SIU Director’s Report - Case # 23-OCD-394
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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.
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 death of an 88-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On September 13, 2023, at approximately 6:00 p.m., the Peel Regional Police (PRP) contacted the SIU to advise of an interaction they had had with the Complainant that day at 12:59 p.m., at his residence in the area of Dundas Street East and Cawthra Road, Mississauga. According to the service, a police officer assigned to their Crisis Outreach and Support Team (COAST), with a Canadian Mental Health Association (CMHA) COAST member and a Centre for Addition and Mental Health (CAMH) Behavioural Support Ontario (BSO) nurse, attended the Complainant’s residence to apprehend him under the Mental Health Act (MHA). The Complainant was located outside his residence in an agitated state. The police officer was able to de-escalate the matter and the Complainant went back into his residence with the police officer, BSO nurse, and COAST worker. An apprehension under the MHA ensued. At some point, the Complainant fell down a flight of stairs. He was taken to St. Michael’s Hospital (SMH).
On September 25, 2023, at 11:13 a.m., the PRP notified the SIU that the Complainant had died at SMH that day. The SIU invoked its jurisdiction.
The Team
Date and time team dispatched: 2023/09/26 at 8:39 a.m.Date and time SIU arrived on scene: 2023/09/26 at 12:50 p.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
88-year-old male; deceasedCivilian Witnesses
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Not interviewed; declined
CW #6 Not interviewed; declined
The civilian witnesses were interviewed between September 26, 2023, and October 26, 2023.
Subject Official
SO Interviewed, but declined to submit notes, as is the subject official’s legal rightThe subject official was interviewed on November 3, 2023.
Evidence
The Scene
The events in question transpired on the exterior and interior landing by the front door of a home in the area of Dundas Street East and Cawthra Road, Mississauga.The unit was occupied by the Complainant and CW #1 and, from the exterior, appeared like a two-storey home.
The scene was neither attended nor forensically examined by SIU. Photographs of the area were made by PRP members on September 13, 2023, and SIU investigators took six photographs on September 26, 2023, when they took CW #1’s initial statement.
Expert Evidence
At the onset of the investigation, there was a need to determine if the Complainant’s death was more or less likely to be associated to the injuries he sustained falling down the stairs as opposed to some other factor that emerged during his approximate two-week stay in hospital. That was to differentiate between classifying the investigation as a ‘custody death’ or a ‘custody injury’.The investigators spoke to the Investigating Coroner, who, having familiarized himself with the Complainant’s medical records, opined his death was the likely result of the injuries he sustained falling down the stairs.
Video/Audio/Photographic Evidence [2]
Police Communications Recordings
Pertinent communications recordings from September 13, 2023, had no time-stamps. [3] In a four-minute and 54-second 911 call placed by CW #5 to summon help, he reported he was with “a crisis program”, a visit had become “escalated”, and they needed “support”. He believed an 88-year-old man was being “held down” by a police officer and the man needed to go to the hospital for medical and mental health-related treatment.Starting at about 1:29 p.m., the SO’s first police radio transmission requested an ambulance and other police officers. The dispatcher issued the 10-code for all other police officers to cease broadcasts before the SO reported an 88-year-old man had fallen down the stairs and was unresponsive. He next broadcast that the male was breathing but unresponsive.
Starting at about 1:30 p.m., broadcasts followed as other police officers acknowledged and put themselves on the call. The SO updated the dispatcher that the Complainant was bleeding from the head.
Starting at about 1:32 p.m., the SO reported that the Complainant had become responsive but was confused and complained of neck pain. The SO answered radio inquiries about his circumstances by saying CW #1, a BSO nurse, and “his civilian”[4] were with him. An update made by WO #3 indicated that the Complainant could not feel his legs.
Starting at about 1:37 p.m., another PRP officer made a police radio broadcast when paramedics and firefighters arrived at the Complainant’s home.
Body-worn Camera (BWC) Footage – WO #3
On September 13, 2023, at about 1:34 p.m., the video opened with a view of the interior of a police vehicle. The vehicle stopped and WO #3 entered the residence, passing CW #5 and CW #6 at the front door. CW #6 and CW #1 directed him downstairs. He descended to the basement behind WO #1.The SO was talking to the Complainant, who was responding. Those initial exchanges were not always clear, but the Complainant seemed to be asking the SO to do something “lower”. The SO asked WO #3 to update ambulance that the Complainant could not feel his legs. The Complainant told the SO to “do what he was told”. The SO reassured him he was going to be okay. The Complainant asked the SO to get a bucket with ice water and pour it on him. The SO asked the Complainant if he had high blood pressure. The Complainant repeatedly asked to be splashed with ice water. The SO asked him not to move. The Complainant yelled at the SO to let go of something. The SO asked the Complainant to listen to him. The Complainant responded, “No, I don’t want to listen to you,” and again asked for a bucket of cold water to be poured on him. The SO said he did not have any ice water and the Complainant said he would have to leave and make some. The SO said he was not going to leave him and asked if he was hot. The Complainant replied that he was not. The SO inquired after the Complainant’s medical history and was told his medical history. WO #3 clarified the Complainant had lost consciousness during the fall and established his age.
Starting at about 1:37 p.m., WO #3 left the Complainant’s care to others and climbed the stairs to the foyer. He exited the house just as an ambulance arrived. He briefed the paramedics and directed them and firefighters to the basement.
Starting at about 1:39 p.m., WO #3 spoke to CW #5 at the front door of the house. He asked him if he was there when the Complainant fell and was told he was “mostly outside” on the phone with 911. WO #3 learned CW #5 was with the COAST unit and asked why he had called 911. CW #5 told him the SO asked him to call and request support. He thought the SO asked him to do that before the Complainant fell. CW #5 told WO #3 that when they got to the Complainant’s house, the Complainant was escalated. CW #5 excused himself from the interview saying he was going to support CW #6, upstairs.
Starting at about 1:41 p.m., WO #2 arrived, and WO #3 directed him to the top of the stairs that led to the basement. His BWC recorded as WO #2 looked from the top of the stairs down.
Starting at about 1:42 p.m., WO #3 took the stairs up to the living room, spoke to CW #1 and CW #6, and secured a health card.
At 1:42:56 p.m. the recording ended.
BWC Footage – WO #1
The video opened at 1:38:19 p.m., September 13, 2023, with a view of the SO on his hands and knees in the basement of the Complainant’s home hovering over the Complainant, who was covered in a blanket. At 1:38:55 p.m., the audio activated. The SO asked what was going on and what made the Complainant hot. He asked the Complainant what day it was and what year it was. The Complainant asked the SO to splash cold water on him.Starting at about 1:39 p.m., a firefighter descended the stairs and said paramedics were just behind them. The SO asked the Complainant not to move. Paramedics arrived. The SO told them the Complainant had said his neck hurt and he could not feel his legs. Someone said, “He fell.” The Complainant said his right shoulder hurt. Additional paramedics and firefighters filled the basement.
Starting at about 1:40 p.m., the SO said, “He came outside. We tried to get him inside. He tried to pull away and fell down the stairs.”
Starting at about 1:41 p.m., the SO said, “I was placing him under apprehension and that’s when he just started screaming. Pulling away. And I couldn’t hold on to him any longer and that’s when he went down the stairs backwards.”
Starting at about 1:42 p.m., as the Complainant was being rolled over, he asked to have cold water poured on his neck. A paramedic said, “I know, it hurts,” but she was not going to pour water on him. The Complainant said, “Please, you have to, I’ll die if you don’t pour cold water on my neck.” The SO took the stairs up from the basement. The Complainant continued to ask for cold water to be poured on his head. CW #5 came halfway down the stairs, then left. Discussions continued surrounding how they were going to get the Complainant out of the basement.
Starting at about 1:45 p.m., a paramedic got the Complainant to tell her his name and asked if he could move his lower legs. The Complainant asked her to pour cold water on his shoulders. He said he could not move his legs and, “I’m paralyzed.” The paramedic asked, “From what?” and he responded, “Just from falling down the stairs. Now pour cold water on my toes and on my shoulders, please.” The paramedic said she would not do that, and the Complainant voiced his displeasure at her response.
Starting at about 1:46 p.m., there were discussions about the Complainant’s mobility. A paramedic told a firefighter the Complainant said he could not move his legs after the fall, but she had established he could wiggle his toes. The Complainant continued to ask for cold water.
Starting at about 1:47 p.m., the Complainant was lifted to sitting, a cervical collar was applied around his neck, and efforts to lift him were initiated. The Complainant was not on a bodyboard.
Starting at about 1:48 p.m., the firefighter at the Complainant’s head and arms commented the Complainant had gone limp. The Complainant had stopped speaking. A second paramedic relieved the firefighter from the Complainant’s head and neck and, with the female paramedic at his legs, they lifted the Complainant from the ground, carried him up the stairs in a crumpled position out the front door of the house, and secured him on a gurney. The SO, CW #5 and WO #3 stood on the lawn.
Starting at about 1:52 p.m., WO #1 and WO #3 talked about the matter becoming a SIU investigation. The SO stood on the lawn, alone, and made notes.
Starting at about 1:53 p.m., WO #1’s audio was disabled. It turned back on, at 1:59:49 p.m., in the living room of the house with a view of CW #1 seated in a chair, and CW #6. WO #1 spoke with CW #6. She told him she had attended the house with the COAST team, and provided information about the Complainant’s medical condition and symptoms, including that he had experienced delirium. He refused medication and transport to hospital. He had visited the doctor the day before, and the family was directed to contact the crisis line. CW #6 said she received a note from the family doctor and believed the paramedics had taken it.
CW #1 finished a telephone conversation. WO #1 gathered her particulars and told her they were going to keep her basement secure, and he would stay in the house. He told her the matter was likely going to become a SIU investigation and asked her to stay out of the basement.
At about 2:07 p.m., WO #1’s BWC captured WO #2 in conversation with CW #6 on the front stoop of the home. CW #6 finished with WO #2, entered the home, said goodbye to CW #1, and left. At 2:08:40 p.m. hrs, WO #1 disabled his audio.
The footage ended at 2:10:48 p.m.
BWC Footage - WO #2
WO #2’s audio-recorded BWC footage did not contain anything that either WO #1’s or WO #3’s footage did not, except the audio of the short conversation he had at about 2:07 p.m. with CW #6 during which he explained he was not going to take a statement from her because the matter was likely to fall under SIU jurisdiction, but she should make notes. WO #2 did have lengthy conversations with the SO alone, the SO and WO #3 together, and the SO and CW #5 together, which were muted.
Starting at about 1:57 p.m., WO #2 checked on the Complainant in the back of the ambulance. He was told a small amount of blood had let from his head, and he had lost consciousness both after the fall and while being carried from the house. His blood pressure was low, which was why he was losing consciousness. The Complainant was conscious and spoke, but his words were unintelligible on the recording.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the PRP between September 26, 2023, and November 8, 2023:
- PRP scene images;
- Incident Details Report;
- Incident History Report;
- Occurrence Report;
- Use of Force - requalification records – SO;
- Notes – WO #1;
- Notes – WO #2;
- Notes – WO #3;
- Policy - Use of Force Policy;
- Policy - MHA Apprehension;
- Community Mobilization Unit and Divisional Mobilization Unit Policies;
- Communications recordings;
- BWC footage; and
- The Memorandum of Understanding between PRP and the CMHA associated to the Mobile Crisis Rapid Response Team program.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources:- Memorandum of Understanding between PRP and the CMHA associated to the COAST program, received November 7, 2023; and
- Preliminary Autopsy Findings Report from Ontario Forensic Pathology Service, received September 28, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with the SO and civilian witnesses who observed parts of the events in question, gives rise to the following scenario.
In the early afternoon of September 13, 2023, a COAST unit attended a residence in the area of Dundas Street East and Cawthra Road, Mississauga – the home of the Complainant and his wife, CW #1. The unit, consisting of the SO and two non-police mental health professionals – CW #5 and CW #6, were there to check on the Complainant. The day before, following a call by CW #1 to a crisis support line, two other mental health workers had visited to assess the Complainant. The Complainant had been in cognitive decline and behaving strangely, and CW #1 was seeking to have her husband examined at hospital. The workers had determined that there were grounds to apprehend the Complainant for a mental health assessment but left without contacting police to take him into custody; hence, the visit by COAST the following day.
The Complainant answered the SO’s knock on the front door. He was shirtless and only wearing boxer shorts and slippers as he exited to speak with the officer. The SO tried to coax the Complainant inside because it was cool, and he did not want to attract the neighbours’ attention. The Complainant was irritated and animated; he shouted and pointed his finger at the SO’s face. The officer decided to arrest him under the MHA.
Told he was being apprehended to see a doctor, the Complainant objected. When the SO took hold of his right hand, the Complainant pulled back attempting to free his arm. The parties tugged at each other for a period before finding themselves on the landing inside the front door. Immediately through the door was a staircase to the upper level of the home. To the right of that staircase, as one entered through the door, was another staircase that descended to the basement. The SO still had a hold of the Complainant, but he was being pulled towards the staircase to the basement. The officer warned him that he might fall down the stairs if he persisted, but the Complainant was undeterred. CW #1 came down the stairs from the upper level and attempted to assist the SO. She was eventually escorted back upstairs by one or both of the mental health professionals. The struggle persisted for a brief period before the SO lost his grip and the Complainant tumbled down the stairs.
The SO made his way to the basement and provided first-aid. The Complainant had lost consciousness and was not breathing. The officer positioned the Complainant on his back, after which he resumed breathing and regained consciousness. Paramedics were called and the Complainant was placed in a recovery position.
Firefighters and paramedics arrived at the scene and rendered aid. The Complainant was transported to hospital.
The Complainant died in hospital on September 25, 2023.
Cause of Death
The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to ‘blunt injuries’.Relevant Legislation
Section 25, 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,
Analysis and Director's Decision
On September 25, 2023, the Complainant passed away in hospital following a fall down a flight of stairs on September 13, 2023. As a PRP officer had been attempting to apprehend the Complainant at the time of the fall, the SIU was notified and initiated an investigation. 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 fall and his subsequent death.
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.
With respect to the Complainant’s apprehension under the Mental Health Act, I am unable to reasonably conclude that it was unlawful. In his dealings with the Complainant outside the front door, the SO had come to conclude that he was of unsound mind and a danger to himself and others. The fact that the Complainant had stepped outside dressed inappropriately for the weather and intruded on the officer’s personal space while pointing his finger and screaming at his face were important factors in the SO’s assessment. He would have also been aware of the assessment made the day before by two other crisis workers, who were similarly of the view that there were grounds to apprehend the Complainant for a medical exam. On this record, I am not satisfied that the Complainant’s arrest was without lawful cause under section 17 of the Act.
As for the force used by the SO in aid of the Complainant’s apprehension, there is some evidence the Complainant alleged that police pushed him down the stairs while he was in hospital before he died. If true, this amounts to excessive force and would be an offence; however, I do not believe this evidence is reliable such that it should be put before a trier of fact. The Complainant was of unsound mind at the time of the incident and did not make these allegations when asked what happened by a paramedic; instead, he stated he was paralyzed “just from falling down the stairs”. The investigation also revealed no other evidence corroborating these statements. The SO denied this occurred and a civilian eyewitness, although they did not see the fall, observed the Complainant attempting to pull away from the SO in the foyer, which is consistent with the SO’s statement.
The remainder of the evidence instead suggests the force used initially consisted of nothing more than the SO taking hold of the Complainant’s right hand, which was entirely reasonable. Thereafter, when the Complainant reacted by pulling away from the officer, the SO was within his rights in applying countervailing force to maintain his hold of the Complainant. Very quickly, as the parties found themselves on the interior landing by the front door, the officer’s force was rightly directed at preventing the Complainant from falling down the stairs to the basement. He cautioned him verbally to desist and then struggled to maintain a grip on the Complainant as he vigorously persisted in pulling backwards towards the stairs. At no point did the SO strike the Complainant. In the circumstances, I am satisfied that the force brought to bear by the SO was at no point excessive and all times reasonably tailored to overcome the Complainant’s resistance and prevent harm coming to him.
In the result, while it is tragic that the Complainant fell down the stairs, suffering injuries that would eventually culminate in his death, his injuries were not the result of any unlawful conduct on the part of the SO. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 23, 2024
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) Unless otherwise specified, 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 time referenced in this section are derived from the Incident Details Report and are approximations. [Back to text]
- 4) The SO’s reference to CW #5. [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.