SIU Director’s Report - Case # 19-OCD-169

Warning:

This page contains graphic content that can shock, offend and upset.

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 52-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 23, 2019 at 3:20 p.m., the Kingston Police (KP) notified the SIU of the death of the 52-year-old Complainant.

According to the KP, at approximately 1:30 p.m. on July 23, 2019, KP officers responded to a Harvey’s Restaurant at an address on Princess Street regarding a man who had reportedly stripped naked [1] and was extremely agitated inside the restaurant. Several customers had tried to restrain the male but he had managed to break free and barricade himself in a restroom. The first two police officers arriving on scene requested an officer equipped with a conducted energy weapon (CEW) be dispatched. An additional two police officers attended and a CEW was deployed, allowing officers to take the Complainant into custody. He was then transported to the Kingston General Hospital (KGH) by paramedics. At 2:53 p.m., the Complainant was pronounced deceased.

The Team

Number of SIU Investigators assigned: 6
Number of SIU Forensic Investigators assigned: 1

Complainant:

52-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Not interviewed [2]

Witness Officers

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


Subject Officers

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


Evidence

The Scene

The Harvey’s Restaurant on Princess Street has two washrooms at the rear of the restaurant – one for men and one for women. Walking through the dining area, there is a short hallway running behind the back wall of the dining room, and the washrooms are accessed by that hallway.

The men’s washroom is directly at the end of the small hallway. The men’s washroom was in disarray and some of the Complainant’s clothing was on the floor and in the sink of the washroom. A cellular telephone and other personal property were found on the floor of the washroom.

The women’s washroom door is next to the men’s washroom, perpendicular to the hallway. There was very little damage in the women’s washroom. There are two toilet stalls in the women’s washroom and there is an open area under the doors and walls of the washroom stalls, such that anyone outside the washroom stalls can see the floor inside the stalls. The farthest toilet stall had a damaged toilet paper dispenser.

A number of Anti-Felon Identification (AFID) tags, released from a CEW cartridge, were collected from the women’s washroom. The serial number of the AFID tags matched the CEW cartridge secured by SO #1 following the incident. There was no evidence of a second CEW being deployed.

Forensic Evidence


CEW’s Downloaded Data [3]


The deployment data stored on SO #1’s CEW showed the CEW was armed (turned on) at 1:54:30 p.m. At 1:54:59 p.m. the device was deployed for five seconds. At 1:55:17 p.m., the device was deployed for an additional three seconds.

Expert Evidence


Autopsy


On July 25, 2019, a post mortem examination was conducted by a pathologist at the KGH.

The pathologist’s final post mortem report was received by the SIU on September 8, 2020.

The pathologist determined the cause of death was “Methamphetamine, Fentanyl and Carfentanil toxicity.”

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following:
  • In-Store Surveillance Camera Recordings from the Harvey’s Restaurant.


In-Store Surveillance Camera Recordings from the Harvey’s Restaurant


At 1:10 p.m., an individual on a bicycle rode past the front of the Harvey’s Restaurant. The rider was wearing a green top and black shorts. At 1:11 p.m. that individual, the Complainant, entered the restaurant. The Complainant was carrying a plastic shopping bag and entered the men’s washroom. Four people were sitting at a nearby table.

At 1:16 p.m., an older gentleman approached the men’s washroom and opened the door. He then stepped backward. He turned and exited the restaurant.
At 1:18 p.m., one of the four people sitting at the nearby table approached the men’s washroom door. His friends appeared to be aware of something happening inside the washroom. The young man opened the washroom door slightly. He then stepped away from the washroom and went to the front counter to speak to the restaurant employees.

At 1:20 p.m., two restaurant employees went to the men’s washroom door. They quickly backed away from the door and one of the employees ran to the front service counter. The men’s bathroom door opened and the Complainant stepped out of the washroom. He was fully clothed but was not wearing his shoes. The Complainant was moving quickly, in an agitated state, and entered the women’s washroom.

At 1:27 p.m., a man wearing a reflective vest, known to be CW #2, entered the men’s washroom. He exited the washroom and walked to the front service counter. CW #2 and his friend, CW #1, approached the washrooms. They opened the door of the women’s washroom and looked into the washroom. One of the men returned to the front service counter to speak to the employees and then returned to the door of the women’s washroom. Both men entered the women’s washroom for approximately 30 seconds. They exited the washroom and CW #1 made a telephone call. During the call, he returned to the women’s washroom door and looked into the washroom.

At 1:39 p.m., paramedics were unloading a stretcher from their ambulance. The paramedics, CW #3 and CW #4, entered the restaurant. At 1:40 p.m., CW #3 looked into the women’s washroom. CW #3 entered the women’s washroom, as CW #4 stood at the washroom’s door.

At 1:44 p.m., WO #2 and WO #1 arrived. They went to the washrooms. They stood in the washroom hallway, as the paramedics went to retrieve their stretcher. At 1:48 p.m., the paramedics re-entered the restaurant and a male police officer wearing plainclothes and a police vest, believed to be WO #4, entered the restaurant with them. The police officer in plainclothes had a CEW mounted on the front of his police vest. Another male police officer arrived. WO #4 entered the women’s washroom for 31 seconds.

At 1:51 p.m., another male police officer wearing plainclothes arrived at the restaurant. This police officer (SO #1) approached the women’s washroom with a CEW in his right hand.

At 1:53 p.m., the paramedic supervisor, CW #5, arrived at the restaurant. A male police officer in uniform arrived at the same time.

A male uniform police officer, known to be SO #2, WO #4 and SO #1 approached the women’s washroom door. One of the two female uniformed officers (WOs # 1 and 2) handed her multitool to one of the male police officers at the washroom door.

At 1:55 p.m., male police officers entered the women’s washroom. Within approximately 30 seconds, police officers in the women’s washroom appeared at the washroom door, bending over as though in a struggle with someone who was on the floor. At 1:56 p.m., the Complainant’s feet can be seen sticking out of the washroom doorway and his feet were kicking. The Complainant appeared to be on his left side and his right leg appeared to lift off the floor and become rigid for five seconds, between 1:56:25 p.m. and 1:56:30 p.m. At 1:58 p.m., the Complainant’s right foot was still moving, indicating he was still responsive and active.

At 1:59 p.m., a male police officer returned from the parking lot with a hobble strap. The police officers secured the Complainant’s legs using the hobble strap.

At 2:00 p.m., the Complainant was lifted off of the floor and placed on the ambulance stretcher. The Complainant’s hands had been handcuffed in front of his body. His chest was moving, indicating he was breathing, but he did not appear to be conscious. His breathing appeared to be irregular and infrequent.

The Complainant was taken out to the ambulance.

Communications Recordings

On July 23, 2019, at 1:29 p.m., the Frontenac Paramedic Services (FPS) dispatcher telephoned KP to request police officers be dispatched to the Harvey’s Restaurant. The ambulance service had received a call regarding a male who was naked in the women’s washroom of the restaurant. The paramedic dispatcher reported the man was apparently high on something and was wrecking the washroom, yelling and screaming. Paramedics were responding.

At 1:33 p.m., WO #1 was dispatched to the restaurant. WO #2 also responded to the call.

At 1:37 p.m., the paramedic service telephoned the police dispatcher and reported the man [the Complainant] was passed out in a women’s washroom stall and the paramedic crew on scene could not get to him. The Complainant had reportedly destroyed both the men’s and women’s washrooms.

At 1:38 p.m., WO #2 radioed the police dispatcher and said, “Yeah, this is a Gong Show. Do you have a male officer close by that can assist?” At 1:39 p.m., WO #2 suggested it would be beneficial to have someone attend with a CEW.

At 1:39 p.m., WO #3 was dispatched to the restaurant. The dispatcher reported there was a man who was high on drugs and naked in the women’s washroom. The dispatcher advised that the man was destroying the washroom and the officers at the restaurant could not get at him. WO #2 then radioed the man was violent and was smashing things.

At 1:43 p.m., either WO #2 or WO #1 reported the Complainant was quiet and everything was okay while they waited.

At 1:51 p.m., WO #2 asked if any other officers had a hobble (leg restraint).

At 1:53 p.m., WO #1 reported they had a hobble on scene and they were going to restrain the Complainant, with the paramedics present. They would then make attempts to transport him to hospital.

At 2:00 p.m., a male police (believed to be WO #4) telephoned the station duty officer. WO #4 reported he and SO #1 had attended the restaurant to provide assistance. He stated they still did not know who the man was. He reported the man was messed up on something and they had to use a CEW in the bathroom because the man was not coming out and was fighting like crazy. WO #4 stated the man had been restrained and paramedics were dealing with him and would be taking him to hospital. He reported the Complainant was in and out of consciousness and his breathing was weak. The station duty officer suggested the man had been using fentanyl and WO #4 responded he would assume fentanyl, and a lot of it, because there were quite a few syringes in the washrooms. WO #4 commented he hoped things would not take a turn for the worse, but the man’s breathing was not great.

The station duty officer asked what the call was about. WO #4 explained a call came in from the Harvey’s Restaurant regarding a naked man in the women’s bathroom, which he was destroying. WO #1 and WO #2 arrived and they requested a male officer, so WO #4 attended with SO #1. The man was somewhat passed out until WO #4 tried to wake him to get him out to the paramedics. At that point the man “went nuts” again, kicking and trying to bite during the application of a CEW. He was then restrained. WO #4 again reported the Complainant’s breathing was faint.

At 2:01 p.m., WO #1 asked the dispatcher to query a woman. WO #1 believed the involved man was the woman’s common law partner, [4] whose name escaped her, but she believed the man’s name should show up in the woman’s file. At 2:03 p.m., the dispatcher gave WO #1 the Complainant’s name.

WO #1 asked the dispatcher to query the Complainant. The dispatcher soon reported the Complainant was before the courts on a number of charges and had numerous conditions, including not to consume alcohol and not to possess or consume drugs without a valid prescription.

At 2:07 p.m., WO #1 reported the Complainant had been loaded into an ambulance and they were heading to the hospital.

At 2:14 p.m., a female police officer requested a coroner and body removal service at the scene. At 2:15 p.m., WO #1 reported she was at KGH.

At 2:30 p.m., the station duty officer telephoned a police officer believed to be WO #4. The station duty officer asked, “Well?” WO #4 said he did not go in [to the examination room] with the man, he just went to the hospital to pick up SO #4. WO #4 said the Complainant was breathing better when they left the scene. The paramedics had medicated the Complainant so it was probably going to be fine. WO #4 said he would try to get an update for the station duty officer. The station duty officer responded he would let senior command know once he received an update, so they could hang up the telephone with the SIU.

At 2:42 p.m., WO #1 telephoned the station duty officer. The station duty officer told WO #1 that WO #4 had reported [the hospital] had given the Complainant some Ativan and he stopped breathing again. The station duty officer said they were just waiting for another update, to see whether the Complainant stabilized, so they could determine what they would do with the scene. WO #1 stated the hospital staff were still doing CPR on the Complainant. The station duty officer reacted with surprise. WO #1 said the situation did not look good. She said she would update him once hospital staff decided whether to continue [life-saving efforts]. WO #1 said there was no cardiac arrest at the scene or en route to the hospital. The station duty officer concluded it occurred after the hospital treated the Complainant with Ativan.

The station duty officer called an inspector and alerted her that the Complainant was not breathing and the hospital staff were performing CPR on him.

At 2:53 p.m., the station duty officer received a telephone call from WO #1, reporting the Complainant was deceased. The station duty officer said he would let the senior officers know.

At 2:54 p.m., the station duty officer telephoned the inspector and alerted her to the death of the Complainant. The inspector told the station duty officer to provide support to the involved officers and she would call the SIU to find out their intention, saying, “Are they going to buy my story that the hospital killed him and not us?” The station duty officer said, “Well it was. He was fine when he got there. It was the hospital that, he woke up and started fighting with them and then they hit him with something and then they couldn’t, then it stopped his breathing, then they fucked up, so.” The inspector said she would phone [the SIU] and find out.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the KP:
  • A copy of the communications and telephone recordings;
  • Detailed Call Summary Report;
  • List of Occurrences for the Complainant;
  • Seven Police Units’ Mobile Data Terminal (MDT) Logs;
  • Notes of all WOs;
  • Photographs – Harvey’s Restaurant;
  • Sudden Death Report;
  • Training PowerPoint-CEW 2019 Curriculum;
  • Training Schedule-Defensive Tactics 2019;
  • Training Schedule-Firearm 2019; and
  • Training-Use of Force Re-qualification dates for SO #1.

Materials obtained from Other Sources

In addition to the materials received from the KP, the SIU obtained and reviewed the following materials from other sources:
  • The Complainant’s medical records from the KGH;
  • Ambulance Call Reports from the FPS;
  • The final post mortem report from the Coroner’s Office; and
  • In-store surveillance camera recordings from the Harvey’s Restaurant.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, which included interviews with two civilian witnesses who were at the restaurant, two attending paramedics, and five of the involved officers including SO #1. SO #1 also provided a copy of his notebook entries. As was his legal right, SO #2 declined to be interviewed or authorize the release of his notes. Additionally, KP communication and telephone recordings, witness officers’ notes and CEW deployment records, as well as video surveillance from the restaurant, medical records and the post mortem report were of assistance to the investigation.

On July 23, 2019 at about 1:30 p.m., KP officers were dispatched to assist paramedics at a Harvey’s Restaurant on Princess Street in response to a report of a naked man destroying the washroom. Customers found the men’s washroom in disarray with personal items, syringes and water strewn on the floor. They discovered the Complainant sleeping on the floor of the women’s washroom. The Complainant awoke and became violent. He yelled loudly, banged the walls and attempted to tear the toilet paper dispenser off the wall. The restaurant manager learned about this.

At 1:35 p.m., two paramedics – CW #3 and CW #4 – arrived at the restaurant. Both paramedics entered the women’s washroom and found the Complainant lying on the floor apparently sleeping at the base of a toilet. He was dressed in a hooded sweatshirt and shorts. The toilet stall door was locked. CW #4 yelled under the door in an unsuccessful attempt to rouse him. The paramedics observed the Complainant to be breathing, moving slightly and moaning. They exited the washroom.

Within minutes, WO #1 and WO #2 arrived and were updated by paramedics. Due to concerns that the Complainant’s behaviour had been volatile and violent, WO #2 immediately radioed for both a male officer and an officer with a CEW to attend to assist. The two female uniformed officers waited outside the washroom and did not attempt to engage with the Complainant. At about 1:43 p.m., WO #4 arrived followed shortly by SO #1 and two uniformed male officers – SO #2 and WO #3. As members of the Street Crime Unit, both WO #4 and SO #1 carried CEWs and wore plainclothes accompanied by vests with “POLICE” written on the front and back in large white letters.

Shortly after arriving on scene, WO #4, SO #1 and SO #2 entered the women’s washroom. SO #2 managed to break the lock on the stall door in order to gain access to the Complainant. Attempts to verbally communicate with the Complainant were unsuccessful as he did not respond. As a result, SO #2 took hold of the Complainant’s sweatshirt and attempted to pull him out of the stall to be assessed in a more open area. The Complainant awoke and started to fight with the officers, moving his arms and legs violently according to the involved officers. He was yelling incoherently and none of the officers could understand what he was saying. SO #1 attempted to subdue him by applying his knuckles at a pressure point at the back of his jaw but this had no effect. The officers repeatedly informed the Complainant that they were the police, to calm down and follow their commands, but he continued to kick and flail.

SO #1 decided to employ his CEW. He warned the Complainant multiple times that he would be “Tasered” if he did not stop resisting. The Complainant did not comply. SO #1 deployed his CEW for a five second duration which temporarily immobilized the Complainant and allowed the officers to gain control and handcuff one of his arms. The Complainant began to fight again. SO #1 warned him that if he did not stop, he would be “Tasered” again. The Complainant continued to resist, so SO #1 deployed his CEW a second time but believed it was unsuccessful as he heard a ticking sound and saw the wire was broken. Nevertheless, the officers then gained control of the Complainant’s other arm and handcuffed him. The Complainant continued to kick so a leg restraint was also applied.

The officers carried the Complainant out of the washroom and placed him on the stretcher. The handcuffs were moved from securing his hands at the front of his body to the siderails of the stretcher. Initially when assessed, the Complainant was breathing slowly, only six to eight times a minute, but he soon resumed a normal breathing rhythm. The paramedics transported him to KGH accompanied by SO #1. When he arrived at the hospital at about 2:18 p.m., the Complainant was given medication and he calmed. SO #1 was soon told that the Complainant had stopped breathing and CPR had commenced. Unfortunately, resuscitative efforts were unsuccessful. The Complainant was declared deceased at 2:52 p.m.

Cause of Death


The pathologist at autopsy attributed the cause of the Complainant’s death to sudden cardiorespiratory arrest due to methamphetamine, fentanyl and carfentanil toxicity. The blunt impact injuries identified at autopsy, such as minor leg and forearm bruising/abrasions and rib fractures, were not interpreted to be potentially lethal nor to have significantly contributed to the ultimate cause of death. Furthermore, based on the interval of time with stable vital signs between the deployment of the CEW and death, the CEW deployment was not considered to be a factor contributing to the death, according to the pathologist.

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.

Analysis and Director's Decision

The Complainant passed away at KGH on July 23, 2019. Earlier the same afternoon, KP officers attended a local restaurant to assist paramedics by apprehending the Complainant. Among the involved officers were SO #1 and SO #2, who 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 subject officer committed a criminal offence in connection with the Complainant’s death.

I turn first to the lawfulness of the Complainant’s apprehension. From all accounts, the Complainant was of unsound mind and a threat to his own safety and the safety of others both before and during his interactions with the subject officers. His belongings were found scattered around the washroom and a syringe on the floor. He lay on the ground at the base of a toilet unresponsive to attempts by civilians and paramedics to verbally interact with him. Furthermore, he reacted violently to efforts to rouse him with water. Similarly, the Complainant became physically violent when SO #2 took hold of him to remove him from the confined washroom stall for assessment by paramedics. He was nonresponsive to officers’ commands and attempts to communicate with him. WO #4 described the Complainant as making only incoherent sounds. The Complainant’s behaviour made it clear he was not competent at the time to understand and determine for himself whether he required medical treatment.

One of the main duties of police under the common law is to protect and preserve life. I accept that the involved officers were in the lawful execution of that duty in apprehending the Complainant on July 23, 2019 to permit paramedics to safely assess and transport him to hospital as it was evident he required immediate medical attention. I am further satisfied that the officers also had the authority to arrest the Complainant for mischief in relation to the damage caused to the washrooms as reported by witnesses in the restaurant.

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. I am satisfied that the force used by the officers to take the Complainant into custody was proportionate and lawful, including the physical grappling, deployment of the CEW and limb restraints. The washroom where the interaction took place was a confined space and the environment presented a heightened safety risk for officers. Multiple witnesses observed syringes scattered around. SO #1 also noted urine and feces on the floor. The decision by the involved officers to enter the washroom stall and physically take hold of the Complainant with the intent of moving him to a larger space for assessment was reasonable. When the Complainant awoke, various witnesses recalled hearing SO #1 and SO #2 repeatedly inform him they were police, explain what they were doing and give verbal commands to calm down and comply. All the involved officers wore clothing that indicated they were police. Nevertheless, the Complainant violently struggled with them. SO #1 reported attempting to use his knuckles on a pressure point under the Complainant’s jaw to gain compliance to no avail. He warned the Complainant multiple times that he would “Taser” him if he did not stop resisting. The Complainant continued to struggle and kick. In these circumstances, I am satisfied that the SO’s decision to deploy his CEW twice in an effort to gain control of the Complainant as quickly and safely as possible was reasonable. Further, given the Complainant’s physical resistance and volatile state, I accept that the use of hand and leg restraints was judicious for the safety of the officers and paramedics.

The Complainant’s sudden death was tragic. The results of his post-mortem examination affirmed that his cause of death was attributed 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 the Complainant on July 23, 2019 committed a criminal offence in connection with his death. On this record, I am satisfied that there are no reasonable grounds to believe that the subject officers conducted themselves other than lawfully in their encounter with the Complainant and conclude there is no basis for proceeding with criminal charges in this case. Accordingly, this file will be closed.


Date: October 13, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) In fact, the Complainant had not stripped naked and was not naked. [Back to text]
  • 2) CW #5 was not interviewed (even though his colleagues CW #4 and CW #3 were interviewed) because he did not approach the washroom in which the Complainant was resting. CW #5’s involvement in the incident was well documented by the Harvey’s Restaurant video surveillance system. [Back to text]
  • 3) Times not necessarily synchronized with actual time. [Back to text]
  • 4) This was correct. [Back to text]

Note:

The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.