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 an incident that took place on August 23, 2016 at about 10:55 p.m. in Napanee. The complainant, a 30 year-old male at the time of the incident, sustained a firearm injury and was diagnosed with a broken clavicle.

Notification of the SIU

The SIU was notified of the incident by the Ontario Provincial Police.

The team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 2

SIU Forensic Investigators responded to the scene and identified and preserved evidence. They documented the relevant scenes associated with the incident by way of notes, photography, videography, sketches and measurements.

Complainant

Interviewed

Civilian witness

CW Interviewed

Witness officers

WO #1 Interviewed

WO #2 Not interviewed, but notes received and reviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

Subject officer

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

The scene

The incident took place in and around a camping trailer in Bass Cove Family Campground trailer park located at 5558 County Road 8 in Napanee.

Scene diagram

A 27 foot Master Coach Deluxe trailer was positioned on the south side of a gravel roadway oriented east/west with the front of the trailer facing west.

Physical evidence

The entry door was facing the roadway and there were windows on either side. A window, located at the right of the doorway facing the roadway, was broken from the outside in. A piece of cut window screen was lying on the ground under the window. A small amount of blood was on the bottom of the window frame to the left of the entry door.

There was a hole with an approximate diameter of four to five centimetres in the exterior wall from an object that had exited the trailer opposite the location of the entry door. An “ARWEN”[1] projectile was located on the ground below the exit hole.

The interior of the trailer had broken glass across a bed at the front of the trailer to the right of the door. There were numerous items on the bed that had several blood stains on the bottom sheet, including numerous small white pills "BAC10", an Ontario Health Card, and a plastic handled box cutter with a broken blade.

There was blood transfer on the light switch on the wall between the door and left window, and blood transfer on the lower window frame, corresponding to the blood stains on the outside of the window frame.

Video/sudio/photographic evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications Recordings

Police communications recordings were collected and reviewed:

• CW contacted the 911 dispatcher in the evening of August 23, 2016 reporting that the complainant needed some help because he had sent her emails saying he was going to kill himself.
• WO #4 reported that the complainant was alone in the trailer and held a handgun to his head, threatening to use it. WO #4 suggested an ARWEN be brought to the scene and the dispatcher indicated that the Tactical Response Unit was responding.

Materials obtained from OPP

Upon request the SIU obtained and reviewed the following materials and documents from the Ontario Provincial Police (OPP):

• ARWEN Manual
• Duty Roster-Napanee Detatchment-2016
• Email form OPP Re TRU
• Email from OPP NAPANEE RMS SP16239133
• Emails and texts between CW and the complainant
• Event Chronology
• Information to Obtain Telewarrant form
• Less than Lethal - Training Powerpoint
• WO Notes
• Occurrence Reports
• Police contact history
• Telewarrant to Enter Dwelling-House, and
• CW Statement

On August 23, 2016, at approximately 6:53 p.m., a 911 call was received by the call taker for the OPP, Napanee Detachment. The CW reported that she had ended a relationship with the complainant that evening, which resulted in the CW receiving numerous emails from the complainant indicating that he intended to end his life. The CW reported the complainant’s location.

WO #3 and WO #4 were the first to arrive at the scene in separate police vehicles. The complainant yelled out through the window to ask what they wanted and then put a BB gun to his head and pulled the trigger, but the gun would not fire. The complainant then took a container of lighter fluid , squirted it on his body and told the officers that he would light himself on fire. He also had small propane cylinders inside the trailer and told the officers that he would blow himself up. The officers tried to get him to come out of the trailer but the complainant would not do so.

Members of the OPP TRU team, including the SO, began arriving at the scene. At about 10:55 p.m., after the complainant was observed to have cut himself numerous times on his chest and both wrists, the SO discharged two plastic rounds from his ARWEN, striking the complainant once. The impact threw the complainant back from one of the trailer’s windows. At that point, the TRU arrest team entered the trailer and apprehended the complainant, whereupon he was taken by ambulance to hospital and diagnosed with a broken left clavicle.

Section 25(1), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

1. as a private person,
2. as a peace officer or public officer,
3. in aid of a peace officer or public officer, or
4. by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the complainant’s apprehension, it is clear from all of the evidence that the complainant was intent on taking his own life and had taken numerous steps to carry out that intention, including putting a pellet gun to his head and pulling the trigger, dousing himself with lighter fluid and attempting to set himself and his trailer on fire, putting propane tanks on his stove and attempting to blow himself up and slashing his wrists, chest and abdomen with a knife. As such, police had reasonable grounds to believe that the complainant was a danger to himself or others and therefore had grounds to apprehend him pursuant to the Mental Health Act. As such, the apprehension of the complainant was legally justified in the circumstances.

With respect to the amount of force used by the SO in subduing the complainant, I find that his actions were more than justified in the circumstances and that he used no more force than necessary to subdue the complainant, who was clearly doing severe damage to himself and would likely have taken his own life without the intervention of police. In light of all of the self-harm that the complainant had already done to himself and all the harm and damage that he was threatening to do, it was certainly not a stretch for officers to believe on reasonable grounds that the complainant was capable and intent on ending his life, if not subdued. Although it is clear that the injury to the complainant’s clavicle was caused by one of the ARWEN projectiles that were deployed in an effort to subdue him, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by the SO was only resorted to after the attempts to first talk the complainant out of his stated intentions failed, and when it appeared the only remaining option was to forcefully save the life of the complainant despite his obvious intentions and many efforts to the contrary. As such, I find on this record that the actions by the SO fell within the range of what was reasonably necessary in the circumstances to effect the complainant’s lawful detention, preserve his life and ensure public safety.

In the final analysis, I am satisfied for the foregoing reasons that the complainant’s apprehension and the manner in which it was carried out were lawful notwithstanding the injury which he suffered. I am, therefore, not only satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and that there are no grounds for proceeding with charges in this case, but also that the actions of all officers ultimately saved the complainant’s life.

Date: July 25, 2017

Original signed by

Joseph Martino
Acting Director
Special Investigations Unit

Endnotes

• 1) [1] A non-lethal launcher which fires 37 mm foam or wooden or tear gas rounds. It has a 5-round rotary drum magazine. [Back to text]