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SIU Director’s Report - Case # 19-OCD-219

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 death of a 34-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 10, 2019, the Peel Regional Police (PRP) contacted the SIU and reported the death of the Complainant. The PRP reported that on September 10, 2019, at approximately 9:00 p.m., PRP police officers responded to an address on Morning Star Drive in Malton for a family disturbance. Civilian Witness (CW) #2 had called the police because his brother, the Complainant, was acting erratically. Two uniformed police officers responded to the call. A Conducted Energy Weapon (CEW) was used on the Complainant. He went into medical distress after he was hit with the CEW and went Vital Signs Absent (VSA). The Emergency Medical Services (EMS) responded and transported the Complainant to Etobicoke General Hospital (EGH), but he passed away.

The Team

Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 1

Complainant:

34-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

Witness Officers

WO Interviewed


Subject Officers

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


Evidence

The Scene

The residence on Morning Star Drive was situated in a residential area of Mississauga. There was an area of EMS intervention on the driveway. In the front porch area was evidence of CEW wire discharge. The CEW wire led to the front door of the residence. The front door of the residence showed no signs of forced entry.

The CEW wire continued inside the residence to a vestibule. The vestibule showed signs of disarray with the mat on the floor being overturned. There was further evidence of CEW discharge in the vestibule. Along with CEW wire, there were blast doors from a CEW and Anti-Felon Identification (AFID) tags discharged on the floor.

To the west of the front door, off the vestibule, was the living room where there was no evidence that anything had occurred in this area. Directly ahead in the vestibule was the entrance to the kitchen. The kitchen showed signs of CEW discharge with additional CEW wire, AFIDs and blast doors from a CEW found on the floor and counter areas. There were also CEW probes found in this area. Further into the kitchen area was a dining area with a table and chairs. The chairs were askew and in disarray. The dining area again showed signs of CEW discharge with AFIDs, blast doors from a CEW and probes found on the floor and table. There was a side entrance to the residence that entered this area. This door showed no signs of forced entry.

At the back side of the dining area was a stairway to a lower level family room. There was evidence of AFID discharge on the stairs and lower level carpeting. This area of discharge was very sparse compared to the upper ground level of the residence. Further examination of the rest of the home showed no signs of evidence involving interaction.

Scene Diagram

Scene diagram

Forensic Evidence


CEW Data


CEW- SO #1 discharged his CEW for five seconds on two occasions in the course of the incident, per below. [1]

CEW data - SO #1

CEW- SO #2 discharged his CEW once for five seconds in the course of the incident, per below.

CEW data - SO #2

Expert Evidence


Postmortem Report


On September 12, 2019, a postmortem was conducted on the deceased by a pathologist at the Toronto Pathology Unit, 25 Morton Schulman Avenue, Toronto.

Synopsis of Postmortem Report


There was a puncture with a CEW probe still in situ in the Complainant’s upper central region of his abdomen and a puncture wound in the proximal anterior area of his left thigh near his groin. CEW wire was found in the body bag next to the Complainant’s right flank and CEW wire under his body.

Given the localization of the probe/punctures on the Complainant’s body and the timeline of discharges to death, the CEWs likely did not play a major role, if any, in his death.

There were several abrasions found on the Complainant’s forehead, nose, cheeks and upper lip. There were abrasions found on his chest, upper back and right shoulder. There was also evidence of restraints to the wrists (handcuffs). No obvious anatomical or traumatic cause of death was identified. All the abrasions and contusions noted were non-fatal and could have resulted from contact with the ground while agitated or during the altercation with either his brother and/or the police officers.

As for the role of the restraints (handcuffs behind the back) and the prone position, it is less clear what role they played in the Complainant’s death given the two versions of events. If he lost consciousness while still prone and handcuffed, then they likely played a role in cardiorespiratory arrest impeding on respiratory movements and thus breathing. If he lost consciousness after restraints were removed and he was rolled over, their role in cardiorespiratory arrest is less clear, but the damage may have already been done prior (hypoxic injuries to the heart/brain from previous positioning) and may also have contributed to death.

Toxicology


Toxicology testing revealed cocaine, benzoylecgonine, ethanol and tentatively cocaethylene in the Complainant’s postmortem blood. Given the history and postmortem findings, cause of death was attributable to excited delirium (from cocaine and ethanol toxicity) during restraint. Excited delirium is characterized by agitation/aggression followed by sudden cessation of struggle, respiratory arrest and sudden death. It is usually associated with stimulants use (such as cocaine) but can also be triggered by ethanol, mental illnesses and systemic illnesses. The cumulative effects of agitation and struggles, position with impaired respiratory movements and cocaine likely all contributed to cause sudden cardiac arrest.

Cause of Death


Excited delirium (Cocaine and ethanol toxicity) during restraint.

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:
  • Closed Circuit Television (CCTV)-Brampton Transit.


CCTV-Brampton Transit


The CCTV footage was of no evidentiary value to this investigation.

Police Communications Recordings


PRP 911 and Non-Emergency Phone Line Call Recordings


9:01:46 p.m.

CW #2 called the non-emergency phone line. He told the call-taker he was having an issue at his parents’ house and requested the police there right away. He advised the call-taker of the address when asked and said it was a bad situation. He was asked was he having issues with his parents and he replied, “No,” that it was with his brother. He told the call-taker he believed his brother was having mental health issues and they had been going on for five days. CW #2 stated that he had had the police at his house prior and his mother had had police at her house the previous Sunday night for similar issues. [There was shouting and banging heard in the background and the phone line went dead. The call-taker tried to call CW #2 back, but his cell phone went to voice mail.]

9:06:22 p.m.

CW #1 called the 911 emergency line. She told the call-taker her son had just called 911, and they needed a police officer right away. She was asked if everyone was okay there and she replied she hoped so and that her sons were still fighting. The call-taker told her the police were at the door and she could go and let them into the house.

PRP Radio Communication Recordings


At 9:02 p.m., on September 10, 2019, SO #2 and SO #1 were dispatched to attend an address on Morning Star Drive for a domestic call. CW #2 stated he was having a domestic with his brother for the last five days. The complainant believed his brother had mental health issues. There was screaming heard by the dispatcher in the background and the police had attended the address on the weekend for the same thing and it sounded like there was physical fighting. The dispatcher indicated there had been a call to the address on September 9, 2019, when CW #1 had called after a physical altercation with her son, the Complainant, who was flagged as a drug/cocaine user.

At 9:10 p.m., a unit requested that the EMS attend the address. A second call was made for EMS and a request for a rush as the Complainant had been hit with CEWs and he was freaking out on the police officers while on the ground.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the PRP:
  • Two Event Chronologies;
  • Notes-the WO;
  • Two Occurrence Details;
  • Procedure-Incident Response;
  • PRP 911 Communications Recordings;
  • PRP Radio Communications Recordings;
  • CEW data;
  • Training Summary-SO #2;
  • Training Summary-SO #1; and
  • Training Summary-the WO.

Materials obtained from Other Sources

In addition to the materials received from the PRP, the SIU obtained and reviewed the following materials from other sources:
  • Drawing of Scene-CW #2;
  • Medical Records from EGH;
  • Peel EMS Unit- Ambulance Call Report (ACR)-CW #4;
  • Peel EMS Unit 3410- ACR-(2)-CW #3;
  • Peel EMS Unit 3080- ACR-a paramedic;
  • Peel EMS Unit 3080- ACR-(2)-a second paramedic; and
  • CCTV-Brampton Transit.

Incident Narrative

The material events in question are largely apparent on the evidence collected by the SIU, which included statements from two civilian witnesses, two paramedics and two of the involved officers, including SO #2. As was his legal right, SO #1 declined to be interviewed and neither subject officer authorized the release of his notes. In addition, PRP communication and telephone recordings, witness officer notes and CEW deployment records, as well as medical records, EMS records and the post-mortem report were of assistance to the investigation.

At 9:01 p.m., CW #2 called the non-emergency police line and requested police attend the house right away. He reported that it was a bad situation and his brother had been having mental health issues for the last five days. Police had attended his mother’s house the previous Sunday for similar issues with his brother. The police call-taker could hear loud angry shouting and banging in the background. The Complainant suddenly grabbed the phone and the call ended. The call-taker attempted to call back but there was no answer. SO #2 and SO #1 were dispatched to the house.

A few minutes later, CW #1 called 911 and requested police assistance right away as her sons were fighting. Angry yelling was heard in the background. While she was on the call, the responding officers arrived and knocked on her front door. SO #2 could hear arguing inside. Believing there was an active altercation, SO #2 wanted to be prepared to protect himself and others, so he entered the house with his CEW drawn. The brothers rushed up from downstairs and each told the officer he had been assaulted by the other. SO #2 asked them to sit on opposite sides of the room. He had his CEW raised and turned on hoping this would calm the situation. CW #2 complied, confirming he had called police about his brother. The Complainant was agitated and would not sit still. He got up and failed his arms around shouting at SO #2 not to use his CEW on him.

SO #1 had been inadvertently locked outside and was yelling through a window to be let in, so CW #1 opened the side door. He entered the house with his CEW drawn. SO #2 was still attempting to gain information from the brothers about what had transpired. The Complainant finally followed his direction and sat away from his brother. SO #2 felt the display of his CEW was effective, so he turned it off and re-holstered it.

Suddenly, the Complainant ran across the room. SO #2 believed he was lunging at him in an aggressive and agitated state. SO #1 deployed his CEW twice at the Complainant in succession, but it appeared to have no effect. The Complainant pulled off the CEW wires and continued to run toward the front door yelling and flailing his arms.

SO #1 grabbed hold of the Complainant near the front door and they struggled. SO #2 intervened to assist his partner and was struck in the chest by the Complainant. Given the close quarters and their difficulty in gaining control of the Complainant, SO #2 deployed his CEW with the intent of arresting him for assaulting his brother and the police. Again, the CEW appeared to have no effect and the Complainant opened the front door. The struggle moved outside onto the entrance walkway.

The officers were soon able to overpower the Complainant on the ground and handcuffed him with his hands behind his back. At 9:10 p.m., SO #2 requested paramedics attend as a CEW had been deployed and prong removal was needed. CW #2 told SO #2 that his brother may have ingested cocaine and alcohol.

According to SO #2, as a precaution, he and SO #1 turned the Complainant onto his left side to ensure he did not have trouble breathing.

The WO arrived at the scene at about 9:11 p.m. He recalled the Complainant yelling repeatedly for his father (who was deceased) and seeing him thrashing around as he lay on his front with his hands handcuffed behind his back held down by SO #1 and SO #2. His mother and brother watched from the front stoop. The WO assisted the officers in holding the Complainant on the ground. The WO told him the officers were going to try to sit him up. According to the WO, as he and another officer turned him onto his back, the Complainant yelled, thrashed around and kicked wildly so they turned him back onto his stomach.

The Complainant was not responding to the WO’s questions, but continued to yell, kick and struggle. The Complainant would yell then settle down. His words became slurred and difficult to understand. According to the WO, the officers tried to position the Complainant on his side as they were concerned about his breathing. The WO believed from his behaviour that the Complainant had taken drugs so at 9:15 p.m. he contacted the dispatcher to put a rush on the ambulance. The officers were concerned about the length of time it was taking EMS to arrive. The WO continued to try to converse with him. As the Complainant’s face was rubbing on the concrete the WO put his foot under his head, but he proceeded to bite the WO’s shoe.

At about 9:30 p.m., two paramedics – CW #3 and CW #4 – arrived at the house. When the paramedics arrived, the Complainant was lying prone on the ground and held down by one or two police officers. He was subdued and making incomprehensible noises.

It was dark outside, and visibility was poor. CW #3 asked the officers to turn the Complainant over so she could assess his vital signs but she was told the officers had recently tried to do that and he became violent. The Complainant was quickly assessed in order to ensure the necessities of life, such as breathing, airway and circulation, were present before the paramedics returned to the ambulance to get the stretcher and other equipment. There was a delay as CW #2 had to move his car from the driveway so the stretcher could reach his brother.

When CW #3 returned with the stretcher about a minute later, the Complainant went silent and had poor colour. The WO recalled that his head suddenly drooped, and he stopped speaking when CW #3 approached them. SO #2 described him and the WO sitting the Complainant up at that time and SO #2 felt his body go limp. The officers assisted the paramedics by lifting the Complainant onto the stretcher. It was as the Complainant was lifted onto the stretcher that he suddenly displayed a decreased level of consciousness; his eyes were open but not tracking, and he was silent and could hold his head up but was not responding to stimulus. Paramedics determined he had vital signs absent.
The officers removed the handcuffs as directed by the paramedics, who began attempts to resuscitate the Complainant. SO #1 and SO #2 assisted with CPR. The WO held a flashlight as the lighting was poor. An Advanced Life Support (ALS) ambulance and the Brampton Fire Department arrived to assist. The Complainant was transported to Etobicoke General Hospital where he was pronounced deceased soon after arrival.

Cause of Death


The pathologist at autopsy attributed the cause of the Complainant’s death to excited delirium (cocaine and ethanol toxicity) during restraint. The post-mortem report concluded that the cumulative effects of agitation and struggles, position with impaired respiratory movements and cocaine likely all contributed to cause sudden cardiac arrest. The CEWs likely did not play a major role, if any, in his death. [2]

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(1), 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 220, Criminal Code -- Causing death by criminal negligence 

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.

Analysis and Director's Decision

The Complainant died on September 10, 2019. That evening he was apprehended by members of the PRP and transported to hospital by EMS. SO #1 and SO #2 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.

There are two matters to be considered with respect to the officers’ potential criminal liability in relation to their involvement in the incident that culminated in the Complainant’s death. I will first address whether the degree of force used during the apprehension was lawful. Secondly, I will turn to whether the level of care exercised by the officers in their dealings with the Complainant was substandard and, if so, whether it was sufficiently so to ground criminal liability.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in the force they use to that which is reasonably necessary in the execution of an act that they are required or authorized to do. The subject officers were lawfully in the execution of their duties when they attended and entered the Complainant’s house in response to two phone calls to police from family members inside, including a 911 call. In my view, SO #2 provided the Complainant with sufficient opportunity to engage with him without force being used and the officers only resorted to force when his behaviour suddenly turned threatening. Prior to their arrival, SO #2 and SO #1 were aware that the Complainant might be high on drugs and had had a physical altercation with his brother. He did not follow SO #2’s direction, while displaying agitated and aggressive behaviour. The officers were in an unfamiliar, confined and volatile environment. One of the main duties police have under the common law is to protect and preserve life. The officers discharged their CEWs, first in an attempt to protect themselves when he suddenly ran towards SO #2, and subsequently to control and apprehend the Complainant whose behaviour made him a potential danger to himself and others.

By all accounts, the initial CEW deployments by SO #1 and subsequent deployment by SO #2 did not incapacitate the Complainant and he continued to be combative. He was in an agitated state, struggling and not following the officers’ directions. He struck, perhaps inadvertently, SO #2 with his arm. Even after being handcuffed, the Complainant continued to yell and struggle with the officers on the ground. The officers had to continue to hold him down in order to keep him under control until the paramedics arrived. No additional use of force options were employed. In the stated circumstances, I am satisfied that the level of force resorted to by each of the subject officers was measured and reasonably necessary in order to apprehend the Complainant for his safety and the safety of others, and furthermore for assaulting his brother and SO #2.

With respect to the level of care observed by the officers in their dealings with the Complainant, the offence for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. Liability for the offence is premised, in part, on conduct that amounts to a marked and substantial departure from a reasonable level of care in the circumstances. While I am troubled by the evidence suggesting the Complainant was held prone on the ground for some period of time prior to the paramedics’ arrival, I am not satisfied on reasonable grounds that the subject officers’ conduct amounted to a wanton or reckless disregard for the life or safety of the Complainant.

The officers seem to have been aware of the dangers associated with placing an agitated prisoner in a prone position. Multiple lines of evidence, including the statements of SO #2 and the WO, indicated that the subject officers specifically took steps to ensure that the Complainant was placed on his side, pending the arrival of the ambulance, to facilitate his breathing. This evidence stands in conflict, however, with other lines of evidence, according to which the Complainant was being restrained on his stomach by the officers when the paramedics arrived on the scene. While I am unable to make a definitive finding on this issue given the relative strength of the competing versions of events, there is at the very least a reasonable basis to conclude that the Complainant did spend a portion of the time on the ground in the prone position after he was handcuffed and prior to the paramedics’ arrival.

The Complainant’s position on the ground in the prone position carried with it a level of risk and may have played a role in the death. As the pathologist at autopsy concluded, the fact that the Complainant was handcuffed behind the back and in the prone position “likely” played a role in his death if he lost consciousness prior to being rolled over and unrestrained. If unconsciousness set in after the handcuffs were removed and he was rolled over, their role, though less clear, “may also” have contributed to the Complainant’s death.

Setting aside the issue of when precisely the Complainant lost consciousness, the fact that he may have been restrained and in a prone position for longer than he arguably ought to have been is not the end of the reasonableness analysis. The Complainant had proven a formidable physical challenge to the officers’ efforts to control him. On the one occasion they attempted to sit him up in a seated position, he thrashed about and kicked his legs wildly. In the circumstances, while it may be the officers might have exercised greater care by opting to avoid placing the Complainant in the prone position altogether, their possible failure to do so must be understood in context. It should also be noted that SO #2 requested EMS soon after the Complainant’s apprehension. Five minutes later, the WO radioed that a rush be placed on the ambulance, which would eventually arrive on scene at about 9:30 p.m. Finally, as soon as paramedics determined the Complainant’s vital signs were absent, both SO #1 and SO #2 immediately assisted with efforts to resuscitate him.

In the final analysis, it remains unclear on the evidence whether and to what extent the role of restraints and the prone position caused or contributed to the Complainant’s death. Be that as it may, while it may be that the subject officers acted unreasonably in placing the Complainant in a prone position for any length of time given his highly agitated state at the time, I am unable to reasonably conclude that the officers’ indiscretions, weighed in the balance with the totality of the evidence, rendered their conduct a marked and substantial departure from a reasonable level of care in the circumstances. [3]

The Complainant’s death was a tragedy. However, for the foregoing reasons, there is insufficient evidence in my view to reasonably conclude that the level of force resorted to by the involved officers fell outside the range of what was lawful or that the level of care they exercised was so substandard as to attract criminal sanction. Accordingly, there are no reasonable grounds to proceed with criminal charges and this file is closed.


Date: November 16, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Times are those produced by CEWs and are not necessarily synchronized with actual time. [Back to text]
  • 2) I note at this point that some evidence suggests that SO #1 told SO #2 to put the Complainant in a chokehold to put him asleep as the struggle moved onto the ground outside the front door. Other evidence suggests that a police officer [believed to be the WO] said to the paramedics that the Complainant had been choked and put to sleep. I am unable to place much if any weight on this evidence. No witness clearly claimed to see the Complainant being choked. Moreover, SO #2 did not report having heard such a direction, nor did he say he ever choked the Complainant. Finally, the WO did not indicate he told the paramedics that the Complainant had been choked, nor do the paramedics say they were ever informed as much. [Back to text]
  • 3) I am also of the view that there are no reasonable grounds to believe that the officers’ conduct caused or contributed to the Complainant’s death in light of the conflict in the evidence regarding when precisely he lost consciousness and the pathologist’s opinion that restraint and the prone position may (but may not have) have played a role in the death if unconsciousness occurred after the handcuffs were removed and the Complainant was rolled over. Accordingly, even if the officers could be seen to have been criminally negligent, there would still be no reasonable grounds to believe their conduct caused the Complainant’s death for purposes of laying charges. [Back to text]