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SIU Director’s Report - Case # 18-OCI-205

Contents:

News Releases for this Case:

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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 a serious injury sustained by a 22-year-old man (the “Complainant”). This report relates to the SIU’s investigation into a serious injury sustained by a 22-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On July 13, 2018 at 9:39 a.m., the Hamilton Police Service (HPS) notified the SIU of the Complainant’s injury.

The HPS reported that on July 13, 2018, at 8:45 a.m., the Complainant took a taxi from downtown Hamilton to the area of the Lincoln Alexander Parkway and Upper Gage Avenue. The Complainant’s girlfriend called the HPS and reported the Complainant threatened to commit suicide.

HPS officers responded to the area of Lincoln Alexander Parkway and Upper Gage Avenue where they found the Complainant on the overpass. HPS officers attempted to engage in conversation with the Complainant, but were unsuccessful. The Complainant put a leg over the rail and one of the police officers tried to grab the Complainant but he was too heavy and fell. The Complainant struck a westbound vehicle on the Lincoln Alexander Parkway. The police officers found the Complainant conscious and lying on the ground. He was taken to the Hamilton General Hospital (HGH) where he was reported in stable condition. 
 

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2
 

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Not interviewed (Next-of-kin)
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
CW #10 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

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


Evidence

The Scene

Upon the arrival of the SIU, there were two scenes with both scenes cordoned off by members of the HPS. The first scene was in the westbound lanes on the Lincoln Alexander Parkway under the Upper Gage Avenue overpass. There were two westbound lanes and one acceleration lane from the ramp from northbound Upper Gage Avenue. The roadway was paved with a posted speed limit of 90 km/h. There were three vehicles within the scene, those being the HPS vehicles of the subject officer (SO) and a witness officer (WO), and the 2014 Hyundai Tucson (CW #4’s vehicle) which the Complainant had struck.

There was a scuff mark in the second lane from the left (curb lane) consistent with where the Complainant had slid off the Hyundai and struck the road before he slid to a stop.

The second scene was on Upper Gage Avenue over the Lincoln Alexander Parkway. There were two northbound and two southbound lanes with on ramp lanes to the Lincoln Alexander Parkway. The northbound and southbound lanes were separated with a raised concrete island. There were raised concrete sidewalks on both sides of the roadway. There were concrete retaining walls on either side of the overpass with a metal tubular handrail.

The concrete retaining wall on the west side of the overpass was .85 metres in height and the top ledge was .185 metres in width. The retaining wall was topped with an oxidized metal handrail measuring .28 metres in diameter and the top of the handrail was located .232 metres from the top of the retaining wall making a total height of 1.082 metres for the retaining wall and handrail.

The distance from the top of the handrail to the Lincoln Alexander Parkway below was measured as 7.24 metres.

Video/Audio/Photographic Evidence

Traffic surveillance cameras were noted at the scene. Investigators spoke to a staff member at the City of Hamilton and learned the cameras were only used to monitor the traffic. At the time of this interaction an operator was not present to watch the cameras, and there was no provision to record what the cameras were viewing.

Communications Recordings

At 8:22 a.m., civilian witness (CW) #1 called HPS and reported the Complainant was “going to the mountain to kill himself.” She provided background information regarding the Complainant and said the Complainant had called a taxi. Police officers were dispatched in the downtown area of Hamilton in search of the Complainant.

At 8:23 a.m., a police dispatcher called Hamilton Cab taxi and learned a taxi picked the Complainant up. The HPS dispatcher spoke to the taxi dispatcher regarding the location of the taxi which was driving and equipped with a GPS tracking device.

At 8:30 a.m., when it was learned the taxi was “on the mountain,” WO #1 and the SO were dispatched. The HPS police dispatcher provided regular updates including the fleet number of the taxi, the location and direction of travel, and the name and a description of the Complainant (though it was not known what clothing he was wearing) to officers.

At about 8:37 a.m., and just after WO #1 said she was eastbound on the Lincoln Alexander Parkway passing Upper Gage Avenue, the dispatcher provided an update that the taxi had exited the Lincoln Alexander Parkway at Upper Gage Avenue.

At about 8:38 a.m., the dispatcher transmitted that the taxi turned right (southbound) and the taxi driver turned off the meter, indicating the Complainant had likely exited the taxi at Upper Gage Avenue and the Lincoln Alexander Parkway.

At about 8:39 a.m., the SO radioed that he observed a male matching the description of the Complainant on the north side of the Lincoln Alexander Parkway. The dispatcher confirmed through the taxi company that the Complainant had exited the taxi. The SO said he was going to turn around.

At about 8:40 a.m., the SO transmitted, “Here he is, walking northbound,” followed shortly thereafter by, “He’s stopped, on top of the bridge.”

At about 8:41 a.m., the SO made a second transmission, “We have a situation here. He’s looking over.” Traffic noise could be heard in the background of the SO’s transmission. WO #2 broadcast that he arrived on scene.

At about 8:42 a.m., WO #2 requested a negotiator and said the Complainant was, “Looking kinda antsy, like he was going to go.”

At about 8:43 a.m., the SO requested the Lincoln Alexander Parkway be shut down quickly and said, “this is kinda… imminent.”

At about 8:44 a.m., the SO broadcasted that the Complainant jumped.

Shortly after, multiple 911 telephone calls were received reporting a man (now known to be the Complainant) had fallen from the Upper Gage Avenue overpass onto the Lincoln Alexander Parkway. There were 911 calls originating from Upper Gage Avenue reporting the police officers had interacted with the Complainant. There were other 911 calls from the Lincoln Alexander Parkway reporting the police arriving on scene almost immediately. The 911 callers were identified and later interviewed by the SIU.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the HPS:
  • Event Chronology;
  • HPS General Report;
  • HPS Investigator Scribe Notes of Interviews;
  • HPS Witness Statement;
  • Notes of witness officers;
  • Procedure and Interim Orders-Mentally Ill and Emotionally Disturbed Persons;
  • Subject Profile Report (x3); and
  • Communication Tape.

Incident Narrative

The events in question are apparent on the evidence collected in the SIU’s investigation. Just before 8:30 a.m. of the day in question, a 911 call was made to police by an acquaintance of the Complainant reporting that he was suicidal and “going to the mountain to kill himself.” The Complainant had entered a taxi, exiting on Upper Gage Avenue just south of the Lincoln Alexander Parkway. With the assistance of the cab company, the police were able to locate the Complainant on the west sidewalk of the Upper Gage Avenue overpass. The SO was the first to arrive with WO #1 appearing quickly thereafter. They parked their cruisers along the west curb of the overpass and approached the Complainant. The SO initially took the lead. He attempted to calm the Complainant and make conversation. The Complainant appeared jumpy and agitated as he paced along the overpass’s concrete barrier, occasionally looking over it to the highway below. WO #1 appeared to have more success in engaging the Complainant. She too implored him not to jump. When after several minutes had elapsed, the SO, sensing that the Complainant’s jump over the barrier was imminent, rushed toward him in an effort to ground him. The Complainant, who had been looking in WO #1’s direction, caught sight of the SO approaching and jumped over the barrier. The SO was able to grab hold of one of the Complainant’s hands, but was unable to bear his weight and lost his grip. The Complainant fell onto the hood of a westbound vehicle before tumbling onto the roadway. The officers entered their cruisers and quickly made their way onto the parkway, whereupon they delivered first aid to the Complainant pending the arrival of paramedics. The Complainant survived his injuries.

Relevant Legislation

Section 219 and 221, Criminal Code -- Criminal negligence causing bodily harm

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) 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.

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

In the morning of July 13, 2018, the Complainant jumped from the Upper Gage Avenue overpass onto the Lincoln Alexander Parkway below, sustaining serious injuries in the process. HPS officers WO #1 and the SO were present with the Complainant for several minutes on the bridge before he jumped. For the reasons that follow, there are no reasonable grounds in my view to believe that the SO committed a criminal offence in connection with the Complainant’s injuries.

The offence that arises for consideration in this case is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is premised, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. It is apparent that neither WO #1 nor the SO breached the limits of care prescribed by the criminal law in their dealings with the Complainant. For starters, with the assistance of the cab company and the use of GPS information, the police acted swiftly in locating the Complainant and arriving at the Upper Gage Avenue overpass shortly after the Complainant. Once on the bridge, the officers did what they could to dissuade the Complainant from harming himself. They were careful not to provoke the Complainant, approaching him slowly and speaking to him in reassuring tones. They considered the use of a CEW to incapacitate the Complainant, but feared, reasonably in my view, that drawing the weapon could escalate the situation. They considered their options and made prompt provision for the blocking of traffic in and around the area, especially the westbound lanes of the highway below, and the presence of a trained negotiator. Regrettably, given the speed with which events unfolded, neither plan came to fruition. When it appeared that the Complainant was sufficiently distracted in conversation with WO #1, and sensing his growing resolve, the SO made the decision to rush the Complainant from behind in an attempt to restrain him physically. While that decision proved unsuccessful in preventing the Complainant’s jump, and may have provoked it, I am satisfied it was a reasonable tactic open to the officer given the exigencies of the situation. Thereafter, the officers acted quickly in rendering medical assistance to the Complainant and calling for an ambulance.

In conclusion, I am satisfied on the aforementioned record that the SO and WO #1 acted at all times with due care and regard for the Complainant’s well-being, and that they did nothing to cause or contribute to the Complainant’s jump in any manner that could attract criminal liability. Accordingly, there are no reasonable grounds for proceeding with charges in this case, and the file is closed.


Date: July 24, 2019



Joseph Martino
Interim Director
Special Investigations Unit