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SIU Director’s Report - Case # 20-OCI-039

Contents:

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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 the injuries that a 40-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On February 16, 2020, at 5:00 a.m., Halton Regional Police Service (HRPS) notified the SIU of an injury to the Complainant.

HRPS advised that on February 16, 2020, at about 4:00 a.m., HRPS police officers went to Speers Road, Oakville, regarding a taxi fare fraud. The police officers were allowed entry into an apartment unit and a man [now determined to be the Complainant] ran to the balcony and jumped. The Complainant fell one storey onto the ground below.

The Complainant was transported by ambulance to Hamilton General Hospital (HGH) with serious head injuries. 

The Team

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

Complainants

Complainant: 40-year-old male interviewed, medical records obtained and reviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO Declined to be interviewed, as is the subject officer’s legal right, but submitted notes for review.



Evidence

The Scene

The scene was outside a multi-level dwelling situated on Speers Road. There was evidence on the sidewalk on the south side of the building fronting onto Speers Road. Directly above this scene was an open balcony door on the second-floor level. Near the suggested area of impact were several pieces of personal effects and one shoe. There was also an area of suspected blood staining on the concrete sidewalk near the concrete benches. The scene was photographed and evidence was collected.

The entrance door to the apartment showed signs of forced entry. Information from the police officer guarding the unit indicated that the damage to the apartment door was the result of a previous incident at the address and not related to this event. The absence of debris on the floor confirmed this. The entry led directly into a hallway that travelled south towards the main living area. An adjoining bathroom was to the left as one entered the apartment. At the end of the hallway was a sharp turn to the right and entry to the living area. This apartment was a typical one-bedroom apartment with a kitchenette included along the east side of the room. The bedroom entrance was along the north wall.

At the south wall was a patio door exit onto a balcony. The entire apartment was unkempt and very cluttered. The pathway exit to the balcony was very hard to negotiate an exit due to the clutter. The balcony had a railing that measured 1.34 metres high. The distance from the top of the railing to the suggested area of impact directly below was measured at 6.233 metres. The apartment and balcony were photographed. The balcony railing was examined for latent fingerprints and the procedure yielded negative results.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following sources:
  • CCTV Videos from the Apartment Building.


CCTV Videos from the Apartment Building


The recordings consisted of four videos. The videos were from camera one located at the exterior front doors showing the roundabout driveway, camera two located at the front door showing the vestibule between the front door and the locked entry door to the main lobby, camera three located on the second-floor hallway situated right above the door to apartment 211 showing the common hallway, and camera four facing westbound located at the southeast corner of the building showing the northside sidewalk. The recordings depicted the following:


Camera One Exterior Main Entrance

  • At 3:46:51 a.m., the Complainant arrived in a taxi cab;
  • At 3:53:02 a.m., the first HRPS police cruiser arrived. The single police officer spoke with the taxi driver;
  • At 3:54:07 a.m., a second HRPS police cruiser arrived;
  • At 3:55:33 a.m., the SO went to the front door. He was joined by WO #2 30 seconds later;
  • At 3:56:36 a.m., the SO returned to his cruiser and again went to the front door; and
  • At 3:56:44 a.m., the recording ended.


Camera Two

  • At 3:47:13 a.m., the Complainant entered the front door. He appeared to have trouble inputting CW #2’s access code. The Complainant appeared agitated and paced back and forth;
  • At 3:49:19 a.m., the Complainant gained access to the main lobby;
  • At 3:53:00 a.m., the entrance door opened but no one exited. It appeared the taxi driver may have approached the door;
  • At 3:55:47 a.m., the SO entered the front door and went into the lobby. He was followed seconds later by WO #2. Both police officers went to the front desk;
  • At 3:56:21 a.m., the SO left the building while WO #2 waited at the lobby door;
  • At 3:56:42 a.m., the SO returned and went into the lobby. Both police officers walked toward the elevators; and
  • At 3:57:23 a.m., the video ended.


Camera Three

  • At 3:50:51 a.m., the Complainant came off the elevator and walked to an apartment. He continued his agitated pacing, checking the lining of his coat while he waited to get into the apartment;
  • At 3:51:29 a.m., the Complainant was let into the apartment;
  • At 3:58:16 a.m., the SO and WO #2 left the elevator and walked to the apartment that the Complainant had entered;
  • At 3:58:44 a.m., the SO knocked on the door of the apartment that the Complainant had entered;
  • At 3:58:58 a.m., the SO again knocked on the door;
  • At 3:59:10 a.m., the apartment door opened;
  • At 3:59:13 a.m., the SO crossed the threshold of the doorway;
  • At 3:59:19 a.m., WO #2 stood in the doorway at the threshold;
  • At 3:59:28 a.m., WO #2 crossed the threshold of the doorway;
  • At 3:59:36 a.m., the door closed but opened back up again and stayed open;
  • At 4:00:09 a.m., the SO ran out the apartment door followed seconds later by WO #2. Both police officers went to the elevator;
  • At 4:00:17 a.m., CW #2 ran out the apartment; and
  • At 4:00:20 a.m., the video ended.


Camera Four

  • At 4:00:09 a.m., the Complainant had fallen to the ground; the recording did not catch the fall. Only a partial view of the Complainant’s body was visible near the furthest west steel pole at the left-hand side of the camera view;
  • At 4:01:19 a.m., both police officers and CW #2 ran down the sidewalk westbound towards where the Complainant had fallen. Both police officers knelt near the Complainant;
  • At 4:06:46 a.m., a police cruiser pulled to the north curb on Speers Road. A blanket was dropped down from above to where the Complainant had fallen;
  • At 4:07:00 a.m., an ambulance and a second police cruiser arrived;
  • At 4:11:26 a.m., the Complainant was placed on a stretcher and taken to the ambulance. The scene was secured;
  • At 4:19:37 a.m., the ambulance left; and
  • At 4:22:20 a.m., the video ended.

Police Communications Recordings


HRPS Communications Recordings


The recordings were made on February 16, 2020, beginning at 3:43 a.m., and captured the following:
  • At 3:43:28 a.m., HRPS received a call from United Taxi about a man [now determined to be the Complainant] who had not paid his fare and run off;
  • At 3:44:59 a.m., the first police unit was dispatched to Cross Avenue;
  • At 3:48:43 a.m., police arrived at Cross Avenue to find out the taxi had left and was now at Speers Road. The Complainant was acting strangely and the cab driver asked that police come to his location on place Speers Road;
  • At 3:48:43 a.m., the Complainant was seen entering an apartment building by the cab driver;
  • At 3:56:09 a.m., police arrived on scene;
  • At 3:57:57 a.m., police reported they were at CW #2’s residence (an apartment unit);
  • At 3:59:50 a.m., police officers reported that the Complainant had jumped off the second-floor balcony and requested an ambulance;
  • At 4:00:00 a.m., police were with the Complainant and reported seeing blood coming from his head. The Complainant was having a seizure and one of his arms was broken. The Complainant was still breathing;
  • At 4:03:35 a.m., police reported that the Complainant was conscious and moving, and police were trying to stabilize him;
  • At 4:06:48 a.m., an ambulance was on scene and the Complainant was to be transported to HGH; and
  • At 4:20:04 a.m., the ambulance was on route to HGH.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the HRPS:
  • Computer-Assisted Dispatch;
  • HRPS Involved Civilians Report;
  • HRPS Involved Police Report;
  • Notes-SO;
  • Notes-both WOs;
  • Occurrence Report related to door damage;
  • Occurrence Report for this incident;
  • Policy Directive-CPO-026 Persons in Crisis;
  • Radio Communications; and
  • Updated 911 Audio.

Materials obtained from Other Sources

In addition to the materials received from the HRPS, SIU obtained and reviewed the following materials from other sources:
  • Medical Records-HGH; and
  • Video from Speers Road.

Incident Narrative

The material events in question are relatively clear on the weight of the evidence collected by the SIU, which included statements from the Complainant, two civilian eyewitnesses and a police witness. The investigation also benefitted from video recordings captured by security cameras. While the SO declined to be interviewed by the SIU, as is his legal right, he did authorize the release of his notes of the incident. Shortly before 4:00 a.m., the SO and WO #2 arrived at a second-floor unit of a residential building to investigate a taxi fare fraud. The Complainant was the subject of the investigation. He had taken a taxi to get to the address but departed without paying his fare. The unit was CW #2’s, a friend of the Complainant. CW #2 opened the door and allowed the officers entry into the unit.

The Complainant had consumed illicit substances and was in a highly agitated state. In and around the time that the SO entered the unit, the Complainant fled through the sliding balcony doors onto the balcony and fell over the railing. His descent measured upwards of six metres.

The SO, followed by WO #2, entered onto the balcony, looked over the railing and located the Complainant lying on his front on the ground below, obviously injured. They rushed out of the building and attempted to stabilize the Complainant while waiting for paramedics to attend.

With the arrival of an ambulance, the Complainant was taken to hospital where he was diagnosed and treated for multiple broken bones.

Relevant Legislation

Section 219, Criminal Code -- Criminal negligence 

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.

Section 221, Criminal Code -- Causing bodily harm by criminal negligence

221 Every one who by criminal negligence causes bodily harm to another person is guilty of 

a) an indictable offence and liable to imprisonment for a term not more than 10 years; or
b) an offence punishable on summary conviction

Section 265 (1), Criminal Code -- Assault

265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.

Analysis and Director's Decision

On February 16, 2020, the Complainant fell from a second-floor balcony of a residential complex on Speers Road in Oakville and suffered multiple fractures in the process. Moments prior, he had been confronted by police officers in the unit containing the balcony in question. The SO was one of the two officers who were present at the time of the incident and identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s injuries.

I am cognizant that some evidence suggests that the Complainant was thrown over the railing during a physical altercation with one of the officers, but I cannot place any weight on such evidence. It is contradicted by civilian witness evidence and the accounts of the officers (including the SO, via his incident notes), who indicate that no officer was on the balcony when the Complainant fell. Other aspects of the incriminatory evidence were also shown to be demonstrably false.

The SO and WO #2 were entitled to respond to the unit to investigate the Complainant’s reported taxi fare invasion. The SO was only in the apartment – lawfully, given the Complainant’s consent – for a matter of seconds before the Complainant made it onto the balcony and fell from it to the ground below. Thereafter, the officers acted with dispatch in arranging for the attendance of paramedics and rendering first aid pending their arrival. On this record, while the presence of the SO and WO #2 may have served as the catalyst for the Complainant’s flight to, and over, the balcony, there is no question of any want of care on the part of the police officers causing or contributing to the Complainant’s descent from a height. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: June 1, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit