Director's Report Details

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.

This report relates to the SIU’s investigation into an incident that took place on April 3, 2017 at about 10:50 a.m. involving officers from the Toronto Police Service (TPS) in which a 65-year-old man sustained injuries caused by a knife. TPS officers were dispatched to an apartment building where the man resided after he called 911 and told the operator that he wanted to kill himself.

Notification of the SIU

The SIU was notified of the incident by the Toronto Police Service on April 3, 2017 at 11:43 a.m.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators (FI) assigned: 1

Complainant

65-year-old male, interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

Subject officer

SO #1 Interviewed

The scene

The scene was located inside the complainant’s apartment located on the twelfth floor of a building on Lascelles Boulevard in Toronto. The scene was secured by the SIU, examined, and photographed.

Physical evidence

A 30.5 centimetre kitchen knife was located on the balcony floor and seized by the SIU FI.

Upon examination, it was determined that the SO’s Conducted Energy Weapon (CEW) had been deployed for a period of five seconds.

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.

Communications recordings

The SIU investigators obtained and reviewed the audio communication recordings and the event chronology report from TPS.

Materials obtained from the TPS

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

• event details reports
• WO notes
• SO notes
• parade sheet report
• handwritten notes of complainant’s next-of-kin, and
• summary of conversation

On April 3, 2017, the complainant called 911 at 10:43 a.m. The complainant identified himself to the operator, gave his name, address, unit number, entry code and telephone number. The complainant advised that he was out on the balcony and going to commit suicide. He further indicated that the reason for his call was to have officers present so they could see “there is nobody else involved but me”. He said goodbye to the operator and put the phone down.

The WOs and the SO arrived at the scene and took the elevator to the twelfth floor. Arriving at the complainant’s apartment and finding the door unlocked, they entered the unit, searched for the complainant and quickly located him sitting on a chair and holding a knife to his chest. The SO had her CEW drawn and took the lead in approaching the complainant on the balcony. As the complainant pushed the knife into his chest, the SO discharged her CEW, striking the complainant. Immediately after the CEW deployment, WOs rushed toward the complainant and took control of his arms, causing the knife to drop to the ground. The complainant was taken inside his apartment, provided CPR and ultimately transported to hospital with the arrival of paramedics.

The complainant was treated for a chest wound to the left cardiac box sustaining hemopericardium (blood in the pericardial sac surrounding the heart) and a left pneumothorax (punctured lung).

On April 15, 2017, the complainant died as the result of a pre-existing illness. The pathologist at his post mortem examination confirmed that the complainant’s death was in no way related to the incident on April 3, 2017 involving the police officers.

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.

Mental Health Act (section 17) - Action by a police officer

Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

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 the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

1. serious bodily harm to the person;
2. serious bodily harm to another person; or
3. serious physical impairment of the person,

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician. 2000, c. 9, s. 5.

Criminal Code (section 220) - Causing death by criminal negligence

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.

Criminal Code (section 221) - Causing bodily harm by criminal negligence

Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

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 both from the 911 call and from the complainant’s subsequent statement that the complainant’s intent was to end his own life. As such, pursuant to the Mental Health Act, police officers were authorized to apprehend the complainant as a person who, on reasonable grounds, was believed to be a danger to himself. As such, the apprehension of the complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in her attempt to save the life of the complainant, I find that her resort to the CEW as a means of preventing the complainant from taking his own life was not only justified, but was the only safe measure available to her and that she used no more force than was justified in the circumstances. The fact that the complainant would have taken his own life, if not subdued, was more than clear from the fact that he had already inserted the knife into his chest when the SO deployed her CEW. Furthermore, while the deployment of the CEW was successful from a distance, no other means could have had the result of disarming the complainant and thereby preventing his doing any more harm to himself, while also ensuring the safety of the responding police officers. Had the SO declined to use her CEW in favour of attempting to disarm the complainant hands on, it may well have been too late to save his life and would have posed a threat to the safety of the responding officers.

It is clear on the post-mortem report findings that neither injury, nor the ultimate death of the complainant, was attributable to the actions of the responding police officers and as such, there is no basis for consideration of potential charges pursuant to s. 220 (criminal negligence causing death) or s. 221 (criminal negligence causing bodily harm) of the Criminal Code, since in order for the elements of these offences to be met, there would have to be a causal connection between the actions of police and resulting injury or death to the complainant; there is none here.

On the record before me, it is clear that the complainant was intent on ending his own life. That intent, however, ran contrary to the duties of the responding police officers to save that life. From all of the evidence, it is clear that the injury suffered by the complainant, when the knife was inserted into his chest, was a result of the complainant’s own hand and no fault lies with the responding police officers, who were carrying out their duties as they were required to do. It is further uncontradicted that the complainant eventually succumbed to a pre-existing illness and that there is no causal connection either between the injury he sustained on April 3, 2017, or his ultimate death, and the actions of police officers.

In the final analysis, I am satisfied for the foregoing reasons that the complainant’s apprehension and the manner in which it was carried out were lawful notwithstanding the injury which he suffered, which was found to have been self-inflicted. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: June 31, 2017

Original signed by

Joseph Martino
Acting Director
Special Investigations Unit