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SIU Director’s Report - Case # 17-OCI-377

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 serious injury reportedly sustained by a 44-year-old male (the Complainant) during his apprehension on December 25, 2017.This report relates to the SIU’s investigation into the serious injury reportedly sustained by a 44-year-old male (the Complainant) during his apprehension on December 25, 2017.

The Investigation

Notification of the SIU

At approximately 6:54 p.m. on December 25, 2017, the Peel Regional Police (PRP) notified the SIU of a custody injury to the Complainant.

The PRP reported that at 2:15 p.m. on that afternoon, WO #2, SO #1, SO #2, and WO #1 responded to a Mental Health Act (MHA) call at the Complainant’s residence in the City of Brampton. Upon arrival, the Complainant began stabbing himself. The Complainant had apparently advised his wife, who was on scene and may still have been there at the time of the call, that he was going to do this in front of her. Two Conducted Energy Weapons (CEWs) were possibly deployed and were believed to still be at the scene at the time of this notification. The stab wounds were originally thought to be superficial; however, the Complainant was transferred to a hospital in Toronto and diagnosed with fluid on the heart that would require surgery. All officers had gone off duty at the time of the notification, but had completed their notes.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
 
On December 25, 2017, at 11:48 p.m., the SIU Forensic Investigator (FI) attended the relevant PRP Division and downloaded the data from two CEWs that were deployed during this incident. A CEW was reportedly deployed by SO #2 at 2:15 p.m., and a second CEW was reportedly deployed by SO #1 at 2:16 p.m.

On December 26, 2017, at approximately 12:30 a.m., CW #1 provided the SIU investigators with a hospital property bag containing various items of clothing that the Complainant had been wearing during the incident. The bag was examined by an SIU FI on December 27, 2017, and contained the following items: shoes, socks, underwear, track pants, a black tank top, a blue towel, a white towel, and a blue long-sleeved sweater. Upon examination, it was determined that the black tank top contained three (3) visible cut/tear marks in the vicinity of the left chest; there was blood staining around the marks. There was also a CEW probe embedded in the lower right front portion of the black tank top.

Complainant:

44-year-old male, interviewed

Civilian Witnesses

CW #1 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 #4 and WO #5 were designated as witness officers, but after a review of their duty notes it was apparent that they had arrived well after the incident and, as a result, no interview was conducted.

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


Incident Narrative

At 1:51:09 p.m. on December 25, 2017, a 911 call was received by the PRP communications centre; the call was a hang up. When the communications centre called back, the call was answered by CW #1. The 911 operator asked if everything was okay, if the police were required, and if a firearm had been discharged. While no one spoke directly to the operator, there was yelling heard in the background indicating that someone was in crisis. Enquiries were then made of the number associated with the telephone from which the call was made, which revealed the name, address, and the fact of a previous suicide attempt at that residence by the Complainant; the police were dispatched to the residence.

Upon arrival of the police at the residence, they knocked on the door and CW #1 let them in. The Complainant was seen by the police officers to be in possession of two knives and standing near the basement stairs, placing him between CW #1 and the police officers. The Complainant suddenly went downstairs and the police officers followed. CW #1 remained in the living room, from where she could hear the police officers saying, “Drop the knives.” CW #1 then went to the basement, where she saw the Complainant lying on the floor handcuffed and bleeding heavily from the chest.

Later investigation of the scene revealed that each subject officer had deployed his CEW at the Complainant.

Nature of Injuries / Treatment

The Complainant was assessed and discovered to have sustained a knife injury to the left side of his chest, very close to his heart. The Complainant underwent exploratory surgery to see if his heart had been damaged and it was found that it had not.

The deployment of the CEWs did not cause any injury to the Complainant.

Evidence

The Scene

The scene was located in the basement of the Complainant’s residence in the City of Brampton. The residence was a semi-detached home comprised of two floors above grade and one floor below grade. The basement stairs were quite narrow, with 4 stairs leading to a landing as one descended, and then a right hand turn and 6 stairs leading from the landing to the basement floor. The incident took place in a room to the left of the stairs.
Once on scene, the SIU FI located CEW wire on the stairs that led to the basement. In the basement, more CEW wire and a probe were located near the laundry room entrance. A short hallway led to a family room where Anti-felon Identification (AFID) tags from a CEW were visible on the family room floor; the room was crowded with furniture and personal possessions. A blue and white colored towel lay next to a pool of dried blood. Three CEW blast doors were near the pool of dried blood and two CEW probes were visible. A black handled steak knife was resting beneath a wooden chair near the medical debris on the floor.

Physical Evidence

The knife in the possession of the Complainant.

The knife in the possession of the Complainant.


CEW Download Data

On Monday, December 25, 2017, at 11:48 p.m., the SIU FI attended the PRP Division and was provided with the two CEWs that had been in the possession of SO #1 and SO #2 during the incident.  


CEW in possession of SO #1:

At 12:24 a.m., on December 26, 2017, the battery was inserted into the CEW of SO #1 and it was dry-fired to establish a benchmark; the data from that CEW was then generated and downloaded at 12:26:40 a.m. The complete data report is 34 pages in length, and the portions pertinent to this investigation have been reproduced below. The specific events relative to this incident are at sequence number 1157, when SO #1 armed his CEW, and sequence number 1158, when he deployed his CEW at the Complainant. 

CEW in possession of SO #1


CEW in possession of SO #2:

The CEW which had been assigned to SO #2 was also examined. At 12:35 a.m. on December 26, 2017, the battery was inserted into this weapon and it was dry-fired to establish a benchmark; the data from this CEW was downloaded. The CEW’s offline download report, which was generated at 12:35:48 a.m., was 34 pages in length, the events pertinent to this investigation are reproduced below. The specific events relative to this incident are sequence number 991, when SO #2 armed his CEW, and sequence number 992, when SO #2 deployed his CEW at the Complainant.

CEW in possession of SO #2

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

As the incident occurred inside a private residence, no video/audio recordings or photographic evidence was available.

Communications Recordings

The 911 call recordings and the police transmission recordings were obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:
  • 911 Call Recording;
  • Police Transmissions Communications Recording;
  • Event Chronology; and
  • Notes of WO #s 1-5.

Relevant Legislation

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
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) 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.

Analysis and Director's Decision

On December 25, 2017, at 1:51:09 p.m., a 911 call was received by the PRP communications centre; the call was a hang up. When the communications centre called back, the call was answered by CW #1.

The 911 operator asked if everything was okay, if the police were required, and if a firearm had been discharged. While no one spoke directly to the operator, there was yelling heard in the background indicating that someone was in crisis. After the call was again disconnected, enquiries were made of the number associated with the telephone from which the call had been made, which revealed the name, address, and the fact of a previous suicide attempt at that residence by the Complainant; consequently, police were dispatched.

While the Complainant, when interviewed by SIU investigators, had little recall of the incident in which he sustained the injuries relevant to this report, and both subject officers declined to provide statements or their notes for review, with the assistance of CW #1 and the witness police officers, a reliable summary of the events leading to the injuries sustained by the Complainant was able to be formulated. There is no dispute as to the facts.

On December 25, 2017, CW #1 became concerned about the Complainant’s behaviour due to a number of unusual and bizarre things that he had said and done. During an argument between CW #1 and the Complainant, the Complainant went to the kitchen and grabbed two knives. CW #1 believed that she then inadvertently hit the 911 speed dial button on her cell phone, thereby contacting the police. When her phone rang shortly thereafter, and she was questioned by the 911 operator as to what was happening and if police assistance was required, she did not know what to say, so she handed the phone to the Complainant while they continued to argue.

The 911 operator believed that she heard a male voice in the background say words to the effect of “shots in front of you,” as well as hearing that the male had just texted his sister a message indicating his intention to end his life, while a female voice repeatedly yelled, “Oh my God!”

After querying the telephone number, an address in the City of Brampton was obtained from the cell phone provider. Information that the address was associated with prior suicide attempts was obtained from the police database. Police were then dispatched to investigate.

Prior to the arrival of the police, the Complainant took two knives and went into the front hall of the home, where he held one knife in each hand at chest level. CW #1 sat down on the couch and spoke to the Complainant, trying to calm him.

At that point, there was a knock at the door and, when CW #1 opened the door, she discovered SO #1, SO #2, and WO #1, and she invited them in. One of the police officers told CW #1 that a gunshot had been reported from the home, and CW #1 informed him that there were no firearms in the house.

While the Complainant recalled seeing someone at the front door, he could not recall who it was or what happened at that point.

CW #1 then described the Complainant as leaping down the stairs to the basement, in a kneeling position, with the police officers following. CW #1 heard one of the police officers say, “He’s got a knife.” When CW #1 went downstairs, she saw the back of one police officer, who had his arms up and extended out in front of him, saying, “Put the knife down.”

WO #1 advised that upon arrival, he went to speak with CW #1 in the kitchen, while SO #2 and SO #1 spoke to the Complainant. WO #1 observed the Complainant on his knees near the top of the basement stairs.

After two or three minutes, WO #1 heard either SO #2 or SO #1 indicate, “He’s got a knife,” whereupon WO #1 quickly turned to look at the Complainant, heard a tripping sound, and saw the Complainant jumping down the basement stairs. WO #1 followed SO #2 and SO #1 down the stairs, and heard both officers repeatedly ordering the Complainant to drop the knife.

At the bottom of the stairs, WO #1 saw the Complainant tumble backwards and heard an officer yell, “Taser” twice, whereupon he observed SO #2 and SO #1 simultaneously deploy their CEWs, once each.

The CEW download data from the CEWs in the possession of SO #2 and SO #1 at the time, confirm that SO #2 deployed his CEW once at 1416:11 hours (2:16:11 p.m.) for a period of five seconds, while SO #1 deployed his CEW once at 1416:33 hours (2:16:33 p.m.), for a period of seven seconds.

WO #1 observed the Complainant fall onto the floor after the CEW deployments, landing on his back at the bottom of the stairs. WO #1 observed that the Complainant had two tiny puncture wounds in his chest area and there was blood on his chest and on the floor. WO #1 and SO #1 immediately applied pressure to the wounds and an ambulance was summoned to the scene.

WO #1 did not see how the Complainant was stabbed, but he heard SO #2 and SO #1 state that the Complainant had stabbed himself in front of the other officers at the bottom of the stairs when they told him to drop the knife. This was also overheard by WO #2, who arrived to assist and located a knife (with a blade about 6 inches in length) under a chair to the left of where the Complainant had fallen, and by CW #1, who heard the officers telling the paramedics, upon their arrival, that a “Taser had been deployed” and that the Complainant had stabbed himself and had two stab wounds.

The Complainant advised that he remembered rolling down the basement stairs and ending up at the bottom, where he felt a pain in his chest and, when he looked down, he saw a knife stuck in his chest. The Complainant could not recall how the knife came to be in his chest. The Complainant also recalled seeing someone with a badge and a yellow gun (CEW) and he did a “jig” [1] on the floor, after which he was handcuffed. The Complainant could not recall ever having had two knives in his hands.

While one can infer from the Complainant’s evidence that he was stabbed as a result of his rolling down the stairs with a knife or knives in his hand, this appears inconsistent with the injuries, which were shallow, and the presence of two stab wounds, and not the one which the Complainant described as a result of seeing the knife sticking out of his chest.

On all of the evidence before me, including that of the Complainant himself, which evidence is somewhat confused, I have no hesitation in finding that the Complainant, of his own accord, either leapt or rolled down the stairs from a kneeling position at the top of the stairs, and that he either stabbed himself inadvertently, as a result of falling with knives in his hands, or deliberately, when he stabbed himself at the bottom of the stairs. On either version, it is clear that the deployment of the CEWs neither caused nor contributed to the injuries sustained by the Complainant.

I also find that the deployment of the CEWs was necessary in order to disarm the Complainant and prevent him from causing himself any further injury.

Therefore, on all the evidence before me, I find that there is an absence of any evidence from which it could be inferred that the deployment of the CEWs by either of SO #2 or SO #1 was the source of the Complainant’s injuries, or that the deployment amounted to an excessive use of force in these circumstances.

While it may well be that a single deployment of a CEW may have achieved the purpose of disarming the Complainant, I find, without reluctance, that due to the fluid and fast pace at which things were moving once the Complainant left the top of the stairs, that the officers did not have the luxury of consulting on next actions, but each almost simultaneously drew and discharged his CEW in efforts to reduce any harm that the Complainant might inflict upon himself.

In so finding, I am reminded of the dictates of the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, that: 
 
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 conclusion, I find that the police officers were legally present inside the Complainant’s home, after having been invited in by CW #1, and acting in response to the 911 call in which there had been an indication that the Complainant might be attempting to take his own life, and that they were therefore acting pursuant to their lawful duties. I further find that their actions in deploying their CEWs at the Complainant were reasonable, lawful, and no more than was justified and necessary in the circumstances, and their actions are therefore exempt from prosecution pursuant to s. 25 (1) of the Criminal Code. As I lack the reasonable grounds to form the belief that either officer acted outside of the limits of the criminal law, I lack the grounds for the laying of criminal charges and none shall issue.



Date: November 14, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) I assume that this describes the movements that would have resulted due to the electrical current in his body from the deployment of the CEWs. [Back to text]