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 Wednesday, May 31, 2006 at 0322 hrs, Notifying Officer of the Toronto Police Service (TPS) notified the SIU of the custody injury to Deceased (DOB: ----redacted 1947), of a location, Toronto. The incident occurred on May 30, 2006 at 2354 hrs. Civilian Witness #1 asked for the assistance of the TPS because Deceased was acting strangely. The officers met Deceased on his front porch, a confrontation occurred and he repeatedly assaulted the officers. Deceased was pepper sprayed (with no effect) and then officers used their asp batons. According to Notifying Officer, Deceased collapsed on the front porch and went vital signs absent (VSA). Toronto Emergency Medical Services (TEMS) paramedics were present during the incident and they performed cardio pulmonary resuscitation (CPR) on Deceased and re-established a pulse; however, he remained unconscious. He was taken to Sunnybrook Health Sciences Centre (SHSC) where he remained unconscious. X-rays did not reveal any broken bones.

The investigation

At 0340 hrs, four SIU investigators and two SIU forensic identification technicians (FIT) were dispatched and arrived at a location at 0535 hrs. The scene was photographed and video taped, measurements were taken for a forensic map and evidence was collected for examination. The neighbourhood was canvassed for witnesses and statements were taken.

On June 2, 2006, Deceased was withdrawn from life support and died. On June 3, 2006, an SIU investigator and FIT went to the Coroner’s Building in Toronto where a lengthy autopsy was conducted on Deceased’s body. More photographs were taken and evidence was collected for examinations.

The following officers were designated as witness officers, were interviewed on the dates noted and provided copies of their notebook entries:

  • Witness Officer #1 (June 7, 2006)
  • Witness Officer #2 (June 7, 2006)
  • Witness Officer #3 (June 7, 2006)
  • Witness Officer #4 (June 7, 2006)
  • Witness Officer #5 (July 4, 2006)
  • Witness Officer #6 (June 7, 2006)
  • Witness Officer #7 (June 20, 2006)
  • Witness Officer #8 (June 20, 2006)

The following officers were designated as subject officers, were interviewed on the dates noted and provided a copy of their notebook entries:

  • Subject Officer #1 (July 5, 2006)
  • Subject Officer #2 (July 4, 2006)
  • Subject Officer #3 (July 12, 2006)

The SIU received and reviewed the following items from the TPS:

  • Event Details Report
  • Parade Sheets
  • Record of Arrest Report
  • Material Safety Data Sheet- Pepper spray
  • Email from Non-Witness Officer #1 to Non-Witness Officer #2
  • Use of Force Qualification for Subject Officer #1, Subject Officer #2 and Subject Officer #3, and
  • TPS telephone and radio communications recordings

The SIU interviewed seventeen civilian witnesses (including the following witnesses) on the dates indicated:

  • Civilian Witness #1 (May 31, June 7, July 10, 2006)
  • Civilian Witness #2 (May 31, 2006)
  • Civilian Witness #3 (May 31, 2006)
  • Civilian Witness #4 (May 31, 2006)
  • Civilian Witness #5 (May 31, 2006)
  • Civilian Witness #6 (June 15, 2006)
  • Civilian Witness #7 (May 31, 2006)
  • Civilian Witness #8 (May 31, 2006)

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

Having reviewed the results of the investigation, I have come to the conclusion that there are no reasonable grounds to believe any of the subject officers committed a criminal offence in connection with the events surrounding Deceased’s arrest and subsequent death.

The case is a particularly tragic one. In the end, it appears Deceased’s battle with mental illness played as big a role in his death as any other factor. Sensitive Personal Information his condition took a marked turn for the worse over the last couple of years of his life.

In the weeks leading up to the events in question, Deceased’s situation became particularly acute. He had become increasingly restless and was having trouble sleeping. He exhibited on and off manic behaviour. He had episodes of confusion and delusion. His medications were adjusted but this seems to have had little effect. Finally, just before midnight on May 30, 2006, Deceased’s situation deteriorated to the point that Civilian Witness #1 felt compelled to have him involuntarily admitted to hospital. He/She called for an ambulance, and cautioned the dispatcher that Deceased might not go willingly. And so it was that the officers were also dispatched to the scene. It is hard to see what more could have been done to avert the course of events that would ultimately cost Deceased his life later that night. And yet, despite the best efforts of his loved ones and the professionals around him, Deceased could not be saved.

It is clear that the subject officers used serious force, first in the form of pepper spray and then hand, knee and asp strikes, against Deceased. The evidence also establishes that Deceased suffered serious injury as a result of the officers’ interventions to subdue Deceased, which ranged from the physical force that was used to the prone position in which he was placed for a short period of time. Cumulatively, I am satisfied that these interventions contributed to the significant welts and bruising Deceased

Less clear is whether Deceased’s death can be attributed in a legal sense to the officers’ conduct. The question is whether there was any sufficient causal connection between the death and the officers’ actions. In this I have in mind the multi-factorial finding of the pathologist, who attributed Deceased’s death to “prone-position restraint in a man with schizophrenia-related excited delirium and coronary atherosclerosis.” The officers were responsible for placing Deceased in a prone position, but was the impact of that singular factor of sufficient weight to attract criminal sanction? Also noteworthy was the pathologist’s finding that the physical force used against Deceased did not result, directly or indirectly, to any lethal injury.

Be that as it may, I find it unnecessary to arrive at any final answer in respect of this question. That is because, whether or not the officers’ conduct caused or contributed to Deceased’s death, I am satisfied in the circumstances that the officers were justified in the criminal law in the actions they took.

With one notable exception, though the accounts of the various witnesses are not entirely consistent, the material facts in question are not really in dispute. Thus, whether Deceased struck Subject Officer #1 one or several times prior to the first discharge of pepper spray by Subject Officer #1, as the paramedics contend, or, as Subject Officer #1 himself/herself asserts, the officer first used the pepper spray after Deceased attacked Subject Officer #2, the fact is it was only after Deceased had without provocation assaulted one or the other officer that Subject Officer #1 responded. The same is true with where exactly Subject Officer #1 is said to have first deployed his/her pepper spray. Some said this occurred on the porch, while others maintained that it happened on the driveway.

There are a variety of these types of inconsistencies between the statements of the witnesses, but, aside from being the sort of discrepancies one would expect to emerge in the recollections of witnesses to a dynamic, fast-moving and violent situation, they do not undercut what in my view is the clear picture that emerges from the weight of the evidence. That evidence indicates that Subject Officer #1 and Subject Officer #2, aware that they were responding to a potentially volatile situation, arrived at the scene shortly after midnight. They had been dispatched to the scene as the result of a call from Civilian Witness #1, who had become concerned with Deceased’s behaviour and was seeking to have him hospitalized. Deceased was exhibiting nonsensical behaviour, and soon became belligerent and threatening. The officers engaged Deceased using tactical communication in an effort to calm him, but to no avail. Subject Officer #1 soon formed the opinion that there were grounds to detain Deceased under the Mental Health Act. The officer moved in to arrest Deceased when it appeared that he was about to re-enter the home. He/She was concerned that Deceased might re-emerge with a weapon. That is when it appears that “the fight was on.”

Deceased reacted violently and attacked the officers. He lunged at Subject Officer #2 and punched him/her several time about the head and face area, causing him/her to strike his/her head against the brick wall of an adjacent home. Subject Officer #1 came to his/her aid and delivered a number of knee strikes to Deceased’s legs. When this failed to subdue him, Subject Officer #1 deployed his/her pepper spray. The spray struck Deceased directly but had no effect. Deceased continued to assault the officers. The physical struggle moved first westward further into the driveway of a location and then back eastward towards the front lawn of a location. All the while, the officers screamed at Deceased to get down on the ground. Pepper spray was repeatedly deployed and a radio call for assistance went out. The officers withdrew their asps and struck Deceased’s legs repeatedly in an effort to fell him, but Deceased continued in his violent course.

The struggle eventually moved onto the lawn where the officers were able to gain the upper hand and force Deceased to the ground, first on his knees and then flat on his abdomen. Subject Officer #3 arrived at about this time and delivered several asp strikes to Deceased’s legs to get him down on the ground. Deceased continued to resist on the ground by flailing his arms at the officers and then, while flat on the ground, kicking out and refusing to surrender his arms to be handcuffed. This prompted Subject Officer #3 to use his/her asp a couple of more times, striking Deceased’s upper right side.footnote 1 Shortlythereafter, the officers were able to get Deceased’s hands cuffed behind his back and Deceased became immediately docile. The struggle lasted some 5 to 10 minutes. Soon thereafter, it became apparent that Deceased was having trouble breathing. Deceased’s handcuffs were removed by the officers, he was turned onto his back and the handcuffs re-applied to the front, and emergency treatment was commenced by the paramedics on scene.

In my view, it cannot be said in these circumstances that the force used by the officers, individually or in its cumulative impact, was more than was reasonably necessary to thwart Deceased’s violent course and affect his arrest. In many ways, the officers’ conduct reflected a model use of force response to the situation as it unfolded. It was only after tactical communication failed to pacify Deceased that the officers decided to use physical force. They began by simply taking hold of Deceased and advising he was under arrest. That too failed, prompting Subject Officer #1 to deploy the pepper spray when Deceased lashed out violently. And it was only after it became apparent that the spray was having no effect on Deceased that the officers resorted to asp strikes. Regrettably, it was only after numerous blows had been struck that Deceased was finally subdued and arrested. Notwithstanding the serious injuries that were inflicted, I am satisfied that the officers’ force throughout the confrontation was measured, proportionate and, therefore, justified at criminal law.

As for the prone restrain position used by the officers, I am of the view that it was reasonably necessary to quell Deceased and affect his arrest. The officers were alive to the risks attendant to this position and paid careful attention to Deceased’s condition following his arrest. As soon as it became clear that Deceased was lapsing into medical distress, the officers acted quickly to roll him on his back and handcuff him to the front. In total, the evidence suggests that Deceased was in the prone position for a short time. In the circumstances, I am confident the officers exercised a level of care consistent with their duty following Deceased’s arrest.

The notable evidentiary dispute I referred to above relates to Civilian Witness #1’s allegation that Deceased’s body was struck several times by the officers with their batons, including his face and head, while he was handcuffed on the ground. If true, the force used would have provided grounds for criminal sanction. I am satisfied, however, that the allegation is not true. This is not to suggest that Civilian Witness #1 lied to investigators or was anything other than a candid witness when he/she provided his/her statement. Rather, it appears Civilian Witness #1 is simply mistaken. Again, in the context of the extraordinary events he/she was witnessing, his/her mistake is not surprising. It was dark, the pepper spray had compromised his/her vision, this was a violent and dynamic situation involving a loved one, and there certainly was a struggle on the ground that included several asp strikes. However, none of the other eyewitnesses describe Deceased being struck after he was handcuffed. The allegation itself is implausible – there simply would have been no reason for the officers to behave in such a callous fashion, particularly in view of witnesses whose presence they were aware of. Most conclusively, one would have expected serious injuries to Deceased’s head and face were Civilian Witness #1’s allegation true. None were discerned at autopsy.

For these reasons, this file is closed with no charges contemplated.

Date: December 15, 2006

James L. Cornish
Director
Special Investigations Unit