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: 

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 31-year-old man (the “Complainant”).

Notification of the SIU

On October 4, 2021 at 4:27 p.m., the Hamilton Police Service (HPS) notified the SIU of the death of the Complainant.

HPS reported that they had received a call at 3:04 p.m. that afternoon from a female caller who was in communications with her daughter. Her daughter, CW #1, was in the area of the Devil’s Punchbowl Conservation Area in Stoney Creek, and was in the process of breaking up with her boyfriend, the Complainant. HPS officers arrived at the Devil’s Punchbowl and located CW #1. The officers were 40 to 50 feet from the Complainant when he turned and jumped into the Devil’s Punchbowl.

The Complainant was located at the bottom of the waterfall. Lifesaving efforts were administered but the Complainant was pronounced deceased. The scene was being held.

The Team

Date and time team dispatched: 10/04/2021 at 5:04 p.m.

Date and time SIU arrived on scene: 10/04/2021 at 7:00 p.m.

Number of SIU Investigators assigned: 3

The Scene

The Devil’s Punchbowl is a gorge consisting of a bowl-shaped sinkhole into which a 34-metre-tall ribbon waterfall discharges. That waterfall is generally referred to as the “upper waterfall”. The edge of the waterfall is approximately 20 metres away from Ridge Road, the road used to access the area and the Devil’s Punchbowl Conservation Area.

A guardrail runs along the side of Ridge Road near the top of the waterfall. On the waterfall side of the guardrail, a footpath has developed from people accessing the top of the waterfall. There is a sign posted along that footpath stating, “There is always HOPE,” and a telephone number is provided. That telephone number is for the Canada Suicide Prevention Service.

Nearby, to the east of the upper waterfall, there is the Devil’s Punchbowl Conservation Area parking lot and a trail that has various observation points from which the waterfall and gorge can be viewed. The bottom of the waterfall is not visible from that trail. There is a large illuminated white cross on the trail that, given its perch on top of the escarpment, is visible for quite a distance.

West of the waterfall there is a grassy area where large concrete traffic barriers have been positioned, likely to discourage people from accessing the top of the Devil’s Punchbowl.

Access to the bottom of the Devil’s Punchbowl is prohibited by the Hamilton Conservation Authority. There is a large amount of rock at the bottom that has fallen from the eroding edges of the bowl formation. Water from the waterfall eventually carries over another waterfall, approximately five metres tall, known as the “lower waterfall”. There is a well-travelled footpath that people have created while accessing the lower waterfall. Access to the bottom of the upper waterfall is extremely difficult, with the last portion being comprised of wet clay, fallen rock, and moving water.

Scene photographs provided by the HPS documented the Complainant lying partially submerged in the water at the bottom of the upper waterfall.

The Complainant’s backpack was recovered from the area where he had been standing, west of the upper waterfall precipice.

On October 4, 2021, the volume of water flowing over the waterfall was significant due to rain that had been falling for days.


Figure 1 – Google Maps aerial view of the scene


Figure 2 – Devil’s Punchbowl Gorge

Physical Evidence

Access to the area where the Complainant landed was difficult, and it would have been dangerous on the evening of the Complainant’s death due to the added hazard of thick fog. As a result, the Hamilton Fire Department refused to attempt a recovery that evening. The SIU was present in the area when the Complainant’s body was removed the following morning. The SIU did not access the bottom of the waterfall until October 11, 2021, at which time the Complainant’s cellular telephone was recovered.

Video/Audio/Photographic Evidence [1]

Computer-aided Dispatch Report and Communications Recordings

On October 4, 2021, at 3:04 p.m., CW #1’s mother called the 911 operator and reported that CW #1 was at the top of the Devil’s Punchbowl trying to locate her boyfriend, who was intending to jump. The 911 operator told her to have her daughter call 911, but she said doing so would cause her daughter’s boyfriend to jump.

The caller reported her daughter was ending the relationship and her boyfriend had been extremely depressed. Her daughter was CW #1 and she provided the make/model of the vehicle she was operating. The boyfriend was identified to be the Complainant. The caller stated her daughter had called the Crisis Outreach and Support Team (COAST).

CW #1 reported the Complainant was in the bush and she could not locate him.

CW #1 told her mother the Complainant would likely be wearing black pants. She then advised he would likely be wearing grey pants and a grey sweater.

Police officers were dispatched to a possible suicidal person.

The officers were told the male would be wearing black pants. Police dog handlers were assigned to assist on the call. The dispatcher also advised the suicidal man would be wearing grey pants and a grey sweater. A description of CW #1’s vehicle was provided and her hazard lights were activated.

At 3:13:16 p.m., a police officer reported he could see a man in black pants and black sweater with a stocky build on the telephone close to the punchbowl. At 3:13:58 p.m., a police officer reported, “He jumped!” At 3:29 p.m., the Complainant was located; he was not breathing. CPR was initiated and paramedics were contacting their base hospital. At 3:46 p.m., the Complainant was pronounced deceased.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from HPS between October 8, 2021 and November 26, 2021:

• Communication Recordings;
• Photographs taken of the scene on October 4, 2021;
• Event Chronology;
• Notes of WO #1;
• Notes of the SO; and
• Notes of WO #2.

Materials Obtained from Other Sources

The SIU received the following records from other sources:

• CW #1 provided copies of text messages between her and her mother, and between her and the Complainant.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the SO, a civilian eyewitness, and two other officers who were present at the time of the Complainant’s fall.

In the afternoon of October 4, 2021, the HPS received a 911 call from the mother of the Complainant’s partner. Her daughter – CW #1 – had texted her indicating that she was on the phone with the Complainant at the Devil’s Punchbowl, Hamilton, and he was threatening to kill himself. CW #1 provided a description of what the Complainant was wearing, which was conveyed to the police. Officers were dispatched to the scene.

The Complainant was distraught with his failing relationship and the state of his finances. He had previously considered suicide by jumping into the gorge of the Devil’s Punchbowl. On this occasion, the Complainant had again travelled to the site in contemplation of harming himself.

The SO, together with WO #2 and WO #1, each separately in their own cruisers, arrived in the area at about 3:10 p.m. The SO and WO #1 exited their cruisers, parked on the south side of Ridge Road and noticed an individual – the Complainant – standing by some bushes on a plateau by the west side of the upper waterfalls. The Complainant denied that he was the person they were looking for, explained that he was waiting for a ride from a friend, and directed the officers to another location where, presumably, their subject would be found.

The officers began to make their way west along Ridge Road in the direction the Complainant had pointed when they came across CW #1, who confirmed that the individual they had spoken to was, in fact, the Complainant. The SO and WO #1 turned around and began to walk toward the Complainant again. As they did so, the Complainant ran toward the cliff edge of the plateau, jumping into the gorge below – a drop of about 34 metres. The time was 3:13 p.m.

First responders located the Complainant at the foot of the upper waterfall at about 3:29 p.m. Resuscitative effort were made, but the Complainant could not be revived. He was pronounced deceased at 3:46 p.m.

Sections 219 and 220, Criminal Code -- Criminal negligence causing death

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

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.

The Complainant fell to his death from the upper waterfall of the Devil’s Punchbowl in Hamilton on October 4, 2021. As he had briefly interacted with HPS officers moments before his fall, the SIU was notified and initiated an investigation. 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 that demonstrate a wanton or reckless disregard for the lives or safety of other persons. Simple negligence is not sufficient to ground liability; rather, what is required, in part, is 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 any want of care in the manner in which the SO engaged with the Complainant, sufficiently egregious to attract criminal sanction, that contributed to his death. The evidence indicates there was not.

The SO was lawfully placed throughout his brief interaction with the Complainant. An officer’s foremost obligation is the protection and preservation of life. Aware of the Complainant’s suicidal ideations and dispatched to the scene at the request of his partner, CW #1, concerned about his well-being, the officer was duty bound to attend at the Devil’s Punchbowl and do what he reasonably could to prevent harm coming to the Complainant. [2]

Thereafter, there is nothing in the evidence to suggest that the SO or his colleagues failed to comport themselves with due care and regard for the Complainant’s health and well-being. They had only briefly spoken with him to ascertain his identity and left the area before they were directed back to the Complainant by CW #1. It was at this point, as the officers were returning to his location, that the Complainant ran toward the cliff’s edge and jumped into the gorge. Aside from shouting at him to stop what he was doing, the officers, metres away from him at the time, had no opportunity to intercede to prevent the Complainant’s fall.

For the foregoing reasons, I am satisfied that neither the SO, nor WO #2 or WO #1, transgressed the limits of care prescribed by the criminal law in their dealings with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: February 1, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit