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 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 death of a 30-year-old man [1] (the “Complainant”).

Notification of the SIU

On November 20, 2019, at 6:15 a.m., Peel Regional Police (PRP) notified the SIU of the following.

On November 20, 2019, police officers responded to a report of a suspicious man in the area of Runningbrook Drive, Mississauga. Upon arrival, police officers located the man, later identified as the Complainant, in the rear yard area of 1185 Runningbrook Drive. As police officers attempted to take the Complainant into custody, a struggle ensued. During the struggle several use of force options were deployed, including a Conducted Energy Weapon (CEW), ASP baton (expandable baton) and oleoresin capsicum (OC) spray. Once the Complainant was subdued and taken into custody, he apparently lost consciousness and went vital signs absent. Cardiopulmonary resuscitation (CPR) was commenced and EMS notified.

The Complainant was transported to the Trillium Health Partners - Mississauga Hospital where, at 4:19 a.m., he was pronounced deceased. 

The Scene

1185 Runningbrook Drive was situated on the northwest corner of Runningbrook Drive and Riverspray Crescent. The entrance to the backyard area was from the driveway fronting on Riverspray Crescent. On the north side of the residence was a wooden raised porch with two sets of stairs to enter. In the porch area was a patio door entrance to the residence.

There was evidence of CEW deployment on the entire surface of the porch and railings: AFIDs, blast doors and separators. There was a single CEW probe with the wire attached on the brick wall of the residence to the left of the patio door entrance. There was a pair of sandals lying askew on the porch and evidence of alcoholic beverage consumption. A large empty bottle of an alcoholic beverage was standing upright beside the barbeque in the northwest corner of the porch. There were a set of handcuffs and an empty canister of OC spray on the patio table near the patio door. On the grassy and garden area of the backyard it was evident there had been a struggle as the grass and garden were compacted and the grass lay flat in these areas.
 

Scene Diagram

Physical Evidence

Figure 1 – SO #2’s OC spray canister




Figure 2 – SO #1’s Taser X2 (same model was used by SO #2 and SO #3)

Summary of CEWs deployment data

SO #1 [2]





SO #2





SO #3



The Arc switch is used to employ a Warning Arc Display. The CEW will arc for as long as the Arc switch is held down. If there were a probe deployment, a momentary press of any Arc switch will result in 5-second activation across the front of the CEW, or across all deployed cartridges.

Expert Evidence

Analysis of CEW deployment data

The SIU submitted the deployment data to be analyzed by an expert. By way of report dated March 10, 2021, the expert outlined his interpretation of the data in the following charts:



Conductivity/Connection Summary – In summary in reviewing Pulse Log Graphs 1A-1E no sustained connection with the optimal charge was established.




Connection Summary - In summary in reviewing Pulse Log Graphs 2A-2E no sustained connection with the optimal charge was established.




Connection Summary – In summary in reviewing Pulse Log Graphs 3A-3B no sustained connection with the optimal charge was established.

The report concluded: “…[the CEW data] will solely demonstrate if a connection was made between the positive and negative contacts of the CEW, It will never establish if the charge was delivered into a subject. From a review of all pulse graph logs no sustained connection was established.”

Video/Audio/Photographic Evidence

Summary of CCTV from a Residence on Riverspray Crescent

3:00:30 a.m. – 3:03:35 a.m.
A person in dark clothing walks from the south side of front of 1185 Runningbrook Drive northbound in front of the garage doors along the east side of the residence, then walks southbound in front of the garage doors along the east side of 1185 Runningbrook Drive, then southbound proceeding across Runningbrook Drive to the south side of the Runningbrook Drive at Riverspray Crescent.

3:10:43 a.m. – 3:19:45 a.m.
The person walks back and forth in front of 1185 Runningbrook Drive on the north side of Runningbrook Drive and then walks eastbound across Riverspray Crescent on north side of Runningbrook Drive out of sight. The person walks northbound in front of the garage doors of 1185 Runningbrook Drive, then southbound in front of 1185 Runningbrook Drive, walking west and east in front of the residence.

 
3:24:21 a.m. – 3:26:00 a.m.
The headlights of a northbound marked cruiser with roof tracking lights activated on Riverspray Crescent turns east into a driveway, then reverses onto the road and proceeds south on Riverspray Crescent. The police cruiser stops at Runningbrook Drive and the roof lights are activated for one second. The police cruiser reverses, then stops while still facing south. The headlights are turned off, but the parking lights are left on.

3:26:27 a.m. – 3:26:55 a.m.
A second police cruiser is driven northbound on Riverspray Crescent from the south side of Runningbrook Drive. It is stopped in front of the first police cruiser and a person walks to the driver’s door of the second cruiser from the first cruiser. Two occupants exit the second police cruiser and join the occupant from the first police cruiser and together they walk westbound on the north side of Runningbrook Drive. One of them walks north along the east side of the house towards the rear and the other two walk west towards the front of the house equipped with an activated flashlight.

3:27:55 a.m.
A person runs along the east side of Runningbrook Drive to the backyard.

3:28:00 a.m.
A person holding an activated flashlight walks northbound to the backyard.

3:36:12 a.m. – 3:36:22 a.m.
A third police cruiser is driven briskly eastbound on Runningbrook Drive and is turned northbound onto Riverspray Crescent, then parked on the east side of Riverspray Crescent immediately south of the backyard of 1185 Runningbrook Drive. The driver exits the police vehicle leaving the headlights on and runs westbound across Riverspray Crescent to the backyard of 1185 Runningbrook Drive.

3:36:52 a.m.
Above the fence of the backyard of 1185 Runningbrook Drive three flashes of light, one immediately after the other, are evident.

3:38:30 a.m.
An ambulance is driven eastbound on Runningbrook Drive and then stops as soon as it turns northbound onto Riverspray Crescent.

3:38:51 a.m. – 3:39:14 a.m.
A person runs southbound from the backyard of 1185 Runningbrook Drive along the east side of the residence and then runs northbound to the backyard of 1185 Runningbrook Drive along the east side of the residence.

3:39:40 a.m.
Two people with flashlights walk from the area of the ambulance, westbound to the backyard of 1185 Runningbrook Drive.

3:40:12 a.m.
A police cruiser is driven eastbound on Runningbrook Drive and with emergency lighting activated and it parks in front of 1185 Runningbrook Drive.
3:43:10 a.m.
Eight people walk southbound from the backyard of 1185 Runningbrook Drive and the first people are pulling what appears to be a stretcher.

3:49:05 a.m.
A person with a flashlight walks southbound from the backyard of 1185 Runningbrook Drive along the east side of the residence to Runningbrook Drive.

3:51:30 a.m.
A person with a flashlight is at the northeast corner of 1185 Runningbrook Drive and two people walk northbound to the backyard along the east side of the residence.

3:52:45 a.m. – 4:01:22 a.m.
The ambulance headlights are turned off and are turned back on. The ambulance is driven northbound on Riverspray Crescent.

Police Communication Recordings

Summary of Telephone Recordings

November 20, 2019

2:38:37 a.m. – CW #3 reported he was calling on behalf of the landlord. One of the tenants was being exceptionally loud and violating the lease contract. Due to the non-emergency nature of the call, CW #3 was advised to call a non-emergency police number.

2:40:34 a.m. – CW #3 reported a noise complaint at 1185 Runningbrook Drive. One of the tenants was violating the tenant and landlord contract and making excessive noise at night. The tenant has just left the house.

The call-taker said if he left, then he was no longer making noise and the call would be canceled. If he came back and was making a lot of noise, per the call-taker, they were to call back.

2:58:21 a.m. – CW #3 phoned the police and reported the tenant brought a stranger to the house and they were making noise. He indicated they were yelling and drunk. The police re-opened the call.

3:02:13 a.m. – The call-taker told CW #3 they would not come right now because they had emergencies to tend to and that his call was low priority.

3:15:23 a.m. – CW #2 called police to report that somebody was being very annoying outside on the street, walking up and down, swinging his arms, and screaming and yelling in the area of Runningbrook and Riverspray. CW #2 asked if the police could send a cruiser down to check him out.

3:31:01 a.m. – The police asked EMS to attend the intersection of Runningbrook Drive and Riverspray Crescent. The EMS dispatcher asked if the person was awake and breathing normally. The police operator replied they did not know but that he had been “Tazed”. They (police officers at the scene) were asking for a rush on ambulance.

3:40:25 a.m. – Police communications operator to dispatchers: “I don’t know what the fuck’s going on. We had a call for a landlord - tenant issue. One of the tenants was making some noise. So, it sounds like the boys got him in the backyard there and guess he’s a fairly large male and it sounded like they had cuffs on him, and everything was 10 - 4. Get a rush on the ambulance, because they Tased him, but then I heard [SO #1] say everybody could slow down, then all hell broke loose. So, we’re trying to figure it out as well. From the previous call it was just a tenant that was told by his landlord to call the police because this guy is here and he’s causing problems and then he said, ‘I’m leaving,’ or, ‘The guy is leaving,’ so we said call us back if he comes back. Well he came back, and this is where we’re at now.”

Summary of Radio Recordings

3:17:55 a.m. Dispatcher: Any Unit available for a priority, suspicious person Runningbrook and Riverspray. The complainant advises they don’t know if he’s intoxicated, high or MHA but he’s walking around waving and yelling at nobody. He’s across from the plaza currently. The complainant was calling from her home.

3:24:31 a.m. SO #2. I think I have him on Riverspray. Now he’s running. He’s in someone’s backyard. We’re going to have to deal with this expeditiously.

3:27:17 a.m. SO #1. We need units. Man’s voice in the background, “Put your hands behind your back.”

3:30:49 a.m. SO #1: We got one in custody. We need an ambulance. Unit can slow down. I repeat, slow down. He is in custody. Dispatcher: 10-4. One in custody. Units can slow down. Ambulance is en route.

3:31:35 a.m. SO #1: Dispatch. I want a rush on that ambulance, please and I will take more units. He’s a very big lad. Dispatcher: 10 - 4. Actually, get somebody. If there’s any units available. Head down to Runningbrook and Riverspray?

3:32:03 a.m. SO #1: 1185 Riverspray.

3:34:29 a.m. SO #2: One of these units. We need assistance here.

3:37:49 a.m. SO #1: Rush on ambulance, now.

3:39:36 a.m. SO #1: We do not need more units. We are good here. We just need the ambulance back here.

3:45.54 a.m. SO #1? Do you have an update? SO #1: Yeah. A male’s been loaded onto the ambulance. We’re gonna be 10 - 6 [Busy-Unless Urgent] here.

4:19:18 a.m. – 4:48:00 a.m. Male has been pronounced at hospital, 4:19 a.m. [Doctor’s name] The pronouncing doctor is on the line with the coroner.

Materials obtained from Police Service

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

• Communication Recordings;
• Audio Report-911 Calls;
• Audio Report-Communications;
• Disclosure Log-PRP;
• Event Chronology;
• Notes-WO #2;
• Notes-WO #1;
• Notes-SO #2;
• Notes-WO #3;
• Occurrence Details;
• Policy-Criminal Investigations;
• Policy-Incident Response;
• Training History-SO #1;
• Training History-SO #3; and
• Training History-SO #2.

Materials obtained from Other Sources

The SIU obtained and reviewed the following records from non-police sources:

• EMS Incident and Ambulance Call Reports;
• Medical Records;
• Rental Agreement – CW #5;
• CCTV from a residence on Riverspray Crescent;
• Photos from CW #5;
• Cell phone video of CW #5; and
• Photos and Video from CW #11. [3]

The following scenario emerges from the weight of the evidence collected by the SIU, which included statements from one of the three subject officers – SO #2 – and two civilian eyewitnesses who observed the Complainant’s arrest in parts. The investigation also benefitted from a review of CEW data, the police communications recordings, and the post-mortem examination report. As was their right, neither of the other two subject officers consented to interviews with the SIU or the release of their incident notes.

At about 3:00 a.m. on November 20, 2019, CW #3 – a tenant of an apartment at 1185 Runningbrook Drive – called police on behalf of his landlords – CW #5 and CW #13. Another tenant of the residence – the Complainant – had been creating a disturbance in the home and around the neighbourhood. CW #3 had contacted police about 20 minutes earlier, again at the request of the landlords, to report that the Complainant was being exceptionally loud and refusing to have an acquaintance of his removed from his room. At about 3:15 a.m., another call came into police from a neighbour in the area complaining of a man outside – the Complainant – who was screaming and yelling in the area of Runningbrook Drive and Riverspray Crescent. Police officers were dispatched to investigate.

SO #2 was the first officer to arrive at the scene, arriving at approximately 3:21 a.m. The Complainant was at the time walking south on Riverspray Crescent, south of Runningbrook Drive, alongside the shopping plaza parking lot situated on the southeast corner of the intersection. As the Complainant was flailing his arms and making unintelligible sounds, SO #2 drove beside him through the parking lot and asked him to go home. The Complainant did not acknowledge SO #2, nor did he respond in any way; rather, he turned and walked north toward Runningbrook Drive, across the road, and into the backyard of the home located on the northwest corner of the intersection.

SO #2 was concerned that the Complainant might be trespassing on the property and a danger to the occupants of the home. Joined by SO #1 and SO #3, who had by then arrived in their cruisers, the officers approached the residence on foot to investigate and made their way into the backyard via a gateway entrance to the north of the home’s garage. There they found the Complainant standing on a raised deck near sliding doors into the home. Unaware that the Complainant lived at the address, the officers ordered him to the ground. The Complainant positioned himself prone on the deck, but refused to place his arms behind his back as directed. Instead, he continued to flail his arms.

Either SO #1 or SO #3 discharged their CEW at the Complainant, whereupon the Complainant stood up and lunged toward SO #2. The officer, who was standing by the edge of the deck within a metre or two of the Complainant, jumped to the ground below to avoid the Complainant and heard the sound of another CEW deployment. The Complainant, now standing on the lawn, became rigid and fell face down on the ground.

There ensued a strenuous physical struggle between all three officers and the Complainant. Unable to control the Complainant on the ground via their brute strength alone, SO #2 fired his CEW at the Complainant. The deployment had no effect. The same was true of multiple other CEW discharges by all three officers. [4] The officers were finally able to overcome the Complainant’s resistance and handcuff his hands behind his back after SO #2 directed a blast of his OC spray at the back of the Complainant’s head.

Once handcuffed and still prone on the ground, the Complainant became quiet and still. The officers took a step back and, exhausted, some time to compose themselves and call for an ambulance. They were unaware of any breathing difficulty on the part of the Complainant until WO #2, arriving in the backyard shortly after the arrest, noticed a foamy substance around the Complainant’s mouth and found no pulse.

WO #2 and SO #3 turned the Complainant over onto his back and began CPR. Calls went out over the radio to place a rush on the ambulance. Within minutes, paramedics arrived at the scene and placed the Complainant in the ambulance where they attempted to revive him for a period before rushing him to hospital. The Complainant arrived at hospital at about 4:10 a.m. Despite further resuscitative efforts, the Complainant was pronounced deceased at 4:19 a.m.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

Sections 219 and 220, Criminal Code -- Criminal negligence causing death

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

The Complainant was pronounced deceased at hospital on November 20, 2019. He had fallen into acute medical distress shortly after being arrested by PRP officers. The three officers – SO #3, SO #1 and SO #2 – were each identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the subject officers 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. I am satisfied that SO #2, SO #1 and SO #3, were within their rights in attempting to take the Complainant into custody. They had been called to the scene based on reports that an intoxicated Complainant was causing a disturbance in the neighbourhood by his boisterous outbursts. Arriving in the area, SO #2 observed the Complainant on Riverspray Crescent across from a plaza and tried to speak with him. The Complainant ignored SO #2 and instead made his way into the backyard of his residence. SO #2 was unaware that the Complainant lived at the address, and was understandably concerned about the Complainant’s intentions. On this record, the officers had cause to apprehend the Complainant on the basis of a legitimate worry about a breach of the peace. The issue turns to the propriety of the force in the course of their interventions.

Though there is no doubt that significant force was used against the Complainant, I am satisfied it was not unlawful. Of particular concern is the first CEW discharge by either SO #1 or SO #3, delivered at a time when the Complainant had placed himself on the floor of the backyard deck. I accept that the Complainant continued to flail his arms at this time and refused to place them behind his back as directed. Might not the officers have been better advised to simply move in to attempt to take physical control of the Complainant before resorting to a weapon? Perhaps. However, allowance must be made for the fact that police officers embroiled in potentially volatile situations need not measure the nature and extent of their force with precision. The law affords them a degree of latitude; what is required is a reasonable response, not necessarily an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2d) 96 (Ont. CA). By the time of the first CEW discharge, the Complainant had given the officers reason to believe that he was intoxicated, intruding onto private premises, and unwilling to surrender peacefully to arrest given he continued to flail his arms and refused to place them behind his back as directed. The Complainant was also a big man and it would not have been an easy matter to overpower him in the event he offered resistance. [5] On this record, I am unable to conclude with any confidence that the first CEW discharge fell outside the range of what was reasonably necessary in the moment to aid in the Complainant’s apprehension.

What followed was an intense struggle between the officers and the Complainant. After the first CEW deployment, the Complainant regained his footing and lunged at SO #2, who took evasive action by moving off the deck a short drop onto the ground below. A further CEW discharge occurred about this time, which appears to have temporarily incapacitated and felled the Complainant. With little success, SO #3 and SO #1 attempted to control the Complainant’s arms as SO #2 stood on top of the Complainant’s legs to keep them from flailing. Although there is no witness testimonial to this effect, it may well be that SO #1 and/or SO #3 also struck the Complainant during this time with their arms or legs given the presence of bruising on the Complainant’s torso and arms. The Complainant showed incredible strength and was able to ward off the officers’ efforts. Again, the officers resorted to their CEWs. While it remains uncertain exactly in what order the discharges occurred, the data downloaded from the CEWs indicate that SO #2, SO #1 and SO #3, fired their weapons five, five and two times, respectively. The Complainant’s fight, however, remained unabated; the discharges seemingly had no effect on him. [6] Lastly, SO #2 drew his OC spray and directed a blast toward the Complainant’s head. Moments later, the officers were able to handcuff the Complainant behind his back.

Here, too, the evidence falls short of reasonably establishing that excessive force was used against the Complainant. It is apparent on the accounts of the three witnesses to the struggle who provided evidence to the SIU - one subject officer and two civilians - that the Complainant proved a formidable physical challenge to the officers. SO #2 described the Complainant as being in a frenzied state and believed he was in the throes of excited delirium. According to the officer, the Complainant needed help given his behaviour and it was imperative that he be apprehended quickly. With respect to the number of CEW discharges, it is important to note that none of them appeared to sufficiently immobilize the Complainant, if at all, to permit the officers to secure him in restraints. [7] Moreover, these were delivered over a short period of time in the course of which each officer was reacting independently in the heat of the moment to the exigencies at hand. The same, in my view, may well be said of any blows that might have been struck by SO #1 and/or SO #3 at this time. [8] As for the pepper spray, it appears to have been used only after repeated CEW discharges had failed to subdue the Complainant. In these circumstances, there is insufficient evidence in my view to reasonably conclude that the force used by the officers following the initial CEW discharge fell afoul of the limits prescribed by the criminal law.

The pathologist described the cause of the Complainant’s death in the following terms:

The cause of death is sudden death in a prone, restrained, agitated, morbidly obese man with blunt injuries in the setting of struggle, conducted electrical weapon (CEW) and oleoresin capsicum (OC) spray deployment. The mechanism of death was most likely a fatal cardiac arrhythmia. The cause of this man’s death was multifactorial in nature, with possible contributions of his agitated state, the interaction with police, including blunt injuries, his restraint, his prone position in the context of morbid obesity, and the perimortem deployment of CEWs and OC spray.

While I am satisfied on the foregoing analysis that the force used by the officers was not unlawful, the pathological evidence raises issues of potential negligence that must be assessed in the criminal liability analysis. For example, following the Complainant’s arrest, he was left in a prone position with his hands restrained behind his back for a period of time before losing vital signs and the commencement of CPR. In addition, the evidence suggests that the Complainant was in mental distress at the time of his confrontation with the police, raising the question of the propriety of the police response in relation to an individual who was not of sound mind.

Turning first to the Complainant’s mental illness, the evidence indicates that he suffered from schizophrenia and was on medication to treat his condition. The evidence further indicates that the Complainant was a regular user of cannabis and that his ingestion of the drug often led to flare-ups of psychotic behaviour. According to the witness evidence, the Complainant started acting strangely after consuming cannabis at about 11:30 p.m. of November 19, 2019.

At the time of the events in question, PRP had a Crisis Outreach Assessment Support Team, or COAST. Each COAST unit pairs a plainclothes officer with a mental health professional, who are available to respond to calls on a 24-7 basis. COAST is a method by which the police service seeks to respond more effectively to calls for service involving persons experiencing mental health crisis or emotional distress. However, pursuant to the PRP policy in effect at the time, COAST units are not mobilized unless the following four conditions are met: the call involves someone 16 years of age and over who is experiencing a mental health issue; the call is not of an emergent nature; there are no weapons involved in the call; and, the situation is calm. COAST was not deployed in response to this call. Ought it have been?

The offence that arises for consideration in light of these issues is criminal negligence causing death contrary to section 220 of the Criminal Code. Simple negligence will not suffice to give rise to liability under the provision. What is required, in part, is conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. On balance, I am not satisfied on reasonable grounds that the subject officers were criminally negligent in the manner in which they, first, approached the Complainant and, second, treated him after his arrest.

It is understood that placing a highly agitated, obese individual in a prone position with arms restrained behind their back may be associated with a risk of adverse health outcomes. In his autopsy report, the pathologist recognized this contingency even while acknowledging the conflicting evidence in the literature regarding the relationship between the prone position and deaths in custody. The subject officers would have done well to re-position the Complainant so that he was no longer prone on the ground promptly after he was handcuffed. That said, though it remains unclear precisely how long the Complainant was in the prone position, the evidence suggests that it was no longer than a minute or two. [9] Moreover, within this period of time, there is no indication that the Complainant was ostensibly in acute medical distress until about the time that WO #2 arrived on scene, noticed what he described as “agonal” breathing and a foamy substance in and around the Complainant’s mouth, and took steps to place him on his back. Thus, while even fractions of time are of the essence in these cases, it would not appear that the Complainant was prone on the ground for any protracted period of time. In the circumstances, while I find that the subject officers on scene may not have acted as quickly as they could have to remove the Complainant from the prone position after he had been handcuffed, their lapses fall short of constituting a marked and substantial deviation from a reasonable level of care.

Whether COAST should have been deployed and whether it would have made a difference is arguable. On the one hand, none of the information provided to the police service at intake would have necessarily suggested that this was a case involving someone having a mental health crisis. The call came in largely as a noise complaint involving an inebriated individual. And the police were unaware of any cautions suggesting the Complainant was mentally ill. Certainly, nothing along those lines was conveyed to the officers who were dispatched. On the other hand, one wonders whether SO #2, having arrived at the scene and observed the Complainant’s odd and non-responsive behaviour, might have had an opportunity to ask for the deployment of mental health resources. What must be borne in mind, however, is that things moved quickly from the moment the officer first encountered the Complainant to when the Complainant walked into the backyard of his residence. In the circumstances, the officers had reason to believe they needed to intercede quickly in light of what they perceived, reasonably in my view, to be an emergent risk to the safety of the home’s occupants. In view of these considerations, I am unable to find fault with the failure to mobilize COAST in this event, nor does it appear that COAST, had it been deployed, would have made a difference given the speed with which events unfolded.

In the final analysis, I am satisfied for the foregoing reasons that there is insufficient evidence to reasonably conclude that the subject officers acted other than lawfully in their dealings with the Complainant, whether in the force they used to assist in his arrest or via the manner in which they approached him before and after the struggle that marked his arrest. Accordingly, though the Complainant’s death was doubtless a tragedy, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: March 25, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit