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SIU Director’s Report - Case # 19-PCD-112

Contents:

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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 31-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On May 2, 2019, at 3:40 a.m., the Ontario Provincial Police (OPP) notified the SIU that the Complainant had been hospitalized following his arrest earlier that morning.

According to the OPP, at approximately 1:00 a.m., OPP officers responded to a call at an address on Abbott Street in Hawkesbury. The Complainant was yelling at his neighbour and was suffering from mental health issues. When police officers arrived, they entered the residence and spoke with the Complainant on his balcony. [1] A conducted energy weapon (CEW) was deployed because officers feared the Complainant was going to jump off the balcony. The CEW deployment was not successful, a struggle ensued, and the Complainant was apprehended. The Complainant then became vital signs absent (VSA).

Paramedics were already on scene, waiting downstairs. Cardio pulmonary resuscitation (CPR) was performed and the Complainant began to breathe again. He was transported to the Ottawa Civic Hospital and was, at the time of notification, in critical condition. It was believed the Complainant had consumed cocaine prior to his involvement with police.

The OPP reported the CEW deployed during the incident had been secured. The OPP undertook to provide the SIU an update regarding the Complainant’s condition.

On May 22, 2019, a coroner contacted the SIU to ask why the SIU had not initiated an investigation into the Complainant’s death. The coroner reported the Complainant had remained in critical condition in hospital until it was determined he had no brain activity. His family consented to have him removed from life support and on May 10, 2019, he passed away at the Ottawa Civic Hospital. The coroner understood that during his arrest the Complainant was subjected to a CEW and he became VSA shortly thereafter. She was concerned about the role the CEW might have played in the Complainant’s death.

On May 23, 2019, the SIU contacted the OPP and advised that the SIU was initiating an investigation into the death of the Complainant.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2 

On May 29, 2019, a SIU forensic investigator attended the scene (Abbott Street) to document the apartment and identify any remaining evidence of the altercation.
Arrangements were made to interview the people present at the time of the incident. An interpreter was needed for many of those interviews.

The conclusion of this investigation was delayed while the SIU waited for receipt of the post-mortem and toxicology reports. Those reports were received by the SIU on October 10, 2019.

Complainant:

31-year-old male, deceased


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 

Witness Officers

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


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


Evidence

The Scene

The scene on Abbott Street in Hawkesbury is an apartment building. In the relevant apartment, a door along the wall of the kitchen provides access to a small balcony. Attached to one side of the balcony railing was a damaged satellite dish. The top of the satellite dish was bent over, consistent with something landing on the top of the satellite dish.

Forensic Evidence


CEW Records


On May 1, 2019, according to the weapon sign-out log, WO #2 signed out CEW #1. WO #1 signed out CEW #2.

The internal deployment data from CEW #1 indicates on May 2, 2019 at 1:30:46 a.m. WO #2 deployed the device for five seconds. At 1:30:52 a.m. he deployed it again, for seven seconds. The CEW was deployed in “Trigger” (i.e. probe) mode.

On May 21, 2019, this CEW was downloaded by the OPP. The device was three minutes and 31 seconds ahead of the synchronization computer clock. This suggests the CEW was deployed at a corrected time of 1:27 a.m., which is the time at which a police officer reported over the police radio that a CEW had been deployed.
The CEW deployed by WO #2 also records a pulse graph in its memory, which is a graphical representation of the electrical output efficiency of the unit. The pulse graph for WO #2’s CEW was non-linear, meaning several of the charge data points were scattered from what should have been a linear line. A review of information available on-line regarding interpretation of these pulse graphs indicates poor electrical contact (a poor electrical circuit) will result in scattered charge points in the pulse graph. This suggests that WO #2’s CEW deployment was not completely effective (that is, a good conductive circuit was not established).

Figure 1- The pulse graph from the CEW used by WO #2 with scattered "charge" data points.

Figure 1- The pulse graph from the CEW used by WO #2 with scattered "charge" data points.


CEW #1 was not activated again until 4:16 a.m. that morning.

The data recovered from CEW #2 indicates on May 2, 2019, WO #1 armed his CEW at 1:31:28 a.m. The internal data indicated he deployed the device at 1:31:42 a.m. for one second. He deployed it again at 1:31:43 a.m. for one second. The CEW was deployed in “Arc” (i.e. drive-stun) mode.

When synchronized with the download software, the internal time clock was found to be four minutes and 19 seconds ahead of the synchronization software. His CEW was also deployed at a corrected time of 1:27 a.m.

CEW #2 was not activated again until 4:17 a.m. that morning.

Communications Recordings

On May 2, 2019, at 1:10 a.m., a female [known to be CW #2] called 911. During the call CW #2 told the OPP call-taker, “He wants a cab.”

At 1:11 a.m., OPP WO #1 and WO #2 were dispatched to Abbott Street in Hawkesbury. They were advised an occupant [CW #2] was complaining of a man on the balcony of an apartment who was yelling and acting paranoid.

At 1:15 a.m., WO #1 and WO #2 arrived at the address. The dispatcher reported the man had been yelling for a taxicab from the apartment balcony. WO #2 reported there was a taxicab on scene.

At 1:19 a.m., WO #2 reported they had a man who was displaying symptoms of excited delirium. He requested that an ambulance be dispatched. Other police officers reported they were responding to the address.

At 1:22 a.m. the dispatcher asked WO #2 if he wanted the ambulance to standby. He responded the ambulance should stand by, as the male was in a state of excited delirium and they were trying to calm him. WO #2 reported the man was not being violent.

At 1:26 a.m., the dispatcher asked for an update. One of the officers on scene responded, but it was difficult to hear his response. A male was screaming in the background of the transmission. At 1:27 a.m., WO #4 advised he was just arriving on scene and would provide an update.

At 1:27 a.m., a police officer, believed to be WO #2, reported a CEW had been deployed.

At 1:31 a.m., an OPP officer asked for an update regarding the expected time of arrival of the ambulance. At 1:32 a.m., one of the OPP officers on scene reported the subject was on the ground, still breathing and conscious. One of the officers asked the dispatcher to query the Complainant. The Complainant could be heard in the background of the transmission.

The dispatcher reported there were several entries and warrants related to the Complainant. Many originated from out of province and the Complainant was flagged for violence and escape risk. The Complainant also had several outstanding matters entered by the Hawkesbury OPP and was on release conditions that required him to reside with his surety and remain in the residence.

At 1:48 a.m., SO #2 reported the Complainant had been sedated by paramedics and they were waiting for the sedative to take effect before transporting him. SO #2 stated the Complainant was being restrained on the ground by four police officers.

At 1:56 a.m., an OPP officer reported the Complainant was vital signs absent and they were initiating CPR. At 1:58 a.m., SO #1 reported the Complainant was in cardiac arrest and CPR was continuing.

At 2:03 a.m., an OPP officer reported that a pulse had been established.

At 2:08 a.m., WO #2 reported that he and SO #2 were following the ambulance and SO #1 was aboard the ambulance. At 2:15 a.m., the ambulance arrived at the Hawkesbury General Hospital.

At 2:16 a.m., a sergeant in the communications centre telephoned SO #1 and they discussed the incident. SO #1 questioned whether the SIU needed to be notified. SO #1 explained the paramedics had given the Complainant two injections of medication while the OPP officers held the Complainant on his side on a backboard, waiting for him to relax so they could strap him onto the backboard. They started to strap him onto the backboard and the Complainant went into cardiac arrest. The police officers removed the handcuffs and started CPR. Eventually they were able to establish a pulse. SO #1 stated the involved officers were shaken by the events.

SO #1 further explained the deployment of a CEW during the incident. He stated the CEW was deployed in probe mode, but the deployment did not result in full [neuromuscular] lock-up. The Complainant was wearing a jacket and one probe struck his thigh while the second probe entered his jacket, near his abdomen. The second probe did not penetrate the Complainant’s skin but was close enough to his skin that the Complainant went to the floor when the CEW was deployed. According to SO #1, the Complainant had been close to the outside balcony and was very hyper, and that was why they deployed the CEW on him.

SO #1 stated that other police officers were taking statements from witnesses. He commented there was possible cocaine and methamphetamine use involved.

At 2:24 a.m., the sergeant reported the incident to a senior officer. They discussed whether the matter constituted an incident for which the SIU needed to be notified. The officer decided the incident did not meet the mandate of the SIU.

At 2:56 a.m., SO #1 reported to the sergeant that the Complainant had been intubated and was in critical condition, and the hospital was intending to transfer him to another hospital. The sergeant asked SO #1 whether the Complainant was being transferred due to injuries he suffered during apprehension. SO #1 responded, “Well, he was cuffed on the side and he was tased, but the paramedics were there, and they sedated him, they tried to sedate him, but he went in cardiac arrest, but he was fighting us. We had him on the ground in the hallway, so three to four of us, when he start to try to get up and he spit blood at us, because he was spitting blood when we got to scene.”

The sergeant explained that they wanted to know if the Complainant had any injuries as a result of the police controlling him. SO #1 responded, “We were holding him down and he went VSA.” SO #1 stated he had the two sets of handcuffs that were on the Complainant when he went into cardiac arrest. He explained he had tried to preserve the scene to the best of his ability.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • Event Chronology;
  • A copy of the communications recordings;
  • CEW log-out sheet;
  • CEW #1 Deployment Data;
  • CEW #1 Pulse Graph (x2);
  • CEW #1 Time sync notation;
  • CEW #2 Deployment Data;
  • CEW #2 Pulse Graph (x2);
  • CEW #2 Time sync notation;
  • Notes of witness officers;
  • OPP civilian witness list;
  • Copies of OPP audio-recorded interviews of witnesses;
  • OPP Exhibit Tracking Register; and
  • OPP Property Report.

Materials obtained from Other Sources

The SIU also obtained paramedic incident reports and call reports from the Prescott and Russell Emergency Services Department (paramedic service).

Incident Narrative

The material events in question are clear on the weight of the evidence collected by the SIU, which included statements from witness officers who took part in the Complainant’s apprehension and a number of civilian witnesses in and around the area at the time, police communications recordings, data downloaded from CEWs that were discharged in the incident, and the results of the autopsy performed on the Complainant. At about 1:30 a.m. of May 2, 2019, the Complainant found himself on the floor of an apartment at Abbott Street, his arms handcuffed behind his back, when he went into cardiac arrest. There were paramedics and police officers on scene and they immediately provided emergency care, including CPR. They were able to restore the Complainant’s heart beat and rushed him to hospital via ambulance. Regrettably, the Complainant never regained consciousness. He died a week later following the removal of life support.

The pathologist at autopsy attributed the cause of the Complainant’s death to cocaine and methamphetamine toxicity.

The SIU invoked its jurisdiction and commenced an investigation on May 22, 2019, following a call from a coroner expressing concern with the role that officers may have played in the Complainant’s death. Specifically, the doctor raised the issue of the potential impact of a CEW which she understood had been deployed against the Complainant just before he lost vital signs.

In fact, two CEWs had been discharged, each on two occasions, against the Complainant moments before he suffered a cardiac arrest. WO #2 triggered his weapon twice at about 1:27 a.m. The CEW’s probes do not appear to have made sufficient contact with the Complainant to incapacitate him. WO #1 used his device twice in drive-stun mode at about the same time, applying it to the Complainant’s right calf.

WO #1 and WO #2 were the first officers to arrive at the address on Abbott Street following a call to police from a building tenant shortly after 1:00 a.m. complaining about the Complainant.

The officers entered the unit and encountered the Complainant in the kitchen at the back of the residence. From a position outside the kitchen and behind a table, which had been moved to partially obstruct entry into the room, the officers attempted to calm the Complainant. They quickly suspected that the Complainant was suffering from excited delirium and made arrangements to have paramedics attend the residence as well.

While they waited for the paramedics, WO #1 and WO #2 ventured into the kitchen and continued trying to calm the Complainant. They assured him they were there to help. Those efforts proved in vain. The Complainant gesticulated wildly and spoke incoherently. At one point, the Complainant reached into a pocket with his right hand prompting WO #2 to reach for his arm. The Complainant swung his arm at the officer but missed. WO #2 retrieved his CEW and fired it at the Complainant. Shortly thereafter, WO #1 moved in to drive-stun the Complainant’s leg. By this time, SO #1 and SO #2 had arrived at the house and were in the kitchen. With their assistance, the Complainant was handcuffed and led from the kitchen into a hallway.

The Complainant remained highly excitable after being handcuffed. Just outside the apartment’s bathroom, he collapsed on the floor and began to flail his legs and spit blood as he yelled and screamed. The officers applied muscular force to control his legs and keep his head turned away from them to avoid being spat on. Two paramedics arrived while the Complainant was lying semi-prone on the floor. There is evidence that the paramedics suggested the Complainant be re-positioned to mitigate the risk of asphyxia. The officers did not reposition him. The Complainant was spitting blood but the officers did not want to use a spit mask because they were concerned its use would further agitate the Complainant.

CW #7 proceeded to inject the Complainant twice with a sedative. The Complainant calmed down but soon lapsed into cardiac arrest. He was quickly moved to a larger space near the front entrance where the officers and paramedics attempted to resuscitate him. SO #1 performed chest compressions. The CPR was successful and a heart beat was re-established. The Complainant was quickly loaded into the ambulance and rushed to hospital.

Cause of Death


On May 11, 2019, a forensic pathologist conducted a post mortem examination in Ottawa. The cause of death was determined to be cocaine and methamphetamine toxicity. The concomitant use of cocaine and methamphetamine was determined to be a causative factor in the agitation displayed by the Complainant on May 2, 2019.

The pathologist also determined “the deployment of a CEW played no part in his death whatsoever.”

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.

Section 215, Criminal Code - Failure to Provide Necessaries

215 (1) Every one is under a legal duty

(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
(ii) is unable to provide himself with necessaries of life.

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if
(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

Analysis and Director's Decision

The Complainant passed away at the Ottawa Civic Hospital on May 10, 2019. He had been admitted to hospital in critical condition on May 2, 2019, following his apprehension by several OPP officers at a home in Hawkesbury. SO #1 and SO #2 were among the officers and identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject officer committed a criminal offence in connection with the Complainant’s death.

There are two issues that are raised with respect to the officers’ potential criminal liability in relation to the circumstances culminating in the Complainant’s death. The first looks at the force that was used against the Complainant and asks whether it was excessive. The second examines whether the care exercised by the officers in their dealings with the Complainant was substandard and, if so, whether it was sufficiently so to ground criminal liability. I turn first to the propriety of the force used against the Complainant.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of an act that they are authorized or required to do by law. The Complainant was clearly of unsound mind and a threat to his safety and the safety of others when confronted by WO #1 and WO #2 in the apartment kitchen. There is evidence that prior to the officers’ arrival he had assaulted someone and jumped from a balcony. Upon seeing and hearing the Complainant, WO #1 and WO #2 deduced he was in the throes of excited delirium. They tried to de-escalate his behaviour verbally but were unable to make any headway. When WO #2 reached for the Complainant’s arm, concerned when he saw the Complainant reaching into his pocket, the Complainant reacted aggressively by swinging at the officer. In the circumstances, I am satisfied that the Complainant was subject to apprehension under section 17 of the Mental Health Act.

I am further satisfied that the force used by the officers to take the Complainant into custody was lawful. This included the CEW deployments by WO #1 and WO #2 and, thereafter, the superior manpower used by the officers, including SO #1 and SO #2, to wrestle control of the Complainant’s arms and secure them in handcuffs. Given the Complainant’s violent and volatile behaviour, the officers acted reasonably in seeking to incapacitate him from a distance with their CEWs. Thereafter, there is no indication that the officers used anything other than moderate force in handcuffing the Complainant; there is no evidence, for example, of any strikes being delivered. All four officers, it would appear, also used force to control the Complainant’s movements after he went to the floor just outside the bathroom. This consisted of efforts to control the Complainant’s legs and head as he was kicking and spitting blood. Again, the force in question appears to have been proportional to the task at hand. [2] On this record, I am unable to reasonably conclude that the force used by the officers fell outside the latitude of permissible force in the circumstances.

With respect to the level of care observed by the officers in their dealings with the Complainant, the offence that arises for consideration is failure to provide necessaries of life contrary to section 215(2)(b). As an offence of penal negligence, liability under the provision is premised, in part, on conduct that amounts to a marked departure from a reasonable level of care in the circumstances. There are aspects of the manner in which the Complainant was treated by the officers that are open to legitimate scrutiny. For example, knowing as they ought to have known of the risks associated with positional asphyxia, particularly in a large individual, as the Complainant was, exhibiting signs of delirium, the officers nevertheless maintained the Complainant in a semi-prone position. Their justification for doing so was apparently to avoid being spat on by the Complainant and potentially contracting a communicable disease. There reason for not using a spit mask was that they wished to avoid further agitating the Complainant. In hindsight, the officers might better have been advised to use the spit mask and re-position the Complainant given the risks associated with positional asphyxia. That said, it is important to note that the paramedics were not insistent that the Complainant be re-positioned. If the trained medical professionals on scene were not sufficiently moved to force the issue, then some allowance must be made for the officers’ judgement. Moreover, once the Complainant lost vital signs after being sedated by the paramedics, the officers did what they could to assist the paramedics in rendering emergency medical care. In particular, SO #1 appears to have assumed the lead role in administering chest compressions, which presumably were instrumental in re-establishing a heart beat in the Complainant. When these considerations are weighed in the balance, I am not persuaded on reasonable grounds that the care exercised by the officers deviated markedly from the standard that a reasonable person would have observed in the circumstances.

The Complainant died tragically on May 10, 2019, the culmination of a medical event set in motion on May 2, 2019. He was only 31 years of age. As the results of his post-mortem examination make clear, the Complainant’s death was attributable to a drug overdose. The focus of the SIU’s investigation was to determine whether there were reasonable grounds to believe the officers who dealt with him on May 2, 2019 committed a criminal offence in connection with his death. As I am satisfied, both in terms of the force that was used and the care they exercised, that the officers acted lawfully throughout their involvement with the Complainant, I have no such grounds. Accordingly, there is no basis to proceed with charges and the file is closed.


Date: February 18, 2020


Original signed by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) This information is incorrect. The Complainant did not reside in that building. [Back to text]
  • 2) Whether or not those efforts were reasonable given the risks associated with the Complainant’s semi-prone position on the floor I leave to be assessed in the context of the analysis that follows regarding the sufficiency of the care exercised by the officers. [Back to text]