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 sustained by a 43-year-old man in the early morning hours of September 28, 2016 when he was subdued by officers at a Toronto hospital.

Notification of the SIU

On September 29, 2016, at 4:00 p.m., Toronto Police Service (TPS) reported the following:

On September 24, 2016, hospital staff from a downtown Toronto hospital called 911 for police assistance. When police officers arrived, a psychiatric patient identified as the Complainant was subsequently subdued by a conducted energy weapon (CEW) and then sedated by hospital staff.

On September 27, 2016, hospital staff from the same downtown Toronto hospital called 911 again and reported that the Complainant was agitated and throwing items. TPS Emergency Task Force (ETF) officers responded and attempted to negotiate with the Complainant to take his medication. The Complainant took his medication but it was not effective and it did not calm him down. A CEW was deployed on the Complainant and he was subsequently restrained by hospital staff.

On September 29, 2016, a member from the hospital called TPS and reported that the Complainant suffered a fractured hip.

The Team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Complainant:

43-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

Witness Officers

WO #1  Not interviewed, but notes received and reviewed[1]

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  Interviewed

WO #8  Interviewed

WO #9  Interviewed

WO #10  Interviewed

Additionally, the notes from one other, non-designated officer were received and reviewed.

Subject Officers

SO #1  Declined interview and to provide notes, as is the subject officer’s legal right

SO #2  Declined interview and to provide notes, as is the subject officer’s legal right

SO #3  Declined interview and to provide notes, as is the subject officer’s legal right

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.

CW #1 provided photographs of the Complainant’s injuries after the incident.

Communications Recordings

911 and Communications Recordings Summary

• On September 27, 2016, at 9:03 p.m., CW #2 from the psychiatry unit of the hospital called 911
• CW #2 reported that the Complainant was threatening staff and that staff were unable to physically restrain him
• The staff were not able to medicate him because the Complainant would not allow them to get close to him
• CW #2 advised the dispatcher that the Complainant was tasered by police officers a few days ago
• At approximately 9:33 p.m., WO #7 advised the dispatcher to request ETF assistance, and
• At approximately 11:23 p.m., the ETF team advised that they were at the hospital

Forensic Evidence

CEW Report Summaries

All three device reports showed different times pertaining to when SO #1, SO #2 and SO #3 deployed their CEWs at the Complainant on September 28, 2016. It appeared that all three CEWs were not synched in time at the time of their deployment. Despite what the device reports say about the time of deployment, as per WO #8, the CEWs were deployed at approximately 1:32 a.m.

• SO #1 was assigned a CEW with a serial number of X00-220919. The device report showed that the CEW was discharged on September 28, 2016, at approximately 1:48 a.m., three times, each time for five seconds
• SO #3 was assigned a CEW with a serial number of X00-225603. The device report showed that the CEW was discharged on September 28, 2016, at approximately 1:33 a.m., twice, each time for five seconds, and
• SO #2 was assigned a CEW with a serial number of X00-441452. The device report showed that the CEW was discharged on September 28, 2016, at approximately 1:41 a.m., twice, each time for five seconds. At approximately 1:42 a.m., the CEW was discharged again for five seconds.[2]

Materials obtained from Police Service

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

• COMM - Summary of Conversation
• Event Details Report
• General Occurrence Reports
• Intergraph Computer Aided Dispatch (ICAD) - Event Details Report
• Involved Officer List
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9 and WO #10
• Procedure - Incidents Requiring ETF
• Procedure - Emergencies and Hazardous Incidents
• Procedure - Use of Force and Equipment (with appendices), and
• Procedure – Conducted Energy Weapon

On September 27, 2016, the Complainant was a psychiatric patient at a downtown Toronto hospital. During the evening, the Complainant refused to take his medication and was aggressive and threatening towards the staff of the unit. Just after 9:00 p.m., CW #2 called 911 for police assistance with the Complainant.

TPS officers arrived, but decided to call in the TPS ETF to assist with the Complainant given his size and the degree of violence he had exhibited to that point. Staff from the unit had also advised that a CEW had been deployed on the Complainant a few days earlier. When the ETF unit arrived, including SO #1, SO #2 and SO #3, they were updated on the Complainant’s background and behaviour. With the officers present, the Complainant agreed to take his medication by injection, which he did. His behaviour, however, was not affected by the medication.

With the ETF remaining on the unit, the attending doctor decided that the Complainant needed to receive additional medication. It was administered, but the Complainant remained aggressive and violent, including threatening the officers and their families.

Just before 1:30 a.m. on September 28, 2016, the Complainant turned towards the ETF team and approached with his hands clenched into fists while yelling and swearing. He was ordered to stop approaching, but the Complainant continued towards the officers. SO #1, SO #2 and SO #3 each discharged their CEWs, striking his torso, shoulder, neck and arm. The Complainant fell to the ground, and was then placed in restraints on a bed. The Complainant complained of pain to his right hip. X-rays taken later that day revealed that the Complainant suffered a subcapital fracture to his right femur.

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 264.1, Criminal Code - Uttering threats

264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat

1. to cause death or bodily harm to any person;
2. to burn, destroy or damage real or personal property; or
3. to kill, poison or injure an animal or bird that is the property of any person.

(2) Every one who commits an offence under paragraph (1)(a) is guilty of

1. an indictable offence and liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

(3) Every one who commits an offence under paragraph (1)(b) or (c)

1. is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
2. is guilty of an offence punishable on summary conviction.

On September 27, 2016, a 911 call was received by the TPS to attend at a downtown Toronto hospital as a patient, the Complainant, in the psychiatric intensive care unit (PICU) was threatening hospital staff, being unruly and combative and refusing to take his medication. As a result, police officers from TPS attended, who then called in the ETF. SO #1, SO #2, SO #3, WO #8, WO #9 and WO #10 from the ETF all attended. Following the Complainant’s interaction with police, he was diagnosed as having sustained a fractured hip.

During the course of this investigation, six civilian and six police witnesses were interviewed. The three Subject Officers declined to provide statements or their notebook entries, as is their legal right. Additionally, investigators had access to the notebook entries of 11 police witnesses and the communications recordings and log. The area where the interaction with the Complainant occurred did not have surveillance cameras, so unfortunately there was no Closed Circuit Television Video of the incident.

The civilian witnesses present on the ward at the time were consistent in their description of the Complainant as a large and muscular man, who was aggressive and violent towards the staff.

WO #8 advised that the ETF was called to the psychiatric unit at the hospital by WO #7 because the Complainant was acting violently. WO #8 was further advised that a CEW had been deployed on the Complainant at the hospital a few days earlier. WO #8 then spoke with the doctor in the unit, who advised that hospital staff were afraid of the Complainant as he exhibited violent behaviour towards them.

WO #8 advised that he and the ETF team arrived at the hospital at 11:20 p.m. and entered the Psychiatric Intensive Care Unit (PICU) at 11:40 p.m., after having spoken to the nursing staff about the Complainant’s behaviour and the fact that he had to be medicated and restrained. WO #8 also described the Complainant as a large, muscular man who immediately began to shout at his team. At approximately 12:00 a.m. on September 28, the Complainant agreed to take his medication and three vials were administered to him without any apparent effect. After twenty minutes, and again speaking with the doctor, the ETF team re-entered the PICU with four security officers and observed the Complainant with his chest puffed up, both hands clenched into fists and, while SO #2 tried to speak calmly with the Complainant, the Complainant threatened to kill the ETF officers and their families.

At that point, WO #8 exited the PICU and again consulted with the doctor, who advised that two additional doses of medication would be administered; the Complainant, however, only agreed to taking one additional dose. The ETF again waited for the medication to take effect, while the Complainant continued to pace back and forth, walked over to the telephone and pulled the cord out of the wall and appeared to be about to throw the telephone at the ETF team.

The ETF team then followed the Complainant at a distance of about 4.5 to 6.0 metres, when he turned, with his fists clenched, and walked towards them, yelling and swearing. The team commanded the Complainant to stop moving, but he continued, at which point SO #1, SO #2 and SO #3 deployed their CEWs at the Complainant. WO #8 then instructed the security officers to bring the bed with restraints over to the Complainant and the Complainant got onto the bed and complained that his hip was sore.

WO #10, in his statement, also added that even after the deployment of the CEWs by the three officers, the Complainant tried to get back up and, about ten seconds later, WO #10 heard the sound of one of the CEWs being energized on the Complainant.

The communications recordings and log were consistent with the statements of all witnesses.

The CEW logs indicate that SO #1 deployed his CEW three times, each time for a period of five seconds; SO #3 deployed his CEW twice, each time for a period of five seconds; and SO #2 deployed his CEW three times, each time for a period of five seconds.

Despite the number of times that the CEWs were deployed at the Complainant, he appeared not to have suffered any harm from the electrical shocks themselves, but only from the fall resulting from the deployment, which caused him to sustain a subcapital fracture to his right femur with accompanying superolateral displacement of the femur.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the statements of all witnesses, including the nursing staff who were assigned the care of the Complainant, that the Complainant was out of control, hostile, aggressive and exhibiting threatening behaviour. Taking into account the size and physique of the Complainant, it was clear that hospital staff did not feel confident in their ability to control the Complainant, even with the assistance of four hospital security officers. As such, the Complainant was arrestable pursuant to the Criminal Code for threatening bodily harm (s.264.1(1)(a)) or threatening damage to property (s.264.1(1)(b)); additionally, the Complainant fell within the criteria to be apprehended under the Mental Health Act as being a danger to himself or others. As such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, I find that their behavior was more than justified in the circumstances and that they used no more force than necessary to subdue the Complainant. In considering exactly what the particular circumstances were in this case, I have taken into consideration the following factors:

• The Complainant was an extremely large and powerful man
• The Complainant would not listen to reason
• The Complainant continued to be violent and aggressive even after having been administered at least four, if not more, vials of medication which should have made him groggy and compliant
• WO #8 was acting in consultation with, and under the recommendations of, the doctor who had been charged with the care of the Complainant and who was familiar with both his history and his behaviour
• The Complainant was advancing on the officers at the time of the deployment of the CEWs and was posing a risk to them
• Every lesser means of subduing the Complainant had already been tried and failed, including chemical sedation
• At the point in time when the ETF resorted to the use of the CEWs, police had already been on scene for over four hours in attempts to try and calm the Complainant, to no avail, and
• Even after the initial deployment of the CEWs, the Complainant was observed to try to get back up and each of the three officers felt it necessary to shock the Complainant at least once more, before he was compliant

In these particular circumstances, I am unable to find that the actions by the officers amounted to an excessive use of force. I also take note of the fact that at no time did the Complainant lose consciousness nor he did suffer any direct consequences from the deployment of the CEWs, but rather sustained his injury when he fell to the floor as a result of the deployment of one or more CEWs. Since it is impossible to determine if the Complainant broke his hip as a consequence of falling from the deployment of one CEW, the simultaneous deployment of all three CEWs or the subsequent re-deployment of one or more of the CEWs, it is impossible to determine if the Complainant would have suffered the same injury if only one CEW had been deployed. It is clear that the deployment of one CEW was more than justified in the circumstances; I do not find that the simultaneous deployment by three different officers of their CEWs raises the level of their actions to that required to constitute criminal behaviour. In a fast moving and fluid situation, as this was, it would not have been possible for each officer to determine specifically which of them was to deploy their CEW; any delay in taking action may have led to the Complainant’s opportunity to advance further and attack the officers.

In coming to this conclusion, 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]

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention and the manner in which it was carried out were lawful notwithstanding the injury which he suffered. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised simultaneously by each of SO #1, SO #2 and SO #3 fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: September 27, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #1, WO #2, WO #5 and WO #6’s notebook entries were reviewed and their duties were to wait for the arrival of ETF officers. They were not in the psychiatric room where ETF police officers made contact with the Complainant. [Back to text]
• 2) [2] This is consistent with statements of WO #10 and CW #6, that they heard one of the ETF officers energize their CEW about ten seconds after the Complainant had fallen to the ground. [Back to text]