Director's Report Details

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.

Freedom of Information and Protection of 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.

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.

Notification of the SIU

On August 30, 2020, at 7:47 p.m., the York Regional Police (YRP) notified the SIU of the death of the Complainant.

The YRP advised that on August 30, 2020, at 7:02 p.m., they received a 911 call regarding a man [now determined to be the Complainant] causing a disturbance at the No Frills store located on the southeast corner of Yonge Street and Davis Street in Newmarket. By the time of the officers’ arrival, the Complainant had climbed onto the roof of the No Frills store and threatened to harm himself and harm the police officers. The perimeter was contained, and more police officers arrived.

At 7:06 p.m., the Complainant jumped from the roof by doing a “back flip” and fell to the ground. He was motionless and was subsequently taken to Southlake Regional Hospital Centre in Newmarket where he was pronounced dead.

The Team

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

Complainant

The Scene

The scene was located at the east end of a strip mall on the east side of the No Frills store located at 50 Davis Drive in Newmarket. The parking area extended to the east of the No Frills store. Multiple grocery carts were stored in an area next to the store. On the ground north of the carts were several items, which included a knapsack containing toiletries, a hammer, a grey zippered hoodie, a black and grey sleeping bag, a blue and white striped towel, several food items and a slingshot.

A wall, measured to be 1.09 metres in height, bordered the area where the carts were gathered. Immediately to the east and to the south of the wall, the parking area dropped off significantly to the street and mall property below. The distance from the top of this wall to the pavement below was measured and found to be 5.55 metres.

Items located in the grocery cart corral were to the right next to the south wall. These items included a ball cap, and a Velcro wallet. The wallet was collected.

Items located on the lower paved area below the grocery cart corral wall consisted of several opened equipment bags from responding Emergency Medical Services (EMS). Several clothing items including a pair of black Nike shell pants, a pair of Mountain Ridge sweatpants, and a pair of George Sandals were piled together south of the EMS equipment.

A large pool of a red blood-like substance was also on the ground. This stain was located 4.09 metres south of the upper south wall and 4.14 metres east of the building’s east wall.

Video/Audio/Photographic Evidence

Summary of Closed-Circuit Television (CCTV) footage from No Frills

The recording was made on August 30, 2020 and depicted the following:

At 5:59:00 p.m., the Complainant was seen at the north end of the shopping cart corral. He was dressed in a short-sleeved black top and long black track pants, and had a white surgical mask hanging from under his chin. The Complainant made his way to the south end of the shopping cart corral and looked over the wall running east and west.

At 5:59:48 p.m., the Complainant turned and walked north in the shopping cart corral. He appeared to have a cigarette package and lighter in his hands as he was walking.

At 6:01:00 p.m., the Complainant walked back and forth north to south and south to north a few times handling the cigarette package and lighter in his hands.

At 6:02:00 p.m., the Complainant walked in the shopping cart corral southbound to the wall that ran east and west from the east wall of the No Frills store, and he sat atop the wall.

At 6:02:20 p.m., the Complainant stepped down off the wall and began walking north, then south in the shopping cart corral smoking a cigarette as he did so. He then walked northbound and westbound out of the frame of the video briefly.

At 6:03:30 p.m., the Complainant returned to the shopping cart corral with a wallet that he was looking through as he walked eastbound and then southbound into the shopping cart corral. The Complainant continued to walk in circles, back and forth.

At 6:04:10 p.m., the Complainant walked north and west out of the video frame very briefly, then returned with a camouflage baseball-style cap in his hands. He continued to walk around the shopping cart corral smoking a cigarette. He put the cap on his head.

At 6:06:38 p.m., the Complainant walked back south to the block wall and sat on top of it looking over his left shoulder several times and occasionally over his right shoulder to the ground below. He appeared to be talking to himself and was waving his hands around.

At 6:07:38 p.m., the Complainant stepped down off the wall and walked northbound in the cart corral still smoking a cigarette. This type of behaviour continued for another 15 minutes.

At 6:22:40 p.m., as the Complainant was sitting on the wall facing north, two women [now determined to be CW #2 and CW #3] and a young child entered the video frame from the north and returned their shopping cart to the corral in which the Complainant was sitting. The Complainant remained sitting on the wall facing north and seemed to be saying something to CW #2 and CW #3. Both ladies then descended the stairway on the east side of the shopping cart corral leading to the ground level, leaving the Complainant sitting atop the wall. The Complainant, from his seated position, shouted at the two women and pointed at them with his right arm fully outstretched. He seemed to be very agitated.

At 6:35:00 p.m., the Complainant was lying on his left side on top of the wall supporting his head on his left elbow with his head pointing west and his feet to the east; he was facing north. He then sat up on top of the wall, facing north, talking to himself and waving his arms around.

At 6:38:26 p.m., the Complainant stood up on the top of the wall, facing north, and looked over his left shoulder several times at the ground below while smoking a cigarette. He was talking to himself and waving his arms about. He walked east on the top of the wall and looked down at the ground below with his back to the shopping cart corral.

At 6:42:50 p.m., the Complainant stood atop the wall facing north with his legs spread apart; he was smoking a cigarette. He looked over both his left and right shoulders at the ground below several times. He then began pacing back and forth on the wall.

At 6:51:30 p.m., the shadows of two people [believed to be SO #1 and SO #2] were seen in the lower left corner of the recording. The police officers were out of view of the camera; they were at least 40 feet (12 metres) to the north of the shopping cart corral. The Complainant stood on the top of the wall facing the police officers with his back to the ground below. He appeared to be talking to the police officers and waving his arms. The Complainant appeared very agitated and animated, and was standing atop the wall and continually looking down at the ground below over his left and right shoulders. It appeared as if he was threatening to jump from the wall backwards to the ground below.

At 6:55:10 p.m., three YRP marked police SUVs came northbound on Wilstead Drive at ground level below where the Complainant was standing. None of the cruisers had their emergency lights on. The cruisers parked on the east side of Wilstead Drive. The Complainant was facing north shouting at and fixated on SO #1 and SO #2. The Complainant did not appear to notice the police cruisers behind him.

At 6:56:25 p.m., another YRP marked SUV came southbound on Wilstead Drive without its emergency lights on. The Complainant lifted his shirt displaying his abdomen to SO #1 and SO #2.

At 6:59:00 p.m., the Complainant walked back and forth along the top of the wall from east to west and west to east continually looking down at the ground below.

At 7:00:47 p.m., a paramedic Special Response Unit pickup truck came south on Wilstead Drive without its emergency equipment operating. The Complainant saw this truck and stepped back towards the outer edge of the wall. He teetered there with his arms outstretched and looking over his left shoulder at the ground.

At 7:01:00 p.m., the Complainant suddenly, with both arms fully outstretched to his side and while teetering on the outer edge of the wall, fell backwards off the wall and fell out of sight of the camera to the ground below.

At 7:01:05 p.m., SO #1 and SO #2 ran down the stairway leading from the shopping cart corral to the ground level. At the same time, two uniformed police officers [believed to be WO #3 and WO #4] came running up to where the Complainant fell.

At 7:02:10 p.m., police officers began taping off the scene.

At 7:05:05 p.m., an ambulance arrived on scene and, at 7:06:00 p.m., the recording stopped.

The material events in question are clear thanks to a video recording that captured most if not all of the incident, as well as interviews with SO #1 and a number of other officers who were present at the time. As was her legal right, SO #2 declined to interview with the SIU or authorize the release of her notes.

Just before 7:00 p.m. on August 30, 2020, SO #1 and SO #2 arrived in the parking lot of the No Frills grocery store at 50 Davis Drive, Newmarket. They had been dispatched following a 911 call to police by CW #2. CW #2 reported the presence of a man in the parking lot outside the store – the Complainant – who was shouting death threats.

A store employee directed SO #1 and SO #2 to the Complainant’s location. He was standing on the ledge of the southern wall that bordered an enclave east of the store used to corral shopping carts. With the officers standing at the northern end of the enclave, with carts in between them, the Complainant yelled at them to stay back.

Realizing that the Complainant was in danger – there was a drop of about six metres on the other side of the ledge to the ground below – SO #1 tried speaking with the Complainant to calm him down. While maintaining their distance from the Complainant, the officers assured him they were there to help and offered to take him to hospital to be examined by a doctor. The Complainant said he did not want their help.

Fearing the Complainant might hurt himself, the officers asked that EMS attend and stage in the area in the event they were needed. They also asked that additional officers be dispatched but warned them not to approach with their lights and sirens on as the Complainant had indicated he would jump if he saw more police officers.

At about 7:08 p.m., the Complainant fell backwards of the ledge. Just before the fall, his anger had spiked at the sight of a paramedic’s vehicle traveling south on the roadway adjacent to the enclave – Wilstead Drive. He ranted about more police officers at the scene and could not be placated when SO #1 tried to assure him it was not a police vehicle.

SO #1 and SO #2 rushed down a set of stairs to the ground below to render aid. Other officers, who had concealed themselves south of the scene, also approached. The Complainant was motionless lying prone on the ground with bodily fluids coming from his head and mouth. Paramedics soon arrived, took over the Complainant’s care, and transported him to hospital. He was pronounced deceased at 7:42 p.m.

Cause of Death

The pathologist at autopsy attributed the Complainant’s death to blunt force trauma.

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

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

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.

On August 30, 2020, the Complainant fell to his death off the ledge of a wall affixed to the No Frills grocery store at the southeast corner of Yonge Street and Davis Drive, Newmarket. As he had been interacting with two YRP officers at the time, the SIU was notified of the incident and commenced an investigation. The two officers in question – SO #1 and SO #2 – were identified as subject officers 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 death.

The offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. The offence is predicated, in part, on behaviour that shows a wanton or reckless disregard for the lives and safety of others. Simple negligence will not suffice to make out the offence. Rather, what is required is a showing that the impugned conduct amounted to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the issue is whether there was any want of care on the part of the officers that caused or contributed to the Complainant’s death which was sufficiently derelict to attract criminal sanction. In my view, there was not.

SO #1 and SO #2 were in the execution of their lawful duties when they responded to the No Frills and confronted the Complainant. They had been dispatched to the scene following reports that a man – the Complainant – had been heard uttering death threats.

Thereafter, I am satisfied that the officers comported themselves within the limits of the law in the eight to nine minutes that they spoke with the Complainant. While it quickly became apparent that the Complainant was of unsound mind and in mental distress, the officers were not simply free to walk away from the situation. Even though it was clear that their presence was further agitating the Complainant, there remained legitimate concerns that he might do harm to himself or others left to his own devices. That said, SO #1 and SO #2 made sure that they kept their distance from the Complainant – about 12 metres – so as not to further provoke him. As they did so, SO #1 took the lead in speaking with the Complainant in an effort to have him step off the ledge. When told by the Complainant that he was not feeling well, SO #1 assured him they would take him to the hospital to be looked after. The officer also picked up on verbal cues from the Complainant and started to chat with him about a musician that the Complainant brought up. As this was happening, SO #2 cautioned over the radio that the Complainant had threatened to jump if he saw any more police officers. Additional officers took heed of that advice and arrived at the scene largely unseen without the use of their emergency equipment. Regrettably, though it did not have its lights or siren on, the Complainant mistook a paramedic’s vehicle on Wilstead Drive for police, after which he seemed to launch himself backwards off the ledge.

On the aforementioned-record, while perhaps more could have been done to ensure the discreet arrival of emergency vehicles in the area, I am unable to reasonably conclude that any shortcomings in the officers’ approach were so substandard as to deviate markedly and substantially 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.