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SIU Director’s Report - Case # 18-OCD-053

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 43-year-old male (the Complainant) on February 22, 2018, following an interaction with police.

The Investigation

Notification of the SIU

At approximately 7:05 a.m. on February 22, 2018, the North Bay Police Service (NBPS) notified the SIU of the custody death of the Complainant.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
 

Complainant:

43-year-old male, deceased


Civilian Witnesses

CW #1 Not Interviewed (Next of Kin)
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed

Witness Officers

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


Subject Officers

The SO Interviewed, notes received and reviewed


Incident Narrative

The circumstances surrounding the Complainant’s death are fairly clear on the information collected by the SIU in its investigation, which included statements from the subject officer, the witness officers involved in the struggle with the Complainant and his arrest, and several civilians who were present in and around the home at the time; a review of the police communications recordings and the data downloaded from the subject officer’s conducted energy weapon (CEW); and, the post mortem examination report, received by the SIU in March 2019. Shortly after 5:00 a.m. on February 22, 2018, a call was placed to the NBPS reporting a possible assault in progress involving CW #4 and the Complainant. The call was made by a neighbour of CW #4 who could hear loud noises and the sounds of a struggle coming from CW #4’s residence on Harris Drive. Some hours before their physical altercation, the Complainant had ingested a quantity of a number of drugs, including cocaine, hydromorphone and morphine. Shortly thereafter, he became extremely agitated and paranoid. The Complainant grabbed a golf club that was in the room and started swinging it at an imaginary person, who he believed was there to harm him and CW #4. CW #4 attempted to calm him down, but to no avail. The Complainant grabbed CW #4 by the hair and placed her in a headlock. By the time of the officers’ arrival, they were both on the floor.

The SO and WO #1 were dispatched and the first officers to arrive at the scene at about 5:11 a.m. They entered the home and made their way to a second floor bedroom, where they located CW #4 and the Complainant. The officers quickly separated the couple and CW #4 was ushered out of the bedroom. What followed was a physical struggle over several minutes in which the SO and WO #1, and, in its final stages, WO #6, attempted to subdue a belligerent and combative Complainant. The officers had great difficulty doing so owing to what was described as the Complainant’s “super human strength” and the perspiration covering his body. After several minutes of attempting to grapple the Complainant into submission, the SO deployed his CEW. The single discharge had no discernible effect and the struggle continued. In time, the officers were finally able to wrest control of the Complainant’s arms and secure them in handcuffs. Concerned for the Complainant’s health, arrangements were made to place a rush on the ambulance that had earlier been requested by the SO, who recognized in the Complainant someone suffering from a drug-induced psychosis. The Complainant’s breathing began to fail as they waited for the ambulance to arrive. The officers reacted by performing a sternum rub on the Complainant and WO #1 began to administer CPR. The paramedics arrived in the bedroom at about 5:28 a.m., took charge of the Complainant’s treatment and eventually transported him to hospital where he was pronounced dead at 6:21 a.m.

An autopsy was performed on the Complainant on February 23, 2018. The subsequent post mortem examination report described the cause of the Complainant’s death in the following terms: “Sudden death with no anatomical cause associated with acute-on-chronic cocaine and amphetamine abuse/intoxication, forcible struggle and possible excited delirium syndrome.”

Evidence

The Scene

The scene was located in a residential unit at a housing complex on Harris Drive in the City of North Bay. The unit was a two-story, single family, attached townhouse. The main floor consisted of a kitchen and combination dining room / living room, which was dirty, cluttered and unkempt. There did not appear to be any evidence of a recent struggle on the main floor. The basement area was finished and it also was cluttered, dirty and unkempt. The second story consisted of three bedrooms and a bathroom. Two of the bedrooms were dirty and unkempt, and the bathroom was cluttered with a television on the floor. The master bedroom was located at the north end of the hallway. The doorway was open and the light was on. The floor was cluttered with clothing and bedding, and a desk was turned over in front of the north wall. A blood smear was located on the north wall and an overturned stool was on top of the mattress. There were fresh holes in the west wall and there was a smashed mirror and broken bottles, which littered the floor. A pile of clothing was located on the floor in front of the closet (east wall). A golf club was located on top of the clothing and holes in the wall of the bedroom appeared consistent with having been caused by the head of the golf club. Located on the floor was evidence of a deployed CEW. There were white circular tablets on the floor and an open pill vial along with small Ziploc baggies. There was also a black handled knife stuck to the south wall of the bedroom (west of the entrance door). The residence was photographed, video recorded and measurements were obtained for a planned drawing.

Scene Diagram

Scene diagram

Physical Evidence


CEW Downloads


On February 22, 2018, at 2:15 p.m., SIU FIs received three sealed exhibit bags from the NBPS, which contained two CEWs and a deployed CEW cartridge case. The data contained in the second CEW (the CEW issued to WO #1) was downloaded and revealed that it was not used at the reported time of this incident. The data contained in the first CEW (the CEW issued to the SO) was downloaded and found to have been deployed once during the time of the incident. 

Police Officers’ Clothing


On February 22, 2019 at 2:25 pm, a NBPS FI turned over the external uniform clothing of WO #1 and the SO. The items were already secured in individual exhibit bags secured with evidence tape.

Forensic Evidence

On February 23, 2018, at the post-mortem, biological samples of the Complainant’s femoral blood, heart blood, and urine were submitted to the CFS for analysis. On March 5, 2019 documentation was received from the Office of the Chief Corner-Sudbury North Office. The documentation included a toxicology report and was dated April 17, 2018. The toxicology report indicated that the femoral blood showed signs of cocaine, benzoylecgonine, a pharmacologically inactive metabolic/breakdown product of cocaine formed in vitro and in vivo, which indicated that there was cocaine use sometime prior to death. The detected blood concentration of methamphetamine was associated with recreational use. Amphetamine can arise as a pharmacologically active metabolite of methamphetamine. Lidocaine was detected and confirmed; however, the laboratory did not have a method for the quantitation of lidocaine.

A genetic/molecular report from Invitae, which was a laboratory in San Francisco, was also received. The report was dated July 2, 2018, and related to molecular genetic testing. The molecular testing showed negative results and no pathogenic sequence variants were identified as contributors to the death; however, the possibility could not be completely excluded.

Expert Evidence


Post-Mortem


The post-mortem was conducted on February 23, 2018, at Health Sciences North – Sudbury Regional Hospital by a forensic pathologist.

The Final Post Mortem Report, dated March 2, 2019 and authored by the forensic pathologist who performed the post-mortem, describes the Complainant’s cause of death in the following terms: “Sudden death with no anatomical cause associated with acute-on-chronic cocaine and amphetamine abuse/intoxication, forcible struggle and possible excited delirium syndrome.”

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but none were located.

Communications Recordings

The following is a summary of police communications recordings pertaining to the incident:

At 5:04:39 a.m., a 911 caller reported a domestic at a residence on Harris Drive, which belonged to CW #4. She believed the man involved was called (first name of Complainant) and CW #4 and the Complainant were probably high on drugs and the domestic sounded physical. WO #1 and the SO were dispatched along with WO #6.

At 5:11:17 a.m., the SO was on scene and at 5:13:53 a.m., WO #6 requested EMS for a drug-induced psychosis. The dispatcher asked who the ambulance was for and WO #6 replied that it was for the Complainant. WO #7 was also dispatched and at 5:22:57 a.m., he requested a rush on the ambulance and noted that the Complainant was unresponsive and had difficulty breathing. At 5:27:32 a.m., WO #7 broadcast that the Complainant had not been breathing for a minute and a half and at 5:52:54 a.m., the SO was en route to the hospital in the ambulance.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NBPS:
  • Communications Recording;
  • 911 call Recording;
  • Calls to Ambulance Service Recording;
  • Photos of Injuries to the SO and WO #1;
  • Computer Aided Dispatch (CAD) Background Event Chronology;
  • Fingerprint Identification of the Complainant;
  • General Report;
  • Involved Persons Report;
  • Notes of WO #s 1-9, one Undesignated Police Officer, and the SO;
  • Occurrence Summary;
  • Police Firearm Acquired-CFP Report;
  • Standard Operating Procedure: Use of Force;
  • Standard Operating Procedure: Arrest; and
  • Supplementary Occurrence Reports (x3).

The SIU obtained and reviewed the following materials and documents from other sources:

  • Ambulance Call Report-Nipissing Paramedic Services;
  • Medical Records of the Complainant related to this incident, obtained with the consent of the Complainant’s next of kin;
  • Final Post Mortem Report dated February 3, 2019;
  • Diagnostic Test for Personal Disease History of the Complainant Report Prepared by a Clinical Molecular Geneticist; and
  • Toxicology Report date April 17, 2018.

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.

Section 219, 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.

Analysis and Director's Decision

For the reasons that follow, I am satisfied that there are no reasonable grounds to believe that the officers, including the SO, committed a criminal offence in connection with the Complainant’s death.

Pursuant to section 25(1) of the Criminal Code, police officers are limited in the force they may use to that which is reasonably necessary in the discharge of anything that they are required or authorized by law to do. Whether to prevent the continuation of an assault by the Complainant on CW #4, or arrest the Complainant for assaulting CW #4, or both, the officers were clearly engaged in the lawful exercise of their duties when they intervened in an effort to subdue the Complainant and take him into custody. While the officers may not have immediately appreciated that the Complainant was not of sound mind at the time, they had ample cause to believe he was assaulting CW #4 given what they knew of the situation from the information conveyed to them during their dispatch to the scene and what they witnessed firsthand upon their arrival. [1] Thereafter, given the formidable strength the Complainant displayed in resisting the officers’ efforts to arrest him, I am satisfied the officers restricted their use of force to that which was reasonably necessary in the circumstances. In the main, this appears to have been a grappling match between the Complainant and the officers; the latter attempting to gain control of the Complainant’s arms and legs (made difficult by the perspiration on the Complainant’s body), the former flailing his limbs against the officers’ efforts. While a CEW was used against the Complainant during the struggle, it appears to have had no effect on his recalcitrance. It was only with the arrival of WO #6 that the officers managed to handcuff both of the Complainant’s hands, bringing the struggle to an end. It should be noted that both officers reportedly suffered injuries in the altercation, which, while apparently not serious, is some further indication of the violence with which the Complainant resisted their efforts. In my view, the officers’ use of force on this record was measured, proportional and within the latitude prescribed by the criminal law.

What remains of the officers’ potential criminal liability is the question of the care they provided the Complainant following his arrest. Here too I am satisfied that the officers’ conduct fell within the limits of the criminal law. It bears noting that the first request for an ambulance was made by the SO in the middle of his struggle with the Complainant, as soon as it appeared to the officer that the Complainant was not in the right frame of mind and might be in the throes of a drug-induced psychosis. That request was reiterated with greater urgency at about 5:22 a.m. after the handcuffs were applied to the Complainant, shortly before his breathing became laboured. The paramedics arrived at the scene at about 5:28 a.m. In the interim, the officers had placed the Complainant on his side in the recovery position, applied sternum rubs and begun CPR. WO #1 was offered the use of an injectable naloxone kit by CW #4, but declined to administer it to the Complainant as he had not been trained in its injection. Without commenting on the officer’s decision, it was very likely of no consequence vis-à-vis the types of drugs said to have contributed to his death. On balance, there is insufficient evidence in my judgment to believe the officers committed any criminal offence based on a want of care toward the Complainant while they waited for the paramedics to arrive.

Returning to the findings of the post mortem examination report, indicating that the officers’ struggle with the Complainant was associated in some degree to his death, I accept that there may well be a causal element between the officers’ interventions and the Complainant’s unfortunate passing. Be that as it may, however, and for the foregoing reasons, I find no basis for proceeding with criminal charges against the subject officer, the SO, or either of the witness officers, WO #1 and WO #6, as there are no reasonable grounds in my view for believing that those interventions were anything but lawful. This file is closed.


Date: April 9, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) It should also be noted that the officers’ entry into a private premise was entirely lawful given the information they had at their disposal regarding an assault in progress and the exigencies of the situation (see section 529.3 of the Criminal Code). [Back to text]