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 an injury a 43-year-old man (the “Complainant”) suffered.

Notification of the SIU

On October 2, 2020 at about 12:34 p.m., the Durham Regional Police Service (DRPS) contacted the SIU to report the following.

DRPS reported that on October 2, 2020, at 9:30 a.m., police officers responded to a residence in Whitby for a family trouble call. The Complainant’s mother reported he was in a mental health crisis and destroying property inside the home.

Police officers attended and encountered the Complainant in the home on a second-floor landing where he threatened to disarm and shoot them. A conducted energy weapon (CEW) was deployed upon the Complainant who, “locked up,” and fell backwards to the floor where he was handcuffed, for his safety and the safety of the police officers.

Police officers transported the Complainant to the Lakeridge Health Centre (LHC), where he was examined by doctors and cleared, by way of a physical examination, before being diverted to the crisis unit for a Mental Health Act assessment. Police officers remained with the Complainant and were present when he changed into a hospital gown. At that time, they noticed his arm was severely swollen. They called for a doctor, who ordered X-rays. Upon interpretation, the X-rays indicated a fractured humerus.

The Complainant was to be admitted to hospital for treatment of his injury and afterward assessed by the crisis unit.
 

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators (FIs) assigned: 1 

The Scene

The scene of the Complainant’s apprehension was a residence in Whitby, Ontario.

Physical Evidence

The SO’s CEW

On October 5, 2020, an SIU FI investigator attended a DRPS facility and collected the sealed property bags that contained the SO’s CEW, the spent CEW cartridge and various CEW components. DRPS reported that the CEW had been held secure since the Complainant’s arrest. The CEW had been active from 9:06:06 a.m. until 9:06:07 a.m., [1] October 2, 2020.

Police Communications Recordings

911 Call

At 8:35 a.m. on October 2, 2020, the Complainant’s mother called 911 to request police assistance in the removal of her son from her residence. Her son, the Complainant, had been asked to leave and was no longer welcome to live there. He had mental health issues and had been diagnosed with schizophrenia.

Because the Complainant’s mother spoke with a thick accent, the call-taker had difficulty understanding her. Eventually enough information was understood for the call-taker to access the DRPS records management system (RMS) and note a similar call to the same location in the past.

While the Complainant’s mother outlined her concerns, her other son could be heard in the background voicing his displeasure and frustrations with the Complainant and his resolve to have him removed from the house.

The Complainant’s brother spoke with the 911 operator. He was very angry and indicated his brother had mental health issues, though he did not know what they were. He was adamant his brother be removed from his home to receive mental health help.

The following scenario emerges on the evidence collected by the SIU, which included interviews with the SO, a couple of eyewitnesses to some of the events in question, and three witness officers, present at the time of the arrest. At about 8:30 a.m., a resident of an address in Whitby – the mother of the Complainant – called police about one of her sons – the Complainant. She and her other son, who owned the residence, wanted the Complainant out of the house but he was refusing to leave. The Complainant’s brother also spoke with the call-taker, conveyed his frustrations with his brother’s behaviour and noted the Complainant needed mental health treatment. Officers were dispatched to the address.

The SO was the first to arrive at the home, followed shortly by WO #2. The Complainant’s brother told the SO that his brother lived with him but had worn out his welcome. The Complainant had not showered for several weeks and that coupled with his other behaviour made him an unwanted guest. Both the Complainant’s brother and his mother said the Complainant needed psychological help and were adamant that he could no longer remain in the house.

The officers entered the home and, from the bottom of a staircase, engaged with the Complainant, who had emerged onto the second-floor landing from a bedroom. The SO took the lead in speaking with the Complainant. The officer attempted to persuade him to leave the residence peacefully but the Complainant was having nothing of it. Instead, he adopted a hostile posture toward the officers, indicated he had martial arts training and had been a “special forces” agent, and threatened to disarm them.

With the arrival of WO #1 and WO #3 at the home, the SO and WO #2 decided to advance halfway up the stairs to continue their discussions with the Complainant. The Complainant could not be appeased and remained undeterred in his resolve to remain at the residence. His belligerence escalated to the point that he kicked at the air, clenched his fists and adopted a “karate” stance against the SO. The behaviour sufficiently concerned the SO to the point that he removed his CEW and threatened to use it on the Complainant unless he went to the floor.

The Complainant ignored the SO’s direction and was met with a single CEW deployment. The weapon’s probes penetrated into the Complainant, who was immediately immobilized and fell backward onto the floor. The SO and the other three officers moved in to take hold of the Complainant, whereupon they were able to secure his arms behind his back without further incident.

The Complainant calmed after he was arrested. He was escorted from the home and taken to hospital by ambulance, where he was diagnosed with a fractured left humerus and admitted under the Mental Health Act for examination.

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,

Section 17, Mental Health Act -- Action by police officer

(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,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

On October 2, 2020, the Complainant fractured his left arm in the course of being apprehended by DRPS officers. Among the arresting officers, and identified as the subject officer for purposes of the SIU investigation, was the SO. On my assessment of the evidence, there are no reasonable grounds to believe that the SO 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. The Complainant was clearly of unsound mind at the time. That, combined with his combativeness at the time and the very real possibility of violence between the Complainant and his brother if the Complainant was not removed from his home, provided the SO a lawful basis to apprehend the Complainant under section 17 of the Mental Health Act. The issue turns to the propriety of the force used in taking the Complainant into custody.

In my view, the single CEW discharge – the only significant use of force – was not excessive in the circumstances. It is true that there were four officers present at the time. However, it is also true that the Complainant was primed for a fight and that the officers’ numbers would count for less given the confined space on the staircase in which the interaction was unfolding. As the Complainant’s brother had informed the police officers that his brother had not gone willingly with the police during their last recent visit to the house, the SO had every reason to believe this encounter would prove no different if they decided to engage him physically. On this record, I am unable to reasonably conclude that the SO acted unlawfully in seeking to avoid a physical struggle by neutralizing the Complainant from a distance with his CEW. Notably, the discharge had its desired effect and the Complainant was arrested without incident after falling to the floor.

In the result, while it is regrettable that the Complainant broke his arm when he fell following the CEW discharge, I am satisfied that his injury was the unintentional and unfortunate consequence of force that was otherwise reasonably necessary. Accordingly, there is no basis for proceeding with criminal charges against the SO, and the file is closed.


Date: February 1, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit