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.

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.

Notification of the SIU

On November 9, 2021, the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

TPS reported that on November 9, 2021, at approximately 1:15 p.m., members of the Provincial Repeat Offender Parole Enforcement (ROPE) Unit were seeking the Complainant, unlawfully at large from a Correctional Centre in Toronto. The police officers called the occupant of an 8th floor apartment at an address on Humber Boulevard in search of the Complainant, before attending the address. Upon their arrival, the police officers noticed a man exiting the apartment unit. This man was not the person they were seeking. The police officers spoke to the female occupant, the Complainant’s mother, the Civilian Witness (CW), and checked the apartment. They checked the balcony and saw the Complainant lying on the ground eight stories below. The police officers attended ground level.

A uniformed police officer also arrived at ground level and was wearing a Body-worn Camera (BWC) that may have captured utterances made by the CW.

At the time of reporting, the Complainant was being treated for life-threatening injuries. He had sustained a fractured skull and multiple bone fractures, and was undergoing surgery at Sunnybrook Health Sciences Centre (SHSC).

The Team

Date and time team dispatched: 11/09/2021 at 4:20 p.m.

Date and time SIU arrived on scene: 11/09/2021 at 4:50 p.m.

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

31-year-old male; not medically fit to be interviewed; medical records obtained and reviewed

Civilian Witness

CW Interviewed

The civilian witness was interviewed on November 9, 2021.

Subject Official (SO)

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

Witness Officials (WO)

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

The witness officials were interviewed between November 10, 2021, and December 10, 2021.

The Scene

There were three separate scenes associated with this incident. Photographs were taken at each location examined.

Scene 1 – Parking lot

The outside scene was located in the parking lot of an apartment building on Humber Boulevard South, Toronto, near a sedan. There were no signs of impact indicating that the Complainant had come into contact with the vehicle when he fell. At the passenger side rear wheel were a pair of running shoes and a pair of socks. At the rear area of the vehicle closer to the wall of the building was a grey T-shirt that had been cut up, indicating Emergency Medical Services (EMS) intervention. Nearby was an area of pooled staining, seemingly blood.

Scene 2 – Balcony of the 7th floor apartment located below the CW’s 8th floor apartment

Personal items, not belonging to the 7th floor apartment occupant, were found on the balcony. The bird netting on the balcony had been torn.

Evidence at this scene and the fact that this apartment was directly below the CW’s apartment would suggest that the Complainant had attempted to climb down from the apartment above and fell. The property included a cell phone, sheets of carbon paper, various hemp products, a small knife, a small pair of scissors, a roll of black tape and a roll of plastic wrap.

The measurement of the height of the balcony railing was one metre, and the measured distance from the top of this railing to the impact area directly below was 18 metres.

Scene 3 – Apartment and balcony of CW’s 8th floor apartment

The entrance door to the apartment showed no signs of being forced open. The doorway to the balcony did not show signs of being forced. Bird netting at this balcony had also been torn back as it was on the 7th floor apartment balcony that was directly below. The measured height from the railing to the area of impact was 20.5 metres. The measured distance from the railing at the 8th floor balcony to the 7th floor balcony was two metres.

Video/Audio/Photographic Evidence[1]

TPS Radio and 911 Communications

At 11:47:52 a.m., on November 9, 2021, WO #1 called the TPS Communications Supervisor to inform him that the ROPE team would be conducting an operation at a building on Humber Boulevard.

At 1:16:08 p.m., WO #1 reported that someone [now known to be the Complainant] had jumped off the 8th floor from the balcony of an apartment on Humber Boulevard. The Complainant was reported to be unconscious and not breathing. WO #1 requested that more police officers be sent to the scene.

At 1:16:13 p.m., the building superintendent called EMS. He reported that he had come out of the building and found the Complainant lying on the ground outside of the building, with possibly a broken arm. The Complainant was breathing. He did not know the Complainant or how he got to the position. While on the call with the EMS, he reported that the police had just arrived where the Complainant was located.

At 1:18:22 p.m., WO #3 reported that the Complainant was conscious and breathing. The EMS were urgently required. The dispatcher requested confirmation that the Complainant had possibly jumped off the 8th floor of the building as available information on that was not yet clear. It was confirmed that the EMS was with the Complainant and that the TPS would be conducting an emergency run to SHSC.

Video Footage from the Humber Boulevard Apartment Building

The SIU retrieved security camera footage of the incident from the Humber Boulevard apartment building. The following is a summary of the recording.

At 1:10:35 p.m., the Complainant fell and landed in the parking lot between the building and a parked sedan, face first.

At 1:15:45 p.m., a man [now known to have been the building superintendent] was seen walking through the parking lot and seeing the Complainant on the ground. He looked upwards and then raised his cellphone to his ear (it is now known he called 911).

At 1:18:03 p.m., the SO, and WO #1 and WO #3, walked through the parking lot towards the Complainant. All three police officers were wearing plainclothes. WO #3 used his cellular phone [it is now known he called police dispatch and requested uniformed officers and an ambulance]. WO #1 was kneeling beside the Complainant providing first aid. A uniformed police officer [now known to have been Officer #1, wearing a BWC] ran towards the Complainant. The Toronto Fire Department arrived and took over first aid from WO #1. An ambulance arrived and the Complainant was loaded onto a stretcher and into the ambulance, which left the scene.

BWC Footage – TPS Officer #1

The SIU obtained footage of the incident captured by the BWC of Officer #1. The following is a summary of the recording.

At 1:20:49 p.m., Officer #1 arrived in the parking lot where the Complainant was located. Police officers wearing plainclothes were on scene. The Complainant was seen lying down face first, moaning, with blood in the vicinity of his head - his eyes were closed. A bone was seen protruding from the Complainant’s left wrist. Two police officers wearing plainclothes were seen standing in the immediate vicinity of the Complainant. Both were wearing external Kevlar vests with police placards visible. Another three police officers wearing plainclothes were nearby, also wearing Kevlar vests with police placards.

At 1:23:26 p.m., the Toronto Fire Department arrived and took over first aid of the Complainant. A plainclothes police officer told the firefighters that the Complainant was still breathing and that he had not been moved.

At 1:25:23 p.m., the CW exited the building and made her way towards the Complainant. The CW was immediately upset and yelling, “That’s my son!” Police officers attempted to stop the CW from getting closer to the Complainant and told her he was receiving medical aid.

At 1:27:28 p.m., an EMS SUV arrived. The CW was crying and shouted at the Complainant, “Why? Why would you do that?” The CW walked back inside the building. An ambulance arrived and the Complainant was loaded into the ambulance. Officer #1 began his emergency run to SHSC.

Materials Obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the Ontario Provincial Police (OPP), TPS and York Regional Police (YRP) between November 9 and 30, 2021:

• Correctional Service Canada (CSC)-Criminal Profile;
• CSC-Standard Profile;
• CSC-VIP Offender Profile Photograph;
• Request for Confidential Subscriber Information-Freedom Mobile;
• TPS CSC Warrant;
• TPS General Occurrence;
• TPS Notes-WO #3;
• TPS Notes-WO #1;
• OPP Notes-WO #5;
• TPS Notes-WO #2;
• YRP Notes-WO #4; and
• BWC footage from TPS Officer #1.

Materials Obtained from Other Sources

The SIU received the following records from other sources between November 17, 2021, and December 20, 2021:

• Ambulance Call Report and Incident Summary Report – EMS;
• Medical records from SHSC; and
• Security camera video recording from the Humber Boulevard apartment building.

The material events in question are clear on the evidence collected by the SIU, and may briefly be summarized. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the early afternoon of November 9, 2021, a team of plainclothes police officers from the TPS, OPP and YRP, members of the provincial ROPE team, attended an 8th floor apartment on Humber Boulevard South. They were looking to execute a warrant for the arrest of the Complainant for a parole violation, and had reason to believe that he was at the address, his mother’s apartment.

The Complainant was, in fact, in the apartment. Aware that the police were outside the front door to arrest him, the Complainant locked the apartment door and made his way to the balcony seeking to avoid apprehension. He scaled down to the apartment balcony immediately below his mother’s 8th balcony, where he deposited several personal items, including a cell phone and drug paraphernalia, before he appears to have lost his footing and fell to the ground below. The time was about 1:10 p.m.

By the time his mother – the CW - had unlocked the apartment door to let the officers in, the Complainant was already on the 8th balcony or the 7th balcony, or had already fallen.

Officers, including the SO, had entered and searched the apartment not finding the Complainant before they located him lying on the ground immediately below the balcony. They rushed to the Complainant’s location and rendered first-aid pending the arrival of paramedics.

The Complainant was rushed to hospital. He was diagnosed with multiple fractures and traumatic brain injury, and continues to recover from his injuries.

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.

The Complainant was seriously injured on November 9, 2021, when he fell from a high rise apartment balcony. As the Complainant’s fall occurred moments after a team of officers knocked on the door of the apartment he had been in, the SIU was notified and initiated an investigation. The SO of the TPS was identified as the subject official. The investigation is now concluded. 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 reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. Simple negligence is not enough to give rise to liability; rather, what is required, in part, is 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 a want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s fall. In my view, there was not.

The officers who attended at the CW’s residence and were present in and around the apartment when the Complainant fell were lawfully placed at all times. They were in possession of a warrant authorizing the Complainant’s apprehension for a parole violation, and had been let into the apartment by its rightful proprietor – the CW.

There is no indication in the evidence that the officers, including the SO, failed to comport themselves with due care and regard for the Complainant’s well-being throughout the police operation. They properly announced who they were and what they were there for before they were let in by the CW. They had even pre-positioned an officer outside to keep a lookout on the apartment balcony before they knocked on the door, albeit that officer was a significant distance from the building and would have exerted little if any deterrent effect on the Complainant’s designs on escape. Finally, the evidence indicates that the officers who entered the apartment had no opportunity to intervene to prevent the Complainant’s fall – he had already embarked on his fateful decision to scale down his mother’s balcony.

In the result, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law in relation to the Complainant’s fall. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.

Date: March 7, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit