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 of a 39-year-old male occurring on July 4, 2016 at 6:10 p.m. during his apprehension by police officers under the Mental Health Act (MHA).

Notification of the SIU

On July 4, 2016 at 9:44 p.m., Toronto Police Service (TPS) notified the SIU of the Complainant’s custody injury. TPS reported that on July 4, 2016, TPS officers had gone to the Complainant’s apartment to apprehend him under the MHA. A struggle ensued and a Conducted Energy Weapon (CEW) was discharged. The probe struck the Complainant in the eye and he had been transported to hospital where he would undergo surgery to have the probe removed.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, and photography.

Complainant:

39-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

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed

Scene

This is a photo of the Complainant’s bedroom (with the metal barbell on the floor):

Summary of CCTV from Apartment Lobby:

Three police officers [now known to be the SO, WO #1 and WO #2] and two civilians [known to be CW #2 and CW #3] entered the lobby of the apartment building. The SO and WO #1 disappeared off camera in the direction of the elevators and WO #2 entered a side door next to the elevators. CW #2 and CW #3 exited the building.

Three paramedics entered the lobby. The paramedics exited the lobby with the Complainant on the stretcher. WO #1 and WO #2 exited the lobby.

Summary of Communications Recordings

WO #1 and WO #2 were dispatched to the police station for a Form 2A Form 2 issued under the Ontario Mental Health Act is signed by a Justice of the Peace and allows police to apprehend and bring a person to a physician for examination. It does not permit the person’s detention in the hospital beyond the time required for the examination. .CW #3 wanted police officers to call her before they arrived. She told police officers not to park on the side street in case the man in question saw the police vehicles out his window as it would make things more difficult. The SO was assigned to the call.

The SO requested an ambulance for a man who was “Tasered.” The dispatcher requested an ambulance at the apartment building. The SO requested the estimated time of arrival for the ambulance. WO #1 said the man was being transported to the hospital and WO #2 was on board.

Materials obtained from Police Service

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

• COMM-Summary of Conversation,
• General Occurrence,
• Intergraph Computer Aided Dispatch (ICAD),
• ICAD-Event Details Report,
• Notes of WO #1 and WO #2,
• Parade Sheet Division - Platoon,
• Police Report-Complainant’s apartment,
• Procedure - Use of Force (with Appendix A and B), and
• Use of Force Training-SO.

On July 4, 2016, CW #2 and CW #3 had a Form 2 under the MHA issued by a Justice of the Peace and provided it to TPS for the apprehension of the Complainant. The plan was for TPS officers to attend the Complainant’s apartment, apprehend him, and bring him to the hospital for examination by a physician. At the time, the Complainant was suffering from an undiagnosed mental disorder, and was posing an increasing threat to himself and others.

Two weeks earlier, TPS had also been involved in apprehending the Complainant in his apartment under the MHA. The SO had attended on that occasion, and the Complainant barricaded himself in his bedroom. The SO had his CEW out when the bedroom door was forced open, and the Complainant was apprehended without it being deployed.

On July 4, 2016, the Complainant barricaded his front door when the officers announced their presence outside his apartment. When the SO, WO #1 and WO #2 were able to force their way in and entered the apartment, the Complainant again barricaded himself in his bedroom. The SO again had his CEW out when the Complainant’s bedroom door was forced open. This time, however, the Complainant was holding a large metal barbell and came towards the SO as soon as the door was opened. The SO deployed his CEW once for five seconds at the Complainant. The Complainant dropped the barbell. One probe hit the Complainant’s upper chest, and was removed by the paramedics who attended the scene shortly after the incident. The other probe hit below the Complainant’s right eye and had to be removed by surgery.

Section 16, Ontario Mental Health Act - Justice of the peace’s order for psychiatric examination

16 (1) Where information upon oath is brought before a justice of the peace that a person within the limits of the jurisdiction of the justice,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself,

and in addition based upon the information before him or her the justice of the peace has reasonable cause to believe that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

4. serious bodily harm to the person;
5. serious bodily harm to another person; or
6. serious physical impairment of the person,

the justice of the peace may issue an order in the prescribed form for the examination of the person by a physician.

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.

On July 4, 2016, the Complainant was very ill and needed to be taken to the hospital. He was suffering from an undiagnosed mental illness, and his CMHA worker believed that he was paranoid schizophrenic at the time. His mental state was deteriorating. In this deteriorated state, the Complainant was unpredictable and violent towards others.

Almost two weeks earlier, the Complainant was apprehended under the MHA after throwing a piece of wood off his balcony towards a neighbour. He had also been screaming and yelling inside his apartment. The SO and another officer responded to that call. At the time, the Complainant threatened to kill the officers. He barricaded himself in his apartment. Once the officers gained entry, the Complainant hid in his bedroom. The SO had his CEW out at the time the bedroom door was opened, and advised the Complainant of such. The Complainant complied with the SO’s commands, and was taken into custody. In the ensuing days leading up to July 4^th, the Complainant’s mental health continued to deteriorate.

On July 4^th, a Form 2 was issued for the Complainant’s apprehension and transport to hospital. Having had the earlier interaction with the Complainant, the SO volunteered to attend the apartment with the other two officers. When the SO and the others arrived to execute the Form 2, the Complainant was clearly in a highly agitated state. He was particularly agitated by the presence of police.

Not wanting to destroy the trust established between the Complainant and his CMHA workers, the SO decided that only the officers would approach the apartment to execute the Form 2. When they arrived at his door, the SO announced their presence and that they were there to help. The Complainant replied that he did not need help and barricaded himself in the apartment. Just prior to the police being able to gain entry, the Complainant fled to his bedroom. The SO drew his CEW out as he entered the apartment. The Complainant could be heard yelling incomprehensibly and throwing things inside his bedroom. He was ordered to come out, but the Complainant did not reply. Officers heard the sound of furniture being moved, and the dropping of a metal object.

When the bedroom door was opened, the SO was in front of the opening. The Complainant was seen in the room near the back wall. He was holding a one foot long, metal barbell in his right hand, raised over his head. He then took two to three quick steps towards the SO. The SO, concerned about his immediate danger, deployed his CEW for one cycle, which lasted for five seconds. The deployment was almost instantaneous with the opening of the door. He did not say anything before he deployed the weapon. At the time the Complainant was hit, he was approximately two to three metres away from the SO. He was hit in the chest, and just below his right eye, and dropped the metal barbell. After the CEW was deployed, the barbell was observed falling to the floor. The SO immediately called for an ambulance.

It is not in dispute that the Complainant was holding the metal barbell at the time the SO entered his bedroom. The Complainant’s version of events differs from the officers regarding when he dropped the barbell and the SO’s distance from him when the CEW was deployed. I have significant concerns about the reliability of the Complainant’s recollections of the events, however, given his highly agitated state and his observed incoherence both before and after the incident.

Pursuant to section 25(1) of the Criminal Code, police officers are entitled to use reasonable force in the execution of their duties. With the information that the officers received prior to entering the apartment, the SO’s prior involvement with the Complainant, and the situation they faced upon entry into the bedroom, the SO was required to make an unenviable, immediate decision. I appreciate that the Complainant suffers from serious mental health issues, and received a significant injury to his eye that day requiring surgery. However, in the circumstances he presented an immediate danger to the attending officers, and thus the SO’s CEW deployment did not fall outside the range of what was reasonably necessary to attempt to disarm and subdue the Complainant. As the jurisprudence makes clear, while their conduct in question must be commensurate with the task at hand, 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.) or to be judged against a standard of perfection (R. v. Nasogaluak [2010] 1 S.C.R. 206). Accordingly, there are no reasonable grounds to proceed with charges in this case.

Date: September 5, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit