SIU Director’s Report - Case # 23-OOD-074
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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 death of a 37-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 death of a 37-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On March 7, 2023, at 0932, a regional supervising coroner provided the SIU with the following information. On March 3, 2023, at about 6:00 a.m., the Durham Regional Police Service (DRPS) attended a building on Simcoe Street, Oshawa, to conduct a wellbeing check. The family of the Complainant were seeking his apprehension under the Mental Health Act. The attending officers met with the Complainant but did not apprehend him. About an hour after the officers left, the Complainant jumped to his death.
The Team
Date and time team dispatched: 03/07/2023 at 11:54 a.m.Date and time SIU arrived on scene: 03/07/2023 at 1:15 p.m.
Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
37-year-old male; deceasedCivilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Not interviewed
The civilian witnesses were interviewed between March 9, 2023, and March 15, 2023.
Subject Officials (SO)
SO #1 Declined interview, as is the subject official’s legal right; notes received and reviewed SO #2 Declined interview and to provide notes, as is the subject official’s legal right
Witness Official (WO)
WO #1 Interviewed The witness official was interviewed on March 10, 2023.
Evidence
The Scene
The events in question transpired in and around an apartment on Simcoe Street North, Oshawa.Due to the historical nature of the call, the SIU forensic investigator did not attend the scene.
Video/Audio/Photographic Evidence [2]
911 Calls
Call #1On March 3, 2023, starting at about 3:59:27 a.m., CW #1 called police to request their attendance at his residence because he had an unwanted person, the Complainant, at his front door. CW #1 explained that, on March 2, 2023, his doorbell camera captured the Complainant making a threatening statement and the Complainant attempting to gain entry to CW #1’s residence. CW #1 called the non-emergency number and was told the police had picked up the Complainant. CW #1 was directed to call 911 if the Complainant returned to the residence. The Complainant needed to be examined at hospital due to a current mental health crisis. He had made threats to harm himself in the past. CW #1 did not believe the Complainant required an ambulance. The Complainant did not behave violently. CW #1 provided further information about the Complainant’s behaviour and his attempts to enter the residence. It was then reported that the Complainant had left the residence on foot. CW #1 was informed by the 911 operator that the police were looking for the Complainant, and that he was to call back if the Complainant returned.
Call #2
On March 3, 2023, starting at about 5:42:24 a.m., CW #3 called 911 to report a person [now known to be the Complainant] had come through a window on Simcoe Street North and to request an ambulance. The Complainant had no pulse. The 911 operator guided him in the administration of cardiopulmonary resuscitation (CPR), and instructed CW #3 to continue the compressions until help arrived.
Radio Transmissions
On March 3, 2023, starting at about 4:15:21 a.m., the dispatcher alerted police of a call to attend CW #1’s residence following a report from CW #1 that the Complainant had been at his door in crisis and needed to be involuntarily taken to hospital and examined. Information was provided about the Complainant’s behaviour. It was noted that the police had attended at the address the day before, on which occasion the police had taken him home. The Complainant had then reportedly left the residence. CW #1 was asking that police attend his residence and that the Complainant be checked.Starting at about 5:43:43 a.m., there was a request for an ambulance in relation to a man who had fallen through a window at an address on Simcoe Street North. CW #3 reported the man had no pulse and he was performing CPR until the ambulance arrived.
Starting at about 6:03:01 a.m., the Complainant was pronounced deceased at 6:00 a.m. by paramedics.
Video Footage – Building on Simcoe Street North
On March 15, 2023, the SIU forensic investigator obtained video footage from the building’s security camera system.Lobby
On March 3, 2023, starting at about 3:28:25 a.m., the Complainant was captured walking from the elevator bank, and then exiting through the front foyer out the front entrance of the building.
Starting at about 4:28:27 a.m., the Complainant entered the front entrance foyer and walked to the elevator.
Starting at about 4:42:44 a.m., two uniformed police officers [now known to be SO #2 and SO #1] entered the front entrance foyer and were met by another uniformed police officer [now known to be the WO]. They headed to the elevator.
Starting at about 4:51:45 a.m., the three police officers emerged from the elevator and exited the building.
Front Entrance
On March 3, 2023, starting at about one hour, 28 minutes and 36 seconds into the video’s run time, the Complainant entered the foyer and walked into the lobby.
Between 1:42:52 and 1:45:01 hours of the video’s run time, SO #2 and SO #1 entered the foyer and appeared to be dialing on the intercom. The WO entered the foyer and joined them. The three police officers gained entry to the lobby.
Starting at about 1:52:06 hours into the video’s run time, the three police officers exited the building.
Elevator 1
On March 3, 2023, between 3:27:45 a.m. and 3:28:25 a.m., the Complainant entered the elevator. The Complainant looked up at the camera once and stood with his head bowed. The Complainant exited the elevator.
Between 4:28:59 a.m. and 4:29:31 a.m., the Complainant entered the elevator while removing his hoodie from his head. The Complainant exited the elevator.
Starting at about 4:45:07 a.m., SO #2, SO #1 and the WO entered the elevator and exited on the Complainant’s floor.
Starting at about 4:51:03 a.m., SO #2, SO #1 and the WO entered the elevator and exited at the lobby.
Corridor
On March 3, 2023, between 3:26:53 and 4:29:31 a.m., the Complainant exited his apartment and walked to the elevator. The Complainant entered the elevator. The Complainant returned.
Starting at about 4:45:49 a.m., SO #2, SO #1 and the WO exited the elevator and walked to the Complainant’s apartment. They knocked on the door and the three police officers stood in the hallway.
Between 4:48:51 a.m. and 4:49:46 a.m., SO #2 and SO #1 entered the apartment. The police officers subsequently exited the apartment, walked to the elevator, and left.
Between 5:13:42 a.m. and 5:16:42 a.m., the Complainant exited his apartment and tried to open the door of the apartment across from his. He ran the length of the corridor and back to his apartment three times. The Complainant tried to open the door to his apartment, turned, and crouched facing the window.
Starting at about 5:33:23 a.m., CW #5 walked to the elevator. CW #5 filmed the Complainant with his cellular phone.
Between 5:35:41 a.m. and 5:40:49 a.m., the Complainant was captured behaving erratically moving within the corridor.
East
On March 3, 2023, starting at about 5:41:09 a.m., the Complainant ran down the corridor and jumped head-first out the window.
Cell Phone Video Footage from CW #5
On March 3, 2023, CW #5 exited his apartment and walked to the elevators. The Complainant was captured behaving erratically in front of a window at the end of the hall. He was breathing heavily, making utterances, and screaming.Doorbell Camera Footage
On March 2, 2023, starting at about 12:56 p.m., the Complainant walked up to a house, attempted to open the front door, and rang the doorbell. He asked to be let in and made threats. The Complainant then turned, left the porch, and walked to the end of the walkway.Between 4:21 a.m. and 4:23 a.m., the Complainant stood at the front door, tried to open the front door. The Complainant put headphones on. The Complainant rang the doorbell and attempted to open the front door.
Between 4:27 a.m. and 4:30 a.m., the Complainant moved around the porch and spoke. The Complainant attempted to open the door, rang the bell, and brushed his feet back seven times.
Starting at about 4:33 a.m., two fully marked police Sport Utility Vehicles parked on the street. Three uniformed police officers and CW #1 stood in the driveway.
Video Footage from Business on Simcoe Street North
On March 3, 2023, starting at about 5:41:17 a.m., shards of glass were captured falling from above.Starting at about 5:41:18 a.m., the Complainant fell from above. He landed on his left side and rolled onto his back.
Between 5:41:59 a.m. and 5:44:11 a.m., CW #3 approached the Complainant. CW #3 leaned over, checked the Complainant’s left carotid pulse, and then knelt beside the Complainant.
Body-worn Camera (BWC) Footage
The following is a summary of footage received from multiple BWCs.Starting at about 4:27:22 a.m., March 3, 2023, a police officer exited a police vehicle and walked towards CW #1’s residence with two uniformed police officers who exited their own police vehicles. CW #1 stood on the front porch and greeted the police officers. CW #1 asked the police officers if they had seen the Complainant in the area.
On March 3, 2023, between about 5:51:01 a.m. and 5:51:29 a.m., a police officer exited a police vehicle on Simcoe Street North. The Complainant was resting on his back. A uniformed DRPS police officer performed CPR.
Starting at about 5:56:33 a.m., a police officer attended the hallway with two uniformed police officers. The window at the end of the hall had a large hole in it.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the DRPS between March 9, 2023, and April 24, 2023:- Scenes of Crime Officer photographs;
- The WO - Police Witness Report;
- Officer Involvement;
- Detailed Call Summary;
- General Occurrence Information;
- Directive-Persons in Crisis and Attempted Suicide;
- BWC footage;
- Duty Book Notes - the WO;
- Video footage from apartments on Simcoe Street North;
- Communications recordings;
- Statement of CW #4;
- Video footage from DRPS; and
- Notes-SO #1.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources between March 9, 2023, and March 16, 2023:- Ambulance Call Reports from Emergency Medical Services (EMS);
- Incident Reports from EMS;
- Mental Health Act Form completed by CW #1;
- Video footage from CW #5;
- Video footage from CW #1; and
- YouTube screen recording (March 9, 2023).
Incident Narrative
The evidence collected by the SIU, including video footage that captured the incident in parts, gives rise to the following scenario. As was their legal right, the subject officials chose not to interview with the SIU. SO #1 did authorize the release of his notes.
Starting at about 4:00 a.m. of March 3, 2023, SO #1 and SO #2, and the WO, were dispatched to a residence in Oshawa. CW #1 had called police to report that the Complainant was at their door in mental health crisis and required medical examination at hospital.
SO #1, SO #2 and the WO arrived at the residence at about 4:30 a.m. They met and spoke with CW #1, who told them more about the Complainant and his mental health challenges. They learned that the day before, the Complainant had also attended at their front door, behaving oddly and asking to be let in. He had even made threats before departing. The officers searched the area for the Complainant with negative results and then attended at his home address on Simcoe Street North.
Arriving to find the apartment door open, SO #1 and SO #2 entered the residence when their repeated door-knocks went unanswered. They located the Complainant in the bathroom. He was running a hot bath. SO #1 explained that they were there because concern had been expressed for his wellbeing. The Complainant told the officers he was fine and then closed the bathroom door, indicating he did not wish to speak with them. Deciding they had no grounds to apprehend the Complainant under the Mental Health Act, the officers left. The time was about 5:00 a.m.
At about 5:15 a.m., the Complainant exited his apartment. He was agitated and acting oddly. He ran the length of the corridor a number of times, and attempted to open the door of a nearby apartment. Starting at about 5:40 a.m., he ran towards a window at the end of the corridor, smashed through it, and fell to the ground below.
A motorist observed the Complainant on the ground, contacted 911 and performed CPR while waiting for first responders to arrive.
The Complainant was pronounced deceased at about 6:00 a.m.
Starting at about 4:00 a.m. of March 3, 2023, SO #1 and SO #2, and the WO, were dispatched to a residence in Oshawa. CW #1 had called police to report that the Complainant was at their door in mental health crisis and required medical examination at hospital.
SO #1, SO #2 and the WO arrived at the residence at about 4:30 a.m. They met and spoke with CW #1, who told them more about the Complainant and his mental health challenges. They learned that the day before, the Complainant had also attended at their front door, behaving oddly and asking to be let in. He had even made threats before departing. The officers searched the area for the Complainant with negative results and then attended at his home address on Simcoe Street North.
Arriving to find the apartment door open, SO #1 and SO #2 entered the residence when their repeated door-knocks went unanswered. They located the Complainant in the bathroom. He was running a hot bath. SO #1 explained that they were there because concern had been expressed for his wellbeing. The Complainant told the officers he was fine and then closed the bathroom door, indicating he did not wish to speak with them. Deciding they had no grounds to apprehend the Complainant under the Mental Health Act, the officers left. The time was about 5:00 a.m.
At about 5:15 a.m., the Complainant exited his apartment. He was agitated and acting oddly. He ran the length of the corridor a number of times, and attempted to open the door of a nearby apartment. Starting at about 5:40 a.m., he ran towards a window at the end of the corridor, smashed through it, and fell to the ground below.
A motorist observed the Complainant on the ground, contacted 911 and performed CPR while waiting for first responders to arrive.
The Complainant was pronounced deceased at about 6:00 a.m.
Relevant Legislation
Section 220, Criminal Code -- Criminal Negligence Causing Death
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.
Section 17, Mental Health Act -- Action by Police Officer
17 Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person,
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or(c) has shown or is showing a lack of competence to care for himself or herself,
and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) serious physical impairment of the person,
and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.
Analysis and Director's Decision
The Complainant fell to his death in Oshawa from a building on March 3, 2023. As he had been visited by two DRPS officers in his apartment less than an hour before his fall, the SIU initiated an investigation. The officers – 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 death.
The 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 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 and SO #2, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s death. In my view, there was not.
The only live issue as far as the officers’ potential criminal liability is concerned is whether they ought to have apprehended the Complainant under section 17 of the Mental Health Act when they encountered him in his apartment. That section empowers officers under certain conditions to take persons into custody for examination at hospital who represent a risk to themselves or others because of mental disorder. It might well have been that the requisite conditions were present at the time to arrest the Complainant given what the officers had been told of his status and behaviour. Had that occurred, the Complainant would certainly not have leapt to his death as he did, when he did. That said, I am unable to reasonably conclude that the determination made by SO #1 and SO #2, namely, that they lacked such grounds, was so off base as to amount to a reckless and wanton disregard for his life or safety. He told the officers he was fine, and was in his own home, apparently uninjured and in the middle of a mundane activity – preparing a bath.
In the result, as there are no reasonable grounds to believe that SO #1 and SO #2 transgressed the limits of care prescribed by the criminal law in their engagement with the Complainant, there is no basis for proceeding with criminal charges. The file is closed.
Date: July 4, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The 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 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 and SO #2, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s death. In my view, there was not.
The only live issue as far as the officers’ potential criminal liability is concerned is whether they ought to have apprehended the Complainant under section 17 of the Mental Health Act when they encountered him in his apartment. That section empowers officers under certain conditions to take persons into custody for examination at hospital who represent a risk to themselves or others because of mental disorder. It might well have been that the requisite conditions were present at the time to arrest the Complainant given what the officers had been told of his status and behaviour. Had that occurred, the Complainant would certainly not have leapt to his death as he did, when he did. That said, I am unable to reasonably conclude that the determination made by SO #1 and SO #2, namely, that they lacked such grounds, was so off base as to amount to a reckless and wanton disregard for his life or safety. He told the officers he was fine, and was in his own home, apparently uninjured and in the middle of a mundane activity – preparing a bath.
In the result, as there are no reasonable grounds to believe that SO #1 and SO #2 transgressed the limits of care prescribed by the criminal law in their engagement with the Complainant, there is no basis for proceeding with criminal charges. The file is closed.
Date: July 4, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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]
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.