SIU Director’s Report - Case # 20-OCD-183
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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 Mr. Alberto Ayala-Guerrero.
“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 Mr. Alberto Ayala-Guerrero.
The Investigation
Notification of the SIU
On July 25, 2020, at 12:12 p.m., the Brockville Police Service (BPS) contacted the SIU and reported the following.On July 25, 2020, at 10:19 a.m., BPS police officers were on mobile patrol when they spotted a wanted party on the North Augusta Road overpass of Highway (Hwy) 401. They turned around and drove up to the man [now known to be Mr. Ayala-Guerrero].
When they went to arrest him, Mr. Ayala-Guerrero pulled away, went over the guardrail and landed on the westbound on-ramp to Hwy 401. Mr. Ayala-Guerrero was still alive and taken by Emergency Medical Services (EMS) to Brockville General Hospital (BGH) but had since been transferred to Kingston General Hospital (KGH) in serious condition.
At 1:47 p.m., information was received from police indicating that Mr. Ayala-Guerrero had succumbed to his injuries.
Mr. Ayala-Guerrero was from Houston, Texas, and was wanted there for murder.
Mr. Ayala-Guerrero had been in the Brockville area since at least Thursday, attempting to find a hotel that would accept cash.
The Team
Number of SIU Investigators assigned: 3 Number of SIU Forensic Investigators assigned: 1
As a result of an appeal for witnesses, a canvass of the area and information from the BPS, civilian witnesses were identified and interviewed. As well, the area of the intersection was canvassed for surveillance cameras but none were found.
An SIU Forensic Investigator completed a scene examination and took photographs.
Complainant:
56-year-old male, deceasedCivilian Witnesses (CW)
CW #1 InterviewedCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed
Witness Officers (WO)
WO #1 Interviewed, and notes received and reviewed WO #2 Interviewed, and notes received and reviewed
Additionally, the notes from four other officers were received and reviewed.
Subject Officers (SO)
SO #1 Interviewed, and notes received and reviewed SO #2 Interviewed, and notes received and reviewed
Evidence
The Scene
The incident occurred on the Hwy 401 overpass of North Augusta Road in Brockville. There were sidewalks on either side of the overpass each with concrete and metal guard rails on the overpass. The height of the top of the guardrail was 1.1 metres from the sidewalk and the height from the top of the guardrail to the roadway below was 8.7 metres. The area of impact was 2.02 metres south of the north straight wall, and 2.52 metres south of the curved wall. North Augusta Road was a four-lane paved roadway, oriented north-south over Hwy 401. The westbound joining lane of the highway was where Mr. Ayala-Guerrero had been located, and a blood stain was on the asphalt where Mr. Ayala-Guerrero landed. There was a single black running shoe and three medical inhalers on the ground at the area of impact.
Figure 1 – Scene on Hwy 401 at North Augusta Road overpass
Police Communication Recordings
9:55:13 – 9:55:24 a.m. SO #2 radios in to the BPS dispatcher that he and SO #1 will be off with Mr. Ayala-Guerrero on the North Augusta 401 overpass. Mr. Ayala-Guerrero is running, and it is believed this is the man from yesterday from the murder.9:55:41 – 9:56:03 a.m. SO #2 says Mr. Ayala-Guerrero just jumped over the overpass and is lying on the on-ramp. SO #1 asks the dispatcher to get EMS en route.
9:56:17 – 9:56:51 a.m. SO #2 tells the dispatcher they are going to need EMS as Mr. Ayala-Guerrero hit his head. SO #2 tells the dispatcher it is going to be on the Hwy 401 westbound on-ramp from North Augusta. Mr. Ayala-Guerrero is still breathing.
9:59:39 – 9:59:43 a.m. SO #2 asks the dispatcher for an estimated time of arrival for EMS. The dispatcher says EMS is en route.
10:00:15 – 10:00:22 a.m. WO #1 asks WO #2 if he wants him to close off the on-ramp. WO #2 tells WO #1 if he is there that would be helpful and WO #1 responds by saying he has it closed off right now.
10:00:47 a.m. The BPS dispatcher tells WO #2 that EMS is en route from the north base just north of the 401 and should be there in a couple of minutes. WO #2 acknowledges.
10:07:37 – 10:08:44 a.m. WO #2 tells the dispatcher that EMS is coming but going the wrong way travelling eastbound. He asks the dispatcher to confirm if the ambulance that went by them in the wrong direction is for them or not. The dispatcher tells WO #2 it was the ambulance responding to them and that it is turning around.
10:25:50 a.m. SO #2 tells the dispatcher that Mr. Ayala-Guerrero has been loaded into the ambulance and SO #1 is inside the ambulance with the paramedics and they are just about to leave.
EMS Communication Recordings
9:58:50 – 9:59:32 a.m. Ontario Provincial Police (OPP) dispatcher calls the paramedic service dispatcher asking if they have a call for a jumper off the North Augusta Road bridge at marker 698 onto Hwy 401. The OPP dispatcher says OPP and BPS police officers are on the way. An ambulance is dispatched to the area.9:59:58 – 10:06:00 a.m. BPS dispatcher calls the EMS dispatcher and says the man has just jumped and he is breathing. The police officers are asking for an estimated time of arrival (ETA) of the ambulance. The EMS dispatcher updates the ambulance crew, who are en route to the call. The OPP dispatcher calls and asks for an ETA for the ambulance. The dispatcher says the ambulance should be there on scene in a couple of minutes.
10:08:18 a.m. BPS dispatcher calls and tells the EMS dispatcher the ambulance just went by the scene travelling eastbound and the incident is in the westbound lanes. The EMS dispatcher tells the BPS dispatcher they were initially told the eastbound lanes and that the ambulance is in the process of turning around.
10:11:56 – 10:18:42 a.m. The ambulance arrives at the scene in the westbound lanes of Hwy 401 under the overpass at North Augusta Road. The EMS dispatcher calls the BGH and gives them a heads up that paramedics will be attending the BGH with a patient that jumped off the overpass and that the ambulance crew is leaving the scene shortly.
10:26:37 – 10:27:00 a.m. The paramedics on scene tell the dispatcher that they are leaving the scene, en route to the BGH. They have a 55-year-old male that jumped off the Hwy 401 overpass, landing on his left side. He has a heart rate of about 150, they are starting ventilations and are about a minute away from BGH.
Materials obtained from Police Service
Upon request, the SIU obtained and reviewed the following materials and documents from BPS:- Arrest Warrant- Mr. Ayala-Guerrero (Texas);
- Communication recordings;
- BPS Property ID Tags;
- BPS Scene Photos;
- Credit Cards and other membership card - Mr. Ayala-Guerrero;
- Canadian Police Information Centre Response Reports (x3);
- Exhibit List;
- General Reports (x2);
- Notes-Officer #1;
- Notes-Officer #2;
- Notes-WO #2;
- Notes-Officer #3;
- Notes-WO #1;
- Notes-SO #2;
- Notes-Officer #4;
- Notes-SO #1;
- OPTIC Occurrence Summary Report;
- Photo of Driver's Licence- Mr. Ayala Guerrero;
- Photo of Social Security Card- Mr. Ayala-Guerrero;
- Photobrief-BGH;
- Photobrief-Motor Vehicle Search Photos (x2);
- Photobrief-Forensic Identification Services Photos 401 overpass;
- Photobrief-Wallet Contents;
- Photobrief-Secondary Search Photos (x2);
- Property Evidence Report;
- Search Photos;
- Supplementary Reports (x5);
- Will State- Officer #4;
- Will State-WO #2 (x2);
- Will State-Officer #5;
- Will State-WO #1 (x2);
- Will State-SO #2 (x2);
- Will State-Officer #6;
- Will State-Officer #1;
- Witness Statement-WO #1;
- Zone Alert-July 24, 2020; and
- Zone Alert-July 24, 2020-Update.
Materials obtained from Other Sources
The SIU obtained and reviewed the following records from non-police sources:- Ambulance Call Reports;
- EMS Call Details Report and Communication Recordings;
- Email to MTO regarding traffic camera; and
- Photos from CW #2.
Incident Narrative
The material events in question are clear on the evidence collected by the SIU and may be summarized in short order. In the morning on July 25, 2020, Mr. Ayala-Guerrero was a wanted man. He had recently fled the United States where a warrant had been taken out against him in the State of Texas in relation to the murder of a woman on July 13, 2020. On July 24, 2020, complaining of shortness of breath, Mr. Ayala-Guerrero had attended hospital in Brockville where he provided a false name and was treated with an inhaler. Police had been called to the hospital to assist in dealing with Mr. Ayala-Guerrero as he could not speak English well and had no identification. As Mr. Ayala-Guerrero had left before their arrival, and concerned for his well-being, BPS officers tracked down the taxi he had used to arrive at hospital. Following further investigation, they were able to locate a vehicle with a Texas licence plate and, ultimately, learn of the American warrant. With that information, the Canada Border Services Agency also issued a warrant for Mr. Ayala-Guerrero.
Believing Mr. Ayala-Guerrero might still be in Brockville, BPS officers started to look for him. SO #1 and SO #2 were among these officers. They were aware of the goings-on from the day before and had a photograph of Mr. Ayala-Guerrero – a still-shot captured by a hospital’s security camera. With SO #1 operating a marked SUV and SO #2 as his passenger, the officers were traveling north on North Augusta Road approaching the Hwy 401 overpass when they spotted an individual walking north on the west sidewalk. The male drew their attention as he had a sweater on with a hoodie over his head on a day that was hot and humid. Deciding to get a better look at the man, the officers drove past him, performed a U-turn on the north side of the overpass and started south back toward the bridge. The man was still walking north on the west sidewalk and the officers were able to have a look at his face. Continuing further south and pulling into a side street momentarily, where they stopped to examine Mr. Ayala-Guerrero’s photo, the officers were satisfied that the man was Mr. Ayala-Guerrero.
SO #1 and SO #2 returned to North Augusta Road with the intention of apprehending Mr. Ayala-Guerrero. Again, they drove past Mr. Ayala-Guerrero and performed another U-turn in the area of Parkdale Avenue East, whereupon they resumed their travel south toward Mr. Ayala-Guerrero.
Now realizing that the officers were after him, Mr. Ayala-Guerrero turned to walk, and then run, south on the west sidewalk back toward the overpass. SO #1 accelerated past him and brought the cruiser to a stop in Mr. Ayala-Guerrero’s vicinity. SO #2 was the first out of the cruiser. The officer was no more than a few metres from Mr. Ayala-Guerrero when Ayala-Guerrero scaled the overpass railing. SO #2 yelled at him not to jump and ran to grab hold of him. The officer made contact with clothing over Mr. Ayala-Guerrero’s left shoulder and arm area as Mr. Ayala-Guerrero jumped from the overpass onto the highway below.
Mr. Ayala-Guerrero landed on the merge lane from the westbound on-ramp to the highway at North Augusta Road and sustained serious injuries. SO #2 immediately climbed down the embankment from North Augusta Road to the highway and rendered assistance to Mr. Ayala-Guerrero. The officer pulled him from the live lane of traffic on the gravel shoulder and comforted him, encouraging him to breathe.
Paramedics arrived at the scene and took charge of Mr. Ayala-Guerrero’s care. He was taken to BGH and, from there, to KGH, where he passed away.
In his report of Preliminary Autopsy Findings, the pathologist attributed Mr. Ayala-Guerrero’s death to “multiple blunt force injures”.
Believing Mr. Ayala-Guerrero might still be in Brockville, BPS officers started to look for him. SO #1 and SO #2 were among these officers. They were aware of the goings-on from the day before and had a photograph of Mr. Ayala-Guerrero – a still-shot captured by a hospital’s security camera. With SO #1 operating a marked SUV and SO #2 as his passenger, the officers were traveling north on North Augusta Road approaching the Hwy 401 overpass when they spotted an individual walking north on the west sidewalk. The male drew their attention as he had a sweater on with a hoodie over his head on a day that was hot and humid. Deciding to get a better look at the man, the officers drove past him, performed a U-turn on the north side of the overpass and started south back toward the bridge. The man was still walking north on the west sidewalk and the officers were able to have a look at his face. Continuing further south and pulling into a side street momentarily, where they stopped to examine Mr. Ayala-Guerrero’s photo, the officers were satisfied that the man was Mr. Ayala-Guerrero.
SO #1 and SO #2 returned to North Augusta Road with the intention of apprehending Mr. Ayala-Guerrero. Again, they drove past Mr. Ayala-Guerrero and performed another U-turn in the area of Parkdale Avenue East, whereupon they resumed their travel south toward Mr. Ayala-Guerrero.
Now realizing that the officers were after him, Mr. Ayala-Guerrero turned to walk, and then run, south on the west sidewalk back toward the overpass. SO #1 accelerated past him and brought the cruiser to a stop in Mr. Ayala-Guerrero’s vicinity. SO #2 was the first out of the cruiser. The officer was no more than a few metres from Mr. Ayala-Guerrero when Ayala-Guerrero scaled the overpass railing. SO #2 yelled at him not to jump and ran to grab hold of him. The officer made contact with clothing over Mr. Ayala-Guerrero’s left shoulder and arm area as Mr. Ayala-Guerrero jumped from the overpass onto the highway below.
Mr. Ayala-Guerrero landed on the merge lane from the westbound on-ramp to the highway at North Augusta Road and sustained serious injuries. SO #2 immediately climbed down the embankment from North Augusta Road to the highway and rendered assistance to Mr. Ayala-Guerrero. The officer pulled him from the live lane of traffic on the gravel shoulder and comforted him, encouraging him to breathe.
Paramedics arrived at the scene and took charge of Mr. Ayala-Guerrero’s care. He was taken to BGH and, from there, to KGH, where he passed away.
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.
220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(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
On July 25, 2020, Alberto Ayala-Guerrero died as the result of injuries incurred from a fall off a bridge in Brockville. As BPS officers were present with Mr. Ayala-Guerrero and had attempted to take him into custody at the time of the fall, the SIU was notified and commenced an investigation. SO #1 and SO #2 were identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject officer committed a criminal offence in connection with Mr. Ayala-Guerrero’s death.
The offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. The offence is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the issue is whether there was any want of care on the part of the officers that caused or contributed to Mr. Ayala-Guerrero’s fall and was sufficiently derelict to attract criminal sanction. In my view, there was not.
SO #2 and SO #1 were engaged in the exercise of their lawful duties when they spotted Mr. Ayala-Guerrero and decided they would endeavor to arrest him. They were apprised of information that Mr. Ayala-Guerrero was the suspect in a recent murder in Texas, with respect to which a warrant against him had been issued, and that he was in the Brockville area. They were also aware that a nationwide arrest warrant had been issued by the Canada Border Services Agency. In the circumstances, when they spotted Mr. Ayala-Guerrero on the North Augusta Road overpass, the officers were within their rights in attempting to take him into custody.
Thereafter, I am unable to find fault with the manner in which they approached Mr. Ayala-Guerrero. They could not have known that Mr. Ayala-Guerrero, faced with his pending apprehension, would take the drastic action he did. When it became apparent within seconds of SO #2’s exit from the cruiser that Mr. Ayala-Guerrero was scaling the bridge railing, the officer did what he could to save him. He shouted at Mr. Ayala-Guerrero to stop and tried to grab him to prevent his fall. SO #2 had barely made contact with Mr. Ayala-Guerrero when he jumped to the ground below. Following the fall, SO #2 quickly made his way to Mr. Ayala-Guerrero and pulled him onto the highway’s shoulder to prevent any further injury. Regrettably, the damage had been done. On this record, I am satisfied that SO #2 and SO #1, the latter still exiting the cruiser when Mr. Ayala-Guerrero fell, comported themselves with due care and regard for Mr. Ayala-Guerrero’s health and safety.
In the result, as I am satisfied that SO #2 and SO #1 acted lawfully throughout their encounter with Mr. Ayala-Guerrero, there is no basis for criminal charges in this case and the file is closed.
Date: February 16, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
The offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. The offence is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the issue is whether there was any want of care on the part of the officers that caused or contributed to Mr. Ayala-Guerrero’s fall and was sufficiently derelict to attract criminal sanction. In my view, there was not.
SO #2 and SO #1 were engaged in the exercise of their lawful duties when they spotted Mr. Ayala-Guerrero and decided they would endeavor to arrest him. They were apprised of information that Mr. Ayala-Guerrero was the suspect in a recent murder in Texas, with respect to which a warrant against him had been issued, and that he was in the Brockville area. They were also aware that a nationwide arrest warrant had been issued by the Canada Border Services Agency. In the circumstances, when they spotted Mr. Ayala-Guerrero on the North Augusta Road overpass, the officers were within their rights in attempting to take him into custody.
Thereafter, I am unable to find fault with the manner in which they approached Mr. Ayala-Guerrero. They could not have known that Mr. Ayala-Guerrero, faced with his pending apprehension, would take the drastic action he did. When it became apparent within seconds of SO #2’s exit from the cruiser that Mr. Ayala-Guerrero was scaling the bridge railing, the officer did what he could to save him. He shouted at Mr. Ayala-Guerrero to stop and tried to grab him to prevent his fall. SO #2 had barely made contact with Mr. Ayala-Guerrero when he jumped to the ground below. Following the fall, SO #2 quickly made his way to Mr. Ayala-Guerrero and pulled him onto the highway’s shoulder to prevent any further injury. Regrettably, the damage had been done. On this record, I am satisfied that SO #2 and SO #1, the latter still exiting the cruiser when Mr. Ayala-Guerrero fell, comported themselves with due care and regard for Mr. Ayala-Guerrero’s health and safety.
In the result, as I am satisfied that SO #2 and SO #1 acted lawfully throughout their encounter with Mr. Ayala-Guerrero, there is no basis for criminal charges in this case and the file is closed.
Date: February 16, 2021
Electronically approved by
Joseph Martino
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.