SIU Director’s Report - Case # 21-POD-224
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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.
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.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 42-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 42-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On July 17, 2021 at 9:54 p.m., the Ontario Provincial Police (OPP) advised the SIU that at 7:00 p.m., the same day, family members of the Complainant reported he had been taking drugs, and was seen walking on a trail and banging a stick near the Waterford Pond in Norfolk County. When OPP officers arrived, the Complainant entered the pond, swam to the middle and went under the water. The OPP Marine Unit was engaged in a search for him.The Team
Date and time team dispatched: 07/18/2021 at 8:22 a.m.Date and time SIU arrived on scene: 07/18/2021 at 10:28 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
42-year-old male, deceasedCivilian Witnesses
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
The civilian witnesses were interviewed between July 18, 2021 and July 20, 2021.
Subject Officials
SO Interviewed, and notes received and reviewed The subject official was interviewed on July 28, 2021.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on July 23, 2021.
Evidence
The Scene
The scene was a small pond called the Waterford Ponds. 
Figure 1 - View of Waterford Ponds.
SIU forensic investigators arrived at the Waterford Ponds at 1:10 p.m., July 18, 2021, and met with an officer of the OPP Underwater Search and Rescue Unit. The officer advised they had recovered the Complainant in the pond at approximately 12:14 p.m., and that the Complainant had been removed to the north shore behind a residence at Mechanic Street West. The Complainant was recovered in about 1.8 metres (6 feet) of water midway between the shores of the pond.
At 1:20 p.m., SIU forensic investigators noted that the Complainant had already been secured inside a body bag and that they were awaiting the arrival of the Coroner. At 2:05 p.m., the Coroner examined the body and pronounced death. The Complainant was taken to the Toronto Forensic Pathology Unit (TFPU).
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the OPP Norfolk County Detachment on July 21, 2021 and July 27, 2021:• Fingerprints of the Complainant;• Event Details Summary;• Communication recordings;• General Report;• Norfolk County Log On Records; and• Notes of WOs and SO.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: • Pathology documents from the TFPU.
Incident Narrative
In the evening of July 17, 2021, the Complainant was in mental distress and behaving erratically, wandering aimlessly on a road and waving a large stick in the air. The Complainant made his way northward and was seen by one of his relatives. The relative contacted police.
The SO, WO #1, WO #2 and WO #3 were dispatched to locate and arrest the Complainant on an outstanding warrant. He was located on the bicycle path north of Alice Street. As officers approached his location, the Complainant entered the Waterford Ponds at about 7:22 p.m. and began to swim northward toward the address across the body of water at Mechanic Street West. WO #2 spoke to the Complainant from the shore imploring him to get out of the water as the other officers made their way to Mechanic Street West.
About halfway between the southern and northern shorelines, the Complainant started to struggle in the water and began to callout for help. Two civilians entered the water to attempt to save the Complainant. The SO removed his uniform and also entered the water swimming to the middle of the pond. The Complainant had dipped beneath the surface of the water. Despite their efforts, the officer and civilians could not locate the Complainant. They were ordered out of the water by WO #2 after several minutes, as they too began to tire, and returned to shore.
Shortly thereafter, WO #1 and WO #3 located a small rowboat and paddled to where the Complainant had last been seen. They searched for the Complainant for over two hours, to no avail.
The Complainant’s body was recovered from the Waterford Ponds at about 12:14 p.m. of July 18, 2021.
The SO, WO #1, WO #2 and WO #3 were dispatched to locate and arrest the Complainant on an outstanding warrant. He was located on the bicycle path north of Alice Street. As officers approached his location, the Complainant entered the Waterford Ponds at about 7:22 p.m. and began to swim northward toward the address across the body of water at Mechanic Street West. WO #2 spoke to the Complainant from the shore imploring him to get out of the water as the other officers made their way to Mechanic Street West.
About halfway between the southern and northern shorelines, the Complainant started to struggle in the water and began to callout for help. Two civilians entered the water to attempt to save the Complainant. The SO removed his uniform and also entered the water swimming to the middle of the pond. The Complainant had dipped beneath the surface of the water. Despite their efforts, the officer and civilians could not locate the Complainant. They were ordered out of the water by WO #2 after several minutes, as they too began to tire, and returned to shore.
Shortly thereafter, WO #1 and WO #3 located a small rowboat and paddled to where the Complainant had last been seen. They searched for the Complainant for over two hours, to no avail.
The Complainant’s body was recovered from the Waterford Ponds at about 12:14 p.m. of July 18, 2021.
Cause of Death
The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to “drowning”.Relevant Legislation
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.
Section 221, Criminal Code -- Criminal negligence causing death or bodily harm
221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten yearsAnalysis and Director's Decision
On July 17, 2021, the Complainant died of drowning in the Waterford Ponds, Waterford. As police had been searching for him at the time and, in fact, had attempted a rescue operation, the SIU was notified and initiated an investigation. One of the would-be-rescuers, the SO, was identified as the 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. Liability 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 issue is whether there was a want of care on the part of the officers and, in particular, the SO, that contributed to the Complainant’s death and was sufficiently egregious to attract criminal sanction. In my view, there was not.
The officers were lawfully placed and in the execution of their duties as they attempted to locate the Complainant, first, to arrest him and, then, to save him as he entered and began to struggle in the Waterford Ponds. For starters, the officers were within their rights in seeking to take the Complainant into custody given the outstanding arrest warrant that was in effect. They were also duty bound pursuant to their foremost obligation to protect and preserve life to do what they reasonably could to rescue the Complainant once in the water.
I am also satisfied that the officers comported themselves with due care and regard for the Complainant’s health and welfare throughout their engagement with him. They had just located the Complainant when he entered the water and began to swim out from shore. WO #2 encouraged him to return to land while other officers entered the water when he started to struggle staying afloat. At risk to his own life, the SO swam out to the middle of the pond where he joined two civilians attempting to locate and rescue the Complainant in difficult, low visibility conditions. All three began to tire after several minutes and were ordered, reasonably in my view, to disengage as the risk to their own personal safety increased. Shortly thereafter, as they waited for the fire department and police marine unit to attend, WO #1 and WO #3 engaged in a lengthy search of their own with the use of a rowboat. On this record, it is apparent that the officers did nothing to contribute to the Complainant’s death, and much to attempt to prevent it.
For the foregoing reasons, there are no reasonable grounds to believe that any of the involved officers, including the SO, transgressed the limits of care prescribed by the
criminal law in connection with the Complainant’s death. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: November 8, 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. Liability 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 issue is whether there was a want of care on the part of the officers and, in particular, the SO, that contributed to the Complainant’s death and was sufficiently egregious to attract criminal sanction. In my view, there was not.
The officers were lawfully placed and in the execution of their duties as they attempted to locate the Complainant, first, to arrest him and, then, to save him as he entered and began to struggle in the Waterford Ponds. For starters, the officers were within their rights in seeking to take the Complainant into custody given the outstanding arrest warrant that was in effect. They were also duty bound pursuant to their foremost obligation to protect and preserve life to do what they reasonably could to rescue the Complainant once in the water.
I am also satisfied that the officers comported themselves with due care and regard for the Complainant’s health and welfare throughout their engagement with him. They had just located the Complainant when he entered the water and began to swim out from shore. WO #2 encouraged him to return to land while other officers entered the water when he started to struggle staying afloat. At risk to his own life, the SO swam out to the middle of the pond where he joined two civilians attempting to locate and rescue the Complainant in difficult, low visibility conditions. All three began to tire after several minutes and were ordered, reasonably in my view, to disengage as the risk to their own personal safety increased. Shortly thereafter, as they waited for the fire department and police marine unit to attend, WO #1 and WO #3 engaged in a lengthy search of their own with the use of a rowboat. On this record, it is apparent that the officers did nothing to contribute to the Complainant’s death, and much to attempt to prevent it.
For the foregoing reasons, there are no reasonable grounds to believe that any of the involved officers, including the SO, transgressed the limits of care prescribed by the
criminal law in connection with the Complainant’s death. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: November 8, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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.