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 40-year-old man on September 5, 1982 while in police custody.

Notification of the SIU

On February 10, 2017, at 7:15 a.m., Civilian Witness (CW) #1 called the SIU and reported that her father [now known to be the Complainant] was caught drinking and driving. He was taken to a Toronto Police Service (TPS) division. CW #1 was told her father hung himself but the family wanted to know the truth about his death.

The team

Number of SIU Investigators assigned: 1

Complainant

40-year-old male, deceased

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

Witness officers[1]

WO #1 Not interviewed

WO #2 Not interviewed

WO #3 Not interviewed

WO #4 Not interviewed

WO #5 Not interviewed

WO #6 Not interviewed

WO #7 Not interviewed

WO #8 Not interviewed

WO #9 Not interviewed

WO #10 Not interviewed

WO #11 Not interviewed

WO #12 Not interviewed

WO #13 Not interviewed

Subject officers

None

The scene

The Complainant died in cell number three at a TPS division.

Public inquest

An inquest was conducted into the Complainant’s death beginning in January, 1983.

Summary of inquest documents

On February 24, 2017, an inquest file was received from the Office of the Chief Coroner. The file included newspaper articles, correspondence, autopsy results, the inquest decision and statements from civilian witnesses and police officers. The documentation included statements from ten police officers, the paramedics that attended the TPS division, as well as CW #2 and a prisoner who was held in a neighbouring cell at the time of the Complainant’s death (the Prisoner). The information was reviewed and can be summarized as follows:

Documents received from the civilian witnesses

CW #1 provided documents of discovery hearings for a civil proceeding regarding the Complainant’s death. The documents included transcripts of statements provided by CW #2, CW #3, another son of the Complainant (the Second Son) and WO #1 and WO #2.

The discovery hearings were held on August 23, 1984. During the hearing, CW #2 explained that before the Complainant’s death, his behavior had changed and she thought he was suffering from depression; he was often upset and crying and she had suggested he visit a doctor. On September 5, 1982, the Complainant was drunk when WO #1 and WO #2 came to the house and, after the police officers left the house, he chased them asking for help. CW #2 thought he was seeking help because he threatened to kill his family. The hearing was adjourned to allow CW #2 to get copies of her and the Complainant’s earnings and tax returns to provide to the court.

Both CW #3 and the Second Son mentioned in their statement that their father was drinking on September 5, 1982 and they had concerns about their father because his behaviour was different. In the statements provided by WO #1 and WO #2, they mentioned that they attended the Complainant’s address for a domestic call and he was drunk when they saw him.

CFS submissions and results

On September 8, 1982, two blood samples, a urine sample, and a stomach sample were submitted to the CFS. A report prepared by a toxicologist, dated September 29, 1982, was sent to the Coroner and the Pathologist. The findings indicated the Complainant’s blood sample contained 252 mgs of ethyl alcohol; no other drugs were detected. The urine sample contained 364 mgs of ethyl alcohol. No common drugs or poisons were detected in the stomach contents. The ethyl alcohol concentration of the urine sample indicated that the blood/alcohol concentration had been 280 mgs sometime prior to death.

During the early morning hours of September 5, 1982, the Complainant entered a TPS division, approached the front counter, and asked for a beer. He walked behind the counter and threatened to shoot the police officers. The Complainant was extremely intoxicated at the time. The Complainant was arrested for impaired care or control of a motor vehicle.

Within minutes, two TPS officers attempted to transport the Complainant to another police station for a breathalyzer test, but the Complainant tried to kick out the windows in the police car. WO #3 and WO #5 returned to the original TPS division and, with the assistance of other police officers, put the Complainant in cell 3.

A TPS officer checked on the Complainant in his the cell area approximately every five minutes. When WO #8 checked the cell area at about 6:32 a.m., he found the Complainant hanging from the bars on the cell door with his shirt around his neck.

Officers attempted to resuscitate the Complainant until the ambulance arrived. The Complainant was transported to the hospital and, at 7:10 a.m., the Complainant was pronounced dead.

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.

According to police reports, on September 5, 1982, the Complainant was arrested by TPS after he attended at a TPS division in an intoxicated state. The Complainant was arrested for having the care or control of a motor vehicle while impaired and was placed in a cell where he was frequently monitored. At 6:32 a.m., WO #8 checked on the Complainant and found him hanging suspended by the neck from his shirt which had been tied around the bars on the cell door. WO #8 called for help and he and other police officers attempted to resuscitate the Complainant. The Complainant was transported by ambulance to the hospital where he was pronounced dead at 7:10 a.m.

Following the death of the Complainant, an inquest was held on January 25, 1983, following which a jury returned a verdict that the mechanism of death for the Complainant was “by means of a shirt sling suspended from a horizontal member of the door assembly of Cell #3 at [the TPS division] this being done in an abnormal mental state aggravated by extreme intoxication and happening between 6:00 a.m. & 6:32 a.m.” and that the death was a suicide. As a result of some confusion as to the sequence of events which led to the Complainant’s death, as well as some abnormalities discovered during the course of the inquest, the family of the Complainant came to believe that the Complainant’s death may not have been suicide, but rather was intentionally caused by one or more members of the TPS. Consequently, on February 10, 2017, the daughter of the Complainant, CW #1, requested that the SIU look into the death of her father and whether or not there was any evidence that police caused his death.

Due to the passage of time following the death of the Complainant prior to the investigation by the SIU, the only witnesses interviewed during this investigation were the four family members of the Complainant, two of whom were only children at the time of their father’s death. Since the other witnesses, medical, civilian and police, all had their statements filed at the subsequent inquest, those statements were relied upon by investigators as depicting the best recollections of the witnesses while the incidents were still fresh in their minds. The Complainant’s family was more than adequately represented by counsel at the inquest and all witnesses were presumably therefore thoroughly cross-examined and all issues fully canvassed. The transcripts of the inquest were not made available to the SIU investigators. Additionally, the investigators had access to the statement of claim filed by CW #2 and her children against the TPS, as well as the transcripts of the evidence given by CW #2 (wife of the Complainant), CW #3 (son of the Complainant), the Second Son and WO #2 and WO #1 in the depositions obtained as a result of the action filed. Although additional police officers testified at the discovery of the claim against the TPS, those transcripts were not available. As the date of the death predated the installment of video recording equipment in the Toronto police stations, there were no recordings of any of the interactions between the Complainant and police, nor were there cell videos which recorded his time in the cells or his subsequent death.

According to the interviews with the Complainant’s family, the following appear to be the issues surrounding the death of their father which cause them concern:

1. The police officers who attended to notify the family of the death of the Complainant initially advised that the Complainant had died due to hanging himself by his tie in the cell. Later in the day, police officers returned to the Complainant’s residence and advised that he had in fact hung himself with his shirt
2. The pathologist who performed the post-mortem on the Complainant initially testified that the Complainant’s hyoid bone had been fractured which would have led to a finding that his death was due to manual strangulation rather than by hanging, and
3. At the funeral home, CW #2 saw her husband’s body for the first time after his death and observed him to have bruising to his chest and legs which caused her to believe that TPS had killed her husband

I will deal with the issues outlined above in the order in which they are listed.

Issue 1: The death notification

With respect to the death notification of the Complainant, I note that the initial report outlining the events leading to the death of the Complainant was authored within minutes of his death, at 6:40 a.m. on September 5, 1982, only eight minutes after his body was located. In that report, the following details are provided: How Committed: Hung Self; Method Used: Shirt; Suicide. According to statements filed and evidence tested at the inquest, I further note that the Complainant had been monitored in Cell 3 at the TPS division by WO #8 who called for assistance when he observed the Complainant hanging, which came in the form of WO #7, the officer in charge of the station at that time, WO #10, who was called down from the Criminal Investigation Bureau, and WO #9, who was just arriving for his shift. These police officers took the Complainant down and proceeded to attempt to revive him by performing mouth to mouth resuscitation and calling for an ambulance. After the Complainant was pronounced dead at the hospital and that information was relayed to the police station, WO #2, WO #11, WO #12 and WO #13 were sent to the home to do the death notification with WO #12 acting as interpreter. None of these police officers had been present at the time that the Complainant was discovered hanging in his cell or when he was taken down, and presumably all were acting on second hand information. From this evidence, I can only infer that either the police officers assumed that a tie had been used, or misunderstood when they were told the cause of death and therefore incorrectly relayed that information to the family, only later returning to the home and correcting the misinformation when they were properly advised back at the TPS division. In the statement of all of the notifying police officers, none indicate what exactly was said in the death notification or from where they received the information as to cause of death. It appears from the paperwork which was immediately filled out at the police station, that there was never any question that the Complainant had been suspended by his shirt and that was the mechanism of death, both WO #7 and WO #8, in their statements, indicated that the Complainant was found hanging from his shirt, while WO #9 indicated that when he attended to assist after the Complainant was already taken down, he observed a shirt attached to the upper bars of the cell door.

Issue 2: Cause of death

With respect to the cause of death and the evidence of the Pathologist. The Pathologist performed the post mortem on the Complainant and authored the report indicating that the cause of death was “Asphyxia by Suspension” and under abnormal findings, he included “fracture, hyoid bone” along with a number of abrasions that were noted as already healing at the time of death and multiple contusions of varying ages which he listed as being found on the hip, legs and thighs and one contusion each on his chest and chin which were varying in colour from brown, to purple to pale purple.

A finding of facts appended to the Inquest jury’s verdict indicates that after hearing the Pathologist’s evidence that both wings of the Complainant’s hyoid bone were fractured, which was more consistent with manual strangulation than it was with suspension by hanging, the inquest was adjourned and homicide investigators took over the investigation and had the Complainant’s body exhumed. The report went on to detail that prior to the exhumation, the hyoid bone of the Complainant was located as it had been stored by the Pathologist as a tissue sample. The hyoid bone was X-rayed which revealed that it had in fact not been fractured. The report reads as follows:

The tissue typing revealed both the Deceased’s hyoid were both Type A [I believe this to be a typographical error and should read that both the deceased’s blood type and the hyoid examined were Type A]. No more specific typing could be superficially carried out.

Because of the pressure associated with this error of judgment in not X-raying the hyoid the pathologist in question voluntarily removed himself from the list of pathologists doing medico-legal autopsies with the Solicitor General for, as yet, an undetermined period of time. The removal of tissues for storage in the pathologist’s basement had been necessitated because of a lack of storage facilities at the hospital. This pathologist was the only one encountering such a difficulty and storage facilities were subsequently located in the area of the forensic pathology division.

While counsel for the family at the inquest took issue with whether the hyoid bone that was X-rayed was in fact that of the Complainant, as the Pathologist apparently had two other hyoid bones stored in his basement, the Pathologist testified that each sample was in a jar that he had labelled with the name of the deceased and his date of death. Despite what I assume was extensive and thorough cross-examination by counsel, the jury was satisfied with the Pathologist’s explanation and with the confirmed blood typing and accepted the evidence of the Pathologist that this was the hyoid bone of the Complainant.

A second post-mortem examination was carried out on February 9, 1983, by a second pathologist (the Second Pathologist). In the Second Pathologist’s report, he confirmed the findings of the Pathologist that there was a ligature mark to the right side and back of the neck of the Complainant and abrasions to the left side of the neck. He also documented that there was a one to two day old bruise in the left mid shin, that there was no bruising or other injury to the soft tissues around the larynx or to the larynx itself, that the trachea was normal but the hyoid bone was absent from the body. Due to the missing hyoid bone, the Second Pathologist concluded his report by indicating that a cause of death could not be determined on this examination. (emphasis as per his report). Under unusual findings, the Second Pathologist noted the following: 1. Organs already dissected; 2. Decomposition of body tissues; 3. Hyoid bone not present in body; and, 4. Ligature-like marks on neck.

A toxicology screening done on the Complainant at the time of the first post mortem examination indicated that the Complainant’s blood/alcohol level at some point prior to death, based on samples of his blood and urine examined after death, was 280 mgs of alcohol per 100 mls of blood.[2]

As a result of the evidence that the hyoid bone had not been fractured, the jury accepted the post-mortem report’s conclusion and found that the mechanism of death was by hanging “this being done in an abnormal state aggravated by extreme intoxification (sic)”, which I interpret as a finding that the death was self-inflicted.

While the statement of CW #1 (who was a very young child at the time of her father’s death) indicated that the Pathologist was jailed as a result of his “error”, in this case I was unable to find anything to support this statement. The Pathologist is presently employed as the Senior Consultant Pathologist at a hospital in Asia. His online resume indicates that he was a pathologist at The Hospital for Sick Children until 1990 and that he is presently employed at a hospital in Asia, but gives no date as to when he started there. While it is unlikely that the Pathologist received a jail sentence following his testimony at the Complainant’s inquest in 1983, but continued to work as a pathologist for The Hospital for Sick Children until 1990, there is no explanation for the gap in his resume between 1990 and 2017. The College of Physicians and Surgeons website still lists the Pathologist as a doctor in good standing and does not list any disciplinary issues, any findings of malpractice or professional negligence, and no past findings of the Discipline or Fitness to Practise Committee. I do note that there was extensive press coverage following the inquest into the death of the Complainant, some of which quote the Chief Coroner at the time as saying that the Pathologist had not done anything wrong when he stored tissue samples in his basement: “it’s just that in the public mind, it wouldn’t seem right”. None of the media reports make any mention of the Pathologist ever having been charged or convicted of any offence, only indicating that he voluntarily removed himself from the list of pathologists who were used by the Ministry of the Solicitor General to perform post mortems on their behalf.

Issue 3: Other injuries observed on the Complainant’s body and any evidence that his death was caused by members of the TPS

As already indicated above under the findings of the post mortem examinations by both the Pathologist and the Second Pathologist, each doctor found some indications of abrasions and contusions that were either described as healing, one to two days old, or of varying ages. None of the injuries were described as fresh or contemporaneous with the time of death.

According to the statements provided by the police officers who interacted with the Complainant at various points on September 5, 1982, and the factual findings made by the jury at the subsequent inquest, the following sequence of events can be determined:

On September 5, 1982 at approximately 4:00 a.m., the Complainant called police to report a murder. As a result, WO #1 and WO #2 attended at the Complainant`s residence where the door was answered by the Complainant, who was described as jovial and extremely intoxicated. The Complainant invited the police officers into the basement, where they observed numerous bottles of alcohol and pizza. The police officers indicated that the Complainant told them that he had murdered a mouse and that he wanted them to stay and drink with him but they declined, indicating that he should go to bed, and they left his residence. Both police officers indicated that they did not note anything unusual about the Complainant other than that he was inebriated.

At approximately 5:20 a.m., the Complainant apparently drove to the TPS police station where he entered and approached the front counter. He was observed by the two police officers at the front counter, WO #4 and WO #6, who described the Complainant as very intoxicated. When the Complainant reached the front counter, he asked for a beer; in response to being questioned by police, the Complainant admitted to police officers that he had driven to the station. The Complainant then walked behind the counter and threatened to shoot and kill the police officers. WO #3 and WO #5, hearing this threat, came out of the report room and observed the Complainant reach around to his back, as if he were reaching for a weapon, at which point WO #3 and WO #5 grabbed him and handcuffed him; the Complainant struggled violently with the police officers. The Complainant was arrested for impaired care or control of a motor vehicle contrary to the Criminal Code, as police had reasonable grounds to believe, on the Complainant’s own admission, that he had driven his car to the station in an impaired state.

At 5:30 a.m., WO #3 and WO #5 attempted to transport the Complainant to the nearest Breathalyzer unit, as there was no Breathalyzer technician on duty in their station at that time and the law required that breath tests be taken as soon as practicable and no more than two hours after the driving. The Complainant was described as very violent and there was a struggle to get him into the rear of the police cruiser, following which he tried to kick out the windows in the police vehicle and pinned one of the transporting police officers, WO #3, against the door of the vehicle. As a result of his violent behaviour, it was decided to abandon the attempt to take him to a Breathalyzer unit and he was returned to the original TPS division where WO #3 and WO #5, with the assistance of WO #4 and WO #6, carried the Complainant from the booking area into Cell 3. The Complainant was described as kicking, struggling and shouting, as they put him into the cell. Police officers then attempted to get a Breathalyzer technician to come to their station and, when that was not possible, they reduced the charge to one of being intoxicated in a public place contrary to the Liquor Licence Act and decided to lodge the Complainant in a cell for the night.

The Prisoner was lodged in cell #1 when the Complainant was brought in and in his statement, which he provided that same morning at 8:00 a.m., he described the Complainant as being “rather violent”, “doing a lot of screaming and sounding like he was exerting his energy. There was a little scuffle”. The Prisoner indicated that it took about five minutes to get the Complainant into the cell and that he remained violent in the cell after the police officers left, continually indicating that he would remember the police officers’ faces and he was going to kill them. The Prisoner advised that a police officer checked on the Complainant every few minutes and, in doing so, he saw the police officer walk past his own cell and look in on the Complainant, who was still “carrying on”. After approximately 30 to 45 minutes, the Prisoner described the Complainant as having quieted down; he indicated that shortly after he quieted down, the police officer checked on him again, and everything was okay. After another five minutes, he advised that the police officer returned again to check on the Complainant, at which point the Prisoner heard the police officer say that “he hung himself” and called for help. The Prisoner indicated that another police officer then came, they cut the Complainant down and began to do mouth to mouth until the ambulance arrived.

According to the statement of WO #8, he arrived at work at 5:30 a.m. and observed WO #3, WO #4, WO #5 and WO #6 having difficulty booking in the Complainant and observed him being carried to a cell. WO #8 relieved WO #4 at 5:55 a.m. as the station duty officer, and checked on the Complainant at that time and every five minutes thereafter until 6:25 a.m., when he appeared to be sleeping. This evidence is confirmed by the Prisoner. At 6:32 a.m., WO #8 again checked on cell #3 and observed the Complainant hanging from the cell door with his shirt slung around the bars and his neck. He advised that he then immediately alerted WO #7 who assisted him in getting the Complainant down and onto the floor, where he immediately began resuscitation efforts while WO #7 called for the fire and ambulance services, as well as summoned WO #9 and WO #10, who then also assisted with resuscitation efforts. At 6:40 a.m., the ambulance arrived and the Complainant was taken to hospital where he was later pronounced dead.

Based on the evidence before me, and with specific attention to the evidence of the Prisoner, who confirmed that WO #8 checked on the Complainant every few minutes and that no one else had passed by his cell to access the Complainant’s cell between the time that the Complainant was checked at 6:25 a.m., shortly after he quieted down, and when he was checked at 6:32 a.m., when he was found suspended by his shirt, I find that no TPS officer, nor any person other than the Complainant himself, was involved in the taking of the Complainant’s life. I base this on the fact that the Prisoner heard the Complainant still “carrying on” prior to the second last check by WO #8, that he observed WO #8 check on the Complainant on one occasion when the Complainant was quiet, and within five minutes, he checked on the Complainant again and found him hanging. Additionally, the Prisoner’s evidence that WO #8 spent only as much time at the Complainant’s cell as required to “look in on him” and then was seen to again pass by the Prisoner’s cell, I find that there was no opportunity for anyone to do harm to the Complainant and that he took his life by his own hand. With respect to the marks observed by CW #2 on her husband’s body and as noted on both post mortem examination reports, it is also clear on this evidence that no police officer had the opportunity to cause these injuries while the Complainant was in the cells. I find, however, that even if the injuries were not all pre-existing, as opined by the two pathologists, that the Complainant’s violent behaviour, his struggles with the police officers, his kicking at the police cruiser windows and the violent behaviour of the Complainant described by the Prisoner as continuing in the cell even after the police officers had left the Complainant alone, would more than adequately explain any contusions or abrasions on the Complainant’s body.

While I am making this assessment some 35 years after the fact and based only on written statements, transcripts and reports, I take comfort in the fact that the same conclusion was reached by six jurors who were able to observe and assess the credibility and demeanour of all of the witnesses and to hear their evidence while it was still fresh in their minds and under what I have no doubt would have been strenuous and extensive cross-examination by the two able counsel retained by the Complainant`s family.

While having made that finding, I feel it necessary to address the grave concerns I have with respect to the allegations of CW #2 and her children that TPS was responsible for the death of the Complainant, when, contrary to those allegations, on June 20, 1983, CW #2, on her own behalf and on behalf of her three minor children, filed a statement of claim through her counsel wherein the following were asserted as fact:

On September 5, 1982, [the Complainant] was arrested and placed in Cell 3 at [a TPS division] when he was “heavily intoxicated and in a severely depressed state of mind”;

Between 6:00 and 6:32 a.m., “[the Complainant] hung himself from a crossbar to the door to the said cell number 3 using his shirt to fashion a noose, and death ensued therefrom”.

The action on behalf of the Complainant’s family was for $306, 500.00, alleging negligence on the part of the TPS in failing to prevent the Complainant from committing suicide when they knew or ought to have known that the Complainant had “a history of serious mental illness and in particular suicidal tendencies”. I find that these allegations, filed in a court of law, directly contradict the present allegations of the Complainant’s family that the Complainant did not commit suicide but rather was killed by a member of the TPS.

Furthermore, the amount sought in the claim included $6, 500.00 for the funeral expenses, $100, 000.00 in punitive damages and $200, 000.00 in damages indicating “As a result of the fault or neglect aforesaid, the Plaintiffs have lost the guidance, care and companionship that they might reasonably have expected from [the Complainant] if his death had not occurred and suffered other pecuniary loss”. I find it troubling that these allegations made in the statement of claim directly contradict a statement made by CW #2 immediately following her husband’s death wherein she was recorded as providing the following information:

Her husband had been unemployed for most of the summer but had started delivering pizzas the week before;
His driving school business had folded early that year;
“Doesn’t have any medical history, as far as the wife knows”;
“The deceased liked to drink and on the average (at home) would drink each day 2 to 4 bottles of beer and 2 to (sic) glasses of brandy (size of glasses not known). Some times (sic) he arrived home already under the influence of alcohol. Most of the drinking was done at night. When drunk, wife claims, he would beat her and the kids for no reason at all. This was a regular occurrence. The wife on occasion would call the Police to calm him and help him, but he just continued as before.
When asked if there was a definite reason for drinking such as mortgage problems she said no. It’s hard getting by sometimes, she said, but we always pulled through. She couldn’t exactly pinpoint the reasons for his actions.
Deceased was never treated for a mental problem and it is not known to the wife if he required any such help.”

Contrary to both her statement of claim and her statement to police, in her deposition, CW #2 testified that her husband did not drink, had a wonderful relationship with his children, and was neither depressed nor suicidal. She also testified that the driving school was still up and running at the time of his death, despite the fact that he had lost his licence the year before and had not been able to have his licence re-instated. On the basis of these conflicting statements, some of which were filed in court and others made under oath, I find that I can place little credence into the evidence of CW #2 and that the evidence of her three then minor children is very likely, and in the case of CW #1, who was only three years old at the time, is absolutely, the result of hearsay and the repetition of things that they have heard from their mother over the last 35 years.

On the evidence before me, which has been tested both through examination and cross-examination of witnesses at an inquest into the death of the Complainant, and later in sworn depositions in preparation of a lawsuit, I am satisfied that there are no reasonable grounds to believe that any TPS officer had any hand in intentionally causing the death of the Complainant.

That being said, and in an attempt to investigate all possible areas of criminal liability on the part of the TPS in order to avoid this matter being re-investigated yet a fourth time, I feel obliged to also delve into the question of whether any of the TPS officers who interacted with the Complainant on September 5, 1982, breached a duty owed to him and may therefore have been criminally negligent (s.219 of the Criminal Code) and thereby caused the death (s.220 of the Criminal Code) of the Complainant.

The offence of criminal negligence has the following essential elements:

The Ontario Court of Appeal, in its decision of R. v. Sharp (1984), 12 CCC (3d) 428 (Ont. C.A.), defined the legal requirements of criminal negligence as follows:

Criminal negligence does not require proof of intention or deliberation, indifference being sufficient. …Thus, the accused may be convicted on proof of driving amounting to a marked and substantial departure from the standard of a reasonable driver in circumstances where the accused either recognized and ran an obvious and serious risk to the lives and safety of others or, alternatively, gave no thought to that risk.

Although the decision in R. v. Sharp relates specifically to criminal negligence in the act of driving, it is generally applicable to all actions wherein there is shown to be “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” in doing anything, or omitting to do anything, which they have a legally duty to do.

Dealing firstly with WO #1 and WO #2, who interacted with the Complainant at his home at approximately 4:00 a.m., I can find no evidence that they failed to do anything which they had a legal duty to do or that their actions amounted to “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”. Both of these police officers attended in response to a call from the Complainant reporting a murder; upon their arrival, the Complainant was seen to be highly intoxicated and was described as being “jovial”, telling them that he had murdered a mouse and that he wanted to have a drink and party with the police officers; the police officers told the Complainant to go to bed. On this evidence, I am unable to find anything in the actions or behaviour of the Complainant that should have alerted WO #1 and WO #2 that he was anything other than a happy drunk or that they had any duty, or even any hint, that they should do something more.

With respect to WO #3, WO #4, WO #5 and WO #6, these police officers dealt with the Complainant when he came into the police station completely intoxicated and threatened to shoot and kill them. Although they could have arrested him for any number of offences due to his threatening comments, they exercised their discretion, acknowledged that his behaviour was due to his level of intoxication, and only arrested him for having the care or control of a motor vehicle while impaired. While the Complainant was violently struggling and resistant, I note that the abrasions and contusions that were seen on the Complainant by the pathologists, most if not all of which were old and healing, is evidence that no use of force was used against him, other than what was possibly required to handcuff him and to control him. When the Complainant became violent in the police cruiser on the way to the Breathalyzer tests, police officers again exercised their discretion and prudently returned him to the division, reduced the charge to one of being intoxicated in a public place and lodged him in the cells to hopefully sleep it off, as it would have been dangerous to release him.

With respect to WO #7 and WO #8, they took into account that the Complainant was obviously and extremely intoxicated and fully complied with their duties to monitor him, checking in on his cell every few minutes as is confirmed by the Prisoner. Furthermore, they immediately responded by calling for assistance and taking the Complainant down and carrying out life-saving manoeuvers in order to save his life, with WO #8 immediately beginning mouth to mouth resuscitation and WO #7 calling for ambulance and fire services and getting other police officers to come to the cell area and assist WO #8 with chest compressions and mouth to mouth resuscitation. On all of the evidence before me, I can find absolutely no evidence that any police officer who interacted with the Complainant on September 5, 1982, did anything other than fulfill his duties and exercised all care in dealing with the Complainant. While the death of the Complainant was a tragic loss of life, and I fully appreciate that the family continues to search for answers as to why the Complainant chose to take his life, there is not a scintilla of evidence on this record which could form the basis for reasonable grounds to believe that any police officer failed in his or her duty to the Complainant or in any way caused or contributed to the death of the Complainant. As such, I find that there are no grounds here for the laying of any criminal charges.

Having said that, however, the actions of some officers of the TPS in the aftermath of the Complainant’s death exacerbated some of the concerns expressed by the family. The police officers who made the death notification apparently conveyed information to the family that was inaccurate with respect to the mechanism of the cause of death. Further, in removing the shirt that the Complainant used to hang himself, an unknown police officer apparently untied the knot in the shirt, rather than cutting the shirt off the crossbar and thereby preserving the knot in the shirt as evidence. While these actions are open to criticism, they do not amount to criminal conduct contrary to the Criminal Code. As indicated by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206, “Police actions should not be judged against a standard of perfection”. The actions of the Pathologist, who failed to X-ray the hyoid bone and stored it in his basement, do not fall within the mandate of the SIU as he was not a police employee.

In conclusion, having extensively reviewed all of the evidence before me, I am unable to form reasonable grounds to believe that a criminal act was committed by any police officer in his dealings with the Complainant on September 5, 1982, or conclude on reasonable grounds that any police officer was responsible for, or contributed to, the death of the Complainant, as a result of which, no criminal charges will follow.

Date: November 17, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] The SIU did not formally identify any Witness Officers. The listing used here is only to describe the involvement of specific officers without revealing their names, and is for the purpose of this report only. [Back to text]
• 2) [2] The limit at which one can legally operate a motor vehicle in Canada is 80 mgs of alcohol per 100 mls of blood. [Back to text]