm. X-rays were taken and revealed the Complainant had a fracture in her right forearm.

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.

In my view, there are no reasonable grounds to believe that either of the two subject officers committed a criminal offence in connection with the serious injury sustained by the Complainant on April 11, 2016.

On May 2, 2016, a security manager from the hospital contacted the SIU and reported that a patient, now known to be the Complainant, had been diagnosed with a fractured right arm after being restrained by TPS officers in a hospital room on April 11, 2016. As a result, the SIU’s mandate was triggered and an investigation ensued.

On the evening of April 11, 2016, around 10:30 p.m., TPS officers and paramedics received a call about a woman, the Complainant, who had locked herself in the bathroom at a friend’s house and was intending to harm herself.

SO #1 and SO #2 responded to the call. When they arrived at the house at 11:00 p.m., paramedics were already there and the Complainant was sitting in a vehicle parked in the driveway. Initially, the Complainant had refused to go to hospital with the paramedics, but after some persuasion, agreed to be taken there voluntarily by CW #2. CW #2 informed the police officers that the Complainant did not want to harm herself. CW #1, CW #2 and CW #3 drove the Complainant to the hospital. SO #1 and SO #2 followed in their police cruiser, as did WO #1 and WO #2. There was no physical contact between the Complainant and the attending officers or paramedics while at the house.

At about 11:19 p.m., the Complainant arrived in the ED. After she went inside with her two friends, the four involved officers drove away. The Complainant continued to exhibit loud, inappropriate and erratic behaviour while in the waiting area, agitating other patients. As a result, CW #8 gave a verbal order for the Complainant to be physically restrained in order for chemical sedation medication to be administered. At about 11:45 p.m., a triage nurse, CW #6, called for the police to re-attend the hospital to assist with the Complainant.

Once SO #1, SO #2, WO #1 and WO #2 arrived back the hospital, they escorted the Complainant to a nearby patient room with CW #2 and CW #10. Two hospital security officers, CW #4 and CW #5, affixed four point physical restraints to the bed railings. The Complainant, who jumped onto a small table in the room, began screaming; swearing; making threats; and refused to follow direction. By all accounts, the Complainant did not comply with verbal attempts to get her down from the table and onto the bed.

As a result, SO #1 and SO #2 each grabbed one of the Complainant’s arms, while WO #1 held her left leg as they pulled the Complainant. WO #2 then restrained her right leg. The metal side railings on the bed were lowered so they were situated below the height of the mattress at the time. There was no evidence that her right arm struck the rail in the process. Once the police officers had the Complainant on her back on the bed, CW #4 and CW #5 fastened the restraints to each of her arms and legs. The Complainant was given a sedative by a nurse and calmed down. The four police officers left the hospital. X-rays were taken and revealed the Complainant had a fracture in her right arm.

By all witness accounts, the Complainant was not injured prior to entering the patient room. The CCTV footage from the triage area depicted the Complainant moving her right arm and showing no visible indication she had an injury to this limb. There was no evidence found to suggest that the Complainant’s broken arm was self-inflicted. The attending doctor explained that the likely cause of this type of ulna fracture was a lateral force applied to the side of the arm from a blow, crush or squeeze. It is highly probable that the Complainant’s injury occurred when either SO #1 or SO #2 grabbed her right arm as she stood on the table. This is evident given the type of force used, the area of contact, the timing of the complaint, and multiple witness accounts that the officers grabbed her arms forcefully.

Assuming that the Complainant was injured while being pulled off of the table, what is less certain is whether it was SO #1 or SO #2 who held the Complainant’s right arm at the time it was broken. CW #4 and CW #5 had opposing recollections of who took hold of the Complainant’s right arm. One recalled it was SO #1 and the other SO #2. CW #10, WO #2, WO #1 and the Complainant had no memory of who held the Complainant’s right arm. SO #1 and SO #2 exercised their legal right not to provide a statement or copy of their notes to the SIU so their perspective is unknown. Therefore, at the outset of this analysis, identity remains a key issue.

However, in my opinion, the material question is whether the subject officers had the authority to use force and whether the force used was reasonable. I am satisfied that SO #1 and SO #2 had the authority to use force to restrain the Complainant. Police officers have a common law duty to keep the peace and protect the public from harm. In a hospital, and especially in an emergency ward setting, there is a common law right and duty for caregivers to restrain patients in the context of injections when this is necessary to protect them, other patients, or others lawfully on the premises from harm and to prevent endangerment to the safe environment of the facility[2]. The Mental Health Act[3], Health Care Consent Act[4], and Patient Restraints Minimization Act[5] also permit the use of restraints in varying hospital situations when immediate action is necessary to prevent serious bodily harm to the patient or others, and at times with voluntary patients. The hospital staff requested the police to return to the hospital to assist them in helping the Complainant. It was only when verbal efforts to deescalate the situation failed and the Complainant continued to put herself in danger by standing and moving precariously on the table, while shouting threats and not following their direction, that the officers resorted to physical restraint. SO #1 and SO #2 were thereby authorized to take hold of the Complainant, to protect her from injuring herself, and, to assist the hospital staff in restraining her to provide sedation as directed by the doctor.

Section 25(1) of the Criminal Code limits the force an officer may use to that which is reasonably necessary in the circumstances in the execution of their lawful duties. The description of the amount of force used by SO #1 and SO #2 varied greatly across the civilian witnesses. Two of the witnesses who were present agreed with WO #1 and WO #2 that the degree of force used was not excessive. The hostile and erratic behaviour that the Complainant displayed, while standing on the small table, placed her in a potentially dangerous situation. Under these circumstances, it was reasonable that the involved officers would take control of the Complainant’s arms with sufficient force to ensure a secure and safe transfer to the bed.

While it is regrettable that the Complainant’s arm was broken during her interaction with SO #1 and SO #2 and the other officers, on a review of the totality of the evidence, I cannot conclude that the officers used more force than was reasonably necessary in the circumstances. Accordingly, there are no reasonable grounds to believe that SO #1 and SO #2 exceeded the ambit of justifiable force in the circumstances. Consequently, no charges will be laid against either subject officer in this case.

Date: August 22, 2017

Original signed by

Tony Loparco Director Special Investigations Unit

Endnotes

• 1) [1] As this case was reported late to the SIU, it was not possible to get photographs or examine the room exactly as it was at the time of the incident. [Back to text]
• 2) [2] Conway v. Fleming, 1999 CanLII 19907 (Ont .S.C.) at 3. [Back to text]
• 3) [3] R.S.O. 1990 c M.7 [Back to text]
• 4) [4] S.O. 1996, c 2. [Back to text]
• 5) [5] S.O. 2001, c 16. [Back to text]