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: 07/01/2015 at 0347 hours
Notified by: Police

On Wednesday, July 1, 2015, at 0347 hrs, Notifying Officer of the Toronto Police Service (TPS) reported the custody death of Deceased, 33 years of age.

Overview

On July 1, 2015, at 0147 hrs, TPS received a call regarding a suspicious incident near ----redacted Earnscliffe Road, Toronto.

A man, now known to be Deceased, ran from his own vehicle that he had driven through the back yards of several houses before police arrived.

Police officers searched the area and Deceased was eventually located in the shared back yard of the residences at ----redacted and ----redacted Oakwood Ave.

Deceased threw objects at the police officers and swung a stick at them. A struggle occurred as the police took Deceased into custody. When finally handcuffed, with his hands behind his back, Deceased went into medical distress and was absent vital signs.

Deceased was taken by an ambulance to Sunnybrook Health Sciences Center (SHSC), where he was pronounced dead.

The investigation

Response type: Attend Immediately
Date and time team dispatched: 07/01/2015 at 0415 hours
Date and time SIU arrived on scene: 07/01/2015 at 0540 hours
Number of SIU Investigator(s) assigned: 6
Number of SIU Forensic Investigator(s) assigned: 4

Complainant

Deceased Deceased

Civilian witnesses

Civilian Witness #1 Initial interview: July 1, 2015

Civilian Witness #2 Initial interview: July 1, 2015

Civilian Witness #3 Initial interview: July 1, 2015

Civilian Witness #4 Sensitive Personal Information

Civilian Witness #5 Sensitive Personal Information

Civilian Witness #6 Sensitive Personal Information

Civilian Witness #7 Initial interview: July 1, 2015

Civilian Witness #8 Initial interview: July 1, 2015

Civilian Witness #9 Initial interview: July 1, 2015

Civilian Witness #10 Initial interview: July 3, 2015

Civilian Witness #11 Initial interview: July 3, 2015

Civilian Witness #12 Declined to participate in the investigation

Emergency Medical Personnel #1 Initial interview: August 4, 2015

Emergency Medical Personnel #2 Declined to participate in the investigation

Emergency Medical Personnel #3 Declined to participate in the investigation

Emergency Medical Personnel #4 Initial interview: August 18, 2015

Emergency Medical Personnel #5 Initial interview: August 4, 2015

Subject officers

Subject Officer #1 Initial interview: July 15, 2015

Subject Officer #2 Initial interview: July 22, 2015

Subject Officer #3 Initial interview: July 22, 2015

Subject Officer #4 Initial interview: July 15, 2015

Copies of notebook entries were provided by all Subject Officers.

Witness officers

Witness Officer #1 Initial interview: July 1, 2015

Witness Officer #2 Initial interview: July 1, 2015

Witness Officer #3 Initial interview: July 1, 2015

Witness Officer #4 Initial interview: July 1, 2015

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

  • COMM-summary of conversation
  • Sensitive Personal Information
  • ICAD-Event Details Report-----redacted
  • List-Civilian Witnesses
  • Motor Vehicle Accident Report-----redacted
  • Notes- Subject Officer #1
  • Notes- Non-Witness Officer #1
  • Notes- Non-Witness Officer #2
  • Notes- Subject Officer #4
  • Notes- Witness Officer #3
  • Notes- Witness Officer #1
  • Notes- Witness Officer #2
  • Notes- Subject Officer #2
  • Notes- Witness Officer #4
  • Notes- Subject Officer #3
  • Notes- Non-Witness Officer #3
  • Parade Sheet Report-June 29, 2015
  • Policy-Use of Force and Equipment
  • Procedure-15-01-Appendix A-Provincial Use of Force Model
  • Procedure-15-01-Appendix B-Provincial Use of Force Model
  • St John Ambulance Certification- Witness Officer #1
  • TPS-General Occurrence Information - 2015-----redacted
  • TPS-Person-Vehicle for Investigation form - Deceased
  • Use of Force Training Records for involved police officers, and
  • Witness Statement - Civilian Witness #3

Director’s Decision Under s. 113(7) of the Police Services Act

There are no reasonable grounds to believe that the four subject officers committed a criminal offence in the course of their dealings with Deceased. Consequently no charges will issue.

During the early morning hours of July 1, 2015, the Toronto Police Service received a number of calls concerning a large-scale disturbance in a residential neighbourhood. Residents reported that a motor vehicle had driven through the back yards of several adjacent properties and caused significant property damage. These calls were received at approximately 1:46 a.m. Subsequent investigation determined that Deceased was the driver of that motor vehicle.

Several officers attended the scene in response to the radio call, including the four subject officers Subject Officer #1, Subject Officer #4, Subject Officer #2 and Subject Officer #3. Witness Officer #4, a witness officer, was also on scene in response to the radio call. All five officers provided interviews to this Unit.

The four constables and the sergeant engaged in various investigative tasks when they arrived on scene. These tasks included searching the motor vehicle, interviewing witnesses, running background checks on Deceased (who they had cause to believe was the offending driver) and physically searching the surrounding area for the suspect.

With the aid of his/her police service dog, Witness Officer #4, who was accompanied by Subject Officer #3 and Subject Officer #2, discovered Deceased in the back yard of a nearby home at approximately 2:18 a.m. Deceased was found in the rear of the yard behind the garage. All three officers stated that he was bleeding profusely from a head wound when they first encountered him. He was also agitated, sweating, grunting, breathing heavily and appeared uncoordinated. Subject Officer #3 opined that he was under the influence of drugs or experiencing a psychotic episode.

Upon making initial contact, Witness Officer #4 made a series of verbal demands inclusive of “stop” and “get down”. Subject Officer #3 was yelling similar directions at Deceased. Various civilian witnesses confirmed that the police were yelling these types of instructions. Deceased was noncompliant and combative, swinging his arms wildly at the officers. He also picked something off the ground, and Subject Officer #2 and Subject Officer #3 drew their firearms in response. Subject Officer #2 realized the object that had been picked up was akin to a rock so he holstered his firearm and drew his extendable baton, although he did not extend it at the time. Deceased then threw the item (a rock or brick) at the officers, narrowly missing Subject Officer #2.

After throwing the rock, Deceased jumped over the fence into the adjacent back yard. Subject Officer #2 and Subject Officer #3 followed Deceased over the fence while Witness Officer #4 remained behind with his/her service dog.

Subject Officer #1, who was interviewing a witness at the time of the initial contact, heard the commotion and ran towards the source of the disturbance in order to assist. He/She arrived shortly thereafter and came upon Deceased and Subject Officer #2 and Subject Officer #3. Once in the adjacent yard, Deceased picked up a large wooden garden stake and threw it at the officers. After doing so, he lost his balance and fell into the garden area.

The officers seized upon the opportunity that Deceased being on the ground presented. Subject Officer #2 ran in and put his foot on Deceased’s back in order to hold him down. Once Deceased was pinned, Subject Officer #3 attempted to take control of Deceased’s left arm while Subject Officer #2 attempted to secure his right arm so that he could be handcuffed. Deceased continued to be highly resistant to the officers’ efforts and a struggle ensued. Subject Officer #4 arrived and engaged in the altercation, applying a leg lock to Deceased in an effort to gain compliance.

The scuffle continued for a period of time. During the course of the arrest process Subject Officer #2 extended his baton, although he stated that it did not fully extend and “lock”. He claims to have employed his baton in the course of the arrest, placing it in the crook of Deceased’s arm in order to wrench his hand out from underneath his body. Subject Officer #2 stated that at no point did he strike Deceased with the baton. The other three officers involved in the arrest did not see Subject Officer #2 strike Deceased with his baton. Eventually, the officers succeeded in handcuffing Deceased and rolling him onto his back at approximately 2:20 a.m. Witness Officer #4 observed the arrest process from the other side of the fence and estimated that the struggle lasted for approximately ten seconds.

After successfully handcuffing Deceased, the officers called for Emergency Medical Services because of the head wound that Deceased had sustained. After a few seconds, Deceased appeared to lose consciousness and Subject Officer #1 upgraded the urgency of the paramedic request. The officers then carried Deceased out from the garden to the front of the garage. It was a matter of minutes before the first team of paramedics arrived.

Upon their initial assessment the two paramedics (who declined to be interviewed by this Unit) determined that Deceased was not exhibiting any vital signs. They consequently called for further assistance and a second team arrived in response. The two paramedic teams determined that Deceased had suffered a cardiac arrest and began to work through their response procedures. These resuscitation efforts continued as Deceased was transported to Sunnybrook Health Sciences Centre, but to no avail. He was pronounced dead at approximately 3:05 a.m.

The post-mortem examination was conducted by Dr. Doctor on July 3, 2015. Dr. Doctor ultimately concluded that the cause of death was a fatal cardiac arrhythmia indicative of cocaine intoxication by an individual with chronic heart disease and a history of anabolic steroid use. The toxicology report indicated that Deceased had consumed cocaine and tamoxifen (used by bodybuilders in conjunction with anabolic steroids).

After reviewing Doctor’s post-mortem report, I am satisfied that Deceased died as a result of a cardiac arrest set into motion by his abuse of illegal drugs. His highly erratic and dangerous driving, apparent disassociated state, aggressive behavior and other physical symptoms are all indicative of having consumed a significant quantity of cocaine. While the struggle that Deceased engaged in with the subject officers may have played a role in his cardiac arrest, in my view it was not a significant contributing cause of his death. Moreover, none of the subject officers applied any degree of force that they knew would result in death, or bodily harm likely to cause death. Accordingly there are no reasonable and probable grounds to support any charge emanating from the death of Deceased. His passing is ultimately a tragic outcome devoid of criminal liability. The adverse effects of drug abuse were clear on the evening of July 1, 2015.

There is, however, an issue that causes me significant concern that I will bring to your attention.

The post-mortem examination also revealed that Deceased had two lacerations on the left side of his head above the ear. They are consistent with closed strikes from a police-issued extendable baton. To be clear, the edges of the two wounds match up with the circumference of the butt of a baton handle. Deceased also had a laceration above his left eyebrow that was the apparent source of the bleeding observed by the officers when they first encountered him.

The batons of all four subject officers were seized pursuant to this Unit’s investigation. Deceased’s blood was found on the baton of Subject Officer #2, although the blood was found on the shaft of the weapon above the handle as opposed to the butt of the handle.

I am confident in concluding that Deceased was struck on the head with the butt end of a baton. I am also inclined to suspect that Subject Officer #2 delivered the strike given that he was the only officer who made use of his baton during the arrest process. Despite providing interviews to this Unit, nothing in any of the subject officers’ accounts provides an explanation for the two lacerations suffered by Deceased.

These two head wounds were simple lacerations. There was no skull fracture or associated brain injury. In short, they were not fatal to Deceased, nor were they a significant contributing cause of his death. Despite this, I have spent some time contemplating the availability of charges of assault with a weapon or assault causing bodily harm, contrary to s. 267(a) or (b) of the Criminal Code. After much consideration, I have determined that no such charge will issue.

First, the whole of the investigation does not leave me with a sufficient basis to conclude who struck Deceased with a baton. Although several civilians observed Deceased’s actions in advance of the arrest process, none witnessed his altercation with the four subject officers. As such, I am limited to the accounts of the subject officers, aided by the witness officer Witness Officer #4. The forensic analysis revealed that Subject Officer #2’s baton had Deceased’s blood on it, but it is significant that no blood was found on the butt of the weapon. Small pools of blood were found at the scene of the arrest, and they serve as a conceivable explanation for the blood found on the shaft of Subject Officer #2’s weapon.

Second, even if I was satisfied as to the issue of identification, a closed baton strike to the head would not necessarily be unreasonable in the circumstances of this arrest. Deceased was a large and powerful individual who had consumed cocaine, and was both combative and noncompliant. Although brief, the struggle surrounding the arrest was difficult and required four officers to resolve.

Moreover, in this case I am less concerned with the fact that a baton strike was employed than I am with my conclusion that members of the Toronto Police Service were less than forthcoming about employing a use of force option. Someone struck Deceased with the butt of a baton, but I cannot confidently say who.

On the whole of the evidence, I have determined that I do not have reasonable and probable grounds to proceed with charges of assault with a weapon or assault causing bodily harm. While my concerns persist, they cannot serve as an evidentiary basis for criminal charges.

Date: March 21, 2016

Original signed by

Tony Loparco
Director
Special Investigations Unit