News Release

News Release

SIU Closes Investigation into Toronto Custody Death

Case Number: 11-TCD-155   

Mississauga (18 January, 2012) --- The Special Investigations Unit (SIU) has reviewed the conduct of the police in connection with the August 2011 death of 45-year-old Charles McGillivary.  Ian Scott, the Director of the SIU, has concluded there are no reasonable grounds to believe two officers with the Toronto Police Service committed a criminal offence in this case.

The SIU assigned three investigators and two forensic investigators to probe the circumstances of this incident.  The subject officers provided copies of their duty notes and provided statements to the SIU.  Ten witness officers and twenty-three civilian witnesses were interviewed.  A post-mortem examination was performed and tissue samples were sent to an American laboratory for specialized DNA testing. In addition, a video recording of the incident was reviewed.

The SIU investigation found that the following events took place on August 1:
• At approximately 8:00 p.m., the two subject officers responded to a Christie Street residence to deal with a 911 call.  The landlady of the residence complained that a former tenant named “Raymond”* was seen on the premises despite being evicted.  He refused to leave when directed.  By the time officers arrived, Raymond had fled the area.  Based on information received from the officers’ electronic search of Raymond’s police record which indicated that he was in breach of a number of terms of his recognizance (bail conditions) related to an outstanding charge, and in possession of a recent photograph of Raymond stored in a police database, the officers began looking for an individual fitting his description in the immediate vicinity.  
• In the meantime, Mr. McGillivary was walking westbound on Bloor Street near Christie Street.  His mother was approximately a block behind him and their plan was to go for an evening walk.  Unbeknownst to the subject officers, Mr. McGillivary was developmentally delayed and was largely non-verbal.  Coincidentally, he happened to roughly fit the description of Raymond, the man the subject officers were looking for.
• The subject officers were driving eastbound on Bloor Street W. approaching Christie Street when they saw a man (Mr. McGillivary) fitting Raymond’s description walking westbound on the south side of Bloor Street and crossing Grace Street. 
• The officer who was in the passenger seat of the cruiser rolled down the window and yelled out “Raymond” in the direction of Mr. McGillivary.  Mr. McGillivary did not respond and kept walking.  The officers made a u-turn and drove westbound in the eastbound lane in order to drive alongside Mr. McGillivary.  Mr. McGillivary immediately turned around and began walking eastbound on Bloor Street at a much faster pace.  The officers exited the cruiser and began chasing Mr. McGillivary eastbound along Bloor Street.  They believed they were dealing with Raymond.
• The officers caught up to Mr. McGillivary just east of Grace Street.  One of the subject officers attempted to speak to Mr. McGillivary but he did not provide any verbal responses. They struggled with him and he would not permit them to place handcuffs on his wrists. An officer used a leg sweep to take him to the ground.  Mr. McGillivary landed on his stomach and continued to struggle with the subject officers.  One officer took control of Mr. McGillivary’s left arm while the other officer took control of the right arm by pressing his knee into Mr. McGillivary’s right shoulder.  They placed two sets of handcuffs on his wrists.  Immediately after Mr. McGillivary was handcuffed, he fell into medical distress; his complexion turned purple and he lost consciousness. The officers removed the handcuffs, placed him in a recovery position on the sidewalk and requested an ambulance.
• By the time the ambulance attendants arrived, Mr. McGillivary had stopped breathing.  One officer performed chest compressions while the other supported Mr. McGillivary’s head.  He was transported to Toronto Western Hospital where he was pronounced deceased.

The post-mortem examination was performed by Dr. Pollanen, the province’s Chief Forensic Pathologist. The initial autopsy disclosed only minor blunt force injuries and no obvious cause of death.  However, upon review of the results of specialized DNA testing of tissue samples taken from Mr. McGillivary at autopsy, which revealed an underlying heart condition, the pathologist was of the opinion that the most likely explanation for Mr. McGillivary’s death was the underlying heart condition, which resulted in a cardiac arrhythmia precipitated by struggle and restraint during his interaction with the police. 

Director Scott said, “While a coroner’s inquest will in the future be called into Mr. McGillivary’s death, for the purpose of my decision with respect to whether the force used in these circumstances was excessive, I am relying upon Dr. Pollanen’s opinion of the cause of death.”

Director Scott continued, “I have had an opportunity to review the information received by the subject officers including the contemporaneous in-car radio communications.  As well, I have viewed the downloaded photograph of the man police were searching for.  I am satisfied that the subject officers held an honest and reasonable but ultimately mistaken belief that the person they apprehended with respect to this incident was the man they were looking for.  On that basis, they had the lawful authority to arrest Mr. McGillivary because of their reasonably held belief that the man they were arresting was in breach of a number of terms of his recognizance from a previous arrest. 

“Unfortunately, as we now know, the man they apprehended was Mr. McGillivary. Adding to this tragedy is that Mr. McGillivary had a series of psychological and mental disabilities that prevented him from communicating with the officers, and precipitated his flight and struggle when apprehended.  The final aspect of this sad set of circumstances was that Mr. McGillivary had an undiagnosed pre-existing heart disease which, in the opinion of the pathologist, caused a fatal cardiac arrhythmia when precipitated by the struggle with the two subject officers.

“For the purpose of my legal analysis, I am satisfied of the following: First, the subject officers had an honest and reasonable but mistaken belief the man they were arresting was in breach of the conditions of his recognizance.  Second, they had the lawful authority to use reasonable force given his non-responsiveness to their inquiries, his attempt to flee and his level of resistance.  And finally, while the force used was a factor in Mr. McGillivary’s death in the sense that it caused him a high level of physical exertion and no doubt anxiety, the officers cannot be held criminally liable for Mr. McGillivary’s demise because it was not excessive in these circumstances.  The greatest level of force used –and this is supported by civilian witness interviews and video footage – was a leg sweep to take him to the ground.  There is no pathological evidence that this action alone was responsible for his death. In my view, no one could have            reasonably foreseen the fatal consequences of this struggle.”

Director Scott concluded, “In sum, I cannot form reasonable grounds that the subject officers acted unlawfully notwithstanding this incident’s tragic result.”

The SIU is an independent government agency that investigates the conduct of officials (police officers as well as special constables with the Niagara Parks Commission and peace officers with the Legislative Protective Service) that may have resulted in death, serious injury, sexual assault and/or the discharge of a firearm at a person. All investigations are conducted by SIU investigators who are civilians. Under the Special Investigations Unit Act, the Director of the SIU must

• consider whether the official has committed a criminal offence in connection with the incident under investigation
• depending on the evidence, cause a criminal charge to be laid against the official where grounds exist for doing so, or close the file without any charges being laid
• publicly report the results of its investigations