SIU Director’s Report - Case # 22-TCI-277
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Contents:
Mandate of the SIU
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.
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.
Information Restrictions
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:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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.Mandate Engaged
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 injuries of a 31-year-old man (the “Complainant”).
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 injuries of a 31-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On October 25, 2022, at 11:07 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information. On October 25, 2022, at 7:05 p.m., police officers were called to an apartment in the area of Dufferin Street and King Street West for a man in crisis. The man barricaded himself inside the apartment. Members of the Emergency Task Force (ETF) arrived and began negotiating with the man. The man subsequently jumped out the window and was taken to St. Michael’s Hospital with an obvious leg injury.
The Team
Date and time team dispatched: 10/25/2022 at 11:33 p.m.Date and time SIU arrived on scene: 10/26/2022 at 1:40 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
31-year-old male; interviewedThe Complainant was interviewed on December 12, 2022.
Civilian Witnesses (CW)
CW #1 Not interviewed; next-of-kinCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
The civilian witnesses were interviewed between October 27, 2022, and November 22, 2022.
Subject Officials (SO)
SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right SO #2 Declined interview and to provide notes, as is the subject official’s legal right
The subject official was interviewed on December 5, 2022.
Witness Official (WO)
WO Interviewed The witness official was interviewed on October 28, 2022.
Evidence
The Scene
The Complainant sustained serious injuries in a fall from his fifth-floor balcony of an apartment building in the area of Dufferin Street and King Street West, Toronto. Video/Audio/Photographic Evidence [1]
Police Communications Recordings
The following is a summary of the pertinent police communications in connection with the incident under investigation.
911 Call
On October 25, 2022, at 6:58 p.m., CW #3 called 911 and reported a conflict between tenants screaming at each other over the balcony. He was re-directed to the TPS non-emergency number.
CW #3 called 911 again at 7:03 p.m. and reported that a man [now known to be the Complainant] from a fifth-floor apartment had dropped everything from his balcony and screamed. He added that the police had attended at the same apartment about one or two months ago as the Complainant wanted to jump from the balcony and had blocked the door.
Radio Communications
At 7:04 p.m., TPS communications requested that police officers attend a high priority call at a building in the area of Dufferin Street and King Street West [2] for a person in crisis throwing things off the balcony.
After resolving the issue surrounding the location of the incident, police officers arrived at the apartment building. It appeared that the Complainant had barricaded himself in the apartment. The ETF were asked to monitor the call in the event they were required.
At 7:30 p.m., the WO, a police officer responsible for negotiating with the Complainant, advised that the Complainant had taken all his clothes off and was on the balcony.
At 7:59 p.m., members of the ETF arrived and later took over negotiations with the Complainant.
At 10:29 p.m., the Complainant stood on the outer side of the balcony at the edge, doing squats off the railing.
At 10:30 p.m., the Complainant fell from the balcony.
ETF Negotiations Communications
The audio commenced with an ETF police officer telling the Complainant, “All we want to do is resolve this peacefully. We are just worried about your safety.” The Complainant yelled inaudible words that were not directed at the police officer. The ETF police officer attempted to persuade the Complainant to go inside the apartment and speak with him through the door. He asked the Complainant if they could talk over the telephone, in private. The Complainant spoke about zombies and indicated that his wife and, then, his girlfriend, was there.A second ETF police officer commented that the Complainant had two chairs in front of the door but was unsure how secure the barricade was. The initial ETF police officer suggested again that the Complainant go inside. The ETF police officer said, “You getting cold? Do you want to go inside and get warm? I can go around and talk to you from the door. You are out here in just shorts and shirt. It’s starting to get chilly out here. We could talk in private. What do you think?” The police officer said that he would be giving the Complainant some space and would talk to him from the door, but not open it.
The Complainant yelled with phrases, including, “Somebody I’m looking at, is going to die.”
The initial ETF police officer continuously asked the Complainant to return inside his residence and communicate through the door but to no avail. The ETF police officer told the Complainant that he was going into the hallway and would talk to him from there, and that he would knock on the door. The Complainant began to talk more about zombies.
A third police officer stated, “Hey [the Complainant’s first name], we are going to close your door, okay… we are going to close your door. Okay, come back over on this side, we are not going to do anything else, okay. I’m the one that’s in charge here.” A loud thud was subsequently heard, immediately followed by the third police officer stating, “Okay, let’s go boys; paramedics now please, paramedics now.”
Police Body-worn Camera (BWC) Footage
The following is a summary of police BWC footage in connection with the incident under investigation.BWC Footage – Officer #1
On October 25, 2022, at 8:08 p.m., Officer #1 was in the parking lot of the apartment building. The officer remained in the parking lot area and performed a security function to prevent people from entering the area located near the Complainant’s apartment.
While performing this task, occasional video and audio captures were made by Officer #1’s BWC of the balcony upon which a man [now known to be the Complainant] was situated.
At 10:29 p.m., a police radio transmission indicated, “Male on the other side of the balcony.” At the same time, a man [now known to be SO #1] stated, “Hey [the Complainant’s first name], we’re going to close your door, okay. We’re going to close your door. Okay, come back over to this side. We’re not going to do anything else, okay.”
At 10:30 p.m., Officer #1 stated, “Don’t do that [the Complainant’s first name],” and then added, “The male is falling, he is falling, he’s falling. He just fell.”
The Complainant fell from the balcony. He landed on his back.
Officer #1 ran to the Complainant and told him to stay still. Another TPS officer also attended and handcuffed the Complainant in front of his body.
At 10:33 p.m., an ambulance arrived in the parking lot and more paramedics attended to the Complainant. The Complainant was placed onto a stretcher and taken to the ambulance.
BWC Footage – the WO
On October 25, 2022, at 7:15 p.m., the WO was in the hallway of the apartment building near the Complainant’s apartment, with her partner, Mobile Crisis Intervention Team (MCIT) Nurse, CW #2, and two TPS officers [now known to be Officer #2 and Officer #3]. Officer #3 knocked on the door to the apartment, announced it was the police and asked if the occupant [now known to be the Complainant] would come to the door.
Officer #2 had a set of keys and tried several of the keys in the apartment door lock, but did not open the door. Officer #3 held the door from the outside with a rope looped around the door handle.
Both the WO and CW #2 introduced themselves to the Complainant through the door and attempted to speak with him. The Complainant made a series of inaudible utterances.
At 7:23 p.m., the WO advised that the Complainant was on the balcony, repeated that he said he was going to die tonight, and indicated that he was seen stomping. The WO told the Complainant he was not in any trouble and that all they wanted to do was to make sure he was alright. The WO spoke to the Complainant and tried to get him to come to the door.
At 7:34 p.m., CW #2 and Officer #2 went to the apartment immediately next door.
At 7:36 p.m., the WO and Officer #3 worked on determining the layout of the apartment. The WO went to the apartment next-door and observed CW #2 on the balcony. The Complainant was on his own balcony, and CW #2 was attempting to speak with him. The WO also entered the neighbour’s apartment and took a position on the balcony. The WO continued to try and engage the Complainant in conversation. The Complainant’s utterances were largely incoherent.
At 7:48 p.m., the Complainant told the WO she was going to die, then continued to talk and asked why someone was eating her leg.
At 8:08 p.m., the WO introduced the Complainant to an ETF police officer who began to speak to him. The WO entered the apartment where CW #2 spoke to other ETF police officers. The WO and CW #2 briefed the ETF police officers that the Complainant was not suicidal and did not say he wanted to jump, but believed other people wanted to get him and spoke about characters from “The Walking Dead” TV series.
At 8:11 p.m., the audio was discontinued on the footage.
At 8:19 p.m., the video ended with the WO still in the next-door apartment with CW #2.
At 10:34 p.m., the video continued with the WO in the parking lot of the apartment building with an ambulance parked nearby. CW #2, tactical paramedics, and regular paramedics tended to the Complainant on the ground. The Complainant was conscious, and asked continually whether he had fallen from the balcony and what had happened.
At 10:38 p.m., paramedics placed the Complainant on a stretcher, which was taken towards the ambulance.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between October 29, 2022, and December 16, 2022:- Policy - Persons in Crisis;
- Policy - MCIT;
- Policy - ETF;
- Event Details Report;
- Notes-the WO;
- BWC footage - Officer #1;
- BWC footage - the WO;
- Communications recordings;
- ETF negotiations audio recordings;
- Training material - Negotiating with Persons in Crisis Procedure; and
- General Occurrence Report.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and one of the two subject officials, SO #1, and BWC footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, SO #2 declined an interview with the SIU and to authorize the release of his notes.
In the evening of October 25, 2022, TPS officers were dispatched to a high-rise apartment building in the area of Dufferin Street and King Street West, Toronto. CW #3 had contacted police to report a disturbance involving the Complainant. The Complainant was screaming and throwing things from his balcony on the fifth-floor.
The Complainant was in the midst of a psychotic episode at the time, and believed himself to be in a fictional TV series.
Part of the TPS response involved the deployment of a MCIT unit. The unit consisted of CW #2 – a registered nurse and mental health professional – and the WO. Together with other uniformed officers, the pair arrived at the front door of the Complainant’s apartment at about 7:15 p.m. Over the course of the next 45 minutes or so, the team attempted to communicate with the Complainant through the closed front door of the apartment and an adjacent balcony, as the Complainant entered and exited his balcony. The MCIT unit quickly deduced that the Complainant had become detached from reality. CW #2 tried to “ground” the Complainant, but to no effect. As the MCIT were making no inroads, and the Complainant had started talking about dying, they decided that the ETF should take the lead in negotiations.
Shortly after 8:00 p.m., a team of ETF officers, including SO #1 and SO #2, arrived at the apartment, were briefed by the MCIT, and took carriage of the situation. SO #2, a trained negotiator, attempted to establish dialogue with the Complainant from the adjacent balcony. He assured the Complainant that the police were there to help him and invited him to meet with police outside his apartment. The Complainant was mostly unintelligible in his responses. Taunts and jeers directed at the Complainant from a crowd of onlookers proved distracting and did not assist in the officer’s efforts.
As SO #2 attempted to speak with the Complainant, SO #1 concerned himself with what other strategies and tactics might become necessary. He spoke with a family member by phone on several occasions to gain whatever information he could that might prove helpful, but was cautious about involving them directly in the negotiations for fear that introducing a family member might trigger rash or impulsive behaviour. The officer also made plans to arrange for ETF officers to rappel to the fifth-floor apartment balcony, should their immediate intervention become necessary, and had paramedics staged nearby. A call was placed to a forensic psychiatrist to seek advice.
The negotiations wore on, the Complainant grew increasingly agitated with the onlookers below, and SO #1’s concern with the Complainant’s safety heightened. The officer decided to try drawing the Complainant into the apartment by having SO #2 speak to him through the front door. The time was about 10:15 p.m. About five minutes later, when it appeared that the Complainant could not hear SO #2, the front door was opened to facilitate communication. The officer having stepped just past the threshold of the door, the tactic momentarily seemed a good one. The Complainant initially appeared to engage with the officer, but soon became frightful and climbed over the balcony railing. SO #2 quickly withdrew from the apartment and closed the door.
Within moments, with SO #1 imploring him to return to safety from the adjacent balcony, the Complainant moved across the outside ledge of the balcony, attempted to climb down to a balcony below, and fell to the ground.
The Complainant was taken from the scene to hospital in ambulance and diagnosed with multiple fractures and a collapsed lung.
In the evening of October 25, 2022, TPS officers were dispatched to a high-rise apartment building in the area of Dufferin Street and King Street West, Toronto. CW #3 had contacted police to report a disturbance involving the Complainant. The Complainant was screaming and throwing things from his balcony on the fifth-floor.
The Complainant was in the midst of a psychotic episode at the time, and believed himself to be in a fictional TV series.
Part of the TPS response involved the deployment of a MCIT unit. The unit consisted of CW #2 – a registered nurse and mental health professional – and the WO. Together with other uniformed officers, the pair arrived at the front door of the Complainant’s apartment at about 7:15 p.m. Over the course of the next 45 minutes or so, the team attempted to communicate with the Complainant through the closed front door of the apartment and an adjacent balcony, as the Complainant entered and exited his balcony. The MCIT unit quickly deduced that the Complainant had become detached from reality. CW #2 tried to “ground” the Complainant, but to no effect. As the MCIT were making no inroads, and the Complainant had started talking about dying, they decided that the ETF should take the lead in negotiations.
Shortly after 8:00 p.m., a team of ETF officers, including SO #1 and SO #2, arrived at the apartment, were briefed by the MCIT, and took carriage of the situation. SO #2, a trained negotiator, attempted to establish dialogue with the Complainant from the adjacent balcony. He assured the Complainant that the police were there to help him and invited him to meet with police outside his apartment. The Complainant was mostly unintelligible in his responses. Taunts and jeers directed at the Complainant from a crowd of onlookers proved distracting and did not assist in the officer’s efforts.
As SO #2 attempted to speak with the Complainant, SO #1 concerned himself with what other strategies and tactics might become necessary. He spoke with a family member by phone on several occasions to gain whatever information he could that might prove helpful, but was cautious about involving them directly in the negotiations for fear that introducing a family member might trigger rash or impulsive behaviour. The officer also made plans to arrange for ETF officers to rappel to the fifth-floor apartment balcony, should their immediate intervention become necessary, and had paramedics staged nearby. A call was placed to a forensic psychiatrist to seek advice.
The negotiations wore on, the Complainant grew increasingly agitated with the onlookers below, and SO #1’s concern with the Complainant’s safety heightened. The officer decided to try drawing the Complainant into the apartment by having SO #2 speak to him through the front door. The time was about 10:15 p.m. About five minutes later, when it appeared that the Complainant could not hear SO #2, the front door was opened to facilitate communication. The officer having stepped just past the threshold of the door, the tactic momentarily seemed a good one. The Complainant initially appeared to engage with the officer, but soon became frightful and climbed over the balcony railing. SO #2 quickly withdrew from the apartment and closed the door.
Within moments, with SO #1 imploring him to return to safety from the adjacent balcony, the Complainant moved across the outside ledge of the balcony, attempted to climb down to a balcony below, and fell to the ground.
The Complainant was taken from the scene to hospital in ambulance and diagnosed with multiple fractures and a collapsed lung.
Relevant Legislation
Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm
219 (1) Every one is criminally negligent who
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
Analysis and Director's Decision
The Complainant was seriously injured in a fall from his apartment balcony in Toronto on October 25, 2022. As TPS had been called to the building to deal with the Complainant and were present around his balcony at the time of the fall, the SIU was notified of the incident and initiated an investigation. Two members of the TPS ETF – SO #1 and SO #2 – were identified as the subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official 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. It 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 question is whether there was a want of care on the part of SO #1 or SO #2, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s fall. In my view, there was not.
The subject officials were engaged in the discharge of their duties when they responded to the scene to assist with the Complainant. A police officer’s foremost obligation is the protection and preservation of life. Appreciating that the Complainant was of unsound mind at the time and in a position of peril on his balcony, the officers were duty-bound to do what they reasonably could to safely resolve the situation.
It is also apparent that SO #1 and SO #2 comported themselves with due care and regard for the health and well-being of the Complainant throughout their engagement. The ETF was only brought in, reasonably, in my view, when the MCIT unit had tried but been unable to make progress in dealing with the Complainant and he started talking about death. Thereafter, there is nothing apparent in the record to suggest that the subject officials did anything other than attempt to de-escalate the situation. They both had occasion to talk to the Complainant in re-assuring terms, sought advice from a forensic psychiatrist, and consulted with a family member of the Complainant’s to explore avenues to get a better handle on the situation. It is true that the decision to open the door to the apartment seems to have frightened the Complainant and served as the catalyst for his decision to climb over the balcony railing. However, by that time, the officers had failed to make any headway with the Complainant after more than two hours and he seemed to be growing increasingly restless on the balcony. They were entitled, in the circumstances, to try a different tact, and the one they chose was not reckless on its face. As soon as it became apparent that the move was counterproductive, SO #2 immediately withdrew from the apartment and closed the door.
For the foregoing reasons, there are no reasonable grounds to believe that either subject official transgressed the limits of care prescribed by the criminal law in their dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: February 22, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 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 question is whether there was a want of care on the part of SO #1 or SO #2, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s fall. In my view, there was not.
The subject officials were engaged in the discharge of their duties when they responded to the scene to assist with the Complainant. A police officer’s foremost obligation is the protection and preservation of life. Appreciating that the Complainant was of unsound mind at the time and in a position of peril on his balcony, the officers were duty-bound to do what they reasonably could to safely resolve the situation.
It is also apparent that SO #1 and SO #2 comported themselves with due care and regard for the health and well-being of the Complainant throughout their engagement. The ETF was only brought in, reasonably, in my view, when the MCIT unit had tried but been unable to make progress in dealing with the Complainant and he started talking about death. Thereafter, there is nothing apparent in the record to suggest that the subject officials did anything other than attempt to de-escalate the situation. They both had occasion to talk to the Complainant in re-assuring terms, sought advice from a forensic psychiatrist, and consulted with a family member of the Complainant’s to explore avenues to get a better handle on the situation. It is true that the decision to open the door to the apartment seems to have frightened the Complainant and served as the catalyst for his decision to climb over the balcony railing. However, by that time, the officers had failed to make any headway with the Complainant after more than two hours and he seemed to be growing increasingly restless on the balcony. They were entitled, in the circumstances, to try a different tact, and the one they chose was not reckless on its face. As soon as it became apparent that the move was counterproductive, SO #2 immediately withdrew from the apartment and closed the door.
For the foregoing reasons, there are no reasonable grounds to believe that either subject official transgressed the limits of care prescribed by the criminal law in their dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: February 22, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
- 2) TPS communications initially provided an incorrect address during the broadcast. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.