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 20-year-old [1] man (the “Complainant”).

Notification of the SIU [2]

On January 18, 2022, the Chief Coroner, along with the Independent Case Manager for the Broken Trust Reinvestigation, met with the SIU to outline concerns regarding the death of the Complainant in Thunder Bay, which had not been reported to the SIU. They provided two reports: The Complainant – Death Investigation – Final Report; and Police Services Act Chief Complaint (Thunder Bay Police Service). The reports indicated that on March 24, 2015, the Thunder Bay Police Service (TBPS) had received a non-emergency call from Witness #1 at 8:53 p.m., originating from a Mac’s Convenience Store. Witness #1 indicated that the Complainant was alone, intoxicated, and yelling in Junot Park. The Complainant was only wearing a T-shirt and pants at the time, and Witness #1 was concerned for the Complainant. A call for service was generated by the TBPS but not dispatched due to other calls for service. At 10:17 p.m., the Communications Supervisor, Civilian Witness (CW) #6, cancelled the call for service because there had been no subsequent calls in connection with the matter. On March 25, 2015, at 9:04 a.m., TBPS responded to a call about a non-responsive person in Junot Park. The Complainant was found face down on a walking path with vital signs absent.

The Team

Date and time team dispatched: 01/24/2022 at 9:36 a.m.

Date and time SIU arrived on scene: 01/28/2022 at 11:00 a.m.

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

20-year-old male; deceased

Civilian Witnesses (CW)

CW #1 Not interviewed
CW #2 Not interviewed
CW #3 Not interviewed
CW #4 Not interviewed
CW #5 Not interviewed
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Not interviewed
CW #10 Not interviewed
CW #11 Interviewed
CW #12 Interviewed
CW #13 Interviewed

The civilian witnesses were interviewed between March 8, 2022, and May 10, 2022.

Subject Official (SO)

SO Declined interview and to provide notes, as is the
subject official’s legal right

Investigative Delay

Investigation delays were attributable to several factors. The SIU notification of the Complainant’s death was almost seven years after the fact. Witnesses, both civilian and police personnel, had passed away, retired or, when located, had poor recollections of the facts surrounding the incident. The TBPS advised they had no records of the incident as records, recordings, and correspondence were purged by the service. SIU resorted to obtaining a judicial order to gather records from the Office of the Independent Police Review Director (OIPRD), which in turn had obtained records from the TBPS under their authority during their initial investigation.

The Scene

The scene was a walking path located north of the Junot Avenue Fire Station on Junot Avenue North. The pathway was surrounded by some trees and could be accessed from Junot Avenue and Red River Road. The Complainant’s body was located just off the walking path, close to a parking lot area.

SIU investigators attended the scene on February 8, 2022. The scene presented like photographs and descriptions of the scene in 2015. The scene was not examined by SIU forensic investigators as no relevant evidence would be expected to be present.

Forensic Evidence

Opinion of the Complex Case Expert Committee of the Ontario Forensic Pathology Service

By way of correspondence dated December 28, 2022, the Complex Case Expert Committee of the Ontario Forensic Pathology Service, in response to a request from the SIU for an opinion regarding the time of the Complainant’s death, wrote to the SIU. In their correspondence, the committee concluded that: “It was not medically or scientifically possible to establish the decedent’s period of survival in the known circumstances nor estimate his time of death.”

Records – Miscellaneous

TBPS Chief’s Complaint Investigation Report

A copy of the Police Services Act Chief’s Complaint Investigation Report surrounding the call for service and sudden death of the Complainant was reviewed by the SIU. The report was authored by a TBPS inspector – CW #13 (since retired).

The initial Liquor Licence Act call for service for the Complainant was generated on March 24, 2015, at 8:53 p.m. The caller was Witness #1. Area officers slated to attend the complaint ended up re-routing to an impaired driving complaint. The complaint was cancelled on March 24, 2015, at 10:17 p.m.

The Sudden Death Report was generated on March 25, 2015, at 9:04 a.m.

During his investigation, CW #13 obtained the event chronology of the complaint. The complaint was cancelled by CW #6 at 10:17 p.m., with permission from the SO because there had been no call-backs on the complaint.

Between 8:00 p.m. and 11:00 p.m., there had been 24 calls for service; seven were Liquor Licence Actrelated complaints.

CW #13 reviewed the MP3 recording for the complaint/call for service and the phone call made by CW #6 to the SO requesting cancellation of the complaint.

CW #13 wrote there had been a breakdown in communication from the call-taker and Witness #1 to the entry of a non-priority call all the way to the acting staff sergeant and the cancellation of the call.

CW #13 conducted five interviews and reviewed the original call recordings. He determined that a policy was required for a consistent assessment process of certain types of calls, including Liquor Licence Act complaints.

CW #13 created a directive stating certain complaints would not be cancelled without police attendance. For example, calls involving persons at risk from either alcohol/drug consumption, or who demonstrated behaviour that exhibited signs of mental illness/brain injury, would not be cancelled.

CW #13 forwarded this report to the Chief of Police for further investigation and disciplinary considerations. He created a task for the criminal investigations unit to interview Witness #1 and add it to the Sudden Death Report. The interview recordings and original calls were transposed to disk for review if required.

The SIU’s investigation was stymied in large measure by the passage of time and evidence that had become unavailable. For example, one of the principal civilian witnesses – Witness #1 – had passed away. Other witnesses had difficulty recalling the events in question. Critically, investigative documents that had been compiled by the TBPS in their initial investigation of the Complainant’s death had reportedly been largely purged pursuant to the police service’s retention schedules.

The evidence that remained available and was collected by the SIU, including interviews with civilian witnesses, a review of a limited number of police records, and the post-mortem report and other expert medical evidence, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or to authorize the release of his notes.

In the afternoon and evening of March 24, 2015, the Complainant, together with different acquaintances at different times, consumed a significant amount of alcohol. His drinking continued as he, in the company of Witness #1 and two others, went to Junot Park sometime between about 7:30 and 8:00 p.m. The Complainant began to get rowdy in the park – he ran up and down its walkways and yelled at passersby. At one point, the Complainant took off his sweater, leaving him with just a T-shirt top. He was eventually left in the park by his associates.

Concerned about the Complainant, Witness #1 travelled to a convenience store nearby and contacted the police. He reported that the Complainant was in the park, very intoxicated and acting up, and only wearing a T-shirt with pants and a toque.

The call from Witness #1 was received by TBPS call-taker, CW #7, at about 8:53 p.m. While documenting Witness #1’s call for service, which she categorized as a complaint related to the Liquor Licence Act, CW #7 noted that the Complainant was intoxicated and yelling in Junot Park, and that he was said to be wearing a white T-shirt and dark grey pants. The call for service, categorized as the lowest priority type of call – a priority four – was forwarded for dispatch.

CW #8 was working in the communications centre at the time and was responsible for dispatching officers following calls for service. Officers initially dispatched in connection with the call were pulled away to attend what were deemed to be higher priority calls. Sometime thereafter, CW #8 asked her supervisor, CW #6, if they could ‘cancel the call’, that is, remove it from the list of calls for service requiring a police response.

CW #6 took the request to the commander in charge of the communications centre – the SO. The SO agreed the call could be cancelled. At 10:17 p.m., the call for service was cancelled because, ostensibly, there had been no further call-backs in relation to the matter.

The Complainant’s body was discovered by a passerby at about 9:00 a.m., March 25, 2015.

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.

In the morning of March 25, 2015, the Complainant was found deceased in Junot Park, located at the northeast corner of Red River Road and Junot Avenue North, Thunder Bay. His body was discovered off a pathway in proximity to the park parking lot. The evening before, a friend of the Complainant’s, Witness #1, had called police seeking their assistance with the Complainant. Witness #1 had reported that the Complainant was in the park, intoxicated, yelling, and wearing a T-shirt and pants. No police officers attended at the park to check on the Complainant.

The subject of the Complainant’s death was taken up by the Office of the Independent Police Review Director as part of a wider review of the manner in which the TBPS had investigated the deaths of several persons of First Nations heritage. Following the OIPRD report – Broken Trust – issued in December 2018, the circumstances surrounding the Complainant’s death were referred to a team consisting of various specialists for reinvestigation. The Chief Coroner, a member of the team, contacted the SIU on January 18, 2022, expressing concerns that the Complainant’s death had not initially been reported to the SIU, and indicating that it appeared the matter fell within the SIU’s statutory mandate.

The SIU initiated an investigation of the Complainant’s death following notification by the Chief Coroner. The SO was named 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.

On its face, it certainly appears that the decision to cancel the call for service was unreasonable. In fact, given the stakes involved, the health and life of the Complainant, it is arguable that the decision transgressed the limits of care prescribed by the criminal law. A call had been received from Witness #1 expressing concern for the welfare of his friend, whom he described as very intoxicated and agitated, and wearing a T-shirt. These considerations should have made the risk of hypothermia front and centre to the call operators and, by extension, the SO, and yet, the call for service was allowed to lapse after only an hour-and-a-half. The official reason for cancellation – as stated in the communications logs – was that there had been no further calls about the matter. But that would hardly appear an extenuating circumstance – one might not expect any call-backs were hypothermia to set in, and the police were aware that the Complainant’s friends had left him in the park.

It remains unclear why the SO thought it appropriate to cancel the call for service as quickly as he did; as was his legal right, he chose not to speak to the SIU. What can be established with a level of certainty is that the SO would have or, at least, should have, had access to the call information regarding the Complainant’s condition and state of dress. On this record, a case can be made that the officer acted with a wanton or reckless disregard for the life and safety of the Complainant.

That said, whether the SO acted unreasonably in cancelling the call for service after only an hour-and-a-half or, if he did, whether his indiscretion amounted to a marked and substantial departure from a reasonable standard of care, I am unable to reasonably conclude that there is a sufficient nexus between any criminally negligent conduct on the part of the subject official and the Complainant’s death. The expert medical evidence sought and received by the SIU came to the following conclusion given the evidence at hand: “It was not medically or scientifically possible to establish the decedent's period of survival in the known circumstances nor estimate his time of death.” This leaves open the possibility that the Complainant died before the call for service was cancelled, the point at which any criminal negligence on the part of the SO would have crystalized.

In the final analysis, as the Complainant’s death cannot be traced in the evidence with any confidence to any criminally negligent conduct on the part of the SO, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: December 5, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit