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SIU Director’s Report - Case # 19-PCI-224

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 serious injuries sustained by a 29-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 12, 2019, at 8:50 p.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury.

According to the OPP, on September 12, 2019, at approximately 7:38 p.m., the OPP Provincial Communications Centre received several telephone calls from motorists reporting a man [now known to be the Complainant] hanging from a sign on Highway 407 at its interchange with Highway 410.

Police officers responded and closed the ramp, and the Complainant jumped from the sign onto the highway. As a result, he fractured his wrists.

The OPP also advised that closed-circuit television (CCTV) data regarding the incident was available from ‘407 ETR’, the agency owning the roadway and its fixtures.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

SIU investigators interviewed the civilian and police witnesses, and obtained and reviewed medical information from Sunnybrook Health Sciences Centre including the ambulance call report, and University Health Network’s Toronto Rehabilitation Institute relevant to the incident.

SIU investigators also obtained and reviewed 407 ETR CCTV data depicting the incident, and with consent of the Complainant, reviewed with him his cellular telephone data stored in his cellular telephone. None of the cellular telephone data afforded SIU investigators was of probative value to advance the investigation of the incident.

One SIU Forensic Investigator photographed the Complainant’s clothing and personal items found therewith.

Five witnesses had called 911 to report seeing the Complainant on the gantry over the eastbound 407 ETR off-ramp at Highway 410. Four of the five callers were contacted by SIU investigators. The fifth caller could not be contacted.

Complainant:

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


Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed

Additionally, the notes from one other officer were received and reviewed.


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The scene of the incident was confined to the steel pipe signage gantry and paved roadway below it of the 407 ETR eastbound exit ramp for north and southbound Highway 410 traffic, approximately 260 metres east of the Kennedy Road South overpass.

Video/Audio/Photographic Evidence


407 ETR CCTV

SIU investigators obtained and reviewed CCTV data. The data were recorded with a camera mounted on a pole some distance south of the incident scene, and the camera’s focal range and focus were controlled at a remote location and operated as a live feed by 407 ETR personnel during the incident.

The CCTV data recordings depicted a remote-directed search for the Complainant in the area of the incident. The camera’s joystick was operated by 407 ETR security personnel essentially when the initial 911 call was received by the OPP’s Provincial Communications Centre.

The CCTV equipment at that time recorded images of the Complainant lying on his back and intermittently moving his feet on the horizontal platform component of a steel pipe gantry that traversed a portion of the 407 ETR eastbound exit ramp for north and southbound access to Highway 410.

At about 7:42:40 p.m., the Complainant was depicted raising and lowering his legs intermittently. This continued until 7:43:00 p.m., when the Complainant was sitting up with his legs extended in front of him on the platform. At about 7:43:11 p.m., the Complainant gestured with both arms extended above his head as he swung both legs over the west edge of the platform.

At 7:45:00 p.m., a fully marked OPP cruiser [believed to be operated by SO #1] traveling eastbound with its emergency flashing lights arrived and stopped almost directly below the Complainant. The Complainant’s reaction to the arrival of the cruiser was apparent when he began swinging his legs at the knees as though somehow aroused by the police vehicle’s presence.

Civilian vehicle traffic had continued to flow past the developing scene until 7:47 p.m., when two OPP vehicles with their emergency lights flashing also traveling eastbound, stopped at the Kennedy Road South overpass. SO #1 remained inside his vehicle with its emergency lights flashing and it was apparent that SO #1 turned off his emergency flashing lights at about the same time the second of the two eastbound police cruisers stopped.

At 7:47:26 p.m., a police cruiser [believed to be operated by SO #2] drove toward SO #1’s cruiser and as it came to a stop slightly south and to the rear of SO #1’s cruiser, SO #1 was depicted getting out of his cruiser with his back toward the Complainant. SO #2 got out of his cruiser at about the same moment and immediately took about six steps toward the gantry as the Complainant suddenly descended from the gantry in front of SO #1 and SO #2, landing face-first then on his forearms and torso on the pavement at 7:47:56 p.m.. He had fallen about six metres.

SO #2 hurried back to his cruiser to communicate the event to the police dispatcher as SO #1 continued toward the Complainant and checked on his well-being. An ambulance arrived on scene at about 7:50 p.m.

Communications Recordings

The audio recordings embodied cellular telephone calls by concerned citizens alerting police of the Complainant’s location and communications among police officers responding to those calls. There were no audio recordings of any communications between the Complainant and OPP officers and/or civilian members of the OPP.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
• Arrest Report (2015 Fail to Comply);
• Email re Training Records for SO #1 and SO #2;
• General and Supplementary Reports; and
• Notes of witness officers and an undesignated officer.

Incident Narrative

Thanks to a video recording of the incident captured by a Highway 407 camera, the material events in question are largely clear despite neither subject officer providing the SIU a statement (as was their legal right). In the evening on September 12, 2019, several calls were received by the OPP from motorists reporting the Complainant’s presence on the metal gantry across the Highway 407 eastbound exit ramp leading to Highway 410. SO #1 was the first to arrive at the scene at about 7:45 p.m. With his cruiser’s emergency lights flashing, SO #1 parked his cruiser in the area below the Complainant. At 7:47 p.m., two other OPP cruisers managed to stop traffic through the area by positioning their vehicles under the Kennedy Road South overpass. SO #2 arrived on scene at about 7:47:26 p.m. and parked beside SO #1’s cruiser. The two officers emerged simultaneously from their vehicles. They had each taken a number of steps closer to the Complainant when the Complainant fell approximately six metres from the gantry above, landing in front of the officers. SO #1 continued toward the Complainant as SO #2 returned to his cruiser to report what had happened. Paramedics attended the scene and transported the Complainant to hospital where he received emergency care.

Relevant Legislation

Sections 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

On September 12, 2019, the Complainant fell from a gantry onto the Highway 407 eastbound exit ramps leading to Highway 410. He sustained severe injuries in the process, including a fractured skull. The subject officers, SO #1 and SO #2, were present in the vicinity of the tower when the Complainant fell. On my assessment of the evidence, there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s fall.

It is unknown whether the Complainant’s fall was an intentional act or inadvertent. Be that as it may, there is no evidence that either of the subject officers are criminally liable in connection with the Complainant’s injuries.

The offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence, being one of penal negligence, is predicated 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. The officers were present on scene for a very short period before the Complainant fell and suffered his injuries. In that time, the police had blocked traffic preventing motorists from traveling underneath the gantry. SO #1 and SO #2 had just stepped out from their vehicles to approach the Complainant when he fell and struck the roadway. Whether they had an opportunity to speak with the Complainant and, if so, what they might have said, is unclear. Utterances made by SO #2 to WO #1 in the wake of the incident suggest there was no communication between the parties. In light of the officers’ limited engagement with the Complainant, their quick action to secure the Complainant medical treatment following the fall and their role in blocking traffic in the area, there is no evidence of any want of care on the part of SO #1 and SO #2 sufficient to ground criminal liability. Accordingly, there is no basis for proceeding with criminal charges in the case and the file is closed.


Date: February 18, 2020

Original signed by

Joseph Martino
Director
Special Investigations Unit