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 39-year-old man (the “Complainant”).

Notification of the SIU

On March 21, 2020, at 2:20 p.m., the Toronto Police Service (TPS) notified the SIU of the Complainant’s death. According to TPS, at 12:24 p.m., TPS officers responded to an Etobicoke residence to assist Emergency Medical Services (EMS) with a violent male. Responding officers handcuffed the Complainant after a struggle and he went vital signs absent (VSA). The Complainant was transported to St. Joseph’s Health Centre (SJHC), where he was pronounced deceased at 1:29 p.m. [1]

The Scene

The incident occurred in a basement apartment bedroom of a bungalow located in Etobicoke. The converted basement apartment, which was sparsely furnished, was comprised of a kitchen and two bedrooms. It had carpeted concrete flooring and was accessed by stairs on the main level of the residence.

Police Communication Recordings

TPS Communication Audio Recordings

The recordings were made on March 21, 2020 and captured the following:

At 12:09:12 p.m.: CW #2 called 911 to request ambulance attendance at a specified Etobicoke residence for a person [now known to be the Complainant] in medical distress. He told the call-taker that the Complainant was experiencing an “episode”, which he further described as “fighting something in his sleep…I don’t know if he’s taken something. We can’t wake him up”;
At 12:23:52 p.m.: The female ambulance call-taker requested police attendance for a male in his 40s, having an episode in his sleep, who might be violent and was possibly on drugs as they found tin foil near him;
At 12:26:24 p.m.: SO #1 and SO #2 were dispatched;
At 12:26:59 p.m.: WO #4 advised the tin foil was indicative of possibly fentanyl use;
At 12:40:15 p.m.: SO #1 advised, “We’re just kinda fighting with him. [Inaudible]”;
At 12:41:19 p.m.: The Complainant was handcuffed and restrained;
At 12:44:34 p.m.: The Complainant went in and out of consciousness. SO #1 requested that another unit attend;
At 12:44:41 p.m.: WO #2 was dispatched;
At 12:45:07 p.m.: The Complainant went VSA;
At 12:45:13 p.m.: WO #3 was dispatched;
At 12:45:33 p.m.: WO #4 requested that he be put on the call;
At 12:47:52 p.m.: SO #2 requested a supervisor;
At 12:51:48 p.m.: WO #4 radioed that CPR had commenced;
At 12:53:21 p.m.: A request to notify the on-duty staff sergeant was made;
At 1:08:03 p.m.: The Complainant had a faint pulse. SO #1 requested that additional units attend;
At 1:10:05 p.m.: SO #1 advised that the Complainant would be transported to SJHC via an emergency run;
At 1:20:52 p.m.: The Complainant was on board an ambulance. SO #1 and SO #2 were to lead the emergency run;
At 1:24:34 p.m.: SO #1 advised the emergency run had commenced; and
At 1:29:23 p.m.: The Complainant arrived at SJHC.

Materials obtained from Police Service

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

• Communications audio recordings;
• Computer-assisted Dispatch Event Details Report;
• Email forwarding involved officers’ list/roles, paramedic attendance;
• Notes-SO #1;
• Notes-WO #3;
• Notes-SO #2;
• Notes-WO #2;
• Notes-WO #4; and
• Notes-WO #1.

Materials obtained from Other Sources

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

• Report of Postmortem Examination, dated December 5, 2020, from the Office of the Chief Coroner;
• Ambulance Call Reports and Incident Reports from the Toronto Paramedic Services; and
• Incident Reports from Toronto Fire Services.

While important aspects of the events in question are contested, the following narrative emerges from the weight of the reliable evidence collected by the SIU. That evidence included interviews with the Complainant’s brother and eyewitness, CW #2, and both subject officers, as well as paramedics and firefighters who were present and active in the course of the incident as it unfolded. The investigation was also assisted by a review of the police communications recordings and the postmortem report.

At about 12:10 p.m., CW #2 called 911 for an ambulance. His brother, the Complainant, was on the floor of his basement bedroom in Etobicoke in medical distress. CW #2 noted that he and his mother were unable to wake the Complainant and that the Complainant might have “taken something”.

Paramedics and firefighters were dispatched to the address. CW #2 had cautioned the 911 caller that his brother might be violent, and police officers were also sent to assist.

Primary Care Paramedics were the first to arrive at about 12:20 p.m. The Complainant was found lying supine on the bedroom floor between a bed and dresser. In an effort to make more space in the cramped room, the paramedics removed the bed. The Complainant began to roll from side to side and onto his front and back. Owing to the Complainant’s agitation and movements, the paramedics were delayed in making their medical assessment.
Firefighters CW #5 and CW #6 were next to arrive at the scene. By this time, the Complainant was flailing his arms and legs and continuing to make it difficult for the paramedics to do their job. The witness accounts describe the Complainant’s movements as “involuntary” and “convulsive”.

In and around the time of SO #1 and SO #2’s arrival at about 12:34 p.m., the paramedics had managed to inject a dose of naloxone into the Complainant via his right deltoid suspecting a possible opioid overdose. The Complainant continued to flail his arms and legs, and roll around, punching and hitting his head off the floor and walls. The officers decided to restrain his limbs. SO #1 took control of his legs and eventually affixed them in restraints. SO #2 wrestled control of the Complainant’s arms and handcuffed them behind his back. Not long after, the Complainant lost vital signs.

Advance care paramedics were on scene by this point and began the administration of life-saving measures. The leg restraints and handcuffs were removed from the Complainant, he was rolled onto his back, and CPR begun. At about 1:08 p.m., prior to placing the Complainant on a stretcher and loading him into an ambulance, a faint pulse had been re-established. Shortly thereafter, the Complainant lost his pulse.

Additional resuscitative efforts en route to hospital and while in the emergency department were to no avail. The Complainant was pronounced deceased at 1:40 p.m.

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 passed away on March 21, 2020 following the attendance of paramedics, firefighters and police officers at his home in response to a medical call for service. TPS SO #1 and SO #2 were among the attending officers and identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s death.

The offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. A simple want of care that contributes to, or causes, death, is not enough to give rise to liability under the provision. What is required is conduct that amounts to a marked and substantial departure from a reasonable level of care in the circumstances. In my view, while there are aspects of the manner in which the officers comported themselves that are open to legitimate scrutiny, the officers’ indiscretions were not sufficient to transgress the limits of care prescribed by the criminal law.

I accept that the conduct of SO #1 and SO #2 played a role in the Complainant’s death. [2] They acknowledge having placed restraints on the Complainant’s limbs while the Complainant was in a prone position. Though recognizing a level of contention in the literature regarding the contributory impact of the prone position on sudden deaths in police custody, the pathologist was ultimately of the view that “prone positioning of a restrained obese man with additional weight/force being applied to his back/torso would be an example of a collection of facts that would raise serious consideration that this combination contributed to death”.

The more contentious issue is whether the officers’ restraint of the Complainant in the prone position amounted to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. This determination is made more difficult by the discrepant accounts of the officers’ behaviour in this regard.

Despite these evidentiary uncertainties, I am prepared to proceed on the basis of the most incriminating version of events as I believe that it falls short of amounting to criminal negligence. Within this scenario, each of SO #1 and SO #2 participated in restraining the Complainant in a prone position over a period of time - from some seconds to perhaps as long as a few minutes – despite an appreciation of the inherent risks and being repeatedly told to refrain from doing so. Despite the controversy in the medical literature, of which I am obviously not expert, I would venture to say that it is common knowledge among first responders that there are health risks associated with restraint in the prone position, particularly in the presence of other risk factors such as agitation, obesity and drug intoxication. Indeed, SO #1 and SO #2 both advert to these risks in their statements to the SIU.

The officers’ conduct, however, must be placed in its appropriate context. SO #1 and SO #2 had a difficult choice to make and not much time in which to make it. They were aware of the risks of restraining someone in the prone position. But they were also aware that the Complainant was in dire medical straits and needed immediate medical attention. As long as he thrashed about on the floor and wailed his extremities, there was no prospect for effective assessment and treatment by the paramedics, nor would it be possible to quickly transport him to hospital. In fact, the evidence indicates that the paramedics had been unable to promptly begin their assessment in earnest given the Complainant’s combativeness, albeit unintentional. In this fraught atmosphere, they decided to force the Complainant in a prone position to assist in applying the restraints, hoping they could do so as quickly as possible so as to minimize the risk. Even then, it is clear that the officers had trouble overcoming the Complainant’s resistance. The Complainant was a big man – about 6 feet tall and 240 pounds. At one point, while face down and SO #1 on top of his lower body, the Complainant was able to lift his chin and chest off the ground.

In the final analysis, it may well be that SO #1 and SO #2 could have done more to avoid restraining the Complainant in a prone position altogether or at least minimize the time in which he spent in that position. On the other hand, faced with a formidable physical challenge and confronted with an appreciation of the necessity of immediate medical care, I am unable to reasonably conclude with any confidence that the officers acted with reckless or wanton disregard for the Complainant’s health when they forced him in a prone position and restrained his limbs in the manner they did. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.



Date: February 8, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit