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 serious injury suffered by a 38-year-old man during his interaction with officers after setting a fire in his apartment and barricading himself on his balcony.

The investigation

Notification of the SIU

At 1:16 a.m., on September 13, 2016, Peel Regional Police (PRP) reported the serious injury of the Complainant.

PRP reported that on September 12, 2016, Mississauga Fire and Emergency Services (MFES) responded to an apartment in Mississauga, for smoke coming from the apartment. Upon arrival, MFES found the Complainant who was armed with knives duct taped to his wrists. He had set a fire in the apartment. Police were called and responded along with the tactical unit.

At about 8:20 p.m., police were on scene and negotiated with the Complainant and consulted with an Ontario Provincial Police Behavioural Sciences and Analysis Section psychiatrist (“Psychiatrist”). After negotiations and consultations with the Psychiatrist, Witness Officer (WO) #1 gave the tactical unit authority to enter the apartment. After they entered, the Complainant was struck by a Conducted Energy Weapon (CEW) and shot in the head by an Anti-Riot Weapon Enfield (ARWEN)footnote 1 projectile. The Complainant was taken to the hospital and was admitted with a laceration on his head and a brain bleed.

The team

Number of SIU Investigators assigned: 6

Number of SIU Forensic Investigators assigned: 2

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes and photography.

Complainant

38-year-old male interviewed, medical records obtained and reviewed

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Interviewed

CW #10 Interviewed

CW #11 Interviewed

CW #12 Interviewed

Witness officers

WO #1 Not interviewed, but notes received and reviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

WO #8 Interviewed

WO #9 Interviewed

WO #10 Interviewed

Additionally, the notes from one other, non-designated officer were received and reviewed.

Subject officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.

Evidence

The scene

Below is a photograph of the interior of the apartment from just inside the apartment entrance door. Directly ahead and right of centre is the balcony door. Just beyond the door is the back of a brown wicker couch that the Complainant used to prevent anyone from coming onto the balcony.

A photo of the interior of the apartment

Below is a view of the balcony after the Complainant’s rescue. The wicker couch with its back to the balcony door is the couch the Complainant was laying on with his head toward the camera view and feet toward the end of the couch when the police immediate action plan (IAP) began.

A photo of the balcony after the complainant’s rescue

Physical evidence

Below are photos of the knives seized:

A photo of the knives seized

A photo of the knives seized

And the lighter fluid:

A photo of the lighter fluid

Video/audio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and a number of videos and photographs taken by civilian witnesses of the scene and activity were retrieved. The photos and videos support the actions of the PRP and the statements of many witnesses.

Communications recordings

The various police radio and telephone communications recordings corroborated the statements given by civilian and police witnesses.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from PRP

  • audio recordings - radio channel
  • audio recordings - 911 calls
  • audio recordings - Tactical Rescue Unit (TRU) radio channel
  • audio recordings – negotiations with the complainant
  • disclosure logs
  • event chronology
  • PRP email response that no video recordings made by TRU officers
  • notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9 and WO #10
  • notes of one non-designated witness officer
  • risk of violence assessment notes by WO #7
  • procedure - prisoner transportation
  • procedure - crisis negotiations
  • procedure - critical incident alert
  • procedure - holding facilities
  • procedure - use of force
  • procedure - mental health
  • training record – the SO:
  • witness statements – two non-designated firefighters, and
  • witness statement – CW #7

Incident narrative

During the early evening of September 12, 2016, the Complainant was alone in his 16th floor condominium unit in Mississauga. The Complainant started a fire within the unit, and then barricaded himself on his balcony. He had with him two knives, one of which was taped to his arm, a lighter, lighter fluid, and a glass of Muriatic Acid. He was observed to be drinking the acid, foaming at the mouth and vomiting.

Witnesses called 911, and MFES attended the unit. Forcing their way in, the firefighters observed a fire just inside the front hallway. The fire was extinguished and the Complainant was located on the barricaded balcony. He advised that he was going to jump. By 6:30 p.m., PRP officers also attended, and notified the PRP TRU. Officers attempted to speak with the Complainant, but he would not respond. He was observed to continue to drink the acid from the glass, and douse himself with the lighter fluid. At times he was sitting on the railing of the 16th floor balcony. The Complainant was increasingly agitated. Paramedics were also on scene.

The TRU arrived at the scene shortly after. The PRP Crisis Negotiation Team (CNT) also arrived, and attempted to convince the Complainant to come off the railing, and into the apartment. The Complainant ignored all efforts to bring him into the apartment. His mental state was clearly deteriorating.

Once the Complainant sat on a small couch on the balcony, the SO and WO #9 repelled down from a unit balcony directly two floors above. WO #2, WO #3 and WO #4 entered the balcony through the apartment. WO #2 discharged his CEW once at the Complainant’s torso, while the SO discharged five rounds from his ARWEN at the Complainant’s thigh and midsection.

WO #3 was able to cut the knife away from the Complainant’s arm. The Complainant was bleeding from a 2.5 – 5 cm cut on his forehead with a flap of skin hanging. The officers carried the Complainant off the balcony to the paramedics waiting outside for medical attention.

The Complainant was taken to the hospital by ambulance. It was determined that he suffered an acute small right frontal subdural brain bleed, and his left elbow was diagnosed with an oblique angulated fracture through the left radial neck. His most significant injury, however, was to his throat and gastric areas caused by the consumption of a caustic fluid.

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

  1. as a private person
  2. as a peace officer or public officer
  3. in aid of a peace officer or public officer, or
  4. 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 430, Criminal Code - Mischief

430 (1) Every one commits mischief who wilfully

  1. destroys or damages property
  2. renders property dangerous, useless, inoperative or ineffective
  3. obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
  4. obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property

(2) Every one who commits mischief that causes actual danger to life is guilty of an indictable offence and liable to imprisonment for life.

Section 433, Criminal Code - Arson

433 Every person who intentionally or recklessly causes damage by fire or explosion to property, whether or not that person owns the property, is guilty of an indictable offence and liable to imprisonment for life where

  1. the person knows that or is reckless with respect to whether the property is inhabited or occupied; or
  2. the fire or explosion causes bodily harm to another person

Analysis and director’s decision

On September 12, 2016, at 6:00 p.m., MFES responded to a second fire alarm within a couple of hours on the same day at an apartment building in the City of Mississauga and found smoke coming from an apartment on the 16th floor. Subsequently, PRP officers were notified and attended the scene. A lengthy negotiation between PRP TRU unit officers and the Complainant resulted in a standoff. The Complainant was subsequently apprehended by the PRP TRU unit officers. The Complainant was transported to the hospital, where he was diagnosed by the intensive care physician with an acute small right frontal subdural brain hemorrhage related to a scalp laceration that required six staples to closefootnote 2 as well as an oblique angulated fracture through the left radial neck of his left elbow. The physician further indicated that the Complainant was in a life threatening situation which required intensive care as a direct result of consuming a quantity of Muriatic Acid.footnote 3

On September 12, 2016, sometime in the afternoon, the Complainant was in the condominium unit in Mississauga. At some point, the Complainant set a fire inside the apartment and fled to the balcony where he sat on the railing facing into the condominium.

As a result of the fire in the condominium unit, smoke was detected; MFES firefighters were notified; the flames from the fire were extinguished; and, when CW #7 entered the unit for search purposes, he located the Complainant on the balcony. The Complainant told CW #7 that he would jump if anyone touched or approached him. Subsequently, the Complainant told CW #7 that he had consumed acid.

During the course of this investigation, the SIU interviewed 12 civilian witnesses as well as the Complainant and ten PRP officers including the SO, who made himself available to be interviewed by the SIU. In addition, the SIU investigators received the notebooks of eleven witness officers; the communications recordings; medical records; the notes of attending MFES firefighters; as well as photos and videos taken by civilian witnesses.

Seven civilian witnesses consistently described the same events transpiring that afternoon and evening: smoke was seen billowing from the Complainant’s condominium unit; the Complainant was observed sitting on his balcony with his back against the glass balcony railing facing directly into his condominium unit; the Complainant had a large knife taped to either one or both of his hands and was holding a container of lighter fluid. The Complainant appeared agitated and in significant distress.

CW #7 described being directed by residents to the Complainant’s unit where smoke was observed coming from inside the unit. Firefighters forced the door open, whereupon open flames were seen coming from various items that had been used to set up a barricade inside the unit. The fire was extinguished and CW #7 entered the apartment and observed the Complainant standing on the balcony. CW #7 observed the Complainant holding a knife in each hand. When CW #7 observed the Complainant holding a glass of clear liquid, the Complainant advised that the liquid he was drinking was acid. The Complainant was observed to consume the acid. The Complainant immediately started coughing, sputtering, and was later seen vomiting.

Once PRP officers were on scene, the following observations were made and the following activities were carried out in an attempt to diffuse the situation and bring it to a successful resolution. PRP officers inside the condominium unit were instructed to leave the unit in order to reduce the Complainant’s level of agitation. This action resulted in the Complainant removing himself from the balcony railing. Paramedics were asked to attend to the 16th floor to stand by to assist, if needed. Three CNT negotiators were called to the scene to try and talk to the Complainant. WO#1 held a briefing with the TRU officers and the negotiators. Background information of the Complainant was obtained and shared with the TRU officers.

At 6:53 p.m., the following plan was formulated: two TRU officers, the SO and WO #9, were to go to the 18th floor and were assigned to rappel down to the Complainant’s unit; WO #3 was to be the point man for an entry team into the Complainant’s unit; and WO #2 was to follow armed with the ARWEN and CEW accompanied by WO #4. WO #3 was instructed to begin talking to the Complainant once the entry team and the rappellers were in place. WO #1 asked that no communication was to commence with the Complainant until he was on scene to fully assess the situation. At that point, once the entry team and the rappellers were in place, WO #3 was to begin talking to the Complainant to try to convince him to come inside off the balcony. At 7:00 p.m., the SO and WO #9 entered the apartment two floors directly above the Complainant’s unit and prepared their rappel gear with the assistance of two MFES firefighters. At 7:10 p.m., WO #1 approved the tactical plan which was to surprise and overwhelm the Complainant; and, to prevent him from harming himself or jumping from the balcony. It was hoped that the PRP negotiators could persuade the Complainant to leave the balcony in order that the TRU need not be used at all.

At 7:15 p.m., WO #2 and WO #3 entered the condominium unit and attempted initially to engage the Complainant by speaking to him about things that appeared to interest him,footnote 4 based on the contents of the apartment. The Complainant did not make any verbal responses to WO #3. When WO #3 asked the Complainant to raise his hand if he could hear him, the Complainant responded by raising his hand on one occasion. At 7:17 p.m., as WO #3 was unable to hear the Complainant from outside of the unit, permission was granted to enable WO #2 and WO #3 to enter the condominium unit as far as the edge of the kitchen. WO #3 attempted to speak with the Complainant for approximately one hour. WO #1 set up a command post in the condominium unit immediately adjacent to the condominium unit of the Complainant.

At 7:57 p.m., the negotiators attended the scene; were briefed; took up a position on the adjoining balcony; and attempted to converse with the Complainant through a partition on the balcony. The mental state of the Complainant was categorized as very dangerous and unpredictable. The negotiators attempted to speak with the Complainant for over one hour. The negotiators spoke to the Psychiatrist and relayed information to him about the Complainant’s behaviour, as it became available. Simultaneously, a PRP K-9 officer set up an observation point in an apartment building directly across from the Complainant’s unit and constantly updated the command post about what the Complainant was doing.

At this point, a number of different options with respect to safely apprehending the Complainant were considered. Initially, a plan was formulated wherein it was determined that if the Complainant appeared to be preparing to jump from the balcony, the two rappellers would drop down and use less lethal use of force weapons to force the Complainant back onto the balcony. Simultaneously, an entry team would breach the glass partition between the two balconies and force the Complainant onto the balcony floor. This plan was later partially amended and was replaced by a direct approach by an entry team from the kitchen of the unit onto the balcony. It was discussed that an ARWEN would be used instead of a CEW because of the potential of fire being caused by the electrical spark from the CEW in view of the fact that the complainant had been dousing himself with lighter fluid. This final plan was approved by WO #1.

At 8:02 p.m., the Complainant was observed to still be foaming at the mouth and vomiting. The Complainant dropped the lighter fluid off the balcony to the ground below. At 8:07 p.m., the Complainant got off the railing and peered into his apartment. The Complainant’s hair was observed to be disheveled; he was sweaty; and, there was phlegm as well as foam froth on his face. A knife was observed still taped to his left wrist with the blade protruding up between his thumb and index finger. At that point, WO #4 left the entry team and went to the command post to suggest to WO #1 that now was the time to implement the plan as the Complainant was no longer perched on the railing. The Complainant was observed to move the tip of the knife up under his chin and then down to his abdomen as if in preparation to cut or stab himself. The command post was of the view that the Complainant’s physical and mental situation was deteriorating. WO #7, the negotiator, updated the Psychiatrist who advised that tactical intervention was the appropriate response for a possible successful resolution. WO #1 approved the immediate implementation of the plan that had been previously formulated.

The entry team moved into place. WO #3 was to use the heavy ladder shield to pin the Complainant to the couch; WO #2 was to deploy the CEW; and, WO #4 had the freedom to respond as needed. At 8:19 p.m., the SO and WO #9 went over the edge of the 18th floor balcony and prepared to rappel. On their count down from five, it was anticipated that the entire TRU tactical officer team would deploy simultaneously. The rappellers carried the following defensive equipment: WO #9 had his handgun and CEW; the SO had his handgun, CEW and a 37 millimetre rotary ARWEN firearm.

When counted down, the PRP TRU officers both deployed downward from the 18th floor and onto the balcony from inside the unit. The SO rappelled upside down and yelled at the Complainant: “Drop the knife, drop the knife!” The SO observed the Complainant move his foot in what appeared to be an attempt to stand up. The SO concluded that the Complainant was beginning to move into position to jump off the balcony. The SO initially sighted his weapon on the midsection and legs of the Complainant. The SO then focused on the left thigh of the Complainant and fired three quick ARWEN projectiles, one at the left thigh and two at the midsection area. The SO began swaying slightly as he was hanging upside down with his feet around the rappel rope. As a result the SO was able to release one foot and made contact with the building in order to steady himself. To ensure that the Complainant was disabled and could not jump to his death or injure WO #3, the SO decided to fire his last two projectiles. As a result of the potential movements of the Complainant on the balcony, the SO aimed for the Complainant’s mid-section; however, he was unsure as to where those projectiles impacted.footnote 5 WO #3, who was the first officer to move onto the balcony, immediately placed the shield down on the Complainant’s chest and pinned back his left arm. WO #3 used his body weight to hold the Complainant down while WO #2 deployed the CEW somewhere on the Complainant’s shirtless torso. The Complainant screamed in pain.

At this point, the SO righted himself; heard the sound of the deployment of the CEW; and rappelled himself downward with his feet landing on the balcony railing. WO #9 remained suspended in the air outside the condominium unit as there was no room for him to land on the balcony. Despite the fact that WO #9 had originally been briefed to deploy his CEW, he refrained from doing so when he heard a CEW deploy from within the unit. The SO and WO #3 struggled to remove the knife taped to the Complainant’s hand. Eventually, they were able cut the tape off the knife being held by the Complainant. The Complainant was handcuffed with his hands to his front. The Complainant was observed to have a cut on his forehead that was about one inch in length and a flap of skin was hanging from the Complainant’s head. In addition, the Complainant continued to foam at the mouth; his voice sounded hoarse; and he continued coughing. Paramedics were immediately called to attend and the Complainant was carried by TRU officers into the main hallway awaiting the arrival of the paramedics.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the apprehension of the Complainant, it is abundantly clear from all of the evidence that the Complainant was intent on taking his own life. Without any doubt the Complainant had planned, and taken, all the following steps to carry out his intention: the setting of the condominium unit on fire; the barricading of access to the balcony; the dousing himself with lighter fluid; the deliberate drinking of caustic acid; the indifference to the PRP TRU negotiations attempting to safely remove him from the balcony railing; and by perching on the railing of his balcony on the 16th floor with the stated intention of taking his life by jumping to his death. In the manner of his attempt to take his own life, unfortunately, the Complainant became a danger not only to himself but to other citizens and attending emergency personnel. Clearly, the PRP and TRU officers had ample grounds to apprehend the Complainant pursuant to the Mental Health Act. In addition, as a result of his actions, The Complainant was also subject to arrest for arson and mischief endanger life contrary to sections 433 and 430(2) of the Criminal Code respectively. As such, there is no doubt that the apprehension of the Complainant was legally justified in all of the circumstances.

With respect to the amount of force used by officers in their attempts to subdue the Complainant, I find that their behavior was amply justified in the circumstances. After carefully reviewing all of the evidence, I find that the PRP TRU officers used no more force than was absolutely necessary to subdue the Complainant who was clearly impacting severe damage to himself and clearly would have taken his own life without the intervention of the police. Given the fact that the Complainant had set fire to his own condominium unit, consumed acid, attempted to stab himself, and threatened to jump off a sixteen story balcony, it was not a stretch for officers to believe on reasonable grounds that the Complainant was intent on ending his life, if he was not subdued.

Under these circumstances, I cannot find that any of the rescue attempts by the PRP TRU officers resulted in an excessive use of force. It is clear that the injury to the head of the Complainant and the broken elbow that he sustained were in all probability caused by the efforts of the PRP TRU officers to subdue the Complainant. However, on the full evidentiary record, it is beyond dispute that the force used by the SO, as well as the efforts of all fire, paramedics, and police personnel involved, progressed in a measured, proportionate, and professional manner. Initially a number of attempts by firefighters and police were made to try to calm the Complainant and commence a dialogue with him. When all of those attempts failed, it was absolutely necessary to save the life of the Complainant by using the less lethal options available to the PRP TRU officers. In all of the circumstances, the final tactical plan approved by WO #1 was followed to the letter by the SO and the entire TRU team to apprehend the Complainant. The plan beyond any question was the most reasonable option available and was implemented as a last resort when all other efforts to save the life of the Complainant failed. In addition, the actions by PRP TRU officers were fully corroborated by the evidence provided by the MPES firefighters as well as the civilian witnesses.

In coming to these conclusions, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak, [2010] 1 S.C.R. 206:

In the final analysis, I am satisfied for the foregoing reasons that the apprehension of the Complainant as well as the manner in which it was carried out, were lawful notwithstanding the injuries which he suffered. In my opinion, the injuries suffered by the Complainant pale in comparison to the outcome that the Complainant had planned for his own demise. I am, therefore, satisfied on reasonable grounds that the actions exercised by the PRP TRU officers fell well within the limits prescribed by the criminal law. Accordingly, there are no grounds for proceeding with any charges in this case. I would add that, in my opinion, the actions of all the PRP TRU officers - the SO, WO #2, WO #3, WO #4 WO #6 and WO #9, as well as WO #7 and WO #8 under the direction of WO #1 - were professional and commendable.

Date: October 3, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit