Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

• Confidential investigative techniques and procedures used by law enforcement agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• location information
• witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence and
• other identifiers which are likely to reveal personal information about individuals involved in the investigation

Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury reportedly sustained by a 50-year-old man during his apprehension on September 22, 2017.

Notification of the SIU

At approximately 9:40 a.m. on September 22, 2017, the Peel Regional Police (PRP) notified the SIU of the Complainant’s custody injury.

The PRP reported that earlier that day PRP officers had responded to a disturbance call at a residence in the City of Brampton, where they located a man [now known to be the Complainant] on the roof of the strip mall, smashing windows. The Complainant jumped from the roof and attempted to flee. Conducted energy weapons (CEWs) were discharged by Subject Officer (SO) #1 and SO #2.

The Complainant was then taken to the hospital and admitted. He was treated for a possible drug overdose and a possible fractured ankle. Civilian Witness (CW) #1 indicated to the police that the Complainant’s ankle had been fractured about two weeks earlier, and that the Complainant had duct taped it.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

SIU forensic investigators took several photographs of the plaza environment and of the Complainant’s injuries. They also collected evidence of CEW deployment at the plaza, consisting of three CEW cartridges and data from the deployed CEWs that were assigned to SO #2 and SO #1. Analysis determined that SO #2 deployed one CEW cartridge and SO #1 deployed two cartridges. Of the six probes that were deployed from the three cartridges, one was recovered from WO #3’s CEW holster, one was recovered from the telephone kiosk at the plaza, and three were recovered by EMS paramedics from the Complainant’s back. One probe could not be located.

Complainant:

50-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right

On September 22, 2017, a 911 call was received at 3:19 a.m. from a residence above a commercial plaza in the City of Brampton. The caller reported that a man, the Complainant, was on the roof of the plaza and was smashing things.

PRP officers were dispatched to the plaza and located the Complainant still on the roof; he was described as being agitated, yelling and screaming, and doing damage to property on the rooftop. Officers attempted to calm the Complainant and to convince him to come down off the roof, with the intention of apprehending him under the Mental Health Act (MHA) as being a danger to himself or others.

After approximately one hour of unsuccessful police negotiations, the Complainant lowered himself over the edge of the roof, where he either jumped or fell, landing first on a telephone box and then on the ground. The Complainant then got up and attempted to flee from police, following which both subject officers deployed their Conducted Energy Weapons (CEWs or Tasers) at the Complainant, and he finally stopped and was arrested. The Complainant was then transported to the hospital where the probes were removed and he was assessed.

Nature of Injuries / Treatment

The nature of the Complainant’s injuries remained unconfirmed for several weeks. The medical records initially indicated that the Complainant had sustained a fractured skull, but this was later discovered to have been a typographical error. The diagnostic radiologist, however, confirmed that the only injuries sustained by the Complainant were lung contusions, without any soft tissue swelling or rib fractures, and a grade one minor liver laceration.

Neither injury required any medical intervention.

The Scene

The scene was located on the roof of a strip mall in the City of Brampton.

The photo below depicts both the rooftop and the call box onto which the Complainant fell as he descended from the rooftop.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Physical Evidence

CEW Data Report

SO #1 was assigned a Model X2 CEW (Taser). An SIU forensic investigator downloaded the data from the CEW, which indicated that on September 22, 2017, C1 (cartridge 1) was deployed at 3:39:45 a.m. and C2 (cartridge 2) was deployed at 3:40:00 a.m.

SO #2 was also assigned a Model X2 CEW (Taser). The data from this CEW indicated that on September 22, 2017, C1 (cartridge 1) was deployed at 3:38:59 a.m. and C2 (cartridge 2) was not deployed.

Expert Evidence

The medical opinion sought revealed that the two injuries sustained by the Complainant were neither consistent with a fall from a standing position onto the ground, nor from the deployment of a CEW. The expert advised, however, that the injuries could be attributed to a fall or an altercation having occurred between 24 hours to one week prior to the Complainant having been seen at hospital.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was unable to locate any.

Communications Recordings

The 911 call recordings and radio transmissions recordings were reviewed and found to be consistent with information gleaned throughout the interview process.

Materials obtained from Police Service

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

• Audio Copy Report of the 911 Phone Calls
• Audio Copy Report of the Radio Transmissions
• Event Chronology
• Notes of WO #s 1-4, and
• PRP Witness Statements from CW #1 and CW #2 and one undesignated Civilian

The following materials and documents were obtained from other sources:

• Ambulance Call Reports (x2), and
• Medical Records of the Complainant

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. 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
3. 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,

4. serious bodily harm to the person
5. serious bodily harm to another person; or
6. 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.

On September 22, 2017, a 911 call was received by the Peel Regional Police (PRP), at approximately 3:19 a.m., with respect to a male person who was on the roof of a plaza and was smashing things. Numerous police units responded to the scene at a residence situated above a commercial plaza in the City of Brampton. The male, the Complainant, was subsequently apprehended and transported to hospital where he was diagnosed with lung contusions and a minor liver laceration.

During the course of this investigation, four civilian and four police witnesses were interviewed. Despite both subject officers (SOs) declining to provide a statement or their notes to the SIU for review, as is their legal right, there is no dispute as to the facts. The following sequence of events is based on the reliable evidence obtained during the course of this investigation.

On September 22, 2017, in the early morning hours, the Complainant, in an apparent altered state of mind, either due to a mental health crisis or the ingestion of narcotics, or a combination of both, broke the window of his girlfriend’s bedroom and climbed out onto the roof of the adjoining commercial plaza. According to several witnesses, this is not the first time that the Complainant had done so, having within the two weeks prior to the incident in question also exited onto the rooftop following which he jumped off of the roof breaking his left heel and the little finger on his left hand.

On this occasion, the Complainant was observed to be on the roof of the plaza and a neighbour called the police at approximately 3:19 a.m. reporting that she was concerned that the Complainant and his girlfriend were going to kill each other. The call taker heard screaming in the background before the call was then disconnected.

Several police vehicles attended the scene and observed the Complainant on the roof. The Complainant was described as agitated, screaming, and yelling, as he tried to remove the air conditioner from the rooftop, and was observed to throw a pipe to the rear of the building and to rip other items from the rooftop and throw them at the police cruisers below. Several police officers tried to calm the Complainant by speaking with him and tried to convince him to come down off of the rooftop. It was the intention of the police officers present to apprehend the Complainant pursuant to s. 17 of the (Mental Health Act) MHA, as he appeared unable to care for himself and presented as a danger to himself and others.

The Complainant was estimated to have been on the rooftop for up to one hour, when he was observed by numerous witnesses, both civilian and police, to lower himself over the edge of the roof where he either jumped or fell, landing first on a telephone box, and then onto the ground.

There is no dispute as between witnesses that the Complainant came down from the rooftop under his own steam, as no police officer ever went out onto the roof top pursuant to the direction from Witness Officer (WO) #3 that they not do so, in order that the police officers not further agitate the Complainant thereby causing him to jump.

Once the Complainant landed, surprisingly, he appeared uninjured and got up and continued to try to run from the police. The Complainant was observed to repeatedly refuse to comply with police commands to get down onto the ground, following which at least two police officers deployed their CEWs a number of times, the last of which was finally effective in stopping the Complainant, who was then handcuffed and placed on his side in the recovery position, while awaiting the arrival of paramedics.

There is no allegation, by any of the witnesses or the Complainant himself, that any police officer resorted to any force whatsoever in apprehending the Complainant, other than the deployment of the CEWs.

Later examination of the CEWs present at the scene confirmed that two CEWs had been deployed for a total of three times. These deployments were by the two SOs, with SO #1 having deployed her CEW twice, while SO #2 deployed his once. When the Complainant was subsequently examined by paramedics, only three of the six probes (each deployment releases two probes) were actually located in the Complainant’s back. Of the remaining three probes, one was located in the telephone box, one in WO #3’s holster, and one was unaccounted for.

The medical evidence confirmed that the CEWs were not the source of any injuries sustained by the Complainant, with his injuries being attributed either to his jump or fall from the roof onto the telephone box and then onto the ground, or from prior trauma not associated with his interaction with police on September 22, 2017.

While it is clear on all of the evidence that the source of the Complainant’s injuries was not due to the direct actions of police on September 22, 2017, the evidence still requires an assessment of whether or not the deployment of the CEWs by SO #1 and SO #2 constituted an excessive use of force in these circumstances, and whether or not police were indirectly responsible for the injuries sustained by the Complainant in that their actions forced his hand thereby causing him to jump from the rooftop.

In assessing whether or not the actions of the police amount to an excessive use of force in these circumstances, I have considered that pursuant to s. 25(1) of the Criminal Code, police officers are protected from prosecution if they are acting pursuant to their lawful duties as long as they use only as much force as is necessary for that lawful purpose.

On the record before me, it is clear that based both on the 911 call, and the observations of both civilians and the police that the Complainant appeared to be in an altered state of mind when he went out onto the roof top on September 22, 2017, that he was unable to care for himself and presented as a danger to himself and others. As such, it is clear that the police had reasonable grounds to apprehend the Complainant under the MHA and to transport him to the hospital in order that he get the care that he so obviously required. As such, it is clear on these facts that the police were acting within their lawful duties at the time that they attempted to encourage the Complainant to come down from the rooftop before he caused himself any harm and that their actions were justified, as long as they did not resort to an excessive use of force.

With respect to the injuries that may have been sustained by the Complainant when he jumped or fell from the rooftop, I have noted that the actions of the police were described by all present as calm in their attempts to try to convince the Complainant not to injure himself and to voluntarily come down from the rooftop. Additionally, based on the fact that no police officer ever went out onto the roof, and therefore could not be seen to have forced the Complainant’s hand, and that he had recently, without any intervention by the police, also jumped from the rooftop on at least one prior occasion, I have no hesitation in finding that the Complainant would have jumped from the rooftop whether or not the police had been present, and I have no basis to find that his actions were, in any way, triggered by the police presence.

With respect to the deployment of the CEWs by SO #1 and SO #2, I have considered the evidence of a civilian witness who described the Complainant as being possessed and of superhuman strength, while all others present described him as continuing to struggle and resist police even after his fall from the roof, on which basis I cannot find that the deployment of the CEWs was excessive in these circumstances.

In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R v Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

It is clear, on all of the evidence, that there was some urgency in subduing the Complainant as quickly as possible as he continued to pose a danger to himself as long as he was not handcuffed. As such, despite the number of police officers present at the time, I find that I have reasonable grounds to believe that the use of the CEW in these circumstances was prudent, in that, had the police officers present tried to physically restrain the Complainant while he exhibited this ‘superhuman strength,’ the injuries to both himself and the other police officers involved would likely have been far greater. On this basis, I cannot find that the deployment of the CEWs by SO #1 and SO #2 amounted to an excessive use of force.

In conclusion, on this evidentiary record, I find that I do not have reasonable grounds to believe that any police officer present during the incident resorted to an excessive use of force in attempting to restrain the Complainant, nor that any police officer was responsible for the injuries sustained by the Complainant. Consequently, there is no basis for the laying of criminal charges and none shall issue.

Date: August 7, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit