SIU Director’s Report - Case # 18-OCD-273
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Contents:
Mandate of the SIU
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.
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.
Information Restrictions
Freedom of Information and Protection of 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.
- 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.Mandate Engaged
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 63-year-old man (the “Complainant”).
“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 63-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 13, 2018, at 1:20 p.m., the Barrie Police Service (BPS) notified the SIU of the death of the Complainant. Reportedly on September 12, 2018, at about 6:15 p.m., Greater Sudbury Police Service (GSPS) responded to a domestic incident on Sunny Street in Garson outside the City of Sudbury. It was their information that the Complainant had shot and wounded his wife [now determined to be Civilian Witness (CW) #1]. CW #1 fled the residence and sought shelter in a neighbour’s garage. In the meantime, the Complainant barricaded himself inside his residence. GSPS police officers including officers with the Tactical Unit (TU) and crisis negotiators attended the address and attempted to resolve the situation. Subsequently, the BPS Tactical Support Unit (TSU) and its crisis negotiators were requested to assist and relieve the GSPS TU and negotiating team.
On September 13, at 6:35 a.m., police officers of the BPS TSU and negotiating team took over control of the incident. At 12:27 p.m., BPS TSU police officers breached the home of the Complainant. Initially, a robot, and then a police service dog, were sent into the residence and at 12:40 p.m., the Complainant was located in a bedroom deceased from an apparent self-inflicted gunshot wound.
The Complainant was pronounced dead at 1:00 p.m., on September 13. His body was transported to Sudbury where the post mortem was scheduled for September 17, at 0900 hrs. The pathologist cited the preliminary cause of the Complainant’s death was an “inner oral gunshot wound to the head.”
The Team
Number of SIU Investigators assigned: 2 Number of SIU Forensic Investigators assigned: 2
Complainant:
63-year-old male, deceasedCivilian Witnesses
CW #1 Interviewed CW #2 Interviewed
Witness Officers
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
Subject Officers
SO Interviewed, and notes received and reviewedEvidence
The Scene
The scene was a single family dwelling on Sunny Street in Garson, Ontario. Two vehicles were located in the driveway. A 20 gauge shotgun shell was located on the driveway.
The side door on the east side of the residence was damaged from a forced entry. Located inside the residence in a bedroom was the Complainant deceased. He was face up on a bed with a traumatic self-inflicted gunshot wound to his head. A shotgun was found on top of the Complainant’s body with the barrel of the shotgun near his head.
The shotgun was a 20 gauge single shot Harrington and Richardson, Pardner Model 8B1. A single shotgun cartridge case was found ejected from the chamber.
In the basement of the residence there was a bag found on the floor with several open and unopened boxes of shotgun ammunition. On a table was a camouflage long gun case, beside a trigger lock and a handwritten note. An unopened gun safe was located in the basement area with several long guns inside.
Photographs and measurements were taken at the scene.
Communications Recordings
Communications Recordings
911 Calls
At some point the caller’s husband came on the line with the 911 call taker to report he and his wife heard two shots about 15 seconds apart. He told the call taker about CW #1 having heard the Complainant say he was going to kill himself. He explained when he heard the second shot he thought the Complainant shot himself.
On September 12, 2018, at 6:15:29 p.m., another person called 911 and said he thought he heard a “backfire.” Moments later the caller told the call taker he saw CW #1 running through his backyard in distress about a firearm. By then the caller knew CW #1 had made it to her neighbour’s residence.
GSPS Negotiator’s Communication Recordings
First Recording:
The recording was approximately six hours longs. The Complainant told the GSPS negotiator of difficult circumstances involving his wife and family. The Complainant said he was intoxicated and had wanted to kill his wife before taking his own life. He regretted his decision and feared going to jail.
Throughout the recording, the Complainant referenced his intent to kill himself and mentioned “death by cop.” He said he had no choice because he did not want to go to jail.
At the five hour and 43 minute mark into the recording, the Complainant asked to speak to a specific person. The GSPS negotiator told him he could talk to this person when he surrendered. The Complainant said he was at the door but that he could not see anything as it was foggy. The GSPS negotiator encouraged the Complainant to come outside to the end of the driveway.
At the six hour and six minute mark it sounded as if the Complainant was falling asleep. The Complainant said he would walk out to the end of his driveway as a sign of good faith, but he never did. The Complainant said to call it a night. He agreed to answer the phone if the GSPS negotiator called back in 15 minutes. At the six hour and 14 minute mark the Complainant hung up the telephone.
Second Recording:
The recording was approximately one hour long. The Complainant said he just woke up, the lights and the computer were on and CW #1 was not there. The negotiator said they stopped talking earlier around 2:00 a.m. It was around 5:00 a.m. when the GSPS negotiator and the Complainant resumed their communication.
At 11 minutes into the recording the GSPS negotiator introduced the Complainant to BPS negotiator, WO #4, who took over the negotiations. The Complainant said he was sorry and began crying. He said his future was life in jail. From about the half-way point, this recording appeared to be a recording of the beginning of the same negotiations with WO #4 as provided by the BPS. The recording ended at the 59:11 minutes.
BPS Negotiator’s Communication Recordings
At first the Complainant talked primarily about his domestic difficulties.
WO #4 said she knew the Complainant had a firearm and asked him to put the firearm away for now. The Complainant did not acknowledge the request. This was 36:30 minutes into the recording.
The Complainant wanted to make a coffee. WO #4 asked the Complainant to guarantee he would not hurt himself. He said he could not. WO #4 agreed to call the Complainant back in 5 minutes (some reference in the background to the time being 6:10 a.m.). This was 40 minutes into the recording.
The Complainant said he was in a situation he never thought he would be in his life. He again expressed anguish over his family circumstances, and explained he had been having trouble sleeping and had snapped. He said he did not have any choices and that he cannot forgive himself for doing what he did. This was one hour 4 minutes and 50 seconds into the recording.
The Complainant again alluded to ending his life and thanked WO #4 for talking to him. The Complainant mentioned knowing someone who had committed suicide. The Complainant complained about the reception on the phone and WO #4 told him she had another phone and would call him back on it. The Complainant agreed he would answer. The recording ended at this point.
Materials obtained from Police Service
Upon request the SIU obtained and reviewed the following materials and documents from the BPS and the GSPS:- Event Details;
- Firearm Acquired - CFP;
- GSPS Background Event Chronology;
- GSPS Event Details;
- GSPS Incident Command Chart;
- GSPS List of Civilian Witnesses;
- GSPS List of Involved Officers;
- GSPS Note to Complainant;
- GSPS Procedure-Use of Force;
- GSPS Procedure-High Risk Individuals;
- GSPS Procedure-Tactical Unit;
- GSPS Procedure-Major Incident Command;
- GSPS Procedure-Crisis Negotiation;
- GSPS Procedure-Preliminary Perimeter Control and Containment;
- GSPS Procedure-Hostage Rescue and Barricaded Persons;
- GSPS Sudden Death Report;
- GSPS Summary Interview of witness;
- GSPS Will States of forty undesignated officers;
- GSPS Witness Statement of CW #1 and two additional witnesses;
- Notes of all witness officers and the subject officer;
- Occurrence Summary;
- BPS Procedure-Tactical Support Unit;
- BPS Procedure-Major Incident Command and Crisis Negotiation; and
- Transfer of Command and Control.
Incident Narrative
The events in question are clear on the information collected by the SIU. The day before the shooting, the Complainant had a confrontation with his wife and consumed alcohol. In the evening, the Complainant shot CW #1 with a shotgun. CW #1 took refuge in a neighbour’s garage. The neighbour called 911.
GSPS officers responded to the scene. They set up a command post and took up positions of containment around the Complainant’s home. Trained negotiators were brought in and made telephone contact with the Complainant. A standoff ensued in the course of which the Complainant indicated he would not peacefully surrender but, rather, had intentions of killing himself. As midnight neared, the GSPS contacted the BPS and arranged to have the police operation transferred to the BPS in order that the GSPS tactical officers could have some rest.
The SO of the BPS was notified of the incident and slated to assume overall command of the police response upon her arrival at the scene. Together with a number of trained negotiators and officers with the Tactical Support Unit, she and a contingent of BPS officers made their way to the scene in Garson in the Greater Sudbury area arriving at about 4:00 a.m. of September 13, 2018. The SO met with GSPS officers in their command post and was briefed on the situation. She formally took over command of the operation at about 6:30 a.m., working from inside the BPS command centre, which had been driven to the scene. Meanwhile, the BPS tactical officers had relieved the GSPS officers around the house and WO #4, one of the BPS negotiators, had taken over from the GSPS lead negotiator. WO #4 first spoke with the Complainant over the phone at about 5:15 a.m. Their conversation continued for about an hour. The Complainant remained despondent and continued to speak about ending his life. Following a brief break in the negotiations, WO #4 resumed contact with the Complainant on the phone at about 6:15 a.m. They spoke until about 6:52 a.m., at which time the Complainant said he needed a break. That was the last time the Complainant was heard from.
Following repeated efforts to connect with the Complainant over the phone, the decision was made to have tactical officers breach the side door of the Complainant’s home so that “recon scouts” – robots with video surveillance capability – could be deployed into the home. The door was breached at about 12:30 p.m. and two scouts deployed into the home. One of the robots made its way into a bedroom and captured images suggesting the Complainant was motionless on a bed. With that information, a number of tactical officers, together with a police dog, made their way into the home. the Complainant was located on the bed and deceased from an apparent gunshot wound to the head. A shotgun was discovered beside him. The Complainant had shot himself. The time was about 12:50 p.m.
At the Complainant’s postmortem examination, the pathologist concluded that he had died as the result of an “intra-oral shotgun wound”.
GSPS officers responded to the scene. They set up a command post and took up positions of containment around the Complainant’s home. Trained negotiators were brought in and made telephone contact with the Complainant. A standoff ensued in the course of which the Complainant indicated he would not peacefully surrender but, rather, had intentions of killing himself. As midnight neared, the GSPS contacted the BPS and arranged to have the police operation transferred to the BPS in order that the GSPS tactical officers could have some rest.
The SO of the BPS was notified of the incident and slated to assume overall command of the police response upon her arrival at the scene. Together with a number of trained negotiators and officers with the Tactical Support Unit, she and a contingent of BPS officers made their way to the scene in Garson in the Greater Sudbury area arriving at about 4:00 a.m. of September 13, 2018. The SO met with GSPS officers in their command post and was briefed on the situation. She formally took over command of the operation at about 6:30 a.m., working from inside the BPS command centre, which had been driven to the scene. Meanwhile, the BPS tactical officers had relieved the GSPS officers around the house and WO #4, one of the BPS negotiators, had taken over from the GSPS lead negotiator. WO #4 first spoke with the Complainant over the phone at about 5:15 a.m. Their conversation continued for about an hour. The Complainant remained despondent and continued to speak about ending his life. Following a brief break in the negotiations, WO #4 resumed contact with the Complainant on the phone at about 6:15 a.m. They spoke until about 6:52 a.m., at which time the Complainant said he needed a break. That was the last time the Complainant was heard from.
Following repeated efforts to connect with the Complainant over the phone, the decision was made to have tactical officers breach the side door of the Complainant’s home so that “recon scouts” – robots with video surveillance capability – could be deployed into the home. The door was breached at about 12:30 p.m. and two scouts deployed into the home. One of the robots made its way into a bedroom and captured images suggesting the Complainant was motionless on a bed. With that information, a number of tactical officers, together with a police dog, made their way into the home. the Complainant was located on the bed and deceased from an apparent gunshot wound to the head. A shotgun was discovered beside him. The Complainant had shot himself. The time was about 12:50 p.m.
Cause of Death
Relevant Legislation
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 died as the result of a gunshot wound to the head in the morning of September 13, 2018. For several hours prior to his death, the Complainant was in his home on Sunny Street in Garson engaged in a standoff with police officers from, first, the GSPS and, then, the BPS. For the reasons that follow, I am satisfied there are no reasonable grounds to believe that any officer, including the SO of the BPS, committed a criminal offence in connection with the Complainant’s death.
The only offence that arises for consideration is that of criminal negligence causing death contrary to section 220 of the Criminal Code. In other words, was the manner in which police conducted the operation criminally negligent and, if so, did said criminal negligence cause or contribute to the Complainant’s death? In my view, though I need only deal with the first question to resolve the officers’ potential criminal liability, the answer to both is a clear “no”.
As an offence of penal negligence, criminal negligence causing death is predicated, in part, on conduct that amounts to a marked and substantial departure from a reasonable level of care in the circumstances. By the time that the SO assumed command of the police operation, GSPS officers had contained the scene with tactical officers, evacuated homes in the area and, with the assistance of trained negotiators and a psychiatrist, were communicating with the Complainant with the aim of having him surrender peacefully. The BPS officers responded quickly to the request for assistance and took over the operation. From the BPS command centre, located close to the scene, the SO organized a methodical police response that appears to have been at all times reasonable and professional. With the safety of neighbours in the area secured, the focus was on communication with the Complainant. Those efforts continued in earnest for well over an hour until it became clear that the Complainant was no longer willing or able to speak with the police. Fearing that the Complainant might have killed himself or was getting ready to do so, the SO adopted a more aggressive posture and approved breaching the side door of the home so that reconnaissance robots could be deployed inside the residence. The SO’s decision to do so came about five hours after the police had last heard from the Complainant, but I can find no fault with the timing of her decision. The officers knew that the Complainant was armed with a firearm, had shot at and attempted to kill his wife, was intoxicated, and had spoken about provoking a confrontation with police in order that he be shot dead. In the circumstances, the SO was entitled to exercise extreme caution and only expose officers in her command to lethal danger as a last resort when all other options of resolving the standoff had failed. On this record, it is evident that the officers conducted themselves well within the limits of care prescribed by the criminal law.
In conclusion, the officers who responded to the residence on Sunny Street were there lawfully seeking to contain and arrest the Complainant following his attempted murder of his wife. While they were unable to prevent the Complainant from taking his own life, they did what they reasonably could in the circumstances to thwart his destructive course. In the result, there are no grounds for proceeding with criminal charges against the subject officer or any other officer, and the file is closed.
Date: August 26, 2019
Original signed by
Joseph Martino
Interim Director
Special Investigations Unit
The only offence that arises for consideration is that of criminal negligence causing death contrary to section 220 of the Criminal Code. In other words, was the manner in which police conducted the operation criminally negligent and, if so, did said criminal negligence cause or contribute to the Complainant’s death? In my view, though I need only deal with the first question to resolve the officers’ potential criminal liability, the answer to both is a clear “no”.
As an offence of penal negligence, criminal negligence causing death is predicated, in part, on conduct that amounts to a marked and substantial departure from a reasonable level of care in the circumstances. By the time that the SO assumed command of the police operation, GSPS officers had contained the scene with tactical officers, evacuated homes in the area and, with the assistance of trained negotiators and a psychiatrist, were communicating with the Complainant with the aim of having him surrender peacefully. The BPS officers responded quickly to the request for assistance and took over the operation. From the BPS command centre, located close to the scene, the SO organized a methodical police response that appears to have been at all times reasonable and professional. With the safety of neighbours in the area secured, the focus was on communication with the Complainant. Those efforts continued in earnest for well over an hour until it became clear that the Complainant was no longer willing or able to speak with the police. Fearing that the Complainant might have killed himself or was getting ready to do so, the SO adopted a more aggressive posture and approved breaching the side door of the home so that reconnaissance robots could be deployed inside the residence. The SO’s decision to do so came about five hours after the police had last heard from the Complainant, but I can find no fault with the timing of her decision. The officers knew that the Complainant was armed with a firearm, had shot at and attempted to kill his wife, was intoxicated, and had spoken about provoking a confrontation with police in order that he be shot dead. In the circumstances, the SO was entitled to exercise extreme caution and only expose officers in her command to lethal danger as a last resort when all other options of resolving the standoff had failed. On this record, it is evident that the officers conducted themselves well within the limits of care prescribed by the criminal law.
In conclusion, the officers who responded to the residence on Sunny Street were there lawfully seeking to contain and arrest the Complainant following his attempted murder of his wife. While they were unable to prevent the Complainant from taking his own life, they did what they reasonably could in the circumstances to thwart his destructive course. In the result, there are no grounds for proceeding with criminal charges against the subject officer or any other officer, and the file is closed.
Date: August 26, 2019
Original signed by
Joseph Martino
Interim Director
Special Investigations Unit
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.