Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

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 Personal 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.

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

• 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.

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 injury of a 29-year-old man (the “Complainant”).

Notification of the SIU[1]

On April 29, 2024, at 3:09 p.m., the Kingston Police (KP) contacted the SIU with the following information.

On April 29, 2024, at 11:40 a.m., the KP received a call for service to an address in the area of Days Road and Bath Road. The caller reported there was a man hanging from a balcony. Police officers arrived and set up containment. At approximately 1:17 p.m., the man fell from the balcony. The man, identified as the 29-year-old Complainant, was transported to the Kingston General Hospital (KGH), where it was determined he had sustained a fractured pelvis. The Complainant was also placed under observation pursuant to a Form 1 under the Mental Health Act (MHA).

The Team

Date and time team dispatched: 2024/04/29 at 3:35 p.m.

Date and time SIU arrived on scene: 2024/04/29 at 6:25 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on May 7, 2024.

Civilian Witness (CW)

CW Interviewed

The civilian witness was interviewed on April 29, 2024.

Subject Official (SO)

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Interviewed; notes received and reviewed

WO #4 Not interviewed; notes reviewed and interview deemed unnecessary

WO #5 Not interviewed; notes reviewed and interview deemed unnecessary

WO #6 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed between May 14 and 22, 2024.

The three officials not interviewed were part of a team of police officers positioned outside the apartment door. They did not interact with the Complainant and had no observation of him when he fell to the ground.

The Scene

The scene, in the area of Days Road and Bath Road, Kingston, was a multi-story apartment building.

The Complainant’s impact was on a grassed-area below a column of balconies. A knit toque found on the grass was identified by a police officer as the Complainant’s property.

The apartment where the incident occurred was on an upper floor. The entrance door had a 22 cm circular hole which was broken through the body of the door beside the door handle and lock area. The door defect was consistent with police officers having breached the door.

Photographs were taken to document the interior of the apartment and the balcony. The balcony had a glass and metal support enclosure. Lengths of cordage or rope were lying on the floor of the balcony and had been tied to the metal supports of the balcony enclosure. There was also a wooden speaker box on the balcony. A folding knife was open on top of the speaker box.

Measurements were made of the balcony railing and the distance to the ground. The top railing of the balcony enclosure was 1.09 metres above the balcony floor and 9.995 metres to the ground below.

Video/Audio/Photographic Evidence[2]

Communications Recordings and Computer-aided Dispatch (CAD) Report

On April 29, 2024, at 11:38 a.m., the CW called the police to report a man standing outside the railing of a balcony. The CW identified the man. The CW further reported he had spoken to the Complainant and the Complainant asked if the police had been called. When the CW told the Complainant he would not call the police if the Complainant climbed back over the railing, the Complainant told him to call the police. The CW told the police call-taker that police had been to the building weeks earlier for a similar situation.

At 11:44 a.m., WO #2 and WO #3 arrived at the building.

At 11:48 a.m., it was reported the Complainant had tied a rope around his neck. One of the officers reported the Complainant did not wish to speak to police but had stated he was contemplating jumping.

At 12:00 p.m., WO #6 and a Mobile Crisis Rapid Response Team (MCRRT) nurse arrived at the building. According to WO #6’s notebook entries, the MCRRT nurse joined WO #2 and WO #3, while WO #6 joined a team of police officers set up outside the Complainant’s apartment door.

It was reported the Complainant at times stood on a table on his balcony.

At 12:14 p.m., a formal incident command structure was established. The SO assumed the role of Incident Commander.

Police officers cleared the apartment next to the Complainant’s apartment. Police officers were also provided a key to the Complainant’s apartment, but when they tested the key, they found the lock on his door to be inoperable.

At 12:28 p.m., the Complainant was reported to be on the outside of the balcony railing again.

At 12:46 p.m., officers were advised of their apprehension authority was the MHA.

At 1:01 p.m., the officers were advised that the “Direct Action Plan” was face-to-face communications with the Complainant. The SO commanded a KP sergeant, a member of the team of officers positioned in the hallway, to develop an “Immediate Action Plan” and a “Surrender Plan”.

At 1:09 p.m., it was reported the Complainant had one foot on the balcony table and one foot on the balcony railing.

At 1:17 p.m., a police officer reported the Complainant had jumped.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the KP on May 6, 2024:

• CAD Report;
• General Occurrence Reports;
• Communications recordings; and
• Notes of all witness officials.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on June 10, 2024:

• The Complainant’s medical records from KGH.

The evidence collected by the SIU, including interviews with the Complainant, a civilian eyewitness, and officers who engaged with the Complainant, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

Shortly before noon of April 29, 2024, WO #2 and WO #3 arrived at the apartment building located in the area of Days Road and Bath Road, Kingston. The police had received a call reporting that the Complainant was standing outside the railing of a balcony. The officers neared the Complainant’s location and called up to him. WO #2 indicated he was there to help and asked the Complainant to climb back over the railing. The Complainant was largely unresponsive. He threw his cell phone to the ground below at one point.

The MCRRT was deployed, as were trained negotiators and other officers. The SO assumed command of police operations as the Incident Commander. One of the negotiators – WO #1 – took the lead in speaking to the Complainant. He tried to build a rapport and encouraged him to return to safety. The Complainant occasionally alternated positions, but was at all times within reach of the balcony railing. He had a string tied around his neck with its other end wrapped around a balcony railing metal support. Officers were deployed to the hallway outside the apartment door. They unsuccessfully attempted to unlock the door with a master key.

At about 1:17 p.m., the Complainant, again standing on the ledge outside the balcony railing, stepped off. He fell to the ground below, snapping the string and suffering fractures of the pelvis and ribs in the process.

The Complainant was transported to hospital and treated for his injuries.

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.

The Complainant was seriously injured when he fell from a balcony on April 29, 2024. As KP officers had been attempting to dissuade the Complainant from jumping, the SIU was notified of the incident and initiated an investigation. The officer in overall command of the police operations on scene at the time of the fall – 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 injuries. In my view, there was not.

The SO and the officers under his command were lawfully placed and in the execution of their duties through the series of events that culminated in the Complainant’s fall from the balcony. Having been alerted to the Complainant’s precarious position and what seemed an intention to do himself harm, the officers were duty bound to attend at the scene to do what they reasonably could to prevent harm coming to the Complainant.

There is no indication of any want of care on the part of the SO and his team of officers in their approach to the situation. It appears that appropriate resources were deployed in a timely manner and used effectively. This included a trained negotiator who attempted to make inroads with the Complainant from outside below the balcony, and then from within the building and an adjacent balcony. A reasonable game plan was developed and put into place, namely, to keep the lines of communication open with the Complainant. It seems the police were also putting the pieces in place to transition to a more proactive posture if such became necessary – officers were stationed outside the Complainant’s apartment and an attempt was made to unlock the door. That too was prudent even if the speed of events precluded any such plan from materializing – about an hour-and-a-half had elapsed from the moment the police first arrived on scene to the time of the jump. On this record, it is apparent that the SO did not transgress the limits of care prescribed by the criminal law.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: August 23, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit