Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the death of a 56-year-old man on October 31, 2016 when he jumped from a Highway 401 overpass.

Notification of the SIU

On October 31, 2016, at 9:00 p.m., the Waterloo Regional Police Service (WRPS) notified the SIU of the Complainant’s death.

WRPS reported that WRPS officers were dispatched to Hespeler Road and Pinebush Road after they received a call from a transit operator about a man [later identified as the Complainant] trying to throw himself in front of a bus and who later jumped from an overpass on Hespeler Road and was pronounced dead.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 2

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, sketches and measurements.

Complainant

56-year-old male, deceased

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Interviewed

CW #10 Interviewed

CW #11 Interviewed

CW #12 Interviewed

CW #13 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed.

The Scene

The scene was located on the eastbound lanes of Highway 401 just below the Hespeler Road overpass. Hespeler Road, also known as Highway 24, travels north-south direction and crosses above Highway 401 on an overpass. Hespeler Road is connected to Highway 401 through ramps, as seen below.

A concrete barrier wall measuring approximately one metre high is located on each direction of the overpass of Hespeler Road when it travels over Highway 401. The distance between the top of the concrete barrier wall to the eastbound lane of Highway 401 below is approximately eight metres.

Below is a picture of the overpass taken from Highway 401.

Expert evidence

On Monday, November 1, 2016, a post-mortem examination of the Complainant was conducted. The pathologist provided the cause of death as blunt force trauma of the torso.

Video/audio/photographic evidence

The SIU received Closed Circuit Television (CCTV) recordings from Grand River Transit (GRT), and a video taken by CW #13.

Grand River Transit CCTV recordings

The SIU investigators obtained and reviewed the CCTV recordings from GRT. The GRT CCTV recordings depicted the following:

• At 8:02:48 p.m., the Complainant stood on the side of the northbound curb lane of Hespeler Road. He dove in front of the GRT bus as the bus approached him. The GRT bus stopped. The Complainant stood up and walked towards the east side walk.

Communications recordings

Summary of 911 calls

The SIU investigators obtained and reviewed the audio communication recordings and the event chronology report from WRPS. The audio communication recordings and the event chronology report did not have any times but depicted the following:

• The WRPS 911 operator received several calls from witnesses indicating that they have seen a man [later identified as the Complainant] trying to jump in front of moving vehicles on Hespeler Road, and
• several other witnesses also confirmed with the WRPS 911 operator that the Complainant was attempting to climb the concrete overpass barrier wall and were advised that the police officers were on their way

The event chronology report obtained from WRPS corroborated the communication audio recordings and did not indicate any witnesses witnessing the Complainant jump from the Hespeler Road overpass bridge.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from Ontario Provincial Police (OPP) Cambridge (Highway Safety Division) and WRPS

• Communications recordings;
• Computer Aided Dispatch (CAD);
• Disclosure Memos;
• Notes of WO #1, WO #2 and WO #3;
• Occurrences (Multiple re : the Complainant); and
• WRPS Policy and Procedure - Mentally Ill, Developmentally Disabled, and Emotionally Disturb Persons.

During the evening hours of October 31, 2016, the Complainant was on Hespeler Road, near the Highway 401 overpass in Waterloo. He was running in front of northbound traffic, including cars, a transport truck and a GRT bus. All the drivers were able to swerve to avoid hitting the Complainant.

The Complainant then climbed onto the Highway 401 overpass. WRPS officers, including the SO, were dispatched to the scene. The Complainant was found sitting on top of the overpass, facing out over the highway below. Despite the SO’s efforts to communicate with the Complainant, he ignored the officer and jumped. The Complainant landed on the pavement approximately 8 metres below, and died from his injuries.

Section 215(1) and (2), Criminal Code - Duties Tending to Preservation of Life

215 (1) Every one is under a legal duty

1. as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
2. to provide necessaries of life to their spouse or common-law partner; and
3. to provide necessaries of life to a person under his charge if that person
   1. is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
   2. is unable to provide himself with necessaries of life.

(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if

1. with respect to a duty imposed by paragraph (1)(a) or (b),
   1. the person to whom the duty is owed is in destitute or necessitous circumstances, or
   2. the failure to perform the duty endangers the life of the person to whom the duty is owed, or causes or is likely to cause the health of that person to be endangered permanently; or
2. with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.

Sections 219-20, Criminal Code - Criminal Negligence

219 (1) Every one is criminally negligent who

1. in doing anything, or
2. 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.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

1. 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
2. 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,

1. has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;
2. 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
3. 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,

4. serious bodily harm to the person;
5. serious bodily harm to another person; or
6. 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.

On October 31, 2016, shortly after 8:00 p.m., the Complainant jumped to his death from the overpass bridge of Hespeler Road onto Highway 401 in Waterloo. The Complainant fell eight metres to the roadway below and landed on his head. Although attempts were made to resuscitate the Complainant, he died as a result of the blunt force trauma. As the SO was present on the overpass when the Complainant fell to his death (as was WO #2), the issue for me is whether there are reasonable grounds to believe that either officer is responsible in some manner for the Complainant’s death and should face criminal charges.

At the time of the Complainant’s death, he was clearly suffering from a mental illness. From the statements of the many civilian witnesses, coupled with the transit video from GRT, it is abundantly apparent that the Complainant was determined to commit suicide the evening of October 31. On multiple occasions that evening, the Complainant ran in front of cars travelling northbound on Hespeler Road, near the Highway 401 overpass. In each case, the car was able to swerve around him. The video from the GRT bus confirmed that the Complainant also dove in front of the bus.

Multiple civilian witnesses also described watching the Complainant walk onto the Highway 401 overpass and climb over the concrete barrier of the overpass bridge to stand on the ledge. He was also seen sitting on top of the barrier wall facing towards the eastbound lanes of Highway 401. All of this occurred before any police officers arrived.

The SO was the first police officer on scene. When he arrived, the Complainant was already sitting on the concrete barrier of the overpass bridge, facing the eastbound lanes of Highway 401. The SO did not want to alarm the Complainant, so he raised his hands up as he exited his cruiser. He then walked three metres towards the Complainant, and repeatedly told the Complainant, “Come on man, you don’t want to do that. Talk to me what’s going on.” Approximately one minute later, WO #2 arrived and also tried to talk to the Complainant but the Complainant did not respond. The SO asked the dispatcher to close the northbound lanes of Hespeler Road and the eastbound traffic ramp of Highway 401 at Hespeler Road. The SO then climbed over the overpass bridge railing near the ramp and saw the Complainant standing on the ledge under the overpass bridge while he held on to the concrete barrier wall. The eastbound and westbound lanes of Highway 401 were closed and there was no movement underneath the bridge. Suddenly, the Complainant let go of his hands and fell towards the eastbound lane of Highway 401, landing on his head. The SO immediately ran towards the Complainant. The Complainant lay on his back with no movement. The SO started Cardiopulmonary resuscitation (CPR), and eventually, the Complainant began to breathe. Paramedics arrived and the SO assisted the paramedics in loading the Complainant into an ambulance.

When WO #2 arrived, the SO and WO #3 were already on the scene, approximately 9.75 metres away from the Complainant.[1] The Complainant was sitting on top of a concrete barrier wall of the overpass bridge facing the eastbound lanes of Highway 401. When the SO told the Complainant, “Sir, we’re here to help you”, the Complainant did not respond and looked down on the eastbound lanes of Highway 401. WO #3 left to block the eastbound traffic on Highway 401. WO #2 stood approximately 9 metres away from the Complainant, and told him that the police officers were there to help him. The Complainant continued to stare at the eastbound lanes of the Highway 401 underneath him. The Complainant then turned towards WO #2’s direction and said something that WO #2 was not able to understand. WO #2 took a few steps towards the Complainant, and was approximately 6 metres away when the Complainant decided to move closer to the edge of the barrier wall. WO #2 told the Complainant that there was no rush and he would take a few steps back. The SO was standing approximately 4.5 metres away from him at the time. A few minutes later, the Complainant turned and hung against the concrete barrier wall with his arms holding the edge. WO #2 took a few steps towards the Complainant and tried to engage him in a conversation but the Complainant did not respond. Approximately two minutes later, the Complainant let go of his hands and fell onto the eastbound lane of Highway 401. The SO reached the Complainant first and began CPR.

The offences that have to be considered in this case are criminal negligence cause death and/or failure to provide the necessities of life. Criminal negligence is defined in the Criminal Code as “…doing anything or omitting to do anything that it is his duty to do, and shows wanton or reckless disregard for the lives or safety of other persons.” The duty required is a legal duty, either under statute or common law[2]. Similarly, under the Criminal Code, someone may have a legal duty to provide the necessaries of life to a person under his charge if that person “is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and is unable to provide himself with necessaries of life.” Both offences are offences of penal negligence and require, at the very minimum, conduct that amounts to a marked and substantial departure from the conduct of a reasonably prudent person in all the circumstances[3].

Starting first with the offence of failing to provide the necessaries of life, this provision would only apply if the Complainant was under the SO’s (or WO #2’s, for that matter) charge while he was on the overpass. I do not believe, however, that he was. The Complainant was not detained, as there were no warrants requiring his detention nor were there grounds for his arrest for an offence committed. Similarly, there was nothing that prevented the Complainant from removing himself from the situation. The officers were there simply to offer the Complainant assistance in a very difficult situation – at most, he could have been taken into custody under section 17 of the Mental Health Act as he was attempting to cause bodily harm to himself. If the Complainant had been taken into custody, he, of course, would have been under the officers’ “charge” at that point. But prior to being taken into custody, he was not. Accordingly, this section of the Criminal Code is not applicable.

Turning then to criminal negligence causing death, it is clear that the Complainant took active steps to commit suicide before any officers arrived at the Hespeler Road / Highway 401 overpass that evening. He was determined to die, and repeated his efforts with standing in front of cars and jumping in front of a bus. It is remarkable that he was not struck. Undeterred, the Complainant climbed over the barrier wall on the overpass and stood facing the Highway 401 eastbound traffic. It was only at that point that police arrived and became involved. Once the SO and WO #2 arrived, I accept that they did everything in their power to convince the Complainant to abandon his plans. The Complainant, however, did not respond and remained undeterred. Recognizing the danger posed to the Complainant, both officers tried to engage him, but to no avail. Neither officer got close to him, or made any gestures or comments that would provoke the Complainant. Both officers treated the Complainant reasonably, and with respect and compassion. Their actions neither caused nor contributed in any way to the Complainant’s decision to let go of the barrier wall that evening.

The Complainant died on October 31, 2016, because he intended to die and took extensive steps to ensure that it happened. The Complainant died because of his own actions. I am unable to find any fault with the conduct of the attending officers that would give me reasonable grounds to believe that a criminal offence was committed. As a result, no charges will issue.

Date: October 5, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] WO #2 updated dispatch, requested that Highway 401 eastbound lanes be closed and made a request for a negotiator to attend. [Back to text]
• 2) [2] R. v. Coyne (1958), 31 C.R. 335 (N.B.C.A.) [Back to text]
• 3) [3] R. v. L.(J.) (2006), 204 C.C.C. (3d) 324 (Ont. C.A.); R. v. R.(M.) (2011), 83 C.R. (6th) 186 (Ont. C.A.) [Back to text]