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SIU Director’s Report - Case # 20-OCD-103

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 death of a 27-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On May 5, 2020, at 11:44 p.m., the London Police Service (LPS) notified the SIU of the death of the Complainant.

The LPS advised that on May 5, 2020, at 11:20 p.m., LPS police officers responded to a 15th floor apartment inside a building on Walnut Street for a person in distress call. The call was made by Civilian Witness (“CW”) #1, the Complainant’s mother. The first police officer on scene, Witness Officer (“WO”) #2, a trained negotiator, was trying to speak to the Complainant through the barricaded apartment door. The Complainant said he was going to the balcony to chill. An LPS police officer stationed at ground level reported over the police radio he observed legs over the balcony and the Complainant jump. Police attended to the Complainant and an ambulance was called.

The Complainant was taken to London Health Sciences Centre (LHSC). CW #1 was also taken to the hospital to be with her son.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainants

Complainant: 27-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

Witness Officers

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


Subject Officers

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


Evidence

The Scene

The scene was located in a building on Walnut Street in London. The location was a multi-family dwelling. The incident began in a 15th floor apartment in the building. The door of the apartment was ajar with a battering ram at the base of the door. The apartment’s door was barricaded from the inside and it was impossible to push the door open.

The hallway outside the apartment unit was photographed.

The location outside the apartment building below the balcony of the apartment in question was examined. There was an indentation in the grass below the balcony 2.4 metres from the edge of the balconies. There was a police shield and medical debris found in the area. The area of interest was photographed.

Further to the problems encountered at the door to the apartment at the scene of the incident, the door would not be moved when pushed upon. Looking around the edge of the door through the small opening it could be seen that there were furniture, mattresses and other items stacked up against the door on the inside.

It was apparent that there was no one else inside the apartment and the only way to gain entry would be by the balcony or by hydraulic equipment to somehow push the door open by shifting all the items piled up against it on the inside.

On June 24, 2020 at 10:40 a.m., investigators attended at the building on Walnut Street, London, with the intent of photographing and measuring the apartment that was the scene of the incident. The apartment and balcony were photographed. Upon further examination, scratch marks were observed on top of the balcony railing at the east end of the balcony to the apartment.

Also photographed were the dining table and chairs and the contents of a closet that were stacked up against the inside of the apartment’s door preventing entry on the night of the incident. The height of the balcony railing was measured as 1.1 metres, but a reading could not be obtained to the ground by the Leica laser measuring device.

Investigators were allowed entry to the apartment directly below the apartment where the incident began. This apartment’s balcony was photographed, including possible foot marks on the east end of the balcony railing and possible hand marks just west of the foot marks. No identifiable fingerprints were found associated with the possible hand marks.

Photographs were taken from the balcony of this apartment of the balcony railing of the apartment immediately below. There were marks on the balcony railing of the apartment below that could be possible foot marks.


Scene Diagram

Scene diagram

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was unable to find any.

Police Communications Recordings


CW #1’s Call to LPS on May 5, 2020


CW #1’s phone call to LPS was six minutes and four seconds in length. The call involved an LPS Headquarters Duty desk attendant and CW #1, the Complainant’s mother. The following is a summary of the call:

The LPS Headquarters Duty desk attendant answered the phone, “London Police Headquarters.” CW #1 asked if she was talking to the police. And then she said she had called the police before and at the time she was told to call back. CW #1 told the LPS Headquarters Duty desk attendant that she was having a problem with her son [now determined to be the Complainant] who, according to her, was “mad” and “acting crazy”. CW #1 said she did not know what the Complainant’s problem was. The LPS Headquarters Duty desk attendant then clarified that CW #1 was told to call about her son and asked, “Who is your son?” CW #1 said her son was the Complainant and spelled out his name. The LPS Headquarters Duty desk attendant asked CW #1 why she was calling about the Complainant and she replied, “[The Complainant] got mad.” CW #1 said that the Complainant had stayed with her for the past four days and he needed to go to the mental doctor. The Complainant was tearing things apart and CW #1 could not deal with him.

The LPS Headquarters Duty desk attendant asked CW #1 if the Complainant was currently with her and she said he was. The LPS Headquarters Duty desk attendant asked CW #1 why she needed the police: if the Complainant was at home and was mad, what could the police do for her? CW #1 replied there was nothing the police could do for the Complainant. She said he needed to be taken to a mental health doctor and asked if the police could do that. The LPS Headquarters Duty desk attendant told CW #1 it depended on the circumstances and if the Complainant met the criteria for the police to take the Complainant to see a mental health doctor. CW #1 asked what number she should call to have someone assist in getting the Complainant to a mental health doctor. The LPS Headquarters Duty desk attendant asked if the situation with the Complainant was an emergency, and CW #1 advised that it was because her son was very “mad”. The LPS Headquarters Duty desk attendant tried to determine what CW #1 referred to when she said “mad” and asked whether he (the Complainant) was “mad as in upset or mad as in losing his mind mad.” CW #1 responded by saying, “losing mind, losing very losing.”

CW #1 informed the LPS Headquarters Duty desk attendant that the Complainant was 26 years of age [1] and had been living with her for the past five days. The Complainant had been living outside the home prior and had no place of his own. The LPS Headquarters Duty desk attendant asked if the Complainant was with CW #1 right now and she said he was and provided her address to the LPS Headquarters Duty desk attendant. The LPS Headquarters Duty desk attendant asked CW #1 what the Complainant was doing right now that required police attendance. CW #1 said she needed the police to take the Complainant to hospital to see a mental health doctor. CW #1 tried to provide information that the Complainant had been involved in a fight on April 28, 2020 and that the Complainant preferred to live outside, and he only had come to her apartment after the fight. But today the Complainant had become very mad and was acting out. The LPS Headquarters Duty desk attendant asked if the Complainant had done anything physically to CW #1 and she said, “No.” The LPS Headquarters Duty desk attendant asked if the Complainant wanted to see the doctor and CW #1 replied the Complainant needed to go because of the way he was acting.

The LPS Headquarters Duty desk attendant asked CW #1 directly if the Complainant was a danger to her and she replied the Complainant was because he was acting strangely, not sleeping and speaking nonsense. The LPS Headquarters Duty desk attendant asked if the Complainant was hitting or punching CW #1. CW #1 replied that the Complainant was not but she was scared because of the state he was in. The LPS Headquarters Duty desk attendant told CW #1 he would send the call upstairs to police communications, and that police officers would attend some time later. CW #1 asked if there were people – mental health professionals in London – who could respond to help. The LPS Headquarters Duty desk attendant responded there were people who could attend after police respond and make a referral to those agencies. CW #1 ended the conversation saying it was a very serious situation.

LPS Communications Recordings


These recordings were made on May 5, 2020 and May 6, 2020, and were four hours in length. There was no 24-hour time stamp associated with each communication listed below, just a counter time. According to the detailed call summary the recording would have started at 9:51:25 p.m. on May 5, 2020 and it ended on May 6, 2020 at around 3:11:16 a.m. The recordings showed the following:

At 1:01:16 a.m. (counter time), WO #3 reported over the police radio that a supervisor should be informed that this was going to be a mental health apprehension, they have the key and the door unlocked, there was a large amount of debris piled inside the door, and the man [now determined to be the Complainant] inside was losing his mind;

At 1:01:21 a.m. WO #1 reported over the police radio that he was on his way up to the apartment where the incident would unfold and asked if anyone needed any PPE;

At 1:01:56 a.m. WO #2 told WO #1 he was just taking care of something at the station and that he would attend. He asked for the guys on the ground whether he (the Complainant) was in a bedroom or had barricaded the front door to the apartment;

At 1:03:07 a.m. WO #1 asked if the police officers had a buzz code;

At 1:03:13 a.m. an LPS dispatcher reported over the police radio to try a certain string of numbers;

At 1:29:35 a.m. WO #3 reported to WO #1 and said he (the Complainant) was sitting on the balcony, legs over the side, smoking a cigarette;

At 1:29:56 a.m. WO #1 reported, “Thanks, we are still trying to get him on the phone”;

At 1:30:09 a.m. WO #3 said over the police radio the Complainant was hanging from the balcony: “Guys, he is hanging”;

At 01:30:14 a.m. the LPS dispatcher responded, “Hanging from the balcony”;

At 1:30:25 a.m. WO #3 came on the radio and asked, “Do you want to start EMS here, he has not dropped yet, but we are going to need some help here”;

At 1:30:30 a.m., WO #3 came back on the police radio reporting, “[The Complainant] is down to the floor below, the floor below, he is climbing down, he has fallen, he has fallen”;

At 01:30:39 a.m. more police units were heading to the incident;

At 1:31:06 a.m. WO #3 reported the Complainant was vital signs absent (VSA) and he needed more police officers there;

At 1:31:13 a.m., WO #3 reported, “I have a pulse … still breathing … we will be on the north side of the building, west side of the bridge across from the retirement centre”;

At 1:31:55 a.m. WO #3 reported, “No pulse, no pulse”;
At 1:32:29 a.m. WO #3 said, “I need someone down here with me, I need some help”;

At 1:32:45 a.m. the SO reported police officers were on the way down to see WO #3; and
At 1:33:53 a.m. a police officer reported there was still agonal breathing and gasps every few seconds. Radio communications continued as the Complainant was transported to hospital and the scene was secured.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the LPS:
  • Communications Recordings;
  • 911 Call;
  • Call Notes;
  • Three General Occurrence Reports;
  • LPS Policy-Mental Health Crisis Response;
  • LPS Policy-Major Incident Command;
  • LPS Policy-Tactical Units;
  • LPS Policy-Crisis Negotiation;
  • Negotiator Recordings;
  • Notes-WO #1, WO #2, WO #3; and
  • Notes-the SO.

Materials obtained from Other Sources

In addition to the materials received from the LPS, the SIU obtained and reviewed the following materials from other sources:
  • Preliminary Autopsy Findings.

Incident Narrative

The material events in question are clear on the evidence collected by the SIU, which included interviews with CW #1, two civilian witnesses and a number of WOs. The SO, as was her legal right, declined to interview with the SIU; she did, however, authorize the release of her incident notes. At about 10:30 p.m. on May 5, 2020, WO #3 and WO #5 arrived at an apartment building on Walnut Street. They were there following a call to police from CW #1. CW #1 wanted police officers to help her son – the Complainant. The Complainant had been behaving strangely and damaging property in her apartment. She was concerned about his mental health and wanted police officers to attend to take her son to be examined by mental health professionals.

WO #3 and WO #5 made their way up to CW #1’s apartment on the 15th floor. CW #1 gave the officers permission to enter her residence. WO #5 tried to do so, but the door would only partially open. A shirtless Complainant confronted the officers and attempted to force the door closed as WO #5 pushed in the opposite direction. Eventually, the WOs decided to let the door close and the Complainant proceeded to lock it from the inside.

The officers tried to communicate with the Complainant through the closed door. They assured him he was not in any trouble and that they were there to help. The Complainant did not respond; instead, he moved furniture up against the door to prevent it being opened. The barricade proved successful. Using a key supplied by another person, the WOs unlocked the door but could only open it a few centimetres.

WO #3 radioed for additional help at the scene and, in short order, WO #1, WO #4, and WO #2 (a trained crisis negotiator) arrived on the floor. They were followed closely by the SO. A ram carried by WO #1 was used to try and force the door open, but it only opened an additional few centimetres. WO #2 attempted to communicate with the Complainant through the opening but was met by silence.

CW #1 placed a call to the Complainant with her cell phone and was able to speak with him for a short period before he hung up. The SO was also able to reach the Complainant with her cell phone. She encouraged him to come to the door so they could speak. The Complainant replied that he had no intention of hurting himself. He indicated that he was relaxing and having a cigarette, and would exit momentarily, before again hanging up the phone.

Evidence soon came to the police officers that the Complainant was sitting unsupported on the balcony railing of CW #1’s apartment, legs dangling over the exterior of the balcony and smoking a cigarette, claiming that he was fine and would soon jump from the building.

At news of the Complainant’s precarious position, WO #3 exited the building to keep an eye on the balcony in question and report his observations. From the north side of the building at ground level, WO #3 made out a silhouette of the Complainant. He was sitting on the northeast corner of the balcony railing and smoking a cigarette.

The Complainant scaled down to the balcony directly below his mother’s balcony, and then down to the next balcony. As the Complainant endeavoured to maneuver to the next balcony below, he lost his grip and fell to the ground. The time was about 11:18 p.m.

The officers rushed to render aid to the Complainant. WO #5 performed CPR while they waited for paramedics to attend. An ambulance rushed the Complainant to hospital.

The Complainant passed away from his injuries on May 8, 2020.

Cause of Death


At autopsy, the pathologist was of the preliminary view that the Complainant’s death was the result of multiple trauma as a consequence of a descent from height.

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 220, Criminal Code -- Causing death by criminal negligence 

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

On May 5, 2020, the Complainant fell from the balcony of a high-rise apartment building in London. He was taken to hospital but succumbed to his injuries on May 8, 2020. At the time of the fall, several LPS officers were present in the hallway outside his mother’s apartment. They were there following a call from CW #1 expressing concern about her son’s well-being. The most senior officer present at the time was the SO. She was 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 death.

The offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. Liability for the crime 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, the question is essentially this: did the involved officers contribute to the Complainant’s fall via a want of care that was so derelict as to attract criminal sanction? In my view, they did not.

At the outset, I accept that the officers were engaged in the lawful execution of their duty, namely, their foremost duty to protect and preserve life, when they responded to CW #1’s residence to check on the Complainant’s well-being. CW #1 had called the police requesting their assistance with her son. His behaviour was odd and erratic, and CW #1 was hopeful the police could secure mental health supports for the Complainant. The police operator who took CW #1’s call was unable to ascertain whether the Complainant was in a mental health crisis but explained that officers would be sent to assess the situation.

Once in the hallway outside CW #1’s door, WO #3 and WO #5, at first, followed by WO #1, the SO, WO #4 and WO #5, did what they could to engage the Complainant from behind a closed, and then partially closed, door. There was an opportunity shortly after the officers’ arrival to gain entry into the apartment. WO #5 pushed against the Complainant’s efforts to force the door closed, but decided to disengage in order to de-escalate the situation. In hindsight, that may have been a lost opportunity. That said, I am unable to fault the officers for making the decision they did at the time. They were unaware of the scope of the Complainant’s mental distress, and could reasonably surmise that forcing the issue at that moment might have resulted in more harm than good.

The officers repeatedly attempted to communicate with the Complainant through the door. They spoke in reassuring tones in an effort to persuade him to come out. Participating in these efforts were a trained negotiator, WO #2, and the SO, who at one point was able to reach the Complainant on the phone and seemed to be making some progress in resolving the situation.

When news arrived that the Complainant was perched on the balcony railing and threatening to jump, the officers escalated their response. A ram was used to force the door open, but was unsuccessful in creating an entry space sufficient to allow entry. An officer – WO #3 – was deployed to ground level to see what was happening on the balcony. He reported the Complainant sitting on the railing and then attempting to scale down the balconies. Within seconds, the Complainant fell from a balcony to the ground below, suffering mortal injuries in the process.

It remains unclear why the officers on the scene did not enter CW #2’s apartment and her balcony to more closely interact with the Complainant. What is clear is that the Complainant was fearful of the police and had barricaded himself in the apartment once he learned of their presence in the hallway. In the circumstances, though they did not know it at the time, it was entirely possible that a more proactive posture at the moment might well have unduly provoked the Complainant.

In the final analysis, I am unable to conclude on the aforementioned-record that the SO, or any of the involved officers, transgressed the limits of care prescribed by the criminal law. In the short time they had available to deal with the situation, the officers acted with due regard for the Complainant’s health and safety. Might they have done more to mobilize mental health supports from the community? Perhaps, but their failure to do so is tempered by the speed with which events unfolded; from the moment of the SO’s arrival at the scene until the Complainant started his fateful climb down the building, approximately 18 minutes had elapsed. In the circumstances, I am satisfied that the police response fell short of constituting a marked and substantial departure from a reasonable level of care in the circumstances. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: September 2, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Evidence suggests that the Complainant was in fact 27 years old when he died. [Back to text]