SIU Director’s Report - Case # 23-OCD-019
Warning:
This page contains graphic content that can shock, offend and upset.
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 77-year-old man (the “Complainant”).This report relates to the SIU’s investigation into the death of a 77-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 77-year-old man (the “Complainant”).This report relates to the SIU’s investigation into the death of a 77-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On January 17, 2023, at 1:11 p.m., the Windsor Police Service (WPS) notified the SIU of an injury to the Complainant, who resided in an apartment on Dalhousie Street, Amherstburg.According to the WPS, WPS officers had responded to a domestic disturbance call for service at the Complainant’s residence. The Complainant had reportedly struck his wife, CW #3, on the head with a baseball bat, prompting her to flee to another apartment unit. The Complainant would not answer the door or answer his telephone, which officers could hear ringing. WPS officers applied for a Feeney warrant [2] to enter the apartment unit, obtaining the warrant at 12:32 p.m. The door was breached by the WPS Emergency Services Unit (ESU) officers. The Complainant, found with a self-inflicted gunshot wound to his head, was transported to Windsor Regional Hospital (WRH) Ouellette Campus. He was subsequently pronounced deceased at 5:11 p.m., January 17, 2023.
The Team
Date and time team dispatched: 01/17/2023 at 2:14 p.m.Date and time SIU arrived on scene: 01/17/2023 at 5:34 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 3
Affected Person (aka “Complainant”):
77-year-old male; deceasedCivilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Not interviewed (next-of-kin)
CW #4 Not interviewed (next-of-kin)
CW #5 Not interviewed (next-of-kin)
CW #6 Not interviewed (next-of-kin)
The civilian witnesses were interviewed between January 18 and 19, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Not interviewed; notes reviewed, interview deemed not necessary
WO #4 Interviewed
WO #5 Not interviewed; notes reviewed, interview deemed not necessary
WO #6 Interviewed
WO #7 Not interviewed; notes reviewed, interview deemed not necessary
WO #8 Not interviewed; notes reviewed, interview deemed not necessary
WO #9 Interviewed
WO #10 Not interviewed; notes reviewed, interview deemed not necessary
The witness officials were interviewed on January 30, 2023.
Evidence
The Scene
The events in question transpired in and around the Complainant’s apartment on Dalhousie Street, Amherstburg. In the bedroom where the Complainant had been located by police, there was a large pool of what appeared to be blood to the left of the doorway as one entered the room. There was a rifle lying on the floor of the bedroom beside the bed. There appeared to be blood stains on the bedspread. There was also what appeared to be blood stains beside the bed on the floor. Two knives, with what appeared to have blood stains on them, were also lying on top of the bed. The first knife located on the bed was a kitchen-style knife approximately forty centimetres in total length. The blade on this knife was approximately twenty-four centimetres long. The second knife was a folding, pocket-style knife. This knife was approximately twenty-two centimetres long in total length. The blade on this knife was approximately nine centimetres long.
The older model Mossberg semi-automatic rifle was found on the floor in the Complainant’s bedroom parallel to the bed with its muzzle pointing towards the bedroom door. There was one 22 calibre 'LR' [3] cartridge immediately west of the rifle. The rifle - an O.F. Mossberg & Sons, Model 152 - was proved safe by an SIU forensic investigator and found to have one viable 22 calibre 'LR' round of ammunition in its chamber and a detachable magazine still attached to the rifle containing six rounds of 22 calibre 'LR' ammunition.
There were blood droplets and smearing of blood on the doorframe, and in the inner hallway outside the Complainant’s bedroom.
Blood droplets were observed on the living room floor near the sofa on which CW #3 had been reclining when she was attacked.
Figure 1 – The Complainant’s rifle
Physical Evidence
The Rifle
The SIU collected the involved firearm and identified it as a Mossberg, ‘Model 152’ 22 calibre semi-automatic rifle that did not exhibit a serial number. The barrel was measured and found to 457 mm long. The rifle had a detachable magazine with a capacity to hold ten rounds of 22 ‘LR’ rim-fire ammunition. The ammunition in the magazine and chamber were also retained by the SIU. The SIU also collected the two knives and the empty cartridge case.Forensic Evidence
Centre of Forensic Sciences (CFS) Submissions
There was no material need to submit the firearm and ammunition to the CFS. Specimens collected during the autopsy were submitted to the CFS directly by the autopsy staff. The results of analyses of the specimens were not received by the SIU at the time of this report. Video/Audio/Photographic Evidence [4]
Communications Recordings
Call SummaryStarting at about 9:53 a.m., the police received a call in which it was reported that the Complainant had struck his wife in the head with a bat.
Starting at about 10:43 a.m., it was reported that a rifle was inside the Complainant’s apartment.
Starting at about 11:00 a.m., it was reported that ESU were heading to the scene.
Starting at about 12:32 p.m., it was noted that a Feeney warrant had been issued.
Starting at about 12:37 p.m., it was reported that the apartment door had been breached.
Starting at about 12:45 p.m., it was reported that the Complainant was still conscious but had lost a large amount of blood. Paramedics were requested at the scene.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the WPS between January 18 and 31, 2023:- Call Summary;
- Feeney Warrant Preparation Supplementary Report;
- Dispatch Information;
- ESU Discovery of the Complainant - Supplementary Reports (x4);
- Initial Officer Report;
- K9 Handler – Supplementary Report;
- Notes – Officer #1;
- Notes – Officer #2;
- Notes – Officer #3;
- Notes – WO #1;
- Notes – WO #7;
- Officer Dispatch Times;
- Crime Scene - Supplementary Reports (x4);
- WO #1 - Supplementary Report;
- WRH - Supplementary Reports (x3);
- Video Canvass - Supplementary Report;
- Notes – WO #8;
- Notes – WO #2;
- WO #2 - Supplementary Report;
- WO #2 - Supplementary Evidence [Baseball Bat] Report;
- WO #3 - Breaching Kit - Supplementary Report;
- Notes – WO #3;
- Notes – WO #4;
- Notes – WO #10;
- Notes – WO #9;
- WO #5 - Supervisory Supplementary Report;
- Notes – WO #5;
- WO #6 - Supervisory Supplementary Report;
- Notes – WO #6;
- Email regarding the type of ammunition issued to officers;
- Email regarding audio/video data from ESU equipment; and
- Critical Incident Commander Report.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between January 18 and 24, 2023:- Ambulance Records – the Complainant;
- Ambulance Records – CW #3; and
- Preliminary Autopsy Findings – Ontario Forensic Pathology Service.
Incident Narrative
In the morning of January 17, 2023, WPS officers were dispatched to a residence on Dalhousie Street, Amherstburg, following a call to police by CW #2. CW #2 had called to report an incident in which a female resident – CW #3 – had been attacked with a baseball bat inside her apartment by her husband, the Complainant. CW #3 had fled to a neighbouring apartment, whose occupant had called CW #2.
Beginning at about 10:00 a.m., minutes after the call to police, the first officers began to arrive at the scene, including WO #6, WO #1, WO #2 and WO #4. WO #4 spoke with CW #3 about what had happened and learned of the Complainant’s deteriorating health and statements he had made recently about ending his life. WO #1 and WO #2 attended at the Complainant’s door intending to enter to check on his well-being. Their knocks, call-outs and phone calls went unanswered, and nothing was heard from inside the apartment. Master keys provided by CW #2 failed to disengage the lock.
At about 10:45 a.m., with the arrival of the Complainant’s family member at the address, it was learned that the Complainant had a rifle in his apartment. With that news, officers retreated to positions of cover, and the ESU was mobilized.
ESU officers under the command of WO #9 began arriving at about 11:30 a.m. Continued efforts at communication with the Complainant were to no avail. The decision was made to obtain a Feeney warrant to forcibly enter the apartment unless exigent circumstances developed in the interim dictating an earlier entry.
At about 12:37 p.m., with the warrant having issued, the ESU forced open the front door with a hydraulic ram. A surveillance device was sent into the apartment to look for the Complainant. The Complainant was located shortly thereafter. He was lying on a bedroom floor with a rifle by his feet. There was blood spatter on the wall near the head of the Complainant, who was still breathing.
Officers entered the apartment and discovered the Complainant with a gunshot wound to the head. He also had wounds to the wrist and chest. Two knives were on the bed.
Paramedics entered the apartment and assumed charge of the Complainant’s care. He was transported to hospital and subsequently pronounced deceased at 5:11 p.m.
Cause of Death
The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to a ‘gunshot wound to head in a man with stab wounds to chest and neck fracture’.
Beginning at about 10:00 a.m., minutes after the call to police, the first officers began to arrive at the scene, including WO #6, WO #1, WO #2 and WO #4. WO #4 spoke with CW #3 about what had happened and learned of the Complainant’s deteriorating health and statements he had made recently about ending his life. WO #1 and WO #2 attended at the Complainant’s door intending to enter to check on his well-being. Their knocks, call-outs and phone calls went unanswered, and nothing was heard from inside the apartment. Master keys provided by CW #2 failed to disengage the lock.
At about 10:45 a.m., with the arrival of the Complainant’s family member at the address, it was learned that the Complainant had a rifle in his apartment. With that news, officers retreated to positions of cover, and the ESU was mobilized.
ESU officers under the command of WO #9 began arriving at about 11:30 a.m. Continued efforts at communication with the Complainant were to no avail. The decision was made to obtain a Feeney warrant to forcibly enter the apartment unless exigent circumstances developed in the interim dictating an earlier entry.
At about 12:37 p.m., with the warrant having issued, the ESU forced open the front door with a hydraulic ram. A surveillance device was sent into the apartment to look for the Complainant. The Complainant was located shortly thereafter. He was lying on a bedroom floor with a rifle by his feet. There was blood spatter on the wall near the head of the Complainant, who was still breathing.
Officers entered the apartment and discovered the Complainant with a gunshot wound to the head. He also had wounds to the wrist and chest. Two knives were on the bed.
Paramedics entered the apartment and assumed charge of the Complainant’s care. He was transported to hospital and subsequently pronounced deceased at 5:11 p.m.
Cause of Death
The pathologist at autopsy was of the preliminary view that the Complainant’s death was attributable to a ‘gunshot wound to head in a man with stab wounds to chest and neck fracture’.Relevant Legislation
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.
(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 of a self-inflicted gunshot wound on January 17, 2023. As WPS officers had located him with the wound, the SIU was notified of the incident and initiated an investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any police officer 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 WPS officers, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s death. In my view, there was not.
The officers that participated in police operations in and around the Complainant’s apartment were lawfully placed and engaged in the exercise of their duties throughout the engagement. They had cause to believe that the Complainant had just committed a serious assault on CW #3, and that he might be of unsound mind and suicidal. In the circumstances, they were obliged to respond to the scene to ensure his safety and take him into custody.
I am also satisfied that the police operations were conceived and conducted with due care and regard for public safety. The officers who first attended did what they could to get the Complainant’s attention from outside. When their efforts to enter with a master key did not work, they decided against forcing entry judging that they did not quite have enough to establish exigent grounds to justify that course of action. That decision was a reasonable one. Though they had some notion of suicidal comments made by the Complainant recently, they had no compelling evidence that he was imminently at risk of self-harm. Thereafter, when word came that the Complainant had a rifle inside the apartment, the police acted reasonably in calling in the ESU. With the expertise and resources at their disposal, the ESU had a greater chance of safely resolving the standoff. Here, again, it appears that the ESU moved with deliberate and reasonable speed. They too were of the view that the ‘exigent circumstances’ threshold had not quite been met, but moved expeditiously to obtain a Feeney warrant. As soon as the warrant was issued, they forced open the door and deployed a surveillance device – a reasonable course of conduct given the risks inherent in confronting a man possibly armed with a firearm. Once the Complainant was discovered, there is no evidence of any failure to secure prompt medical attention.
In the final analysis, it remains unclear whether the Complainant shot himself before or after the officers arrived on scene, or whether the Complainant could have survived his wounds had he been reached earlier. Be that as it may, as there are no reasonable grounds to believe that any WPS officer transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: October 30, 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 WPS officers, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s death. In my view, there was not.
The officers that participated in police operations in and around the Complainant’s apartment were lawfully placed and engaged in the exercise of their duties throughout the engagement. They had cause to believe that the Complainant had just committed a serious assault on CW #3, and that he might be of unsound mind and suicidal. In the circumstances, they were obliged to respond to the scene to ensure his safety and take him into custody.
I am also satisfied that the police operations were conceived and conducted with due care and regard for public safety. The officers who first attended did what they could to get the Complainant’s attention from outside. When their efforts to enter with a master key did not work, they decided against forcing entry judging that they did not quite have enough to establish exigent grounds to justify that course of action. That decision was a reasonable one. Though they had some notion of suicidal comments made by the Complainant recently, they had no compelling evidence that he was imminently at risk of self-harm. Thereafter, when word came that the Complainant had a rifle inside the apartment, the police acted reasonably in calling in the ESU. With the expertise and resources at their disposal, the ESU had a greater chance of safely resolving the standoff. Here, again, it appears that the ESU moved with deliberate and reasonable speed. They too were of the view that the ‘exigent circumstances’ threshold had not quite been met, but moved expeditiously to obtain a Feeney warrant. As soon as the warrant was issued, they forced open the door and deployed a surveillance device – a reasonable course of conduct given the risks inherent in confronting a man possibly armed with a firearm. Once the Complainant was discovered, there is no evidence of any failure to secure prompt medical attention.
In the final analysis, it remains unclear whether the Complainant shot himself before or after the officers arrived on scene, or whether the Complainant could have survived his wounds had he been reached earlier. Be that as it may, as there are no reasonable grounds to believe that any WPS officer transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: October 30, 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) Obtained via the scheme set out in section 529 and 529.1 of the Criminal Code, and named after the Supreme Court of Canada decision in R. v. Feeney, [1997] 2 SCR 13, a Feeney warrant authorizes the forcible entry by police officers into a dwelling-house to effect an arrest. [Back to text]
- 3) LR denotes ‘Long Rifle’ meaning a type/length of rim-fired ammunition specific to the chamber of certain 22 calibre firearms. [Back to text]
- 4) 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.