SIU Director’s Report - Case # 21-OCD-110
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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 section14 (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 29-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 29-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On April 7, 2021, at 8:05 a.m., the Chatham-Kent Police Service (CKPS) reported the following.On April 6, 2021, at 6:17 p.m., CKPS officers responded to Wallace Street in Wallaceburg for a report of suspicious persons. When the officers arrived, two parties, identified as the Complainant and Civilian Witness (CW) #2, fled on foot. Both were pursued on foot by CKPS officers and both jumped into the Sydenham River. Police officers also went into the water.
CW #2 managed to swim to safety, but the Complainant disappeared under the water. Emergency services personnel began a search for the Complainant.
At 11:40 a.m., April 7, 2021, the CKPS reported that the Complainant’s body was found in the river.
The CKPS advised that officers had taken photos of the scene where the two went into the water. A citizen had also turned over a cellphone video of the incident to CKPS.
Next-of-kin for the Complainant had been advised.
A local Coroner was responding. The Regional Coroner had been advised.
The Team
Date and time team dispatched: 04/07/2021 at 12:50 p.m.Date and time SIU arrived on scene: 04/07/2021 at 2:10 p.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
29-year-old male, deceasedCivilian Witnesses
CW #1 Interviewed by CKPSCW #2 Interviewed by CKPS
CW #3 Interviewed
CW #4 Not interviewed (Next-of-kin)
CW #5 Not interviewed (Next-of-kin)
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
The civilian witnesses were interviewed between April 6, 2021, and April 14, 2021.
Subject Officials
SO Interviewed, but declined to submit notes, as is the subject official’s legal right.
The subject official was interviewed on April 22, 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on April 15, 2021, and April 20, 2021.
Evidence
The Scene
The scene was near Wallace Street in Wallaceburg by the shore of the Sydenham River. The Sydenham River runs east /west in this area. Historically, the river was used for transportation of goods by ship and dredged to accommodate large vessels. The river, a mud bottom, has very poor visibility.The area the Complainant entered the river was one of the few areas that did not have a steel seawall installed. From the shore the river drops suddenly to deep water.
Video/Audio/Photographic Evidence1
The SIU searched for and obtained video records of relevance, as set out below.
Cellular Telephone Video from Civilian
On April 6, 2021, at about 6:30 p.m., a civilian used her cellular telephone to record two short videos of the police interaction with the Complainant. The civilian recorded from a distance, as she was across the Sydenham River just east of the footbridge. The videos were not time stamped.The civilian turned the video footage over to CKPS shortly after the incident.
The following is a summary of the video footage.
26-Second Video
- There is a view of the south side area of the footbridge. The SO was on the riverbank;
- The civilian said, “What is he going to do, jump in the water?”;
- The SO remained on the riverbank looking out to the river; and
- Video ended.
4-Second Video
- The Complainant was seen in the river with only his head exposed above the water;
- The Complainant was on the west side of the footbridge close to a supporting pier; and
- Video ended.
Police Communications
Communications ReportOn April 6, 2021, the CKPS received a call for service concerning suspicious persons at Wallace Street, Wallaceburg. The following is a summary of the call.
CKPS received a call for service from CW #8. CW #8 reported there was a woman [now known to be CW #2] and a young man [now known to be the Complainant] in the parking lot right along the Sydenham River, acting very suspiciously.
The Complainant and CW #2 were up against the fence along the Sydenham River. It appeared they were trying to hide behind a small black Ford SUV.
CKPS Radio Communications
The following is a summary of the radio communications relating to this incident.
- The SO requested that the police dispatcher (PD) check a licence plate number.
- At 6:31:46 p.m., the PD requested that the SO repeat the licence plate and the SO provided a licence plate number.
- WO #1 asked the PD for the SO’s location.
- The PD replied with an address on “Wallace”
- The SO broadcast, “Jumped in the river.”
- The SO made indiscernible transmissions, and was heard to say, “Swim to, in the river.”
- At 6:34:19 p.m., the PD acknowledged that EMS would be dispatched.
- At 6:34:56 p.m., WO #1 advised she had arrived and was trying to locate the SO; she did not see the SO’s police vehicle.
- The PD responded EMS was en route.
- At 6:35:51 p.m., WO #2 advised he was just logging on and asked for the SO’s location. The PD responded with an address on “Wallace”.
- WO #1 advised there were two people in the water, and a third person [later identified to be the Complainant] was missing.
- There were indiscernible radio transmissions, and WO #1 asked that WO #2 come to their location to take their gear. WO #2 responded he would be there in a minute.
- At 6:37:13 p.m., the SO, out of breath, advised, “He’s under the water, have no idea where he’s at.” PD responded, “Confirming male party under the water.”
- At 6:44:00 p.m., WO #2 advised the PD that Fire and EMS were on scene, and they were still looking for the Complainant for at least five minutes but there was no sign of him.
- At 6:46:39 p.m., the SO advised he was back. The PD provided information about the licence plate and its registered vehicle.
- At 6:48:16 p.m., WO #2 advised the PD the man in the river was [the Complainant].
- At 6:51:22 p.m., the PD advised that CPIC (Canadian Police information Centre) indicated the Complainant was currently charged for possession, fail to comply with release, and operation while impaired. He was to reside with his surety in Chatham per house arrest - 24 hours a day - except for medical emergencies.
- At 6:56:51 p.m., WO #2 advised that she was at Wallace Street with CW #2.
- At 7:16:33 p.m., an unknown police officer asked that CW #2 come to headquarters. WO #2 acknowledged. An unknown police officer advised the Criminal Investigation Division had already been advised.
Materials Obtained from Police Service
The SIU obtained the following records from the CKPS between April 7, 2021, and April 22, 2021:
- Event Chronology;
- Communication recordings;
- Incident Synopsis of Investigation;
- General Report;
- Statement of CW #1;
- Statement of police officer; and
- Supplementary Occurrence Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources:
- Ontario Forensic Pathology Service – Preliminary Autopsy Findings Report.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the SO and several civilian eyewitnesses.
In the evening of April 6, 2021, the Complainant was in the company of CW #2. The two were seated near a Jeep parked at an address on Wallace Street. At about 6:30 p.m., they were approached by an officer – the SO – who explained that he had been called to the scene by someone complaining that the two were loitering in the area.
The Complainant walked away from the officer as the SO spoke with CW #2, prompting the officer to call-out to him. The SO, suspecting that the Jeep was stolen, asked for identification and was told that they had none. Shortly after the Complainant’s return to the area of the Jeep, he fled on foot away from the officer. At the time, the Complainant was subject to a condition of house arrest as part of a judicial release order.
The SO pursued the Complainant on foot eastward along the northern edge of the parking lot, which bordered the southern shore of the Sydenham River. At the eastern limit of the lot, the Complainant scaled a fence and made his way into ankle-high water. The officer scaled the same fence and followed the Complainant further east along the shore toward the McDougall Street footbridge. Underneath the bridge, the SO told the Complainant to return to shore and then watched as the Complainant turned to dive further into the river.
The Complainant quickly began to experience difficulties staying afloat. He was wearing a backpack at the time, which appeared to weigh him down.
The SO radioed the police communications centre requesting the attendance of the fire department. He then hurried back to his police cruiser to retrieve the spare tire which he hoped the Complainant would use as a flotation device. Unable to pull the tire free, the SO rushed back to the river’s edge under the bridge, removed his duty belt, and entered the water.
By this time, CW #2 was also in the water attempting to assist the Complainant. The two were soon joined in the water by two civilians in the area – CW #3 and CW #7 – and, lastly, WO #1, who had also responded to the scene following the initial call to police. The Complainant had dipped under the river’s surface and the would-be rescuers were unable to locate him in the muddy water.
The coldness of the water combined with their physical exertions quickly took a toll on the SO and the others in the river, forcing them to abort their rescue efforts. CW #2 was assisted back to shore via a length of ratchet straps that had been tied together and held at the other end by another group of civilians. One of the civilians – CW #7 – made use of a tire as a flotation device to help him back to shore. The SO, who had exited the water before him, had made it back to his vehicle and back, this time with the tire in hand, which he threw into the river for CW #7’s benefit.
Shortly after everyone except for the Complainant was out of the water, the fire department arrived on scene and took over the rescue operations. Regrettably, the Complainant could not be saved. His body was located and removed from the river the following day.
Cause of Death
The SIU received the Ontario Forensic Pathology Service Preliminary Autopsy Findings report, which stated the cause of death was drowning with toxicology pending as a possible contributing factor.
In the evening of April 6, 2021, the Complainant was in the company of CW #2. The two were seated near a Jeep parked at an address on Wallace Street. At about 6:30 p.m., they were approached by an officer – the SO – who explained that he had been called to the scene by someone complaining that the two were loitering in the area.
The Complainant walked away from the officer as the SO spoke with CW #2, prompting the officer to call-out to him. The SO, suspecting that the Jeep was stolen, asked for identification and was told that they had none. Shortly after the Complainant’s return to the area of the Jeep, he fled on foot away from the officer. At the time, the Complainant was subject to a condition of house arrest as part of a judicial release order.
The SO pursued the Complainant on foot eastward along the northern edge of the parking lot, which bordered the southern shore of the Sydenham River. At the eastern limit of the lot, the Complainant scaled a fence and made his way into ankle-high water. The officer scaled the same fence and followed the Complainant further east along the shore toward the McDougall Street footbridge. Underneath the bridge, the SO told the Complainant to return to shore and then watched as the Complainant turned to dive further into the river.
The Complainant quickly began to experience difficulties staying afloat. He was wearing a backpack at the time, which appeared to weigh him down.
The SO radioed the police communications centre requesting the attendance of the fire department. He then hurried back to his police cruiser to retrieve the spare tire which he hoped the Complainant would use as a flotation device. Unable to pull the tire free, the SO rushed back to the river’s edge under the bridge, removed his duty belt, and entered the water.
By this time, CW #2 was also in the water attempting to assist the Complainant. The two were soon joined in the water by two civilians in the area – CW #3 and CW #7 – and, lastly, WO #1, who had also responded to the scene following the initial call to police. The Complainant had dipped under the river’s surface and the would-be rescuers were unable to locate him in the muddy water.
The coldness of the water combined with their physical exertions quickly took a toll on the SO and the others in the river, forcing them to abort their rescue efforts. CW #2 was assisted back to shore via a length of ratchet straps that had been tied together and held at the other end by another group of civilians. One of the civilians – CW #7 – made use of a tire as a flotation device to help him back to shore. The SO, who had exited the water before him, had made it back to his vehicle and back, this time with the tire in hand, which he threw into the river for CW #7’s benefit.
Shortly after everyone except for the Complainant was out of the water, the fire department arrived on scene and took over the rescue operations. Regrettably, the Complainant could not be saved. His body was located and removed from the river the following day.
Cause of Death
The SIU received the Ontario Forensic Pathology Service Preliminary Autopsy Findings report, which stated the cause of death was drowning with toxicology pending as a possible contributing factor. Relevant Legislation
Section 219, Criminal Code -- Criminal negligence causing death
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.
Section 220, Criminal Code -- Criminal negligence causing death or bodily harm
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.
Analysis and Director's Decision
At about 11:40 a.m. of April 7, 2021, the Complainant’s body was recovered from the Sydenham River in Wallaceburg by a CKPS dive team. As the Complainant had entered the river the day before in the course of an interaction with a CKPS officer, the SIU was notified and initiated an investigation. The officer in question – the SO – was identified as a subject official. 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 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 demonstrating a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that constitutes 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 issue is whether there is evidence that the SO fell markedly and substantially short in his duty of care toward the Complainant and, if so, whether his neglect caused or contributed to the Complainant’s death. In my view, there is not.
I am satisfied that the SO comported himself with due care and regard for the Complainant’s health and well-being in the measures he took after the Complainant entered the river. [1] The officer kept his dispatch informed of the situation and quickly made a request for the attendance of the fire department, which was better practiced and resourced for these types of situations. When the Complainant did not return to shore after the SO asked him to, the officer had a difficult decision to make: jump into the water to attempt a rescue at that moment or seek to retrieve a flotation device that could be deployed from a position of safety. The latter would take some more time, but the Complainant was still treading water, albeit with some difficulty, and entering the river was not without its own risks given the temperature of the water and the inherent challenges of the endeavour. On this record, I am unable to reasonably conclude that the SO transgressed the limits of care prescribed by the criminal law when he adopted the former course and travelled to his cruiser, only seconds away, to retrieve the spare tire. Thereafter, unable to quickly remove the tire, the SO rushed back to the water’s edge, jumped in, and joined in the efforts to locate and rescue the Complainant. Those efforts, I am satisfied, were reasonable throughout, including at the point the decision was taken to leave the water given the growing risks to the rescuers themselves.
In the result, I am satisfied for the foregoing reasons that the SO was not criminally derelict in his dealings with the Complainant throughout their engagement, notwithstanding the Complainant’s tragic death. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: August 5, 2021
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 demonstrating a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that constitutes 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 issue is whether there is evidence that the SO fell markedly and substantially short in his duty of care toward the Complainant and, if so, whether his neglect caused or contributed to the Complainant’s death. In my view, there is not.
I am satisfied that the SO comported himself with due care and regard for the Complainant’s health and well-being in the measures he took after the Complainant entered the river. [1] The officer kept his dispatch informed of the situation and quickly made a request for the attendance of the fire department, which was better practiced and resourced for these types of situations. When the Complainant did not return to shore after the SO asked him to, the officer had a difficult decision to make: jump into the water to attempt a rescue at that moment or seek to retrieve a flotation device that could be deployed from a position of safety. The latter would take some more time, but the Complainant was still treading water, albeit with some difficulty, and entering the river was not without its own risks given the temperature of the water and the inherent challenges of the endeavour. On this record, I am unable to reasonably conclude that the SO transgressed the limits of care prescribed by the criminal law when he adopted the former course and travelled to his cruiser, only seconds away, to retrieve the spare tire. Thereafter, unable to quickly remove the tire, the SO rushed back to the water’s edge, jumped in, and joined in the efforts to locate and rescue the Complainant. Those efforts, I am satisfied, were reasonable throughout, including at the point the decision was taken to leave the water given the growing risks to the rescuers themselves.
In the result, I am satisfied for the foregoing reasons that the SO was not criminally derelict in his dealings with the Complainant throughout their engagement, notwithstanding the Complainant’s tragic death. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: August 5, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) 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]
- 2) Though there were some indicia of criminality present at the time of the SO’s encounter with the Complainant – the licence plate and validation sticker appeared to have been tampered with – it is not altogether clear that the Complainant’s detention at the hands of the officer, if it was such, was lawful. In any event, I was not satisfied on reasonable grounds that an unlawful detention, if that is what materialized, tipped the balance in favour of a finding of criminal negligence, particularly as the risk of the Complainant entering the water and placing his life in jeopardy as he did may not have been reasonably foreseeable in the circumstances. [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.