SIU Director’s Report - Case # 11-TCD-155

Explanatory note

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

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

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

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

Law enforcement and personal privacy information considerations

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

• confidential investigative techniques and procedures used by the SIU
• information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding
• witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Consistent with Justice Tulloch’s recommendations and guided by section 21 of FIPPA (relating to personal privacy information), personal information, including sensitive personal information, has also been redacted, except that which is necessary to explain the rationale for the Director’s decision. This information may include, but is not limited to, the following:

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

Personal health information

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

Other proceedings, processes, and investigations

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

Director’s report

Notification of the SIU

On August 1, 2011, at 2144 hrs, Notifying Officer of the Toronto Police Service (TPS) notified the SIU of a custody death. Notifying Officer reported that on August 1, 2011, at 2027 hrs, two 14 Division officers attended an address to arrest Person #1 for fail to comply with an arrest warrant. The officers could not locate Person #1 but found a man (later identified as Mr. Charles McGillivary) near a pizza place and went to speak to him. The officers arrested Mr. McGillivary and he collapsed. An ambulance was called and Mr. McGillivary was transported to the hopsital, where he was pronounced deceased. The Regional Coroner, Dr. Doctor, was notified of the death.

Overview

Civilian Witness #15 is the proprietor of a location. On August 1, 2011, at 1900 hrs, Civilian Witness #15 attended a location and saw several of her tenants having a barbecue in the backyard. Civilian Witness #15 recognized one of her old tenants, Person #1, who she evicted some time ago for fighting with another tenant. Civilian Witness #15 asked Person #1 to leave the property but he refused and began arguing with her. Civilian Witness #15 notified the police.

Two uniformed TPS officers (later identified as Subject Officer #2 and Subject Officer #1) arrived at a location and spoke with Civilian Witness #15. Subject Officer #2 and Subject Officer #1 also spoke with the tenants and learned that Person #1 was intoxicated and fled the area when 911 was called. Subject Officer #2 queried Person #1 on the Canadian Police Information Centre (CPIC) and discovered that Person #1 was on a recognizance with Sensitive Personal Information conditions. He was to reside in a location and not to associate with Sensitive Personal Information.

Subject Officer #1 and Subject Officer #2 felt that Person #1 breached his recognizance and had lawful authority to arrest him. Subject Officer #2 also searched on the Repository for Integrated Criminalistic Imaging (RICI) computer system, and located a recent photograph of Person #1. Subject Officer #1 and Subject Officer #2 left a location, and began to search the neighbourhood for Person #1.

On August 1, 2011, after 2000 hrs, Civilian Witness #8 and her son, Mr. Charles McGillivary went out for their routine walk. Civilian Witness #8 was less than a block behind Mr. McGillivary, near Bloor St. and Christie St. when she lost sight of him.

At 2027 hrs, Subject Officer #1 and Subject Officer #2 were traveling eastbound on Bloor St. W. approaching Christie St. when they observed a male walking on the south side of Bloor St. W. crossing to Grace St. Subject Officer #1 and Subject Officer #2 were under the impression that the male (later identified as Mr. McGillivary) was Person #1. Subject Officer #2 activated the emergency lights on the cruiser to initiate Mr. McGillivary to stop. Subject Officer #1 was in the passenger seat and yelled out the window, “Person #1’s name” to Mr. McGillivary. Mr. McGillivary made no response. Subject Officer #2 made a u-turn at the intersection of Bloor St. and Grace St. Subject Officer #2 drove the cruiser westbound on Bloor St. in the south curb lane and pulled the cruiser alongside Mr. McGillivary and shouted, “Person #1’s name.”

Mr. McGillivary made no response and began to walk at a faster pace. Subject Officer #2 parked the cruiser with the emergency lights still activated. Subject Officer #2 and Subject Officer #1 exited their cruiser and followed Mr. McGillivary. Subject Officer #1 used his portable radio to notify the dispatcher that he and Subject Officer #2 were investigating a person on Bloor St. W. Mr. McGillivary changed his direction and began running eastbound on the south sidewalk of Bloor St. W. and Grace St.

Subject Officer #1 and Subject Officer #2 pursued Mr. McGillivary on foot. Subject Officer #2 was ahead of Subject Officer #1 and Subject Officer #2 attempted to effect the arrest of Mr. McGillivary by shouting, “Person #1’s name stop. We don’t want to hurt you.” However, Mr. McGillivary refused to comply. Subject Officer #2 caught up to Mr. McGillivary in front of a Subway restaurant, which is located on the south side of Bloor St. just east of Grace St. Subject Officer #2 placed his/her hands on Mr. McGillivary’s left arm and Mr. McGillivary broke free. Subject Officer #1 tried grabbing Mr. McGillivary in an attempt to put his hands behind his back to handcuff them. Mr. McGillivary was struggling with the officers and they were having trouble gaining control of Mr. McGillivary’s arms. Subject Officer #1 used a leg sweep to take Mr. McGillivary to the ground. Mr. McGillivary landed on the ground on his stomach and chest area where he continued to struggle with the officers. Mr. McGillivary continued to actively resist while Subject Officer #2 tried to control Mr. McGillivary’s left arm. Mr. McGillivary was very strong and caused Subject Officer #2 to fall to his/her knees near Mr. McGillivary’s left side. Subject Officer #1 struggled to control Mr. McGillivary’s right arm. Subject Officer #1 used his knee to press down onto Mr. Gillivary’s right shoulder to bring his right arm behind his back. Subject Officer #2 and Subject Officer #1 managed to secure Mr. McGillivary’s hands behind his back by utilizing two sets of handcuffs. After Mr. McGillivary’s hands were handcuffed behind his back, Subject Officer #2 and Subject Officer #1 saw that Mr. McGillivary’s face was turning a shade of purple. They immediately removed the handcuffs and called for an ambulance. Mr. McGillivary was placed in a recovery position on the sidewalk.

Civilian Witness #8 saw from a distance two officers (later identified as Subject Officer #1 and Subject Officer #2) struggling with a man and had no idea at the time that it was her son. When Civilian Witness #8 approached Subject Officer #1 and Subject Officer #2, she began shouting at them asking what they were doing to her son. Sensitive Personal Information.

Subject Officer #2 and Subject Officer #1 sat Mr. McGillivary upright and he began losing consciousness. Subject Officer #1 made a second request for the ambulance to attend. While Subject Officer #2 and Subject Officer #1 were trying to provide medical attention to Mr. McGillivary, Sensitive Personal Information.

It was during this time that a traffic officer (later identified as Witness Officer #1) stopped and assisted Subject Officer #2 and Subject Officer #1 to put Mr. McGillivary from a seated position into a recovery position.

The paramedics (later identified as Emergency Personnel #1, Emergency Personnel #2, Emergency Personnel #4 and Emergency Personnel #3) arrived on scene and examined Mr. McGillivary. Emergency Personnel #1 checked Mr. McGillivary’s carotid pulse and found no pulse. Emergency Personnel #1 instructed Subject Officer #2 and Subject Officer #1 to roll Mr. McGillivary onto his back. Subject Officer #2 carried out CPR chest compressions while Subject Officer #1 supported Mr. Gillivary’s head.

Sensitive Personal Information

All attempts by the police and the paramedics to resuscitate Mr. McGillivary were unsuccessful. Mr. McGillivary was pronounced deceased by Dr. Doctor at Toronto Western Hospital.

At the hospital the identity of the deceased (Mr. McGillivary) was believed to be Person #1. At 2304 hrs, Civilian Witness #8 attended the hospital with Mr. McGillivary’s photograph card and confirmed the deceased was her son.

The investigation

On August 1, 2011 at 2200 hrs, three investigators and one forensic investigator were assigned. The SIU arrived on scene at 2310 hrs the same day and immediately began an investigation. Civilian witnesses were identified and interviewed. A media appeal was made to have witnesses come forward and provide video or photographs taken of the incident. The incident area was forensically examined and photographed. At the scene there was no evidentiary value discovered on the sidewalk where Mr. McGillivary collapsed. There was no blood or medical debris.

On August 5, 2011, Civilian Witness #7 was interviewed. Civilian Witness #7 provided his/her Blackberry cellular phone and SD memory card, with a video taken on August 1, 2011.

On August 9, 2011, Ministry of Revenue (MR) assisted the SIU by recovering the video from Civilian Witness #7’s cellular phone and reviewing it. In addition, MR assisted in enhancing the video; however, the results proved to be unsuccessful.

Subject Officer #1, Subject Officer #2 and Witness Officer #1 were designated as subject officers on August 2, 2011. After reviewing further investigative material, Witness Officer #1 was re-designated as a witness officer on August 10, 2011. Witness Officer #1 was interviewed on August 18, 2011, and provided copies of his/her notebook entries.

The subject officers provided copies of their notes and voluntary statements to the SIU.

The following officers were designated as witness officers on August 2, 2011. They were interviewed and provided copies of their notebook entries on the dates indicated.

• Witness Officer #2 (August 10, 2011)
• Witness Officer #3 (August 11, 2011)

The following officers were designated as witness officers on August 24, 2011. They were interviewed and provided copies of their notebook entries on the dates indicated:

• Witness Officer #4 (September 15, 2011)
• Witness Officer #5 (September 2, 2011)

On September 7, 2011, Witness Officer #6 was designated as a witness officer. He/She was interviewed on September 14, 2011, and provided a copy of his/her notebook entries. On September 21, 2011, Witness Officer #7 was designated as a witness officer. He/She was interviewed on October 3, 2011, and provided a copy of his/her notebook entries. On September 22, 2011, Witness Officer #8 was designated as a witness officer. He/She was interviewed on September 26, 2011, and provided a copy of his/her notebook entries.

The following officers were designated as witness officers on September 26, 2011. They were interviewed and provided copies of their notebook entries on the dates indicated:

• Witness Officer #9 (October 6, 2011)
• Witness Officer #10 (October 6, 2011)

The SIU requested, received and reviewed the following documents and materials from the TPS

• copies of all witness officers’ notebook entries
• copies of subject officers’ notebook entries
• copy of Parade Sheet Report
• copies of TPS RICI Booking of Person #1
• copy of all video recordings from all cruisers relevant to this incident
• copies of a compact disc of 911 calls and radio transmissions relevant to this incident, and
• copies of TPS Arrest and Release Procedures and other regulations, occurrences and reports deemed to be relevant by the SIU investigators

The following civilian witnesses were interviewed on the dates indicated:

• Civilian Witness #1 (August 2, 2011)
• Civilian Witness #2 (August 3, 2011)
• Civilian Witness #3 (August 3, 2011)
• Civilian Witness #4 (August 4, 2011)
• Civilian Witness #5 (August 4, 2011)
• Civilian Witness #6 (August 4, 2011)
• Civilian Witness #7 (August 5, 2011)
• Civilian Witness #8 (August 9, 2011)
• Civilian Witness #9 (August 9, 2011)
• Civilian Witness #10 (August 9, 2011)
• Civilian Witness #11 (August 9, 2011)
• Civilian Witness #12 (August 10, 2011)
• Civilian Witness #13 (August 19, 2011)
• Civilian Witness #14 (August 19, 2011)
• Civilian Witness #15 (August 29, 2011)
• Civilian Witness #16 (September 16, 2011)
• Civilian Witness #17 (September 20, 2011)
• Civilian Witness #18 (September 20, 2011)
• Civilian Witness #19 (September 20, 2011)
• Emergency Personnel #1 (September 28, 2011)
• Emergency Personnel #2 (September 28, 2011)
• Emergency Personnel #3 (September 28, 2011)
• Civilian Witness #20 (October 12, 2011)
• Civilian Witness #21 (December 20, 2011)

During the lengthy SIU probe, 23 civilian witnesses, including Mr. McGillivary’s mother, paramedics, firefighters and medical personnel were interviewed. The complexity of certain evidence examined and tested by both the CFS and the Coroner’s office resulted in a substantial delay in the SIU completing its investigation.

One EMS paramedic, later identified as Emergency Personnel #4, declined to be interviewed by the SIU.

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

In my view, there are no reasonable grounds to believe that the named subject officers, Subject Officer #2 and/or Subject Officer #1, committed a criminal offence in relation to the death of Mr. McGillivary on August 1, 2011.

This is a very tragic case. It began in the evening of August 1^st 2011, when a man named Person #1 attended a barbeque at the residential premises of a location. He was spotted by the owner and landlady of the house who had previously evicted him because he had assaulted another tenant. He refused to leave, causing the landlady to contact the police. Person #1 fled the area before the police arrived.

As a result of the 911 call, the two subject officers, Subject Officer #2 and Subject Officer #1, were dispatched in one scout car to a location in response to the complaint. They took information from the landlady and spoke to some of the tenants who told the officers that Person #1 was intoxicated. The subject officers queried Person #1’s name and particulars in the CPIC system and discovered that he was on a form of court recognizance with an alcohol prohibition, a non- association clause with a tenant who lived close to a location and an order he was to live at another address. They also located a recent photograph of Person #1 on the in-car computerized RICI system and began looking for an individual fitting the description of Person #1 in the immediate vicinity.

In the meantime, the decedent, Mr. McGillivary, was walking westbound on Bloor St. near Christie St. His mother was approximately a block behind him and their plan was to go for an evening walk. Unbeknownst to the subject officers, Mr. McGillivary was developmentally delayed, Sensitive Personal Information, and was largely non-verbal. Quite coincidentally, he happened to roughly fit the description of Person #1.

The subject officers were driving eastbound on Bloor St. W. approaching Christie St. when they saw a man fitting the description of Person #1 walking westbound on the south side of Bloor St. and crossing Grace St. We know that the man in question was Mr. McGillivary.

Subject Officer #1 rolled down the window of his cruiser and yelled out “Person #1’s name” in the direction of Mr. McGillivary. The decedent did not respond and kept walking. Subject Officer #2 who was driving the scout car made a u-turn and drove westbound in the eastbound lane in order to drive alongside Mr. McGillivary. Mr. McGillivary immediately turned around and began walking eastbound on Bloor St. at a much faster pace. Subject Officer #2 stopped the cruiser; both officers exited and began to chase the decedent eastbound along Bloor St.

The officers caught up to Mr. McGillivary just east of Grace St. Subject Officer #2 attempted to speak to Mr. McGillivary but he did not provide any verbal responses. They struggled with him and he would not permit them to place handcuffs on his wrists. Subject Officer #1 used a leg sweep to take him to the ground. He landed on his stomach and continued to struggle with the subject officers. Subject Officer #2 took control the decedent’s left arm while Subject Officer #1 took control of the right arm by pressing his knee into Mr. McGillivary’s right shoulder. They placed two sets of handcuffs on his wrists. Immediately after Mr. McGillivary was handcuffed, he fell into medical distress; his complexion turned purple and he lost consciousness. In the meantime, the decedent’s mother arrived and began yelling at the two officers out of concern for her son. They removed the handcuffs and placed him in a recovery position on the sidewalk. Subject Officer #1 used his radio to request an ambulance.

None of the ten civilians interviewed by the SIU who witnessed this interaction saw either subject officer strike or kick Mr. McGillivary. There is also an amateur video clip of part of the incident. However, it begins after Mr. McGillivary was on the ground. While of limited value, it does not depict the officers striking or kicking the decedent.

By the time the ambulance attendants arrived, Mr. McGillivary had stopped breathing. Subject Officer #2 performed chest compressions while Subject Officer #1 supported the decedent’s head. He was transported to Toronto Western Hospital where he was pronounced deceased.

A post-mortem examination was performed on the body by Dr. Doctor, the province’s Chief Forensic Pathologist. The initial autopsy disclosed only minor blunt force injuries and no obvious cause of death. In an attempt to explore other potential causes of death, the attending pathologist sent tissue samples to an American laboratory for DNA testing. A laboratory report detailed a pre-existing genetic heart defect. While the condition is rare and was first diagnosed in 1975 through advances in DNA testing, it can cause death in otherwise healthy adults in circumstances of physical exertion and/or high stress.

Dr. Doctor integrated the findings of this report into his/her diagnosis. In these circumstances with no alternative cause of death, his/her medical opinion of the decedent’s cause of death was the following:

Cardiac arrhythmia precipitated by struggle and restraint in a man with a pre-existing genetic heart disease technically called ‘catecholaminergic polymorphic ventricular tachycardia’ or CPVT.

I might add that the final post-mortem report was peer reviewed by three other forensic pathologists who agreed with Dr. Doctor’s opinion. Accordingly, given the weight of medical opinion on this issue, for the purpose of my decision with respect to whether the force used in these circumstances was excessive, I am relying upon Dr. Doctor’s opinion of the cause of death.

I have had an opportunity to review the information received by the subject officers including the contemporaneous in-car radio communications. As well I have viewed the downloaded photograph of Person #1. Both subject officers also submitted to a voluntary interview with SIU investigators. I am satisfied that the subject officers held an honest and reasonable but ultimately mistaken belief that the person they apprehended with respect to this incident was Person #1. On that basis, they had the lawful authority to arrest Mr. McGillivary because of their reasonably held belief that the man they were arresting was in breach of a number of terms of his recognizance from a previous arrest.

Unfortunately, as we now know, the man they apprehended was not Person #1 but Mr. McGillivary. Adding to this tragedy is that Mr. McGillivary had a series of psychological and mental disabilities that prevented him from communicating with the officers, and precipitated his flight and struggle when apprehended. The final aspect of this sad set of circumstances was that Mr. McGillivary had an undiagnosed pre-existing genetic heart disease which, in the opinion of the pathologist caused a fatal cardiac arrhythmia when precipitated by the struggle with the two subject officers. While the ultimate legal cause of death will be determined at an inquest, for the purpose of my legal analysis, I am satisfied of the following:

First, the subject officers had an honest and reasonable but mistaken belief the man they were arresting was in breach of the conditions of his recognizance.

Second, they had the lawful authority to use reasonable force given his non-responsiveness to their inquiries, his attempt to flee and his level of resistance.

And finally, while the force used was a factor in Mr. McGillivary’s death in the sense that it caused him a high level of physical exertion and no doubt anxiety, the officers cannot be held criminally liable for Mr. McGillivary’s demise because it was not excessive in these circumstances – the greatest level of force used was a leg sweep to take him to the ground and there is no pathological evidence that this action alone was responsible for his death. In my view, no-one could have reasonably foreseen the fatal consequences of this struggle.

In sum, I cannot form reasonable grounds that the subject officers acted unlawfully notwithstanding this incident’s tragic result.

I intend to add the following to the Chief’s letter:

Date: December 21, 2011

Original signed by

Ian Scott
Director
Special Investigations Unit