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SIU Director’s Report - Case # 20-OCI-046

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 injury that a 45-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On February 29, 2020, at 1129 a.m., the Thunder Bay Police Service (TBPS) notified the SIU of the Complainant’s injury.

According to the TBPS, on February 29, 2020, at 6:30 a.m., the TBPS received a call regarding a man [now known to be the Complainant] with a large hunting knife smashing windows in the downtown area of Thunder Bay. TBPS officers located the Complainant and, drawing their police-issue firearms, ordered him to drop the knife. The Complainant exhibited erratic behaviour by dancing and cavorting in front of the police officers, and he ignored their presence and commands.

Figure 1: The Complainant's knife, photographed.

Figure 1: The Complainant's knife, photographed.


The Complainant turned away from the police officers and ran toward the Victoriaville Civic Centre and Mall with the police officers following him on foot at a distance. Eventually, the Complainant ran into an above-ground parking garage attached to the Civic Centre and Mall. There were not enough police officers available to pursue the Complainant into the parking garage due to ongoing unrelated investigations, and a containment perimeter was set up at the entrance and exit points of the parking garage.

A short time later, police officers heard someone moaning on the opposite side of the parking garage. Witness Officer (“WO”) #5 proceeded toward the moaning sound and found the Complainant on the ground. It appeared to WO #5 that the Complainant had jumped off the second floor-level of the garage. [1] He was transported to the Thunder Bay Regional Health Sciences Centre (TBRHSC) and diagnosed with multiple fractures.

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 45-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 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
WO #10 Not interviewed, but notes received and reviewed
WO #11 Not interviewed, but notes received and reviewed


Subject Officers

SO #1 Interviewed and notes reviewed
SO #2 Interviewed and notes reviewed


Evidence

The Scene

The scene of the Complainant’s descent from the parking garage was limited to the west side of the third level of the parking garage. There was a disturbance of the accumulated dirt on the outer aspect of the barrier wall on the third accessible level (that appears from the building’s exterior as the second level) just below its ledge, where four fingermarks and blood from one of the Complainant’s hands – more apparently his left – were made.

The Complainant landed on his right side on the paved sidewalk almost directly below where he was hanging by one hand while police officers were searching for him.

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:
  • Victoriaville Civic Centre and Mall Closed Circuit Television (CCTV)


Victoriaville Civic Centre and Mall CCTV


Camera 1 - Court Entrance (main floor) 

Set of glass doors, hallway with chairs below half-glass wall; area well lit. Nothing of relevance to this incident was observed.

Camera 2 – Cashiers’ Hallway (main floor)

Set of four glass doors with glass side panels on each side - entrance Victoriaville Civic Centre; area outside of doors in Victoriaville Mall was well-lit, ambient lighting inside office area.
  • A security guard [now known to be CW #2] dressed in a white shirt and vest walked in the hall in the distance.
  • A man [now known to be the Complainant] walked in the hall in the distance.
  • The Complainant turned around and travelled down the hall toward the Victoriaville Civic Centre glass doors. The Complainant was in and out of camera view as he travelled toward the Centre’s doors.
  • The Complainant approached the doors walking at a quick pace, walked to a glass panel at the far end and struck the glass, breaking it. The Complainant looked behind him as he entered the Civic Centre. A silver, shiny object was in his right hand. The Complainant ran to his left out of camera view.
  • The Complainant entered the Civic Centre and was out of sight before police officers entered the mall hallway that ran alongside the Civic Centre glass doors.
  • The first police officer [believed to be SO #2] walked toward the Civic Centre glass doors while he talked on his police radio. SO #2 approached the first glass panel and looked up and to his left. Two other police officers [believed to be SO #1 and WO #4] walked down the hallway toward the broken glass panel and drew their firearms. A fourth police officer [believed to be WO #7] stood near SO #2. Police officers entered the Civic Centre through the broken glass one at a time with their firearms drawn believed to be in the following order: SO #1, WO #4, and SO #2. WO #7 followed them. He did not have his firearm drawn. The police officers’ attention appeared to first focus to their left as they entered the lobby area.
  • Police officers remained in the main entry area. A police officer [believed to be SO #2] entered the office area straight ahead. A police officer [believed to be WO #7] stood in the lobby. A police officer [believed to be WO #4] looked out the broken glass into the Victoriaville Mall hallway for a brief time.
  • All police officers exited to their left from the main lobby area and out of camera view.

Camera 3 – Parking Authority Door (main floor)

Outside the City of Thunder Bay Parking Authority office door entrance; a long wall of glass windows along hallway. No colour; the office area was well lit, but the hallway was dark.
  • Reflection in wall of glass of lone person [believed to be the Complainant] moving quickly.
  • 25 seconds later, the was a reflection in the wall of glass of four people [believed to be SO #2, SO #1, WO #7 and WO #4] walking slowly in the same direction of the Complainant.
  • A police officer walked down the hallway with a firearm drawn, in same direction of previous reflections, then out of camera view. A short time later the police officer ran back toward the direction he had approached from.

Camera 5 – Stairs/Elevator (second floor)

Staircase landing to second floor from main lobby; glass wall and a push-door access to the Victoriaville Mall. There was light shining in the landing from the Victoriaville Mall through wall panels, but office area was darker.
  • The Complainant ran upstairs to second floor landing and continued to his right down the hall and out of sight. The Complainant had a shiny object in his right hand.
  • Lights from flashlights were observed from the first-floor level shining on the wall along the staircase that led to the second floor.
  • One minute and 16 seconds elapsed before the first police officer [now known to be SO #1] reached the second-floor landing. SO #1 had a flashlight in his left hand and handgun in his right hand. He was the only police officer at the landing. He checked along his left side, the glass wall along the Victoriaville Mall to the glass door, then to his right down the hallway out of camera view.
  • A second police officer (now known to be WO #4] reached the landing and followed SO #1 down the hall to the right and out of camera view.
  • A third police officer [now known to be WO #7] followed. He had no firearm drawn. He turned to talk to the fourth police officer [now known to be SO #2] directly behind him, then continued down the hall following SO #1 and WO #4.
  • SO #2 had his firearm drawn as he reached the second-floor landing. He turned to look down the staircase, holstered his firearm, retrieved his flashlight then followed SO #1, WO #4 and WO #7 down the hall out of camera view.

Camera 7 – Hallway to Stairs (main floor)

Partial view of hallway intersection, sign indicating direction to elevator, office doors. Nothing of relevance to this incident was observed that would advance the investigation.


Camera 8 – Parkade Entrance (second floor) 

View of hallway leading to parking garage entrance/exit, area beyond push-door into hallway that leads to parking garage entrance/exit, door was not well-lit. Camera view beyond push-door was limited as it extended toward parking garage door.
  • Reflection of the Complainant in glass door as he approached push-door with glass panels.
  • The Complainant kicked the lower portion of the door, then pushed the door open and proceeded through it.
  • The Complainant continued through the hallway to the parking garage entrance door. Light shone through the door as he opened the door to the parking garage. His feet breached the door threshold and he continued into the parking garage.
  • The parking garage entrance door closed behind the Complainant.
  • One minute and 19 seconds after the Complainant entered the parking garage, flashlight reflections began bouncing off the hallway walls.
  • A police officer’s reflection appeared in the glass door glass.
  • The first police officer moved toward an office door located on the right side of the hallway prior to the push-door. He had a flashlight in his right hand. A second police officer [believed to be WO #4] was directly behind him. The first police officer checked the office door handle with his right hand. He found it to be locked and proceeded toward the push-door followed by WO #4. WO #4 did not appear to have anything in either hand. As WO #4 passed through the push-door into the hallway to the parking garage entrance door hallway, a third and fourth police officer followed directly behind with flashlights in their left hands.
  • One minute and 33 seconds after the Complainant entered the parking garage, the first police officer entered the parking garage. The four police officers [now known to be SO #1, WO #4, SO #2 and WO #7] entered the parking garage in single file.
  • The door shut behind the last police officer through the parking garage entrance door.

Camera 9 – Cashier Middle (main floor)

View from behind cashier area into main lobby between cashiers three and four; a view that included the first four steps of staircase that led to second floor. No colour; office area in darkness. Ambient light from Victoriaville Mall.
  • Reflection of a person’s legs (now known to be those of the Complainant) in glass inside lobby area.
  • The Complainant entered lobby area of the Civic Centre; shattered glass spread onto the lobby floor.
  • The Complainant ran past the staircase. He quickly turned back and ran up the staircase.
  • Eight seconds after the Complainant ran up the staircase, the first reflections of the police officers outside the Civic Centre were observed in the lobby glass.
  • The first police officer entered the Civic Centre lobby 13 seconds after the Complainant ran up the staircase. The first police officer [now known to be SO #1] approached the staircase toward the outside wall, reached for his flashlight with his left hand. His firearm was in his right hand and he walked up a few steps then out of camera view. The second police officer [now known to be WO #4] entered the lobby as SO #1 took her first step onto the staircase. The third police officer [now known to be SO #1] entered the lobby. WO #4 and SO #2 had their firearms in their right hands. WO #4 did a cursory check down the hall behind the staircase. A fourth police officer [now known to be WO #7] entered the lobby. The reflection of a flashlight shone down between the open stair treads onto the main lobby floor from above. SO #2 walked toward the main floor office area past the cashier area. He paused for a moment, turned back and looked up the staircase, and continued into the main floor office area. WO #7 stood in the middle of the main lobby. WO #4 stood at the bottom of the staircase, walked toward the shattered glass toward the Victoriaville Mall, then proceeded up the staircase. WO #7 walked to the bottom of the staircase and proceeded up as SO #2 returned to the main lobby and proceeded up the staircase. One minute and 33 seconds elapsed from the time the Complainant went up the staircase until SO #2 began to climb the staircase.

Camera 10 – Cashier Hallway West (main floor)

  • View down hallway, glass doors with glass panels on each side, no colour, ambient light from glass doors.
  • A lone police officer with a firearm in his right hand walked down the hallway, did a cursory check of the hall and door areas before he turned around and ran back in the direction he came from.

Camera 11 – Cashier East (main floor) 

View from behind cashier area, between cashiers one and two into main lobby, first three steps of staircase that led to second floor. No colour as the office area was in darkness; ambient light from Victoriaville Mall.
  • Glass shattered onto lobby floor as legs and body of a person [now known to be the Complainant] entered Civic Centre, ran past the staircase, quickly turned around and ran up staircase leading to second floor.
  • 13 seconds later, the legs and body of the first police officer [believed to be SO #1] entered the lobby of the Civic Centre. SO #1 turned to his left, appeared to reach around to his back for his flashlight and travelled up the staircase to her left.
  • The legs and body of the second police officer [believed to WO #4] entered the lobby of the Civic Centre, followed by the third police officer [believed to be SO #2] and a fourth police officer [believed to be WO #7].
  • WO #4 did a cursory check beyond the staircase then stood at the base of the staircase. SO #2 walked through the lobby toward the main office area while WO #7 remained in the lobby area.
  • WO #4 walked toward the broken glass opening then returned to the staircase and walked up.
  • WO #7 then walked toward the staircase and walked up as SO #2 returned to the lobby area and walked up the staircase.

Camera 12 – Cashier Court Services (main floor) 

View from behind cashier area, behind cashier four, camera mounted at higher angle than other cameras in cashier area, partial view of lobby and hall into main floor office area. No colour as office area was in darkness; ambient light from Victoriaville Mall.
  • In Victoriaville Mall hallway outside the Civic Centre, feet of person [now known to be the Complainant] observed near the glass doors. A short time later, the same feet were observed inside the Civic Centre, then went out of camera view to the left.
  • Short time later, more feet [now known to be those of SO #1, WO #4, SO #2 and WO #7] were observed in the same location, 16 seconds later the first police officer’s feet were observed in the lobby. An office pillar blocked the view of the entry area. SO #1, WO #4, SO #2 and WO #7 entered the Civic Centre in single file.
  • View of three police officers’ feet leaving camera range.
  • A police officer [now known to be WO #7] remained in camera view in the lobby.
  • Another police officer [now known to be SO #2] walked back into camera view toward the cashier window and down the hallway into the main floor office area and out of sight.
  • A police officer [now known to be WO #4] walked toward the Victoriaville Mall area inside the Civic Centre, then walked to his left and beyond camera view.
  • WO #7 walked within the area of the main floor lobby, then left camera view off to his left.
  • SO #2 walked from the main office area hallway toward the main lobby and followed the direction of the other police officers out of camera sight.

Communications Recordings


911 and Communications Audio Recordings


The 911 call recordings provided by the TBPS were marked. The TBPS communications audio recordings were marked. All audio recordings were mp3 formatted files. There were no date and time stamps on the audio recordings. Times noted herein were from the Background Event Chronology and may not be accurate due to the human elements of errors and omissions that invariably occur in documenting information.

911 CALLS

  • On February 29, 2020, prior to the above-referenced Background Event Chronology being created, a man [now known] called 911 to report a fire alarm at an address on May Street South. He thought he smelled smoke.
  • The man called back a second time to see if the firetrucks where coming and commented that if it was a false alarm, he knew who pulled the alarm.
  • At 6:26 a.m., the man said that a named man [now known to be the Complainant], who probably pulled the alarm, had a 16-inch hunting knife.
  • The Complainant was initially seen kicking the door of an apartment at an address on May Street South, and then outside kicking and breaking some ground-level apartment windows.
  • The Complainant was reported by the man to be walking northbound on May Street South near the Odd Fellows Lodge building.
  • The man described the Complainant as having a slim build but muscular with short hair and wearing a black t-shirt with a small white design on the front, and black pants.
  • He was walking with a woman [now known to CW #4] who walked with a limp and wore a long, brown jacket.
  • The man reported to the 911 call-taker that the police were by the Shelter House.


COMMUNICATIONS

  • At 6:29 a.m., on February 29, 2020, a Unit [now known to be SO #1 and SO #2] and another Unit [now known to be WO #4] were sent to the address on May Street South. The Unit with SO #1 and SO #2 was the first to arrive.
  • The named Complainant was walking toward City Hall carrying a large hunting knife. The above-description from the 911 caller was supplied but the knife was described as six to eight inches long.
  • The Unit with SO #1 and SO #2 said they were in the area, as an update was supplied about kicking windows at the address on May Street South and walking by the Odd Fellows Lodge building.
  • At 6:30 a.m., The Unit with SO #1 and SO #2 announced that the Complainant was not dropping the knife. The communicator gave the location of the Unit with SO #1 and SO #2 as the Shelter House parking lot.
  • Three radio transmission from the Unit with SO #1 and SO #2 over the next 1.87 minutes indicated the Complainant was walking northbound on May Street South, that he reached Victoria Avenue and then that he was at the Victoriaville Mall.
  • Once at Victoria Avenue, a Conducted Energy Weapon [“CEW”] was requested, which a third Unit [now known to be WO #5] acknowledged.
  • At 6:32:22 a.m., WO #4 reported the Complainant was stabbing windows and, within 30 seconds, that he had entered the Victoriaville Mall.
  • A fourth Unit [now known to be WO #7] joined the initial three police officers.
  • At 6:33:41 a.m., WO #4 reported the Complainant was heading toward the south entrance of the Victoriaville Mall.
  • At 6:34:03 a.m., WO #4 reported the Complainant was heading upstairs in the City of Thunder Bay Victoriaville Civic Centre office area.
  • At 6:35:16 a.m., WO #4 said they were upstairs.
  • At 6:36:48 a.m., WO #4 reported that it appeared the Complainant ran toward the attached parking garage and they had lost sight of him.
  • While containment was being set up the search of the parking garage continued.
  • WO #4 reported the first and second levels were cleared, meaning the Complainant was not located, and they were going to the top.
  • At 6:37:48 a.m., the Unit with SO #1 and SO #2 reported that nobody could be seen on the top floor.
  • WO #5 reported being on the southwest side of the parking garage.
  • A fifth Unit [now known to be WO #9] identified himself as also being on the west side of the parking garage.
  • WO #5 heard somebody yelling on the west side of the parking garage.
  • At 6:42:57 a.m., WO #9 reported the Complainant was in custody and an ambulance was required.
  • WO #9 said it looked like the Complainant may have jumped and he would have to be checked for broken bones.
  • Communications indicated that at or just prior to the arrest, a sixth Unit [now known to be WO #1] was at Archibald Street and Justice Avenue dealing with a security guard who exited the mall.
  • WO #4 and WO #7 had gone down a stairwell and were at the southeast side of the parking garage.
  • The Unit with SO #1 and SO #2 was on the top floor of the parking garage along with a seventh Unit [now known to be WO #6] and an eighth Unit [now known to be WO #2 and WO #3].

The approximate time from when TBPS police officers first encountered the Complainant and directed him to stop, to when he was found on the ground having apparently descended from the parking garage, was about 13 minutes. The second communication audio recording data were of no assistance in advancing the investigation.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TBPS:
  • 911 and communications audio recordings;
  • Background Event Chronology;
  • Case File Synopsis;
  • Crime Scene Log;
  • General Occurrence Report;
  • Notes-all WOs;
  • Notes-both SOs;
  • Person History – the Complainant;
  • Photographs of blood swabs, the Complainant’s injuries, knife and scene;
  • Supplementary Reports by WO #11, WO #7, WO #9, WO #1, SO #2, WO #8, WO #5 and WO #4; and
  • Unit Information.

Materials obtained from Other Sources

In addition to the materials received from the TBPS, the SIU obtained and reviewed the following additional materials and documents:
  • Drawing and photographs by security guard CW #2;
  • TBRHSC medical records relevant to the incident;
  • Thunder Bay Victoriaville Civic Centre floor plan; and
  • Thunder Bay Victoriaville Civic Centre and Mall CCTV data owned by Apex Security.

Incident Narrative

The material events in question are not in dispute. At about 6:30 a.m. on February 29, 2020, the police received a 911 call from an individual indicating that a male – the Complainant – was armed with a hunting knife and breaking windows in the area of May Street South. Officers were dispatched to investigate.

Locating him around the intersection of May Street South and George Street, SO #2 and SO #1 were the first to confront the Complainant. The Complainant was holding a knife in his left hand and behaving strangely. He had earlier consumed a significant amount of crack cocaine and “purple” fentanyl. With their firearms drawn, the officers repeatedly directed the Complainant to drop the knife and followed him at a distance as he made his way to the parking lot of Shelter House – Thunder Bay. The Complainant was non-responsive and incoherent. He held onto the knife and occasionally ran with it in the direction of the officers, before turning back.

Now joined by WO #4, the officers endeavoured to de-escalate the situation. They assured the Complainant that they were there to help him and asked him what was wrong. The Complainant seemed oblivious to their presence at times and began to make his way north on George Street toward Victoria Avenue East, the officers following at a distance. As he would do throughout the incident, SO #2 described the action on the ground over his police radio. He also asked for an officer with a CEW to attend in the event that a less-lethal weapon was needed.

With the officers in pursuit, the Complainant travelled across Victoria Avenue East and then south on Brodie Street toward the east entrance of the Victoriaville Mall. Using his knife, the Complainant struck the glass doors until they broke and proceeded to enter through the opening. The officers, now further joined by WO #7, also made their way through the hole in the door after the Complainant.

Inside the mall, the Complainant proceeded toward the food court where he confronted two security guards – CW #2 and CW #3. The officers yelled at the guards about the Complainant’s approach with a knife and directed them away from the scene.

The Complainant continued through the mall toward the Thunder Bay Civic Centre, where he again gained access by striking and breaking a window. Again, when they believed it was safe to do so, the officers followed in kind.

Unknown to the officers, the Complainant climbed a flight of stairs and eventually gained access to the adjoining indoor parking garage. The officers took some time carefully checking the offices and corridors of the civic centre before venturing themselves out into the parking lot.

By now, other officers were responding to the area, the most senior of whom was WO #5. She directed that officers take up positions around the garage to contain the Complainant until he could be located. SO #2, SO #1, WO #4, and WO #7, with the help of other officers in their cruisers, searched the multiple levels of the garage without success.

At about 6:42 a.m., WO #5, who was positioned outside the garage at its southwest corner, heard moaning coming from north of her position. Making the sound was the Complainant. He had fallen from the third level of the parking edifice onto Centennial Square below, about 70 to 80 metres north of Donald Street East.

Led by WO #5, officers converged on the scene and handcuffed the Complainant. Beside him on the ground was a knife with a blade about ten centimetres in length.

The Complainant was transported by ambulance to hospital where his injuries were diagnosed.

Relevant Legislation

Section 219, 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.

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

221 Every person who by criminal negligence causes bodily harm to another person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
(b) an offence punishable on summary conviction.

Analysis and Director's Decision

On February 29, 2020, the Complainant suffered multiple fractures, the result of a fall from height. Several TBPS officers were searching for the Complainant at the time and arrested him moments after his descent. Among the involved officers, SO #2 and SO #1 were identified as the SOs for purposes of the SIU investigation. 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 injuries and arrest.

The only offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence 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 observed in the circumstances. In the instant case, there is no question of the officers directly causing or contributing to the Complainant’s fall from the parking garage. Rather, the issue is whether there was anything more the officers could have done to save the Complainant from himself by safely taking him into custody before he had an opportunity to fall. In my view, there was not.

SO #2 and SO #1 were clearly engaged in the lawful discharge of their duty when they responded to the area of May Street South and George Street following a 911 call reporting a man with a knife. The Complainant was impaired by drugs, not thinking straight and handling a knife in a dangerous fashion. He represented a clear and present threat to himself and others around him, and the police were duty bound to apprehend him.

Thereafter, I am satisfied that the officers comported themselves professionally and with due regard for the safety of all concerned as they attempted to effect the Complainant’s arrest. Realizing that he was in distress, SO #2, SO #1 and WO #4 tried to connect with the Complainant to defuse the situation. They did so at significant risk to themselves as they allowed the Complainant to near to within a few metres of their position while brandishing the knife in the officers’ direction. Regrettably, owing to his drug consumption, it seems the Complainant was simply not capable of responding in a helpful fashion.

The officers weighed their options and decided that containment of the Complainant was the most prudent course while they waited for an officer with a CEW to attend. They considered using their OC spray and batons but decided those options carried too much risk given they would have to come within dangerous proximity of the Complainant and the knife. I am unable to fault the officers for their assessments in this regard.

Once in the mall, the officers continued to maintain their distance while following the Complainant. Observing security guards up ahead in the Complainant’s path, they were able to give warning of the danger approaching, allowing the security guards some time and space to react. That was a good thing as the Complainant threatened one of the guards as he passed their location. Regrettably, the officers lost sight of the Complainant once he entered the civic centre through a window he had smashed. The interior of the centre was dark and the officers were worried about being potentially ambushed by the Complainant, so they took some time ensuring it was safe to enter before they did so.

Once into the centre, the officers were rightly concerned that the Complainant might be hiding in an office or that others who might be present in the office building might be in danger. Accordingly, they deliberately searched the area, moving slowly given the lack of lighting, before concluding that no one was present.

In fact, the Complainant had entered the parking garage through the civic centre, making it to the third level before deciding to scale over a short retaining wall along the western edge of the building. Unfortunately, the Complainant lost his grip or footing and fell from the third level, landing on the ground below and suffering serious injuries. By that time, officers had also performed a fairly comprehensive sweep of the garage and not been able to locate him. The Complainant was quickly found as he moaned in pain, arrested and promptly transported to hospital by ambulance.

On the aforementioned-record, it is apparent that SO #2 and SO #1, and the other involved officers for that matter, did not transgress the limits of care prescribed by the criminal law in the manner in which they pursued and ultimately arrested the Complainant. They could have adopted a more aggressive posture at various points during the encounter, but that might well have led to a more tragic outcome given the Complainant’s knife and the officers’ firearms. Alternatively, they might have withdrawn or kept a further distance from the Complainant, but neither of these options were realistic in the circumstances. Granted, the Complainant’s ill-fated decision might well have been motivated by a desire to escape police apprehension; however, he was armed with a knife and the officers had a duty to maintain engagement in the interests of public safety. For the foregoing reasons, there is no basis for proceeding with charges in this case and the file is closed.

Date: August 10, 2020
Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) This was later determined to be in error; the third floor had been jumped from. [Back to text]