SIU Director’s Report - Case # 23-OCI-377
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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 33-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 33-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On September 12, 2023, at 11:21 p.m., the Niagara Regional Police Service (NRPS) contacted the SIU with the following information.On September 12, 2023, at approximately 9:18 p.m., NRPS officers responded to a residence in St. Catharines for a ‘suspicious person’ call. A male (now known as the Complainant) was banging on the caller’s balcony door. Police officers arrived at 9:23 p.m. and located the Complainant hanging from the edge of the roof of the five-storey building. After engaging in some brief conversation with the Complainant, he let go of the edge and fell to the ground below. Emergency Medical Services (EMS) responded and transported the Complainant to St. Catherines General Hospital where he was assessed and subsequently transported to the Hamilton General Hospital Trauma Centre. The Complainant was diagnosed with multiple fractures throughout his body.
The Team
Date and time team dispatched: 09/12/2023 at 11:59 p.m.Date and time SIU arrived on scene: 09/13/2023 at 12:18 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
33-year-old male; not interviewed; [2] medical records obtained and reviewedCivilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
The civilian witnesses were interviewed between September 13 and 28, 2023.
Subject Official (SO)
SO Declined interview, as is the subject official’s legal right; notes received and reviewed Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
The witness officials were interviewed between September 28, 2023, and October 23, 2023.
Evidence
The Scene
The events in question transpired on and around a residential apartment building in St. Catharines.
At 1:45 a.m., September 13, 2023, a SIU forensic investigator arrived at the scene and met with NRPS officer, WO #3, who had been assigned to guard the scene at ground level. WO #3 advised that the access to the rooftop from inside the building on the fourth-floor was being guarded. The SIU forensic investigator made the following observations prior to attending the rooftop.
The apartment building was a four-storey building. At the southeast corner of the building were an area of staining suspected to be blood, clothing, and a small hand tool.
The doorway to the roof area had been secured prior to this incident and did not appear forced. On the rooftop, the outer edge of the building was checked and an area of metal flashing at the edge on the side of the building was found to be disturbed by way of linear markings in the dirt and dew. The entire perimeter of the rooftop was examined, and no other areas showed any similar disturbance.
At 2:20 a.m., the SIU forensic investigator commenced photography of the scene starting with the rooftop area and finishing at ground level.
Video/Audio/Photographic Evidence [3]
Police Communications Recordings
Computer-assisted Dispatch (CAD) InformationOn September 12, 2023, starting at about 9:15 p.m., CW #2 contacted police and reported a man [now known to be the Complainant] banging on balcony doors and then climbing up onto the roof.
Starting at about 9:24 p.m., the SO reported the Complainant sitting on the roof and hanging off the edge. He asked for the fire department and other officers. The SO was talking to the Complainant. He was suicidal and hanging off the edge of the building. The officer asked if anyone on the air was negotiator-trained.
Starting at about 9:27 p.m., the SO asked that officers approaching the scene refrain from using their lights and sirens.
Starting at about 9:33 p.m., the SO was going to talk to the fire department.
Starting at about 9:34 p.m., WO #5 said that the Complainant was about five stories up and completely hanging over the edge.
Starting at about 9:47 p.m., the Complainant was said to be on the southeast corner of the building.
Starting at about 9:54 p.m., the SO reported that the Complainant was still hanging but becoming a little more receptive to the officers. He noted that water was being brought up to the Complainant, after which he indicated that the Complainant had fallen.
Starting at about 9:55 p.m., WO #3 indicated that EMS had moved in. WO #5 noted that the Complainant still had a pulse.
Starting at about 9:59 p.m., the SO reported the Complainant still had a pulse.
Starting at about 10:00 p.m., WO #5 was said to be following the Complainant in the ambulance to the hospital.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the NRPS between September 15, 2023, and November 30, 2023:- Information from CAD;
- Communications recordings;
- Civilian witness list;
- Involved officers list;
- General Occurrence and Supplementary Occurrence Reports;
- Notes – the SO;
- Notes – WO #1;
- Notes – WO #2;
- Notes – WO #3;
- Notes – WO #4;
- Notes – WO #5;
- Notes – WO #6;
- Notes – WO #7;
- Notes – WO #8;
- General Order - Mentally Ill Persons; and
- General Order - Crisis Negotiators.
Materials Obtained from Other Sources
The SIU obtained the following record from other sources:- The Complainant’s medical records, received between September 25 and 27, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with civilian and police eyewitnesses, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU. He did authorize the release of his notes.
In the evening of September 12, 2023, NRPS officers were called to an apartment building in St. Catharines. A tenant had reported a disturbance involving a male banging on balcony doors and climbing onto the roof of the four-storey building. Officers, including the SO, began arriving on scene at about 9:20 p.m. The fire department and paramedic services were also dispatched.
The male was the Complainant. The Complainant was angry and agitated at the time. Over the next half-hour or so, he would variously hang from the edge of the roof at the southeast corner of the building in precarious positions. He told the officers he was working up the nerve to jump and warned them not to come onto the roof
At about 9:54 p.m., while again hanging from the edge of the building by his hands, the Complainant attempted to lift himself up as he had done previously. On this occasion, however, the Complainant lost his grip and fell to the pavement below. Officers, paramedics and firefighters rushed to render aid.
The Complainant suffered multiple fractures and a brain injury in the fall.
In the evening of September 12, 2023, NRPS officers were called to an apartment building in St. Catharines. A tenant had reported a disturbance involving a male banging on balcony doors and climbing onto the roof of the four-storey building. Officers, including the SO, began arriving on scene at about 9:20 p.m. The fire department and paramedic services were also dispatched.
The male was the Complainant. The Complainant was angry and agitated at the time. Over the next half-hour or so, he would variously hang from the edge of the roof at the southeast corner of the building in precarious positions. He told the officers he was working up the nerve to jump and warned them not to come onto the roof
.
The SO took a lead role in communicating with the Complainant. He told the Complainant the police were concerned about his safety and asked what they could do to have him safely come off the roof. The officer was joined by the NRPS Mobile Crisis Rapid Response Team (MCRRT) at about 9:30 p.m., which included a mental health counsellor – CW #4. CW #4 told the Complainant she was not a police officer and encouraged him to move to a position of safety. The Complainant was becoming more receptive, but still refused to distance himself from the edge of the building.
The SO took a lead role in communicating with the Complainant. He told the Complainant the police were concerned about his safety and asked what they could do to have him safely come off the roof. The officer was joined by the NRPS Mobile Crisis Rapid Response Team (MCRRT) at about 9:30 p.m., which included a mental health counsellor – CW #4. CW #4 told the Complainant she was not a police officer and encouraged him to move to a position of safety. The Complainant was becoming more receptive, but still refused to distance himself from the edge of the building.
At about 9:54 p.m., while again hanging from the edge of the building by his hands, the Complainant attempted to lift himself up as he had done previously. On this occasion, however, the Complainant lost his grip and fell to the pavement below. Officers, paramedics and firefighters rushed to render aid.
The Complainant suffered multiple fractures and a brain injury in the fall.
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.
221 Every person who by criminal negligence causes bodily harm to another person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or(b) an offence punishable on summary conviction.
Analysis and Director's Decision
The Complainant was seriously injured in a fall from a height in St. Catharines on September 12, 2023. As police officers were present and engaged with the Complainant at the time, the SIU was notified of the incident and initiated an investigation. The SO 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 fall and 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 the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s fall. In my view, there was not.
The SO was lawfully placed and engaged in the execution of his duties when he responded to the scene. As a peace officer, whose foremost responsibility is the protection and preservation of life, the officer was duty-bound to attend and do what he reasonably could to prevent harm coming to the Complainant.
I am also satisfied that the SO comported himself with due care and regard for the Complainant’s health and safety throughout their engagement. The officer was calm and reassuring in his communications with the Complainant. When the Complainant indicated he did not want to return to jail, the SO explained the police were not there to apprehend him. When the Complainant asked for water but warned against any officer attending on the roof, the SO arranged to have a bottle of water rolled to him on the roof from a distance. The Complainant was agreeable to that. Lastly, the SO was wise to defer to the MCRRT when they arrived on scene given their expertise in dealing with persons in mental health crisis. Regrettably, while the officer was not able to prevent the Complainant from falling, it was not from any want of trying on his part.
In the result, as there are no reasonable grounds to conclude that the SO transgressed the limits of care prescribed by the criminal law in his dealings with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: January 10, 2024
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) Unavailable due to his medical condition. [Back to text]
- 3) 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.