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.

On April 1, 2016, the complainant in this case was confirmed deceased.

Notification of the SIU

On March 31, 2016, the complainant was reported to have gone to his doctor for pain medication for his knees. He apparently asked the doctor to give him a fatal injection, so he could die with dignity. The doctor gave him some morphine. Later that evening, Niagara Regional Police Service (NRPS) received a call from a man on a cellular phone at the recreational canal in Welland who reported an elderly man was trying to drown himself and another man was restraining him. Officers responded to the scene and spoke to the complainant. It was determined that it was not a suicide attempt and no grounds existed for a Mental Health Act (MHA) arrest. The police officers took the complainant home. He apparently lived alone.

On the morning of April 1, 2016, one of the complainant’s daughters went to his apartment, found the complainant missing and contacted the police. That morning, the complainant’s body was located in the canal. NRPS notified the SIU regarding the complainant’s death.

The team

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Complainant

N/A

Civilian witnesses

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

CW #7 Interviewed

CW #8 Interviewed

CW #9 Interviewed

Witness officers

WO #1 Not interviewed

WO #2 Not interviewed[1]

WO #3 Interviewed

Subject Officers

SO #1 Interviewed but notes not provided, as is a subject officer’s right

SO #2 Interviewed but notes not provided, as is a subject officer’s right

Upon request, the SIU obtained and reviewed the following materials and documents from NRPS:

• call hardcopy
• detailed call summaries
• duty roster - March 31, 2016 - nights
• general occurrence;
• general order - mentally ill persons;
• GPS map showing units in area of call
• internal memo re COMM audio
• notes of WO #2 and WO #3
• recording from master logger, and
• request for recordings from master logger

On March 31, 2016, the complainant was a very elderly man with several health issues. He lived alone. That evening, the complainant was walking along the banks of the Welland recreational canal. CW #5, who was also at the canal, called 911, and stated that he was calling on behalf of CW #4, who had found the complainant threatening to jump into the canal. Police were dispatched to attend as a check welfare call near the east bank of the Welland canal.

When SO #1 and SO #2 arrived, the complainant was seated on a bench near CW #4 and CW #5. He appeared calm and relaxed. CW #4 told SO #1 that when he was riding through the park near the canal, he had seen the complainant near the canal bank. The complainant told CW #4 that he intended to jump into the canal. CW #5 told SO #1 that he heard the complainant say that he was just kidding when he had earlier stated he wanted to jump into the canal.

SO #1 spoke to the complainant who stated he had no idea why the police were there. He denied that anything was wrong. SO #2 asked the complainant if he wanted to commit suicide. The complainant denied such thoughts, and claimed to have never said anything about wanting to harm himself. He denied stating to CW #4 that he wanted to go into the canal. He was calm and was cooperative, answering all questions clearly. He appeared to be well taken care of and in good health, and was dressed appropriately for the weather. He did not appear depressed, but rather was laughing and joking. Although both SO #1 and SO #2 were advised by dispatch that the complainant had been at the hospital the previous day, it was not in connection with any mental health issue. There were no indications that the complainant needed emotional or physical assistance.

Paramedics arrived but the complainant refused to give them permission to examine him. He also refused their request to go to the hospital and speak to a doctor or mental health worker. There was no indication that the complainant was under the influence of alcohol or drugs. SO #2 took the complainant home in a cruiser. He was calm and relaxed throughout the drive. Once arriving at his residence, the complainant got out of the cruiser, shook SO #2’s hand, and thanked him for the ride home.

The next day, the complainant’s daughter reported the complainant to be missing. A few hours later, the complainant was found drowned in the canal. The cause of death was determined to be drowning and hypothermia due to submersion in cold water. No drugs were detected in his system.

Section 215, Criminal Code – Duty of persons to provide necessaries

215(1)(c) Every one is under a legal duty 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.

215(2)(b) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies upon him, to perform that duty, if 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.

Section 220, Criminal Code – Causing death by criminal negligence

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence […]

The cause of the complainant’s death is not in dispute. On April 1, 2016 the complainant’s submerged body was located in the Welland Canal in the City of Welland. The post-mortem examination on the body determined the cause of death to be drowning and hypothermia due to submersion in cold water.

The issue before me is whether there are reasonable grounds to believe that SO #1 and /or SO #2 committed criminal negligence cause death and/or failure to provide the necessities of life for their role in the complainant’s death. Both offences require at the very minimum conduct that amounts to a marked and substantial departure from the conduct of a reasonably prudent person in all the circumstances. I do not believe that the evidence comes close to meeting this standard. In fact, in my opinion, there is no evidence that suggests that SO #1 or SO #2 were, in any way, responsible for the complainant’s death, by either act or omission. It is readily apparent that both officers did everything possible under the circumstances to determine whether the complainant, on March 31, 2016, was actively suicidal. There was nothing about his physical appearance or emotional presentation that would suggest that he was incapable of caring for himself. He appeared lucid and did not appear at all impaired by alcohol or drugs and was appropriately dressed for the temperature. Despite many opportunities, the complainant, to his detriment, was not forthcoming about the intensity of his suicidal intent with any of the police and emergency personnel at the scene. The officers checked with the hospital, who confirmed he had been there the day before but not for mental health issues. I have concluded that the complainant was the sole author of his demise. I am unable to find any fault with the investigation and conduct of either SO #1 or SO #2 that would give me reasonable grounds to believe they committed a criminal offence and as a result, no charges will issue.

Date: June 22, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] It was determined that WO #1 and WO #2 were in the same area, but had no involvement in this case. [Back to text]