SIU Director’s Report - Case # 21-OCD-332

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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.

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 48-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On October 2, 2021, at 3:13 p.m., the Durham Regional Police Service (DRPS) notified the SIU of a death.

Reportedly, on October 2, 2021, shortly after 12:00 p.m., DRPS responded to an area on Highway 115 about one kilometre north of Highway 407. The call was in response to an Ontario Provincial Police (OPP) robbery investigation and a BOLO (be on the lookout) alert. DRPS attended the scene and a single motor vehicle appeared to be involved in a collision. A vehicle was on fire and the driver [known to be the Complainant] was fighting the driver [known to be Civilian Witness (CW) #1] of another motor vehicle. The Subject Official (SO) arrived at the location and deployed his conducted energy weapon (CEW) twice.

The Complainant went vital signs absent (VSA) and Narcan, cardiopulmonary resuscitation (CPR) and an automated external defibrillator were administered.

Emergency medical services (EMS) attended and the Complainant was taken to Lakeridge Health (Bowmanville site). He was in critical condition at the time but the extent of his injuries were unknown and preliminary information was limited.

The SO’s CEW had been secured.

On October 3, 2021, at 4:08 a.m., a Coroner advised that the Complainant had died in hospital - the death had been pronounced at 2:08 a.m.

The Team

Date and time team dispatched: 10/02/2021 at 3:55 p.m.

Date and time SIU arrived on scene: 10/02/2021 at 4:41 p.m.

Number of SIU Investigators assigned: 3
 
Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

48-year-old male, deceased

Civilian Witnesses

CW #1 Did not attend scheduled interview
CW #2 Did not attend scheduled interview
CW #3 Interviewed
CW #4 Not interviewed (Next-of-kin)
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed
CW #10 Interviewed
CW #11 Interviewed
CW #12 Interviewed

The civilian witnesses were interviewed between October 7, 2021 and November 4, 2021.

Subject Officials

SO Interviewed, but declined to submit notes, as is the subject official’s legal right.

The subject official was interviewed on October 20, 2021.

Witness Officials

WO #1 Interviewed
WO #2 Not interviewed, but notes received and reviewed
WO #3 Not interviewed, but notes received and reviewed

WO #1 was interviewed on October 7, 2021.
 

Evidence

The Scene

The scene was located on Highway 115, north of Concession Road 8. Initially, the Complainant was on the east shoulder on the northbound side. He then ran across the northbound lanes and jumped over the concrete barrier onto the southbound lanes. He was struck by the deployment of a CEW in the middle of the southbound lanes.

Following his arrest, the Complainant was escorted to the centre median, where he went VSA.

Physical Evidence

The SIU collected the SO’s CEW, one intact CEW cartridge and one spent CEW cartridge.


Figure 1 - The SO's CEW.

Forensic Evidence

CEW Report

On October 3, 2021, the SO’s CEW was downloaded at the DRPS Central West Division.
The data indicated that on October 2, 2021, the CEW had trigger activity on cartridge 1, at 11:57:56 a.m. for 12 seconds, at 11:58:09 a.m. for five seconds, and again at 11:58:14 a.m. for five seconds.

Video/Audio/Photographic Evidence [1]

OPP Communications Recording

The OPP provided a copy of the communication recordings related to October 2, 2021. The following is a summary of the pertinent information they contained.

At 11:23:00 a.m., an OPP dispatcher advised the DRPS dispatcher that there was a wanted vehicle for an armed robbery of a jewelry store in Belleville at 11:00 a.m. The last known location was westbound Highway 401 in Port Hope. There were also reports of the vehicle intentionally colliding with other vehicles on Highway 401.

The original information from the robbery had been provided to the OPP by the Belleville Police Service.

The wanted vehicle was a blue Chevy.

The closest OPP vehicle was just getting on Highway 401 at Highway 35/115.

At 11:51:22 a.m., the DRPS dispatcher asked the OPP dispatcher for the latitude and longitude of the wanted vehicle. The OPP dispatcher provided the coordinates of the Complainant’s cell phone. The OPP dispatcher said the wanted vehicle was now on Highway 35/115. The vehicle was then said to be northbound on Kirby near Highway 35/115 and Ganaraska Road, approaching Highway 407.

DRPS Communications Recording

The DRPS provided a copy of the communication recordings on October 2, 2021. The following is a summary of the pertinent information they contained.

The DRPS dispatcher repeated a BOLO for a dark blue Chevy wanted in an armed jewelry store robbery in Belleville at 11:00 a.m. The registered owner was the Complainant of Belleville, Ontario.

The DRPS dispatcher was updated by the OPP, indicating that they were “pinging” the Complainant’s cellular telephone and the vehicle was now in Port Hope, Ganaraska Road and Mill Street. The Complainant was in a manic state from drugs and in possession of a .398 Magnum. He had told all his friends that he would be on the news that night.

The SO was marked on the call. The SO advised he was eastbound on Ganaraska Road at Highway 115.

An update from OPP advised that the new information indicated the Complainant’s vehicle was northbound on Highway 115, near the hamlet of Kirby, Ontario.

The SO said, “I’m going to be right on him there. I’m northbound on the 115. There is an OPP car behind me, we are north of the 407 now. Still have not seen the suspect vehicle.”

The SO advised, “OK, I have a MVC [motor vehicle collision] here.” The SO was then heard running, breathing heavily. He said, “Male suspect says he’s got a gun. We are westbound on foot. Taser! Taser! Taser!” DRPS dispatcher said, “[police code indicating officers are to stop transmitting] in effect.”

The SO was breathing heavily and said, “I am with one OPP. We have one in custody. We are going to need an ambulance. We are between Noone’s store and Wilcox. We have a car on fire. We need fire department as well.”

Someone asked, “Why do we need an ambulance?” The SO said, “Just a taser deployment and a car on fire.” One minute later, the SO said “Can you put a rush on that ambulance. We are in the median administering Narcan – administering second dose of Narcan – male was unresponsive.”

An undesignated officer said, “On scene – doing compressions – male is still not breathing.” The SO said, “OPP officer has administered two doses of Narcan. We have a medic and PSW here assisting with CPR.”

The SO said, “Male is en route to Bowmanville Hospital via EMS – still unresponsive.” The dispatcher announced the time was 12:46 p.m.
 

CW #6’s Daughter’s Video

On October 2, 2021, CW #6’s daughter recorded a video. The video was 37 seconds long and was recorded from the top of a hill on the west side of Highway 115. The view was obscured by trees on the hill.

The Complainant’s vehicle was depicted in the northbound side of Highway 115 with smoke billowing from it. The recording did not capture the interaction between the officers and the Complainant.

CW #7’s Video

CW #7 provided a copy of a 48-second recording on October 2, 2021. WO #1, the SO, and the Complainant were in the middle of the southbound lanes of Highway 115. The Complainant was face down on the ground. WO #1 was handcuffing the Complainant behind his back with his right knee on the Complainant’s back. The SO was standing beside WO #1 and the Complainant, looking down on them. The SO was still holding a CEW with wires coming from it.

The Complainant was lifting his ankles up toward his buttocks and back to the ground. WO #1 stood up. The Complainant continued to lift his ankles and attempted to roll, and WO #1 put his right foot on his buttocks. The camera moved to view a beige sedan on the shoulder of the northbound lanes, a vehicle in the ditch, and an OPP vehicle on the curb lane. The DRPS vehicle was on the shoulder.

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the DRPS and the OPP (Northumberland Detachment and Whitby - Highway Safety Division):
  • DRPS Detailed Call Summary;
  • DRPS General Occurrence Report;
  • DRPS Incident Report (x2);
  • DRPS CEW Data Download;
  • SOCO (Scenes of Crime Officer) photos;
  • Notes of the WOs;
  • OPP email regarding post-mortem attendance;
  • OPP Event Details Report;
  • OPP Occurrence Details and Reports;
  • OPP Supplementary Occurrence Report;
  • OPP Use of Force Report (redacted); and
  • Communications Recordings.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:
  • Photos from CW #6;
  • Preliminary Autopsy Findings Report from Ontario Forensic Pathology Service;
  • Video from CW #7;
  • Text Messages from the Complainant;
  • Video from CW #6; and
  • Witness Statements of CW #5, CW #7, CW #11 and CW #12.

Incident Narrative

The following scenario emerges from the evidence collected by the SIU, which included interviews with the SO, WO #1 of the OPP (who participated in the Complainant’s arrest) and several civilians who witnessed the incident in parts.

In the morning of October 2, 2021, the OPP were on the lookout for the Complainant. He had reportedly committed an armed robbery at a jewelry store in Belleville and fled the scene in a blue Chevrolet vehicle. The OPP were able to track the Complainant’s movements via his cell phone and contacted the DRPS when it appeared that he was heading toward their jurisdiction. Additional information ascertained and broadcasted by the OPP indicated that the Complainant claimed to have a gun, had told friends he would be in the news that night, was under the influence of drugs, and had struck other vehicles as he travelled westward on Highway 401.

The SO was on routine patrol in north Oshawa when he learned of the OPP operation. Shortly before noon, the SO was travelling north on Highway 115 from Highway 407 after learning that the Complainant was on the same roadway proceeding north. Behind him was a marked OPP cruiser operated by WO #1, also trying to track down the Complainant.

The Complainant’s vehicle crashed into the east ditch of the northbound lanes of Highway 115 between Concession Road 8 and Skelding Road. The SO brought his cruiser to a stop on the highway shoulder slightly south of the crashed vehicle as WO #1 travelled a short distance further north, stopping his cruiser in the east-most lane behind a beige sedan that had come to a stop on the shoulder. The Complainant had left his vehicle and was fighting with the driver of the beige vehicle. The officers exited their cruisers and approached the Complainant.

At the sight of the officers, the Complainant ran across the two northbound lanes of highway traffic, leapt over the concrete centre median, and entered onto the southbound lanes. The officers gave chase and repeatedly told the Complainant to stop and get to the ground. The Complainant swore at the officers, said he had a gun and would shoot them, and threw a small metallic object - a key chain - at WO #1. The Complainant narrowly missed being struck by a motorcycle as southbound traffic came to a stop north of his and the officers’ positions.

The officers were within metres of the Complainant when the SO deployed his CEW. The weapon’s probes lodged in the back of the Complainant’s head and lower back, and he fell immediately onto the roadway. WO #1 approached the Complainant and, as the SO reactivated his CEW two more times, handcuffed his hands behind his back.

Following his arrest, the SO and WO #1 helped the Complainant to his feet and escorted him to the centre median of the highway so they could search him. The Complainant suddenly lost strength and slid down the median to the ground. The officers placed him in a seated position, and noticed his lips and face had started to turn blue; he was completely unresponsive. Believing the Complainant was overdosing, WO #1 proceeded to administer two doses of nasal naloxone without results.

Joined by another DRPS officer and an off-duty paramedic at the scene, the officers attempted to resuscitate the Complainant. With the arrival of an ambulance, the Complainant was transported to Lakeridge Health – Bowmanville Site. He died the following day.

Cause of Death

The pathologist at autopsy was unable to attribute the Complainant’s death to any obvious anatomical cause. The cause of his death remains unknown at this time pending further investigation and toxicological examination.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Sections 219 and 220, 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.

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

The Complainant was pronounced deceased in hospital in the early morning hours of October 3, 2021. As the circumstances leading to his admission to hospital involved his arrest at the hands of police officers, the SIU was notified and initiated an investigation. The SO of the DRPS 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 death.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.

Based on the reports of the Complainant’s involvement in an armed robbery in Belleville that morning and his reckless flight on Highway 401 thereafter, and what the officers gathered themselves as they observed the Complainant fighting with another motorist after having crashed his vehicle in a ditch, I am satisfied that the SO and WO #1 had lawful grounds to seek his arrest.

I am further satisfied that the force used by the officers in aid of the Complainant’s arrest was legally justified. It was imperative that the Complainant be taken into custody as quickly as possible. He was reportedly armed with a gun, told the officers as he was being chased that he had a gun and would shoot them, and ran from the officers into live lanes of highway traffic. On this record, when he repeatedly refused to stop at the officers’ direction, the SO was within his rights in discharging his CEW at him. If successful, the deployment would immediately incapacitate the Complainant, ending the dangerous foot pursuit on Highway 115 and neutralizing his ability to access weapons as the officers took him into custody. Indeed, that is exactly what occurred. As for the second and third CEW discharges while the Complainant was on the roadway, it would appear that they too constituted force reasonably available to the SO. The Complainant had given the officers every reason to believe he was armed with a gun, and so it was important that his movements were controlled to the greatest extent possible while WO #1 was in the process of handcuffing the Complainant behind his back. Once handcuffed, there were no further CEW deployments by the SO.

There is an additional issue regarding the nature and extent of the care provided by the officers as they dealt with the Complainant. In particular, the question is whether there is any evidence to reasonably conclude that the Complainant’s death was in some way caused by a want of care on the part of the officers, which was sufficiently egregious to attract criminal sanction. In my view, there is not.

The offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. Simple negligence will not suffice to give rise to liability for the offence. Rather, what is required is a marked and substantial departure from a reasonable level of care that demonstrates a wanton or reckless disregard for the lives or safety of other persons. In the instant case, there is no evidence that either officer failed to comport himself with due care and regard for the Complainant’s health and well-being. There is no indication, for example, that the Complainant was left in a prone position for any undue length of time or that the manner of his restraint was unnecessary or unreasonable. Moreover, at the first sign of acute medical distress, the officers took prompt action to call for medical attention and then assisted in resuscitative efforts at the scene while waiting for an ambulance.

In the result, while the cause of the Complainant’s death remains unknown at this time, there are no reasonable grounds to believe that it is attributable to unlawful conduct on the part of the SO or WO #1. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: January 28, 2022


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]

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.