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 31-year-old man during his arrest on March 29, 2017.

Notification of the SIU

On March 30^th, 2017 at approximately 10:10 a.m., the Hamilton Police Service (HPS) reported that on March 29^th, 2017 at approximately 11:55 p.m., police officers responded to a drug store in the City of Hamilton, to assist Hamilton paramedics for a call for a man who had a cut to his neck. When the paramedics arrived, they found the Complainant behaving erratically.

On March 30^th, 2017 at 12:06 a.m., police officers arrived at the scene. The Complainant produced a large butcher knife and walked towards the police officers. A Conducted Energy Weapon (CEW) was deployed multiple times, but it was not effective.

The Complainant used the knife to slash his throat several times and began to bleed heavily. A CEW was deployed again and the Complainant was apprehended. He was taken to hospital and treated for the cuts to his throat. It was determined that the cuts to the Complainant’s throat were not life threatening. At 3:23 a.m., an X-ray determined that the Complainant’s ankle was broken.

At 9:00 a.m., the HPS reviewed the information and notified the SIU.

The CEWHPS had already processed the scene.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, and measurements.

Complainant

31-year-old male attempted to be interviewed, but had no memory of the incident; medical records obtained and reviewed

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

Witness officers

WO #1 Interviewed and statement and notes received and reviewed

WO #2 Interviewed and statement and notes received and reviewed

WO #3 Interviewed and statement and notes received and reviewed

WO #4 Interviewed and statement and notes received and reviewed

WO #5 Interviewed and statement and notes received and reviewed

WO #6 Interviewed and statement and notes received and reviewed

WO #7 Interviewed and statement and notes received and reviewed

WO #8 Interviewed and statement and notes received and reviewed

WO #9 Interviewed and statement and notes received and reviewed

Subject officers

SO #1 Interviewed, and statement and notes received and reviewed

On Wednesday, March 29, 2017, just prior to midnight, staff at a drug store in Hamilton were closing up for the day.

The Complainant appeared at the front doors of the store as an employee was locking the doors. The Complainant had a noticeable laceration on his neck which was bleeding. The complainant asked for some rubbing alcohol. The employee alerted the store manager and a security guard who were in the store and called 911 for an ambulance.

Hamilton Paramedic Service responded to the call. The HPS was also dispatched to assist.

The ambulance arrived prior to the police. The Complainant began to walk away from the paramedics. WO #5 and WO #7 arrived on scene.

The Complainant attempted to gain access to the inside of the ambulance. He appeared to have something in his right hand. He then began to walk away again. WO #5 called out to the Complainant.

The Complainant stopped. He was holding a large knife in his right hand and came towards the police officers. The police officers instructed the Complainant to drop the knife. WO #5 deployed his CEW, but it did not affect the Complainant. WO #5 re-loaded his CEW and deployed it again. The Complainant pulled out the darts. CW #7 then deployed his CEW. Despite being struck, the Complainant was not affected by any of the CEW deployments.

WO #5 and WO #7 retreated behind their police vehicles and the Complainant turned and walked towards the middle of the parking lot. WO #5 advised the dispatcher of the situation and requested assistance.

The Complainant kneeled down in the middle of the parking lot. CW #5 and WO #7 waited for additional officers to arrive.

WO #3, WO #8 and WO #4 arrived on the scene, parked their police vehicles, and approached the Complainant on foot. The Complainant rose to his feet and slashed at his own neck from side to side with the knife, several times.

As the police officers got closer to the Complainant they ordered him to drop the knife. He wiped the knife on his pants and put it down to his side, but did not drop the knife.

With the knife at his side, the Complainant began to move towards WO #4 who had un-holstered his firearm and was pointing it at the Complainant. WO #3 deployed his CEW at the Complainant but again, the Complainant was not affected. The police officers repeatedly ordered the Complainant to drop the knife.

The SO arrived on the scene. He approached the other police officers and the Complainant on foot. The Complainant paused, then began to move towards WO #4 again. The SO deployed his CEW and the Complainant fell to the ground.

The police officers moved in on the Complainant; however, they were unable to free the Complainant’s hands from underneath him. WO #6, who had just arrived on the scene, applied her CEW directly to the Complainant and administered a drive stun.[1]

The police officers were able to free both of the Complainant’s hands from underneath him and place him in handcuffs with his hands behind his back. The Complainant was immediately turned over to the paramedics and transported to the hospital with a deep laceration to his neck.

The Complainant was rushed to the operating room and received emergency surgery. The doctors reported that the Complainant’s injury was not serious in nature. The SIU was not notified at that time.

While recovering from the surgery in the Intensive Care Unit (ICU) the next morning, the Complainant was diagnosed with a fractured right foot.

Investigation revealed that the fractured foot was a pre-existing injury which was coincidentally scheduled to have been treated in hospital that very morning.

The Complainant was admitted to the hospital for a psychiatric assessment.

The scene

The scene was originally processed by an HPS SOCO officer, WO #6, in the early morning hours on March 30, 2017. WO #6 captured a number of photographs. The scene was then released.

Upon notification of the SIU later that morning, an SIU Forensic Identification Services (FIS) Investigator attended the scene. At the time it was raining, snowing, and relatively windy. The scene was in the parking lot of a busy mall which was open for business as usual. There were pedestrians and vehicles travelling through the lot.

The area of interest was approximately 15 parking spaces from the front of the drug store. The area was approximately three parking rows wide. This area contained areas of red staining (believed to be blood), conducted energy weapon (CEW) components, CEW wire, and CEW probes. It was not cordoned off or secured.

A tentative perimeter using shopping carts was established and HPS returned to the scene to assist in securing it for processing. Additional items were identified and evidence markers were placed next to them. The items were subsequently photographed, collected, and secured.

Physical evidence

Scene exhibits

• Item 1: CEW component (green plastic)
• Item 2: CEW component (green plastic)
• Item 3: CEW wire
• Item 4: Swab – red/brown staining (believed to be blood)
• Item 5: Swab – red/brown staining (believed to be blood)
• Item 6: Swab – red brown staining (believed to be blood)
• Item 7: CEW wire
• Item 8: CEW wire
• Item 9: CEW component (green plastic)
• Item 10: CEW component (green plastic)
• Item 11: CEW wire with probe attached
• Item 12: CEW wire with probe attached
• Item 13: CEW component (green plastic)
• Item 14: CEW component (green plastic)
• Item 15: CEW component (green plastic)
• Item 16: CEW component (green plastic)
• Item 17: CEW component (green plastic)
• Item 18: CEW component (green plastic)

All items were placed in individual evidence bags and sealed. No Anti-Felon Identification Discs (AFIDS) were located during the search.

The scene was processed and released.

The SIU FIS Investigator attended HPS Division 2 where he met with a Staff Sergeant who advised that he did not know where the CEW spent cartridges were and indicated that they may not have been collected or may have been discarded by the officers. He also advised that the Use of Force trainer retrieved the unspent cartridges.

The Staff Sergeant turned over the five CEWs. The CEWSIU requested the CEW spent cartridges. An SIU Forensic Investigator (FI) photographed each CEW and subsequently downloaded the internal data.

The SIU FI received two spent CEW cartridges and was advised that the cartridges were provided by WO #5. The cartridges were photographed.

CEWs examined

CEW Taser [Deployed by SO]
Model: X26P
(Identifier handwritten in black ink on top of unit)
Dry fired for approximately thirty seconds. Benchmark displayed as sequence #6389 on the Taser Report. Data was downloaded and saved.

CEW Taser [Deployed by WO #5]
Model: X26P
(Identifier handwritten in black ink on top of unit)
Dry fired for approximately fifteen seconds. Benchmark displayed as sequence #2143 on the Taser Report. Data was downloaded and saved.

CEW Taser [Deployed by WO #3]
Model: X26P
(Identifier handwritten in black ink on top of unit)
Dry fired for approximately fifteen seconds. Benchmark displayed as sequence #1938 on the Taser Report. Data was downloaded and saved.

CEW Taser [Deployed by WO #6]
Model: X26P
(Identifier handwritten in black ink on top of unit)
Dry fired for approximately fifteen seconds. Benchmark displayed as sequence #2218 on the Taser Report. Data was downloaded and saved.

CEW Taser [Deployed by WO #7]
Model: X26P
(Identifier handwritten in black ink on top of unit)
Dry fired for approximately fifteen seconds. Benchmark displayed as sequence #4278 on the Taser Report. Data was downloaded and saved.

CEW Report Summaries:

Five CEW

• WO #5 was assigned a CEW with serial number (redacted). The device report showed the CEW was deployed twice on March 30, 2017, at 12:06 a.m. The triggers were 6 and 8 seconds in duration, and 20 seconds apart
• WO #7 was assigned a CEW with serial number (redacted). The device report showed the CEW was deployed on March 30, 2017, at 12:07 a.m. for 5 seconds
• WO #3 was assigned a CEW with serial number (redacted). The device report showed the CEW was deployed on March 30, 2017, at 12:12 a.m. for 5 seconds
• The SO was assigned a CEW with serial number (redacted). The device report showed the CEW was deployed on March 30, 2017, at 12:13 a.m. for 5 seconds, and
• WO #6 was assigned a CEW with serial number (redacted). The device report showed the CEW was deployed three times on March 30, 2017, at 12:13 a.m. The device triggers were 5, 15 and 15 seconds in duration and were 12 and 16 seconds apart

The knife

The knife in the possession of the Complainant at the time of this interaction was seized at the scene by the HPS SOCO officer, WO #6. It was secured in the HPS Property Room.

The knife was turned over to a SIU FI. The affixed seal indicated that it had been placed on the box by WO #6 on 2017-03-30 at 3:26 a.m. A separate HPS label identified the contents of the box as being a black handled knife with an eight inch blade (covered in blood).

The knife was examined by the SIU FI. The knife was covered with dried blood on both the handle and blade portions. It was photographed in the box before transferring it onto a sheet of protective craft paper. The blade was serrated and measured 19.5 cm (approx. 8’). Additional photographs of the knife were taken. Once completed, the knife was wrapped in the same protective craft paper and placed back into the protective cardboard box.

View a photograph of the knife (warning: graphic content)

Forensic evidence

There were no submissions made to the CFS as part of this investigation.

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and located the following:

Drug store surveillance video:

Surveillance video from the front doors of the store was secured and reviewed by the SIU. The following was relevant to the investigation:

• At 11:52 p.m., the Complainant was first visible outside the store on the sidewalk area
• He was seen going in and out of the exterior doors and placing shopping carts in the doorways to prop the doors open
• He had his right hand in his jacket pocket at all times
• The security guard and CW #6 were both shown interacting with the Complainant
• The Complainant came in and out of the camera’s view while walking around just outside the doors
• At 11:59 p.m., the Complainant was seen removing a knife from his right pant pocket and bringing it to the front of his torso briefly, then returned it to his right pant pocket, and

• At 12:03 a.m., an ambulance was seen arriving. The Complainant walked away from the paramedic

Communications recordings

911 and Communications Recording and Event Chronology:

• On March 29, 2017, at 11:57 p.m., CW #6 called 911 and requested an ambulance to the drug store. She told the ambulance communications operator that a male [now known as the Complainant] was requesting rubbing alcohol and, “looks like he is bleeding profusely from the neck;&rdquo
• CW #6 then provided additional details to the police communications personnel
• At 11:57 p.m., the police communicator who was dispatching personnel asked for an available unit to attend the call
• WO #5 and WO #7 immediately volunteered for the call and were dispatched
• At 12:06 a.m., WO #5 and WO #7 arrived. WO #7 said, “we need a couple more units here;”
• This was followed by a transmission from WO #5 in which he said, “The male’s got a knife…charging at police…Tasers been deployed…still coming at police…he’s trying to steal the ambulance right now;&rdquo
• Additional police officers were dispatched
• WO #5 provided a physical description of the Complainant
• At 12:08 a.m., WO #5 said the Complainant was walking towards the middle of the parking lot
• At 12:10 a.m., WO #5 said the Complainant was, “now slicing himself with the knife, around his neck;&rdquo
• At 12:11 a.m., WO #3, WO #8 and WO #4 arrived on scene, and
• At 12:12 a.m., a police officer arriving on scene said the Complainant was now on the ground

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from HPS

• Event Chronology
• HPS Witness Statements from CW #4, CW #2, CW #1, and three other civilian witnesses dated 2017-03-30
• Notes from WO #s 1-9 and the SO
• Occurrence Involvements and Associations List
• Parade Sheet
• Police List
• Procedure 1.31-Conducted Energy Weapon
• Subject Profile Report with Historical Occurrence Reports-the Complainant
• Taser Log, and
• Written Statements from WO #s 1-9 and the SO

Section 88(1), Criminal Code - Possession of weapon for dangerous purpose

88 (1) Every person commits an offence who carries or possesses a weapon, an imitation of a weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to the public peace or for the purpose of committing an offence.

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.

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.

On March 29^th, 2017 at 11:57:32 a.m., a 911 call was received by the Hamilton Police Service (HPS) from CW #6, an employee at a drug store in the City of Hamilton. CW #6 advised that a male was outside their store and was bleeding from the neck and requesting rubbing alcohol. Initially, the call was diverted to the ambulance service, but then a request came in for back up from the ambulance and two police officers, WO #5 and WO #7, were dispatched at 1202:16 a.m. Ten HPS officers eventually became involved during the course of the interaction with the male, the Complainant, after which he was transported to hospital and treated for a deep laceration to his neck and a fractured right foot.

The Complainant involved in this interaction had no recollection of how he sustained his injuries nor even having had contact with police on the evening of March 29^th, 2017; fortunately, however, as a result of the cooperation of six civilian and ten police witnesses, including the SO, as well as the Closed Circuit Television (CCTV) footage from the drug store surveillance video, the communications recordings, the CEW download data from five CEW

The CCTV footage revealed that the Complainant, at 11:59 p.m., removes a knife from his right pocket and brings it to the front of his torso briefly before returning it to his pocket. The ambulance is then seen to arrive at 12:03 a.m., at which point the Complainant walks out of camera range and nothing further is captured of the interaction.

WO #5 indicated that he arrived on scene at the Shoppers Drug Mart at 12:06 a.m. and observed the ambulance already parked in front of the store. WO #7 then arrived in a separate police vehicle. WO #5 observed the Complainant had blood in his neck area and saw him run along the driver’s side of the ambulance and try to open the driver’s door while cradling something in his right hand; the female paramedic then ran down the passenger side of the ambulance back toward the two police cruisers. WO #5 advised he got out of his cruiser and told the Complainant to get away from the ambulance, at which point the Complainant walked away from the officers and WO #5 yelled to him to come back so that the paramedics could treat him. WO #7 advised that WO #5 was 15 to 20 feet from the Complainant, and at that time he observed the Complainant pull out a large knife and hold it in his right fist, moving it from side to side.

WO #7 advised that before he reached his cruiser, he heard WO #5 shout, “He’s got a knife!” and WO #7 then ran back towards WO #5 and observed the Complainant with the knife raised to his chest and assuming what appeared to be a fighting stance, with the blade of the knife pointed towards the police officers. At that point, WO #5 pulled out his CEW and pointed it at the Complainant’s chest while simultaneously yelling at him to drop the knife. Both officers asked the Complainant what was wrong, and could they help, but the Complainant did not respond, only giving them a blank stare.

The communications recording confirmed that at 12:06 a.m., WO #7 requested additional units attend to assist.

WO #5 advised that he was scared and feared that the Complainant was going to kill them or cause them grievous bodily harm, at which point, when the Complainant was coming towards him, he discharged his CEW and struck the Complainant in the chest. The Complainant made an “ahh” sound when he was hit but then pulled the CEW darts out.

The CEW data log confirmed that at 12:06 a.m., WO #5 deployed his CEW for a period of six seconds.

The Complainant was then observed to advance towards WO #7, and WO #5 took the opportunity to replace his CEW cartridge with a fresh one. WO #5 initially believed he would have to resort to his firearm, but was able to maintain sufficient time and distance between himself and the Complainant that he did not need to do so. WO #5 advised that he did not want to shoot the Complainant, but he was prepared to do so since he was scared, but he was also concerned about stray bullets in a busy area.

This evidence is fully confirmed by CW #4, who was situated nearby in the parking lot.

WO #7 holstered his CEW and drew his firearm, but kept it pointed at the ground and held above his holster. WO #5 discharged his CEW a second time, this time at the Complainant’s back, and again it was ineffective with the Complainant reaching back and ripping out the CEW darts.

The CEW data log confirms that 20 seconds after having discharged his CEW for the first time, WO #5 again deployed his CEW, this time for a period of eight seconds.

The Complainant then appeared to focus his attention on WO #7 and lunged at him. WO #7 put his firearm back into the holster and advised that he too feared for his safety and drew his CEW in order to stop the threat posed by the Complainant. WO #7 deployed his CEW at the Complainant’s chest but it too was ineffective, with the Complainant not even yelling out in pain as the CEW had no effect whatsoever. WO #7 then retreated in order to put some distance between himself and the Complainant as he was fearful that the Complainant was going to stab him. Both officers then retreated to their police vehicles and the Complainant was observed to walk over to the ambulance and try to open the driver’s side doors, at which point the male paramedic in the back of the ambulance got out and ran towards the police officers. The communications recording confirmed a transmission from WO #5 in which he is heard to state, “The male’s got a knife … charging at police … Taser’s been deployed … still coming at police … he’s trying to steal the ambulance right now.” Seven additional police cruisers were dispatched to assist.

The CEW data log for WO #7’s CEW confirmed that WO #7 deployed his CEW at 12:07 a.m. for a period of five seconds.

At 12:10 a.m., the communications recording revealed WO #5 advising that the Complainant was “now slicing himself with the knife, around his neck”.

At 12:11 a.m., WO #3, WO #4 and WO #6 arrived on scene. WO #3 advised that he instructed WO #4 and WO #8 to draw their firearms and he would draw his CEW. The Complainant was observed to walk away towards a light standard, where he was seen to violently slash at his own throat two to three times, as if trying to slice it. The ambulance call report confirmed that the attending paramedics also observed the Complainant slashing at his own neck with the knife.

WO #3 advised that he continuously communicated with the Complainant, telling him that they were there to help him, not to hurt him, and to put down the knife. The Complainant appeared totally oblivious to what WO #3 was saying and at no time did he respond. WO #3 advised that he was apprehensive of getting too close to the Complainant due to his possession of what he described as a knife with a ten inch blade.

The SO arrived on scene and observed the Complainant in the centre of the parking lot surrounded by six to seven police officers in a semi-circle formation. He advised that WO #4 was directly in front of the Complainant with a distance of approximately ten to 15 feet between them. The SO exited his cruiser and walked to within seven to ten feet of WO #4. He observed that WO #3 had his CEW out. WO #3 observed the Complainant sawing at the left side of his neck and he moved forward to within 12 to 15 feet of the Complainant at which point, for purposes of both officer and public safety, as well as the Complainant’s own safety, he deployed his CEW at the Complainant.

The CEW data log for WO #3’s CEW confirmed that it was deployed at 12:12 a.m. for a period of five seconds.

The SO observed that the CEW deployment was again ineffective and observed the Complainant’s shoulder drop and he took another three to four steps in WO #4’s direction. From the SO’s viewpoint, the Complainant was totally fixated on WO #4 and he described it as an attack on WO #4, who had his firearm drawn and was retreating from the Complainant in order to increase the distance between them as much as possible in order to avoid having to shoot him. WO #4 continued to yell at the Complainant to drop the knife, to no avail. The SO determined that due to the positions of the other police officers and the potential for a cross-fire situation, it was not appropriate to draw his firearm and instead he resorted to his CEW. The SO drew his CEW, activated it and observed the red dot on the Complainant’s right shoulder just below the rotator cuff; the SO advised that he had been trained that in order to enhance the chances of a successful deployment of the CEW, this was the area upon which he should focus. The Complainant took a “shutter” step toward WO #4. The SO feared that the Complainant was going to stab WO #4, but wanted to wait until the Complainant got closer in order to increase the chances of a successful deployment of the CEW and thereby stopping the Complainant. When the Complainant was within four to six feet from the SO, the SO deployed his CEW and the Complainant immediately fell to the ground. The SO advised that had the CEW not been successful in stopping the Complainant, he believed WO #4 would have shot the Complainant.

The CEW data log for the SO’s CEW confirmed that it was deployed at 12:13 a.m. for a period of five seconds.

Once the Complainant was down, officers moved in to handcuff him, but the Complainant refused to give up his hands and had the knife under his body and, as such, continued to be a danger to the officers. WO #6 observed the Complainant continue to fight and struggle and she was unsure if he was doing more damage to himself or if he was going to hurt other officers with the knife; consequently, she took out her CEW. WO #9, who was to the immediate right of WO #6, observed her try to drive stun the Complainant through his clothes, which was unsuccessful, and he advised her to put the CEW directly onto the Complainant’s exposed skin on his back. At that point, WO #6 placed the CEW directly against the Complainant’s skin on the right side of his back, just above his waistline, and activated the CEW deploying a drive stun and held it there while other officers gained control of the Complainant. It ultimately required seven police officers to physically control the Complainant. Once the Complainant was handcuffed, he was lifted from the ground and the knife was located on the ground underneath. The Complainant was then taken to the ambulance and transported to hospital.

The CEW data log for CO #6’s CEW confirmed it was deployed three times at 12:13 a.m., first for five seconds, then after 12 seconds it was deployed for a period of 15 seconds and again, after 16 seconds, it was deployed a third time for a period of 15 seconds.

One of the civilian witnesses present advised that he did not see anything that would explain how the Complainant sustained a fractured ankle, other than possibly when he fell after the discharge of the CEW, while three others indicated that they observed nothing inappropriate in the actions of police with two of them specifically indicating that they believed the response by police was appropriate and caused them no concerns.

Once at hospital, the Complainant was found to have sustained a deep laceration to the front left side of his neck and was found to have a fracture to his right ankle. The laceration to the neck was described by the doctor as not serious and would not have triggered the mandate of the SIU; regardless, it is clear on all of the evidence from both civilian and police witnesses that the Complainant had already suffered a laceration to the neck prior to the arrival of police. Of the eight police officers who were present before the deployment of the CEW, which finally took the Complainant to the ground, seven observed him to be sawing at, or slicing, his own throat, the only exception being the SO who advised he heard other officers saying that the Complainant was cutting his own throat, but could not himself see this. This evidence is confirmed by the Ambulance Call Report, in which the paramedics noted that they observed the Complainant slashing his own neck with the knife, the radio communications recording, which revealed WO #5 had called in at 12:10 a.m. and reported that the Complainant was “now slicing himself with the knife, around his neck” and the evidence of all witnesses that the Complainant had the knife in his possession at all times throughout his interaction with police and no other person was in possession of any type of bladed weapon. As such, I have no difficulty finding that the deep laceration to the Complainant’s neck was self-inflicted and no fault lies with the police officers who responded and were involved in the apprehension of the Complainant.

With respect to the ankle fracture sustained by the Complainant, information was received that the Complainant had fractured his ankle approximately one month prior to this incident and had gone to hospital in an ambulance at that time. He was subsequently on crutches and had not received any medical treatment for the fracture prior to his interaction with police on March 29^th, 2017. Additionally, the Complainant had a previously scheduled appointment for March 31^st, 2017, to receive treatment for the fracture. On this basis, I have no difficulty finding that the ankle fracture sustained by the Complainant was a pre-existing injury and was not in any way caused by his interaction with police.

While both of the injuries sustained by the Complainant were neither caused nor exacerbated by police, having launched an investigation into the Complainant’s interaction with police, I feel obliged to address whether or not the actions of police while dealing with the Complainant amounted to an excessive use of force so as to attract the laying of criminal charges, despite the lack of causation between his injuries and the actions of police.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the statements of all of the civilian witnesses present, either at the drug store or in the parking lot outside, that the Complainant had apparently sustained an injury and police were legally required to investigate the source of his injury and to determine if it was caused by criminal activity. Additionally, once the police arrived and attempted to render assistance to the Complainant, his pulling out the knife and wielding it gave police reasonable grounds to believe that the Complainant was committing the offence of possession of a weapon dangerous to the public peace contrary to s. 88(1) of the Criminal Code, and finally, once the Complainant began to slice at his own neck, police had reasonable and probable grounds to believe that the Complainant was a danger to himself pursuant to s.17 of the Mental Health Act. As such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, I find that their behavior was quite justified in the circumstances and that they used no more force than necessary to subdue the Complainant, who was actively causing harm to himself and appeared to be a danger to both the public in general and the police officers who were trying to assist him, specifically, but not limited to, WO #4 who the Complainant appeared particularly fixated upon. In light of the fact that he had already cut his own throat from collarbone to collarbone, it was not a stretch to find that he was capable of doing so again and possibly thereby ending his own life, if not subdued. Additionally, the Complainant had already had a CEW successfully deployed and connect with his body on four occasions, without any apparent effect on him, and police were quickly running out of options by which to ensure their own safety. While I find that the Complainant’s injuries were not caused by police, even had they been caused by the efforts of the officers to subdue him, I cannot find that to have been an excessive use of force. The fact that the SO, having observed that the deployment of the CEW by WO #3 was ineffective on the Complainant, that various officers had already resorted to drawing their firearms, that WO #4 was being attacked by the Complainant and that the Complainant was at imminent risk of being shot by WO #4, had the wherewithal to assess the situation, discard the use of his firearm as a safe and effective means of dealing with the Complainant and resorted instead to his CEW in such a manner that it was the most likely to be successful in accordance with his training, was both prudent and professional. On this record, it is clear that the force used by the SO, as well as the force used by the other four officers who deployed their CEWWO #4, but to save the life of the SO. On this evidence, it is clear that had the SO not attended and deployed his CEW at the Complainant for a fifth time, the Complainant would very likely have been shot. The actions of the SO were prudent, well considered, and fully justified in meeting and overcoming the Complainant’s resistance to, and surprising tolerance of, the use of the CEW and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s apprehension and the manner in which it was carried out were lawful and fully justified in the circumstances; that the actions of all of the officers who deployed their CEWSO were not only justified, but frankly admirable and extremely well considered and can likely be credited with saving the life of the Complainant either from being shot or from ending his own life by slashing his throat. The SO attended late to the interaction, he assessed the situation with fresh eyes, he considered his options and he did not panic, instead waiting until the Complainant was in the optimal position before deploying his CEW. I find it further notable that the actions of police were observed by a number of civilian witnesses, all of whom found them to be appropriate to the circumstances and not excessive. One witness, specifically, indicated he was surprised that WO #7 did not shoot the Complainant and was of the view that the Complainant was killing himself when he was slicing his neck. I am, therefore, satisfied on reasonable grounds on this record that there is no causal connection between the injuries suffered by the Complainant and the actions of police and that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: February 27, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] Drive stun is the placement of the CEW directly on the body surface in order to deliver an electrical current. [Back to text]