SIU Director’s Report - Case # 23-POD-062
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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 section 14 (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 19-year-old male (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 19-year-old male (the “Complainant”).
The Investigation
Notification of the SIU [1]
On February 28, 2023, at 2:05 p.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.On February 28, 2023, at 9:30 a.m., the Complainant called his boss and told him he was going to kill himself. The OPP was notified, and the Complainant’s cellular telephone was pinged to ascertain his location. An officer located the Complainant’s vehicle around Cedar Island Drive, Kingsville, but could not see inside. As the officer began to approach the vehicle, it accelerated and drove off the roadway into the water. The vehicle was submerged at the time of notification, the scene was secured, and the OPP dive team had been contacted.
The Team
Date and time team dispatched: 02/28/2023 at 2:52 p.m.Date and time SIU arrived on scene: 02/28/2023 at 5:00 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
19-year-old male; deceasedCivilian Witnesses (CW)
CW #1 Not interviewed; next-of-kin CW #2 Not interviewed; next-of-kin
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on March 10, 2023.
Evidence
The Scene
The events in question transpired on Cedar Island Drive, a paved east-west road with Lake Erie to the south and a marina to the north. At the west end, a waterway channel allowed boats to enter the marina from Lake Erie. There was a circular turn-around at the west end where the road met the channel. On the south side of the turn-around was a parking lot for a public beach and play area. The vehicle entered the channel facing a westerly direction, just south of the turn-around.
On February 28, 2023, starting at about 8:45 p.m., a SIU forensic investigator attended the scene at Cedar Island Drive. It was noted that the scene had been secured with police banner tape and one OPP officer was guarding the area.
The scene was examined.
The police banner tape protected the parking area. A blue tarp had been placed on the ground next to the channel to protect evidence. Due to the late hour and poor lighting condition, it was decided to examine the scene in detail the next morning when the recovery of the vehicle from the water would take place.
At 9:50 a.m. of March 1, 2023, the SIU forensic team attended Cedar Island Drive where the OPP dive team were preparing to enter the water and locate the submerged vehicle. The scene was still being protected. The team photographed the scene showing the overall location and the location of the blue tarp. When the tarp was removed, faint tire marks were revealed that led west to the edge of the channel.
Figure 1 - Scene photo
The water was approximately one metre below the surface of the parking lot and the bank of the channel was reinforced with large rocks, creating an uneven surface. There were some possible scrapes to the rocks, but they could not be positively associated to a vehicle travelling over them.
At approximately 4:00 p.m., the vehicle was located in the water. It was found approximately 85 metres south of its entry point into the water. It had apparently floated in the current before submerging.
With the assistance of Sam’s Towing and Recovery, the vehicle was removed from the water.
The vehicle was a Toyota Corolla. There was minimal damage to the vehicle. The windshield was cracked, the driver’s wiper blade was missing, and the driver’s exterior door handle was broken. There were minor scrapes to the right front corner and the rocker panel on the right side that were possibly associated with going over the rocky embankment. All the doors were locked, and the windows were in the closed position except for the driver’s window, which was down approximately 2.5 centimetres. There was a key in the ignition and the ignition was on.
There was one male person – the Complainant – inside the vehicle. His left hand was handcuffed to the steering wheel. A cell phone was on the front passenger seat with a charging cord. A handcuff key was found taped to the back of the phone.
At 6:50 p.m. the SIU forensic team released the scene. The car doors were sealed shut and it was requested that the vehicle remain secure at the towing compound until the results of the post-mortem examination were known.
Physical Evidence
On March 1, 2023, at 8:50 a.m., the SIU forensic team attended the OPP Tecumseh Detachment, 963 Lesperance Road, Windsor, to examine a police vehicle involved in the incident. The police vehicle was a 2021 black Dodge Durango. The vehicle was marked with OPP subdued graphics and emergency lights. It was equipped with a metal push bar attached to the front bumper. The police vehicle was examined and photographed, and no fresh damage was noted.Video/Audio/Photographic Evidence [2]
OPP Communications and 911 Summary
In the morning of February 28, 2023, a man notified police that the Complainant had left work at noon the day before. The Complainant had not reported to work on the present day but had emailed that he was going to die by suicide. The man supplied an address and a cellular telephone number for the Complainant.Starting at about 9:28 a.m., the SO, WO #1 and WO #2 were dispatched to search for the Complainant.
Starting at about 10:08 a.m., WO #1 advised he had spoken with the Complainant’s parents and learned that the Complainant moved out two weeks ago. He drove a Toyota Corolla.
The Complainant’s cellular telephone was pinged, and the search area was centred in the Kingsville area.
Starting at about 10:53 a.m., the SO reported that as he crossed the bridge to Cedar Island, a vehicle matching the Complainant’s vehicle was floating in the creek. The SO advised he could not see the licence marker, and the vehicle was half-submerged.
Emergency Medical Services, the Kingsville Fire Department and a tow truck were requested.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the OPP Essex Detachment on March 6, 2023:- Record of computer-assisted dispatch
- The Complainant - Sudden Death Report;
- General Report;
- Involved Persons Report;
- Supplementary Reports;
- Communications recordings;
- Notes-WO #1; and
- Notes-WO #2.
Incident Narrative
The evidence collected by the SIU gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the morning of February 28, 2023, the OPP received a call reporting that the Complainant, who had not reported to work that day, had sent the caller a series of emails indicating he was not feeling well and was contemplating suicide. Officers were dispatched to search for the Complainant.
The police service pinged the Complainant’s cell phone and learned that it was in Kingsville in the vicinity of Cedar Island Road. The SO, among the officers looking for the Complainant, arrived in the area and spotted a vehicle matching the description of the one used by the Complainant – a Toyota Corolla. It was parked on Cedar Island Drive. As the officer approached the vehicle from behind to get a read on its licence plate, the Toyota accelerated westward and travelled directly into a waterway channel at the far west end of the road. The channel opened into Lake Erie.
At about 10:50 a.m., the SO broadcast that he had spotted the vehicle and that it was halfway submerged. The officer was soon joined by WO #2. They gave thought to entering the water to attempt a rescue but judged that the conditions were too dangerous – the water was cold and there was a strong undertow in the channel. Shortly after 11:00 a.m., the Toyota was completely under water.
The fire department arrived on scene but were unable to mount a rescue operation. They had a boat but were not equipped to dive and perform an underwater recovery.
An OPP dive team was deployed and eventually recovered the Toyota the following day. It had been located in the water about 85 metres south of its suspected point of entry – just south of the turn-around at the far west end of Cedar Island Drive. The Complainant’s body was located in the vehicle. One of his hands was handcuffed to the steering wheel.
Cause of Death
The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to ‘drowning’.
In the morning of February 28, 2023, the OPP received a call reporting that the Complainant, who had not reported to work that day, had sent the caller a series of emails indicating he was not feeling well and was contemplating suicide. Officers were dispatched to search for the Complainant.
The police service pinged the Complainant’s cell phone and learned that it was in Kingsville in the vicinity of Cedar Island Road. The SO, among the officers looking for the Complainant, arrived in the area and spotted a vehicle matching the description of the one used by the Complainant – a Toyota Corolla. It was parked on Cedar Island Drive. As the officer approached the vehicle from behind to get a read on its licence plate, the Toyota accelerated westward and travelled directly into a waterway channel at the far west end of the road. The channel opened into Lake Erie.
At about 10:50 a.m., the SO broadcast that he had spotted the vehicle and that it was halfway submerged. The officer was soon joined by WO #2. They gave thought to entering the water to attempt a rescue but judged that the conditions were too dangerous – the water was cold and there was a strong undertow in the channel. Shortly after 11:00 a.m., the Toyota was completely under water.
The fire department arrived on scene but were unable to mount a rescue operation. They had a boat but were not equipped to dive and perform an underwater recovery.
An OPP dive team was deployed and eventually recovered the Toyota the following day. It had been located in the water about 85 metres south of its suspected point of entry – just south of the turn-around at the far west end of Cedar Island Drive. The Complainant’s body was located in the vehicle. One of his hands was handcuffed to the steering wheel.
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
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 passed away on February 28, 2023, in Kingsville. As the vehicle he was in had plunged into a body of water, resulting in his death, as an OPP officer was approaching it, the SIU was notified of the incident and initiated an investigation. The officer – the SO – 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.
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. It 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 question is whether there was a want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s death. In my view, there was not.
The SO was lawfully placed and in the execution of his duty throughout the police operation that ultimately located the Complainant in his car. Indeed, having learned of the general whereabouts of the Complainant’s cell phone, the officer did well to locate the Complainant and his vehicle as quickly as he did.
Once the vehicle was located, I am satisfied that the SO comported himself within the limits of care prescribed by the criminal law. As the officer approached the vehicle to confirm its licence plate, there was little he could do to prevent the Toyota from travelling into the water once it accelerated away from him. Nor was there much the SO could do after the vehicle entered the water. Entering the water to attempt a rescue was fraught with danger given the water conditions and a victim seemingly intent on ending his life, and the officer was wise to refrain from doing so. Rather, the SO broadcast what had happened, allowing for the prompt deployment of other first responders to the area, and maintained a visual on the vehicle in the water as long as he could.
In the final analysis, as it is apparent on the aforementioned-record that the SO did not transgress the limits of care prescribed by the criminal law in his brief engagement with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: June 27, 2023
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 that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It 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 question is whether there was a want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s death. In my view, there was not.
The SO was lawfully placed and in the execution of his duty throughout the police operation that ultimately located the Complainant in his car. Indeed, having learned of the general whereabouts of the Complainant’s cell phone, the officer did well to locate the Complainant and his vehicle as quickly as he did.
Once the vehicle was located, I am satisfied that the SO comported himself within the limits of care prescribed by the criminal law. As the officer approached the vehicle to confirm its licence plate, there was little he could do to prevent the Toyota from travelling into the water once it accelerated away from him. Nor was there much the SO could do after the vehicle entered the water. Entering the water to attempt a rescue was fraught with danger given the water conditions and a victim seemingly intent on ending his life, and the officer was wise to refrain from doing so. Rather, the SO broadcast what had happened, allowing for the prompt deployment of other first responders to the area, and maintained a visual on the vehicle in the water as long as he could.
In the final analysis, as it is apparent on the aforementioned-record that the SO did not transgress the limits of care prescribed by the criminal law in his brief engagement with the Complainant, there is no basis for proceeding with charges in this case. The file is closed.
Date: June 27, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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.