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SIU Director’s Report - Case # 20-OCI-041

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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 injuries that a 51-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On February 18, 2020 at 6:10 p.m., the Halton Regional Police Service (HRPS) contacted the SIU and reported an injury. At 12:37 p.m., HRPS went to a hotel located on Wyecroft Road in Oakville regarding a man [now known to be the Complainant] barricaded and causing damage in a room. Tactical police officers breached the room after negotiations were unsuccessful. Five tactical police officers entered the room and two conducted energy weapons (CEWs) were deployed, following which police officers physically engaged the Complainant. The Complainant was apprehended under the Mental Health Act (MHA) and taken to the Oakville Trafalgar Memorial Hospital (OTMH). He was diagnosed with a punctured lung and fractured ribs.

The Team

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

Complainants

Complainant: 51-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Not interviewed – the Complainant’s next-of-kin
CW #2 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #2 Interviewed


Subject Officers

SO #1 Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.
SO #2 Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The scene was located in a room in a hotel located on Wyecroft Road in Oakville. The room was on the north side of the hall. The door opened inward and was hinged on the left side. As one entered the room, the bathroom was on the right and the hall to the north led to the sleeping area. There was a door to the adjoining room, on the west wall.

Forensic Evidence


CEW Download


The SIU downloaded data from the CEWs assigned to SO #2 and SO #1. Three deployed CEW Taser cartridges were given to the SIU: two issued to SO #2 and one issued to SO #1.

SO #2’s CEW – a Taser X2 – was used during the incident with two cartridges deployed. On February 18, 2020 at 1:00:14 p.m., cartridge one was deployed with a one second trigger pull. At 1:00:24 p.m., cartridge two was deployed with a 13 second trigger pull. The CEW’s trigger was pulled again for 5 seconds.

SO #1’s CEW – a Taser X2 – was used during the incident with one cartridge deployed. On February 18, 2020, at 1:01 p.m., the CEW’s trigger was pulled for five seconds with the cartridge deployed. At 1:01:12 p.m., the CEW’s trigger was pulled for four seconds with one cartridge deployed.

Video/Audio/Photographic Evidence


HRPS Interview of CW #1


HRPS provided a copy of an interview of CW #1. CW #1 was the Complainant’s mother. The Complainant had no fixed address and stayed with friends. About 20 years ago, the Complainant saw a psychiatrist at Joseph Brant Hospital but CW #1 was not aware of a diagnosis. The Complainant took medication for anxiety. In 2002, he was in a bicycle accident and sustained a brain injury. Since then, he believed he was followed by demons and drones. Cameras and cellular telephones caused him distress because he believed they were used to track him.

On February 14, 2020, CW #1 rented a room for the Complainant at the hotel located on Wyecroft Road in Oakville. The Complainant believed someone was following him and trying to kill him. He believed the government and army were after him. CW #1 asked him to seek medical help but he refused. CW #1 paid for him to stay for a week. On the morning of February 18, 2020, CW #1 called her son but he hung up on her. She called back and the hotel manager advised that they had trouble with the Complainant and he went to the hospital. He would not let anyone in the room and it had not been cleaned for three days. The manager said they called the police. The Complainant had told his mother in the past that he did not want to live anymore.

Communications Recordings


911 Call


The HRPS provided the SIU with the 911 call made on February 18, 2020 from 12:35 p.m. to 12:40 p.m. There was no time stamp on the recording.

A front desk employee at the hotel located on Wyecroft Road in Oakville, CW #2, called 911 and requested police, fire and ambulance. He said a guest in a room took a lamp into the shower and flooded the shower and the second floor. The room was rented by CW #1, but the guest was her son. The Complainant refused to open the door and barricaded the door. CW #2 was concerned about an electrical fire and concerned that the Complainant would hurt himself. The second floor was flooded, and the water was coming into the first-floor bar area.

CW #2 had spoken to the Complainant for about three minutes before he called the police. He had asked to enter the room, but the Complainant had refused entry. The Complainant had said he could not open the door because there was water on the floor, and a lamp was plugged in and blocking the door. CW #2 said that some rooms on the same floor as the Complainant’s room were occupied but other rooms on the same floor were vacant. About 30 seconds before the call ended, an HRPS officer was heard in the background saying he was the first on scene.

Communication Recording


The HRPS provided a copy of the communication recordings on February 18, 2020. The recording was 12:27 minutes long but was not date or time stamped. The 911 call was received at about 12:30 p.m.

The dispatcher asked for units to attend the hotel located on Wyecroft Road in Oakville for a man [now known to be the Complainant]. The Complainant had locked himself in the shower, with a lamp, and the room was flooded. Hotel management was concerned about an electrical fire. The dispatcher advised that the Complainant had barricaded himself in the room. A police officer asked the dispatcher to “make the call please.” The dispatcher advised that the Complainant refused to open the door because there was a lamp blocking the door. The dispatcher advised that canine tactical units were responding. The dispatcher added that the Complainant was on file as an accused awaiting disposition for unlawfully dwelling in a house, fail to comply with probation, break-and-enter with intent, and possession of break-and-enter instruments. He was not to attend several addresses, was a suspended driver for medical reasons and had received a suspended sentence for other criminal offences.

The dispatcher confirmed fire and a tactical team, consisting of WO #3, SO #2 and WO #1, were en route. The room involved was identified and it was said that there were guests in rooms nearby on the same floor. An officer obtained a master key. The canine unit advised that an identified police officer had made contact with the Complainant but the Complainant refused to open the door. At 4:05 minutes into the recording, the tactical team was on scene. WO #3 said WO #2 had taken over communications with the Complainant and the Complainant refused to open the door. WO #3 said it was a section 17 MHA apprehension only. WO #3 said WO #2 was at the door and the Complainant appeared calm. At 6:08 minutes into the recording, an officer advised that the Complainant closed the window blinds. WO #3 said they entered a room with an adjoining door leading into the Complainant’s room. At 6:50 minutes into the recording, WO #3 indicated the Complainant said he was going to harm himself and they were going to enter the room.

At 7:08 minutes into the recording, an officer advised that they were in. Police officers were yelling, “Stop resisting,” several times. At 7:30 minutes into the recording, a police officer asked for tactical paramedics to attend. At 8:58 minutes into the recording, the tactical paramedics arrived. At 9:48 minutes, a police officer advised that the CEW prongs were removed and the Complainant was in the ambulance.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HRPS:
  • Arrest Report (MHA) - the Complainant;
  • Computer-assisted Dispatch (CAD)-Event Information;
  • Event Information;
  • General Occurrence Report - the hotel located on Wyecroft Road in Oakville;
  • Notes-all WOs;
  • Occurrence Details;
  • Policy - Use of Force;
  • Policy - Arrest, Search, and Release of Persons;
  • Policy - Persons in Crisis;
  • Policy - Hostage Taking-Barricaded Persons;
  • Use of Force Report;
  • Audio Interview – HRPS (CW #1);
  • 911 Recordings; and
  • Communication Recordings.

Materials obtained from Other Sources

In addition to the materials received from the HRPS, the SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s Medical Records;
  • General Occurrence Report – the hotel located on Wyecroft Road in Oakville; and
  • Incident Report prepared by hotel in question regarding the Complainant.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, which included interviews with the Complainant, a CW and several WOs who were involved in the operation that culminated in the Complainant’s arrest. As was their legal right, SO #1 and SO #2 chose not to interview with the SIU or authorize the release of their incident notes.

At about 12:35 p.m. on February 18, 2020, a 911 call came into HRPS from the front desk clerk of the hotel located on Wyecroft Road in Oakville. The caller – CW #2 – reported that a patron in a room – the Complainant – had taken a lamp into the shower of the room, and had caused flooding in his room which was leaking into the floor below. According to CW #2, the Complainant had refused to open the door when he went to investigate and, in fact, had barricaded himself in the room. CW #2 was concerned about a possible electrical fire and the Complainant hurting himself.

Given the nature of the call, involving a barricaded person threatening self-harm and a potential fire, the HRPS’s Tactical Response Unit was dispatched to the scene. Arriving at about 12:50 p.m., the tactical officers met and spoke with CW #2 and then proceeded to the second floor to the Complainant’s room. Among their ranks were the team leader, WO #1, and a crew of officers, including the two SOs.

The team gathered outside the door of the Complainant’s room and attempted to access the unit. WO #2 took the lead in communicating with the Complainant from outside the door. The officer asked the Complainant to open the door so they could talk. The Complainant refused to do so and threatened to harm himself. After several minutes of failed communications, WO #1 decided the team could wait no longer. He was concerned about the risk of harm coming to the Complainant, including the possibility of electrocution and fire. The decision was taken to force entry into the room.

Using a card key provided by CW #2, the team unlocked the door to the Complainant’s room, but was unable to gain entry; the Complainant had placed furniture against the door, effectively barring entry. The team then tried to ram the door, but, again, was unsuccessful in forcing it open enough to squeeze through. At about 1:00 p.m., the team was finally able to enter the room through a door from an adjoining room. Even though the Complainant had also taken steps to barricade that entrance, the officers were able to force the door open sufficiently to pass through.

The Complainant fled from the officers toward a corner of the room and physically resisted as they endeavoured to secure him in custody, kicking WO #2 repeatedly and attempting to bite the same officer. The officers reacted with force of their own. Each of the SOs – SO #1 and SO #2 - deployed their CEWs multiple times at the Complainant. In addition, WO #2 kneed the Complainant twice, to the back and front of his left leg, and SO #2 punched him to the side of the head. Following the punch, the officers handcuffed the Complainant. No further force was used.

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 February 18, 2020, the Complainant was arrested by members of the HRPS TRU and subsequently diagnosed with injuries, including multiple rib fractures, later in the day. SO #1 and SO #2 were among the TRU 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 officer committed a criminal offence in connection with the Complainant’s arrest and 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 authorized or required to do by law. I accept that the officers had the lawful authority to do what they professed to be doing, namely, apprehending the Complainant under the MHA. Whether because of mental illness or impairment by drugs or both, the Complainant was behaving in a disorderly and destructive fashion, threatening harm to himself and the other clients of the building. In the circumstances, the officers were vested with authority under section 17 of the MHA to seek his apprehension. [1]

I further accept that the force used by the officers was significant, and may well have caused or contributed to the Complainant’s several injuries, [2] but am unable to reasonably conclude that it crossed the line into unlawful conduct. The officers’ intervention began from outside the room door as they tried to resolve the situation peacefully via negotiation. While those efforts were only a few minutes long, I am satisfied that the officers’ decision to force entry into the room was well-grounded. The Complainant was threatening harm to himself and the circumstances were such that the officers could afford to wait no longer. The hotel room was flooded and there was a genuine risk of an electrical fire being started. Once through the door, the Complainant fought the officers and their attempts to secure his custody. As he ran from the officers, he was shocked via a CEW discharge by SO #2, falling forward in the process. On its face, the discharge might appear precipitous. However, the officers had been cautioned ahead of time that the Complainant, in his prior run-ins with the police, was known to carry concealed weapons on his person. In fact, it should be noted that there was a knife and a pair of scissors on the floor in the area where the Complainant fell and the struggle occurred. Considered in context, therefore, I am satisfied that the CEW’s discharge was reasonable given the legitimate concern the officers would have harboured regarding the potential use of weapons by the Complainant, whether to harm himself or the officers. For similar reasons, I am satisfied that the additional CEW discharges, and strikes with knees and hands, fell within the latitude of permissible force conferred on police officers when the Complainant continued to struggle. On this record, I am without reasonable grounds to believe that the force employed by the officers was other than measured and proportional to the situation at hand.

In the result, whether one or more of the Complainant’s injuries were inflicted by the police, the evidence falls short of establishing a reasonable belief that the officers acted unlawfully at any point during the incident. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: August 17, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) I leave aside for the moment whether the Complainant was arrested in a dwelling-house within the meaning of R. v. Feeney, [1997] 2 SCR 13 and section 529 of the Criminal Code. Assuming for the sake of argument that he was, I am satisfied that there existed exigent circumstances justifying the officers’ forced entry into the hotel room to effect the Complainant’s arrest. [Back to text]
  • 2) Evidence exists suggesting that the Complainant had pre-existing injuries, including fractured ribs, before being arrested. [Back to text]