SIU Director’s Report - Case # 20-OCD-133
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Contents:
Mandate of the SIU
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.
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.
Information Restrictions
Freedom of Information and Protection of 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.
- 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.Mandate Engaged
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 death of a 35-year-old man (the “Complainant”).
“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 death of a 35-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On June 9, 2020, at 12:04 a.m., the York Regional Police (YRP) notified the SIU of the Complainant’s death.YRP reported that on June 8, 2020, at 11:00 p.m., YRP officers responded to a domestic incident involving the Complainant who possibly had a mental health disorder and was burning items inside the home. The first YRP officer arrived at the home and was attacked by the Complainant. The officer was unable to radio for help and the Complainant’s wife called 911. Two YRP police officers responded and assisted in effecting the arrest of the Complainant. One of the involved officers used his Conducted Energy Weapon (CEW) in a drive stun mode. The officers were able to handcuff the Complainant with his hands behind his back when he suddenly went unresponsive. The officers started to render medical care. Paramedics responded and were unable to revive the Complainant.
The Team
Number of SIU Investigators assigned: 3 Number of SIU Forensic Investigators assigned: 2
Complainant:
35-year-old male, deceasedCivilian Witnesses (CW)
CW #1 Not interviewed (Next-of-kin)CW #2 Interviewed
CW #3 Interviewed
Witness Officers (WO)
WO #1 Interviewed, notes received and reviewed WO #2 Interviewed, notes received and reviewed
Subject Officers (SO)
SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal rightSO #2 Declined interview and to provide notes, as is the subject officer’s legal right
Evidence
The Scene
The scene was located in a house on Jade Crescent in the City of Vaughan. The Complainant was located deceased immediately inside the front doors. He was found lying on his back, with his feet straight and his arms down by his sides with medical pads attached to his chest. The Complainant’s face and nose appeared bloodied and his right eye was swollen shut. Two small linear marks were located on the Complainant’s lower right side. The scene was forensically examined, photographed, and measured by the SIU.
Physical Evidence
SO #2’s CEW Data
Figure 1 – SO #2’s CEW
WO #1’s In-Car Camera (ICC) Video and Audio Recording
A review of the ICC recordings captured WO #1 driving to a residence on Jade Crescent. Shortly after WO #1 arrives at the residence on Jade Crescent, he exits his police vehicle, and runs and asks someone, “Which one?” [now known to be WO #1 asking the direction of the Complainant’s house]. Shortly after, the audio recording captured heavy breathing [believed to be coming from SO #1] suggesting someone was out of breath.
In the background of the audio recording a distressed woman’s voice can be heard saying, “I’m sorry.” A male voice can be heard telling someone to stand back. Another male voice [believed to be SO #2] was captured saying, “Yeah, I gave him a drive stun.” Further male voices were captured saying, “There’s blood, roll him over.” Meanwhile, heavy breathing is heard throughout the recording. Unfortunately, police radio transmissions interfered with WO #1’s audio recordings which caused some of the recording to be inaudible.
The audio recorded male voices, believed to be that of the involved officers, trying to revive the Complainant and asking him if he was “okay” and to “wake up”. Soon after, the officers can be heard starting CPR and radio transmissions are made requesting an ambulance to the Complainant’s residence. The rest of the audio recording captured the involved officers indicating the Complainant was breathing, and radio transmissions from the officers informing a police dispatcher that the Complainant was breathing but no pulse was located. There was a radio transmission for a request for more officers to attend the scene to remove handcuffs. Paramedics arrived, telling the officers to stop administrating CPR and that a mask was required. One officer could be heard telling the paramedics “it was pretty dynamic” situation and that the Complainant had a mental health issue.
The audio recordings then captured the paramedics telling everyone to leave the house including the involved officers.
The remainder of the audio recordings offered no further relevant information relating to this event.
Police Communication Recordings
The SIU received and reviewed audio files relating to two 911 calls CW #2 made to a YRP police dispatcher on June 8, 2020. The first 911 call made by CW #2 was at 10:49:15 p.m., reporting that her husband was in a mental health crisis and had lit rubber gloves on fire in the basement of their home. She further stated that she feared for the safety of her family and needed police to remove her husband from the home. She informed the 911 dispatcher that police officers had recently attended her home and taken her husband to the hospital, but he was released. She told the 911 dispatcher that her husband’s behaviour had worsened since his release from the hospital and the medication he was prescribed was not helping him with his delusions. The 911 dispatcher informed CW #2 that a police officer had arrived at her residence and it was safe to go outside to speak with the officer. The 911 telephone call ended at 10:58:10 p.m.At 11:04:03 p.m., a second 911 call was made by CW #2. CW #2 frantically reported that that her husband was being violent with a police officer and the officer needed help. CW #2 repeated several times to the 911 dispatcher that her husband was attacking the officer and that her husband was a big man. CW #2 told the 911 dispatcher the police officer was on top of her husband but was losing control of him. The recording then captured CW #2 telling the 911 dispatcher that her husband was on top of the police officer, the officer was lying on the floor on his back, struggling with her husband. She continued to say the officer needed help.
The 911 recording captured a commotion in the background in which several frantic voices could be heard. CW #2 remained on the telephone with the 911 dispatcher and was heard shouting at her husband to stop. Shortly after, CW #2 informed the 911 dispatcher that additional police officers had arrived at her home. The remainder of the recording captured CW #2 shouting at a family member to stay out of the police officers’ way.
Materials Obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from YRP:- Computer-Assisted Dispatch-Call Summaries (x2);
- General Occurrence Hardcopies (x3);
- Global Positioning System Data Replay;
- ICC Disclosure Request Document;
- ICC Recordings-WO #1;
- Mobile Data Terminal Messages;
- Notes-WO #1;
- Notes-WO #2;
- Officer Activity Logs;
- Training and Recertification Record-SO #2;
- Training and Recertification Record-SO #1; and
- Use of Force Procedure.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from non-police sources:- Report of Postmortem Examination from the Coroner’s Office on January 13, 2021.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with SO #1, two witness officers (one of whom participated in the arrest) and two civilian witnesses, who observed the events in question. As was his right, the other subject officer – SO #2 – chose not to provide the SIU a statement. At about 10:50 p.m. on June 8, 2020, CW #2 called 911 to report that her husband – the Complainant - was in mental health distress and burning items in the home. She was concerned for her safety and the safety of her family , and wanted him brought to hospital for examination. The police, CW #2 noted, had recently been to the home to deal with the Complainant and had taken him to hospital on that occasion. Officers were dispatched to the address – a house on Jade Crescent, Vaughan.
Shortly before 11:00 p.m., SO #1 was the first officer to arrive at the scene. He was let into the house by CW #2 and two other family members , who were present at the time. They appeared worried and indicated that the Complainant was in the garage. As the officer approached the interior door to the garage to speak with the Complainant, it suddenly swung open. The Complainant appeared at the door. SO #1 explained that his family was concerned about him and he was there to check on his well-being. The Complainant admitted he was experiencing symptoms of his mental illness but that he was otherwise fine. The officer conducted a quick search of the Complainant without incident. Just as it appeared that things were in order, however, the Complainant pushed past SO #1 and made for the kitchen.
With his right hand holding onto the Complainant’s left bicep, SO #1 accompanied him for a distance trying to redirect him into the living room; the officer was concerned that the Complainant would have access to potential weapons in the kitchen in the form of knives and the like. The Complainant was determined to enter the kitchen and uttered that there were lasers coming from the ceiling. Shortly thereafter, with SO #1 still holding his left arm, the Complainant turned to face the officer and struck the left side of his face with his right hand. There ensued a violent confrontation between the parties.
SO #1 was able to take the Complainant down following the punch but was himself pulled to the floor in the hallway just inside the front door by the Complainant. The two jockeyed for position as they fought over the next few minutes, at times SO #1 over top of the Complainant with the upper hand, at other times, vice-versa. In the course of the struggle, SO #1 delivered multiple punches to the Complainant’s face, as well as several knees, elbows and headbutts. The Complainant remained undeterred and repeatedly attempted to choke the officer whenever the opportunity presented itself. The Complainant’s family shouted at the Complainant to stop but to no avail. At about 11:04 p.m., concerned with the SO’s predicament, CW #2 called 911 again to report that the officer needed help.
WO #2 and SO #2, who were making their way to the address in response to the first 911 call from the residence, were apprised of the second call. They entered the residence while CW #2 was still on the phone to find the Complainant on top of SO #1 in the front foyer of the home. WO #2 and SO #2 immediately intervened and tried to wrestle control of the Complainant’s arms. The Complainant resisted their efforts and was met with a punch to the right side by SO #2. When the strike failed to subdue the Complainant, SO #2 drew his CEW and deployed it in drive-stun mode into the Complainant’s lower back. The Complainant locked up with the discharge, allowing the officers to bring his arms behind his back and handcuff them.
Shortly after he was handcuffed, the officers noticed that the Complainant was unresponsive. SO #2 requested an ambulance and CPR was commenced on the Complainant. The attending paramedics assumed the Complainant’s care and asked the officers to leave the residence. Sometime thereafter, a paramedic exited the home and advised the police that the Complainant had been pronounced deceased.
Cause of Death
The pathologist at autopsy was unable to ascertain the cause of the Complainant’s death with any certainty.
Shortly before 11:00 p.m., SO #1 was the first officer to arrive at the scene. He was let into the house by CW #2 and two other family members , who were present at the time. They appeared worried and indicated that the Complainant was in the garage. As the officer approached the interior door to the garage to speak with the Complainant, it suddenly swung open. The Complainant appeared at the door. SO #1 explained that his family was concerned about him and he was there to check on his well-being. The Complainant admitted he was experiencing symptoms of his mental illness but that he was otherwise fine. The officer conducted a quick search of the Complainant without incident. Just as it appeared that things were in order, however, the Complainant pushed past SO #1 and made for the kitchen.
With his right hand holding onto the Complainant’s left bicep, SO #1 accompanied him for a distance trying to redirect him into the living room; the officer was concerned that the Complainant would have access to potential weapons in the kitchen in the form of knives and the like. The Complainant was determined to enter the kitchen and uttered that there were lasers coming from the ceiling. Shortly thereafter, with SO #1 still holding his left arm, the Complainant turned to face the officer and struck the left side of his face with his right hand. There ensued a violent confrontation between the parties.
SO #1 was able to take the Complainant down following the punch but was himself pulled to the floor in the hallway just inside the front door by the Complainant. The two jockeyed for position as they fought over the next few minutes, at times SO #1 over top of the Complainant with the upper hand, at other times, vice-versa. In the course of the struggle, SO #1 delivered multiple punches to the Complainant’s face, as well as several knees, elbows and headbutts. The Complainant remained undeterred and repeatedly attempted to choke the officer whenever the opportunity presented itself. The Complainant’s family shouted at the Complainant to stop but to no avail. At about 11:04 p.m., concerned with the SO’s predicament, CW #2 called 911 again to report that the officer needed help.
WO #2 and SO #2, who were making their way to the address in response to the first 911 call from the residence, were apprised of the second call. They entered the residence while CW #2 was still on the phone to find the Complainant on top of SO #1 in the front foyer of the home. WO #2 and SO #2 immediately intervened and tried to wrestle control of the Complainant’s arms. The Complainant resisted their efforts and was met with a punch to the right side by SO #2. When the strike failed to subdue the Complainant, SO #2 drew his CEW and deployed it in drive-stun mode into the Complainant’s lower back. The Complainant locked up with the discharge, allowing the officers to bring his arms behind his back and handcuff them.
Shortly after he was handcuffed, the officers noticed that the Complainant was unresponsive. SO #2 requested an ambulance and CPR was commenced on the Complainant. The attending paramedics assumed the Complainant’s care and asked the officers to leave the residence. Sometime thereafter, a paramedic exited the home and advised the police that the Complainant had been pronounced deceased.
Cause of Death
Relevant Legislation
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.
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,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;(b) 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(c) 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,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) 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.
Analysis and Director's Decision
On June 8, 2020, the Complainant passed away in his home following his arrest by several YRP officers. Two of the arresting officers – SO #1 and SO #2 – were identified as the subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject officer committed a criminal offence in connection with the Complainant’s death.
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 authorized or required to do by law. By the time of the physical confrontation, SO #1 had decided to apprehend the Complainant under section 17 of the Mental Health Act. The Complainant had been diagnosed with a psychiatric disorder and was acting strangely on the day in question, prompting a call to police from his wife who was concerned about her family’s safety. Once at the house, SO #1 saw for himself the signs of disconcerting behaviour coming from the Complainant, including a pile of latex gloves that the Complainant had just burned inside the home for no apparent reason. In the circumstances, I am satisfied that SO #1 was within his rights in seeking to apprehend the Complainant under the Mental Health Act.
Thereafter, I am satisfied that the force used by SO #1 and SO #2, who joined in the effort to apprehend the Complainant minutes after the altercation started, was lawful. While it is clear that SO #1 delivered many strikes to the Complainant as they fought on the floor, inflicting a series of lacerations, abrasions and bruises, it is also apparent that the Complainant battled the officer strenuously throughout the interaction, attempting to choke him on several occasions. The Complainant was a big and powerful man, and proved a formidable challenge even after the arrival of two additional officers. It was only with the deployment of the CEW by SO #2 that the Complainant was subdued and the officers able to handcuff him. The discharge itself, as data downloaded from the weapon show, lasted no more than a second. On this record, I am unable to reasonably conclude that the overall force used by the officers was disproportionate, excessive or unreasonable.
In arriving at this conclusion, I am mindful of the pathologist’s findings at autopsy. While unable to ascertain a definitive cause of death, the pathologist was of the view that it was possible the Complainant’s death arose from atherosclerotic coronary disease, excited delirium syndrome or a combination of both. The pathologist further indicated that the use of a CEW was unlikely to have caused death, and that the bruising, abrasions and lacerations on the Complainant’s person were not serious injuries and were unrelated to the death.
It is apparent that the Complainant was of unsound mind at the time of these unfortunate events. He had struggled with his mental health for a period and even been hospitalized on at least one prior occasion. SO #1 was aware that the Complainant had a history of mental illness and did what he could in their initial encounter to avoid causing the Complainant any further distress, this while knowing that he would have to take the Complainant into custody under the Mental Health Act given the family’s concerns and fears. His initial overtures were non-aggressive. He introduced himself to the Complainant by assuring him he was there to check on his well-being and not for any law enforcement action. It was SO #1’s intention to buy time with the Complainant to allow other officers to arrive at the address, which, had that occurred, may have resulted in a less violent apprehension. Regrettably, the officer’s hand was forced when the Complainant lashed out physically at the officer prior to the other officers’ arrival. Be that as it may, as I am satisfied that SO #1 and SO #2
conducted themselves lawfully throughout their encounter with the Complainant, there is no basis for proceeding with criminal charges and the file is closed.
Date: March 1, 2021
Joseph Martino
Director
Special Investigations Unit
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 authorized or required to do by law. By the time of the physical confrontation, SO #1 had decided to apprehend the Complainant under section 17 of the Mental Health Act. The Complainant had been diagnosed with a psychiatric disorder and was acting strangely on the day in question, prompting a call to police from his wife who was concerned about her family’s safety. Once at the house, SO #1 saw for himself the signs of disconcerting behaviour coming from the Complainant, including a pile of latex gloves that the Complainant had just burned inside the home for no apparent reason. In the circumstances, I am satisfied that SO #1 was within his rights in seeking to apprehend the Complainant under the Mental Health Act.
Thereafter, I am satisfied that the force used by SO #1 and SO #2, who joined in the effort to apprehend the Complainant minutes after the altercation started, was lawful. While it is clear that SO #1 delivered many strikes to the Complainant as they fought on the floor, inflicting a series of lacerations, abrasions and bruises, it is also apparent that the Complainant battled the officer strenuously throughout the interaction, attempting to choke him on several occasions. The Complainant was a big and powerful man, and proved a formidable challenge even after the arrival of two additional officers. It was only with the deployment of the CEW by SO #2 that the Complainant was subdued and the officers able to handcuff him. The discharge itself, as data downloaded from the weapon show, lasted no more than a second. On this record, I am unable to reasonably conclude that the overall force used by the officers was disproportionate, excessive or unreasonable.
In arriving at this conclusion, I am mindful of the pathologist’s findings at autopsy. While unable to ascertain a definitive cause of death, the pathologist was of the view that it was possible the Complainant’s death arose from atherosclerotic coronary disease, excited delirium syndrome or a combination of both. The pathologist further indicated that the use of a CEW was unlikely to have caused death, and that the bruising, abrasions and lacerations on the Complainant’s person were not serious injuries and were unrelated to the death.
It is apparent that the Complainant was of unsound mind at the time of these unfortunate events. He had struggled with his mental health for a period and even been hospitalized on at least one prior occasion. SO #1 was aware that the Complainant had a history of mental illness and did what he could in their initial encounter to avoid causing the Complainant any further distress, this while knowing that he would have to take the Complainant into custody under the Mental Health Act given the family’s concerns and fears. His initial overtures were non-aggressive. He introduced himself to the Complainant by assuring him he was there to check on his well-being and not for any law enforcement action. It was SO #1’s intention to buy time with the Complainant to allow other officers to arrive at the address, which, had that occurred, may have resulted in a less violent apprehension. Regrettably, the officer’s hand was forced when the Complainant lashed out physically at the officer prior to the other officers’ arrival. Be that as it may, as I am satisfied that SO #1 and SO #2
conducted themselves lawfully throughout their encounter with the Complainant, there is no basis for proceeding with criminal charges and the file is closed.
Date: March 1, 2021
Joseph Martino
Director
Special Investigations Unit
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.