SIU Director’s Report - Case # 15-TCD-257

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

Notification date and time: 11/07/2015 at 2028 hours
Notified by: Police

On November 6, 2015, at 0819 hrs, Notifying officer of the Toronto Police Service (TPS) contacted the SIU to report that Mr. Rodrigo Almonacid Gonzalez was admitted to St. Joseph’s Hospital (SJH) due to a cardiac arrest from a cocaine overdose following his arrest by Emergency Task Force (ETF) officers earlier that morning. He/She reported that at 0004 hrs, TPS were called to Apartment ----)redacted at a location by Civilian witness #1 who stated that he had taken cocaine and was wrecking the apartment. Police arrived on scene shortly afterwards and Mr. Almonacid Gonzalez barricaded himself in the bathroom. ETF negotiated with Mr. Almonacid Gonzalez for about two hours before they were able to get him out of the bathroom. Due to his behaviour, a conducted energy weapon (CEW) was deployed, but he suffered no injuries. Mr. Almonacid Gonzalez was taken to SJH, where he was sedated and intubated due to his behaviour. He was then admitted to the Intensive Care Unit (ICU) due to a cocaine overdose. As a result, the case was classified by the SIU as non-jurisdictional^{footnote 1[1]}

On November 7, 2015, at 2028 hrs, Notifying officer contacted the SIU to advise that Mr. Almonacid Gonzalez had died at 1705 hrs that day. It was agreed that the SIU would attend the post-mortem examination to confirm that the cause of death was in fact an overdose, and there was no reason to believe it was related in any way to the involvement of police during his arrest. The post-mortem examination was conducted on November 9 and 10, 2015 by Doctor #3. No preliminary cause of death was determined at that time. As a result, the SIU proceeded with an investigation.

Overview

On the night of November 5, 2015, Mr. Almonacid Gonzalez was in his apartment arguing with Civilian witness #1. At 0002 hrs, on November 6, 2015, he/she called 911 in a frantic state requesting police assistance at his/her apartment. When the officers arrived, they found Mr. Almonacid Gonzalez making noise in the bathroom with the door closed. The officers contained him in the bathroom until the ETF arrived. The ETF initiated a negotiation with Mr. Almonacid Gonzalez through the bathroom door, before ultimately entering and arresting him under the Mental Health Act. ETF officers engaged in a struggle with Mr. Almonacid Gonzalez while trying to handcuff him. Subject officer #1 and Subject officer #2 deployed CEWs. Mr. Almonacid Gonzalez was taken to hospital where he died the following day from complications of acute cocaine toxicity according to the post­ mortem report.

The investigation

Response type: Scheduled Response
Date and time team dispatched: 11/07/2015 at 2110 hours
Date and time SIU arrived on scene: 11/07/2015 at 2125 hours
Number of SIU investigator(s) assigned: 4
Number of SIU forensic investigator(s) assigned: 2

Complainant

Mr. Rodrigo Hector Almonacid Gonzalez

Civilian witnesses

Civilian witness #1 Initial interview: November 10, 2015

Civilian witness #2 Initial interview: November 10, 2015

Civilian witness #3 Initial interview: November 13, 2015

Civilian witness #4 Initial interview: November 13, 2015

Civilian witness #5 Initial interview: November 17, 2015

Civilian witness #6 Initial interview: November 17, 2015

Civilian witness #7 Initial interview: November 18, 2015

Civilian witness #8 Initial interview: November 18, 2015

Civilian witness #9 Initial interview: November 23, 2015

Civilian witness #10 Initial interview: November 23, 2015

Civilian witness #11 Initial interview: November 18, 2015

Doctor #1 Initial interview: December 14, 2015

Doctor #2 Initial interview: February 5, 2016

Subject officers

Subject officer #1 Did not consent to an interview

Subject officer #2 Did not consent to an interview

Copies of notebook entries were not provided by the subject officers.

Witness officers

Witness officer #1 Initial interview: November 26, 2015

Witness officer #2 Initial interview: November 20, 2015

Witness officer #3 Initial interview: December 3, 2015

Witness officer #4 Initial interview: November 23, 2015

Witness officer #5 Initial interview: November 26, 2015

Witness officer #6 Initial interview: November 20, 2015

Witness officer #7 Initial interview: November 20, 2015

Witness officer #8 Initial interview: November 20, 2015

Witness officer #9 Initial interview: November 23, 2015

Witness officer #10 Initial interview: December 7, 2015

Witness officer #11 Initial interview: November 23, 2015

Witness officer #12 Initial interview: November 24, 2015

Upon request, the SIU obtained and reviewed the following materials and documents from TPS

• Al-012 Use of Force Guideline December 2014
• AI-012B Training Standard for CEW Users December 2014
• AI-012C Training Standard for CEW Trainers December 2014
• AI-012D Training Standard for Re-qualification Training December 2014
• AI-012E Training Standard for CEW Familiarization
• AI-012F Training Standard for Trainer Re-certification
• AI-012G Training Standard for Instructor Trainers
• AI-012H CEW Technical Specs December 2014
• Form C163- Notification of Death (RCMP)
• Sensitive Personal Information
• CEW 1- Data Card
• CEW 2 - Data Card
• CEW info (Sent from Snipping Tool)
• COMM Summary of Conversation
• Conducted Energy Weapon Use Report-Subject officer #2
• Conducted Energy Weapon Use Report-Subject officer #1
• Sensitive Personal Information
• Email from TPS re subject officers-Feb 16, 16
• Equipment Issued ETF
• FIS Thumb Nails
• General Occurrence
• General Occurrence-----)redacted
• High Risk Incident Report-----)redacted
• ICAD-911Call Log-----)redacted
• ICAD-Event Details Report-----)redacted
• Injury Report 2015.11.10
• Lync Summary ----)redacted
• Notes-Witness officer #12
• Notes-Witness officer #5
• Notes-Witness officer #10
• Notes-Witness officer #7
• Notes-Witness officer #8
• Notes-Witness officer #4
• Notes-Witness officer #11
• Notes-Witness officer #1
• Notes-Witness officer #2
• Notes-Witness officer #6
• Notes-Witness officer #9
• Notes-Witness officer #3
• Parade Sheets- 11Division C Platoon (Nights)
• Parade sheets- 11 Division Night
• Parade Sheets- ETF
• Police Contact Sheet- scene photos
• Policy 15-09- Use of Force (CEW)
• Sensitive Personal Information
• Sensitive Personal Information
• Procedure 0604- Appendix B
• Procedure 0604- Appendix A
• Procedure 0604- Emotionally Disturbed Persons
• Procedure 1005- Incidents Requiring the ETF
• Procedure 1509- Conducted Energy Weapon
• TPS Communications Audio Request
• Training Material-Defensive Tactics-2014 Training Program
• Training Material-Use of Force-2015 Training Program
• Training Record-Use of Force-Subject officer #2
• Training Record-Use of Force-Subject officer #1
• Training-Use of Force-Subject officer #2
• Training-Use of Force-Witness officer #12
• Training-Use of Force-Non-Witness officer #1
• Training-Use of Force-Witness officer #10
• Training-Use of Force-Witness officer #4
• Training-Use of Force-Witness officer #11
• Training-Use of Force-Subject officer #1
• Training-Use of Force-Witness officer #3, and
• VDX Narrative Summary ----)redacted

The scene

The scene was a two bedroom apartment with one bathroom, a kitchen and a combined living and dining room. The following depict the scene:

• drawing by Witness officer #8
• drawing by Witness officer #3
• SIU rough diagrams- apartment and bathroom, and
• SIU scene scale diagram

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 insufficient grounds to believe that the subject officers, Subject officer #2 and Subject officer #1, committed a criminal offence in relation to the death of Mr. Rodrigo Gonzalez.

Mr. Gonzalez died in St. Joseph’s Hospital on November 7, 2015. His admission to hospital followed an altercation between Mr. Gonzalez and members of the Toronto Police Service Emergency Task Force (ETF) which occurred in the bathroom of his apartment. Mr. Gonzalez had barricaded himself in the washroom, which necessitated the involvement of the ETF. After attempts at negotiation failed, the ETF team forcibly entered the bathroom for the purpose of effecting an apprehension pursuant to the Mental Health Act. A struggle ensued after the officers entered, and both subject officers made use of their conducted energy weapon (CEW). Mr. Gonzalez was then taken to the hospital for medical treatment. He suffered two cardiac arrests while receiving treatment in the hospital, and the second was fatal. Aided by a toxicological report as well as a cardiovascular examination, the Province’s Deputy Chief Forensic Pathologist determined the cause of death to be "complications of acute cocaine toxicity".

Factual findings

The facts that preceded the ETF's forced entry into Mr. Gonzalez’s bathroom are clear, and beyond dispute. On November 6, at 12:02 a.m. Emergency Services received a 911 call from Civilian Witness #1. Civilian Witness #1 can best be described as panicked and frantic during the call. He/She was able to provide his/her surname, and make a fearful plea for the police to attend his/her address before the call disconnected. The 911 operator attempted to return the call multiple times between 12:02 a.m. and 12:12 a.m. but no one answered the phone. Emergency Services was able to obtain the subscriber information for the telephone number, and accordingly officers were dispatched to a location, apartment ----)redacted.

Witness officer #7 was the first officer to respond to the dispatch and arrived on scene at the apartment at 12:20 a.m. He assessed the interior of the apartment as being quiet and found the door to be unlocked. He announced himself as a police officer, and made his way inside apartment ----)redacted. Upon entering the residence, Witness officer #7 found it to be dimly lit with various items and pieces of furniture strewn about. He immediately heard a noise that suggested someone was inside. After briefly surveying the apartment, he was able to determine that the sounds were coming from inside the bathroom. He called out but received no response. Civilian Witness #2 then entered the apartment and advised that Civilian Witness #1 lived there. Witness officer #7 asked Civilian Witness #2 to leave. He heard that the noises emanating from the bathroom were growing increasingly louder, and it sounded like a struggle. He drew his gun, and demanded the bathroom door be opened. His concern was that there was a woman inside the bathroom being assaulted.

Witness officer #7 kicked the door a number of times, but was unable to force it open. It seemed that someone was holding it shut from the inside of the bathroom. He kicked the door again and succeeded in forcing it open slightly. He was able to see Mr. Gonzalez standing inside. He was naked, holding the porcelain toilet lid above his head and alone. Witness officer #7 indicated that Mr. Gonzalez said nothing in response to his presence, but simply glared at him. After Witness officer #7 confirmed that no one else was inside the bathroom he pointed his firearm at Mr. Gonzalez and demanded that he drop the toilet lid. When Mr. Gonzalez refused, Witness officer #7 slowly backed away down the hallway. Mr. Gonzalez then slammed the bathroom door shut.

Witness officer #7 maintained the security of the scene while he awaited the arrival of other officers. He believed that Witness officer #5 and Witness officer #6 entered the apartment in short order^{footnote 18[18]}. While the three officers were present, Civilian Witness #1 entered the apartment. He/She provided information to the officers that Mr. Gonzalez had gone on a rampage, smashing everything in the apartment. He/She also stated that he had recently consumed cocaine^{footnote 19[19]}. While the three officers were in the apartment, they heard constant banging and smashing sounds coming from inside the bathroom. They discussed going into the bathroom, but decided that it would be unsafe to enter. They also concluded that they would have difficulty restraining Mr. Gonzalez if he came out. Witness officer #7 made a request over the radio for an officer armed with a CEW to attend.

Witness officer #8 arrived at the apartment at 12:33 a.m. He took a position near the door with his CEW in hand. Witness officer #7 stood by with his firearm drawn while Witness officer #6 had his/her baton out. Witness officer #8 attempted to make contact with Mr. Gonzalez but was unsuccessful. Given that he was faced with an individual who had effectively barricaded himself in a room, Witness officer #8 requested that the ETF attend in accordance with Toronto Police Service Policy^{footnote 20[20]}. The constables maintained the scene while Witness officer #8 began evacuating nearby apartments for safety reasons. The constables continued their attempts to establish communication with Mr. Gonzalez, but were unsuccessful. All the while, sounds were coming from the bathroom which suggested that Mr. Gonzalez was smashing things.

The ETF team that was requested at 12:42 a.m. and subsequently arrived at approximately 1:15 a.m. was under the command of Witness officer #9. In addition to the commanding officer, the team consisted of Witness officer #12, Witness officer #10, Witness officer #4, Witness officer #11 and Witness officer #3, as well as the subject officers Subject officer #2 and Subject officer #1. Witness officer #9 took control of the scene and received information that Mr. Gonzalez had barricaded himself in the bathroom after destroying various items throughout the apartment. He/She was further advised that Mr. Gonzalez had consumed cocaine and that Civilian Witness #1 had called the police. Witness officer #9 apprised himself of Mr. Gonzalez’s past history with law enforcement, which included a Mental Health Act apprehension in March 2015, multiple domestic occurrences and a conviction for assault.

After surveying the apartment, Witness officer #9 noticed that Witness officer #10 was engaged in negotiations with Mr. Gonzalez. He/She activated his/her audio recorder, and over the course of an approximate 12-minute recording, captured the entirety of the negotiation, forced entry and apprehension of Mr. Gonzalez into police custody.

Approximately nine and one-half minutes of Witness officer #10' negotiation were recorded, up to the point of the forced entry. He/She asked questions to confirm whether or not Mr. Gonzalez had any weapons or tools that he could use to harm himself, whether he had thoughts of self-harm, whether he had taken medication, whether he had consumed alcohol and if he would remove the items that were barricading the door. Mr. Gonzalez was inconsistent in terms of his responsiveness. There was clearly no language barrier that prevented their discussions. Mr. Gonzalez responded without issue to a number of Witness officer #10' questions. These included answering that he had no weapons, had consumed alcohol as well as "oxys". However, at other times Mr. Gonzalez seemed to not hear Witness officer #10' questions and commands. Moreover, despite saying a number of times that he would remove the items blocking the door and exit, he did not do so. Throughout the recording, smashing and clanging sounds can be heard, which were said to be coming from inside the bathroom and indicated that Mr. Gonzalez was further barricading himself. At approximately 1:38 a.m. the ETF team used a drill to cut a hole in the bathroom door in order to determine Mr. Gonzalez’s location. Witness officer #10 explained to Mr. Gonzalez that they were doing so in order to see him.

After the hole was drilled, Witness officer #10 was able to see Mr. Gonzalez sitting on the edge of the bathtub with a towel wrapped around his lower body. Witness officer #10 indicated that Mr. Gonzalez had blood on his hands, face and head, but did not appear to be actively bleeding. Mr. Gonzalez then jumped into the bathtub with his knees facing the faucet and began washing his head with shower gel. While observing Mr. Gonzalez, Witness officer #10 was confronted with an overwhelming stench of chemical cleaners. He/She became concerned that Mr. Gonzalez had ingested noxious chemicals. He/She also was worried that Mr. Gonzalez could be cutting himself because he could no longer see what he was doing with his hands. Witness officer #10 and Witness officer #3 consulted with one another. Based on Mr. Gonzalez’s likely use of drugs, his erratic behaviour and the possibility of self-harm, they decided to forcibly enter the bathroom in order to apprehend him under the Mental Health Act.

The forced entry was also captured on the audio recording. It provides some insight into what was clearly a chaotic interaction. After Witness officer #4 kicked the door off of its hinges, the ETF team entered the bathroom in the following approximate sequence: Witness officer #3, Subject officer #1, Subject officer #2, Witness officer #4, Witness officer #10, Witness officer #11 and Witness officer #12.

Witness officer #3 was equipped with a large riot shield. As soon as he was inside, he saw Mr. Gonzalez sitting on the edge of the bathtub with both feet inside the tub. Witness officer #3 indicated that as he approached Mr. Gonzalez, he saw that he was holding a four to six inch screwdriver in right hand down by his side. Mr. Gonzalez did not threaten the officer with the screwdriver. Witness officer #3 raised his shield for protection and pushed Mr. Gonzalez backwards. Mr. Gonzalez fell backwards and hit the bathroom wall, ultimately landing in the bathtub on his back. Witness officer #3 saw that there was four to six inches of water in the bathtub. After Mr. Gonzalez landed, he began lashing out and punching the officers. Witness officer #3 handed his shield off and tried to grab hold of Mr. Gonzalez, but had difficulty doing so. He then called out for a CEW to be used by saying "dart him", which can be heard on the audio recording^{footnote 21[21]}. Over his right shoulder, he saw Subject officer #1 deploy his CEW using the stun gun function. While Mr. Gonzalez did buck from the initial CEW discharge, he was able to persist in his struggle. Subject officer #2 then used the drive stun feature of his CEW on Mr. Gonzalez. The struggle still continued, although the officers were ultimately able to gain control of Mr. Gonzalez and apply handcuffs after a number of CEW discharges.

When Witness officer #10 entered the bathroom he/she slipped on the debris on the floor. When he/she looked up, Mr. Gonzalez was already on his back in the bathtub with the riot shield on top of him. He/She was unable to see what, if anything, Mr. Gonzalez had in his hands when the officers first breached the door. He/She did indicate that while lying in the bathtub Mr. Gonzalez reached up and ripped the faucet off the wall. Witness officer #10 described a lengthy struggle between the officers and Mr. Gonzalez, in which Mr. Gonzalez was thrashing about, punching, kicking and attempting to bite the officers. He/She also recounted an initial CEW deployment that seemed ineffective, followed by a second CEW discharge. After the use of the CEW, the officers were able to gain control of Mr. Gonzalez, handcuff him with his hands to the front and escort him out of the bathroom.

Witness officer #4 and Witness officer #12 described a struggle and CEW deployment that is consistent with the other witness officer statements. They, however, were unable to provide any information as to what, if anything, Mr. Gonzalez was holding when they first entered the bathroom. By the time they were present, he was already on his back in the bathtub. Witness officer #4 did recall Mr. Gonzalez pulling the faucet off the wall while he was lying in the bathtub. Witness officer #4 and Witness officer #12 also did not hear anyone yell out that Mr. Gonzalez was armed. Witness officer #11 also did not hear anyone voice out that Mr. Gonzalez was armed, but was definitive that he did not see anything in Mr. Gonzalez’s hand.

After the ETF team had handcuffed Mr. Gonzalez with his hands to the front, they dragged him into the hallway outside of the bathroom at approximately 1:51 a.m. They removed the handcuffs from Mr. Gonzalez’s front, and then cuffed his hands behind his back. Mr. Gonzalez was wearing only shorts (or perhaps boxers) and was soaking wet. He was placed under a Mental Health Act apprehension.

Tactical paramedics Civilian Witness #9, Civilian Witness #10 and Civilian Witness #11 were at the scene during Witness officer #10' negotiation, and after Mr. Gonzalez was forcibly removed from the bathroom. They were called into the apartment to attend to Mr. Gonzalez after he had been handcuffed with his hands to the rear. They all described a similar set of events, namely that Mr. Gonzalez appeared alert, had a strong pulse and was breathing well. His pupillary response suggested he might have taken a stimulant. He was also kicking out and screaming obscenities while being restrained by the ETF officers. While some small cuts and dried blood were observed by the paramedics, Mr. Gonzalez did not appear to be actively bleeding and they did not believe he required immediate medical treatment. The paramedics indicated that the injuries that were later apparent in photographs were not present when the they were dealing with him.

Mr. Gonzalez was put onto a stretcher in preparation for his transport to the hospital. He was strapped down to prevent him from harming the paramedics. When on the stretcher, he alternated between periods of calm and bouts of thrashing. This behaviour can be observed on an elevator surveillance video as Mr. Gonzalez is being taken down to the main floor.

Medical evidence

Mr. Gonzalez was brought into the St. Joseph’s Hospital triage area at 2:16 a.m. He was assessed in the Emergency Room by Doctor #2. He/She determined that his pupils were fixed and dilated, suggesting drug use. He/She was concerned that Mr. Gonzalez may have been having a seizure. He/She found that his lungs were clear, his heart sounded normal and his abdomen was soft. He/She did not detect any fractures, and did not recall seeing any injuries. Had Doctor #2 observed any visible injuries, he/she indicated that he/she would usually have documented them. After running a series of tests, which among other things confirmed cocaine use, Doctor #2 determined that Mr. Gonzalez’s heartbeat was irregular. He/She was concerned it may have been the result of the CEW use so he/she conferred with a specialist at St. Michael’s Hospital. The specialist indicated that the problem may be high levels of potassium, which are potentially fatal. After confirming that Mr. Gonzalez did have high potassium levels, Doctor #2 administered counteracting medication. At approximately 4:00 a.m., Mr. Gonzalez was transferred to the intensive care unit. Doctor #2 indicated to the SIU that a CEW discharge could cause muscular spasms resulting in cellular breakdown. This in turn could release potassium into the system which could cause fatal cardiac arrhythmias. He/She also indicated that a heart attack would not cause elevated potassium levels.

After Mr. Gonzalez was taken to the intensive care unit, his care was taken over by Doctor #1. His/Her initial assessment was that Mr. Gonzalez was unstable from a cardiovascular and respiratory perspective. He was on life support and required a breathing tube. As time progressed, his condition worsened. His conditions were consistent with secondary symptoms resulting from a cardiac event. He also exhibited kidney dysfunction and his body appeared swollen. While his electrocardiogram was abnormal, it did not appear that he had suffered a heart attack. Doctor #1 opined that the use of cocaine could have caused an acute cardiac event. Mr. Gonzalez suffered two cardiac events while under Doctor #1's care, and died from the second one. Doctor #1 identified high levels of creatine phosphokinase in his blood which he/she believed was the likely cause of death^{footnote 22[22]}. Doctor #1 also told the SIU that the elevated potassium levels could have been caused by muscular breakdown or kidney dysfunction.

The post-mortem examination was completed on November 9 and 10, 2015 by Doctor #3, the province’s Deputy Chief of Forensic Pathology. He/She relied on a cardiological examination completed Doctor #4 and a toxicology report in arriving at her conclusions. In his/her report, he/she identified the cause of death as complications of acute cocaine toxicity. He/She specifically indicated that cocaine usage can lead to cardiorespiratory collapse. A specific mechanism by which this can occur arises during violent physical activity where there is a resulting breakdown of muscular tissue. This releases muscle constituents into the blood stream that can cause kidney damage. Doctor #3 did not indicate that CEW discharges played any role in Mr. Gonzalez’s death.

Legal conclusion

The circumstances of Mr. Gonzalez’s death had initially given me significant pause. A preliminary view of the evidence would seem to suggest that the use of CEW could have been a significant contributing cause of death. These concerns are interconnected with my assessment of whether or not the subject officers' use of their CEW multiple times constituted excessive force. The excessive force analysis is also informed by the fact that various pictures of Mr. Gonzalez in hospital clearly show a multitude of obvious injuries, including bruising, abrasions and lacerations.

I will begin by indicating that I have no concerns whatsoever with the conduct of the police up to the point of the forced entry into the bathroom. The initial police response to Civilian Witness #1 's 911 call was both prompt and sensible. The exigency of the circumstances—namely, a fearful 911call that abruptly disconnected—provided Witness officer #7 a valid basis to enter the residence without a warrant, pursuant to section 487.11 of the Criminal Code. After confirming that he was dealing with a barricaded person, as opposed to a hostage situation, Witness officer #7 requested that an officer with a CEW attend the scene. Witness officer #8 involved the ETF Unit in accordance with Toronto Police Service policy. Witness officer #10's negotiation was calm, candid and directed towards both assessing Mr. Gonzalez’s wellbeing and having him exit the bathroom of his own accord. He/She provided him ample opportunity to end the standoff situation, but Mr. Gonzalez obviously decided not to do so. Witness officer #9's prudent decision to audio record the negotiation and subsequent entry has provided me with objective evidence of the key interaction. Lastly, the decision to forcibly enter the bathroom was lawful. After taking the step of drilling a hole in the door in order to gather more information, Witness officer #10 and Witness officer #3 were of the view that the full body of circumstances reflected a risk that Mr. Gonzalez might harm himself. I agree. Mr. Gonzalez’s persistent and destructive behaviour, use of illegal drugs, selective responsiveness during the negotiation and access to noxious substances provided basis for an apprehension under section 17 of the Mental Health Act, RSO 1990, c M7. Moreover, even after making the decision to enter the bathroom, Witness officer #10 provided Mr. Gonzalez further opportunity to remove the debris barricading the door. Despite Mr. Gonzalez stating he would comply, he did not do so.

The conduct of the officers once they entered the bathroom is more difficult to assess. This is due in large part to the fact that the audio recording only offers limited insight into the precise details about what happened. Moreover, the accounts of the witness officers are somewhat unclear on a key detail as to whether or not Mr. Gonzalez was in possession of an object that could have been used as a weapon.

Witness officer #3 indicated that Mr. Gonzalez was in possession of a screwdriver which could have been used as a weapon. He was the only officer that reports having seen Mr. Gonzalez in possession of this object. It is conceivable that Mr. Gonzalez did in fact have such an object. Scene of crime photos show that the bathroom was in a state that can only be described as destroyed. There were various items and components of bathroom fixtures strewn about the room. Witness officer #3 made it clear that Mr. Gonzalez did not overtly threaten him with the screwdriver. Despite this, Witness officer #3's response was to thrust his riot shield at Mr. Gonzalez to protect himself as he advanced, which sent Mr. Gonzalez falling backwards into the tub.

The audio recording captures an intense and protracted struggle from that point onwards, which lasted for approximately two minutes and 30 seconds. It captured Witness officer #3 calling out for an officer to make use of their CEW, the sounds of an initial discharge, a second discharge and associated screaming from Mr. Gonzalez. There are also further discharges sometime after the initial volley. This is consistent with the witness officer accounts that described the first CEW discharge as not having much of an effect on Mr. Gonzalez.

The SIU downloaded and analyzed the data from the two CEWs used by Subject officer #1 and Subject officer #2. The CEWs were also sent to the Ministry of Finance for examination^{footnote 23[23]}. The sequence of discharges and accompanying duration is as follows^{footnote 24[24]}:

1. 1:39:07 to 1:39:12 (five second discharge) Subject officer #1
2. 1:39:10 to 1:39:28 (eighteen second discharge) Subject officer #2
3. 1:39:14 to 1:39:19 (five second discharge) Subject officer #1
4. 1:39:28 to 1:39:37 (nine second discharge) Subject officer #2
5. 1:39:38 to 1:39:43 (five second discharge) Subject officer #2
6. 1:40:09 to 1:40:14 (five second discharge) Subject officer #2
7. 1:41:32 to 1:41:36 (four second discharge) Subject officer #1
8. 1:41:33 to 1:41:38 (five second discharge) Subject officer #2^{footnote 25[25]}

The circumstances surrounding the CEW discharge initially caused me great concern. I was particularly focussed on the multiple and overlapping discharges of an individual who was wet and in a pool of water at the time. However, the medical evidence (specifically Doctor #3's post-mortem report) detailed below has assuaged my preliminary concerns with respect to the physiological effects of the CEW use on Mr. Gonzalez.

Ultimately, I am left in a position where I do not have evidence that reflects excessive use of force. The CEW discharges by both subject officers was initially done at the behest of Witness officer #3. By the time he called for that assistance, Mr. Gonzalez was already actively resisting the lawful authority of the police. A CEW is designed to be non-lethal in application, and in this instance the use of them was seemingly directed towards gaining Mr. Gonzalez’s compliance. While it is worrisome that there were eight separate discharges by two different CEWs, some of which overlapped with one another, it is clear that Mr. Gonzalez was able to struggle through the pain and continue to resist the officers. The subject officers elected to not provide statements to the SIU or copies of their notes (as is their legal right), and as such I have limited insight into what the rationale was behind the discharges. However, the full body of evidence does not support a conclusion that either subject officer transgressed the bounds of section 25(1) of the Criminal Code.

That is not to say that there is no cause for concern in this case. For instance, some might contend that the officers on the scene being aware of Mr. Gonzalez’s mental health issues should have engaged a mental health crisis team. If such a team had been available this night it might have been a good option. Moreover, Mr. Gonzalez can be heard pleading with the officers when they first breach the bathroom door, suggesting that if the officers had given him a final opportunity to surrende'r when they forced the door, he might have done so. Nevertheless, although perhaps not the most judicious approach to containing the situation, I cannot say that Witness officer #3's decision to use his riot shield as both a shield and ram as he entered the bathroom was excessive given the SCC's pronouncement in R v Nasoga/uak, 2010 sec 6 at para 35: "Police actions should not be judged against a standard of perfection. It must be remembered that police engage in dangerous and demanding work and often have to react quickly to emergencies."

Also, while the subject officers did not participate in the SIU investigation, they did complete use of force reports on November 6, 2015 with respect to the use of their CEWs. The individual narrative summaries in both reports were identical, and stated that "[a]s the team approached him it was observed that he was armed with a screwdriver". The word­ for-word copy of the narrative summaries in the reports obviously calls into question their independence and reliability. It also contains a statement that is not supported by the evidence. While Witness officer #3 stated that he observed Mr. Gonzalez with a screwdriver, a review of the audio recording makes clear that his observation was never called out to the rest of the team. Given that none of the other officers saw Mr. Gonzalez with a screwdriver in hand and Witness officer #3 did not vocalize his observations, I find it incongruous that both subject officers observed and noted what they cite as the use of force justification in their reports-the screwdriver.

Separate and apart from my conclusion that there are no reasonable grounds to believe that an offence has been committed, I will add that even if I viewed the CEW use as unreasonable it still would not support a charge of culpable homicide. Doctor #3 quite clearly did not view the CEW discharges as contributing to Mr. Gonzalez’s death. His/Her analysis, inclusive of the muscular cellular breakdown and associated potassium release, attributed the cause of death to Mr. Gonzalez’s use of cocaine. In essence, the CEW usage did not causally contribute to Mr. Gonzalez’s death in a legal sense.

Doctor #3 also offered insight into the multiple injuries that Mr. Gonzalez sustained. He/She exhaustively catalogues signs of recent injury over three pages of his/her report. He/She summarized these injuries as follows:

Blunt force injuries were present, including:

1. extensive areas of contusions and subcutaneous hemorrhage
2. numerous kin abrasions
3. no liver laceration or other injury to internal organs
4. no bony fractures, and
5. no injury to the skull or brain

The injuries were felt to be minor in nature and did not cause death. All injuries can be explained by "self-infliction" during violent behaviour.

Doctor #3 affirms that, despite the apparent severity of the multiple injuries, they did not contribute to Mr. Gonzalez’s death. He/She also did not identify any of the injuries as attributable to the actions of the police. Lastly, he/she also makes reference to the fact that Mr. Gonzalez exhibited disseminated intravascular coagulopathy. This medical condition results in the disruption of the clotting process and severe bleeding occurring in multiple sites. This serves as a possible explanation for the severe bruising seen on Mr. Gonzalez’s body, and the seeming incongruity of those injuries not being apparent to the officers, the paramedics or the Emergency Room physician.

In conclusion, there are no reasonable grounds to believe that either subject officer committed a criminal offence when they used their CEWs. Even in the event that the use of the CEW was unwarranted - something I do not conclude - relying on Doctor #3's report makes it clear that the use of CEWs in this case did not causally contribute to Mr. Gonzalez’s death and therefore charges will not issue.

Date: March 2, 2017

Tony Loparco
Director
Special Investigations Unit