Explanatory note

The Ontario Government is releasing past SIU Director Reports (submitted to the Attorney General prior to May 2017) that include fatalities involving a firearm, physical altercation, and/or use of conducted energy weapon, or other extensive police interaction that did not result in a criminal charge.

Justice Michael H. Tulloch made recommendations about the release of past SIU Director Reports in the Report of the Independent Police Oversight Review, released on April 6, 2017.

Justice Tulloch explained that since past reports were not originally drafted for public release they may have to be edited substantially to protect sensitive information. He took into account that confidentiality assurances were given to various witnesses during the course of SIU investigations, and recommended that some information be redacted in the interests of privacy, safety, and security.

As recommended by Justice Tulloch, this explanatory note is being provided to assist the reader’s understanding of why certain information is redacted in these reports. Notes have also been inserted throughout the reports to help describe the nature of the information that was redacted and why it was redacted.

Law enforcement and personal privacy information considerations

Consistent with Justice Tulloch’s recommendations and guided by section 14 of the Freedom of Information and Protection to Privacy Act (FIPPA) (relating to law enforcement information), portions of these reports have been removed to protect:

  • confidential investigative techniques and procedures used by the SIU
  • 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
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Consistent with Justice Tulloch’s recommendations and guided by section 21 of FIPPA (relating to personal privacy information), personal information, including sensitive personal information, has also been redacted, except that which is necessary to explain the rationale for the Director’s decision. 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
  • other identifiers which are likely to reveal personal information about individuals involved in the investigation, including in relation to children
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Personal health information

Information related to the personal health of individuals that is unrelated to the Director’s decision (taking into consideration the Personal Health Information Protection Act, 2004) has been redacted.

Other proceedings, processes, and investigations

Information may have also been excluded from these reports 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.

Director’s report

Notification of the SIU

On Friday, July 1, 2005 at 0344 hrs, Notifying Officer of the Niagara Regional Police Service (NRPS) notified the SIU of the custody death of 39-year-old James Foldi. It was Notifying Officer’s understanding that at 0240 hrs, the NRPS received a number of frantic 911 calls from citizens living on a location in Beamsville reporting that Mr. Foldi had jolted them awake by banging on their front doors. In two cases, Mr. Foldi actually forced his way into the home.

When NRPS officers arrived on the street they saw Mr. Foldi run into a location. The officers initially confronted Mr. Foldi in a rear bedroom of the address, and then again minutes later, in a confined walkway adjacent to the address. During a violent struggle in the walkway, Mr. Foldi was pepper sprayed and “Tasered” by the police. Shortly thereafter, he became breathless and all attempts to resuscitate him by both the police and paramedics were unsuccessful. Mr. Foldi was pronounced dead in a local hospital a short while later.

The investigation

Four SIU investigators and three SIU Forensic Identification Technicians (FIT) were immediately dispatched to Beamsville with the first SIU investigator arriving in the town within 90 minutes. Once there, the SIU FIT extensively photographed and videotaped the area in and around a location, collected a number of biological samples at this address, as well as from various other locations throughout the neighbourhood. They also seized other items with potential relevance to the investigation. Additionally, the FIT used a Total Station to complete a survey of the interior and exterior of a location, as well as other dwellings visited by Mr. Foldi during his rampage. Later on July 1, the SIU attended Mr. Foldi’s post mortem examination.

Meanwhile, SIU investigators canvassed the neighbourhood and interviewed a number of residents. After liaising with the NRPS and conducting a preliminary investigation, the following NRPS personnel were designated as subject officers:

  • Subject Officer #1
  • Subject Officer #2
  • Subject Officer #3

Upon advice of their counsel, all three officers unfortunately refused to be interviewed by the SIU.

The following NRPS personnel were designated as witness officers and all four provided both a statement and their notes to the SIU on July 5 and 6 and August 10 respectively:

  • Witness Officer #1
  • Witness Officer #2
  • Witness Officer #3
  • Witness Officer #4

Upon request, the NRPS provided the SIU with the following material:

  • A copy of the communication tape relevant to the 911 calls
  • A copy of the CAD printout
  • A copy of the sudden death report for Mr. Foldi
  • All equipment worn by the subject officers, including the Taser used by Subject Officer #1
  • A copy of the NRPS protocol on the use of the Taser
  • A copy of the NRPS regulation on Mentally Ill Persons
  • A copy of the NRPS regulation on Use of Force, and
  • Other NRPS material deemed relevant by the SIU

During the lengthy SIU probe, the following civilians witnesses were interviewed either on July 1, or in the days following the incident:

  • Civilian Witness #1
  • Civilian Witness #2
  • Civilian Witness #3
  • Civilian Witness #4
  • Civilian Witness #5
  • Civilian Witness #6
  • Civilian Witness #7
  • Civilian Witness #8
  • Civilian Witness #9
  • Civilian Witness #10
  • Civilian Witness #11
  • Civilian Witness #12
  • Civilian Witness #13
  • Civilian Witness #14
  • Civilian Witness #15
  • Civilian Witness #16

Confidential witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence (Law Enforcement and Privacy Considerations)

Director’s decision under s. 113(7) of the Police Services Act

There are no reasonable grounds to believe that any of the officers involved in this case committed any criminal offence. I shall first outline the behaviour of Mr. Foldi in the last few minutes of his life and then deal with the actions of the officers. In the course of dealing with the evidence in respect of the actions of the police I will discuss the use of the Taser and what conclusions I have drawn from the available evidence. I shall then deal with the medical evidence as it relates to Mr. Foldi and draw my own conclusion of what caused Mr. Foldi’s death. I am well aware that this case will be the subject of a Coroner’s inquest and as such my conclusions in respect of the cause of Mr. Foldi’s death will be modified insofar as they are available to the public.

The evidence gathered in this lengthy and thorough investigation tells the story of the last day of Mr. Foldi’s life, June 30 - July 1, 2005. Mr. Foldi spent some of that day ingesting cocaine. In the very early hours of July 1, 2005 Mr. Foldi became panic stricken, paranoid and frantic. His bizarre behaviour exploded out onto the street as he rushed outside in apparent horror. He ran down the street yelling for help from an unseen peril.

In the course of this frenzied flight Mr. Foldi smashed a window on one house, apparently wanting to seek refuge there. He cut his hand quite badly on the broken glass yet was not deterred from his flight. He ran down the street continuing to scream out for help and banging on many other doors in the neighbourhood. He gained entry into one of those homes and the occupants were confronted with a terrified and panic-stricken man seeking help and apparently in fear of a wolf.

It was whilst he was in that home that the police came in answer to a number of 911 calls. Unfortunately the subject officers refused (as is their right) to provide a statement to this Unit and thus I must draw on other available evidence to attempt to determine what occurred during the course of the police involvement. I am aided somewhat in the statement of the one witness officer and by the observations of civilian witnesses. The physical evidence also provides significant insight into what the officers must have done.

I am satisfied that once the police attended they first tried to subdue the inconsolable Mr. Foldi by firing the Taser, attempting to incapacitate him with the electrical jolt that is delivered over the wires that connect to him. It is apparent this was attempted while he was inside of the home he did enter. It is equally clear that the probes must not have fixed into his skin. Had they done so, Mr. Foldi would have fallen to the floor and been unable to move, at least for a time, regardless of the amount of cocaine in his system.

Instead Mr. Foldi jumped through a window and fled into a garage. There Mr. Foldi injured his forehead when he smashed a window on the garage and then he attacked a car in the garage with his fists. When confronted there by the police he agilely leapt out of the garage and was grabbed by a number of officers. A protracted struggle ensued wherein Mr. Foldi continued to exhibit phenomenal strength and agility.

The struggle lasted for almost two minutes. It was then that the officers were able to secure his hands in hand cuffs. During the course of the struggle the police used the Taser in what is called the drive stun mode. The use of the Taser in this mode is designed to cause pain to the subject in order to convince the subject that it would be better if he stopped struggling and complied. That is called the pain-compliance response. This of course assumes that the person who is receiving the electrical jolt will feel the pain and act in a rational way; those assumptions are inapplicable when dealing with someone who is significantly under the influence of cocaine. The Taser was not having the desired effect of Mr. Foldi and yet it was discharged 11 times.

I cannot say for sure how many of those 11 discharges were emitted while the prongs of the Taser were against Mr. Foldi’s body. The marks on Mr. Foldi’s body make it plain that some of those discharges did occur while the Taser was in contact with Mr. Foldi. It must be remembered that the Taser was being used during the course of a violent struggle and thus it is likely that some of the discharges occurred while the Taser was not in contact with Mr. Foldi or if there was initial contact, that contact may have been broken by the movement of either the officer or Mr. Foldi. There is however nothing in the evidence that causes me to believe that the Taser was used as an instrument of torture in respect of Mr. Foldi. The evidence indicates that the Taser was used to evoke the pain- compliance response. It is clear however that it did not have the desired effect.

Once the officers had Mr. Foldi’s hands cuffed they became immediately concerned about his heavy breathing and called for an ambulance. They then noticed that Mr. Foldi became calm, quickly realizing that he was no longer breathing. He was put in the recovery position and emergency first aid was administered first by the police and then by EMS personnel. Unfortunately Mr. Foldi’s life could not be saved.

The analysis of Mr. Foldi’s blood showed that he had a potentially lethal amount of cocaine in his system at the time of his death. Indeed he had cocaine secreted on his body at the time of this incident. The autopsy performed on his body revealed no life- threatening injuries and no anatomical cause of death.

I have been advised time and again by experts that if electricity is the cause of someone’s death, that death comes immediately upon the electrical charge being delivered to the body. Mr. Foldi continued to struggle and breathe for some time after the Taser was used. Therefore, based upon the only available expert opinion on this mechanism of death, I believe that his death was caused by something other than the use of the Taser.

I believe that Mr. Foldi died from excited delirium. This condition’s hallmarks are clearly illustrated in the evidence available in this case. Furthermore, toxicological testing did reveal that Mr. Foldi had a potentially lethal level of cocaine in his system at the time of his death.

Whatever the cause of Mr. Fold’s death I am satisfied that none of the subject officers bear any criminal liability in relation to it. In their time with Mr. Foldi they struggled to control a man in a violent, excited state. Once they gained control of him they were cognizant of the dangers associated with positional asphyxia and took steps to mitigate them, and then acted quickly to assist in whatever way they could with medical intervention at the first sign of distress. In these circumstances, I am of the view that the officers’ conduct fell well within the requisite level of care prescribed by the criminal law.

I remain concerned about the continued use of the Taser in the drive stun mode when it appears that it should have been obvious to the officer using it that it was not working. This appears to be a training issue.

In short, I am satisfied on the available evidence that the officers in this case had grounds to arrest Mr. Foldi and in all the circumstances that they were justified in using force to affect that arrest. The amount of force used of course must be reasonable but our law is clear that the amount of force used need not be measured to a nicety. Furthermore, based upon the best expert evidence available, I am satisfied that Mr. Foldi’s death cannot be attributed to the use of the Taser nor indeed to the force used by the police. Our investigation has ruled out any conduct of the police as being the cause of Mr. Foldi’s death. Accordingly it will be left to other processes to examine the evidence in this case and determine the exact cause of Mr. Foldi’s demise.

Date: January 30, 2006

Original signed by

James L. Cornish
Director
Special Investigations Unit