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SIU Director’s Report - Case # 18-PCI-302

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 serious injuries sustained by a 30-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On October 8, 2018, at 1:00 p.m., the Ontario Provincial Police (OPP) notified the SIU of an injury to the Complainant.

The OPP reported that at 8:30 a.m., police officers attended a building located on Ontario Street to check on the well-being of the Complainant. When the police officers arrived, the Complainant barricaded himself in his apartment. Police officers from the Tactics and Rescue Unit (TRU) and Emergency Response Team (ERT) responded to the scene.

A TRU officer was standing on a fire services vehicle’s ladder outside the Complainant’s window. The Complainant jumped out of his residence’s window. The TRU officer grabbed the Complainant but the Complainant broke free and fell to the ground.

The Complainant was subsequently transported to Collingwood General and Marine Hospital and diagnosed with broken legs. 
 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

Complainant:

30-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Not interviewed (Next-of-kin)
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

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


Evidence

The Scene

The interior scene was located inside the bedroom of an apartment on Ontario Street in Collingwood.

The exterior scene was located on the front grassy lawn approximately five feet away from the apartment building.

Physical Evidence

SIU examination of the scene revealed relevant items of evidence as follows:
  • A knife with a ten-centimetre blade;
  • Three less lethal firearms; [1]
  • Eleven less lethal firearm cartridge cases;
  • Eleven less lethal firearm projectiles;
  • A police service shield;
  • A black jacket [later identified as belonging to the Complainant] with Conducted Energy Weapon (CEW) probes attached;
  • A battering ram, and
  • A CEW.

The knife that was recovered from the scene.
Figure 1 - The knife that was recovered from the scene.

Forensic Evidence


CEW Analysis:


An examination of WO #2’s CEW indicated that it had been deployed one time on October 8, 2018, at 12:56 p.m., for a period of 15 seconds.

Video/Audio/Photographic Evidence


Cellular Phone Video Recording


As a result of a canvass, the SIU received and reviewed the cellular phone video recordings of the incident from a witness. The video recordings did not have any time stamp and depicted the following:

  • A fire services vehicle arrived at the parking lot outside the Complainant’s apartment building. Two TRU officers [later identified as SO #1 and SO #2] stood inside a bucket attached to the end of the ladder.
  • The aerial bucket rose high and stopped approximately two feet away from the Complainant’s bedroom window.
  • SO #2 yelled at the Complainant that he wanted to talk to the Complainant.
  • A flash of light [later identified as caused by a stun grenade] was observed inside the Complainant’s bedroom followed by a loud bang.
  • SO #2 discharged five rounds from his less lethal firearm at the Complainant.
  • The Complainant placed both his hands onto the window sill and leapt towards
  • SO #1 and SO #2.
  • The Complainant hung on the upper ledge of the aerial bucket.
  • SO #1 and SO #2 leaned over the edge of the bucket and held onto the Complainant’s black jacket.
  • The Complainant slipped through the jacket and hung on the lower ledge of the aerial bucket with one hand.
  • A TRU officer [later identified as WO #1] leaned out of the Complainant’s bedroom window attempting to grab the Complainant.
  • The Complainant lost his grip and fell to the ground.
  • A loud bang [later identified as a round being discharged from WO #3’s less lethal firearm] was heard followed by inaudible shouting.


Closed-Circuit Television (CCTV) Recordings – Ontario Street Residence


The SIU canvassed for CCTV within the area and found one located at the front entrance of the Complainant’s building. The recordings did not have any sound and depicted the following:
  • At 12:20:51 p.m., a large fire services vehicle arrived at the parking lot of the Complainant’s apartment building.
  • At 12:25:08 p.m., the aerial bucket was lowered and a dark jacket [identified as belonging to the Complainant] was on top of the aerial bucket.
  • At 12:33:00 p.m., the Complainant was transported by a stretcher into an ambulance.

Communications Recordings

The SIU received and reviewed the communications recordings from OPP. The communication recordings captured the following:

  • At 10:23:03 a.m., WO #2 transmitted over the radio to deploy the TRU canine followed by firing less lethal firearm rounds at the Complainant if he exited his bedroom.
  • At 10:47:50 a.m., SO #2 transmitted over the radio that he was positioned above the Complainant’s bedroom window. The Complainant continued to talk to himself while negotiators asked the Complainant if he wanted cigarettes. The Complainant made a large hole in his bedroom door and covered it with a pillow.
  • At 11:03:08 a.m., an OPP Staff Sergeant transmitted over the radio that he was concerned about SO #2 rappelling from the roof of the apartment building to the Complainant’s bedroom window. The officer transmitted over the radio that a fire services vehicle equipped with an aerial bucket was available.
  • At 11:15:51 a.m., SO #1 and SO #2 decided to use a fire services vehicle equipped with an aerial bucket.
  • At 11:37:08 a.m., the OPP Staff Sergeant transmitted over the radio that SO #1 and SO #2 would be positioned in the aerial firetruck ladder to prevent the Complainant from exiting the window. WO #2 transmitted over the radio that his team [later identified as WO #1, WO #4 and two undesignated officers] would enter the Complainant’s bedroom and deploy a stun grenade.
  • At 11:49:07 a.m., the OPP Staff Sergeant transmitted over the radio that the Complainant was standing near his bedroom holding a knife in each hand.
  • At 12:03:28 p.m., WO #2 transmitted over the radio that they were entering the Complainant’s bedroom. An unknown TRU officer transmitted over the radio that the Complainant had jumped out of his bedroom window.
  • At 12:04:59 p.m., SO #1 transmitted over the radio that the Complainant was lying on the ground and he had pulled a knife out of the Complainant’s hand before he fell off the aerial bucket. SO #1 transmitted over the radio that the Complainant had jumped on to the aerial bucket and tried to stab SO #1 before he slid through his jacket and fell to the ground.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP Collingwood Detachment:
  • Event Chronology (x4);
  • OPP Communication Recordings;
  • List of involved officers and their roles;
  • Notes of all witness and subject officers; and
  • Critical Incident Information Form.

Incident Narrative

The material events in question are clear on the information collected by the SIU, which included statements from the subject officers, the Complainant and several firefighters in and around the area at the time, as well as a cell phone video recording that captured the Complainant’s fall. In the morning of October 8, 2018, OPP officers arrived at the Complainant’s residence on Ontario Street to check on his well-being. They had received a call about the Complainant barricading himself in his room. The Complainant refused the officers entry into his bedroom and told them he was armed with knives. With the mention of weapons, the OPP mobilized its Emergency Response Team (ERT) and Tactics and Rescue Unit (TRU).

The first TRU officers arrived at the scene between 10:00 and 10:30 a.m. Among them were SO #1 and SO #2. As the two discussed options for entering the Complainant’s bedroom from the exterior of the building through the bedroom window, other TRU officers gathered outside the Complainant’s bedroom door. They asked the Complainant to come out of the room. He refused, told them he had knives and threatened to kill them. SO #1 and SO #2 considered rappelling from the roof down to the bedroom window, but abandoned that idea given the risk that the Complainant, armed with knives, might cut their rope. Instead, with the arrival of a fire services truck at the scene, they decided to use the truck’s aerial bucket.

SO #1 and SO #2 entered the bucket and were raised into position by one of the firefighters. The Complainant, with knives in his possession, waved them angrily in the officers’ direction as SO #1 and SO #2 approached the Complainant’s bedroom window. SO #2 asked the Complainant to put the knives away and explained they were there to speak with him. As the bucket became level with the Complainant’s window, the TRU officers inside the apartment broke through the bedroom door with a battering ram. Once inside the bedroom, a stun grenade was deployed, following which WO #4 discharged his ARWEN five times and WO #2 his CEW once for a cycle of 15 seconds. At around the same time, SO #2 aimed and fired his ARWEN five times in the Complainant’s direction though the bedroom window. The CEW and ARWEN discharges failed to immobilize the Complainant, perhaps in some measure because he was holding a mattress in front of him. The Complainant jumped through the screen of his open bedroom window and, with a knife in hand, leapt toward the aerial bucket.

The Complainant never managed to make it inside the bucket. He struck the front wall of the bucket and was grabbed by both SO #1 and SO #2, who attempted to hold him to prevent him from falling. Neither officer was able to get a firm hold of the Complainant, who slipped further down the bucket, momentarily grabbing hold of the bucket’s lower ledge before losing his grip and falling to the ground.

Once on the ground, the Complainant was approached by another TRU officer, WO #3. The officer said he observed the Complainant with a knife in his hand and attempting to get up. He shot the Complainant once with his ARWEN, following which the Complainant was arrested and transported to hospital by paramedics.

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.

Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm

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.

221 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.

Analysis and Director's Decision

The Complainant fell from the bedroom window of his residence on October 8, 2018 in Collingwood, sustaining broken legs in the process. Two OPP TRU officers, SO #1 and
SO #2, had attempted to prevent him from falling. For the reasons that follow, there are no reasonable grounds in my view to believe that either officer committed a criminal offence in connection with the Complainant’s injuries.

There are two issues that require examination with respect to the officers’ potential criminal liability, namely, was the force used against the Complainant legally justified, and, did the officers cause or contribute to the Complainant’s injuries by way of criminal negligence. Turning first to the issue of the officers’ use of force, section 25(1) of the Criminal Code provides that police officers are exempt from liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. The officers, including the TRU officers, were lawfully in the area to take the Complainant into custody. Whether pursuant to the Mental Health Act or the Criminal Code, the Complainant was quite clearly suffering from a mental disorder at the time and in possession of knives with which he threatened to harm himself and others, and was clearly subject to legal apprehension. The situation was fraught with danger, and the officers were entitled to proceed on the basis that the Complainant was ready and able to inflict grievous bodily harm or death given the opportunity.

When a period of time had passed with the officers unable to convince the Complainant to exit his bedroom, they opted for a more aggressive posture. I am unable to find fault with their decision to do so given the exigencies of the situation. While SO #1 and SO #2 made their way up to the Complainant’s bedroom window from the outside, other TRU officers entered and immediately deployed force in an effort to disarm the Complainant. Regrettably, despite the significant force that was expended, ten ARWEN rounds and a CEW discharge, the Complainant retained possession of a knife and was able to jump through the window in an ill-fated attempt to land on the aerial bucket. On this record, I am satisfied on reasonable grounds that the force used by the officers was measured, proportional to the threat at hand, and reasonably necessary in the circumstances.

Once on the ground, the Complainant was struck with one further ARWEN discharge. This final shot is disconcerting. Though WO #3 claims he saw a knife in the Complainant’s possession at the time, there is other evidence to suggest he had a single knife in his hands when he jumped, which fell ahead of him to the ground. Be that as it may, the knife would at the very least have been close to the Complainant on the ground and reasonably accessible, and I am therefore prepared to give WO #3 the benefit of the doubt on this issue given the volatility of the events around him. In arriving at this conclusion, I have in mind the common law principle that affords police officers some latitude with respect to the force they adopt in dynamic circumstances; what is required is a reasonable response, not an exacting one.

This leaves for consideration the issue of criminal negligence causing bodily harm contrary to section 221 of the Criminal Code, which may be dealt with in short order. The offence is predicated, in part, on conduct that amounts to a marked and substantial deviation from the level of care that a reasonable person would have exercised. Without dealing again with the force that was used, which I believe is best resolved under section 25(1) of the Criminal Code, I have no hesitation in finding that the TRU officers, including SO #1 and SO #2, conducted themselves throughout the standoff with the Complainant in a professional manner. They attempted to negotiate with the Complainant, to no avail. It was apparent that the Complainant was not in a sound state of mind, and a more proactive approach was in order. They considered their options and decided to forcibly enter the bedroom while 

SO #1 and SO #2 approached the room from its only other access point. While that tactic may have prompted the Complainant to jump through the bedroom window, I am satisfied it was one reasonably open to the officers. Finally, when the Complainant leapt in the direction of the aerial bucket, SO #1 and SO #2, at risk to their own safety, did what they could to grab hold of the Complainant and prevent his fall. In the final analysis, the officers’ conduct in my view leaves no room to reasonably conclude that they transgressed the limits of care prescribed by the criminal law.

In the result, there being no reasonable grounds to believe the officers used excessive force or were otherwise criminally negligent, there is no basis to proceed with charges in this case and the file is closed.


Date: September 13, 2019



Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) A less lethal firearm known as Anti Riot Weapon Enfield (ARWEN) was used to launch non-lethal rounds with a maximum launch capacity of five rounds. [Back to text]