SIU Director’s Report - Case # 16-PCD-260

Mandate of the SIU

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.

Information restrictions

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.

Mandate engaged

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 52-year-old male on October 13, 2016 when he fell from an apartment balcony in Trenton.

The investigation

Notification of the SIU

On October 13, 2016 at 4:15 p.m., the Ontario Provincial Police (OPP) notified the SIU of the death of the male.

The OPP advised that on October 13, 2016, just after noon, police officers from the Quinte West OPP Detachment responded to an apartment building in Trenton in relation to the male alleged to be holding someone hostage and also wanted on several outstanding warrants. Upon their arrival, the police officers located the male in an apartment on the 11^th floor. Moments later the male left the apartment and went out onto the balcony where he was seen tying a rope around his neck. At some point, the male climbed over the balcony railing and stood on a small outer ledge threatening to jump. OPP negotiators began negotiating with the male. At around 4:10 p.m., without warning, he jumped from the balcony and fell to his death.

The team

Number of SIU Investigators assigned: 6

Number of SIU Forensic Investigators assigned: 1

The SIU responded to the scene and identified and preserved evidence. The relevant scenes associated with the incident were documented by way of notes, photography, sketches and measurements. The SIU attended and recorded the post-mortem examination and assisted in making submissions to the Centre of Forensic Sciences (CFS).

Complainant

52-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

CW #14 Interviewed

CW #15 Interviewed

CW #16 Interviewed

Police employee witnesses

PEW Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

WO #8 Interviewed

WO #9 Interviewed

WO #10 Interviewed

Additionally, the notes from 9 other officers were received and reviewed.

Subject officers

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

Evidence

The scene

The initial scene was an apartment on the 11^th floor of a residential building in Trenton, Ontario. The building was an apartment complex.

The door to the apartment opened into a short hallway and then into an L-shaped living room or dining room area with the doorway to the kitchen being on the right. The hallway to the two bedrooms and bathroom was to the left and the door to the balcony (standing open) was across from the apartment door.

There was a short piece of rope attached to a balcony railing support across from the balcony door. The railing consisted of metal supports with clear plastic panels. The height of the railing was 1.1 metres.

Directly below the balcony where the rope was tied was the area on the lawn where the complainant’s body had been located. The distance from the top of the railing to the ground was measured as 28.3 metres.

Scene diagram

Expert evidence

On October 14, 2016, a post-mortem examination was conducted on the body of the complainant. The pathologist gave the immediate cause of death as blunt force injuries.

Communications recordings

911 Recordings

On October 13, 2016 an unidentified male contacted the OPP Communications Centre. The caller provided the complainant’s address and apartment number, stated “being held against my will”, followed by the name of the complainant, and immediately hung up. The OPP call taker dispatched the call and advised it had come from a pay phone in Trenton. The address was identified as a convenience store.

Forensic evidence

On October 14, 2016, an autopsy was performed on the complainant at the Forensic Pathology Unit in Ottawa. Biological samples were submitted to the Toxicology Section of CFS. The toxicology report indicated at the time of his death, the complainant had 0.83 milligrams per litre (mg/L)^{footnote 1[1]} of Oxycodone in his system^{footnote 2[2]}. No other drugs were found to be present.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP Quinte West Detachment:

• COMM-Audio Playlist
• Disclosure Log
• Duty Roster
• Event Chronologies
• Forensic Identification Report
• Interview Synopsis-complainant’s father
• Involved Officer List
• notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9 and WO #10
• notes from 9 non-designated officers
• OPP Request for Audio Form
• Subject Profile and prior police contact-the complainant

Incident narrative

On Thursday October 13, 2016, the complainant was in his apartment on the 11^th floor of a residential building in Trenton. He had consumed a significant amount of Oxycodone. There were several outstanding warrants for the complainant’s arrest, and an unknown male called 911 from a nearby convenience store advising that someone at that apartment was being held against their will.

Police attended the apartment building in the early afternoon and located the complainant standing on the outside of the balcony, with a noose tied around his neck. The complainant indicated that he intended to jump, and would not return to jail. He also advised that he had taken many pills with the hopes that it would either give him courage to jump, or make him so sleepy that he fell off.

Several officers went onto the balcony, and efforts were made to convince the complainant to come back into the apartment, but he refused. The SO, an OPP crisis negotiator, arrived on scene around 2:30 p.m. and went onto the balcony. Continued efforts by the SO to convince the complainant to climb back into the apartment were unsuccessful.

At about 4:00 p.m., after being on the balcony for several hours, the complainant let go of the balcony railing and fell towards the ground below. WO #1 attempted to grab at the complainant and the rope as he fell, but he was unable to stop him. The rope around the complainant’s neck broke, and he landed on the ground.

Relevant legislation

Section 215, Criminal Code - Duty of persons to provide necessaries

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 219-220, 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.

Analysis and Director’s decision

On October 13, 2016, the complainant died of blunt force trauma when he fell some 28 metres from the 11^th floor balcony of his apartment in Trenton. He had a yellow cord that he had tied around his neck and the balcony railing, which broke from his weight as he fell. Police officers from the Quinte West OPP Detachment were at the scene when he fell, including inside the complainant’s apartment and on the balcony. Two OPP negotiators were also present, the SO on the balcony and WO #9 inside the balcony doors.

Around noon that day, a male called 911 from a payphone at a convenience store near the complainant’s apartment building, and provided the complainant’s address and apartment number, stated “being held against my will” and the complainant’s name, and immediately hung up. The only people in the complainant’s apartment at the time were the complainant and CW #1, the complainant’s wife. CW #1 was not being held as a hostage. At the time, there were several warrants for the complainant’s arrest.

By approximately 12:19 p.m., police officers began to arrive at the building. CW #1 left the apartment and was met outside the door to the building by WO #1 and WO #2, who were the first to arrive. She gave them the key to her apartment and advised that the complainant was inside.

WO #1 and WO #2 entered the apartment building and made their way up to the 11^th floor. WO #2 knocked on the apartment door and called out for the complainant to surrender himself to police. The complainant gave no response from inside the apartment. WO #1 and WO #2 checked the stairwells and basement area of the building for the complainant, then went back to the apartment. They knocked on the complainant’s apartment door once more, and the complainant said he was not going back to jail and was going to the balcony to jump. From outside the building, WO #4 observed the complainant climbing over the balcony railing with a rope tied around his neck.

Around 1:00 p.m., WO #1 and WO #2 entered the apartment. They saw the complainant on the outside of the balcony, with a rope several metres in length tied around his neck and the other end tied to the balcony railing. He was holding onto the railing with both hands. Both police officers went onto the balcony, at the far end from the complainant. The complainant yelled for them to back off or he would jump. WO #2 assured the complainant that the police were there to talk. The complainant repeated more than once that there was nothing anyone could do to stop him from jumping and that he was not going back to jail. At one point, CW #10, the complainant’s son, was brought to the balcony door to speak to the complainant; he implored him to return to safety but to no avail.

The complainant stated he had consumed 50 pills so he would have the courage to jump, and hoped the pills would also make him sleepy and he would just fall off. At one point, the complainant asked for and received a drink of water from the police officers. The complainant was also given a cigarette to smoke. WO #1 tried to convince the complainant to come back inside the balcony enclosure but the complainant refused to do so. By 2:30 p.m., the SO, a trained negotiator, arrived and went onto the balcony. She began a dialogue with the complainant. At about 4:00 p.m., the complainant appeared to be tired - he closed his eyes, lowered his head, and leaned to the left. By this point, the complainant had been on the outside of the balcony for several hours. Without warning, the complainant fell. Immediately, WO #1 rushed at the complainant in an attempt to grab the rope or his clothing. He was able to grab the complainant’s right forearm, but the complainant pushed himself away from the balcony railing. WO #1 grabbed the rope attached to the complainant and swung him into the balcony below in an effort to stop the fall. The rope snapped in two, however, and the complainant fell to the ground below. Other than WO #1 grabbing for the complainant’s arm once he started to fall, all witnesses indicate that the police officers had no physical contact with the complainant.

Several containers of medications were found in the complainant’s bedroom. Toxicology tests indicated that at the time of his death, the complainant had an extremely high level of Oxycodone in his system.

The offences that have to be considered in this case are Criminal negligence cause death and/or Failure to provide the necessities of life. Pursuant to section 219 of the Criminal Code, “[e]very one is criminally negligent who in doing anything, or omitting to do anything that it is his duty to do, 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. Similarly, under section 215 of 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… 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. In the circumstances of this case, however, I do not believe that the evidence comes close to meeting this standard. To begin with, the officers were lawfully within the premises at the time of the events in question. CW #1 had provided them a key to the apartment and therefore, presumably, consent to enter. But even had she not, I am satisfied the officers were acting within their common law authority to enter into private premises to preserve and protect life given the exigencies of the situation . Thereafter, aside from their presence serving as the impetus for the complainant’s fateful course, there is no evidence that any of the police officers present either on the balcony or elsewhere in the apartment or building on October 13, 2016, contributed to the complainant’s death. The complainant was consistent in his statements to the police officers on scene that he was not going to return to jail. He was also clear that he intended to jump off the balcony, and tied a rope around his neck and took a significant amount of Oxycodone in order to facilitate his intentions. Several witnesses described the complainant pushing himself away from the balcony just before his fall.

The complainant died because he was intent on not going into police custody, and was willing to die for that end. He died because of his own actions, and in the circumstances, there are no reasonable grounds to believe that any charges should issue.

Date: September 26, 2017

Original signed by

Joseph Martino
Acting Director
Special Investigations Unit