Cruiser and motorbikeRunnersCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 20-OCI-079

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 injuries that a 67-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On April 10, 2020, at 7:03 p.m., the Peel Regional Police (PRP) notified the SIU of an injury to the Complainant.

The PRP advised that on April 10, 2020, at about 11:59 a.m., PRP received a call about a domestic situation on Sevenoaks Drive in Mississauga. As the result of being served custody papers, the Complainant had barricaded himself in a motorhome parked on the property and doused himself in a flammable liquid.

After a four-hour standoff with negotiators, the Complainant produced a knife and waved it around. The PRP Tactical Rescue Unit (TRU) moved in to try and spray the Complainant with water, but the Complainant fled to the bathroom in the motorhome and set himself on fire. Firefighters were able to put out the fire and PRP police officers extracted the Complainant from the motorhome.

The Complainant was transported to Credit Valley Hospital (CVH) by ambulance where he was diagnosed with first- and second-degree burns to his head and upper body and the possible loss of vision in his right eye.

The scene was being held by PRP.

The Team

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

Complainants

Complainant: 67-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed


Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.
SO #2 Interviewed and notes reviewed.


Evidence

The Scene

The scene was the interior of a motorhome parked on a driveway on Sevenoaks Drive in Mississauga. The large motorhome faced north toward the double-door garage.

Shards of broken glass from the motorhome’s side window littered the driveway and parts of the lawn area. All windows, except for a small window on the passenger side (near the side door), were damaged. Window coverings (blinds) were also damaged, as was a section of the front windshield (passenger side). A step ladder was resting against the front passenger corner of the motorhome. The motorhome’s side door and frame were damaged. The door was open.

Upon entering the motorhome, two Conducted Energy Weapon (CEW) cartridges, CEW wire, and Anti-Felon Identification Discs (AFIDs) were visible on the floor. CEW cartridge blast doors were seen on a counter in the washroom, and additional AFIDs were visible on a luggage resting in the shower. There was a large, disheveled bed at the rear of the motorhome. A gold and brown-coloured pump-action rifle was resting on the bed. The rifle appeared to be a pellet rifle. A red, long-necked lighter was visible on the bed.

The bed, the ceiling, and the surrounding cabinets in the motorhome were wet. There was no obvious scent of accelerant or fire odour in the air. No burn patterns, charring, burned items, or fire debris were visible. No knife was visible in the vehicle’s open areas, on top of the flat surfaces, or the floor. The driveway, the lawn, and underneath the carriage of the motorhome were checked for a knife, with negative results.

SIU forensic investigators received a clear plastic bag containing a pair of black shorts from police. The shorts were removed and found to be cutaway. Neither the shorts nor the inside of the bag smelled of accelerant or fire-related odours. Other than the shorts being cutaway, there was no evidence that they were burned or charred.

Photos were taken of the scene and the air rifle was seized.

Forensic Evidence


CEW Downloads [1]


On April 10, at 4:17:51 p.m., WO #5 armed his CEW. The CEW was loaded with two cartridges. At 4:17:56 p.m., WO #5 fired his CEW deploying one of two cartridges for five seconds. At 4:18:17 p.m., WO #5 made his CEW safe.

At 4:17:11 p.m., WO #6 armed his CEW, which was loaded with two cartridges. At 4:17:17 p.m., he fired his CEW deploying one of two cartridges for five seconds. At 4:17:18 p.m., WO #6 fired his CEW a second time deploying the remaining cartridge for four seconds. At 4:17:22 p.m., he made his CEW safe.

At 4:16:56 p.m., SO #1 armed his CEW, which was loaded with two cartridges. At 4:17:49 p.m. SO #1 made his CEW safe. At 16:18:01 p.m., SO #1 armed his CEW once more. At 4:18:05 p.m., SO #1 fired his CEW deploying one of two cartridges for five seconds. At 4:18:06 p.m., SO #1 fired his CEW deploying the remaining cartridge for five seconds. At 4:18:11 hrs, SO #1 deployed his CEW once more for another five seconds. At 4:18:18 hrs, SO #1 made his CEW safe.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications Recordings


Police Recordings


The recordings were made on April 10, 2020 and captured the following:
  • At 11:58:53 a.m., a lawyer contacted PRP reporting CW #1 had a restraining order against her husband, the Complainant;
  • At 12:04:38 p.m., PRP police officers attended Sevenoaks Drive;
  • At 1:42:45 p.m., a police officer on scene reported the Complainant was barricaded in his motorhome and was threatening suicide by blowing himself up;
  • At 1:43:47 p.m., a police officer reported the Complainant had just poured lighter fluid over himself and had a lighter in his hand;
  • At 1:44:10 p.m., more police units were requested;
  • At 1:44:35 p.m., the dispatcher requested fire department attend;
  • At 1:46:52 p.m., police reported all was calm and police were talking to the Complainant;
  • At 1:47:24 p.m., one police officer was reportedly talking to the Complainant and a second police officer was providing points;
  • At 1:52:17 p.m., police reported broken window on east side of motorhome, close to front door of residence;
  • At 1:56:54 p.m., tactical unit police officers were reportedly taking over, and uniformed police officers terminated communication and left the motorhome;
  • At 1:59:19 p.m., two police officers reportedly evacuated people inside the residence to a safe location;
  • At 2:01:52 p.m., CW #1, CW #2 and another civilian were reportedly evacuated from the residence;
  • At 2:02:19 p.m., a tactical unit police officer reportedly assumed communications with the Complainant;
  • At 2:07:28 p.m., tactical unit reportedly took overall command;
  • At 2:14:37 p.m., homes neighbouring the address on Sevenoaks were reportedly evacuated;
  • At 2:15:57 p.m., immediate action plan was reportedly instituted;
  • At 2:25:04 p.m., the Complainant was trying to call CW #2. CW #2 was directed not to answer his phone;
  • At 2:28:18 p.m., the Complainant called CW #2 once more;
  • At 2:38:58 p.m., the Complainant was designated a high risk;
  • At 2:46:47 p.m., all vehicles were reportedly moved from the area;
  • At 2:52:49 p.m., WO #2 takes over as primary negotiator;
  • At 3:15:37 p.m., gas fume sniffer was used and showed zero danger;
  • At 4:13:53 p.m., the Complainant was seen reportedly picking up a knife;
  • At 4:14:03 p.m., tactical unit police officers breached the motorhome;
  • At 4:20:35 p.m., the Complainant was reportedly in custody being checked by paramedics. The Complainant was reportedly unable to set himself ablaze;
  • At 4:24:26 p.m., the Complainant was reported to have lit himself on fire;
  • At 4:26:06 p.m., a correction is made to entry at 4:20:35 p.m. to the effect that the Complainant did light himself on fire; and
  • At 4:24:39 p.m., the Complainant was transported by ambulance to hospital.


Text Messages Received by CW #2


On April 13, 2020, CW #2 was interviewed and during the interview he said his father, the Complainant, left him voicemail messages during the afternoon of April 10, 2020.

CW #2 did not answer his father’s telephone calls because he had been instructed by PRP police officers not to speak to his father while police tried to negotiate with him.

The first message received from the Complainant came at 2:23 p.m. on April 10, 2020. It said, “CW #2, could you ahh come out to the motorhome please. I need to have a quick word with you. Umm sorry about all this, I just don’t know how to explain all this to you…umm, or you know phone me.”

The second message came at 2:28 p.m., and it said, “CW #2, what’s going on? After all this and now you are not answering my phone calls.”

The third message came at 2:53 p.m., and it said, “CW #2 now is the time where I could really use a bit of help. It’s important, and you are not answering your phone or responding to my text. I know something is up and it’s not good. Why are you doing this? You know, it’s not right. I’m at the end here…anyway…call me if you can.”

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:
  • Crisis Negotiations Policy;
  • Critical Incident Response Policy;
  • PRP Communications Recordings;
  • Email from PRP-Update Ident Duties at Sevenoaks Drive-2020-04-24;
  • Notes-All WOs except for WO #2;
  • Notes-Both SOs;
  • Occurrence Report;
  • Audio Copy Report-911 Calls;
  • Audio Copy Report--Communications; and
  • Scene Photos.

Materials obtained from Other Sources

In addition to the materials received from the PRP, SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records from CVH; and
  • Text messages from CW #2’s cell phone.

Incident Narrative

The material events in question are relatively clear on the weight of the evidence, which included interviews with the Complainant, SO #2 and several police eyewitnesses. As was his legal right, SO #1 declined to interview with the SIU, but did release a copy of his incident notes. The Complainant was estranged from his wife and living in his motorhome parked on the driveway of the family home on Sevenoaks Drive, Mississauga. In the early afternoon of April 10, 2020, the Complainant heard a knock on his door, saw two uniformed PRP officers and assumed they were there to check on his quarantine; the Complainant had recently returned from the United States and been ordered to self-isolate for a period as a COVID-19 control measure. In fact, the officers were there in response to a call from his wife and her family lawyer. Unknown to the Complainant at the time, a court had issued a restraining order preventing him from being within 500 metres of his wife.

The officers directed that the Complainant leave the premises and the Complainant demurred. The officers confirmed that the order was good and valid, and insisted that the Complainant vacate the area on pain of arrest. A distraught Complainant once again refused whereupon the Complainant locked the door of his motorhome, doused himself in lighter fluid and threatened to light himself on fire. The officers on scene spoke with the Complainant to attempt to resolve the situation, to no avail.

PRP TRU officers started arriving at the scene shortly before 2:00 p.m. An inner perimeter around the immediate vicinity of the motorhome and an outer perimeter to contain and control traffic in the area were established. SO #2, who assumed overall command of the operation, ordered the evacuation of persons living in proximity to the incident, including the Complainant’s wife, CW #1, and their two sons, one of whom was CW #2, from the family home. Firefighters and paramedics were also in the area ready to intervene as required.

SO #1, a PRP TRU officer, arrived at the scene at about 1:50 p.m. and took over negotiations with the Complainant from a uniformed officer. Positioned at the passenger side entrance door of the motorhome, the vehicle parked with its nose toward the property’s garage, SO #1 spoke with the Complainant. The Complainant was upset with CW #1 and held a BBQ lighter and a container of lighter fluid. Another TRU officer, WO #2, arrived on scene at about 2:25 p.m. As he had specialized training in negotiation, WO #2 took over from SO #1 at the side of the motorhome. WO #2 tried to steer the conversation toward the peaceful resolution of the standoff, but the Complainant was fixated on his frustrations with CW #1. When WO #2 asked whether the Complainant planned to do himself harm, the Complainant indicated that he had tried to commit suicide six months prior and that present events would not end well.

In consultation with the TRU leaders, SO #2 agreed an Immediate Action Plan (IAP) and a Deliberative Action Plan. The former would involve the storming of the motorhome by TRU officers while firefighters simultaneously doused the motorhome with water if the Complainant was seen to light himself on fire. The objective of the latter was to negotiate a peaceful end to the standoff with TRU officers and firefighters on standby to immediately enter the motorhome in the event the Complainant was deemed at high risk to self-harm.

By about 4:10 p.m., after consultations with a forensic psychiatrist, SO #2 deemed the Complainant to be an imminent high risk of self-harm and approved the implementation of the IAP. After a minute or two of difficulty, WO #5 breached the door into the motorhome with the use of a Halligan bar and TRU officers rushed into the vehicle. At the same time, firefighters broke windows on the driver’s side of the motorhome and pumped water into the interior.

At the sound of the windows breaking, the Complainant rushed to the bathroom at the rear of the motorhome, locked himself in and stepped into the shower with the lighter in hand. As the officers forced the door open, the Complainant lit himself on fire with the BBQ lighter, engulfing his upper body in flames. From the threshold of the bathroom door, SO #1 discharged his CEW thrice at the Complainant and then stepped back to allow firefighters through. The Complainant was doused with water and the fire put out as he ran from the bathroom to the bedroom and plopped front first onto the bed. Two other officers, WO #6 and WO #5, deployed their CEWs at the Complainant in the bedroom before he was handcuffed and escorted outside the motorhome.

I am cognizant of certain evidence that it was a CEW discharge that set the Complainant on fire, but unable to place any weight on it in the face of the weight of the eyewitness evidence that the Complainant lit himself on fire and his very clearly expressed intention to do himself harm prior to the officers’ entry.

Once outside, the Complainant was treated by paramedics and then rushed to hospital for treatment of his burns.

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 

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.

Section 221, Criminal Code -- Causing bodily harm by criminal negligence 

221 Every person who by criminal negligence causes bodily harm to another person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.

Analysis and Director's Decision

On April 10, 2020, the Complainant suffered burns to his head and neck area in and around the time of his arrest at the hands of PRP officers. SO #2, in charge of the overall police operations that day which culminated in the Complainant’s apprehension, and SO #1, directly involved in the arrest, were 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 officer committed a criminal offence in connection with the Complainant’s arrest and injuries.

The criminal liability questions at play in this case are two-fold. First, were the Complainant’s injuries in any way attributable to derelict conduct on the part of the police? Second, with respect to the CEW discharges, were these a justified use of force on the part of the officers?

With respect to the first question, the offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. As an offence of penal negligence, simple negligence will not suffice to ground liability. What is required, inter alia, is conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have observed in the circumstances. To reiterate, the liability analysis in the instant case is essentially focused on whether the officers caused or contributed to the Complainant’s injuries by conduct that was so wanting as to attract criminal sanction.

In my view, they did not. On the contrary, the evidence indicates that the officers involved in the standoff with the Complainant conducted themselves with due regard for public safety, including, first and foremost, the Complainant’s health and well-being. At the outset, I accept that the officers who initially responded to the address to seek the Complainant’s departure from the area did so lawfully. There was a lawful court order in effect restraining the Complainant from being within 500 metres of CW #1, and the officers were entitled to seek to enforce it.

Thereafter, as soon as the Complainant poured lighter fluid on himself, threatened to light himself on fire and barricaded himself in the motorhome, it was reasonable to mobilize a response by the TRU team. The Complainant’s actions threatened not only himself, but the spread of fire through the motorhome and the immediate vicinity. This was clearly a high-risk and dangerous situation calling for the intervention of specially trained officers.

A concern for public safety was on display by the police throughout the standoff. Inner and outer perimeters were established around the scene and neighbours evacuated to safety. Firefighters and paramedics staged in the area were on high alert.

Under the leadership of SO #2, the officers exhausted every reasonable opportunity to de-escalate the situation and bring it to a peaceful resolution. Trained negotiators did what they could to assuage the Complainant and a highly-regarded forensic psychiatrist was consulted for advice. At the request of the police, CW #2 refrained from answering the Complainant’s calls and texts during the standoff. While it is unknown what the impact of those communications would have been, had they occurred, I am satisfied that it was a tack reasonably open to the police given the potential for personal and possibly emotional communication to further aggravate the situation. In the meantime, plans were developed for more proactive intervention should immediate action be necessary to protect the Complainant. Against this backdrop, I am unable to find fault with the decision to execute the IAP when it seemed to the officers in the field that the Complainant was on the precipice of self-harm.

Regrettably, the officers had difficulty breaching the motorhome’s door and entering the motorhome as quickly as they had wanted. That bought the Complainant extra time to make his way to the bathroom and plan his next steps. That said, it would be mere speculation to suggest things would have worked out any differently had the officers entered quicker. By his words and conduct in the hours leading to his apprehension, the Complainant had given the officers every indication that he was resolute in seeking to harm himself.

Once inside the motorhome, the officers quickly located the Complainant. Unfortunately, the Complainant was able to light himself on fire before the officers could secure him in custody. Fortunately, firefighters quickly got to him and put out the fire with their hoses.

With respect to the multiple CEW discharges, it suffices to note for present purposes that these occurred after the Complainant had already set himself on fire. Given the potential of CEWs to cause a fire in the presence of an accelerant, and the officers’ training which warned against their deployment in these circumstances, their usage before the Complainant was in flames would have weighed against the officers in the criminal negligence analysis.

On the aforementioned-record, I am satisfied on reasonable grounds that the officers were at all times in the lawful discharge of their duty to protect and preserve life and that they acquitted themselves reasonably throughout their interventions with the Complainant, possibly even preventing the Complainant from having done further and more serious harm to himself. Accordingly, there is no basis for concluding that the officers transgressed the limits of care prescribed by the criminal law.

The issue turns to whether the CEW deployments were excessive in the circumstances. 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 authorized or required to do by law. I am satisfied that the officers who discharged their CEWS – SO #1, WO #6 and WO #5 – were acting within the confines of their duty when they moved in to assist in the Complainant’s apprehension. Considering the existence of the restraining order and the Complainant’s threats to light himself and his motorhome on fire, there were sufficient grounds for the Complainant’s arrest. With respect to their CEW usage, each officer indicated that they discharged their weapons fearing that the Complainant might be armed with a knife. While no knife was recovered on an open surface within the motorhome by the SIU, the evidence is clear that in the moments prior to the officers’ entry, WO #6 had advised team members that he had seen the Complainant in the possession of a knife. Given the highly charged and volatile situation the officers were facing, I am unable to reasonably conclude that the officers, each under a reasonable apprehension that the Complainant might be armed with a knife, acted excessively when they discharged their CEWs. In arriving at this conclusion, I am guided by the common law principle that officers embroiled in perilous situations need not 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 CA).

For the foregoing reasons, there are, in my view, no grounds for proceeding with charges in this case, and the file is closed.


Date: July 14, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Times are not necessarily synchronized between weapons and with actual time. [Back to text]