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SIU Director’s Report - Case # 17-TCD-350

Contents:

News Releases for this Case:

French:

Mandate of the SIU

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.

Information restrictions

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.

Mandate engaged

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 57-year-old man (the Complainant) during his arrest on November 26, 2017.

The Investigation

Notification of the SIU

At approximately 12:15 a.m. on November 26, 2017, the Toronto Police Service (TPS) reported that on that same date, security officers from the Toronto Community Housing Corporation (TCHC) received a call that someone was hitting another person with a baseball bat. The TCHC officers located the suspect, arrested him for assault, and called the police.

Four TPS officers were dispatched to the call. When they arrived, two of the officers went upstairs to speak with the victim of the assault. The other two officers went to the TCHC security office to speak with the suspect. When they arrived, the suspect was handcuffed and seated in a chair. The two police officers stood him up, conducted a pat-down search, and let him sit back down. While they were waiting for the other two officers to return to the security office, the man fell to the floor and went vital signs absent (VSA).

The paramedics who were on scene attending to the victim of the assault were called into the security office. The man was transported to the hospital and pronounced dead at 11:15 pm.

At 1:07 a.m., on November 27, 2017, the TPS notified the SIU of the identity of the Complainant. 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Collision Reconstructionist assigned: 2

Complainant:

57-year-old male, deceased

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Interviewed, notes received and reviewed
WO #4 Notes reviewed, interview deemed not necessary
WO #5 Notes reviewed, interview deemed not necessary
WO #6 Notes reviewed, interview deemed not necessary
WO #7 Notes reviewed, interview deemed not necessary
WO #8 Notes reviewed, interview deemed not necessary
WO #9 Notes reviewed, interview deemed not necessary
WO #10 Notes reviewed, interview deemed not necessary

Subject Officers

SO #1 Interviewed, notes received and reviewed
SO #2 Interviewed, notes received and reviewed


Incident Narrative

The Complainant was a resident of a TCHC building in the City of Toronto where he had on-going issues with his neighbour in the unit directly next door playing loud music.

On the evening of November 26, 2017, the neighbour was again playing loud music. The Complainant armed himself with a baseball bat, attended the neighbour’s unit, and confronted him. A physical altercation ensued with the Complainant striking the neighbour with the baseball bat and the neighbour arming himself with a knife. The incident was witnessed in part by another resident of the building who reported it to TCHC security officers who were stationed in the lobby.

The TCHC security officers, civilian witness (CW) #2 and CW #1 responded to the neighbour’s unit. CW #1 arrived before CW #2. CW #1 saw the neighbour tipped out of his wheelchair and covered in blood, with a knife on the floor nearby. CW #1 also saw the Complainant in possession of a baseball bat.

CW #1 believed that the Complainant had just struck the neighbour with the baseball bat. He arrested the Complainant and handcuffed him behind his back, following which he called 911 and requested an ambulance and the police. CW #1 then escorted the Complainant to the security office in the lobby. The Complainant was compliant and cooperative.

The first two uniformed TPS officers on the scene, Witness Officer (WO) #1 and WO #2, went up to the neighbour’s unit as the Complainant was being escorted down in another elevator. The third and fourth TPS officers, Subject Officer (SO) #1 and SO #2, met CW #1 and CW #2 in the security office in the lobby where the Complainant was seated.

CW #1 provided his grounds to arrest the Complainant to the police officers, and turned over the baseball bat and the knife. SO #2 took custody of the Complainant and searched him. The Complainant remained compliant and cooperative.

About nine minutes after being turned over to the police, while the Complainant was seated and conversing normally with SO #2, he suddenly, and without warning, collapsed and fell to the floor. The paramedics, who were still on scene attending to the neighbour, were summoned into the security office and immediately attended to the Complainant. The police officers, security officers, and TCHC staff all assisted. The Complainant became VSA.

The Complainant was transported to the hospital and pronounced dead at 1:07 a.m. on November 27, 2017.

Cause of Death

A post-mortem (PM) examination was carried out on the body of the Complainant on November 28, 2017. The pathologist determined that the preliminary cause of death was “atherosclerotic heart disease,” pending toxicology results.

“Atherosclerosis” is a disease in which plaque builds up inside the arteries; over time the plaque hardens and narrows the arteries, causing an interruption in the flow of blood to the heart and other parts of the body, ultimately leading to death.

According to the pathologist performing the PM, the Complainant was effectively dead as soon as he hit the floor and no amount of medical intervention could have saved his life. The final conclusion as to cause of death as set out in the final PM Report was:

Atherosclerotic and Hypertensive Heart Disease, with:

a. Severe coronary artery stenosis.
b. Cardiomegaly, 700 g.
c. Thrombotic occlusion, organized, remote of the right coronary artery.
d. Extensive myocardial fibrosis.

Evidence

The Scene

The scene was located in a TCHC apartment building in the City of Toronto. The security office was just inside the main door on the ground floor. It was secured and guarded by TPS officers upon the arrival of the SIU.

The security office had two entrance doors on either side of a wall of windows. There were two chairs with the backs against the windows and facing the counter. There was a blue coloured chair (without arms) and a folding red coloured chair.

There was a large counter primarily in the centre of the room. There were two office chairs behind the counter.

On the counter was a pair of black handcuffs, the Complainant’s personal effects, and EMS paraphernalia. On the floor directly in front of the counter there was more EMS paraphernalia and personal effects. There was a stain of blood on the floor next to the chairs.
There were two security cameras present in the security office mounted on the ceiling and directed towards the counter area. One camera was mounted along the west wall and one camera was mounted along the north wall.

SIU Forensic Investigators went to the 6th floor and found nothing of evidentiary value.

The security office was documented via measurements for the purpose of creating a computer assisted diagram, and photographs and exhibits were collected.

Forensic Evidence

Biological specimens from the PM examination were submitted to the Centre of Forensic Sciences (CFS) for analysis.

Video/Audio/Photographic Evidence

Surveillance camera recordings:

The TCHC Safety Unit provided surveillance video recordings of the scene. There were two cameras in the security office and one showing the elevators. The video recordings were of good quality.

The recordings depicted that at 9:02 p.m., CW #2 and CW #1 entered the building from the street entrance and went into the security office.

At 9:07 p.m., the witness, who had reported the incident involving the Complainant and his neighbour, knocked at the security room windows and waved her hands to get the attention of the security officers. CW #2 and CW #1 left the office. CW #2 followed the witness towards the main hall and into the elevators and CW #1 returned to the security office.

At 9:17 p.m., WO #1 and WO #2 entered the building and went to the elevator.

At 9:19 p.m., CW #2 exited the elevator. He had a grey baseball bat in his left hand. He was accompanied by the Complainant who was handcuffed behind his back. They approached the security office door where they then waited until the ambulance arrived. CW #2 let the paramedics into the lobby and the paramedics went to the elevator.

At 9:22 p.m., CW #1 arrived at the security office with the keys and opened the door. CW #2 invited the Complainant into the office and then entered himself.

At 9:23 p.m., the Complainant was seated on a blue chair along the glass windows with his hands behind him and a white tissue in hand. He looked down, breathing rapidly. He had no visible injury. CW #1 placed a long kitchen knife with a black handle on the desk and the baseball bat behind the desk.

At 9:23 p.m., SO #1 and SO #2 entered the building. SO #2 entered the security office and appeared to acknowledge the Complainant, who exchanged a few words with her. SO #1 pulled out her note book and started talking to the Complainant while standing and writing at the desk. The two security officers stood behind the desk with their notes. SO #1 and CW #2 talked outside of the security office.

At 9:24 p.m., WO #3 entered the building. He talked to SO #1 outside the office and then walked towards the main hall and into the elevator. SO #1 stayed in the doorway of the office while SO #2 spoke with the Complainant.

At 9:25 p.m., TCHC Special Constables arrived and one of them entered the security office.

At 9:28 p.m., SO #2 appeared to ask the Complainant to stand up. He complied and let his tissue fall onto the blue chair. SO #1 and SO #2 searched the Complainant’s pockets and the collar of his shirt. SO #2 removed keys on a lanyard from the Complainant’s right pocket. The Complainant then sat back down on the blue chair, with his hands handcuffed behind his back. He talked calmly for about the next eight minutes with SO #2, SO #1, and the two security officers.

At 9:31 p.m., SO #1 took control of the knife and the baseball bat, then left the building.

At 9:36 p.m., the Complainant remained on the plastic chair. He turned to his right, towards the right side of the office, and was facing and talking to SO #2. The Complainant suddenly fell backwards and to his left. The back of his head hit the backrest of the red plastic chair to his left. He rolled and fell, face forward onto the floor. At that time, SO #2 was standing along the right wall, five feet from the Complainant. WO #3 was standing in the doorway, four feet from the Complainant. The two security officers were behind the desk. No one else was present in the room.

SO #2 and CW #2 rushed to help the Complainant, followed by the Special Constable. They put the Complainant in the recovery position on his right side. The Complainant appeared to breathe heavily. WO #3 left the building and came back with a paramedic.

For about 17 minutes, four paramedics, SO #2, and the Special Constable attended to the Complainant.

Communications Recordings

Summary of Police Communications:

At 9:13 p.m., CW #2 called 911 and requested an ambulance. He then passed the phone over and CW #1 provided further details, including that the Complainant was still in the unit being detained by CW #2. He said the Complainant was not violent. He said a baseball bat with blood on it and a knife with no blood on it were present.

The security supervisor then took over the phone. He said the Complainant was in custody. The security supervisor was heard to instruct CW #2 to take the Complainant down to the security office.

At 9:15 p.m., SO #1 and SO #2 were dispatched, as were WO #1 and WO #2, along with several other police officers and WO #3.

At 9:23 p.m., WO #1 and WO #2 provided an update on the police radio including the fact that the Complainant was in custody in the security office.

At 9:27 p.m., SO #2 asked the dispatcher to check the Complainant on the police computer. She received a reply that the Complainant was noted to be violent but had nothing outstanding.

There were no radio transmissions related to the collapse of the Complainant until 10:04 pm, when WO #1 and WO #2 told the dispatcher they were following the ambulance to the hospital.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TPS:
  • Duty Roster for Police Officers on November 26/27, 2017;
  • Event Details Report;
  • 911 Call Recording;
  • Police Transmission Communications Recording;
  • Fingerprint sheet for the Complainant;
  • Notes for WO #s 1-10 and SO #s 1 and 2;
  • General Occurrence Report;
  • Occurrence Report(Sudden Death)(initial and full reports);
  • TPS Procedure: Arrest and Release;
  • TPS Procedure: Persons in Custody
  • TPS Procedure: Death in Police Custody;
  • TPS Procedure: Medical Emergencies;
  • Written Statement of an undesignated police officer.

The SIU obtained and reviewed the following materials and documents from other sources:
  • CCTV footage from TCHC building;
  • Ambulance Call Report;
  • Coroner’s Investigation Statement;
  • EMS Incident Reports (x4);
  • EMS Incident Summary Report;
  • Notes of TCHC Special Constables (x5); and
  • Report of Post Mortem Examination.

Relevant Legislation

Section 267, Criminal Code -- Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof, or
(b) causes bodily harm to the complainant, 
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 219 and 220, Criminal Code -- Criminal negligence causing death

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) 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
(a) 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
(b) in any other case, to imprisonment for life.

Analysis and Director's Decision

On November 26, 2017, a 911 call was received by the Toronto Police Service (TPS) requesting the assistance of police and ambulance at a Toronto Community Housing Corporation (TCHC) building in the City of Toronto. The callers, security officers from the building, were reporting that there had been an altercation between two of the residents in the building, resulting in the security officers placing one of the tenants under arrest and the other tenant requiring medical attention.

As a result of the 911 call, four police officers were dispatched to the address: Witness Officer (WO) #1, WO #2, Subject Officer (SO) #1, and SO #2.

While in the custody of the police, the Complainant, who had originally been arrested by the security officers but was then transferred over to the custody of SO #1 and SO #2, fell to the floor and lost all vital signs. He was later transferred to the hospital where he was pronounced dead at 1:07 a.m. on the 27th of November 2017.

Fortunately, the entire interaction between the police and the Complainant was recorded on a high quality audio/video recording, so there can be no question as to what occurred while the Complainant was in police custody. During the course of this investigation, in addition to obtaining the recording, two civilian witnesses (CWs) and three police witnesses, along with the two subject officers, were interviewed. The accounts of events provided by all interviewed was in accord with the audio/video recording and there is no dispute as to the facts.

Upon arrival of the first two police officers, WO #1 and WO #2, at the scene, they went up to the 6th floor of the building, where they attempted to obtain information from the other tenant involved in the altercation. The EMS also attended to assist that party, but he was uncooperative with both the police and paramedics and refused to provide either a statement or to be medically assessed.

While WO #1 and WO #2 were with the tenant on the 6th floor, SO #1 and SO #2 arrived and went to the security office in the building where the Complainant was in the custody of the security officers, in handcuffs, and under arrest for assault with a weapon.

The two security officers, CW #1 and CW #2, provided SO #1 and SO #2 with their grounds to believe that the Complainant had committed the offence of assault with a weapon contrary to s. 267 of the Criminal Code. CW #1 and CW #2 reported to SO #1 and SO #2 that, earlier in the evening, they had been summoned to the 6th floor by a witness who alerted them to a fight between the Complainant and his neighbour. Apparently there had been an ongoing dispute between the Complainant and his neighbour about the loud music emanating from the neighbour’s apartment. (Subsequently, when police attended the 6th floor to speak with the neighbour, they noticed that the neighbour had deliberately turned his speakers to face the wall which separated his apartment from that of the Complainant, presumably in an effort to harass and annoy the Complainant, which appears to have been successful).

When the security officers arrived at the neighbour’s apartment, they observed the neighbour tipped over in his wheelchair and bloodied, while the Complainant was armed with a baseball bat. The Complainant was then arrested by the security officers and the bat and a knife, which were found on the floor near the neighbour, were confiscated. The Complainant was described as cooperative and compliant, and he was handcuffed by the security officers and taken down to the office on the first floor.

From the time of the arrival of the Complainant and the two security officers on the main floor, the entirety of their interaction with the Complainant was recorded, as was the arrival of SO #1 and SO #2, at 9:23 p.m., and the entirety of their interaction with the Complainant.

It is clear from the video, as corroborated by the evidence of all witnesses, that upon police arrival at the security office, the Complainant, who was already in handcuffs, was spoken to by the police. After having received the grounds upon which the Complainant’s arrest was based, from the two security officers, the TPS officers agreed that there were reasonable grounds to arrest the Complainant and they took over the custody of the Complainant repeating to him the words of arrest, as well as providing the Complainant with his Charter rights to counsel and the standard police caution.
The Complainant was then observed to stand at 9:28 p.m., and the officers performed a brief pat-down search for weapons, finding none. The Complainant then resumed his seat and all of the occupants of the office, including the police and the security officers, continued to wait with the Complainant for the outcome of the interview with the neighbour. The Complainant then engaged in casual conversation with SO #1, SO #2, and the two security officers.

It is clear from the video that as they waited, the only physical contact between SO #1 and SO #2 and the Complainant was the brief pat-down search. Thereafter, SO #1 left the office, first to place the seized exhibits into his police cruiser, and then to speak with WO #3, who had arrived at the building. SO #2 and both CW #1 and CW #2 remained in the office and appeared to be writing in their notebooks and/or speaking with the Complainant. The Complainant seemed neither distraught nor upset, but in fact was described as apologetic, and was sitting calmly in his chair speaking with SO #2, when he suddenly fell backwards and then to his left, landing on the floor.

At the time of the Complainant’s collapse, SO #2 was standing approximately five feet away from where the Complainant had been seated and the two security officers were behind the security desk, while WO #3 was standing in the doorway, some four feet from the Complainant. SO #1 was not in the office at the time.

The video reveals that both SO #2 and CW #2 immediately rushed to the Complainant’s aid, followed by a TCHC special constable; WO #3 left the room and then returned with a paramedic.

Four paramedics, SO #2, and the TCHC special constable performed life-saving manoeuvres on the Complainant for 17 minutes, at which time he was removed from the office by paramedics and transported to the hospital, where he was pronounced dead at 01:07 a.m.

While section 25 (1) of the Criminal Code exempts any use of force by police officers if they are acting within their lawful duties and they use no more force than is justified and necessary to carry out those duties, I do not feel it necessary to delve into that section on these facts, as it is clear from the video that no force was used at any time by either of SO #1 or SO #2, or indeed any police officer, toward the Complainant.

Furthermore, it is clear that the arrest, based on the information from CW #2 and CW #1, was based on reasonable grounds and was therefore lawful. When SO #1 and SO #2 took over custody of the Complainant and repeated the words of arrest, they were entitled to act upon the information provided to them. As such, they were also acting on reasonable grounds and their actions were both lawful and legally justified.

In the absence of any indications that any TPS officer ever resorted to any use of force, whatsoever, however minor, as against the Complainant, out of an abundance of caution, I will address the only remaining avenue of criminal charges, that being a charge of criminal negligence causing death contrary to s.220 of the Criminal Code. There is no dispute that the death of the Complainant was not directly attributable to the actions of any TPS police officer, the only question being whether or not SO #1 and/or SO #2 failed in their duty toward the Complainant. Specifically, the question to be posed is whether SO #1 and/or SO #2 omitted to do anything that it was their duty to do and, in failing to do so, showed a wanton or reckless disregard for the life or safety of the Complainant (s.219 of the Criminal Code: definition of criminal negligence).

There are numerous decisions of the higher courts defining the requirements to prove an offence of criminal negligence; while most relate to offences involving driving, the courts have made it clear that the same principles apply to other behaviour as well.

In order to find reasonable grounds to believe that SO #1 and/or SO #2 committed the offence of criminal negligence causing death, one must first have reasonable grounds to believe that they had a duty toward the Complainant which they omitted to carry out, and that omission, pursuant to the decision of the Supreme Court of Canada in R. v J.F. (2008), 3 S.C.R. 215, represented ‘a marked and substantial departure from the conduct of a reasonably prudent person in circumstances’ where the police officers ‘either recognized and ran an obvious and serious risk to the life’ of the Complainant ‘or, alternatively, gave no thought to that risk’. The courts have also made clear that the risk of bodily harm to the Complainant must have been foreseeable to SO #1 and SO #2 (R. v Shilon (2006), 240 C.C.C. (3d) 401 Ont. C.A.)

I have no hesitation in finding that while the Complainant was in police custody, the police had a duty to ensure his safety in as much as they were capable of doing so. I further accept that while the Complainant was calmly seated in a chair in the security office, conversing with the officers, it was not foreseeable to anyone present, as is clear from the video recording, that the Complainant was in any distress, nor that there were any indications that he was in any type of medical crisis. As such, it is clear that the tragic death of the Complainant was not foreseeable in these circumstances and that the Complainant’s subsequent collapse was not in any way related to his treatment at the hands of the police officers tasked with ensuring his safety, or the security officers who had that duty prior to the arrival of the police.

Furthermore, it appears that rather than being criminally negligent in their duty toward the Complainant, all parties present acted quickly in response to his sudden collapse, in that they immediately engaged in life-saving techniques toward the Complainant, and WO #3 immediately pursued the paramedics, who were just leaving the scene, and had them return to the office to assist the Complainant.

On this record, I cannot find reasonable grounds to believe that the actions either of SO #1 or SO #2, or in fact any police officer, security officer, or TCHC special constable, satisfy any of the elements required in order to pursue a charge under s.220 of the Criminal Code in that they neither omitted to carry out any duty to act, nor did their actions amount to a marked and substantial departure from the conduct of a reasonably prudent person in their circumstances, and neither did they show a wanton or reckless disregard for the life or safety of the Complainant, and his subsequent collapse was totally unforeseeable in the circumstances.

On all of the evidence, it appears that the tragic death of the Complainant came about as a result of his medical history which unfortunately claimed his life and which was not in any way attributable to, or preventable by, the actions of any of the many police officers, paramedics, or TCHC staff who acted quickly and diligently to save that life, and there is no causal connection between the actions of any police officer and the death of the Complainant. On this record, I can find absolutely no basis for the laying of criminal charges and none shall issue.


Date: October 29, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit