Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.

Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the death of a 34-year-old male on September 15, 2017.

Notification of the SIU

On September 15, 2017, at 2:23 p.m., a Windsor Police Service (WPS) officer notified the SIU of the custody death of the Complainant.

The officer reported that on September 15, 2017, the WPS went to a residence to arrest a man for attempted murder. The residence was secured. The police officers may have heard a “bang.” They sent in a camera and found the man dead.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Complainant:

34-year-old male, deceased

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

Witness officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

WO #8 Interviewed

WO #9 Interviewed

WO #10 Interviewed

WO #11 Interviewed

On September 15, 2017, at 9:30 a.m., WO #2 and WO #3 of the Amherstburg Police Service (APS) attended the Complainant’s residence in Windsor to gather information about a shooting that had happened the night before. The victim of the shooting had survived. When the APS officers arrived at the Complainant’s residence, they learned that the victim had identified the Complainant as the shooter. The Complainant was believed to be in his residence because a triangulation (ping) test indicated that his cellphone was nearby.

At approximately 11:30 a.m., nine additional police officers from Windsor Police Service (WPS) Emergency Services Unit (ESU) arrived on scene to assist. WO #9 was the team leader of the WPS unit and directed WPS officers to surround the residence. Over the next two hours, WO #9 attempted to communicate with the Complainant to negotiate an arrest. He phoned the Complainant’s cellphone 20 times, leaving one voicemail and one text message identifying himself and asking the Complainant to call him. WO #9 also addressed the Complainant on a loudspeaker, stating there were grounds to arrest him for attempted murder and asking him to come out of his home. Some of this interaction was recorded on video, including WO #9 stating, “We know you are inside. We need you to come to the front door and speak with us, open the door and put your hands high in the air so we can see them. The house is completely surrounded. We need to speak with you. Answer the door or answer your phone.” The Complainant never returned WO #9’s text message or phone calls, and at no time did he exit the residence.

WPS members contacted the Complainant’s family to confirm the Complainant’s location and determine if there were children in the home. CW #1 told a WPS officer that he believed the Complainant was suicidal. The Complainant was depressed, had substance abuse problems and attended the hospital a few days earlier for mental health reasons. CW #2 told a WPS officer that she had recently found the Complainant sleeping in the garage with a shotgun.

At approximately 1:00 p.m., several police officers heard a muffled gunshot from the garage. WO #9 was concerned that the Complainant was injured and attempted to send a remote controlled camera (scout) into the garage. WO #9 first tried to open the garage door using a code provided by CW #2, but the attempt failed. WPS members then broke the glass of three garage windows but could not successfully deploy the scout. At approximately 2:00 p.m., WPS members using equipment provided by the fire department forced apart the main garage door. The Complainant was found on a couch with a shotgun in his lap and obvious trauma to his head. Paramedics attended and confirmed that the Complainant was deceased. The post-mortem examination confirmed that he died of an intraoral gunshot wound to the head.

The Scene

The scene was a two-bedroom bungalow in Windsor. The driveway is on the north side of the house with a detached garage at the rear of the property. The overhead garage door was battered open with one horizontal panel torn off. The garage door was demolished and laid in a pile at the entrance.

The inside of the garage was completely filled with heavy machinery, steel racks, cupboards, benches, cabinets and piles of junk. The large windows on each of the four walls of the garage were completely blocked. The windows on the front side of the garage were broken and the window on the south side of the garage was cranked open.

The Complainant was seated on a couch with his feet on a footstool in the northeast corner of the garage. A shotgun with the muzzle pointed in the direction of his mouth was lying in his lap. The Complainant’s hands were on the gun and there was a metal bar painted red beside him partially under his right arm. There was obvious trauma to his head.

A vehicle was parked in the driveway. A police battering ram and a tactical shield were on the driveway in front of the vehicle. There was a tactical robot camera on the hood of the vehicle and a crowbar hanging on a cement block wall near the vehicle.

Forensic Evidence

Toxicology

On September 19, 2017, specimens of the Complainant’s blood and urine contents were submitted to the Centre of Forensic Sciences (CFS) for analyses for alcohol and drugs.

On January 9, 2018, the SIU received an Autopsy and Toxicology Report.

The toxicology examination detected a small amount of non-prescription ‘recreational’ drugs in the Complainant’s system. This did not contribute to his death.

Post-Mortem Examination

On September 16, 2017, a Forensic Pathologist performed the post-mortem (PM) examination on the Complainant’s body and determined the cause of death to be a gunshot wound to the head.

Video/audio/photographic evidence

The residence is visible and WO #3 said that there is a police stand-off. The police officers were using a loud speaker to encourage somebody to exit a house; the police officer said they are not leaving until the person comes out and talks to them.

An air horn was activated three times, then a wail siren is heard. The police officers were calling out on a loud speaker, “We know you are inside. We need you to come out or answer your phone, come to the front door or answer your phone. We need to speak with you. We have you completely surrounded.”

WO #3 said there was a police vehicle parked in a driveway; there were five police officers with assault rifles with cover behind a police truck and they were trying to get somebody out of the residence by trying to negotiate with him using a loudspeaker.

WO #3 said there were a dozen police officers with assault rifles and a police officer was lying in the grass behind a tree with a rifle pointed at the residence. A voice is heard saying, “We know you are inside. We need you to come to the front door and speak with us, open the door and put your hands high in the air so we can see them. The house is completely surrounded. We need to speak with you. Answer the door or answer your phone.”

Sirens are heard intermittently in the distance. WO #3 said that he thought an ESU police officer was knocking on the garage door or trying to get into the door of the residence.

Communications Recordings

The WPS officers discussed their deployment and their plan at the scene. Multiple radio conversations were heard in the area of the address; a suggestion was made to call the fire department and ask them to breach the garage door. The police officers requested an ambulance and victim services to attend.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the APS, Ontario Provincial Police (OPP) Middlesex Detachment (London), and the WPS:

• Call Hardcopy
• Duty roster-Day
• Email from WO #5 re Scout footage-Sept 18, 2017
• Investigative File (Large Document form)
• Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, WO #7, WO #8, WO #9, WO #10, and WO #11
• Person Hardcopy – the Complainant
• Photo from APS re: the Complainant
• Policy-Directive – Barricaded Persons
• Radio Communications
• Supplementary Narrative-WO #11, and
• Will State of WO #4, WO #5, WO #6, WO #7, WO #8, WO #9, WO #10

Sections 219 and 220, Criminal Code - Criminal negligence Causing Death

219 (1) Every one is criminally negligent who

1. in doing anything, or
2. 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.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

1. 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
2. in any other case, to imprisonment for life

On September 15, 2017, the Complainant died as a result of a self-inflicted gunshot wound to the head in the course of a ‘standoff’ with the police. The involved police officers did not physically interact with the Complainant prior to his death, although they attempted to communicate with him by phone and over a loudspeaker. The Complainant never responded to the police attempts to communicate with him. The SIU did not designate a subject officer. For the reasons that follow, it is apparent that no criminal offence was committed by any police officer in connection with the Complainant’s death.

The factual circumstances of the Complainant’s interaction with the police are clear. The SIU’s investigation encompassed interviews of three civilian witnesses and 11 witness officers, as well as a review of radio communications, text messages, and a video of part of the interaction. The statements are materially consistent and corroborated by the physical and forensic evidence.

It is clear that the police officers entered the garage after the Complainant was already dead and the Complainant’s death was caused by his own actions. The only charge that could be considered in these circumstances is criminal negligence causing death contrary to s. 220 of the Criminal Code. The decision of the Court of Appeal for Ontario in R. v. Sharp (1984), 12 CCC (3d) 426 (Ont CA) states that criminal negligence requires a “marked and substantial departure” from the standard of a reasonable person in the circumstances where the accused showed a “reckless disregard for the lives and safety of others.” The officers’ conduct does not meet this test. The Complainant had a firearm and there were reasonable grounds to arrest him for attempted murder. The manner in which the police officers attempted to negotiate the Complainant’s arrest was reasonable. The police officers followed the WPS’ policy regarding barricaded persons. The attempts at communication were calm and did not show a departure from the conduct expected of a reasonable police officer, let alone a reckless disregard for the safety of the Complainant. It would be speculative to suggest that if the police had attempted to breach the garage door more quickly, that the result would have been different. The fact that the Complainant was an armed man intent on suicide meant that in the circumstances trying to get into the garage more quickly may have resulted in serious consequences including serious injury or death to one or more officers.

In the final analysis, I am satisfied there is no evidence to indicate that the witness officers bore any criminal responsibility for the Complainant’s decision to end his life. Nothing from the investigation suggested that the involved officers were anything less than professional and cautious in what was inherently a tense situation. Accordingly, there are no reasonable grounds to believe that an offence has been committed and no charges will issue.

Date: July 6, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit