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 61-year-old woman during her interaction with police on April 23, 2017.

Notification of the SIU

On April 23, 2017, at 6:30 a.m., Toronto Police Service (TPS) notified the SIU of a custody injury that occurred earlier that morning.

The TPS reported that at 12:42 a.m., police officers responded to an apartment for a woman in distress. The woman brandished a knife when confronted by police officers. After the police officers unsuccessfully deployed a conducted energy weapon (CEW), the woman barricaded herself in the apartment. An Emergency Task Force (ETF) team was dispatched. The ETF team forced entry into the apartment and also deployed a CEW without success. The woman barricaded herself in the washroom and ETF members tried to deploy gas under the door. When ETF members breached the washroom door, they found the woman had jumped into a bathtub full of scalding hot water.

The woman was transported to the hospital with second degree burns to 60% of her body.

The Team

Number of SIU Investigators assigned: 4

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, videography, sketches and measurements.

Complainant

61-year-old female interviewed, medical records obtained and reviewed

Civilian witnesses

None

Witness officers

WO #1 Interviewed

WO #2 Not interviewed, notes not received[1]

WO #3 Interviewed

WO #4 Not interviewed, notes not received[2]

WO #5 Interviewed

WO #6 Not interviewed, notes not received[3]

WO #7 Interviewed

WO #8 Not interviewed, notes not received[4]

WO #9 Interviewed

WO #10 Interviewed

WO #11 Interviewed

Subject officers

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

Starting shortly after midnight on April 23, 2017, the Complainant repeatedly called 911. The TPS attended at the Complainant’s apartment, arriving just before 3:00 a.m. Officers knocked at the Complainant’s apartment door as 911 calls continued to be placed. The police officers could not enter the Complainant’s apartment as the unit’s door lock had been changed. The police officers did not see anyone moving about inside the apartment from outside, but their knocking at the door was heard on the 911 calls.

The Toronto Fire Services (TFS) attended and breached the apartment door. The officers entered and found that a rope had been secured between the door handle and a shelf unit. As no one appeared to be in the apartment, but the washroom door was locked, TFS breached the washroom door.

The Complainant was inside the washroom. She was armed with a knife. The Complainant screamed and lunged at WO #9. WO #9 deployed his CEW at the Complainant, but with no effect. The Complainant was contained inside the washroom until the ETF attended.

Once the ETF members were in the apartment, several CEWs were deployed through holes drilled in the washroom door. The Complainant continued to try to stab at the officers through the holes in the door. Tear gas was also deployed through the door.

At one point, the officers saw the Complainant climb into the full tub, still holding the knife. At that, the SO, armed with a shield, and WO #1 entered the washroom. The Complainant was still making stabbing motions with the knife, so the SO pinned her with the shield and WO #1 deployed his CEW. WO #1 seized the knife and the Complainant was immediately removed from the water and paramedics were called.

The Complainant was admitted to the hospital where she was diagnosed with second and third degree burns to 75% of her total body surface and placed on a ventilator.

The scene

This incident occurred in a 6^th floor apartment in the North York area of Toronto. The Complainant was the sole occupant of the apartment. The apartment consisted of a kitchen with dining and living area, one bedroom, and one washroom.

At the time of examination by the SIU, there was a strong smell and presence of incapacitant in the air. The washroom door was found off the hinges and cut in two sections. The door had two connected circular holes and a series of connected circular holes across the upper section that separated the door in two. The inner (washroom side) of the door had darkened soot-like marks around the two connected circular holes. It was through this opening that the gas was discharged.

Seven CEW cartridges were found at the scene as well as 12 probes with wires. The cartridge cases, probes, wires or aphides were not matched to any particular CEW.

A single spent gas cartridge from the muzzle blast was also collected.

Two knives were found and secured at the scene. A blue/green knife with an eight inch [20 cm] blade was found in the kitchen. SIU Forensic Investigators also found a knife in the waste basket in the washroom. This knife had an eight inch [20 cm] metal blade. Below are photos of the two knives:

The washroom was in disarray. The shower rod and curtain were collapsed into the bathtub. There was a distinct ring of staining around the inner bathtub that appeared to indicate the water level at some time. There was no water in the bathtub at the time of the examination and no drain plug was found.

Hot water from the kitchen faucet was measured at about 56° Celsius[6].

Scene diagram

Physical evidence

CEW Downloads:

There were a total of 15 CEW discharges among five CEWCEWWO #1, WO #3, WO #5, WO #9 and WO #11 were deployed. The discharges are detailed in chronological order as follows:

1. 3:13:09 a.m. – WO #9’s Cartridge 1 was discharged for five seconds
2. 4:24:35 a.m. – WO #5’s Cartridge 1 was discharged for four seconds
3. 4:24:41 a.m. – WO #5’s Cartridge 2 was discharged for seven seconds
4. 4:24:44 a.m. – WO #5’s Cartridges were arced for one second
5. 4:24:46 a.m. – WO #5’s Cartridges were arced for two seconds
6. 4:24:49 a.m. – WO #5’s Cartridges were arced for two seconds
7. 4:24:57 a.m. – WO #5’s Cartridge 1 was discharged for four seconds
8. 4:33:17 a.m. – WO #3’s Cartridge 1 was discharged for two seconds
9. 4:33:21 a.m. – WO #3’s Cartridge 2 was discharged for four seconds
10. 4:37:45 a.m. – WO #11’s[7] Cartridge 1 was discharged for nine seconds
11. 4:37:56 a.m. – WO #11’s Cartridge 2 was discharged for five seconds
12. 4:38:01 a.m. – WO #11’s Cartridge 2 was discharged for 19 seconds
13. 4:38:22 a.m. – WO #11’s Cartridge 1 was discharged for 13 seconds
14. 4:38:36 a.m. – WO #11’s Cartridge 1 was discharged for 31 seconds, and
15. 4:38:53 a.m. – WO 1’s Cartridge 1 was discharged for five seconds

Video/audio/photographic evidence

The SIU canvassed for any video or audio recordings, and photographic evidence, and received a copy of the ETF audio recording of the incident.

ETF Team Audio Recording

On arrival at the apartment, WO #7 activated a digital audio recorder and placed it on the kitchen counter near the washroom door. The device recorded the ETF team’s actions during the entire incident. The 93 minute and 25 second recording started at 3:30 a.m.

The SO introduced himself to the Complainant. The Complainant was recorded from behind the closed washroom door. The SO told the Complainant he would listen to her. He asked what was going on and asked her to exit the washroom. The Complainant said she did not have to tell him what was going on and said she would not exit. She refused to answer his questions and told the police to leave, saying they had no right to enter. The SO told her he would not leave until he saw her.

When asked why she called the police and 911, the Complainant denied doing so. Later, she said “I didn’t say anything. How do you know I called 911?”

At 25:20 minutes[8] into the recording, the SO told the Complainant to stay away from the door as they were going to drill a hole into the door.

At 32:30 minutes[9] into the recording, the SO told the Complainant to stay away from the door while they drilled another hole in the door.

At 57:48[10] minutes into the recording, the arcing sound of a CEW deployment was heard for about five seconds. After about one second, the arcing sound was heard for another ten seconds. More arcing was heard at 58:10 minutes for about five seconds, followed by another round.

It was not clear whether one or more devices were deployed simultaneously.

At the conclusion of that episode a police officer said, “Hang on” as the CEW was “not effective.”

The Complainant yelled at the police throughout the episode and at times during the arcing.

At 1:06:38[11] into the recording, the muzzle blast device was deployed without warning. The Complainant briefly yelled and did not comply with the police commands to exit the washroom.

At 1:07:58[12] into the recording, a police officer said he saw the Complainant and she was probably breathing under the door as she was positioned curled up in a fetal position.

After a police officer mentioned that the water was running, someone asked if they could turn off the water supply.

At 1:11:37[13] into the recording, a police officer said the Complainant was still in the same position with a knife in her left hand.

At 1:12:23 into the recording, the drill started running multiple times. It was at this point that core holes were cut into the upper section of the door.

At 1:17:09[15] into the recording, a CEW started discharging while police officers repeatedly said “Drop the knife.” The arcing continued for about nine seconds. After a brief pause, it restarted and continued for about 23 seconds, until 1:17:44 into the recording. Nothing was heard from the Complainant during these discharges.

After another brief pause, the arcing started again. Police officers were heard saying she was still armed with the knife, but still nothing was heard from the Complainant.

At 1:18:00 into the recording, the Complainant moaned and yelled as the arcing continued. Crashing sounds were heard as the police entered the washroom. Shortly after a police officer said it “sounds like its working,” at 1:18:08[16], a police officer yelled “Get her out of there.” The Complainant continued yelling as the arcing sounds continued until 1:18:31.

At 1:18:36 into the recording, a police officer said, “Kill that water.” The Complainant was immediately removed from the washroom and a police officer said, “The water’s like almost boiling” and “Very hot water. She’s probably going to have some burns.” The Complainant wailed and repeatedly asked the police why they had to do this to her.

Paramedics entered the apartment and, at around 89 minutes into the recording, the Complainant was removed from the apartment.

A police officer was heard telling other police officers to leave everything, except their “personal kit” in situ.

A police officer noted the time was 5:04 a.m. when the recording was stopped.

Communications recordings

911 call recordings

In the initial 911 call recording, the Complainant identified herself as “Doctor [Complainant’s name].” She told the call taker she’s “not well” and provided her address and apartment number. When the call taker had difficulty understanding the street name, the Complainant told her she was “too stupid” and ended the call. In a subsequent call, the Complainant verbally lashed out at various call takers before the calls ended. In one call, the Complainant asked for the police and fire department to attend. After the initial calls, the Complainant never spoke during the calls and never responded to the call takers. When call takers returned the calls, they went unanswered and connected to her voice mail.

Computer Aided Dispatch (CAD) report

The initial details in relation to this incident noted receipt of a 911 call from the Complainant’s cellular phone. The report generated at 12:42 a.m. on April 23, 2017 noted this was the third call from this number. The report went on to list dozens of calls made over the next 80 minutes, and noted that the call takers received no responses from the caller.

Police officers were dispatched at 2:17 a.m. During one of the 911 calls, the call taker heard what could have been the police knocking at the door at 2:43 a.m.

Police entered the apartment at 3:10 a.m. and updated the communications centre that a female in the apartment had barricaded herself in a washroom, armed with a knife.

At 3:14 a.m., the CAD noted, “Taser deployed and effective.” Less than two minutes later, it was reported that the female was still barricaded and armed.

By 4:07 a.m., ETF police officers were communicating with the Complainant.

The communications centre was advised that gas would be deployed and it was deployed at 4:36 a.m.

About 10 minutes later, police officers reported the Complainant was “not yet in custody.”

At 4:54 a.m., it was reported that the Complainant was in custody. At 5:15 a.m., she was en route to the hospital.

Materials obtained from Police Service

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

• Communications recordings
• Event Details Reports
• General Occurrence Report
• Notes of WO #1, WO #3, WO #5, WO #7, WO #9, WO #10 and WO #11
• Procedure - Conducted Energy Weapon, and
• Automated Dispatch System (ADS) Summary Sheet - Summary of Conversation

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

Section 265(1), Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

Section 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. causes bodily harm to the complainant

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 270(1), Criminal Code - Assaulting a peace officer

270 (1) Every one commits an offence who

1. assaults a public officer or peace officer engaged in the execution of his duty or a person acting in aid of such an officer
2. assaults a person with intent to resist or prevent the lawful arrest or detention of himself or another person; or
3. assaults a person
   1. who is engaged in the lawful execution of a process against lands or goods or in making a lawful distress or seizure, or
   2. with intent to rescue anything taken under lawful process, distress or seizure

On April 22^nd, 2017, at approximately 12:29 a.m., the first of multiple 911 calls was received by the Toronto Police Service (TPS) requesting the assistance of police and fire services. In the initial call, the caller identified herself as Dr. [Complainant’s name] and advised that she was not well and requested the attendance of fire and police services. When the call taker was unable to make out the address at which the Complainant required assistance, she became abusive and ended the call. The calls began again around 12:24 a.m. on April 23^rd. Numerous call backs from both the TFS and police went unanswered while multiple additional 911 calls were received from the same number. Most were without any words being spoken. Through the assistance of the cell phone provider, an address was established and police attended. After the arrival of numerous police officers, including the ETF, the Complainant was transported to hospital with numerous second degree burns to her entire body.

Unfortunately, the Complainant was unable to be interviewed until February 2018, due to the serious nature of her injuries and her inability to speak. Additionally, there were unfortunately no civilian witnesses to this incident and the SO declined to make himself available to be interviewed or to provide his memorandum book notes for review, as was his legal right. Eleven witness officers, however, were available to be interviewed. Of those eleven, seven were deemed to have relevant evidence to offer and were interviewed. Investigators also had access to the 911 recordings, the police communications recordings, an audio recording made at the scene throughout the incident involving the ETF, and the CEW download data. There is no dispute as to the facts. The examination of the scene and collection of exhibits, as well as all of the recordings reviewed, were consistent with the version of events provided by the witness officers interviewed. The following is a summary of events extrapolated from all available evidence.

In all, sixty-eight 911 calls originated from the cell phone of the Complainant on April 22-23, 2017. Once an address could be confirmed with the assistance of the cell phone service provider, and it was confirmed through Global Positioning System data that the cell phone was located at that address, the TFS attended the scene, but cleared when they were unable to locate anyone requiring assistance. The 911 calls kept coming, however, and police were then dispatched with WO #2 and WO #4 attending at the Complainant’s apartment. After knocking at the door, without response, and then attempting to enter the apartment with the assistance of the building superintendent and the master key, which was unsuccessful due to someone having changed the locks, WO #6, WO #8 and WO #9 attended. The 911 recordings appear to confirm the attendance of police at the apartment, as their knocking is heard on the open line. After police were unable to breach the door to the apartment, WO #9 requested the assistance of the TFS, and they re-attended at 2:50 a.m., and managed to breach the door using a tool in their possession.

WO #9, after searching the apartment and not locating anyone, tried the door to the washroom and, finding it to be locked, knocked but received no response. The TFS again breached the door. As soon as the door was opened, the Complainant was observed armed with a knife and she screamed and lunged at WO #9. He immediately yelled “knife” and drew his CEW and discharged it at her, but it appeared to be ineffective. WO #9 then closed the washroom door and requested the attendance of the ETF and an ambulance, after which he attempted to engage the Complainant in conversation through the closed door. The washroom door was then secured from the outside in order to confine the Complainant, and the knife, inside. WO #8, a trained negotiator, then also attempted to engage the Complainant in conversation, assuring her that they were there to help her and directing her to place the knife under the door.

Upon arrival of the ETF, the primary response officers withdrew from the apartment and the ETF entered. WO #7, the supervisor for the ETF team in attendance, directed ETF officers to try to talk with the Complainant. The SO was designated as negotiator and started making attempts to engage the Complainant in conversation but she never responded in any meaningful way. The Complainant appeared agitated and indicated that she would kill any police officer who entered the washroom. At no time did she make any comment that would suggest that she might be suicidal. When attempted negotiations with the Complainant failed, a hole was drilled into the washroom door at 3:58 a.m. by WO #3, which allowed WO #3 and WO #5 to look inside the washroom only to discover that the Complainant had covered the hole with a towel. Officers then used a broom stick to remove the towel, with the Complainant immediately stabbing at the broom handle and saying that she was going to kill the police. Once officers removed the towel, they were able to see the Complainant in the washroom, still armed with the knife, and observed her to immediately jab the knife through the opening in the door and then covered the hole again with another towel. Police also removed this towel and drilled another hole which the Complainant again jabbed her knife into and then covered the hole with a towel, which was removed by police.

At 4:29 a.m., WO #3 deployed his CEW through the hole and believed that the probes made good contact with the Complainant, but it proved to be ineffective. A second deployment of the CEW proved equally ineffective and the Complainant again covered the hole in the door with a towel. WO #3 described the Complainant as not even twitching when she was struck with the CEW probes.

At 4:34 a.m., a muzzle blast was deployed, which resulted in a cartridge containing tear gas, an incapacitating powder, being discharged into the washroom through the drilled holes in the door. Rather than incapacitating the Complainant, however, she coughed briefly and then turned on the water inside the washroom and apparently covered herself with a wet towel and lay on the floor near the door to breathe in fresh air from under the door.

A series of holes were then drilled across the top of the door to remove the upper section and allow police to have a better view inside the washroom while still affording them protection from the Complainant and her knife. The Complainant was observed crouched on the floor immediately beside the door still armed with the knife. The CEW was deployed a third time and WO #3 observed the probes to strike the Complainant in the spinal area, about eight inches [20 cm] apart, in what he described was the “perfect CEW scenario with a complete back exposed” and the Complainant was heard to whimper. The CEW was deployed again, but the Complainant, who should have been incapacitated, continued to move around inside the washroom. Two additional cartridges from another CEW were then deployed, and WO #3 used the broom handle to try to knock the knife from the Complainant’s hand while the CEW was still cycling, with the Complainant grabbing the broom handle and trying to pull it from WO #3’s hand. When the CEW was turned off, WO #3 observed the Complainant to immediately stand facing the door and then walk backwards towards the bathtub at the back of the washroom until her calves were against the tub. The water could still be heard running inside the washroom. The Complainant was then seen to sit in the bathtub and pull the shower curtain across the opening, with her legs still protruding over the side of the tub, and to pick up a plastic container and pour water over her head. As WO #3 lost sight of the Complainant, he arced all four CEW probes, but only saw the Complainant’s leg “sort of” twitch.

At that point, police breached the door and the SO was the first officer to enter the washroom, armed with his shield, followed by WO #1, while WO #3 continued cycling the CEW. WO #7 advised that in these situations it was the role of the officer with the shield to “pin” the person so that they could be contained and disarmed. WO #1 advised that he observed the Complainant in the bathtub, which was filled with water, with her entire body submerged and only her face exposed. WO #1 advised that he observed the Complainant to extend her left arm in a stabbing motion toward the SO as he approached with the shield and WO #1 attempted to grab the knife from her. At that point he realized that the water was extremely hot, to the point of being scalding, and he described it as feeling like boiling water from a kettle. The SO then pinned the Complainant in the bathtub using his shield. From outside of the washroom, WO #3 and WO #7 both heard WO #1 voice out that the Complainant was still armed and then that the water was really hot. When the Complainant continued making numerous stabbing motions towards the SO, WO #1 deployed his CEW with the probes successfully penetrating the Complainant’s left upper chest and shoulder area. At that point she stopped stabbing at the officers and WO #1 was able to remove the knife from her hand. WO #1 and the SO then removed the Complainant from the bathtub and carried her out to the living room where she was observed with substantial scalding injuries, and the paramedics were requested. WO #3 estimated that from the time that the door was breached until the Complainant was removed from the washroom, a period of seven to ten seconds had elapsed.

All of the officers interviewed were consistent in their evidence that no officers were present in the washroom when the Complainant lowered herself into the bathtub.

An examination of the scene by SIU Forensic Investigators located seven CEW cartridges and 12 probes with wires, along with a single spent gas cartridge from the muzzle blast. Two knives were also located and secured, consistent with the knives described by the witness officers. The knife which was removed from the Complainant while she was in the bathtub was located in the kitchen and was a blue/green knife with an 8” [20 cm] blade, while a second knife with an 8” [20 cm] blade was located still inside the washroom in a waste basket.

The CEW download data confirmed 15 deployments of the CEWs of five different officers and confirmed their evidence. Investigation into the use of the CEW indicated that there was no prohibition on the use of a CEW in proximity of water.

The digital recording, which was activated when WO #7 arrived at the apartment, fully corroborated and confirmed the evidence of all officers interviewed. Of specific note is the fact that the SO is heard on the recording introducing himself to the Complainant and telling her that he would listen to her, asking her what was going on, and requesting her to exit the washroom. The Complainant is recorded as responding that she did not have to tell the SO what was going on and that she would not exit. She is further heard telling police to leave and that they had no right to enter. The SO is heard to say that he would not leave until he saw her. The Complainant, upon being questioned, also initially denied making the 911 calls but is later heard asking how they knew it was her when she didn’t say anything in the calls. The Complainant is heard throughout the incident yelling at police. After police are heard to enter the washroom, a police officer is heard to say “the water’s like almost boiling” and “very hot water. She’s probably going to have some burns” while the Complainant is heard wailing and repeatedly asking police why they did this to her.

It is clear on the evidence that the injuries suffered by the Complainant were as a result of the scalding water into which she intentionally and voluntarily lowered herself. There is no evidence that the use of the CEWs caused any injury to the Complainant.

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 communications recordings that the Complainant had made numerous 911 calls to police and fire services. In the initial call, when she was still vocalizing, she indicated that she was unwell and requested the assistance of police and fire services. Thereafter, the calls continued to come in, some sixty-eight in total and all from the Complainant’s cell phone, and police were duty bound to investigate and provide assistance as needed. The Ontario Court of Appeal has made it clear, first in R. v. Godoy, [1997] O.J. No. 1408, and then again in R. v. Nichols, [1999] O.J. No. 3660, that police have a duty to investigate 911 calls even if it requires forcible entry into a private residence. In R. v. Godoy, the Court indicated:

This appeal raises directly and for the first time the question of the extent of a police officer’s duty to respond to a 911 call where the nature of the call has not been ascertained. … The question is whether the police have the power to enter a private dwelling where they reasonably believe that the occupant is in distress and entry is necessary, not to make an arrest, but to protect life, prevent death and prevent serious injury.

And they concluded:

In all the circumstances of this case, I believe that it was a justifiable use of police powers to enter the apartment in response to the disconnected 911 call. When they entered the appellant’s apartment to investigate an "unknown trouble" call, the police were acting in the course of their common law duty to "protect life", "prevent death" and "prevent serious injury". The entry into the apartment was a justifiable use of police powers in the circumstances.

Similarly, in R v. Nichols, the Court reiterated:

The police and ambulance crew were responding to a serious 911 call and had a duty to investigate the situation to ensure that the appellant was not a danger to himself or others. In order to locate the appellant and to do so, forced entry was necessary.

From the content and the number of the 911 calls, it could be inferred that the Complainant was in crisis and required assistance and the police had reasonable grounds, once they entered the apartment and observed the Complainant, to believe that she was a danger to herself or others and therefore she could lawfully be apprehended under s. 17 of the Mental Health Act. Additionally, once they entered the apartment to investigate the Complainant’s call for help and the Complainant lunged at WO #9 with a knife, they had reasonable grounds to arrest her for Assaulting a Police Officer and/or Assault with a Weapon contrary to the Criminal Code. 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 assist and/or apprehend the Complainant, I find that their behavior was justified in the circumstances and that they used no more force than necessary to apprehend the Complainant who was clearly combative, resistant and unwilling to allow police to assist her, despite her sixty-eight 911 calls. Additionally, due to the fact that the Complainant was armed with a knife which she repeatedly attempted to use against the police, officers were restricted in their ability to apprehend the Complainant while avoiding risk of harm to themselves. On all of the evidence, it is clear that police resorted to all other options in attempting to apprehend the Complainant, before resorting to forcefully breaching the door and physically subduing her. The interaction progressed from negotiation, to directions to drop the knife and come out, to numerous deployments of a less lethal use of force option, the CEW, all of which were ineffective, to the deployment of tear gas and then, finally, to the breaching of the door and containing and controlling the Complainant through the use of the police shield which was meant to disarm and apprehend the Complainant while simultaneously alleviating the risk to the police officers in doing so. In light of the fact that the Complainant had already lunged at WO #9 while armed with a knife, and repeatedly used that same knife to stab at and threaten police officers, it was quite reasonable to believe that the Complainant was more than capable of injuring any police officer that she came into contact with, if they did not take appropriate precautions.

The Complainant’s recollection of the entire incident (which we obtained in an interview conducted on February 13, 2017), while seeming to come from a paranoid delusional perspective, was in significant ways confirmatory of the officer’s accounts.

I also find, on the evidence of all of the witness officers interviewed and confirmed by the physical evidence, that the Complainant intentionally lowered herself[17] into a bathtub of scalding hot water without any intervention by police. While both WO #3 and WO #1 deployed their CEWs when the Complainant was in the tub, and the SO pinned the Complainant down in the tub while she was being disarmed, I cannot find this to have been an excessive use of force. It is clear on the tape recording of the incident, as well as the evidence of the officers, that police officers had no way of knowing that the Complainant had filled the bathtub with scalding hot water. Certainly her actions in lying down in the tub and fully submerging herself, with the exception of her face, pouring the water over her head with a pitcher, and her lack of any reaction to the water in the tub, would have effectively kept from the police officers any inkling that the water was of such a degree that it was causing second degree burns to the Complainant’s body. Additionally, the fact that the Complainant continued to stab at the officers, even while she was being scalded in the tub and was being pinned down by the SO, left police with no other choice than that which they used in apprehending the Complainant and I cannot find that to have been an excessive use of force. While there is evidence that the SO pinned the Complainant down in the bathtub, I find that the Complainant’s behaviour made it clear that she had no intention of exiting the tub on her own and the outcome would not likely have been any different, even had officers not entered the washroom and contained the Complainant. I also take note that the entire interaction in the washroom with police took between seven to ten seconds, while the attempts to negotiate and convince her to exit the washroom took place over several hours.

In coming to the conclusion that police actions in apprehending the Complainant did not constitute an excessive use of force, 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, that officers are not expected to measure the degree of their responsive force to a nicety. On this record, it is clear that the force used, not only by the SO but by all of the officers who were involved in the apprehension of the Complainant, progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance, surprising resilience, and total lack of susceptibility to the other use of force options resorted to over the course of the interaction, and fell within the range of what was reasonably necessary in the circumstances to affect her lawful detention.

In the final analysis, despite the tragic outcome for the Complainant, I am satisfied that the injuries were the result of her voluntarily and intentionally lowering herself into a tub of scalding water without any intervention by police, and that she was thereafter pinned down in the tub with the police shield in order to disarm her and without any knowledge that she had in fact submerged herself in boiling water. I also find that police, immediately upon discovering what the Complainant had done and as soon as she was disarmed, removed her from the tub in order to minimize her self-inflicted injuries. I am, therefore, satisfied on reasonable grounds on this record 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