Director's Report Details

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 sustained by a 24-year-old man during his interaction with officers on October 19, 2016.

Notification of the SIU

On October 19, 2016 at 6:03 p.m., the Peel Regional Police (PRP) notified the SIU of the Complainant’s custody injury.

PRP advised that on October 19, 2016, at about 3:09 p.m., uniformed police officers with PRP responded to the Petro Canada gas station at 2150 Burnhamthorpe Road West for a report of a man with a knife. As the police officers were en route to the gas station, the man [now determined to be the Complainant] drove his car into oncoming traffic and across the street to 2155 Burnhamthorpe Road West. In the Walmart parking lot the Complainant exited his car and told a passerby he was going to kill himself and then he began cutting his arms. PRP officers arrived on scene and the Subject Officer (SO) deployed his Conducted Energy Weapon (CEW) striking the Complainant. As a result, the Complainant fell to the ground and struck his head on the pavement.

Subsequently, the Complainant was handcuffed and transported to the hospital. At the hospital, the Complainant was diagnosed with having suffered superficial cuts to his arm and a brain bleed. As a result of the brain bleed, the Complainant was then transported to a second hospital, where he was treated for his injuries.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

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 and photography.

Complainant

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

Civilian witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

CW #4  Interviewed

CW #5  Interviewed

CW #6  Interviewed

CW #7  Interviewed

CW #8  Interviewed

CW #9  Interviewed

Witness officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

Subject officers

SO Interviewed, and notes received and reviewed.

The scene

The scene was located in a parking lot adjacent to a Walmart Store at 2150 Burnhamthorpe Road West in Mississauga. The scene was cordoned off with security tape and was guarded by PRP officers.

Within the cordoned area near a raised median, there was a pooling of suspected blood stains. In close proximity to this pooling the SIU seized packaging and some gauze with suspected blood staining on it. In addition, there were several personal effects in close proximity to the staining. There was a Hyundai SUV within the cordoned area that belonged to the Complainant. The Hyundai SUV was parked close to a shopping cart shelter, the median, the personal effects, and the staining. There was no obvious staining on the exterior surfaces of the SUV except for some transfer staining on the driver’s door handle. This staining was suspected to be blood. The SUV had all four windows partially opened, it was unlocked, and the ignition was off. The interior of the SUV was examined and transfer staining was located on the interior door panel of the driver’s door and further staining in a drip pattern on the rocker panel area. The steering wheel was covered with a wool-type cover and had transfer staining on it.

On the front passenger seat and floor area, there was cardboard and plastic packaging for a knife. There was no knife found in the packaging or anywhere else in the SUV. The areas of interest were photographed.

Physical evidence

Below is a picture of the knife used by the Complainant recovered from the scene:

Video/audio/photographic evidence

CCTV security cameras

On October 19, 2016, SIU investigators canvassed the commercial establishments near the scene for likely Closed Circuit Television (CCTV) security video recordings. CCTV recordings were received from the Petro Canada station and Walmart.

Walmart

The Walmart at 2160 Burnhamthorpe Road provided CCTV recordings for October 19, 2016, beginning at 2:50 p.m., and ending at 3:10 p.m., which showed the following:

At 2:56:37 to 2:57:01 p.m., a marked PRP cruiser travelling northbound turned into the last parking laneway at the north end of the parking lot. The police cruiser stopped facing east and a uniformed police officer [now determined to be WO #2] exited the vehicle. He walked around the front of the police cruiser to the driver’s side. At that point, a uniformed police officer [now determined to be WO #3] exited the driver’s side of the police cruiser and walked down the same side.

At 2:57:01 to 2:57:18 p.m., WO #3 walked backwards from his police cruiser until he reached the edge of the laneway at the exit lane to the mall. WO #2 retreated and approached the laneway and then WO #2 and WO #3 both walked out into the laneway. A person [now determined to be the Complainant] wearing white came into view walking westbound just passed the front of the police cruiser.

At 2:57:18 to 2:57:26 p.m., the Complainant continued to walk towards the police officers. At this point, a second marked police cruiser with its emergency lights activated came into view. The police cruiser stopped in the parking laneway right behind WO #3’s police cruiser. Then WO #2 and WO #3 walked into the parking laneway and stood beside the second police cruiser. The SO exited the second police cruiser and all three police officers stood on the driver’s side of the SO’s police cruiser. The Complainant stopped walking and stood still in front of WO #3’s police cruiser.

At 2:57:26 to 2:57:34 p.m., the SO walked forward with his arms extended out in front of him in a shooter’s stance fashion and he stood near the driver’s side door of WO #3’s police cruiser. WO #3 walked forward with his arms out in front of him and then stood in front of the SO’s cruiser. WO #2 walked forward to stand near a light pole on the north side of the parking lane. The Complainant had not moved and remained standing in front of WO #3’s police cruiser. Suddenly, the Complainant tensed up and started to fall backward. A total of two seconds had elapsed between the time the SO stopped walking and the Complainant started to fall.

At 2:57:34 to 2:57:42 p.m., the Complainant in a stiffened position fell directly backwards out of view. At that point, all three PRP officers ran forward toward the Complainant. It appeared WO #2 and WO #3 got to the Complainant first and then the SO moved forward a bit but was still standing off to one side of the Complainant.

Then at 2:57:42 to 2:58:05 p.m., all three police officers crouched over the Complainant.

At 2:58:05 to 3:00:36 p.m., a third marked police cruiser with its emergency lights activated pulled into view at the north side of the Walmart Garden Centre. The police cruiser driven by WO #1 stopped in the parking laneway north of the SO’s police cruiser. A short time later, more marked police cruisers with their emergency lights activated arrived. By then a crowd of civilians had formed in the area.

Communications recordings

The recorded transmissions were consistent with the Event Chronology and the information provided by all other sources.

Forensic evidence

CEW Download Report

On October 19, 2016, at 3:13:43 p.m., the SO moved the safety switch of his CEW to the armed position. At 3:13:50 p.m., the SO pulled the trigger of his CEW which discharged the selected cartridge and deployed the probes toward the Complainant causing the Complainant’s body to experience neuromuscular incapacitation (NMI)[1] for a period of six seconds. At 3:13:56 p.m., the SO pulled the trigger of his CEW for a second time causing the Complainant’s body to experience NMI for another six seconds.

The training records of the SO revealed that he was a qualified CEW user as of June 15, 2016.

Materials obtained from Police Service

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

• Communications – 911 calls and Radio Transmissions
• CEW Download Report
• Event Chronology
• Notes of WO #1, WO #2 and WO #3
• Occurrence Details
• Patrol Zone Sheet
• Procedure - Use of Force
• Witness Statements – CW #3, CW #4, CW #5, CW #6 and CW #7
• Training Record – the SO, and
• Use of Force Reports (WO #2 and WO #3)

During the afternoon of October 19, 2016, the Complainant, armed with a knife, attended the Petro Canada on Burnhamthorpe Road West to buy cigarettes. When the Complainant was not permitted to make the purchase, he became very upset, and started to cut his arms in front of several witnesses. He then held the knife to his throat, before leaving and driving off in his car.

After driving dangerously and erratically in the area, the Complainant parked in a nearby Walmart parking lot. Once there, he got out of his vehicle and approached CW #3, who had followed him in the parking lot, screaming at him while still holding the knife in his hand. WO #2 and WO #3 arrived on scene and drew their firearms on the Complainant. The Complainant held the knife to his throat, cutting his own neck. The Complainant then started to approach the officers, still armed with the knife. The SO arrived, and discharged his CEW at the Complainant. The CEW prong struck the Complainant on the forehead, entering his skull in the left-sided frontal bone. The Complainant fell and struck his head on the pavement.

As the Complainant would not release the knife, the SO discharged his CEW a second time on the Complainant. WO #2 kicked the knife away. Once the knife was seized, the Complainant was handcuffed and transported to hospital by ambulance. The Complainant suffered significant injuries, including facial fractures and traumatic brain injury.

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

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

Section 25, Criminal Code - Protection of persons administering and enforcing the law

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.

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if

1. the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested
2. the offence for which the person is to be arrested is one for which that person may be arrested without warrant
3. the person to be arrested takes flight to avoid arrest
4. the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm, and
5. the flight cannot be prevented by reasonable means in a less violent manner

Section 34, Criminal Code – Defence — use or threat of force

34 (1) A person is not guilty of an offence if

1. they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person
2. the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force, and
3. the act committed is reasonable in the circumstances

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

1. the nature of the force or threat
2. the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force
3. the person’s role in the incident
4. whether any party to the incident used or threatened to use a weapon
5. the size, age, gender and physical capabilities of the parties to the incident
6. the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
    
   • f.1) any history of interaction or communication between the parties to the incident
7. the nature and proportionality of the person’s response to the use or threat of force, and
8. whether the act committed was in response to a use or threat of force that the person knew was lawful

On October 19, 2016 at approximately 3:00 p.m., the SO fired his CEW at the Complainant in a Walmart parking lot in Mississauga. The CEW prong struck the Complainant on the forehead, and it entered the left side of his skull. The Complainant fell and struck his head on the pavement. As a result of the fall, the Complainant suffered significant injuries, including facial fractures and traumatic brain injury. There is no question that his injuries were caused by the SO’s actions. At the time, the Complainant was in a public place and armed with a knife. He had already cut himself several times and was advancing towards the SO, WO #2 and WO #3. Given the presence of the knife, the Complainant was arrestable for possession of a weapon for a dangerous purpose. He posed a significant danger to himself, the police officers present, and members of the public.

On October 19, the Complainant attended a gas station to buy cigarettes. He was armed with the knife when he entered the gas station kiosk. When the clerk asked for identification in order to sell him cigarettes, the Complainant became extremely upset and cut his wrist in front of the clerk. He then held the knife to his own throat, but did not cut it. The Complainant then left the store and got into his vehicle. He drove out of the gas station parking lot. He was seen driving erratically at a high rate of speed, travelling southbound in the northbound lanes of Erin Mills Parkway. The Complainant then made a U-turn and drove into the Walmart parking lot.

Once the Complainant arrived in the Walmart parking lot, he exited his vehicle and started to scream at CW #3 who had followed the Complainant into the parking lot. He still had the knife in his hand, and approached CW #3’s truck. At that point, WO #2 and WO #3 arrived. Both police officers drew their pistols and took aim at the Complainant. The Complainant began walking towards the police officers, still holding the knife.

The police officers ordered the Complainant to drop the knife. The Complainant continued to advance towards them and replied, “You got to be fucking kidding me.” The Complainant held the knife to his throat and started to cut his neck. The SO arrived and ordered the Complainant to drop the knife. The Complainant did not. The SO had his CEW pointed at the Complainant. Seven seconds after arming his CEW, the SO deployed his CEW at the Complainant. It hit him in the forehead. The Complainant dropped to the ground. As the Complainant was still holding the knife, WO #2 attempted to kick it away from his hand. As he could not, the SO deployed his CEW a second time, just six seconds after the first deployment. WO #2 was able to kick the knife away from the Complainant’s hands. The Complainant screamed at the police officers as he was handcuffed.

The issue is whether the SO’s actions were justifiable under section 25 (protection of persons acting under authority) and / or section 34 (self-defence) of the Criminal Code. Pursuant to section 25 of the Criminal Code, police officers may use such force as is reasonably necessary in the execution of a lawful duty. Such force that is intended or likely to cause death or grievous bodily harm is permitted if the police officer believes on reasonable grounds that it is necessary to protect themselves or anyone under the police officer’s protection from death or grievous bodily harm. Section 34 of the Criminal Code permits anyone to use reasonable efforts to defend or protect themselves or another person if they believe on reasonable grounds that force or a threat of force is being made against them or another person. Given that the Complainant was armed with a knife in a public area, and had already demonstrated his intent to use it at least against himself, and had aggressively approached a civilian witness as well as three police officers while holding the knife, and had refused to drop it when ordered to do so, and appeared determined to die that afternoon, I believe that the SO’s deployment of his CEW was a reasonable action in the circumstances and was justified under both sections 25 and 34. In fact a failure to act probably would have resulted in the Complainant harming himself with his knife more than he already had. He left the SO with a difficult choice; with either choice resulting in the Complainant with possible injury. Moreover, the jurisprudence is clear, police officers are not expected to measure the degree of their responsive force to a nicety (R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.)) nor should they be judged to a standard of perfection (R. v. Nasogaluak, [2010] 1 S.C.R. 206).

Although the Complainant’s injuries were very serious, he was extremely fortunate that it was only a CEW that was deployed, and not a firearm. I am satisfied on reasonable grounds that the actions exercised by the SO fell within the limits prescribed by the criminal law and therefore no charges will issue.

Date: October 5, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] NMI causes the skeletal (voluntary) muscles to tightly contract. [Back to text]