SIU Director’s Report - Case # 23-OCD-323
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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 28-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 28-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On August 11, 2023, at 3:00 p.m., the Peterborough Police Service (PPS) notified the SIU of the death of the Complainant.According to the PPS, at 2:15 p.m., the Subject Official (SO) was patrolling in the City of Peterborough when he was forced to brake suddenly by a vehicle pulling out of a driveway in the area of Park Street North and Parkhill Road West. The officer attempted to stop the vehicle and then initiated a Suspect Apprehension Pursuit when the driver – the Complainant – refused to stop. The SO discontinued the pursuit in the area of the intersection of Parkhill Road West and Reid Street. Approximately 30 seconds later, the PPS was notified of a single-vehicle collision near the Peterborough Volkswagen dealership at 500 Towerhill Road. Additional calls were received that the Complainant had fled the vehicle with a firearm in one of his hands, running into the service bay of the dealership and holding the gun to the head of a witness. PPS police officers arrived. The Complainant repositioned his gun to his own neck, and then drank a large amount of anti-freeze. He lost consciousness and eventually lost vital signs. Because Emergency Medical Services (EMS) was not immediately available, Peterborough Fire Department commenced life-saving measures. The Complainant [2] was transported to the Peterborough Regional Health Centre (PRHC). The scene of the collision and Volkswagen dealership were contained and secured.
The Team
Date and time team dispatched: 2023/08/11 at 4:15 p.m.Date and time SIU arrived on scene: 2023/08/11 at 8:20 p.m.
Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 2
Affected Person (aka “Complainant”):
28-year-old male; deceasedCivilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
The civilian witnesses were interviewed between August 11 and 17, 2023.
Subject Official
SO Interviewed; notes received and reviewedThe subject official was interviewed on August 31, 2023.
[Note : A subject official is an official (whether a police officer, a special constable of the Niagara Parks Commission or a peace officer with the Legislative Protective Service) whose conduct appears, in the opinion of the SIU Director, to have been a cause of the incident under investigation.
Subject officials are invited, but cannot be legally compelled, to present themselves for an interview with the SIU and they do not have to submit their notes to the SIU pursuant to the SIU Act.]
Subject officials are invited, but cannot be legally compelled, to present themselves for an interview with the SIU and they do not have to submit their notes to the SIU pursuant to the SIU Act.]
Witness Officials (WO)
WO #1 Interviewed; notes received and reviewed WO #2 Interviewed; notes received and reviewed
WO #3 Interviewed; notes received and reviewed
WO #4 Interviewed; notes received and reviewed
WO #5 Interviewed; notes received and reviewed
The witness officials were interviewed between August 14 and 23, 2023.
Evidence
The Scene
The events in question transpired inside the service garage of the Volkswagen dealership located at 500 Towerhill Road, Peterborough.
Figure 1 – Service area entrance door at the Volkswagen car dealership
The dealership’s service area and a large garage door were situated on the west side of the building. The garage door was open. A second large garage door was on the east side of the garage. This door was closed. The garage’s interior was illuminated with overhead lighting. Visibility was clear. There were a number of vehicles in the garage.
Medical debris was resting on the floor near the southwest corner of the garage. Three containers of differing automotive fluids were resting on a work bench. These containers did not have their security caps affixed to them. A fourth container, with a large handle, had a cap affixed to the spout and the top of the container had a modified funnel opening on it. This modified funnel appeared to be closed. A red-coloured aerosol can was resting on the floor among the debris. There was no firearm in plain sight.
Samples were taken by SIU forensic investigators from the three containers resting on the work bench. Sample #1 was collected from a black container labelled coolant anti-freeze. A warning symbol and script were visible on the front of the container. Additional warning and content information was visible on the back of the container. The sample was in liquid form and was pink/rosé in colour.
Sample #2 was collected from a grey container labelled coupling fluid. No warning symbol or script was visible on the front of the container. Advisory and content information was visible on the back of the container. The sample was in liquid form and was cloudy and yellow in colour.
Sample #3 was collected from a white container. There were no labels on the container. The remaining fluid in the container was visible and approximately one centimetre in height. No warning symbol or script was visible on the front of the container. No warning, advisory, or content information was visible on the back of the container. The sample was in liquid form and was a light shade of pink (lighter in colour than sample #1).
Information was received regarding the contents of an aerosol can that the deceased had reportedly sprayed into his mouth. The container was like one found among the medical debris on the garage floor. The container was identified as a container of synthetic grease, manufactured by Fastco Fasteners. Warning images identified the contents as being flammable, poisonous, and explosive. The words ‘Extreme Danger’ were written in upper case on the container.
Figure 2 – Coolant anti-freeze
Figure 3 – Red-coloured aerosol can
WO #5 used her work phone to take photographs of the Complainant’s gun on the ground in the garage prior to bagging and securing it in the trunk of her cruiser.
Figure 4 - Cell phone photograph of the Complainant’s’ pistol on the garage floor taken by WO #5
Video/Audio/Photographic Evidence [3]
PPS Communications Recordings
The SO reported that an individual had pulled out in front of him and accelerated away. He indicated that he had tried to stop the vehicle but was now pulled over. The dispatcher subsequently advised that a Jeep Grand Cherokee had crashed by the Esso station at Chemong Road and Towerhill Road.
The SO broadcast that witnesses were reporting that the driver - the Complainant - was behind a Volkswagen Dealership with a gun. The dispatcher confirmed they had received a report of the Complainant with a gun.
The SO broadcast that the Complainant had a gun to his head, and that they were in the “shop”. Another police officer indicated that he would stop northbound traffic on Chemong Road. The dispatcher requested an exact location and was informed that they were in the garage bay of the dealership and the Complainant had a gun to his neck.
A police officer reported that he was at the Volkswagen Dealership with a man – CW #4 - who had been hit on the back of the head with a gun. The police officer stated CW #4 was bleeding from his head and requested EMS. He advised the ambulance could go to the TD Bank.
A police officer stated, “He’s on the ground,” and indicated they did not have a safe approach and needed more units in the garage.
The dispatcher made a call to EMS and advised they were dealing with an incident involving a man with a gun at Chemong Road and Towerhill Road. She advised CW #4, who had been hit with a gun in the back of the head, was bleeding and across the street with an officer in front of the TD Bank. She further stated that the Complainant was with police officers on the west side of the Volkswagen dealership and having seizures. EMS was advised that the Complainant had ingested anti-freeze, coolant, and/or motor oil, and there was no longer a safety concern. Two ambulances were requested with a rush.
A police officer stated, “He is having a seizure,” and that they were far north in the garage on the west side of the building. The police officer indicated that the Complainant was “on and off” but still breathing.
In-car Camera System (ICCS) Footage – the SO
At 2:14:39 p.m., a Jeep Cherokee was captured backing out of a driveway. The SO, directly behind the vehicle, attempted a traffic stop by activating his emergency lights. The Jeep Cherokee immediately sped off at a high rate of speed and was captured going through a red traffic light. The SO stopped and then proceeded through the intersection. The jeep was no longer in sight as the SO travelled north on Chemong Road.
The SO continued north on Chemong Road. The jeep came into camera view having crashed into a pole at the corner of Chemong Road and Towerhill Road. Two unknown civilians were observed waving west towards the Volkswagen dealership. The SO turned into the Volkswagen parking lot.
The SO entered the west bay door of the dealership garage area. The Complainant was captured holding CW #4 behind a car. CW #4 was subsequently let go and he ran out the east bay door.
The SO was captured with his firearm drawn and pointed at the Complainant. He was yelling commands to the Complainant to drop his gun and asked him to talk. A police officer entered through the east bay door armed with a rifle. The SO turned the ICCS camera in the direction of the Complainant. Three police officers were captured moving in on the Complainant, who was out of view.
The SO, WO #2 and WO #3 approached the area where the Complainant had collapsed onto the floor, having consumed a liquid substance, in front of a vehicle.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the PPS between August 11 and 31, 2023: - Occurrence Report;
- Memo Book Notes- WO #5;
- Memo Book Notes- WO #1;
- Memo Book Notes- WO #4;
- Memo Book Notes- WO #3;
- Memo Book Notes- WO #2;
- Memo Book Notes- the SO;
- ICCS footage;
- Communications recordings; and
- Copy of cell phone scene photographs taken by WO #5.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between August 13 and 17, 2023:- Preliminary Autopsy Findings from the Ontario Forensic Pathology Service;
- The Complainant’s medical records from PRHC; and
- Video footage from Circle K convenience store.
Incident Narrative
The evidence collected by the SIU, including an interview with the SO and video footage that captured the incident in parts, gives rise to the following scenario.
In the afternoon of August 11, 2023, the SO was in his cruiser travelling in the area of Park Street North and Parkhill Road West when he was forced to quickly react to a Jeep Cherokee. The Jeep had abruptly reversed out of a driveway. The officer decided to stop the Jeep for a traffic infraction and then initiated a pursuit when the vehicle failed to stop. The SO chased the Jeep and watched as it disregarded a red light, eventually making its way onto northbound Chemong Road. The officer followed for a period but then discontinued pursuit in the area of Bellevue Street.
The Complainant was operating the Jeep. He suffered from mental illness and was of unsound mind at the time. The Complainant lost control of the Jeep at Chemong Road and Towerhill Road and crashed into a pole at the northwest corner of the intersection. He emerged from the wreck holding a firearm and held up a taxi at gunpoint before making his way in the service garage of a Volkswagen dealership. Frustrated when he was unable to obtain keys for the vehicles under repair, the Complainant struck CW #4 in the back of the head with the gun. He was holding CW #4 at gunpoint by the southwest corner of the garage when the SO arrived in his cruiser.
On hearing broadcasts of 911 calls reporting a motorist emerging with a gun from a crash, the SO had made his way to Chemong Road and Towerline Road where he was directed by civilians to the dealership. He drove his cruiser a short distance into the garage through the west bay door, exited, and confronted the Complainant at gunpoint. The time was 2:18 p.m.
The officer ordered the Complainant to drop his gun. The Complainant released CW #4, who fled from the garage, but refused to drop the gun. Rather, he held it pointed under his chin and repeatedly asked the officer to shoot him. The SO replied that he was not going to shoot him, but wanted him to release the gun so they could talk.
As the stand-off continued over the next several minutes, the Complainant sprayed and poured the contents of various automotive fluids from containers on nearby benches. By this time, the SO was joined at his vehicle by another officer – WO #1. Armed with a C8 rifle, he too implored the Complainant to drop the gun and refrain from drinking from the containers.
At about 2:24 p.m., not more than six minutes from when the SO had arrived on scene, the Complainant collapsed and dropped his firearm. Officers moved in, secured the weapon, and handcuffed the Complainant. Realizing that he was in medical distress, they rolled the Complainant into the recovery position, removed the handcuffs, and administered CPR until the arrival of firefighters and paramedics.
The Complainant was transported to hospital and pronounced deceased at 3:32 p.m.
Cause of Death
The pathologist at autopsy was unable to arrive at a preliminary cause of death.
In the afternoon of August 11, 2023, the SO was in his cruiser travelling in the area of Park Street North and Parkhill Road West when he was forced to quickly react to a Jeep Cherokee. The Jeep had abruptly reversed out of a driveway. The officer decided to stop the Jeep for a traffic infraction and then initiated a pursuit when the vehicle failed to stop. The SO chased the Jeep and watched as it disregarded a red light, eventually making its way onto northbound Chemong Road. The officer followed for a period but then discontinued pursuit in the area of Bellevue Street.
The Complainant was operating the Jeep. He suffered from mental illness and was of unsound mind at the time. The Complainant lost control of the Jeep at Chemong Road and Towerhill Road and crashed into a pole at the northwest corner of the intersection. He emerged from the wreck holding a firearm and held up a taxi at gunpoint before making his way in the service garage of a Volkswagen dealership. Frustrated when he was unable to obtain keys for the vehicles under repair, the Complainant struck CW #4 in the back of the head with the gun. He was holding CW #4 at gunpoint by the southwest corner of the garage when the SO arrived in his cruiser.
On hearing broadcasts of 911 calls reporting a motorist emerging with a gun from a crash, the SO had made his way to Chemong Road and Towerline Road where he was directed by civilians to the dealership. He drove his cruiser a short distance into the garage through the west bay door, exited, and confronted the Complainant at gunpoint. The time was 2:18 p.m.
The officer ordered the Complainant to drop his gun. The Complainant released CW #4, who fled from the garage, but refused to drop the gun. Rather, he held it pointed under his chin and repeatedly asked the officer to shoot him. The SO replied that he was not going to shoot him, but wanted him to release the gun so they could talk.
As the stand-off continued over the next several minutes, the Complainant sprayed and poured the contents of various automotive fluids from containers on nearby benches. By this time, the SO was joined at his vehicle by another officer – WO #1. Armed with a C8 rifle, he too implored the Complainant to drop the gun and refrain from drinking from the containers.
At about 2:24 p.m., not more than six minutes from when the SO had arrived on scene, the Complainant collapsed and dropped his firearm. Officers moved in, secured the weapon, and handcuffed the Complainant. Realizing that he was in medical distress, they rolled the Complainant into the recovery position, removed the handcuffs, and administered CPR until the arrival of firefighters and paramedics.
The Complainant was transported to hospital and pronounced deceased at 3:32 p.m.
Cause of Death
The pathologist at autopsy was unable to arrive at a preliminary cause of death. Relevant Legislation
Section 215, Criminal Code - Failure to Provide Necessaries
215 (1) Every one is under a legal duty
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and(ii) is unable to provide himself with necessaries of life.
(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if
(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.
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 in Peterborough on August 11, 2023, following a confrontation with PPS officers. In the ensuing SIU investigation of the incident, 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 offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 of the Criminal Code, respectively. Both require something more than a simple want of care to give rise to liability. The former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is premised on even more egregious conduct that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the neglect constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the question is whether there was any want of care on the part of the SO, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or contributed to his death. In my view, there was not.
The SO was lawfully placed when he confronted the Complainant in the dealership garage. He had cause to believe that the Complainant had fled from the site of a crash into the dealership armed with a gun, and he was duty-bound to attend the scene to ensure public safety. Once in the garage, and seeing him holding CW #4 at gunpoint, the officer also had grounds to arrest the Complainant for a variety of offences.
It is also apparent that the SO comported himself with due care and regard for public safety, including the Complainant’s safety, throughout their engagement. From a distance of several metres, behind the front driver side of his cruiser, the SO did what he could to de-escalate the situation. Though the Complainant was in possession of a gun, which he could have discharged at the officer at any moment, the SO held his fire and tried to talk him down. Withdrawal from the scene was not an alternative in the circumstances. The Complainant had already shown a propensity for violence and the officer could not be sure if, or how many, third-parties were in the vicinity who might be endangered without a police presence. Similarly, the use of a conducted energy weapon or pepper spray were not reasonable options for a variety of reasons, including the SO’s distance from the Complainant and the location of a vehicle between them, the presence of flammable materials in the area, and the officer’s vulnerability to return gunfire in the event those weapons did not work. Finally, once the Complainant collapsed, the evidence establishes that the officers moved quickly to render emergency first-aid.
In the result, as there are no reasonable grounds to conclude that the SO conducted himself other than within the limits of the criminal law in his dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 8, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 of the Criminal Code, respectively. Both require something more than a simple want of care to give rise to liability. The former is predicated, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is premised on even more egregious conduct that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the neglect constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the question is whether there was any want of care on the part of the SO, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or contributed to his death. In my view, there was not.
The SO was lawfully placed when he confronted the Complainant in the dealership garage. He had cause to believe that the Complainant had fled from the site of a crash into the dealership armed with a gun, and he was duty-bound to attend the scene to ensure public safety. Once in the garage, and seeing him holding CW #4 at gunpoint, the officer also had grounds to arrest the Complainant for a variety of offences.
It is also apparent that the SO comported himself with due care and regard for public safety, including the Complainant’s safety, throughout their engagement. From a distance of several metres, behind the front driver side of his cruiser, the SO did what he could to de-escalate the situation. Though the Complainant was in possession of a gun, which he could have discharged at the officer at any moment, the SO held his fire and tried to talk him down. Withdrawal from the scene was not an alternative in the circumstances. The Complainant had already shown a propensity for violence and the officer could not be sure if, or how many, third-parties were in the vicinity who might be endangered without a police presence. Similarly, the use of a conducted energy weapon or pepper spray were not reasonable options for a variety of reasons, including the SO’s distance from the Complainant and the location of a vehicle between them, the presence of flammable materials in the area, and the officer’s vulnerability to return gunfire in the event those weapons did not work. Finally, once the Complainant collapsed, the evidence establishes that the officers moved quickly to render emergency first-aid.
In the result, as there are no reasonable grounds to conclude that the SO conducted himself other than within the limits of the criminal law in his dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 8, 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 Complainant was subsequently pronounced deceased at hospital. [Back to text]
- 3) 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.