SIU Director’s Report - Case # 23-OFP-076
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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 section 14 (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.
- 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 serious injury of a 40-year-old man (the “Complainant”).
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 serious injury of a 40-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On March 9, 2023, at 8:56 p.m., the Durham Regional Police Service (DRPS) contacted the SIU with the following information. At 6:27 p.m., March 9, 2023, the DRPS received a Mental Health Act (MHA) call regarding a family dispute between a mother and her son, the Complainant. The Complainant, who had a history of mental illness, was acting erratically. Following an interaction with police officers, the Complainant was transported by ambulance to the Oak Valley Health Hospital (OVHH) in Uxbridge where he was diagnosed with a broken hand.
The Team
Date and time team dispatched: 03/09/2023 at 10:32 p.m.Date and time SIU arrived on scene: 03/09/2023 at 10:40 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
40-year-old male; not interviewed; medical records obtained and reviewedCivilian Witness (CW)
CW Interviewed The civilian witness was interviewed on March 10, 2023.
Subject Official (SO)
SO Interviewed; notes received and reviewed The subject official was interviewed on March 23, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Not interviewed; notes reviewed and interview deemed not necessary
WO #4 Not interviewed; notes reviewed and interview deemed not necessary
WO #5 Not interviewed; notes reviewed and interview deemed not necessary
WO #6 Not interviewed; notes reviewed and interview deemed not necessary
The witness officials were interviewed on March 10, 2023.
Evidence
The Scene
The events in question transpired in and around a basement apartment in Uxbridge. At the basement entrance door, two Anti-riot Weapon ENfield (ARWEN) projectiles and a large kitchen-style knife were located.
Figure 1 - Photograph of two ARWEN projectiles and a knife situated on the floor mat inside the entrance door to the CW’s apartment.
On the basement floor in front of a table were several passive drops of a red blood-like substance. Located in several areas throughout the kitchen were blood-like staining patterns, conducted energy weapon (CEW) cartridges and associated wires and probes. These items were photographed.
Video/Audio/Photographic Evidence [2]
Body-worn Camera (BWC) Footage
BWC Footage – WO #3Starting at about 6:46:02 p.m., the CW was captured out on the street advising WO #3 of her son, the Complainant, inside the residence. She indicated he was having a mental health breakdown. The CW had attended a hospital asking for them to admit her son, but they would not do so. She told WO #3 that her son had consumed four beers earlier. He was eating dinner on the couch and started to spill the meal on the area he was eating when the CW asked that he eat the food at the kitchen table. He walked towards the kitchen and spilled the rest of the meal on the floor. The Complainant started heavy breathing and the CW became scared and left the residence. The CW advised that her son heard voices and would not believe that police were on scene.
A tactical paramedic arrived on scene and started to speak with the CW.
WO #3 advised the police officers that the Complainant was arrestable under the MHA.
WO #3 subsequently entered the residence and a police officer advised him that the SIU had to be contacted due to the injury to the Complainant.
BWC Footage - WO #6
On March 9, 2023, at 7:25:56 p.m., the video opened with a view from the street at the residence in Uxbridge, Ontario. Three fully marked DRPS police vehicles were parked in front of the residence. Three uniformed police officers stood in the driveway. WO #3 informed the police officers that the Complainant was subject to apprehension due to injuries to his feet from walking around barefoot in the snow for two days and refusing medical treatment. A tactical police officer told WO #3 that the Complainant was armed with a large knife.
Starting at about 7:28:46 p.m., two loud bangs were heard followed by loud indistinguishable shouting. WO #6 and WO #5 walked towards the back of the residence. They descended the stairs leading to the basement of the residence. A long kitchen knife and two cans were at the threshold of the door. The Complainant said, “Ow,” repeatedly. Three tactical police officers [now known to be WO #2, the SO, and WO #1] were in the corner of the kitchen standing over the Complainant. A tactical paramedic entered the kitchen and tended to him. The Complainant said, “… fucking shotgun,” and a police officer said, “What did we tell you, put the knife down, don’t come out with the knife.”
911 Call
On March 9, 2023, at 6:27:42 p.m., the CW called 911 to request police attend her residence in Uxbridge, Ontario. She reported her son, the Complainant, suffered from paranoid schizophrenia, anxiety and depression, and was “freaking out”. The Complainant had a history of hearing voices telling him to kill himself or others. The CW wanted him removed from her residence.
The CW was in the bathroom and her son was in the kitchen. She told police to enter via the backdoor. It was unknown if the Complainant had weapons but he had access to kitchen utensils.
The Complainant did not take any anti-psychotic medication and it was possible he would be violent with police because he was unpredictable. The CW believed her son would arm himself with a knife because he was in the kitchen. He would make weapons if he did not have them.
The CW subsequently reported that he was in the living room of the basement and she was outside.
Police Radio Communications
On March 9, 2023, the dispatcher alerted the police to attend an address in Uxbridge. The caller [now known to be the CW] had reported her son [now known to be the Complainant] had paranoid schizophrenia and was “freaking out”. The Complainant had consumed four beers but had made no threats to the CW or others.
The CW had locked herself in the bathroom.
The Complainant was flagged on police records for ‘violence’ and ‘prohibited firearms’ with a history of assault causing bodily harm.
The CW had advised police to enter via the backdoor and indicated that the Complainant had access to kitchen utensils. He was known to make weapons if he did not have one and police officers were instructed to be cautious about the kitchen knives. The Complainant did not take medications and could be violent with police because he was unpredictable. The Complainant heard voices telling him to kill himself or others. There were no firearms in the residence.
The tactical supervisor, WO #2, confirmed with the dispatcher the tactical team was on their way from Whitby.
The CW left the residence and was outside. The back door would not open because the Complainant had slammed it.
A mental health unit was requested from WO #2 and dispatched from Whitby.
WO #2 alerted dispatch that the Complainant was observed through a window by tactical police officers [now known to be WO #1 and the SO] in the back of the house. The Complainant was armed with a large kitchen knife.
WO #3 informed the dispatcher that the Complainant was subject to apprehension because he had walked around for two days in the snow with bare feet and refused medical treatment.
WO #3 requested an ambulance.
WO #2 alerted dispatch that the Complainant was hit with an ARWEN and “tazered” twice, and was in custody. He had a minor laceration to his right hand, possibly from the knife he held, and other minor injuries.
The ambulance was requested to stage in the driveway and police officers would assist the tactical medic with removing the Complainant to the ambulance.
The Complainant was cleared as stable by the tactical medic.
The ambulance arrived and the Complainant was loaded in the ambulance.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the DRPS between March 13 and 23, 2023:- General Occurrence Report;
- Notes – the SO;
- Notes – WO #3;
- Notes – WO #1;
- Notes – WO #2;
- Notes – WO #6;
- Notes – WO #4;
- Notes – WO #5;
- Will Say – WO #6;
- Will Say – WO #4;
- Will Say – WO #5;
- Will Say – WO #3;
- Communications recordings;
- BWC footage – WO #5;
- BWC footage – WO #6;
- BWC footage – WO #3;
- BWC footage – WO #2;
- BWC footage – Officer #1;
- Use of Force Training Records – the SO;
- ARWEN Requalification Records – the SO;
- Computer-assisted dispatch report; and
- Directive - Use of Force.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- The Complainant’s medical records from OVHH.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may briefly be summarized.
In the evening of March 9, 2023, a DRPS Tactical Support Unit team was dispatched to the CW’s residence in Uxbridge following a call to police from the CW. The CW, the tenant of the basement apartment, had called police about her son, the Complainant. The Complainant, who had recently moved in with the CW and suffered from paranoid schizophrenia, was in the throes of a psychotic episode and was behaving erratically. Concerned for her safety, the CW had locked herself in the bathroom.
The team, including the SO, arrived on scene at about 7:00 p.m. The SO and WO #1 were directed to the rear of the residence, where the exterior entrance/exit to the basement apartment was located down a flight of stairs. The SO, armed with a ARWEN, and WO #1, with hold of a shield, took positions at the top of the steps.
Within minutes, the Complainant approached the door. Through the door, WO #1 told the Complainant they were there because his mother had called police expressing concern for his welfare and they wanted to ensure he was okay. The Complainant stared blankly at the officers, fumbled with the door handle without opening it, and then walked away to the kitchen. He returned to the door with a knife behind his back that he had retrieved from the knife block in the kitchen.
WO #1 had seen the Complainant with the knife and ordered him not to exit with the knife in hand. The Complainant proceeded to open the door, display the knife at the officers, and move forward up the stairs. As he did so, he was struck by two ARWEN rounds; the first impacted his abdomen with little effect, the second struck his right hand, dislodging the knife. The Complainant returned inside into the kitchen. The time was 7:28 p.m.
The SO had fired his weapon from the top of the stairs. He and WO #1, now joined by WO #2, followed the Complainant into the kitchen and watched as he was making his way towards the knife block again. WO #1 and WO #2 fired their CEWs at the Complainant, [3] and he fell to the floor and was handcuffed.
Following his arrest, the Complainant was taken to hospital from the scene and diagnosed with a fractured right hand.
In the evening of March 9, 2023, a DRPS Tactical Support Unit team was dispatched to the CW’s residence in Uxbridge following a call to police from the CW. The CW, the tenant of the basement apartment, had called police about her son, the Complainant. The Complainant, who had recently moved in with the CW and suffered from paranoid schizophrenia, was in the throes of a psychotic episode and was behaving erratically. Concerned for her safety, the CW had locked herself in the bathroom.
The team, including the SO, arrived on scene at about 7:00 p.m. The SO and WO #1 were directed to the rear of the residence, where the exterior entrance/exit to the basement apartment was located down a flight of stairs. The SO, armed with a ARWEN, and WO #1, with hold of a shield, took positions at the top of the steps.
Within minutes, the Complainant approached the door. Through the door, WO #1 told the Complainant they were there because his mother had called police expressing concern for his welfare and they wanted to ensure he was okay. The Complainant stared blankly at the officers, fumbled with the door handle without opening it, and then walked away to the kitchen. He returned to the door with a knife behind his back that he had retrieved from the knife block in the kitchen.
WO #1 had seen the Complainant with the knife and ordered him not to exit with the knife in hand. The Complainant proceeded to open the door, display the knife at the officers, and move forward up the stairs. As he did so, he was struck by two ARWEN rounds; the first impacted his abdomen with little effect, the second struck his right hand, dislodging the knife. The Complainant returned inside into the kitchen. The time was 7:28 p.m.
The SO had fired his weapon from the top of the stairs. He and WO #1, now joined by WO #2, followed the Complainant into the kitchen and watched as he was making his way towards the knife block again. WO #1 and WO #2 fired their CEWs at the Complainant, [3] and he fell to the floor and was handcuffed.
Following his arrest, the Complainant was taken to hospital from the scene and diagnosed with a fractured right hand.
Relevant Legislation
Section 25(1), Criminal Code -- Protection of Persons Acting Under Authority
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(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,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Section 17, Mental Health Act -- Action by Police Officer
17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(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,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by DRPS officers on March 9, 2023. In the ensuing SIU investigation of the incident, the SO was identified as the subject official. The investigation is now concluded. 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 officers who responded to the scene to deal with the Complainant were within their rights in seeking to take him into custody. Given what they knew of the information that had been received from his mother about his mental health and current conduct, the Complainant was subject to apprehension under section 17 of the MHA.
With respect to the force used by the SO in aid of the Complainant’s arrest, namely, the two ARWEN discharges, I am satisfied that it was legally justified. The Complainant had appeared at the doorway brandishing a knife. When he opened the door and confronted the officers with the weapon, he represented a clear and present danger of grievous bodily harm and even death given their proximity. In that moment, it would appear that the use of the ARWEN was a reasonable tactic. If it worked, there was a real prospect that the weapon would immediately deter the Complainant from a safe distance without inflicting serious injury. In fact, though one of the rounds struck and broke the Complainant’s right hand, the ARWEN did achieve the desired effect of stopping the Complainant in his tracks and disarming him of the knife. Seconds later, the Complainant was taken into custody.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law when he fired his ARWEN at the Complainant, there is no basis for proceeding with charges. The file is closed.
Date: July 7, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 officers who responded to the scene to deal with the Complainant were within their rights in seeking to take him into custody. Given what they knew of the information that had been received from his mother about his mental health and current conduct, the Complainant was subject to apprehension under section 17 of the MHA.
With respect to the force used by the SO in aid of the Complainant’s arrest, namely, the two ARWEN discharges, I am satisfied that it was legally justified. The Complainant had appeared at the doorway brandishing a knife. When he opened the door and confronted the officers with the weapon, he represented a clear and present danger of grievous bodily harm and even death given their proximity. In that moment, it would appear that the use of the ARWEN was a reasonable tactic. If it worked, there was a real prospect that the weapon would immediately deter the Complainant from a safe distance without inflicting serious injury. In fact, though one of the rounds struck and broke the Complainant’s right hand, the ARWEN did achieve the desired effect of stopping the Complainant in his tracks and disarming him of the knife. Seconds later, the Complainant was taken into custody.
In the result, as there are no reasonable grounds to believe that the SO comported himself other than within the limits of the criminal law when he fired his ARWEN at the Complainant, there is no basis for proceeding with charges. The file is closed.
Date: July 7, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [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]
- 3) The CEW discharges were not the focus of the SIU investigation. [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.