SIU Director’s Report - Case # 21-OCD-193
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that 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 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the death of a 31-year-old man (the “Complainant”) during an interaction with police.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the death of a 31-year-old man (the “Complainant”) during an interaction with police.
The Investigation
Notification of the SIU
On June 24, 2021, at 7:02 p.m., the Niagara Regional Police Service (NRPS) notified the SIU that the Complainant had suffered self-inflicted knife wounds.According to the NRPS, at 3:48 p.m. that afternoon, the NRPS was called to an address on Russell Avenue, St. Catharines, regarding a man armed with a knife. The caller was CW #2, the Complainant’s brother.
Members of the NRPS Emergency Task Unit (ETU) and crisis negotiators attended the residence. While in the presence of police officers, the Complainant cut his neck and started to tear open his injuries. He appeared to be vital signs absent at the scene but was transported to the St. Catharines General Hospital. He had not been pronounced dead at the time of the notification.
NRPS reported 10 to 16 police officers were involved in the situation. A conducted energy weapon (CEW) cartridge and the knife used by the Complainant were still at the scene. The scene had been preserved.
At 7:11 p.m., NRPS notified the SIU that the Complainant had been pronounced deceased.
The Team
Date and time team dispatched: 06/24/2021 at 9:01 p.m. Date and time SIU arrived on scene: 06/24/2021 at 9:12 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
31-year-old male, deceasedCivilian Witnesses (CW)
CW #1 Not interviewed (Next-of-kin)CW #2 Not interviewed (Next-of-kin)
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
The civilian witnesses were interviewed between June 25 and 30, 2021.
Subject Officials (SO)
SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right. SO #2 Interviewed, but declined to submit notes, as is the subject official’s legal right.
SO #3 Interviewed, but declined to submit notes, as is the subject official’s legal right.
The subject officials were interviewed on July 8, 2021.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Not interviewed, but notes received and reviewed
WO #7 Not interviewed, but notes received and reviewed
WO #8 Not interviewed, but notes received and reviewed
WO #9 Not interviewed, but notes received and reviewed
WO #10 Not interviewed, but notes received and reviewed
WO #11 Not interviewed, but notes received and reviewed
WO #12 Not interviewed, but notes received and reviewed
WO #13 Not interviewed, but notes received and reviewed
WO #14 Interviewed
WO #15 Interviewed
WO #16 Interviewed
WO #17 Not interviewed, but notes received and reviewed
WO #18 Interviewed
WO #19 Interviewed
WO #20 Interviewed
WO #21 Interviewed
WO #22 Interviewed
WO #23 Interviewed
The witness officials were interviewed between July 2, 2021 and September 8, 2021.
Evidence
The Scene
The residence on Russell Avenue is a two-storey home that has been converted into two separate apartments. The Complainant and CW #2 lived in the upper apartment.A number of CEW cartridges were found in the south bedroom. A number of CEW probes, CEW cartridge blast doors, CEW wires and anti-felon identification (AFID) tags from CEWs were also recovered in the bedroom. A large kitchen knife was recovered in a space between the bed and the bedroom wall. Blood staining was evident on the floor along the south wall of the bedroom, which was the area the Complainant occupied (as recorded in NRPS photographs).
Physical Evidence
Inside the residence, the SIU collected:• Four CEW cartridges;
• Victorinox kitchen knife;
• Probes from deployed CEWs;
• Wires from deployed CEWs;
• AFID tags from a deployed CEW;
• Blast doors from a deployed CEW cartridge; and
• A kitchen towel.
Figure 1 – The Complainant’s knife
Forensic Evidence
CEW Download Information
The CEW carried by SO #3 was deployed at 6:10:15 p.m., for five seconds. [1]The CEW carried by WO #16 was deployed at 6:10:29 p.m., for five seconds.
The CEW carried by WO #15 was deployed at 6:10:32 p.m., for six seconds, and again at 6:10:39, for nine seconds.
The CEW carried by WO #21 was deployed at 6:10:38 p.m., for five seconds.
Video/Audio/Photographic Evidence [2]
Dispatch Record/Communications Recordings
On June 24, 2021, at 3:48 p.m., CW #2 called the NRPS to report that his brother, the Complainant, suffered from bi-polar disorder, and was in a state of psychosis and refusing to go to the hospital. CW #2 said the problems had started the day before and his brother’s behaviour had since intensified. He reported his brother was not violent, but had threatened him with a small pocketknife, which his brother had put away. CW #2 stated his brother did not know the difference between reality and what was in his head.The information was sent to patrol officers, with a notation in the dispatch information that the subject (the Complainant) was not violent.
At 4:00 p.m., WO #2 reported he was with the Complainant. At 4:03 p.m., it was reported the mobile crisis response unit [WO #4 and CW #7] were speaking with the Complainant. It was reported that the last time police took the Complainant to hospital, eight police officers were needed.
At 4:10 p.m., WO #3 instructed responding police officers to wait until they determined they had grounds (to apprehend the Complainant) before heading upstairs to deal with him.
Other police officers reported they had arrived at the residence. At 4:16 p.m., WO #23 requested radio silence and he reported they had a person in custody. At 4:20 p.m., WO #23 reported they were trying to communicate with the man but he [the Complainant] was not cooperating. At 4:23 p.m., officers asked for silence and, at 4:24 p.m., WO #3 asked that negotiators be dispatched. He reported the Complainant was armed with a knife, which he was holding to his throat. WO #3 asked for guidance from WO #5, who was a former member of the NRPS ETU, and WO #5 directed that officers back away and isolate the Complainant in one room. At 4:31 p.m., ETU supervisor WO #21 advised an ETU team was dressing and preparing to respond.
At 4:34 p.m., WO #6, who was with WO #3, reported they had the Complainant at gunpoint, and the Complainant was holding a knife to his throat. At 4:39 p.m., WO #5 had arrived, and he reported the Complainant was squatting beside a bed while holding the knife to his throat. WO #5 commented the Complainant was a little too far away to effectively deploy a CEW.
At 4:43 p.m., WO #17 asked that the responding negotiator attend the command post. WO #5 advised him that SO #2 was already negotiating with the Complainant, from behind a shield team in the hallway. At 4:49 p.m., it was reported the ETU team had relieved the uniform patrol officers in the apartment.
At 4:51 p.m., a police officer reported SO #2 was doing very well in negotiating with the Complainant, but the Complainant was still holding the knife.
At 4:50 p.m., WO #15, the team leader of ETU team Alpha One, asked ETU team Alpha Two to conduct a more thorough assessment of the perimeter when they arrived, as the Complainant could flee through the upper balcony.
At 4:51 p.m., a police officer inside the apartment reported SO #2 was “doing awesome” and had established a good rapport with the Complainant, who was still holding the knife.
At 4:59 p.m., SO #1 arrived at the staging area and assumed command of the situation. There were further reports the Complainant was continuing to be engaged with SO #2.
An ETU officer instructed one of the other members of ETU team Alpha Two that they could position a ladder, but they were not to ascend the ladder, in the interest of maintaining the ongoing negotiations. The officer did not want anyone making noise on the upper balcony.
At 5:14 p.m., it was reported the Complainant no longer held the knife. It was also reported his head was bobbing and he appeared to be in and out of consciousness. At 5:23 p.m., it was reported the Complainant seemed to be on a “rollercoaster of emotions” and he was occasionally focusing on the knife and refusing to move away from the knife.
At 5:27 p.m., police officers were cautioned that the Complainant, when apprehended in December of 2020, made comments about disarming a police officer of their gun.
At 6:06 p.m., it was reported the Complainant had picked up the knife again, and the interactions between SO #2 and the Complainant were decreasing. At 6:10 p.m., WO #21 reported, “They’re going.”
At 6:10 p.m., there was a report the Complainant had a cut to his neck and he was using his hands to rip [open] his own wounds. At 6:11 p.m., a police officer reported they were trying to secure the Complainant and CEWs had been deployed, but the Complainant was grabbing at his neck wound, trying to pull it open. At 6:13 p.m., it was reported the Complainant was still fighting.
Materials Obtained from Police Service
Upon request, the SIU received the following materials and documents from NRPS between June 29, 2021 and September 2, 2021:• Radio and telephone communications;• Computer aided dispatch report;• Photos of a text message thread between officers;• A photograph taken by WO #15;• General Order – Emergency Task Unit;• Internal NRPS correspondence regarding deployment of Mobile Crisis Teams;• List of involved officers;• Notes of all designated witness officials; and• Pulse graphs for the CEWs deployed during the incident.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources between June 25, 2021 and July 20, 2021: • Health records from Niagara Health System;• Video recordings from a security system;• Photographs recorded by CW #5;• Screen shots of text messages between CW #5 and CW #2;• Photographs and video recordings recorded by CW #4; and• Photographs recorded by CW #3.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with CW #6 (the Complainant’s mother), each of the subject officials, several civilian witnesses, and police officers who had dealings with the Complainant in the moments preceding his death.
In the afternoon of June 24, 2021, CW #2 called police seeking their help for his brother – the Complainant. The Complainant, who lived with CW #2 in the second floor apartment of a house on Russell Avenue, St. Catharines, was in mental distress. Asked by CW #2 if he would go to the hospital for help, the Complainant had refused and confronted his brother with a pocketknife. Concerned about the gesture and his brother’s well-being, CW #2 left the apartment and called 911.
The Complainant suffered from mental illness and had been diagnosed with bi-polar disorder. His condition had resulted in multiple admissions to hospital, often with the help of the police. Most recently, the Complainant had been apprehended in December 2020 by officers and sent to hospital, where he spent several weeks before being released. The Complainant’s deteriorating mental health had been noticed by his family the day prior on June 23, 2021. The Complainant’s mind was racing, and he was hyperactive. In a conversation with CW #2 that evening, the Complainant seemed to realize he was not well and agreed to go to the hospital to pick up his medication. It does not appear that he did so. By the time his brother came home from work the following day, the Complainant was in a highly agitated state.
The Complainant was on his bed in the bedroom at the north end of the apartment when the first NRPS police officers arrived at about 4:00 p.m. At the request of one of the officers, the Complainant dropped the knife onto the bed. He was able to answer some of the officers’ questions intelligibly but was incoherent in some of his other responses. The Complainant denied wanting to hurt himself or others. At one point, again at the request of an officer, the Complainant picked up the pocketknife and tossed it onto the balcony just outside the bedroom. He told the officers he did not want them there.
Not long after throwing the pocketknife away, the Complainant rose to his feet and moved quickly toward the front of the apartment, picking up a knife from the kitchen as he did so. With several officers behind him, the Complainant made it to another bedroom, at the southern-most end of the apartment, and sat on the floor by the bed. The Complainant refused to drop the knife as the officers, at gunpoint and from a few metres away, told him to do so. As the standoff continued, the Complainant’s demeanour vacillated between moments of calm and perturbation. He held the knife to his neck, stated he wanted to die, and was told that the officers did not want to hurt him.
At about 4:30 p.m., a trained negotiator - SO #2 - arrived on scene and took the lead in communicating with the Complainant. The Complainant was receptive to the officer and the two began a conversation. At her request, the Complainant let go of the knife, placing it a distance under the bed beside him. Asked to kick it further away, the Complainant refused to do so. Over the course of the next hour-and-a-half, the two talked about the Complainant’s love for Canada and India, his interest in motorcycles, and his father. The Complainant explained that he had battled drug problems over many years and acknowledged that he needed help for his mental health conditions. Asked if he wanted to speak with his mother and brother who were outside, the Complainant said no. At one point, at the Complainant’s request, SO #2 played a Katy Perry song that he liked on her phone.
As time wore on, communications between SO #2 and the Complainant began to falter. The Complainant initially refused to drink from a bottle of water that SO #2 had rolled to him, suspecting it might be poisoned. He grew impatient with SO #2 and told her he did not trust her. The Complainant picked up the knife from the floor with his left hand and appeared to be looking off into the distance. He had stopped making eye contact with the officers and began to chant.
At about 6:10 p.m., as the Complainant tilted his head back to drink from the water bottle, the probes of a CEW discharge struck him. He cried in pain and was temporarily immobilized. Multiple officers rushed and physically engaged him, as he lay on the floor, attempting to control his arms and legs. The Complainant struggled against their efforts, and was able to bring the knife up toward the left side of his neck and stab himself. The officers were eventually able to remove the knife from the Complainant’s neck and hands, but continued to struggle with him as he reached into his wounds to do himself further harm. Following more CEW discharges and the arrival of additional officers, the Complainant was subdued, and his hands and feet affixed in restraints.
The Complainant had suffered grievous injuries and was losing a lot of blood. He was brought outside onto the front balcony of the home, where paramedics and officers administered emergency care. Placed on a stretcher, and taken down to ground level and into an ambulance, the Complainant was subsequently taken to hospital. He could not be resuscitated and was pronounced deceased at 7:11 p.m.
Cause of Death
The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to a “stab wound of neck”. The wound had penetrated the Complainant’s trachea and left jugular vein.
In the afternoon of June 24, 2021, CW #2 called police seeking their help for his brother – the Complainant. The Complainant, who lived with CW #2 in the second floor apartment of a house on Russell Avenue, St. Catharines, was in mental distress. Asked by CW #2 if he would go to the hospital for help, the Complainant had refused and confronted his brother with a pocketknife. Concerned about the gesture and his brother’s well-being, CW #2 left the apartment and called 911.
The Complainant suffered from mental illness and had been diagnosed with bi-polar disorder. His condition had resulted in multiple admissions to hospital, often with the help of the police. Most recently, the Complainant had been apprehended in December 2020 by officers and sent to hospital, where he spent several weeks before being released. The Complainant’s deteriorating mental health had been noticed by his family the day prior on June 23, 2021. The Complainant’s mind was racing, and he was hyperactive. In a conversation with CW #2 that evening, the Complainant seemed to realize he was not well and agreed to go to the hospital to pick up his medication. It does not appear that he did so. By the time his brother came home from work the following day, the Complainant was in a highly agitated state.
The Complainant was on his bed in the bedroom at the north end of the apartment when the first NRPS police officers arrived at about 4:00 p.m. At the request of one of the officers, the Complainant dropped the knife onto the bed. He was able to answer some of the officers’ questions intelligibly but was incoherent in some of his other responses. The Complainant denied wanting to hurt himself or others. At one point, again at the request of an officer, the Complainant picked up the pocketknife and tossed it onto the balcony just outside the bedroom. He told the officers he did not want them there.
Not long after throwing the pocketknife away, the Complainant rose to his feet and moved quickly toward the front of the apartment, picking up a knife from the kitchen as he did so. With several officers behind him, the Complainant made it to another bedroom, at the southern-most end of the apartment, and sat on the floor by the bed. The Complainant refused to drop the knife as the officers, at gunpoint and from a few metres away, told him to do so. As the standoff continued, the Complainant’s demeanour vacillated between moments of calm and perturbation. He held the knife to his neck, stated he wanted to die, and was told that the officers did not want to hurt him.
At about 4:30 p.m., a trained negotiator - SO #2 - arrived on scene and took the lead in communicating with the Complainant. The Complainant was receptive to the officer and the two began a conversation. At her request, the Complainant let go of the knife, placing it a distance under the bed beside him. Asked to kick it further away, the Complainant refused to do so. Over the course of the next hour-and-a-half, the two talked about the Complainant’s love for Canada and India, his interest in motorcycles, and his father. The Complainant explained that he had battled drug problems over many years and acknowledged that he needed help for his mental health conditions. Asked if he wanted to speak with his mother and brother who were outside, the Complainant said no. At one point, at the Complainant’s request, SO #2 played a Katy Perry song that he liked on her phone.
As time wore on, communications between SO #2 and the Complainant began to falter. The Complainant initially refused to drink from a bottle of water that SO #2 had rolled to him, suspecting it might be poisoned. He grew impatient with SO #2 and told her he did not trust her. The Complainant picked up the knife from the floor with his left hand and appeared to be looking off into the distance. He had stopped making eye contact with the officers and began to chant.
At about 6:10 p.m., as the Complainant tilted his head back to drink from the water bottle, the probes of a CEW discharge struck him. He cried in pain and was temporarily immobilized. Multiple officers rushed and physically engaged him, as he lay on the floor, attempting to control his arms and legs. The Complainant struggled against their efforts, and was able to bring the knife up toward the left side of his neck and stab himself. The officers were eventually able to remove the knife from the Complainant’s neck and hands, but continued to struggle with him as he reached into his wounds to do himself further harm. Following more CEW discharges and the arrival of additional officers, the Complainant was subdued, and his hands and feet affixed in restraints.
The Complainant had suffered grievous injuries and was losing a lot of blood. He was brought outside onto the front balcony of the home, where paramedics and officers administered emergency care. Placed on a stretcher, and taken down to ground level and into an ambulance, the Complainant was subsequently taken to hospital. He could not be resuscitated and was pronounced deceased at 7:11 p.m.
Cause of Death
The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to a “stab wound of neck”. The wound had penetrated the Complainant’s trachea and left jugular vein.Relevant Legislation
Section 219, Criminal Code -- Criminal negligence causing death
219 (1) Every one is criminally negligent who
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
Section 220, Criminal Code -- Criminal negligence causing death or bodily harm
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.
Section 215, Criminal Code - Failure to Provide Necessaries
215 (1) Every one is under a legal duty
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and(ii) is unable to provide himself with necessaries of life.
(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if
(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.
Analysis and Director's Decision
The Complainant died on June 24, 2021 of a self-inflicted wound. As NRPS officers were present at the time the Complainant was injured, the SIU was notified and commenced an investigation. Three NRPS officers – SO #1, SO #2 and SO #3 – were identified as subject officials. The investigation has now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials committed a criminal offence in connection with the Complainant’s death.
The offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 of the Criminal Code, respectively. The former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is reserved for more serious case of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. The impugned conduct must be a marked and substantial departure from a reasonable standard of care to ground liability for the offence. In the instant case, the issue is whether there was a want of care on the part of the officers who principally shaped the police response to the Complainant – SO #1, with overall command responsibility for police operations; SO #2, the lead negotiator; and, SO #3, the ETU officer who initially discharged his CEW – that contributed to the Complainant’s death and/or was sufficient egregious as to attract criminal sanction. In my view, there was not.
At the outset, it should be noted that the officers were at all times lawfully placed. They had been called to the scene after receiving word that the Complainant was in mental distress and in possession of a pocketknife that he had brandished in his brother’s direction. An officer’s foremost duty is the preservation of life. They were, in the circumstances, duty bound to attend the Complainant’s apartment to do what was reasonably in their power to prevent harm coming to the Complainant or others.
I am further satisfied that the police operation that unfolded that day – including the parts played by SO #1, SO #2 and SO #3 – was conducted with due care and regard for the health and well-being of the Complainant, notwithstanding the Complainant’s tragic death. Among the first personnel to arrive at the scene was a unit of the Mobile Crisis Rapid Response Team (MCRRT), which pairs a specially trained officer with a mental health professional – in this case, WO #4 and CW #7, respectively. The MCRRT is part of the police service’s efforts to deal more effectively with calls for service involving persons in mental distress. CW #7 spoke with the Complainant in his bedroom for about ten minutes and attempted to assess whether there were grounds to apprehend him under the Mental Health Act. Though he was responsive to some of her questions, the Complainant appeared distant at times and paranoic – he laughed inappropriately, whispered under his breath and flailed his arms. Not sure whether there was a lawful basis to take the Complainant into custody, CW #7 decided to return to ground level to speak with the Complainant’s brother – CW #2. Shortly thereafter, the Complainant would take possession of another knife from the kitchen.
The decision to deploy a trained crisis negotiator – SO #2 – and the ETU, of which SO #3 was a member, were also reasonable. By the time SO #2 made her way to the scene shortly after 4:30 p.m., the Complainant was in a bedroom with a knife to his neck and the situation had clearly escalated, foreclosing any further involvement by the MCRRT. The plan was to give negotiations every opportunity to successfully resolve the stand-off in a peaceful fashion. As such, over the next hour-and-a-half, SO #2 attempted and was able to establish a level of rapport with the Complainant. She was successful in having him release the knife, and engaged him in conversation about his likes and interests. SO #2 was also privy to advice received from a forensic psychiatrist who had been consulted in respect of the situation. When SO #2 thought on a couple of occasions that she had developed sufficient good will with the Complainant, she encouraged him to go willingly with the officers to the hospital for help. Though the Complainant remained steadfast in refusing the offer, it was not for lack of trying by SO #2. Her efforts, the record is clear, were at all times tactful and measured.
I am further satisfied that the ETU and, in particular, SO #3, did not transgress the limits of care prescribed by the criminal law throughout their engagement in this matter. The ETU were called to attend at the apartment, reasonably in my view, after the Complainant had taken hold of a larger kitchen knife and fled into the southern-most bedroom. Given his state of mind and his possession of a weapon capable of inflicting grievous bodily harm or death, I am unable to fault the ETU officers – four to five of them throughout the stand-off – for maintaining a presence in the bedroom, especially if SO #2 was going to continue with her negotiations from inside the room.
The officers – variously armed with a CEW, rifle, ARWEN and shield at the ready – were largely passive throughout the incident; they stood beside and behind SO #2 as she tried to make headway in her conversations with the Complainant. It was only when those negotiations began to break down, and it seemed that the Complainant was on the precipice of self-harming with the knife, did SO #3 discharge his CEW. He only did so after receiving “reaction authority” from SO #1 to intercede if bodily harm appeared imminent. The officers reasonably believed they had reached that point as the Complainant’s behaviour took a decided turn for the worse shortly after 6:00 p.m. In the circumstances, I am satisfied that SO #3 acted reasonably in attempting to temporarily incapacitate the Complainant from a distance by deploying his CEW when he did. If successful, the Complainant would have been immobilized long enough to allow for his safe apprehension before he could self-harm.
Nor am I able to conclude that the CEW discharges that followed, and the collective effort to physically subdue the Complainant in the melee after SO #3 fired his weapon, were unreasonable. At that time, the officers were desperately trying to prevent the Complainant from doing harm to himself.
Lastly, once the Complainant’s limbs were secured, there is no indication that the officers acted without proper dispatch in rendering medical care.
Were there moments where more decisive intervention by the officers could have resulted in a better outcome? Perhaps. One notes, in this vein, that the Complainant had dispossessed himself twice of the knife he was holding for periods of time. Arguably, a physical engagement on those occasions might have resulted in his safe apprehension. Of course, such speculation is, in large measure, just that – speculation. This is particularly so in the situation the officers found themselves. Both times the Complainant dropped the knife, for example, he was careful to keep it within arm’s reach; in fact, on the second such occasion, he expressly refused SO #2’s request that he kick the knife further away. In the circumstances, the officers had cause to be concerned that any aggressive movements on their part could result in the Complainant reacquiring the knife and using it to cause harm. Moreover, it had been decided that the police would make every effort to resolve the situation peacefully and without the use of force. That strategy was not an unreasonable one, especially as it seemed for stretches of time that progress was being made by SO #2 in the negotiations.
The number of officers that responded to the scene and were inside the bedroom with the Complainant also bears scrutiny. I accept that the nature and extent of the police presence likely contributed to the stress the Complainant was feeling and was, to a degree, at cross-purposes with the overall police objective of de-escalation. That said, the police were in a difficult position. The Complainant had hold of a knife, and represented a real and present danger to himself and others. They were also aware that upwards of a half-dozen police officers had been required to subdue the Complainant the last time he had been apprehended and admitted to hospital. Indeed, in the instant case, the Complainant displayed incredible strength after he was initially struck by a CEW discharge and for a period after he had sustained the lethal knife wound, and it again took about six ETU officers to ultimately overcome his resistance. In the circumstances, if the show of force was more than it needed to be, it was not beyond the pale in light of the competing imperatives at play.
For the foregoing reasons, as I am satisfied that SO #1, SO #2 and SO #3 comported themselves lawfully throughout the train of events that culminated in the Complainant’s death, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: October 21, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 of the Criminal Code, respectively. The former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is reserved for more serious case of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. The impugned conduct must be a marked and substantial departure from a reasonable standard of care to ground liability for the offence. In the instant case, the issue is whether there was a want of care on the part of the officers who principally shaped the police response to the Complainant – SO #1, with overall command responsibility for police operations; SO #2, the lead negotiator; and, SO #3, the ETU officer who initially discharged his CEW – that contributed to the Complainant’s death and/or was sufficient egregious as to attract criminal sanction. In my view, there was not.
At the outset, it should be noted that the officers were at all times lawfully placed. They had been called to the scene after receiving word that the Complainant was in mental distress and in possession of a pocketknife that he had brandished in his brother’s direction. An officer’s foremost duty is the preservation of life. They were, in the circumstances, duty bound to attend the Complainant’s apartment to do what was reasonably in their power to prevent harm coming to the Complainant or others.
I am further satisfied that the police operation that unfolded that day – including the parts played by SO #1, SO #2 and SO #3 – was conducted with due care and regard for the health and well-being of the Complainant, notwithstanding the Complainant’s tragic death. Among the first personnel to arrive at the scene was a unit of the Mobile Crisis Rapid Response Team (MCRRT), which pairs a specially trained officer with a mental health professional – in this case, WO #4 and CW #7, respectively. The MCRRT is part of the police service’s efforts to deal more effectively with calls for service involving persons in mental distress. CW #7 spoke with the Complainant in his bedroom for about ten minutes and attempted to assess whether there were grounds to apprehend him under the Mental Health Act. Though he was responsive to some of her questions, the Complainant appeared distant at times and paranoic – he laughed inappropriately, whispered under his breath and flailed his arms. Not sure whether there was a lawful basis to take the Complainant into custody, CW #7 decided to return to ground level to speak with the Complainant’s brother – CW #2. Shortly thereafter, the Complainant would take possession of another knife from the kitchen.
The decision to deploy a trained crisis negotiator – SO #2 – and the ETU, of which SO #3 was a member, were also reasonable. By the time SO #2 made her way to the scene shortly after 4:30 p.m., the Complainant was in a bedroom with a knife to his neck and the situation had clearly escalated, foreclosing any further involvement by the MCRRT. The plan was to give negotiations every opportunity to successfully resolve the stand-off in a peaceful fashion. As such, over the next hour-and-a-half, SO #2 attempted and was able to establish a level of rapport with the Complainant. She was successful in having him release the knife, and engaged him in conversation about his likes and interests. SO #2 was also privy to advice received from a forensic psychiatrist who had been consulted in respect of the situation. When SO #2 thought on a couple of occasions that she had developed sufficient good will with the Complainant, she encouraged him to go willingly with the officers to the hospital for help. Though the Complainant remained steadfast in refusing the offer, it was not for lack of trying by SO #2. Her efforts, the record is clear, were at all times tactful and measured.
I am further satisfied that the ETU and, in particular, SO #3, did not transgress the limits of care prescribed by the criminal law throughout their engagement in this matter. The ETU were called to attend at the apartment, reasonably in my view, after the Complainant had taken hold of a larger kitchen knife and fled into the southern-most bedroom. Given his state of mind and his possession of a weapon capable of inflicting grievous bodily harm or death, I am unable to fault the ETU officers – four to five of them throughout the stand-off – for maintaining a presence in the bedroom, especially if SO #2 was going to continue with her negotiations from inside the room.
The officers – variously armed with a CEW, rifle, ARWEN and shield at the ready – were largely passive throughout the incident; they stood beside and behind SO #2 as she tried to make headway in her conversations with the Complainant. It was only when those negotiations began to break down, and it seemed that the Complainant was on the precipice of self-harming with the knife, did SO #3 discharge his CEW. He only did so after receiving “reaction authority” from SO #1 to intercede if bodily harm appeared imminent. The officers reasonably believed they had reached that point as the Complainant’s behaviour took a decided turn for the worse shortly after 6:00 p.m. In the circumstances, I am satisfied that SO #3 acted reasonably in attempting to temporarily incapacitate the Complainant from a distance by deploying his CEW when he did. If successful, the Complainant would have been immobilized long enough to allow for his safe apprehension before he could self-harm.
Nor am I able to conclude that the CEW discharges that followed, and the collective effort to physically subdue the Complainant in the melee after SO #3 fired his weapon, were unreasonable. At that time, the officers were desperately trying to prevent the Complainant from doing harm to himself.
Lastly, once the Complainant’s limbs were secured, there is no indication that the officers acted without proper dispatch in rendering medical care.
Were there moments where more decisive intervention by the officers could have resulted in a better outcome? Perhaps. One notes, in this vein, that the Complainant had dispossessed himself twice of the knife he was holding for periods of time. Arguably, a physical engagement on those occasions might have resulted in his safe apprehension. Of course, such speculation is, in large measure, just that – speculation. This is particularly so in the situation the officers found themselves. Both times the Complainant dropped the knife, for example, he was careful to keep it within arm’s reach; in fact, on the second such occasion, he expressly refused SO #2’s request that he kick the knife further away. In the circumstances, the officers had cause to be concerned that any aggressive movements on their part could result in the Complainant reacquiring the knife and using it to cause harm. Moreover, it had been decided that the police would make every effort to resolve the situation peacefully and without the use of force. That strategy was not an unreasonable one, especially as it seemed for stretches of time that progress was being made by SO #2 in the negotiations.
The number of officers that responded to the scene and were inside the bedroom with the Complainant also bears scrutiny. I accept that the nature and extent of the police presence likely contributed to the stress the Complainant was feeling and was, to a degree, at cross-purposes with the overall police objective of de-escalation. That said, the police were in a difficult position. The Complainant had hold of a knife, and represented a real and present danger to himself and others. They were also aware that upwards of a half-dozen police officers had been required to subdue the Complainant the last time he had been apprehended and admitted to hospital. Indeed, in the instant case, the Complainant displayed incredible strength after he was initially struck by a CEW discharge and for a period after he had sustained the lethal knife wound, and it again took about six ETU officers to ultimately overcome his resistance. In the circumstances, if the show of force was more than it needed to be, it was not beyond the pale in light of the competing imperatives at play.
For the foregoing reasons, as I am satisfied that SO #1, SO #2 and SO #3 comported themselves lawfully throughout the train of events that culminated in the Complainant’s death, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: October 21, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Times noted are the times recorded in the internal CEW data. [Back to text]
- 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
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.