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.

This report relates to the SIU’s investigation into injuries a 31-year-old man (the “Complainant”) suffered.

Notification of the SIU

On October 12, 2020, at 8:04 p.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant. The TPS advised that on October 12, 2020, at approximately 4:00 p.m., TPS police officers attempted to arrest the Complainant and he fled to a residence on Carlton Street. When police officers arrived, he went over the balcony, climbed down, and fled on foot. A foot pursuit occurred, and the Complainant was arrested at 249 Seaton Street. The Complainant said his back hurt and he was taken to Mount Sinai Hospital (MSH), where he was diagnosed as having sustained fractures to L2, L3 and L4. He was released to the TPS and returned to 51 Division to await a bail hearing in the morning.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0

Complainant:

31-year-old male, interviewed and medical records obtained

Civilian Witness (CW)

CW Interviewed

Witness Officers (WO)

WO #1 Interviewed, and notes received and reviewed
WO #2 Interviewed, and notes received and reviewed

Subject Officer (SO)

SO Interviewed, and notes received and reviewed

The Scene

The scene was located at the rear of a residence on Carlton Street, which was a three-floor building. The scene was not held.

Video/Audio/Photographic Evidence

Video Footage from the CW

At the time of the interview, the CW supplied the SIU with copies of two videos, which were recorded on the CW’s cellular telephone at the time of the Complainant’s arrest. There was no date or time stamp on the videos. One video was four seconds long and the second video was 12 seconds long. Both videos were basically the same and showed the Complainant, who was standing facing the front of a fully marked TPS SUV. The Complainant was shirtless, and wore long blue-coloured pants. A tall TPS police officer [now known to be WO #1], wearing a yellow jacket, stood behind the Complainant. The Complainant was handcuffed with his hands behind his back and WO #1 held onto the Complainant’s hands. The Complainant was seen to talk and laugh. The video showed the arrest and not the manner by which the Complainant came off the roof.

Police Communications Recordings

At 1:40 p.m., October 12, 2020, the CW telephoned the TPS and reported that the Complainant was wanted for a stabbing and was “on the run”. The CW believed the Complainant was wanted by the police for a separate incident, and the present whereabouts of the Complainant was in an apartment of a house on Carlton Street. The CW described a fire exit which led to the roof.

At 1:46 p.m., the dispatcher asked for units to attend.

At 2:07 p.m., a unit responded [believed to be either WO #1 or the SO], asked if the call was still outstanding and volunteered to attend. The dispatcher provided information that the Complainant was wanted on a surety warrant, as well as criminal warrants and an immigration warrant. The Complainant had outstanding charges and was known to carry a knife.

At 2:06 p.m., a voice said the Complainant went out the back and was running. A description of the Complainant and his last known direction of travel was provided.

At 2:20 p.m., a man’s voice broadcasted that the Complainant was at Gerrard Street East and Ontario Street, and that he then ran southbound on Ontario Street.

At 2:21 p.m., a man’s voice said the Complainant was in custody, and all was okay, at the rear of 249 Seaton Street.

Delay in Interviewing the Complainant

At 7:30 a.m., October 13, 2020, SIU investigators made contact by telephone with the Complainant, who was in the cell area at TPS 51 Division. The Complainant did not wish to participate in a recorded interview with the SIU to discuss his interaction with the TPS until such time as he had spoken to his counsel. The Complainant was remanded to the Toronto South Detention Centre (TSDC) and he was placed in quarantine. He could not be interviewed because of COVID-19. The TSDC did not allow telephone interviews.

On November 3, 2020, the Complainant was interviewed at the TSDC and he signed a medical release.
 

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from TPS:

• Communications Audio;
• Injury Report-the Complainant;
• Notes-the SO;
• Notes-WO #1;
• Notes-WO #2;
• Occurrence and Supplementary Reports;
• Procedure - Arrest;
• TPS Involved Officers List;
• Wanted Bulletin; and
• Warrant D51-Stabbing.

Materials obtained from Other Sources

The SIU obtained and reviewed the following records from non-police sources:

• Medical records from MSH; and
• Video footage from the CW.

The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant and the SO, and may be summarized in short order. In the afternoon of October 12, 2020, the TPS received information concerning the Complainant’s whereabouts, namely, he was said to be in a room at an address on Carlton Street, Toronto. The Complainant was wanted on several arrest warrants.

The SO, in the company of WO #1 and WO #2, arrived at the address and was allowed entry, whereupon he climbed to the third-floor and exited through a door onto a rooftop patio. Seeing the Complainant hiding behind the patio railing, the officers called out to him. Within seconds, the Complainant jumped from the roof to the ground below, fracturing his back in several places.

The Complainant had been alerted to the officers’ presence. Fearing apprehension, he had made his way onto the roof of the second floor of the building, climbed over the wooden railing of the patio and attempted to conceal himself behind the railing between the patio and the roof’s edge.

Notwithstanding his injuries, the Complainant took flight from the police on foot. He was arrested a short time later on Seaton Street, a distance south from where he had jumped.

Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm

(a) in doing anything, or

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

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years

On October 12, 2020, the Complainant fractured several vertebrae when he fell from a roof attempting to evade apprehension at the hands of TPS police officers. The SO was among the officers in question 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.

The 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 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 injuries and was sufficiently derelict as to attract criminal sanction. In my view, there was not.

The Complainant was at the time subject to a number of arrest warrants. Accordingly, the officers were clearly acting within the scope of their lawful duties as they entered the residence with the intention of taking the Complainant into custody.

Thereafter, I am satisfied on reasonable grounds that the officers comported themselves with due regard for the Complainant’s health and safety as they sought to arrest him. It is clear that the Complainant, of his own volition and in an attempt to avoid police apprehension, hid behind the balcony railing and then jumped from the roof when he was discovered by the officers.

The issue is whether the officers acted wisely in entering onto the balcony to effect an arrest given the risk of a fall or jump from height. The concern is particularly relevant in this case as there is evidence that the SO had information that the Complainant was known to run from police and to jump from roofs in so doing. The evidence comes from the witness who had called police with information about the Complainant’s location. According to the witness, CW met with the officers outside the address prior to their entry and warned them that the Complainant was a “jumper”. The SO acknowledges that he met with the witness, but says he was never told that the Complainant might jump.

Assuming that the SO and/or the other officers did in fact have foreknowledge that the Complainant was likely to jump from a height if confronted by police, it might well have been a more prudent course to arrange for officers at ground level. Their presence, arguably, might have convinced the Complainant that escape was not in the cards, thereby dissuading him from jumping.

Be that as it may, I am not satisfied that the officers’ failure to adopt that course amounted to a marked and substantial departure from a reasonable level of care in the circumstances. I arrive at this conclusion with reference to the fact that there was some urgency in moving fast to take the Complainant into custody. He was wanted for a number of serious and violent offences, and was known to carry a knife. Moreover, it must be noted that the Complainant acted quickly to place himself in a position of danger on the balcony shortly after the officers’ knock on the door. In the circumstances, some allowance must be made for the fact that the officers did not have the luxury of time as they considered their options.

In the result, as I am unable to reasonably conclude on the aforementioned-record that any failure on the part of the officers to tailor their approach to the Complainant in light of a risk of a fall from height, if it be such, transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges in this case.


Date: April 6, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit