SIU Director’s Report - Case # 16-TCD-276

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:

• Confidential investigative techniques and procedures used by law enforcement agencies; and
• Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• location information
• witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence and
• other identifiers which are likely to reveal personal information about individuals involved in the investigation

Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.

Mandate engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the death of a 31-year-old man on November 4, 2016 during his interaction with police.

The investigation

Notification of the SIU

On November 4, 2016 at 1:50 p.m., Toronto Police Service (TPS) notified the SIU of the Complainant’s custody death.

TPS reported that at 12:06 p.m. on November 4, 2016, a call was received regarding a man [now known to be the Complainant] who was screaming and waving a knife around in the area of a residence near Old Weston Road. Three police officers arrived and a sergeant deployed a Conducted Energy Weapon (CEW) at the Complainant. An ambulance was called because the Complainant had stopped breathing. The Complainant was taken to the hospital where he was pronounced dead at 12:59 p.m.

The team

Number of SIU Investigators assigned: 9

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, photography, videography, sketches and measurements. The Forensic Investigators attended and recorded the post-mortem examination and assisted in making submissions to the Centre of Forensic Sciences.

Complainant

31-year-old male, deceased

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

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed

Evidence

The scene

The scene was a grassy area on the north side of a residential street behind a residence. A CEW cartridge case and probe wires were located on the grass near the curb. Four kitchen knives and a wallet were located on the steps behind the home, and a set of police handcuffs were found against the curb near the CEW cartridge case.

Scene Diagram

Physical evidence

Below is a photo of the knives seized from the scene:

Expert Evidence

Preliminary Autopsy Findings

On November 5, 2016, a pathologist conducted an autopsy on the Complainant. The pathologist was unable to determine the “immediate cause of death” pending further studies of histology, toxicology, biochemistry and cardiovascular consult.

Official Cause of Death

On June 2, 2017, the SIU received the Report of the Post-mortem Examination for the Complainant. The pathologist concluded that the Complainant died as a result of “sudden arrhythmic death following deployment of an electronic control device in a man with cardiomyopathy and cocaine toxicity.”^{footnote 1[1]}

On August 22, 2017, the SIU sent a letter to the pathologist in an effort to confirm whether or not the Complainant would have died due to a combination of cardiomyopathy and the cocaine toxicity alone, regardless of whether or not the CEW or electronic control device was used by police. In response, on October 11, 2017, the SIU received a letter from the pathologist in which he indicated that “yes he (the Complainant) would have died due to a combination of cardiomyopathy and cocaine toxicity alone, irrespective of the use of the ECD (electronic control device).”

Video/audio/photographic evidence

In Car Camera (ICC) for the SO’s Cruiser

On November 4, 2016, the police cruiser operated by the SO began ICC recordings at 12:07:32 p.m. and concluded them 12:47:45 p.m.

• At 12:07:32 p.m., the ICC system is activated in the SO’s police cruiser. Then at 12:08:02 p.m., the cruiser’s emergency lights were activated and it proceeded through a red traffic signal and travelled along a number of unknown streets
• At 12:12:59 p.m., the SO’s cruiser turned into a subdivision and drove southbound. Then at 12:13:28 p.m., the SO’s cruiser drove past four civilians who were pointing east along the street
• Between 12:13:35 p.m. and 12:14:19 p.m., the SO’s cruiser is patrolling the area. Then at 12:14:51 p.m., he stopped his police cruiser near WO #1 and WO #2’s cruiser and stopped in the roadway facing east
• At 12:15:03 p.m., the SO walked past the front of his cruiser towards a patch of grass. He was carrying a CEW in his right hand which he pointed at an angle slightly towards the ground. The SO walked on to the grass. At 12:15:12 p.m., WO #2 moved backwards from the patch of grass towards the road and then he moved forward onto the grass again
• At 12:15:42 p.m., the SO walked backwards onto the roadway from the patch of grass with his CEW in his right hand. His right arm is outstretched and the CEW is pointed slightly downwards. The SO then walked back on to the grass
• At 12:16:08 p.m., WO #1, carrying a C8 rifle, walked from the grass onto the roadway and over to his police cruiser. The SO walked onto the roadway with his CEW in his right hand pointed behind him towards the patch of grass. He then walked across the road, away from the grass, and out of view
• At 12:16:27 p.m., the SO walked back towards the grass and removed the cartridge from his CEW. He stood momentarily in front of his police cruiser and then went onto the grass and out of view. Moments later WO #1 drove his police cruiser across the road and parked it in front of the SO’s cruiser. He exited the vehicle, opened the driver’s side rear passenger door and walked onto the grass
• At 12:18:44 p.m., a white marked police cruiser, driven by WO #3, stopped beside WO #1’s police cruiser. WO #3 exited the vehicle and walked towards the patch of grass donning a pair of gloves, and
• At 12:20:09 p.m., WO #3 returned to his cruiser and retrieved a breathing mask from the trunk. He then returned to the patch of grass. At 12:23:07 p.m., an ambulance arrived and ten minutes later the Complainant was placed on a stretcher and wheeled to the back of the ambulance

ICC for WO #1 and WO #2’s Cruiser

On November 4, 2016, the police cruiser operated by WO #1 and WO #2 began ICC recordings at 12:07:38 p.m. and concluded them at 12:13:54 p.m.

• At 12:07:38 p.m., the ICC system is activated. The police cruiser appears to be in a covered parking lot
• At 12:08:17 p.m., the emergency lights were activated on the police cruiser and it proceeded through a red traffic signal and travelled along a number of unknown streets
• At 12:13:50 p.m., the police cruiser turned left into a subdivision street and drove southbound, and
• At 12:13:54 p.m., the ICC recording stopped.^{footnote 2[2]}

ICC for WO #3’s Cruiser

On November 4, 2016, the police cruiser operated by WO #3 began ICC recordings at 12:11:14 p.m. and concluded them at 2:06:34 p.m.

• At 12:11:14 p.m., the ICC system was activated in the police cruiser. A short time later the emergency lights were activated as the police cruiser travelled along a number of unknown streets
• At 12:18:19 p.m., WO #3’s cruiser turned into a subdivision and drove southbound. Moments later he arrived on scene and saw the SO and WO #1 and WO #2 on a patch of grass north of the roadway
• At 12:19:57 p.m., someone said “he’s not breathing we are going to start CPR”
• At 12:23:11 p.m., an unidentified police officer said “DAS [ambulance] is on scene here”. The same police officer then said “he was tased three times ……he was conscious and then he passed out”
• At 12:25:57 p.m., two uniform police officers enter the driveway of a house on the street. Seconds later, WO #3 reports police officers are checking the Complainant’s residence, and
• At 12:30:50 p.m., the SO advised over the police radio that the paramedics were still working on the Complainant and at 2:06:34 p.m., the ICC is turned off

Communications Recordings

The recorded transmissions provided by TPS were made on November 4, 2016 and detailed the following:

• At 12:07 p.m., the TPS dispatcher requested any units in the TPS division to clear to attend a call in zone six, a “hotshot” call at a residence near Old Weston Road for a person with a knife. There was a man [now determined to be the Complainant] on a pathway with two knives in his hands and screaming
• The SO informed the dispatcher to put him on the call
• WO #1 and WO #2 advised the dispatcher to place them on the call
• At 12:08 p.m., the dispatcher informed the SO and WO #1 and WO #2 that the Complainant was lying on the ground
• TPS Emergency Task Force (ETF) advised the dispatcher they were monitoring the incident
• The SO requested the dispatcher to check with another TPS division to determine if they had a “less lethal”. WO #3 advised he had a “less lethal”. WO #3 placed himself on the call and headed to the area
• At 12:12 p.m., the dispatcher provided an update and advised that the Complainant was in a laneway between two streets
• At 12:13 p.m., the SO advised the dispatcher he was on scene. Moments later WO #1 and WO #2 advised the dispatcher they were on scene
• At 12:15 p.m., the SO informed the dispatcher they had the Complainant in custody
• A short time later, the SO asked the dispatcher if an ambulance was on its way. The dispatcher reported the ambulance had been notified and was en route. The SO informed the dispatcher the police officers had the Complainant in the recovery position. He also advised the Complainant was likely suffering from excited delirium. The SO advised the dispatcher to put a rush on the ambulance
• At 12:20 p.m., WO #1 and WO #2 informed the dispatcher they were starting cardiopulmonary resuscitation (CPR). The Complainant was not breathing. A short time later the ambulance arrived on scene, and
• At 12:31 p.m., WO #1 and WO #2 advised the dispatcher they were still performing CPR on the Complainant. Shortly thereafter police officers informed the dispatcher they were going to make an emergency run to the hospital with the ambulance.

Forensic evidence

Global Positioning System (GPS) Automatic Vehicle Location (AVL) data for the involved police cruisers

The data provided no information to further this investigation.

The SO’s CEW Download

On November 4, 2016 at 12:24:25 p.m., the SO pulled the trigger of his CEW which discharged the selected cartridge and deployed the probes at the Complainant. The probes struck the Complainant and he experienced neuromuscular incapacitation (NMI) for a period of 3 seconds. After about 3 seconds, the SO deployed the safety on his CEW and the muscle-locking electric pulses experienced by the Complainant stopped.

Subsequently at 12:24:48 p.m., the SO pulled the trigger of his CEW for a second time causing the Complainant to experience NMI for another 4 seconds. After 4 seconds, the SO deployed the safety on his CEW and the electric pulses to the Complainant stopped.

At 12:25:01 p.m., the SO triggered his CEW for a third time causing the Complainant to undergo NMI for another 3 seconds. After the 3 seconds, the SO switched the CEW safety to on and the electric pulses to the Complainant stopped.

Materials obtained from Police Service

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

• 911 Call to EMS
• Communications Recordings
• ICC recordings for the SO’s cruiser, WO #1 and WO #2’s cruiser, and WO #3’s cruiser
• Event Details Report
• GPS AVL Data - the SO’s cruiser, WO #1 and WO #2’s cruiser, and WO #3’s cruiser
• GPS AVL Table - the SO’s cruiser, WO #1 and WO #2’s cruiser, and WO #3’s cruiser
• Incident Reports
• Incident Summary Report
• Statement of CW #8
• Maintenance Records for the SO’s CEW
• Notes of WO #1, WO #2 and WO #3
• Parade Sheet
• Automated Dispatch System (ADS) Summary Sheet
• Use of Force Training Record – the SO, WO #1 and WO #2

Incident narrative

Just after noon on November 4^th, 2016, the Complainant was outside his residence, screaming and waving two large knives around. A neighbour called 911.

The SO, WO #1 and WO #2 responded to the call. Upon their arrival, they found the Complainant on the ground, screaming and waving the knives in the air. Despite multiple commands to drop the knives, the Complainant continued to wave the knives and resisted all efforts to handcuff him. In an effort to bring the Complainant under control, the SO discharged his CEW three times at the Complainant. Only after the third discharge were the officers able to bring the Complainant under control and handcuff him. Shortly afterwards, however, the Complainant became unresponsive.

CPR was performed by the officers and attending paramedics, but the Complainant remained unresponsive and later pronounced dead at hospital. The subsequent autopsy concluded that the Complainant suffered from cardiomyopathy (heart muscle disease) and gene mutation associated with cardiomyopathy and that condition, coupled with cocaine intoxication, caused the Complainant’s death.

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 17, Mental Health Act - Action by police officer

17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself
2. has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or
3. has shown or is showing a lack of competence to care for himself or herself

and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

3. serious bodily harm to the person
4. serious bodily harm to another person; or
5. serious physical impairment of the person

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

Sections 219-221, Criminal Code - Criminal negligence

219 (1) Every one is criminally negligent who

1. in doing anything, or
2. in omitting to do anything that it is his duty to do

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, duty means a duty imposed by law.

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

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

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

Analysis and Director’s decision

On November 4^th, 2016 at 12:06:47 p.m., a 911 call was received by TPS requesting the assistance of police to a residential street in the area of Old Weston Road in the City of Toronto. The caller advised that her neighbour had just reported to her that a male person, later learned to be the Complainant, was seen close to the caller’s home lying on the ground and was screaming and waving two large knives in the air. As a result, the SO, and WO #1 and WO #2 responded to the call. During the course of the Complainant’s interaction with police, a CEW was deployed by the SO three times, following which the Complainant became unresponsive. Despite efforts by both police, and later paramedics, at performing life-saving techniques, the Complainant was later pronounced dead at hospital.

During the course of this investigation, eight civilian and four police witnesses were interviewed, including the SO. Additionally, investigators had access to the ICC videos from the three police vehicles that responded to the call, the 911 and radio transmission recordings, the download data from the CEW deployed by the SO and the notebook entries of all witness police officers on the scene. There is no dispute as to the facts.

On November 4^th, 2016, a number of residents in the area observed the Complainant yelling while armed with a knife in each hand which he was observed to be waving above his head. One of the witnesses described the knives as each having a blade of approximately eight to ten inches. When the police cruisers arrived, the witnesses indicated the Complainant’s location to the officers. The witnesses then heard the officers say to the Complainant “Put the knives down!” and then, seconds later, the noise of the CEW being deployed. Following this, they saw a police officer performing CPR on the Complainant.

WO #1 advised that when he and WO #2 first arrived at the Complainant’s location, the Complainant was lying face down with his hands raised above his head clenching a knife in each hand. WO #1 advised that he grabbed the C8 rifle from the cruiser and exited, pointing the rifle at the Complainant and stating “Police, don’t move! Drop the knife, drop the knife!” while WO #2 advised that he also exited the cruiser and identified himself as a police officer, but kept his firearm holstered, while ordering the Complainant to show his hands and place them behind his back. WO #2 advised that he was concerned for his own safety as well as the safety of the Complainant and the public. WO #2 advised that he too observed the Complainant holding a knife in each hand with his hands raised above his head and twirling each knife while lying face down on the ground. WO #2 advised that he repeatedly ordered the Complainant to drop the knives and put his hands behind him, but the Complainant did not comply. After both WO #1 and WO #2 had issued commands to the Complainant to drop the knives, he unexpectedly dropped the knives on the ground in front of him but within reach; following which both officers continued to issue commands, but the Complainant did not respond further. WO #2 advised that while WO #1 had his C8 rifle aimed at the Complainant, he moved toward the Complainant to secure his hands, but the Complainant then concealed them under his body. WO #2 described the Complainant as moving his hands about near his waistband and raising his lower back and buttocks off the ground, while WO #1 indicated that the Complainant began to fidget when he had his hand concealed under his body and both officers advised that they were concerned that the Complainant might have access to another weapon. WO #2 then placed his knee on the Complainant’s lower back but, despite numerous efforts, he was unable to bring the Complainant’s hands out from under his body to be cuffed.

The SO advised that he responded to a 911 radio call at approximately 12:06 p.m. in the residential area near Old Weston Road regarding a man armed with two knives who was lying on the ground screaming. When the SO arrived on scene, he saw a group of people waving at him and pointing in the direction of a nearby street, but he was not immediately able to locate the Complainant. The SO advised that he then looked in his rear view mirror and observed a group of civilians frantically pointing towards a laneway that he had just passed and he turned his cruiser around and drove back to the laneway entrance, but still could not see the Complainant. The SO then observed another marked police cruiser with WO #1 and WO #2 arrive in the area and he continued to search for the location of the Complainant. As he rounded the bend on the street, he observed WO #1 and WO #2 engaging the Complainant, who was lying face down on the ground in some long grass. The SO parked his police cruiser and observed the Complainant with more than two knives on the ground within his reach. He advised that initially he observed the Complainant with his hands above his head but that he then placed them under his body. The SO observed WO #1 standing to the east of the Complainant with his C8 rifle trained on him, while WO #2 was crouched over the Complainant’s feet, trying to handcuff him. The SO advised that he heard both officers shouting at the Complainant to show his hands.

The SO advised that he feared for his own safety, as well as that of WO #1 and WO #2, on the basis that the Complainant might have further weapons under his body which he could access. Fearing that the Complainant could either stab himself or one of the police officers, the SO made the decision to deploy his CEW and told WO #1 and WO #2 to stand back in order that he could do so. The SO advised that he was aware that the deployment of a CEW was permissible in situations to prevent being overpowered or assaulted, to safeguard against dangerous situations, to prevent a person harming themselves and for any other lawful or justified purpose. The SO advised that he was of the view that the only option available to him in this situation was the deployment of his CEW or his firearm, and he opted for the less lethal use of force option. The SO advised that he deployed his CEW and thought that the probes made contact with the Complainant, but he was not fully sure; the CEW cycled for five seconds. He heard the Complainant scream and tense up and violently thrash his body to and fro. WO #2 got over top of the Complainant and was able to gain some control of his left arm and placed a handcuff on it, but the Complainant continued to thrash his body around and managed to get his arms free and jammed them under his body. When the Complainant continued to ignore police commands, the SO deployed his CEW for another five second cycle and he moved towards the Complainant to assist WO #1 and WO #2 to handcuff him, but the Complainant was again able to jam his hands under his body and the SO backed up and deployed a third cycle from his CEW, at which point he observed the Complainant’s body to lock up and the police officers were able to handcuff him. As is procedure, following the deployment of a CEW, the SO called for an ambulance to remove the probes from the Complainant.

The download data from the SO’s CEW confirms that he deployed his CEW first at 12:24:25 p.m. for a period of three seconds; then again at 12:24:48 p.m., for a further period of four seconds, and finally at 12:25:01 p.m., for a final period of three seconds. The ICC video and the radio transmission recordings further confirm the SO’s version of events.

The Complainant was then successfully handcuffed, following which it appeared that he began to have trouble breathing and the police officers placed him in a seated position. WO #2 wiped away sputum from the Complainant’s mouth and observed that his eyes were half shut and he appeared to be going in and out of consciousness. The officers tried to rouse the Complainant, but he was unresponsive and his pulse was weak. After about 30 seconds, the Complainant’s head fell onto his chest and he went limp; an officer removed his handcuffs, placed him on his back and the officers requested that a rush be placed on the ambulance and CPR was started at the scene by the officers. Once the paramedics arrived, they took over CPR and transported the Complainant to hospital where he was later pronounced dead.

It is clear and undisputed on all of the evidence, that other than trying to pull the Complainant’s arms behind his back for handcuffing and the three deployments of the CEW, no officers used any physical force against the Complainant.

An investigation of the scene revealed a CEW cartridge case and probe wires as well as four kitchen knives and a set of police handcuffs.

A post mortem was subsequently carried out by a pathologist. The post mortem report concluded that the Complainant had suffered a “sudden arrhythmic death following deployment of an electronic control device in a man with cardiomyopathy and cocaine toxicity”. Following a request by the SIU to clarify the cause of death of the Complainant, the pathologist advised that the mechanism of death was “a fatal cardiac arrhythmia” and that the Complainant would have died “due to combination of cardiomyopathy and cocaine toxicity alone, irrespective of the use of ECD (or CEW)”. The post mortem revealed that the Complainant suffered from cardiomyopathy (heart muscle disease) and gene mutation associated with cardiomyopathy and that condition, coupled with cocaine intoxication, would have caused the Complainant’s death whether or not the SO had deployed his CEW.

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 Complainant’s apprehension, it is clear from the statement of all of the civilian witnesses that the Complainant was in possession of two weapons, he was causing a disturbance by screaming and he was a potential threat to the public and later to the police, after their arrival. Additionally, on all of the evidence, it appears clear that the Complainant was a threat to himself or others due to his level of cocaine intoxication, his possession of weapons and his irrational behaviour and as such could have been lawfully apprehended pursuant to s.17 of the Mental Health Act. As such, the apprehension of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by officers in their attempts to subdue and arrest the Complainant, it is clear that WO #1 and WO #2 used little, if any, force to attempt to restrain the Complainant and no more that was necessary to attempt to handcuff him. The SO, while observing the Complainant to be acting irrationally, with two knives within easy reach and with his hands concealed under his body, which caused all three officers concern that the Complainant might have access to another weapon, considered his available use of force options to be either his firearm or his CEW, and opted for a less lethal use of force option and deployed his CEW. While the SO deployed his CEW on three separate occasions, the download data confirms that each deployment was of a short duration (three seconds, then four seconds, and again three seconds) and that there was a period of delay between each deployment presumably to see whether or not the Complainant would now comply. It is clear on all of the evidence that until the Complainant was handcuffed, he continued to pose a threat to those around him. It is further clear that the officers could not simply walk away and leave the Complainant, because of the threat that he posed to the public. On this basis, and without the SO being in possession of the knowledge that the Complainant had consumed a toxic amount of cocaine and that he suffered from a prior condition of cardiomyopathy, I find that the SO’s actions were justified in the circumstances and that he used no more force than necessary to subdue the Complainant who was clearly armed, out of control, screaming and failing to comply with the repeated commands of police officers to show his hands. In coming to this conclusion, 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, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975), 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety. On this record, it is clear that the force used by the SO and the other officers involved in subduing the Complainant fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention. In light of the fact that the Complainant had already been seen waving two knives about, it was quite reasonable for officers to believe that he might have access to further weaponry on his person and he continued to be a danger until he was fully restrained. In fact, when the scene was examined after the fact, four knives were actually located.

In these circumstances, a charge that could arise for consideration would be one of criminal negligence as defined in s.219 of the Criminal Code. The Ontario Court of Appeal, in its decision of R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.), defined the offence of Criminal Negligence as requiring a marked and substantial departure from the standard of a reasonable person in circumstances where the accused “showed a reckless disregard for the lives and safety of others”. In these circumstances, where the SO was neither in possession of information that the Complainant had a pre-existing condition of cardiomyopathy nor was he aware that he had consumed a toxic level of cocaine, and he deployed his CEW pursuant to his training, I cannot find that his actions rise to the level of being a marked and substantial departure of the standard of a reasonable person in the circumstances or that his actions “showed a reckless disregard for the lives and safety of others”. Furthermore, criminal negligence alone does not constitute a criminal offence, with the Criminal Code requiring that the criminally negligent actions must have led to either death (s.220) or bodily harm (s.221). Where, as here, the evidence does not support a causal connection between the death of the Complainant and the deployment of the CEW, there are no reasonable grounds to believe that the essential elements of the offence of “criminal negligence causing death” can be made out.

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention and the manner in which it was carried out were lawful notwithstanding his tragic death, which appears to have been inevitable based on his pre-existing heart condition combined with his ingestion of a toxic level of cocaine. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the SO fell within the limits prescribed by the criminal law and there are no grounds for proceeding with charges in this case.

Date: October 31, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit