Director's Report Details

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.

Freedom of Information and Protection of 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.

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 23-year-old man (the “Complainant”).

Notification of the SIU

On October 7, 2020, at 9:34 a.m., the Ottawa Police Service (OPS) notified the SIU of the Complainant’s death. According to the OPS, on October 7, 2020, at approximately 9:00 a.m., OPS police officers went to execute a warrant to search at 2020 Jasmine Crescent, Ottawa. While doing so, the Complainant jumped off the balcony. The Complainant was pronounced dead at the scene.

The Team

Number of SIU Investigators assigned: 4
Number of SIU forensic investigators assigned: 1

SIU investigators interviewed civilian and police witnesses, canvassed for additional witnesses, and searched for and obtained closed-circuit television (CCTV) data from inside and outside the involved address. Interviews of the subject and witness officers were protracted due to the coronavirus 19 (COVID-19) pandemic and ensuing employment protocols during this investigation.

One SIU forensic investigator made digital photographic records of the scenes inside and outside the apartment, collected physical exhibits, and made a digital photographic record of the post-mortem examination of the Complainant conducted on October 8, 2021.

SIU investigators obtained and reviewed data obtained on request from the manufacturer of the GPS device attached to the Complainant’s ankle.

Complainant:

23-year-old male, deceased

Civilian Witnesses

CW #1 Not interviewed (Next-of-kin)
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed

Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes received and reviewed.
SO #2 Interviewed, and notes received and reviewed
SO #3 Interviewed, and notes received and reviewed

The Scene

Primary Scene

Figure 1 - 2020 Jasmine Crescent, Ottawa.

The following scenario emerges from the evidence collected by the SIU, which included statements from two of the three subject officers – SO #2 and SO #3 – and family members of the Complainant in the apartment at the time of the events in question. The SIU was also assisted in its investigation by video recordings from cameras inside the apartment unit and affixed to the exterior of the building that captured the incident in parts. As was his legal right, the other subject officer – SO #1 – chose not to interview with the SIU. He did provide a copy of his notes.

Shortly before 9:00 a.m. of October 7, 2020, a team of OPS tactical officers breached the door of an apartment at 2020 Jasmine Crescent. The officers were there to execute a warrant authorizing the search of the apartment for firearms, illicit drugs and drug paraphernalia. With the door open, a distraction device was deployed into the apartment, detonating with a loud bang and flash of light, and producing a smoky haze. Officers streamed into the apartment shouting their presence - “Police” – and directing that occupants of the unit not move.

The Complainant was inside the apartment at the time. At the sound of the commotion generated by the police entry, the Complainant climbed through his bedroom window and jumped. Seconds prior to his descent, the Complainant had thrown a baggie from the same window. The item was subsequently seized by police and found to contain fentanyl.

The search warrant had been obtained by officers with the OPS Drug Unit, who came to be in the possession of information from confidential sources that the Complainant had resumed his drug trafficking activities since his release from custody in March 2020. The Complainant had been arrested in January 2020 for being in possession of illegal drugs and a loaded handgun. Among the conditions of his release were that he remain inside his residence and that he wear a GPS device attached to his ankle to monitor his movements. The drug unit officers also had reason to believe that the Complainant was again in possession of firearms.

SO #2 and SO #3 jointly swung the ram that forced open the door to the apartment. SO #1 was the officer who deployed the distraction device. Also on the team that day were WO #2, WO #3, WO #4, WO #5, and the team leader – WO #9.

The officers entered the apartment and quickly began to move from room to room. The Complainant’s stepfather, CW #4, had been on the balcony when the team entered. He was taken into custody and placed in the living room. CW #5, the Complainant’s girlfriend, was in the bathroom when a tactical officer – SO #1 – located and escorted her into the living room. The Complainant’s younger siblings – CW #2 and CW #3 – lived in the apartment and were woken by the police raid. Lastly, the Complainant’s grandmother was located in her bed in one of the bedrooms.

Within seconds of the officers’ entry into the apartment, WO #7, who was stationed outside the apartment building at its southeast corner with a view of the apartment, radioed that something had been discarded from the residence seconds after he heard the distraction device detonating. About ten seconds later, WO #7 radioed that someone – the Complainant – had jumped from the apartment.

The first officer to enter the Complainant’s bedroom was WO #5. By that time, WO #7’s radio transmissions had already been broadcast and the only person in the bedroom was CW #2.

WO #7 ran to where the Complainant had landed and observed drug unit officers beside the body. A paramedic, who had attended the scene with the tactical officers and was staged outside the building, quickly arrived and began to administer first aid. His partner soon joined him.

The Complainant lost vital signs and could not be resuscitated. He was pronounced dead at the scene.

Quantities of heroin and fentanyl were seized in the search of the apartment, as was a Voodoo AR15-style “BB” gun. No handgun was located.

Cause of Death

The pathologist at autopsy attributed the Complainant’s death to “multiple injuries”. In the Report of Postmortem Examination, the pathologist noted:

The overall pattern of the injuries was in keeping with a fatal descent from height, with the decedent landing on soft ground. The injuries to the internal organs were a function of both blunt impact with the ground and acute deceleration forces.

Section 219, Criminal Code -- Criminal negligence causing death

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

Section 220, Criminal Code -- Criminal negligence causing death or bodily harm

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

(a) 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

(b) in any other case, to imprisonment for life.

In the morning of October 7, 2020, the Complainant fell from his 12th floor apartment to the ground below, suffering catastrophic injuries resulting in his death. As OPS officers were present inside the apartment at the time, the SIU was notified of the incident by the police service and initiated an investigation. Three police officers were identified as subject officers: SO #1, SO #2 and SO #3. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officers committed a criminal offence in connection with the Complainant’s death.

At the outset of the liability analysis, it bears noting that there is no evidence of any direct, physical force having been brought to bear by any of the tactical officers against the Complainant. I have no reason to discount the evidence of the officers inside the apartment, backed up by the observations and contemporaneous utterances of WO #7 captured on police communication recordings, that the Complainant left his apartment via a bedroom window within seconds of the officers’ entry into the unit and before any of them had reached his room, which, incidentally, was the furthest from the front door.

The offence that arises for consideration, in my view, is criminal negligence causing death contrary to section 220 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. Simply negligence is not enough to give rise to liability. Rather, what is required, in part, is conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the issue is whether there was any want of care in the manner in which the police operation was devised and executed that played a role in the Complainant’s death and was sufficiently egregious as to attract criminal sanction. In my view, there was not.

I am satisfied that the tactical officers had lawful grounds to enter and search the apartment. The day before, on October 6, 2020, the drug unit had secured a warrant authorizing a search of the apartment for firearms, drugs and drug paraphernalia. The warrant was in effect at the time of the events in question.

Though subject to legitimate scrutiny in part, I am further satisfied that the plan developed to enter the apartment and the manner of its execution did not transgress the limits of care prescribed by the criminal law. The morning of the raid, the tactical officers were apprised of the search warrant in effect and briefed on the objectives of the operation by the drug unit. They were advised of the Complainant’s January 2020 arrest on drug and weapons charges, that information had been gathered indicating the Complainant was continuing to deal in drugs and was in possession of a handgun, and that he was to be arrested in the apartment. Consideration was given to the manner of entry. One of the options was a “breach and call-out” whereby the front door was forced upon and occupants called out one by one by officers from a position of safety. The other alternative was a “dynamic entry”, in which officers would storm the unit using the element of surprise and an overwhelming show of force to disorient the occupants and neutralize any potential threats before they materialized. The latter was decided by the incident commander, WO #8, for a variety of reasons, including the presence of third-party tenants on the floor and the risk of casualties or a barricaded person situation developing should a person in the apartment decide to arm themselves in a “breach and call-out” scenario. There were risks inherent in both approaches, in my view, particularly as the Complainant was on firearms-related charges and police had cause to believe he was still armed, and I am unable to reasonably conclude that the choice to go with a dynamic entry was without merit.

In arriving at this conclusion, I am mindful that dynamic entries have been the subject of public criticism and judicial censure. In R. v. Bahlawan, 2020 ONSC 952, for example, the court chastised the choice by OPS tactical officers in that case to execute a search warrant by way of dynamic entry. The rule, the court noted, was that police were to knock and announce their presence before entering a home with a search warrant. A departure from the rule would only be countenanced where justified on the basis of exceptional circumstances, such as where there existed reasonable grounds to be concerned about the risk of harm to officers or occupants, or the destruction of evidence. In Bahlawan, supra, the tactical officers had proceeded with a dynamic entry based on accepted practice without considering why the knock-and-announce approach was inappropriate and, in doing so, had violated the accused’s right to be free from unreasonable search and seizure.

The same cannot be said of the dynamic entry that occurred in this case. The officers very expressly adverted to proceeding with a different manner of entry, namely, the “breach and call-out”, and decided, whether rightly or wrongly, that a dynamic entry was the better option. Moreover, unlike the circumstances in Bahlawan, supra, the police had an objectively articulable basis to be concerned about the presence of a firearms in the residence. To reiterate, the Complainant was at the time facing firearms-related charges and the police had information to the effect that he was presently in possession of a handgun.

It is of concern that the tactical officers did not appear to pay sufficient heed to the possibility that the subject of the search warrant – the Complainant – might attempt to flee apprehension via a descent from the building. And yet, I am satisfied, that is precisely what occurred. [1] A number of officers expressed the view that the possibility was a remote one given the height of the apartment in question on the 12th floor. However, recent high-profile and not as high-profile cases investigated by this office indicate that the possibility materializes from time-to-time in these types of police operations. In my view, the officers ought to have turned their attention to this contingency and made some provision for it. [2] It might have been wise, for example, to establish a very visible police presence below the Complainant’s 12th floor apartment to deter any rash action motivated by a desire to escape. That said, it must be recognized that one of the benefits of a dynamic entry is the speed with which the officers are able to establish control over a scene, foreclosing in at least some cases, presumably, conduct such as occurred in this case.

In the result, while I accept that the impetus for the Complainant’s decision to jump from his window was a desire to escape apprehension at the hands of the officers entering his apartment, there are no reasonable grounds to believe that the involved officers, including the three subject officers, contributed to the Complainant’s death by way of criminal negligence. Though there may have been shortcomings in the operation that saw officers enter the Complainant’s apartment by way of dynamic entry, any such deficiencies fell short of rendering the officers’ conduct a marked and substantial departure from a reasonable level of care. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: August 30, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit