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SIU Director’s Report - Case # 20-OCI-093

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 the injury that a 29-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On April 23, 2020, at 5:01 a.m., the Sault Ste. Marie Police Service (SSMPS) notified the SIU that on April 23, 2020, at 1:45 a.m., SSMPS police officers responded to a mental health call at the Sault Area Hospital (SAH). Upon arrival, the police officers tried to arrest the Complainant. The Complainant got into his car and drove around the hospital. Stop sticks were deployed at both entrances to the hospital; however, the Complainant was able to escape. Shortly thereafter, the Complainant’s car was located in the area of an address on Korah Road, and the Crisis Intervention Team and the Emergency Medical Service (EMS) responded to the location.

At 3:28 a.m., police officers entered the building and found the Complainant inside an apartment unit. There were two other individuals with him: Civilian Witness (CW) #1, who resided in the apartment unit, and CW # 2, a resident from another apartment. CWs #1 and 2 were not hostages. Witness Officer (WO) #1 initiated conversation with the Complainant, and WO #2 asked the CWs to leave the apartment. CW #2 exited the apartment and CW #1 stayed inside and was present throughout the whole incident. The Complainant had a knife and walked into a hallway towards the police officers. The Complainant proceeded to the entrance and tried to flee.

At 3:44 a.m., the Complainant confronted the police officers and cut his neck with the knife. In an attempt to stop him, Subject Officer (SO) #1 and SO #2 deployed their conducted energy weapons (CEWs). The Complainant continued to resist but was subdued. WO #2 and WO #3 were also present.

The EMS transported the Complainant to the SAH in a serious but stable condition. At the time of the intake, the Complainant was in surgery.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned (FIs): 1

Complainants

Complainant: 29-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


Subject Officers

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


Evidence

The Scene

The scene was not held and was in the second-floor hallway, staircase and sidewalk at an address on Korah Road, Sault Ste Marie. The scene was processed by an SSMPS FI.

Forensic Evidence

On April 24, 2020, at 1200 p.m., the SIU FI attended at the SSMPS FI office. The SSMPS FI turned over two CEWs for download of their data.

(1) The first CEW with its cartridge had been assigned to SO #1. The downloaded data for this CEW indicated that at 3:43:18 a.m., the trigger for the CEW was activated for a period of five seconds. At 3:43:24 a.m., the trigger for the CEW was activated for a period of five seconds.

(2) The second CEW with its cartridge had been assigned to SO #2. The downloaded data for this CEW indicated that at 3:43:10 a.m., the trigger for the CEW was activated for a period of seven seconds.

The CEW’s data were downloaded to a computer and loaded on a PDF file. Photographs were completed and the CEWs were returned to the SSMPS FI.

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.

Police Communications Recordings

The communications audio contained two files, marked Disk one and Disk two. There were no date or time stamps on the audio.

The information found on Disk one was consistent with the information supplied by witness officer interviews regarding the Complainant. This included the Complainant’s evasiveness at SAH, the short pursuit, and activities at the address on Korah Road. Police officers were notified that caution had to be used with the Complainant; he was a suicide risk and had previously taken a knife to his wrist and neck.

At 3:25 a.m., SO #1 advised the police officers knocked on the door of an apartment unit within the building. At 3:28 a.m., SO #1 stated contact had been made, and the Complainant was in a bathroom with knives at his neck. At 3:29 a.m., SO #1 requested that a staff sergeant be updated. The police officers had reached out to the Complainant, who was paranoid and had knives at his neck. At 3:43 a.m., a police officer broadcast that they had somebody outside, and requested the immediate attendance of the EMS.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the SSMPS:
  • Communications Audio;
  • Crown Brief Synopsis;
  • E-mail Thread-SO #1 Interview and Notes;
  • E-mail Thread-SO #2 Interview and Notes;
  • Event Details (Computer-Assisted Dispatch);
  • General Reports about this Incident;
  • Involved Officer List;
  • Notes-SO #1;
  • Notes-SO #2;
  • SSMPS-Mental Health Contact Form-the Complainant;
  • Data from both SOs’ CEWs;
  • Training Record-Conducted Energy Weapon – SO #1;
  • Training Record-Conducted Energy Weapon – SO #2;
  • Training Record-Pistol Qualification – SO #1;
  • Training Record-Pistol Qualification – SO #2;
  • Training Record-Use of Force Qualification – SO #1;
  • Training Record-Use of Force Qualification – SO #2; and
  • Use of Force Policy.

Materials obtained from Other Sources

In addition to the materials received from the SSMPS, the SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records from the SAH.

Incident Narrative

The material events in question are clear on the weight of the evidence collected by the SIU and may be summarized in short order. In the early morning hours of April 23, 2020, the SSMPS received a call from personnel with the SAH expressing concern about the welfare of the Complainant. The Complainant had been to the hospital behaving strangely, left, and then returned in his vehicle driving erratically. Officers were dispatched to the hospital and located the Complainant in his vehicle. Concerned about his mental health and the continued operation of his vehicle, the officers set up containment around the hospital to prevent his departure. The Complainant was able to by-pass the officers’ containment and exit onto Great Northern Road where he proceeded at slow speed with police vehicles in pursuit. The pursuit was quickly terminated.

A short time later, officers made their way to the Complainant’s residence located at an address on Korah Road. Assisted by WO #3 and his police dog, the officers tracked the Complainant to his apartment unit within the building. The Complainant had indeed returned to his apartment, but he was not there for very long. He had retrieved two kitchen knives and then left to visit with another tenant in another apartment unit – CW #1. With the Complainant and CW #1 at the time was CW #2. Hearing the police presence in the hallway, CW #2 opened the door to inquire what was happening.

Among the officers present, WO #2 observed the door to the apartment unit open and approached to look inside. Observing the Complainant inside the unit with two knives to his neck, he asked the two men with the Complainant to exit the apartment. CW #2 did so and returned to his unit. CW #1 and the Complainant remained inside the apartment for a brief period, but then exited and made their way into the communal bathroom through another door in the hallway.

From outside the bathroom door, WO #1 spoke to the Complainant attempting to persuade him to put the knives down and exit. The officer assured the Complainant that the police were there to help him. The Complainant initially refused to leave the bathroom. He expressed fear of the police and repeatedly indicated he wanted to die, at times asking the police to kill him.

After approximately ten minutes, CW #1 emerged from the bathroom with the Complainant walking behind him, holding the knives across his neck in a scissors shape. The officers followed as the pair made their way to the staircase leading down to the entrance/exit door of the building. As the Complainant reached the bottom of the staircase, SO #1, immediately behind him, witnessed him motioning with one of the knives across his neck. The officer deployed his CEW into the Complainant’s back. The Complainant fell forward onto the ground, but still had possession of at least one of the knives, which he used to continue to cut his neck. SO #1 deployed his CEW a second time, and SO #2 did the same. The Complainant resisted as the officers physically engaged him but was quickly subdued and handcuffed behind his back.

WO #2 applied pressure to the Complainant’s wounds to stem the bleeding from his neck. Paramedics arrived and took over the Complainant’s care. He was rushed to hospital where he underwent surgery for vascular injuries.

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

On April 23, 2020, the Complainant suffered serious neck injuries in the course of his arrest by SSMPS officers. Two of those officers, SO #1 and SO #2, discharged their CEWs at the Complainant and 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 injury.

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. The Complainant was not of sound mind at the time of the events in question. Given everything they had been told about his behaviour at the hospital and what they had personally observed back at the apartment building, the officers were in my view acting lawfully to apprehend the Complainant under section 17 of the Mental Health Act. The issue turns to the propriety of the force used by the SOs in taking the Complainant into custody.

In my view, the force used against the Complainant – several CEW discharges and moderate muscular power to wrestle control of his arms – fell within the limits of the law. The Complainant was in the possession of two knives with which he was threatening to harm himself. The officers also had to be concerned for the well-being of CW #1. Though he does not appear to have been a hostage, the Complainant was behaving irrationally and represented a potential threat to his neighbour who was within close proximity as the two emerged from the bathroom and walked to and then down the staircase. In the circumstances, SO #1 acted reasonably when he engaged the Complainant at a distance with his CEW the moment it appeared he was cutting himself. The additional two discharges and the manpower brought to bear to subdue the Complainant were similarly justified, occurring as they did as the Complainant remained in possession of a knife and struggled against the officers’ efforts to effect his arrest.

In the result, while the Complainant’s injuries occurred in the process of his arrest, I am satisfied that the officers did nothing to contribute to his self-inflicted injuries that could attract criminal sanction. In fact, it appears the officers’ intervention, including the subject officers’ use of their CEWs, likely prevented the Complainant from self-inflicting further, more grievous harm. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: August 5, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit