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SIU Director’s Report - Case # 19-OCI-046

Contents:

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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 40-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On March 1, 2019, at 1:35 a.m., the Peel Regional Police (PRP) notified the SIU of an injury to the Complainant.

The PRP reported that on February 28, 2019, at 8:48 p.m., police officers responded to the area of Lakeshore Road West in Mississauga after a man called to say someone had been chasing him and shooting at him. When the police officers arrived, they spoke to the caller, identified as the Complainant. It became apparent that there was no shooter, and the Complainant began acting in a very erratic and bizarre manner. The police officers decided that the Complainant should be apprehended under the Mental Health Act (MHA). The Complainant resisted attempts to gain control of him, and seven police officers were needed to bring him under control. The Complainant was sedated by Emergency Medical Services (EMS), then transported to the Trillium Health Partners - Queensway Health Centre (THP-QHC).

On March 1, 2019, at 1:25 a.m., it was learned that the Complainant had three cracked ribs. 
 

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
CW #10 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed


Police Employee Witnesses

PEW Interviewed


Subject Officers

SO #1 Interviewed, but declined to submit 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


Evidence

The Scene

The south side of Lakeshore Road West near the intersection of Lakeshore Road West and Wesley Avenue in Mississauga.

Video/Audio/Photographic Evidence


Summary of Closed-Circuit Television (CCTV) Recording from Lakeshore Road West Business


The Complainant walked in the business to the reception desk and sat down in a chair. He walked over to CW #2’s desk, picked up the phone and started talking.

A uniformed police officer walked in the east entrance and to the centre of the room and then stopped. The police officer spoke to the Complainant from a distance. The Complainant walked towards the southwest door, and then walked out the door to the street. The police officer followed the Complainant. A second uniformed police officer ran in the east entrance followed by a plainclothes police officer. The second uniformed police officer ran out the southwest door after the first uniform police officer.

A marked police cruiser with the emergency lights on pulled up eastbound and stopped in the westbound curb lane. The emergency lights were left activated. Three police officers ran to the south side of Lakeshore Road West.


Summary of cellphone video


The Complainant was sitting in a chair in front of CW #2’s desk. The Complainant had a phone to his ear, yelling that his life was in danger.

CW #2 and CW #8 told the Complainant to relax. The Complainant stood up with the phone still to his left ear yelling the staff was “in on it now.” He put down the phone and walked to the reception area.
The Complainant picked up a chair, carried it towards CW #2’s desk and sat in it. CW #2 told the Complainant to relax. The Complainant remained seated in the chair, thrashing his head left to right while exhaling loudly from his mouth.

Outside, the Complainant was off the road on the south side of Lakeshore Road West. Two uniformed police officers knelt down, yelling commands. A sound of deployed conducted-energy weapon (CEW) was heard.

Communications Recordings


Summary of communication recordings


A 911 phone call was made by the Complainant, who complained he was being chased by someone with a gun or pellet gun. The Complainant said he was doing cocaine, he did not have cocaine psychosis; he did not require emergency medical service, and he was not injured.

CW #3 phoned 911 to report the Complainant was in the business, screaming people were chasing him. CW #3 said he thought the Complainant was on something. One police officer had arrived.

The Complainant phoned PRP; he screamed his life was in danger.

Forensic Evidence


Summary of the CEW download


SO #2’s CEW was deployed at 8:49:03 p.m. for a duration of four seconds.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP:
  • Disclosure Log (x2)
  • Emotionally Disturbed Person Report;
  • Event Chronology;
  • Communication recordings – 911 and radio;
  • Location Log;
  • Notes of the witness officers and PEW;
  • Occurrence Details;
  • Patrol zone sheet;
  • Plainclothes schedule;
  • Procedure-Mental Health;
  • Procedure-Incident Response;
  • Procedure-Criminal Investigations;
  • Un-redacted Audio Report 45 files;
  • Un-redacted Audio Report 9 files; and
  • Use of Force Training dates for last two years.

Materials obtained from Other Sources

Upon request the SIU obtained and reviewed the following document from other sources:
  • Ambulance Call Report (×3) and Incident Report from Peel EMS;
  • Medical records from THPQHC;
  • Medical records from Credit Valley Hospital;
  • Cell Phone Videos; and
  • CCTV recording from Lakeshore Road West business.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included statements from the Complainant, a number of witness officers who had hands-on involvement in the Complainant’s apprehension, and several civilian eyewitnesses. The investigation also benefited from video recordings of various parts of the incident captured by a surveillance camera and a witness’s cell phone. At about 8:30 p.m. on February 28, 2019, PRP received a 911 call from a business on Lakeshore Road West in Mississauga. The Complainant had barged into the building in a highly agitated state claiming he was being chased and shot at. Someone in the building was suspicious of the claim. Believing the Complainant was impaired by drugs, he conveyed as much to the police and noted that the Complainant had left the premises traveling east on Lakeshore Road West.

At about 8:45 p.m., the police received another series of 911 calls. The Complainant was now at another business on Lakeshore Road West, telling its employees that people were trying to kill him. The employees tried in vain to calm him and then also called the police to report their concerns with the Complainant’s erratic behaviour.

The first officer on scene was WO #1. He pulled onto the driveway on the east side of the business, exited his vehicle and entered the business through the east door, and confronted the Complainant. The officer tried speaking with the Complainant and then chased after him as the Complainant bolted out through the southwest doors. The Complainant had darted out into the westbound lanes of Lakeshore Road West and was almost struck by a vehicle. Other officers were also arriving at the scene, including SO #1 and his escort that day, the PEW. The Complainant was on the roadway and the officers were concerned for his safety. WO #1 and SO #1 took hold of the Complainant and guided him off the roadway south and across from the business, whereupon the Complainant was taken to the ground.

Once on the ground, the Complainant resisted as the officers attempted to secure him in handcuffs. He refused to surrender his arms, flailed his legs and tried to push himself up from the ground. The officers – some half-dozen around him on the ground – responded by attempting to outmuscle the Complainant into submission; no kicks, punches or blows of any kind were struck by the officers. At one point, with the officers still experiencing difficulty securing the Complainant’s hands, SO #2 drove his CEW into the Complainant’s buttocks and delivered a four second discharge. The deployment failed to quell the Complainant’s fight. In due course, however, the officers were able to assert their greater numbers and wrestle the Complainant’s arms behind his back, at which point he was handcuffed. No further force was used by any party.

Following his arrest, the Complainant was taken to hospital for psychiatric assessment.

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 17, Mental Health Act -- Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;
(e) serious bodily harm to another person; or
(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

Analysis and Director's Decision

In the evening of February 28, 2019, the Complainant was apprehended by PRP officers and taken to hospital for a psychiatric assessment. The Complainant suffered serious injuries including multiple rib fractures in the process of being taken into police custody. SO #1 and SO #2 were identified as subject officers for purposes of the SIU investigation. For the reasons that follow, there are no grounds to believe that any of the officers who dealt with the Complainant as he was being apprehended, including the subject officers, committed a criminal offence in connection with the Complainant’s injuries.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal 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. Under section 17 of the MHA, a police officer may arrest without warrant a person acting in a disorderly manner who constitutes a threat to themselves or others, provided the person appears to be suffering from a mental disorder that will likely result in serious harm to themselves or others. The Complainant, on all accounts, was in the throes of a psychotic episode when police were called to deal with him. Perhaps caused by recent cocaine ingestion, the Complainant was delusional and paranoiac, erratic and belligerent. He falsely believed that people were following him to do him harm, wrongly accused employees in the business on Lakeshore Road West of possessing weapons, alleged WO #1 was not a real police officer, and ran dangerously into live lanes of traffic without any regard for his well-being. On this record, I am satisfied that the officers were within their rights in seeking to apprehend the Complainant under the MHA for purposes of psychiatric assessment. Left to his own devices, the Complainant was a real and significant threat to his own safety and the safety of those around him.

While it is regrettable that the Complainant suffered serious injuries in the process of his apprehension, likely the result of his takedown or the physical struggle that ensued on the ground, I am unable to reasonably conclude that the officers’ conduct fell afoul of the limits prescribed by the criminal law. It bears reiterating that there is no evidence that any of the officers who grappled with him on the ground punched, kicked, elbowed or kneed the Complainant. What occurred was essentially a wrestling contest in which the officers used their combined weight and muscular power to overcome the Complainant’s resistance and assert control over his arms, a tactic made reasonably necessary by the lengths to which the Complainant physically resisted the officers’ efforts. With respect to SO #2’s CEW discharge, while arguably not strictly necessary in the circumstances given the number of officers dealing with the Complainant on the ground at the time, it is difficult to argue it was excessive when the fact is it failed to deter the Complainant in any way. Moreover, it must be noted that the law does not require that officers caught up in violent and dynamic situations measure their responsive force with precision; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975) 27 CCC (2d) 96 (Ont. C.A.).

In the result, I am satisfied on reasonable grounds that the officers were proceeding lawfully to apprehend the Complainant under the MHA and that the force they used was legally justified notwithstanding the injuries that were caused. Accordingly, there are no grounds to proceed with criminal charges in this case, and the file is closed.


Date: November 4, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit