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 the death of a 34-year-old man (the “Complainant”).

Notification of the SIU

On November 22, 2020, at 10:14 p.m., the Durham Regional Police Service (DRPS) notified the SIU of the Complainant’s death.

The DRPS reported that on November 22, 2020, at 8:54 p.m., a 911 call was placed regarding the Complainant hanging from a balcony. The Complainant had a history of mental health issues and had previously been apprehended under the Mental Health Act on November 18, 2020.

When the Subject Officer (SO) arrived in the parking lot area of the building, he shouted at the Complainant to get back over the balcony; however, the Complainant fell to the ground. At no time did the SO enter an apartment unit or speak with the Complainant.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2

The area was canvassed for witnesses and Closed-circuit Television (CCTV) cameras.

The Forensic Investigators completed a scene examination, took photographs and downloaded the building’s CCTV footage.


 

Complainant:

34-year-old male, deceased

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8  Interviewed
CW #9 Interviewed
CW #10 Interviewed
CW #11 Interviewed
CW #12 Interviewed
CW #13 Interviewed
CW #14 Interviewed
CW #15 Interviewed
CW #16 Interviewed

Witness Officers

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

Subject Officers

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

The Scene

Incident Scene 1

The Complainant landed on the ground near the wall of a building at Wentworth Street, Oshawa.

The Complainant was lying on his back under a blue-coloured blanket on the snow-covered grass area. The Complainant was fully clothed and was wearing boots. Medical intervention pads were on his chest.

Garbage and debris were strewn on the parts of the adjacent concrete area and parking lot area. A metallic, shopping cart was resting on its side. A CCTV camera was near a door leading into the building.

Incident Scene 2

The second scene was an apartment on Wentworth Street

The door leading to the apartment’s balcony was open.

A piece of red-coloured fabric was knotted around the top rail of the balcony. A vertical partition separated the balcony from the neighbouring unit’s balcony.

Incident Scene 3

The third scene was the neighbouring unit’s balcony.

There were three adjacent, linear marks on the top rail of the balcony.

Video/Audio/Photographic Evidence

The following report is a summary of the video recordings obtained during the investigation.

Two Cell Phone Video Recordings taken by Witness

Video 1
This video was 38 seconds in duration and appeared to be have been taken from across the street from the apartment building located at Wentworth Street. The video footage was very dark, and the Complainant could not be seen. Only several lights were illuminated from apartments and there was one exterior flood light at the ground level near a door.

The video was very shaky at times and too dark to capture the Complainant on the outside of the balcony.

At 26 seconds into the video, a woman could be heard yelling loudly, “Oh my fucking God, he just fucking jumped.” She repeated this twice. The video did not depict the Complainant jumping from the balcony as it was too dark.

Video 2
Again, the video was very dark and only voices were of any evidentiary value.

A lot of yelling and screaming could be heard coming from the direction of a balcony. The voice of a man was heard yelling at the Complainant, “Get the fuck over here.” A voice of a woman was heard yelling loudly, “[The Complainant]. Oh my God.”

At ground level near a door where the outside light was illuminated a couple of people walked up to the Complainant on the ground. A third person came out from a door and walked over to where the other two people were. A male voice was heard yelling, “Call 911.”

Video found on Facebook by Witness

This cell phone video was 35 seconds in duration and found on Facebook.

The video image was too dark to depict anything and only showed shadows and very faint artificial lighting. There was a lot of yelling and screaming and, at 22 seconds into the video, a woman yelled, “Don’t do it.” Near the end of the video a man was heard yelling, “Calm down.” A loud bang was heard followed by a lot of people yelling.

Video from CCTV Camera at Wentworth Street

The video was 9 minutes and 56 seconds in duration. The camera was mounted near a doorway leading into the common area of the apartment building. The camera faced towards Wentworth Street and depicted some light snow on the ground. The area was well illuminated.

At 2 minutes and 50 seconds, something was seen landing on the ground near the door.

At 3 minutes and 4 seconds, a man came out of a doorway and looked around. He had a cellular phone in his hand. Another man came out of a door to the apartment by the doorway. Both men were looking up the side of the apartment building.

At 4 minutes and 3 seconds, the same man went back inside the apartment building through the doorway.

At 4 minutes and 22 seconds, the man that came out of his apartment went back inside.

At 4 minutes and 58 seconds, the same man came back out of his apartment and was looking around.

At 5 minutes and 11 seconds, the same man with the cellphone came back outside through the doorway and was talking with the man who was standing in the backyard area.
At 5 minutes and 14 seconds, the man with the cell phone went into the apartment building and closed the door behind. The man standing in the backyard was looking up.

At 5 minutes and 30 seconds, someone [possibly a police officer] walked along the laneway towards the area of the doorway.

At 5 minutes and 37 seconds, the Complainant was seen falling and contacting the ground just outside the first apartment beside the doorway. The man standing in the backyard quickly turned to the side of the building. The man then walked over to where the Complainant was laying on the ground and bent over the head area of the Complainant.

At 5 minutes and 49 seconds, another man ran over to assist, and a uniformed police officer approached the Complainant. All three men were looking down at the Complainant.

At 6 minutes and 30 seconds, about five to six people were standing around and someone was taking cell phone images as a camera flash was observed directed towards the area where the Complainant was lying.

At 6 minutes and 46 seconds, a marked DPRS police vehicle drove down the laneway from Wentworth Street to the area where the Complainant was lying.

At 8 minutes and 52 seconds, an ambulance drove down the laneway from Wentworth Street to the area where the Complainant was laying. The ambulance had all emergency lighting activated.

Police Communications Recordings

Summary of 911 calls

The recordings commenced at 8:54:29 p.m. and concluded at 9:01:07 p.m. Due to the barrage of calls, a 911 call-taker was unable to obtain details for some callers.

8:54:29 p.m.
CW #3 was asking for ambulance and police. She indicated, “There’s someone hanging over a balcony on [an upper] floor across the street. I’m at Wentworth Street and they are at [the scene’s address]. Oh, he’s climbing back on to the balcony - oh my God, oh my God. He just got back onto the balcony. There was screaming and yelling and someone smashing doors. […] He just threw a chair or something off the balcony. I can’t see from here if he’s white or black - I can’t tell.”

8:54:40 p.m.
A woman asked for police and stated, “Wentworth Street - somebody is hanging off the balcony - oh, he’s climbing back on the balcony now - he keeps going out there and hanging off the balcony then going back on the balcony. They been yelling and screaming and fighting for hours. Oh, he’s climbing back over the balcony again. Oh, my God. It’s on the […] side of the building. Oh, now he’s throwing stuff off the balcony-he’s going to hurt somebody. [Provides physical description]. Now he’s screaming at people. He’s on his side of the balcony now.” [Male voice could be heard screaming something unintelligible in background.]

• Intergraph Computer-assisted Dispatch and event summary;

• Communications recordings;

• CCTV footage from Wentworth Street;

• Video found on Facebook;

• Videos taken by witness;

• Civilian Witness list;

• DRPS Directive – Persons in Crisis;

• DRPS Disclosure Letter;

• DRPS Scenes of Crime Officer photos;

• Fingerprints-the Complainant;

• General Occurrence Report (x2)

• Involved officers list;

• Narrative of WO #3; and

• Notes of WO #1, WO #2 and WO #4.

• Ambulance Call Reports (×5) and Incident Report (×5);

• Photos taken by civilian witnesses; and

• Photo received from business.

The material events in question are clear on the evidence collected by the SIU, which included interviews with the SO and multiple civilian eyewitnesses. Beginning at about 8:55 p.m. on November 22, 2020, the DRPS started to field 911 calls about a man – the Complainant – hanging from a balcony of a building on Wentworth Street. Officers were dispatched to investigate.

The Complainant was in crisis and had climbed over his apartment’s balcony railing. He scaled the railing and returned to safety. His upset, however, did not abate. Sometime later, he ventured onto the balcony again, this time throwing a shopping cart over the railing before returning to stand on the outside ledge of the balcony. This time, while facing toward the balcony, he sidestepped toward the adjoining balcony. It was not long thereafter, with an officer at ground level, that the Complainant fell.

That officer was the SO, the first to arrive at the scene. Directed by civilians in the area, the officer proceeded to the building and observed the Complainant on an upper floor. He was standing on the ledge outside the railing of an apartment. The SO, familiar with the Complainant from past dealings, shouted, “[The Complainant], go back inside. [The Complainant], climb back over.” A man standing beside the SO similarly yelled at the Complainant to get back to safety. Within seconds of his arrival, the Complainant appeared to lose his grip of the railing and fell, landing within metres of the officer. The SO radioed what had just occurred. The time was about 8:56 p.m.

Other officers began arriving at the address, as well as paramedics. Efforts to resuscitate the Complainant were unsuccessful and he was pronounced deceased at the scene.

Cause of Death

The pathologist at autopsy attributed the Complainant’s death to “[m]ultiple blunt impact trauma”.

Section 219, Criminal Code -- Criminal negligence causing death

(a) in doing anything, or

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

Section 220, Criminal Code -- Criminal negligence causing death or bodily harm

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 November 22, 2020, the Complainant fell from an apartment balcony to his death in Oshawa. As a DRPS officer was present at ground level and had interacted with the Complainant just before the fall, the SIU was contacted and opened a file. The officer in question – the SO – was identified as a 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 only offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. The offence is reserved for serious cases of neglect involving conduct that demonstrates a wanton or reckless disregard for the lives or safety of others. Simple negligence is not enough to give rise to liability. What is required is behaviour that constitutes 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 issue is whether there was any want of care on the part of the SO that contributed to the Complainant’s death and was sufficiently egregious as to attract criminal liability. In my view, there was not.

In the very brief amount of time that the SO was on scene – less than half-a-minute on the evidence – it is apparent that the officer did what he could to help avert the Complainant’s tragic death. By the time of his arrival, the Complainant was precariously positioned on the outer railing of an upper floor apartment. The officer, together with others in the area, shouted at the Complainant to return to safety. He did so repeatedly. Indeed, it looked to the officer and others that the Complainant was trying to do so, but was having difficulty gaining any traction on the railing surface, which was wet and slippery at the time. As the SO was alone at the time, I am not sure what more he could have done given the exigencies of the situation and the speed with which events unfolded. On this record, there is no suggestion that the SO transgressed the limits of care prescribed by the criminal law.

In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully during his interaction with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: July 12, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit