Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the serious injury a 33-year-old man (the “Complainant”) suffered.

Notification of the SIU

On April 29, 2021 at 5:25 p.m., the Thunder Bay Police Service (TBPS) notified the SIU of an injury to the Complainant.

TBPS advised that on April 29, 2021, at about 12:00 p.m., a TBPS police officer [now known to be the Subject Official (SO)] was patrolling on North Mark Street in Thunder Bay when he saw an individual whom he knew had outstanding warrants. The SO approached the man [now determined to be the Complainant], who fled on foot and entered a multi-unit residence at an address on North Mark Street. The Complainant went up to the second floor and went out onto a small balcony. The SO noticed the Complainant had jumped from the balcony and so went back down to the front of the residence. After the Complainant jumped, he began running away. The SO eventually caught the Complainant and placed him under arrest.

The Complainant complained to police that his foot was sore. An ambulance was requested, and the Complainant was transported to hospital.

The Complainant was treated for having suffered a broken left foot. He also complained of a sore left little finger which was also treated.

When released from hospital, the Complainant was served a Promise to Appear and released from custody.


 

The Team

Date and time team dispatched: 04/29/2021 at 6:24 p.m.

Date and time SIU arrived on scene: 04/29/2021 at 6:33 p.m.

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

Affected Person (aka “Complainant”):

33-year-old male, not interviewed [1]

Civilian Witnesses (CW)

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed

The civilian witnesses were interviewed between May 5 and 12, 2021.

Subject Official

SO Declined interview and to provide notes, as is the subject official’s legal right

The Scene

The scene was located at a house on Marks Street North. The building contained multiple residences. There was a balcony on the second floor. The balcony had a railing. On the ground there were concrete steps directly below and risers. The driveway was asphalt.

Video/Audio/Photographic Evidence

Communications Recordings

On May 5, 2021, the TBPS provided the SIU with communications recordings made April 29, 2021. The recordings were not time stamped. The times used in this summary, below, are those of the audio file.

At 00:00:00 to 00:00:17 hrs into the recording, the SO told the dispatcher that the Complainant was running from him at an address on Marks Street North;

At 00:00:39 to 00:00:45 hrs into the recording, the SO asked if the Complainant was wanted on any warrants;

At 00:00:52 to 00:02:55 hrs into the recording, the dispatcher gave the SO the results of a persons search on the Complainant. The Complainant had a police history of violence and had been released on a recognizance;

At 00:02:56 hrs into the recording, the SO told the dispatcher the Complainant was on the run;

At 00:03:03 hrs into the recording, the dispatcher asked the SO which direction he was going;

At 00:03:09 hrs into the recording, the dispatcher told the SO the Complainant was arrestable for breach of release order and breach of probation;

At 00:03:20 hrs into the recording, the SO told the dispatcher the Complainant was doing circles around the house at the address provided on Marks Street;

At 00:03:26 hrs into the recording, the dispatcher requested more units attend to assist the SO;

At 00:03:38 hrs into the recording, the dispatcher advised that two officers were responding. One of these officers was two minutes away;

At 00:04:41 hrs into the recording, another officer advised he would be there in one minute;

At 00:04:47 hrs into the recording, the dispatcher again advised the Complainant was running from the SO;

At 00:04:59 hrs into the recording, the SO told the dispatcher he had the Complainant in custody;

At 00:05:18 hrs into the recording, an officer advised he was with the SO;

At 00:05:21 hrs recording time, the dispatcher asked the SO if he required more units and the SO said he was “good”;

At 00:06:18 to 00:06:33 hrs into the recording, an officer requested an ambulance to the location. The dispatcher asked for what reason and the SO replied the Complainant might have a broken finger;

At 00:06:55 hrs into the recording, an officer said the ambulance was there;

At 00:07:14 hrs into the recording, an officer advised the police officers were following the ambulance;

At 00:07:17 hrs into the recording, an officer advised the dispatcher he and the SO were at the hospital; and

At 00:07:23 hrs, the recording ended.

Materials Obtained from Police Service

Upon request, the SIU received the following materials and documents from TBPS between May 4 and 5, 2021:

• Profile – the Complainant;
• Communications Recordings;
• Crime Scene Continuity Register;
• Letter from TBPS to SIU Regarding Disclosure;
• Officer Notes (x4);
• Computer-assisted Dispatch Details;
• Email from Emergency Medical Services Deputy to TBPS Identifying Involved Paramedics;
• CW #3 Written Statement;
• Occurrence Summary;
• Photograph Sample;
• Identification Photographs;
• Supplemental Reports;
• Witness list;
• Policy-Arrest Release Detention; and
• Policy-Use of Force.

 

Materials Obtained from Other Sources

Upon request, the SIU received the following document from other sources on July 20, 2021:

• Ambulance Call Report.

The material events in question are clear, thanks to interviews with two civilian eyewitnesses, and may be briefly summarized. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

At about noon of April 29, 2021, the SO came across the Complainant while on patrol and decided to arrest him on outstanding warrants. The Complainant fled from the officer making his way on foot to a home on Marks Street North.

By the time the SO arrived at the scene a short time later, the Complainant had already entered the home and was making his way to a second floor balcony. Once on the balcony, the Complainant climbed over the railing and crouched down on the outer ledge. He was attempting to conceal himself behind a sheet or a rug that hung over the railing.

The SO made his way out onto the balcony, peered over the railing and saw the Complainant. The Complainant was by then hanging from the ledge, his hands gripping the eavestrough that ran around the balcony. The officer said something to the Complainant, although what he said is unknown. Within seconds of the SO having found the Complainant, the Complainant let go of the eavestrough and fell to the ground.

The Complainant ran toward the rear of the property. The SO quickly made his way downstairs and out through the front door, giving chase on foot. He returned to the front of the residence moments later, entered his police vehicle, and left the scene traveling north on Marks Street North.

About five to ten minutes later, the Complainant re-emerged in front of the home on Marks Street North and was seen to make his way to the entrance of the house next door where he banged on the door. Within seconds, the SO was back at the scene. He exited his vehicle, approached the Complainant, and took him into custody without incident.

Paramedics arrived on scene at about 12:40 p.m. and examined the Complainant, who complained of pain to the left foot. He was taken to hospital and diagnosed with a fractured left ankle.

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 221, Criminal Code -- Criminal negligence causing death or bodily harm

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 April 29, 2021, the Complainant suffered a serious injury in the course of an interaction with a TBPS officer. The officer in question – the SO – was identified as a subject official 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 injury.

The offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is not made out, inter alia, unless the impugned conduct constitutes a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, it is clear that the Complainant’s left ankle was fractured when he dropped from the balcony and impacted the ground below. The issue is whether there was any want of care in the manner in which the SO dealt with the Complainant that caused or contributed to the Complainant’s injury and was sufficiently egregious as to attract criminal sanction. In my view, there was not.

The SO was in the execution of his lawful duties as he chased after the Complainant and followed him onto the balcony. He had been informed via dispatch that the Complainant was wanted on warrants for breaches of probation and a release order.

I am also satisfied that the SO did not fail in his duty of care toward the Complainant while on the balcony. It is clear that the Complainant, of his own volition, placed himself in a position of danger on the outer ledge of the balcony railing attempting to evade apprehension. He then lowered himself off the balcony, hanging from the eavestroughs, before he let go, fell to the ground and resumed his flight. All of this happened very quickly leaving the SO no real opportunity to prevent the fall. Indeed, the evidence indicates that there was no physical contact between the officer and the Complainant before the fall to the ground. On this record, there is no basis to conclude 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 brief engagement with the Complainant, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: August 16, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit