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 death of a 20-year-old man on March 8, 2017.

Notification of the SIU

On March 8, 2017 at 7:50 p.m., the Toronto Police Service (TPS) notified the SIU of the custody death of the Complainant.

TPS reported that on Wednesday, March 8, 2017, at 6:49 p.m., a parent of the Complainant [now known to be CW #1] called 911 to report that the Complainant had locked himself inside their 12^th floor apartment, where CW #1 and the Complainant resided, and that the Complainant wanted to commit suicide. At 6:56 p.m., TPS officers [now known to be Witness Officer (WO) #3 and WO #4] arrived at the apartment building and at some point they entered the apartment. The Complainant ran toward the balcony and jumped from it at 7:22 p.m.

The Complainant was erroneously reported by the TPS as alive and being rushed to the hospital at the time of notification, when in fact he was pronounced dead at the scene.

The team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 3

SIU Forensic Investigators (FIs) 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. The FIs attended and recorded the post-mortem examination and assisted in making submissions to the Centre of Forensic Sciences (CFS).

Complainant

20-year-old male, deceased

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

Witness officers

WO #1 Not interviewed, but notes received and reviewed

WO #2 Not interviewed, but notes received and reviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Not interviewed, but notes received and reviewed

WO #6 Not interviewed, but notes received and reviewed

WO #7 Not interviewed, but notes received and reviewed

WO #8 Not interviewed, but notes received and reviewed

Subject officers

SO Interviewed, and notes received and reviewed.

During the early evening of March 8, 2017, the Complainant and CW #1 were home in their 12^th floor apartment in the City of Toronto. The Complainant became increasingly agitated, and expressed urges to kill himself. He then locked CW #1 out of the apartment. From the hallway, CW #1 called 911 for assistance.

WO #3 and WO #4 were the first officers to arrive. The Complainant refused to unlock the security chain of the door. WO #3 spoke to the Complainant through the door, unsuccessfully trying to convince him to unlock the door and allow the officers to enter.

The SO arrived on scene. Believing that the Complainant was in real distress and that the officers needed to enter the apartment, WO #3 used his shoulder and forced the door open. Once inside the apartment, the SO and WO #4 remained out of view, and only WO #3 engaged the Complainant. The Complainant was increasingly distraught, and withdrew from the foyer to the threshold separating the apartment unit from its balcony. While WO #3 continued his dialogue with the Complainant, the Complainant was toying with the balcony door, at times stepping onto the balcony, and threatening to jump over the railing.

The Complainant asked to speak to the SO, and indicated that the police needed to kill him. Concerned about the Complainant’s movements on the balcony, and wanting to temporarily incapacitate the Complainant so that he could be taken into custody, the SO engaged his Conducted Energy Weapon (CEW) and discharged it at the Complainant. Unfortunately, the CEW’s probes missed the Complainant entirely, becoming imbedded in the fabric curtain, and the Complainant ran to the balcony and jumped. He fell twelve stories, and was declared dead at the scene.

The scene

The Complainant and CW #1’s 12^th floor apartment was a two-bedroom unit. From the entrance door, the two bedrooms and one bathroom were located to the west and the living room and kitchen were to the east. The living room contained two leather recliner chairs along the west wall. Along the north wall under the window was a two-seat leather recliner unit with a console between the two seats. A single leather recliner chair was along the east wall but some distance toward the centre of the room.

The door to the balcony was in the northeast corner of the living room. A curtain partially covered the east side of the door. The balcony itself was not illuminated and there was nothing of any probative value on the balcony. The balcony was measured and found to be 1.68 metres by 5.96 metres.

In the centre of the living room, on the carpet, was one small black CEW cartridge and associated wire. Across the living room floor and on a couple of the chairs were several small CEW Anti Felon Identification Tag (AFID) deposits. In the curtain covering the balcony door were two silver-coloured CEW probes. One probe had a wire attached to it, while the second one did not have any wires attached.

Scene diagram

Physical evidence

Taser ® Model X2

This CEW was used by the SO. The data obtained by the SIU FI from the CEW on March 9, 2017, at 3:11:41 a.m., afforded the following information.

On October 14, 2015, at 2:42:56 p.m., the CEW was activated for the first time. At 2:43:42 p.m., the CEW underwent a “Reset” “Event” defined by the data as a “Low Battery Reset” and recorded as sequence number 12. At 2:55:01 p.m., the CEW underwent a “Power Magazine Change” recorded as sequence number 13. At 2:55:01 p.m., the CEW was “Armed” and recorded as sequence number 14, and at 2:55:02 p.m., in training, the trigger was pressed for the first time and recorded as sequence number 15. The weapon drew energy from its integral rechargeable battery, having at the material time 100 percent “Battery Remaining”.

Between October 14, 2015, at 2:55:02 p.m., and March 8, 2017, at 7:22:49 p.m., when the SO discharged the CEW at the Complainant, the CEW had undergone 1, 607 event sequences. At the time the CEW was discharged, the amount of “Battery Remaining” was recorded as 51 percent.

Forensic Evidence

The CFS Toxicology Report in respect of the analysis of the Complainant’s heart blood collected during the autopsy indicated that tetrahydrocannabinol (THC), the principal psychoactive constituent found in cannabis products such as marijuana and hashish, was detected.

Expert Evidence

The autopsy was performed March 10, 2017, at the CFS in Toronto. The preliminary cause of death was multiple blunt force injuries. The pathologist included the following remarks in his report: “The pattern of injuries was not suggestive of an altercation. The best explanation for the injuries is a descent from height.”

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

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

• Platoon - Evening Shift Sheet
• Communications recordings
• Event Details Report
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7 and WO #8
• Parade Sheet Report
• Procedure - Emotionally Disturbed Persons
• Procedure - Use of Force, and
• Taser X2 data

Sections 219-220, Criminal Code - Criminal negligence

219 (1) Every one is criminally negligent who

1. in doing anything, or
2. in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

1. where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
2. in any other case, to imprisonment for life.

On March 8^th, 2017, at 6:49:11 p.m., a 911 call was received by TPS from CW #1, asking the police to attend as the Complainant was threatening suicide and had locked CW #1 out of their 12^th floor apartment in the City of Toronto. At 6:50:09 p.m., WO #3 and WO #4 and the ambulance were dispatched to the scene. En route, WO #4 requested that the TPS Mobile Crisis Intervention Team (MCIT), consisting of one police officer and one mental health nurse, also attend. At 6:53:27 p.m., the SO was dispatched and at 6:53:33 p.m. the MCIT was dispatched. At 6:56:03 p.m., WO #3 and WO #4 arrived on scene and immediately went up to the 12^th floor where they attended to the unit and spoke to CW #1 outside of the apartment. CW #1 confirmed the information that he had provided to the 911 dispatcher. CW #1 unlocked the deadbolt to the unit, however, there was still an interior latch which prevented the door from opening more than three or four inches [7.62 to 10.16 centimetres]. WO #3 opened the door and attempted to disable the inner latch when, just as he was about to do so, the Complainant pushed the door closed from inside. When WO #3 re-opened the door, the Complainant asked why they were there and WO #3 explained that CW #1 was concerned and had called them and they simply wanted to ensure that he was okay. The Complainant again closed the door and WO #3 again opened the door and asked if they could speak face to face inside the apartment, but the Complainant refused, indicating “I’m fine. I don’t want to talk to you”. For approximately ten minutes, the Complainant repeatedly opened and closed the front door while WO #3 attempted to coax him to fully open the door so that they could talk, while simultaneously attempting to disengage the inner latch. WO #3 advised that he did not want to force his way in as that might startle the Complainant and possibly escalate the situation. WO #3 felt a calm entry was the way to start communications and hopefully de-escalate the situation.

At 7:00:02 p.m., the SO arrived on the 12^th floor and advised WO #3 and WO #4 that it was time to go inside. The SO had brought a battering ram with him, but WO #3 put his shoulder to the door and the secondary latch broke and he entered the apartment.

Once all three police officers entered the apartment, they observed the Complainant standing in front of a sofa and he said “Do not come any closer” while moving slowly towards the balcony door which stood wide open. CW #1 remained outside of the apartment and down the hall. WO #3 continuously attempted to reassure the Complainant that he was not in any trouble and they just wanted to talk and make sure he was okay. The Complainant again warned WO #3 not to get any closer, and WO #3 retreated to the kitchen where he could still see both the Complainant and the balcony door. The SO and WO #4 remained in the hallway out of sight of WO #3 and the Complainant. The Complainant took up a position in the balcony doorway and held onto the balcony door. WO #3, as per the wishes of the Complainant, promised that he would stay in the kitchen and continued to try to engage the Complainant in conversation using a calm voice and reassuring him that he did not want the Complainant to get hurt and just wanted to get his side of the story. When WO #3 spoke to the Complainant about CW #1, he became agitated and angry, so WO #3 avoided that subject. The Complainant repeatedly spoke to the officers about their shooting and killing him or crucifying him. At one point, he began to talk about the water everywhere and the officers assumed he was hallucinating.

This evidence is confirmed by the radio communications recording when at 7:11:36 p.m. the SO is heard to report that they were inside the apartment and that the male was in distress and they were trying to talk to him.

WO #3 attempted to engage the Complainant on numerous subjects which might be of interest to him in order to distract him from his stated intention of killing himself, but the Complainant did not engage and repeatedly spoke about the police shooting him. At one point, the Complainant opened the balcony door and the SO and WO #4 asked him not to go out onto the balcony, but he did so anyways and closed the door behind him. All three police officers then yelled for the Complainant to come back inside. The SO and WO #4 took three steps towards the balcony, when the Complainant looked in through the window and yelled at them to stay back. WO #3 did not advance on the balcony door for fear that the Complainant might see him and jump, while the SO and WO #4 retreated to their original positions. Within five to six seconds, the Complainant again reappeared in the balcony doorway asking why the police would not shoot him. WO #3 continued to reassure him that they were not going to shoot him, nor were they going to take him to jail as he had done nothing wrong. WO #3 was of the view that he was not making any headway with the Complainant and asked if he wanted to speak to anyone else, to which the Complainant responded he wished to speak with the SO and WO #4. The Complainant then faced those two officers and stated that he was going to jump. WO #3 returned to his original position and told the Complainant that a nurse and paramedics were coming if he wished to speak with them.

This evidence is confirmed by the radio communications recording when at 7:11:43 p.m. the SO is heard to report that the Complainant kept coming in and out from the balcony and every time they got close to him, he threatened to jump off and if they could not get close to him they would require the Emergency Task Force (ETF).

The Complainant then indicated that he wished to speak with CW #1 and WO #3 attempted to negotiate with the Complainant stating that if he came in and sat on the sofa, they would go and get CW #1. The Complainant, however, refused to negotiate or to move away from the balcony door, indicating instead that he wanted CW #1 to see, which the police officers took to mean that he wanted CW #1 to see him jump from the balcony. WO #4 left the apartment to make it appear that he was getting CW #1 and when he returned, both he and WO #3 noticed that the SO had his CEW drawn but was keeping it concealed from the Complainant and each officer independently reviewed the quickest route to the Complainant in order to get to him once the CEW was deployed. The SO also formulated a plan to incapacitate the Complainant with the CEW in order to create time for WO #3 and WO #4 to apprehend the Complainant before he had the opportunity to jump. The SO un-holstered his CEW, activated it for discharge, concealed it from view and waited for an opportunity to discharge it.

The Complainant came inside the balcony door, put up the hoodie from his sweater and took some really deep breaths. At this point, all three police officers believed that the Complainant was summoning up his courage to jump. The SO took that opportunity to raise his arm to discharge the CEW, but apparently this movement was seen by the Complainant and when the SO discharged the CEW, he missed and the Complainant turned away, opened the door, rushed onto the balcony and hurled himself over the railing. The Complainant was heard to scream as he descended the 12 storeys before landing on the ground below. All three officers initially stood in shock, and then observed that the CEW probes had become embedded in the curtain beside the balcony door.

At 7:20:34 p.m., the MCIT is recorded on the radio communications log as reporting that they had arrived on scene but before they made it up to the 12^th floor, at 7:22:41 p.m., the SO is heard to report that the Complainant had jumped.

At 7:57:52 p.m., the Complainant was pronounced dead at the scene. The preliminary cause of death for the Complainant was multiple blunt force injuries. The post mortem report expanded on that finding, adding that “the pattern of injuries was not suggestive of an altercation. The best explanation for the injuries is a descent from height”.

On this evidence, I find that the Complainant’s death was caused by his own actions, without any direct involvement by the police officers present; that WO #3 and WO #4 as well as the SO were carrying out their duties as required when they attended the apartment unit to attempt to dissuade the Complainant from his stated course of action; and that at no time did any officer have any direct physical contact with the Complainant nor any verbal interaction that could in any way have been seen to initiate the actions of the Complainant. The sequence of events as described by the three police officers present with the Complainant in the unit is confirmed by the five civilian witnesses who saw or heard various parts of the Complainant’s interaction with police or saw him fall from his balcony after the discharge of the CEW. It is clear on this evidence that the Complainant, who could initially have been described as being indecisive, became more resolute over time, apparently gathering up his courage to end his own life and forcing the SO to formulate a plan that could safely incapacitate the Complainant, allowing WO #3 and WO #4 to rush in and prevent him ending his life. Unfortunately, no plan is perfect and the Complainant appeared to anticipate the SO’s intent when he saw him raise his arm to discharge his CEW and he was either able to evade the probes or the SO simply missed, due to faulty equipment or simply a poor or inaccurate deployment. Whatever the reason, the CEW was ineffective and, anticipating that officers were going to attempt to thwart the Complainant’s desire to end his life, the Complainant sprang into action and jumped from the balcony before the police could intervene and prevent him from doing so. It is clear on all of the evidence that the Complainant was very troubled and was suffering a mental health crisis. From the observations of the police officers, it appeared as well that the Complainant was likely hallucinating and may not have fully appreciated the consequences of his actions.

On these facts, the question to be determined is whether or not there are reasonable grounds to believe that any of the officers involved in the apartment at the time leading up to, and including, the Complainant’s jump to his death committed a criminal offence, specifically, whether their actions amounted to Criminal Negligence Causing Death contrary to s.220 of the Criminal Code.

The decision of the Ontario Court of Appeal in R. v. Sharp (1984), 12 C.C.C. (3d) 426 (Ont. C.A.), sets out the test for Criminal Negligence as requiring “a marked and substantial departure from the standard of a reasonable person in circumstances” where the accused “showed a reckless disregard for the lives and safety of others”.

On all of the evidence, I find that all three of the police officers who attended at the apartment did so in an effort to dissuade the Complainant from taking his own life. While it may be that had the SO not failed in his attempt to incapacitate the Complainant by discharging his CEW, his life may have been saved, I cannot find that to be either a marked and substantial departure from the standard of a reasonable person in the circumstances nor does it indicate a reckless disregard for the lives and safety of others, specifically for the life of the Complainant. It is clear on the evidence that the SO relied on his experience and knowledge to formulate the plan best suited to this particular situation and most likely to be successful in saving the life of the Complainant. The circumstances were tense, fast moving and very stressful. The Complainant had not responded to any of the many efforts made by all three officers to engage him in conversation or distract him from his stated purpose. While the operation was not successful and there was a tragic loss of life, I cannot find that to be the basis for forming reasonable grounds to believe that the SO, or any of the officers present, acted in a manner which constituted a marked and substantial departure from the standard of a reasonable person. I find that any reasonable person would likely have behaved in exactly the way that these officers did and that they did not show a reckless disregard for the life or safety of the Complainant. The entirety of their actions throughout the time they were present in the apartment was directed specifically towards saving the Complainant’s life despite his own intentions to thwart police in that regard.

With respect to the faulty discharge of the CEW, I am further mindful of the law as pronounced 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.

In the final analysis, I find no grounds, reasonable or otherwise, upon which to find any bases for any criminal conduct by any of the three police officers who attended at the apartment to try to save the life of the Complainant. Despite the tragic loss of life, the officers tasked with this incident followed all procedures as set out in their policy guidelines and cannot be held responsible for the Complainant’s actions in fulfilling his intention to end his own life. As such, there are no reasonable grounds here for the laying of criminal charges.

Date: January 16, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit