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SIU Director’s Report - Case # 18-PCD-279

Contents:

News Releases for this Case:

French:

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 36-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 18, 2018, the Ontario Provincial Police (OPP) reported the death of an unknown man. The OPP advised that at 1:51 a.m., the call center received a call of a suspicious man on the side of Highway 401 eastbound in the collectors. This was followed up by several other calls. The Subject Officer (SO) responded and engaged the man. The man turned and ran from the SO jumping over the Jersey barrier onto the Don Valley Golf Course below. EMS arrived and the man was pronounced deceased at 2:22 a.m. The man was taken to hospital by EMS. The SO was also taken to hospital for examination. 

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 3

Complainant:

36-year-old male, deceased


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes received and reviewed.


Evidence

The Scene

The scene of this incident initially started on the eastbound collector lanes of Highway 401 west of the Avenue Road exit. This portion of Highway 401 is elevated at a height of 36.8 metres above the ground below. The Jersey barrier in that area was 1 metre in height.

The area directly below Highway 401 was being used as a construction site for the Miller Group. The construction site was occupied by one Miller Group employee, the CW, at the time of this incident.

The deceased, the Complainant, appears to have fallen feet first as a foot print in dust was detected on the hood of the back-hoe and another on the left front fender. The height to the hood of the back-hoe was 33 metres below the top of the Jersey barrier. The right shoe of the deceased was located under the back-hoe beside the rear left tire and the left shoe was located in a coiled length of Big “O” perforated drainage pipe in the construction site to the right or east of the body.

The body was covered with an Emergency Services style orange blanket. The EMS personnel had cut the deceased’s clothing off of him and various lifesaving apparatus was still attached to the body.

The OPP cruiser, which the SO had been operating, was also at the scene below the bridge and was examined for any marks. Nothing of any evidentiary value was found on the cruiser. It was an unmarked grey Ford Police Interceptor bearing Ontario licence plates. The unit had an unmarked police lighting package that was in functional condition.

The entire scene on Highway 401 and below on the Don Valley Golf Course was photographed showing the locations of the roadway, the descent, and the area below the 401 Highway where the Complainant’s body was located.

Police Communications Recordings

The SIU received 11 communications files relative to the incident, which contained various 911 calls, dispatcher and officer transmissions, and dispatcher telephone calls. The following is a summary of the salient portions of the communication files:

On September 18, 2018, at 1:51:17 a.m., the OPP call taker received a call from a woman. She reported she was driving eastbound on Highway 401 and had just passed Avenue Road. On the right hand side of the road, she saw there was a man walking on the shoulder of the road and he looked pretty messed up. The man was walking on the shoulder of the road in the collector lanes with his mouth open and looking up.

At 1:54:13 a.m., the OPP call taker received a call from another person. He was a cab driver and was driving eastbound between Avenue Road and Yonge Street. He saw a man walking eastbound on the shoulder, wearing black shorts and a shirt.

At 1:50:58 a.m., the SO reported that VIP towing was on scene of an abandoned car, which was eastbound 401 near the Allen Road [separate but possibly related incident]. He advised he would head eastbound to investigate the pedestrian.

At 1:51:15 a.m., the OPP dispatch broadcasted to other officers that a pedestrian was reported walking eastbound on Highway 401. At 1:52:21 a.m., the SO was dispatched to investigate the pedestrian, as multiple calls had been received. At 1:52.37 a.m., the SO requested the dispatch information again.

At 1:53:06 a.m., an unknown officer confirmed he was on his way to back up the SO. At 1:53:50 a.m., the SO confirmed he had cleared the disabled vehicle as the tow was on scene. At 1:55:10 a.m., the SO advised dispatch he was on scene with a man [later identified as the Complainant], who was wearing dark shorts, and walking towards Yonge Street.

At 1:56:11 a.m., the SO in an agitated voice was yelling [inaudibly] on the radio. At 1:56:19 a.m., the SO reported the Complainant “just jumped off the Hogs Hollow bridge.” At 1:56:30 a.m., the SO advised he was going down to the golf course, and that the Complainant had “just ran and sprinted across the highway and just jumped off the bridge.”

At 1:57:05 a.m., dispatch asked the SO where to send an ambulance. At 1:57:11 a.m., the SO advised dispatch to send EMS to the Don Valley golf course, and that he was going to try and locate the body, the male body.

At 1:57:28 a.m., WO #2 asked the SO if the Complainant “jumped in the middle.” The SO confirmed yes, “he went from the south side of the bridge to the north side of the bridge, he just leaped over, I tried to grab his hand and he pulled me and he just fell.” At 2:00:20 a.m., the SO advised his portable radio was dying and he needed to hop a fence to go check on the male. He also provided instructions to other OPP units on how to access the scene.

At 2:01:19 a.m., the SO reported he thought the Complainant “is still breathing.” At 2:27.04 a.m., an OPP dispatcher from Orillia advised that the Complainant was confirmed deceased. At 2:48:38 a.m., someone from MTO Compass called the OPP dispatcher to advise he went through cameras at Yonge Street, and at 401 east of Avenue Road, and the cameras were pointed in the opposite direction or obscured, he had gone back to 1:30 a.m., and there were no recordings of the Complainant.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • Automatic Vehicle Location Data-the SO;
  • Event Details;
  • General Report;
  • Communication Tape; and
  • Notes of the witness officers and subject officer.

Incident Narrative

The events surrounding the Complainant’s death are evident on the information collected by the SIU, which included a statement from an independent civilian witness, the notes of the SO, and police communications recordings. On September 17, 2018, the Complainant went missing from the North York General Hospital; he was being held at the hospital for psychiatric assessment on a Form 1 under the Mental Health Act. The following day, at about 1:50 a.m., the OPP received calls from motorists indicating that a person was walking on the south shoulder of the collector lanes of Highway 401 between Avenue Road and Yonge Street. The male, according to one of these reports, looked “messed up”. The male was the Complainant.

The SO, who was in the area dealing with an abandoned vehicle, received word of the pedestrian on the highway and proceeded eastbound in his police vehicle toward Yonge Street in search of the Complainant. The officer observed the Complainant on the shoulder and parked his cruiser behind him just west of the Yonge Street exit. The SO exited his vehicle and attempted to engage the Complainant in conversation. The Complainant indicated, when asked, that he had no identification with him, but did reach into his pocket to provide the officer a wallet. The Complainant refused to identify himself and declined to enter the SO’s vehicle. The officer was primarily concerned for the Complainant’s safety at this time, as well as his own, given their position on a bridge on a narrow shoulder next to live lanes of traffic.

Within seconds of their encounter, the Complainant suddenly ran northward across the highway toward the concrete barrier on the other side of the collector lanes. The SO chased after him and observed the Complainant as he vaulted over the barrier. On the other side was a gap of about five metres separating the eastbound collector and express lanes, under which was a descent of upwards of 30 metres to the ground below. The SO reached over the barrier’s ledge and tried to grab onto the Complainant’s arm. While the officer was able to briefly make contact with the Complainant, he was unable to prevent his fall. The time was about 1:55 a.m.

Rushing back to his cruiser, the SO broadcasted what had just occurred and drove to the area where the Complainant had fallen. It was a construction site. The SO found the Complainant badly injured, but still breathing. The officer, soon joined by WO #2, performed CPR when the Complainant stopped breathing until the arrival of paramedics. Regrettably, the Complainant could not be saved, and he was pronounced deceased.

Cause of Death


The pathologist at the Complainant’s post-mortem examination concluded that his death was attributable to “multiple blunt impact trauma”.

Relevant Legislation

Section 219 and 220, Criminal Code -- Criminal negligence causing death

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.

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.

Analysis and Director's Decision

In the early morning hours of September 18, 2018, the Complainant jumped from the Highway 401 overpass onto the Don Valley Golf Course below, suffering fatal injuries in the process. Moments prior to the fall, the SO had been speaking to the Complainant attempting to get him safely off the highway. For the reasons that follow, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s death.

The offence that arises for consideration is that of criminal negligence causing death contrary to section 220 of the Criminal Code. The offence is one of penal negligence and, therefore, is predicated 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. There is no doubt on the evidence that the SO conducted himself professionally throughout his dealings with the Complainant. In line with an officer’s foremost duty to protect and preserve life, the SO approached the Complainant with the intention of getting him safely off the roadway. The Complainant was walking on a narrow shoulder of a highway very close to live lanes of traffic. He was clearly in danger. The officer positioned his cruiser with its emergency lighting activated so as to add a measure of protection for the Complainant. He then engaged the Complainant in measured tones attempting to secure his trust. Regrettably, the Complainant, who initially seemed receptive to the SO’s overtures, soon bolted toward the barrier on the northside of the collector lanes and jumped over. Did he realize there was nothing but a gaping hole on the other side? One will never know. What is clear is that the SO, in the few seconds he had to react, ran after the Complainant, endangering himself in the process as he crossed live lanes of traffic, and frantically tried to grab hold of him to prevent his fall. Unable to do so, the SO made his way quickly to the site of the Complainant’s impact with the ground and rendered CPR until the arrival of paramedics. On this record, it is apparent that the SO acquitted himself commendably in these tragic circumstances in exercising a level of care that fell well within the limits prescribed by the criminal law. Accordingly, there are no grounds for proceeding with charges in this case and the file is closed.


Date: September 6, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit