Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:

• The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
• Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
• Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
• Information that discloses investigative techniques or procedures.
• Information, the release of which is prohibited or restricted by law.
• Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.

Freedom of Information and Protection of Personal Privacy Act

Pursuant to section 14 (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 that 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 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

• The names of persons, including civilian witnesses, and subject and witness officials;
• 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

Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may also have 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.

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the serious injury of a 36-year-old woman (the “Complainant”).

Notification of the SIU[1]

On February 28, 2024, at 9:47 p.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

According to the TPS, at 4:56 p.m., the Complainant was arrested at the Liquor Control Board of Ontario (LCBO) at 49 Spadina Avenue by security. The Complainant was being held, with difficulty, by security for theft when Witness Official (WO) #1 and Subject Official (SO) #1 took over the arrest and placed her in the back of their cruiser. While en route to the station, the Complainant got out of her handcuffs. WO #1 and SO #1 stopped at Spadina Avenue and Clarence Square to replace the handcuffs. She resisted and SO #2 and WO #2 responded to assist. Once the handcuffs were on the Complainant again, she complained that her arm was fractured. At 5:32 p.m., an ambulance transported the Complainant to Toronto Western Hospital (TWH) where she was diagnosed with a fractured left humerus.

The Team

Date and time team dispatched: 2024/02/28 at 10:09 p.m.

Date and time SIU arrived on scene: 2024/02/28 at 11:00 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

36-year-old female; interviewed; medical records obtained and reviewed

The Complainant was interviewed on March 25, 2024.

Subject Officials (SO)

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

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

SO #3 Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Interviewed; notes received and reviewed

The witness officials were interviewed on March 11, 2024.

The Scene

The events in question took place on the roadway, on the east side of Spadina Avenue, in front of Clarence Square. This location was approximately 50 metres north of a LCBO store.

Video/Audio/Photographic Evidence[2]

Body-worn Camera (BWC) Footage

TPS provided SIU with the BWC recordings from WO #1, WO #2, WO #3, SO #2, SO #1 and SO #3. The following is a summary of their combined recordings.

At 5:05 p.m., February 28, 2024, WO #1 and SO #1 entered a rear warehouse of the LCBO and approached two security guards who were with the Complainant. The Complainant was already handcuffed behind her back. SO #1 advised the Complainant she was under arrest for theft and WO #1 said she had two outstanding warrants.

Starting at about 5:11 p.m., SO #1 and SO #3 walked the Complainant outside to a police vehicle. The Complainant said, “You guys will have an issue getting me in the car.” Once out of the store, the Complainant yelled out to a friend and started to struggle with police. The Complainant was held against a police vehicle by SO #3, and WO #1 searched her.

Starting at about 5:12 p.m., the Complainant’s handcuffed arms were extended upright to an almost vertical position by SO #3. About ten seconds later, the Complainant said, “You guys just broke my arm.” The Complainant was placed in the rear seat of the police vehicle.

Starting at about 5:26 p.m., SO #1 stopped the vehicle on Spadina Avenue, about half a block from the LCBO, and opened the rear left door. The Complainant was inside the rear of the vehicle with a handcuff only affixed to her right wrist. The Complainant said, “You are not going to arrest me a second time.” WO #1 tried to take control of her right arm, SO #1 took a hold of her jacket and left arm, and the Complainant struggled with both police officers. The Complainant stated that she was not going to be handcuffed. The Complainant was placed onto the roadway, first on her knees and then on her right side while the police officers attempted to place her arms behind her back. WO #1 continued to manipulate the Complainant’s right arm to attempt to handcuff her left wrist. The attempt was not successful due to the positioning of both arms. WO #1 told the Complainant to cooperate, and the Complainant said, “No, never, never surrender.” SO #1 attempted to place the Complainant’s left arm behind her back.

SO #2 arrived and assisted SO #1 with a wrist lock on the Complainant’s left wrist. All three police officers were able to bring the Complainant’s arms close enough together to re-handcuff her, in an awkward position, with her left arm behind her neck. The Complainant was stood up and said, “My arm is burning.” WO #1 placed her in the rear seat of the police vehicle and the Complainant said, “You broke my arm.” WO #1 uncuffed her right wrist and adjusted her arms to behind her lower back and re-handcuffed her wrists.

In-car Camera (ICC) Footage

Starting at about 5:13 p.m., February 28, 2024, the Complainant was placed, face down, in the rear left of the police vehicle by SO #3. WO #3 pulled the Complainant further onto the rear seat. WO #1 assisted the Complainant into a seated position. The Complainant began to kick at the rear left vehicle window with her feet. After several kicks, she sat quietly in the seat, then asked about some liquor and drugs that had been removed from her purse.

Starting at about 5:26 p.m., the Complainant wriggled and brought her right hand to the front of her body with the handcuff attached only to her right wrist. The Complainant was able to use her left arm to scratch her face, push against the door and hold onto the rear seat without apparent discomfort. The Complainant resisted and struggled with WO #1 and SO #1 as they tried to remove her from the rear seat.

Starting at about 5:28 p.m., the Complainant was placed back into the rear right seat of the police vehicle. The handcuffs were applied to her wrists, but in a position such that her left arm was behind her neck and her right arm was still in front with the right wrist over her shoulder. WO #1 and SO #2 re-applied the handcuffs to the Complainant’s lower back. The Complainant repeatedly told the police officers that they broke her arm.

Starting at about 5:31 p.m., WO #1 made a request over the police radio for an ambulance.

The ambulance arrived at about 6:02 p.m. and, shortly after, the Complainant was removed from the police vehicle.

TPS Communications Recordings

Security officers from LCBO phoned 911 after they arrested the Complainant and told the operator that her boyfriend was interfering and attempting to take her out of the back door. The Complainant had reportedly kicked a security guard and a verbal disturbance was heard in the background.

WO #1 responded and requested assistance.

WO #1 later requested an ambulance to Spadina Avenue and Clarence Square.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TPS between March 1 and 11, 2024:

• BWC recordings;
• ICC recordings;
• TPS Occurrence Report;
• TPS communications recordings;
• Notes - WO #1;
• Notes - WO #2;
• Notes - WO #3;
• TPS policies for Arrest and Use of Force;
• SO #1 Use of Force Training Qualification;
• SO #2 Use of Force Training Qualification; and
• SO #3 Use of Force Training Qualification.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on March 4, 2024:

• The Complainant’s medical records from TWH.

The evidence collected by the SIU, including an interview with the Complainant and video footage that captured the events in question, gives rise to the following scenario. As was their legal right, none of the subject officials agreed an interview with the SIU or the release of their notes.

In the afternoon of February 28, 2024, officers were dispatched to the LCBO at 49 Spadina Avenue, Toronto. Security officers were holding the Complainant for theft and an assault on a security guard. Officers arrived on scene and took the already handcuffed Complainant into custody.

The Complainant was inebriated and belligerent. As she was being led out the LCBO to a waiting cruiser, she advised the officers they would have difficulty placing her in the vehicle.

Once by the driver’s side of the cruiser, the Complainant was placed against the front hood of the vehicle and subjected to a search. The Complainant struggled against the officers’ efforts and had to be pinned against the vehicle. At one point, SO #3, standing behind the Complainant, momentarily leveraged her handcuffed arms upwards and above her head. Shortly thereafter, the Complainant indicated she had a fractured arm.

Following the search, the Complainant was placed in the rear of SO #1’s vehicle for transport to the station. The officer, with WO #1 as his passenger, had travelled a short distance north on Spadina Avenue when he pulled over. The Complainant’s left hand had slipped from its cuff.

SO #1 and WO #1 forced the Complainant out of the cruiser, placed her on the ground in a controlled fashion, and attempted to re-apply the left cuff. The Complainant resisted these efforts, indicating she would not surrender. Shortly, other officers arrived on scene to assist. SO #3 and SO #1 took hold of the Complainant’s left arm and were eventually able to bring it behind her back. The cuff was re-applied, and the Complainant was lifted to her feet and placed again in the rear of the cruiser. She began to cry out that her arm was broken.

The Complainant was transported to hospital following her arrest and diagnosed with a broken left humerus.

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

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) 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.

The Complainant was seriously injured in or around the time of her arrest by TPS officers on February 28, 2024. The SIU was notified of the incident and initiated an investigation naming three subject officials – SO #1, SO #2 and SO #3. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials committed a criminal offence in connection with the Complainant’s arrest and injury.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.

Given what they knew of the theft that had occurred in the LCBO store from the security staff, and the existence of warrants in effect for her arrest, I am satisfied that the officers were within their rights in taking the Complainant into custody.

With respect to the force that was brought to bear during the Complainant’s arrest and period in custody, I am unable to reasonably conclude that it was unlawful. The Complainant, by word and deed, had indicated an unwillingness to cooperate with the police. When she physically resisted their efforts, the officers were entitled to respond with a measure of force. Without resort to strikes or weapons, they did this by applying manual force to meet and overcome her resistance. While the Complainant’s left arm was regrettably broken in the process, whether in the course of the initial search or the subsequent struggle on the ground, the injury would appear more the product of countervailing forces and awkward angles coming together in a dynamic event rather than heavy-handed or unnecessary force by the officers.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: June 26, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit