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.

This report relates to the SIU’s investigation into a serious injury sustained by a 29-year-old man (the “Complainant”).

Notification of the SIU

On November 11, 2021, the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant.

The TPS reported that on November 10, 2021, at 3:41 p.m., police officers from 41 Division attended a residence in the area of Eglinton Avenue East and Kennedy Road, Scarborough, to execute a Surety Warrant. The police officers met with the Complainant’s mother, Civilian Witness (CW) #1, the surety holder, away from the apartment. CW #1 wanted her son removed from her apartment. She provided the police officers with the key to her apartment and signed one of the police officers’ memo books. Police officers entered the apartment and the Complainant jumped from the second storey. He was located outside the building lying on the ground. The Complainant was transported to Sunnybrook Health Sciences Centre (SHSC) with a suspected back injury. The Complainant refused to sign medical waivers. At 11:54 p.m., he was admitted to the hospital. The severity of his suspected back injury was not known.

The Team

Date and time team dispatched: 11/11/2021 at 10:45 a.m.
Date and time SIU arrived on scene: 11/11/2021 at 11:00 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

29-year-old male interviewed; medical records obtained and reviewed

The Complainant was interviewed on November 16, 2021.

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed

The civilian witnesses were interviewed on November 12, 2021, and December 8, 2021.

Subject Officials

SO Declined interview, as is the subject official’s legal right. Notes received and reviewed.

Witness Officials

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

The witness officials were interviewed on November 18, 2021, and November 19, 2021.

The Scene

This incident occurred on the balcony of an apartment in the area of Eglinton Avenue East and Kennedy Road, Scarborough. The balcony railing was 1.1 metres high and the distance from the top of the railing to the ground was four metres. A surveillance camera, from which video footage was obtained, was 3.5 metres above the ground and the distance from the camera to the centre of the balcony was 12 metres.

Video/Audio/Photographic Evidence[2]

Radio Communications – TPS

At 3:54:23 p.m., on November 10, 2021, WO #1 made a radio call and stated that he wanted to conduct an address check at an address in the area of Eglinton Avenue East and Kennedy Road.

At 4:44:06 p.m., an officer announced on radio that they had the Complainant in custody. He had jumped from the balcony of an apartment, and he was complaining of back pain. An ambulance was needed at the scene. The TPS dispatcher asked to know how many floors the Complainant had jumped from, and an officer replied that the Complainant had jumped from the second floor.

An officer announced that the Complainant was in an ambulance and going to be taken to SHSC.

Video Footage from the Apartment Building

The footage displayed a timer which began at 00:00 minutes (not the time of the day). The following is a summary of the recording.

At 00:20 minutes, a person was captured walking behind the building, near the grassy area, below the balcony of the Complainant’s unit. A marked police cruiser was seen in the background, parked with its left wheels to the curb on the road. WO #4 and WO #5 walked from the area where the police cruiser was stopped, onto the grassy area. WO #4 and WO #5 stopped and stood on the grass, not far from the apartment building.

At 02:23 minutes, the Complainant came into the camera view, appearing from the balcony. His head was positioned, face in, closest to the balcony. The Complainant was inverted in the air, falling headfirst, then transitioning to his back. His body, in particular his legs, moved to the right and he landed directly on his back, his legs following.

WO #4 and WO #5 rushed to the Complainant, who rolled onto his right side. WO #4 and WO #5 reached the Complainant as he positioned himself on his stomach with his buttocks raised in the air. WO #5 straddled the Complainant on his lower back and buttock area. The Complainant pushed his upper half off the grass with straight arms. He tried to raise himself with WO #5 on top of him. The Complainant raised his left arm over his head.

The Complainant used the movement of his left arm to push WO #5 off and to his left side. WO #4 and WO #5 were each on either side of the Complainant as he made it halfway to his feet. Both WO #4 and WO #5 pushed him forward onto his stomach. The Complainant pushed off and up, again raising his upper body off the ground. Both WO #4 and WO #5 tried to hold him down.

In-car Camera System (ICCS) Footage – TPS Police Cruiser of WO #4 and WO #5

At 4:42:51 p.m., the TPS police cruiser had its ICCS activated and was parked facing the south side wall of the Complainant’s apartment building. The camera had a view of the balcony of the Complainant’s apartment. WO #4 and WO #5 were seen positioned at the south side of the building facing the balcony.

At 4:43:00 p.m., the Complainant appeared and flipped over the second storey balcony. As the Complainant hit the ground, WO #4 and WO #5 rushed forward and appeared to struggle with him on the ground as they tried to arrest him. The Complainant could be heard crying and screaming in pain, but his voice was inaudible and what he was saying could not be understood. WO #4 and WO #5 were also heard yelling instructions, but their voices were also indecipherable.

The EMS arrived and began to attend to the Complainant. Paramedics carried the Complainant toward the ambulance in a wheeled stretcher.

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the TPS:

• General Occurrence;
• Narrative Text Hardcopy;
• Notes of WOs and SO;
• Copy of Surety Warrant;
• Communications recordings;
• ICCS footage; and
• Video footage from apartment building.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:

• Medical Records from SHSC; and
• Toronto Emergency Medical Services Ambulance Call Report and Incident Summary Report.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and several police eyewitnesses to the events in question. The investigation was also assisted by video recordings from a security camera and a TPS ICCS that captured the incident in part. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

In the afternoon of November 10, 2021, a group of four TPS officers, including the SO, gathered outside the front door of an apartment in the area of Eglinton Avenue East and Kennedy Road. They were there to arrest an occupant of the residence – the Complainant – whose bail had been revoked the day before.

The officers unlocked the door to the apartment and rushed inside. With the SO in pursuit, the Complainant fled from the area of the door a short distance to the kitchen and out onto the apartment balcony. He scaled the balcony railing and fell to the ground below on his back.

WO #4 and WO #5, who had been pre-positioned outside below the balcony, approached the Complainant on the ground. Following a short struggle, the officers handcuffed the Complainant behind the back.

An ambulance was summoned to the scene and transported the Complainant to hospital where he was diagnosed with multiple spinal fractures.

Section 219, Criminal Code -- Criminal negligence causing death or bodily harm

(a) in doing anything, or

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

The Complainant was seriously injured in the course of his arrest by TPS officers on November 10, 2021. One of the arresting officers – the SO – was identified as a subject official for purposes of the ensuing SIU investigation. 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 arrest and injuries.

There are two issues that are raised on the evidence as far as the SO’s potential criminal liability is concerned. The first arises from an allegation that the officer intentionally pushed the Complainant off the balcony as he was bracing himself to jump from the outer ledge of the balcony to the ground.

This account, if true, would give rise to criminal charges, but it would be unwise and unsafe to rest charges on this evidence. The video footage of the Complainant’s descent from the second-floor balcony does not depict the Complainant preparing to jump from the narrow outer ledge of the balcony. Rather, it appears to show the Complainant tumbling head-first over the railing. This fundamental flaw renders this evidence insufficiently reliable to warrant being put to the test by a trier-of-fact.

The second issue asks whether there was a want of care on the part of the officers, including the SO, that played a part in the Complainant’s fall. If so, was it sufficiently egregious to give rise to liability for the offence of criminal negligence causing bodily harm prescribed under section 221 of the Criminal Code. In my view, there was not.

The officers had received permission from the tenant of the apartment – the Complainant’s mother – who had also been his surety, to enter the apartment to arrest the Complainant. In fact, she had provided the officers with the keys to the apartment for that purpose.

Upon their entry into the apartment, there was little if any opportunity for the officers to have interceded to prevent the Complainant’s flight to the balcony. It was a short distance from the front door to the balcony and the Complainant had a head start on the officers as he fled. The officers had considered the possibility that the Complainant would attempt to escape via the balcony, and had arranged to place two uniformed officers – WO #4 and WO #5 – in the vicinity outside to deter any such behaviour. Regrettably, it is doubtful that the Complainant, in his haste, was ever even aware of their presence. I accept that the SO was able to grab the Complainant momentarily from behind as he jumped over the railing. For the reasons previously discussed, I do not accept that the SO’s contact was in the nature of an intentional push. Nor do I believe that the SO was reckless in making the effort – had he succeeded and been able to prevent the Complainant’s escape, it might well be the case that the Complainant would not have suffered the serious injuries he did.

For the foregoing reasons, there are no reasonable grounds to believe that the SO comported himself other than lawfully in his brief engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.

Date: March 8, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit