SIU Director’s Report - Case # 18-POD-009
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Mandate of the SIU
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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 49-year-old female on January 13, 2018.
Notification of the SIUOn January 13, 2018 at 12:50 p.m., the Ontario Provincial Police (OPP) notified the SIU of a death involving the Complainant.
The OPP advised that on Saturday, January 13, 2018 at about 1:00 a.m., two Frontenac Detachment OPP police officers came across a suspicious vehicle in the Frontenac area, while they were conducting an investigation into a rash of break and enters.
When the officers approached the vehicle, the driver fled on foot. The officers located an intoxicated woman [now identified as the Complainant] just outside the vehicle. OPP police officers offered the Complainant a ride to her residence, which she accepted. The Complainant was subsequently dropped off at her residence.
At 5:37 a.m., EMS and fire services responded to the Complainant’s address, where they located the Complainant on the front porch of her residence with vital signs absent. The Complainant had some dried blood in the area of her head. The Complainant was then transported to the Perth and Smiths Falls District Hospital, where she was officially pronounced dead.
The TeamNumber of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
Complainant:49-year-old female, deceased
Civilian WitnessesCW #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
CW #10 Interviewed
CW #11 Interviewed
CW #12 Interviewed
Witness OfficersWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
Subject OfficersSO #1 Interviewed, and notes received and reviewed
SO #2 Interviewed, and notes received and reviewed
The officers initially drove the Complainant back to CW #8’s residence where she was offered a place to spend the night; however, the Complainant insisted that she be taken to her home so that she could stoke her wood burning stove. SO #1 and SO #2 drove the Complainant home. The Complainant realized that she did not have the key to her home but said that she could get inside. The officers believed her and left her on her front porch.
In the morning, the Complainant was found deceased outside her home. A post-mortem examination of the Complainant revealed that she had died of hypothermia with alcohol consumption as a contributing factor. There was no evidence that she had been assaulted, although she had injuries consistent with falling and crawling before she died.
The SceneAn SIU forensic investigator (FI) attended and photographed the immediate scene, which was in a wooded rural area with houses and cottages on gravel roads, located in Tichborne, Ontario.
The weather was clear, very cold (approximately -18 degrees Celsius) and dark.
The residence was a two-story single-family dwelling set 75 metres off the roadway. The front of the house was facing north, where the entrance and deck were located.
The front door was locked. The deck and surrounding area was snow-covered, and there were visible passive blood stains (drops) to the left of the doorway on the deck and ground. The snow in this area was tamped.
Most of the blood staining was located at the east side of the deck where there was a drop to the ground at the edge of 33 centimetres (about 1 foot).
Located on the ground a short distance from the blood concentration was a cigarette package.
The Complainant’s body had been located on the snow-covered ground beside the deck.
Environment Canada Weather ConditionsEnvironment Canada recorded the following weather conditions from their weather station located in Kingston, Ontario, some 49 kms south of Tichborne.
On Friday January 12, 2018, weather conditions changed from rain, early in the morning, to freezing rain by mid-day, then to heavy snowfall and bitter winds.
There are no readings recorded at the Kingston weather station between 23:00 p.m. on January 12, 2018 and 6:00 a.m. on January 13, 2018. The temperatures, including the wind chill between these times, varied from -20 degrees at 23:00 p.m. on January 12, 2018, to -26 degrees at 6:00 a.m., on January 13, 2018.
Forensic Evidence The post-mortem examination was conducted on January 15, 2018.
The Coroner’s report indicated that at autopsy there were injuries on the Complainant’s face, torso and limbs. The pattern of the injuries on the face is indicative of a fall and the injuries on the limbs are typical of crawling. There were no injuries to indicate an attack by another party.
In addition to injuries there was reddening of exposed skin, which is indicative of cold damage. On internal examination there was no natural disease that accounted for death.
Toxicological examination revealed use of ethanol. The blood ethanol was 232 mg/100 ml.  This is a concentration where obvious intoxication would be expected, but it is not a concentration associated with death from acute ethanol intoxication. The pathologist provided further clarification that a heavy user of alcohol may not display the usual signs of intoxication associated with this reading, and may have functioned quite well and been capable of making rational decisions.
Death was due to hypothermia with alcohol intoxication as a contributory factor. Exposure to the cold environment and the degree of alcohol intoxication would cause vasodilation and increase the rate of heat loss and thus contribute to the development of hypothermia.
The pathologist further clarified that normally the body reacts by suppressing the blood flow to the extremities in extreme weather conditions; however, alcohol causes the blood to flow to the extremities, thereby accelerating the onset of hypothermia, resulting in a state of disorientation and confusion within a two-hour period in these circumstances.
Communications RecordingsAn analysis of the communication audio recordings is consistent with the chronology of events as provided by SO #1 and SO #2. Of note are the following references regarding the officer’s contact with the Complainant and the terminology used.
At 12:01:14 a.m., an OPP officer transmitted that he found a heavily impaired female hiding behind a truck. The female may be unrelated [to the break and enter being investigated] but was impaired.
The communications operator reiterated back to the OPP officer that the female was unrelated to the break and enters and the female was in custody for impaired.
At 12:01:35 a.m., the OPP officer acknowledged the communications operator. He further explained that the female was at a residence there and was waiting for a male to come back out.
The communications operator transmitted that she would create a separate incident for the interaction between the police and the female.
At 12:01:48 a.m., the OPP officer identified the female as the Complainant and provided her date of birth.
At 12:07:38 a.m., the communications operator acknowledged that an OPP officer was leaving the area.
At 12:10:51 a.m., the communications operator confirmed with an OPP officer the licence plate on the truck.
At 12:30:33 a.m., the communications operator transmitted to an OPP officer the address for CW #2 [the Complainant’s husband]. CW #4 [the Complainant’s brother-in-law] resided elsewhere but was known to frequent CW #8’s [the Complainant’s father-in-law’s] address.
At 12:43:26 a.m., the communications operator requested clarification from an OPP officer. The communications officers asked the OPP officers who were attending CW #8’s address if the police attendance was in relation to the break and enters or the impaired.
At 12:43:35 a.m., an OPP officer told the communications operator that the police attendance was in relation to the truck that pulled over, saw the police at the scene and pulled into his driveway.
At 1:00:18 a.m., an OPP officer said they were 10-8 [in service] from CW #8’s address and were going to drop off the Complainant off at her home.
At 1:20:42 a.m., two OPP officers reported that they were 10-8 [in service] from the Complainant’s home and were waiting for a tow company to arrive at the location.
During a subsequent telephone conversation between the Communications Operator and SO #2, SO #2 indicated that the Complainant was hammered and that she was not driving.
SO #2 explained that it was a call not related to any criminal misconduct so the Communications Operator could clear it. The Communications Operator said she originally documented the call as a traffic complaint-impaired, because an OPP officer said one person was in custody for impaired. SO #2 advised the Communications Operator to change the call to a suspicious person because the Complainant was kneeling down by the front passenger tire of the truck and to him, she was very suspicious, but that she could clear the call. SO #2 explained that the communications operator could make a report saying: “Suspicious person at a not known address to her, given a ride back to her residence.”
Materials obtained from Police ServiceUpon request the SIU obtained and reviewed the following materials and documents from the OPP, namely, Central Hastings Detachment; Frontenac Detachment; Lanark County Detachment; Napanee Detachment; and Sharbot Lake Detachment:
- CAD Event Details (Information for B and E);
- CAD Event Details (Information Arrest of the Complainant);
- CAD Event Details (Sudden Death);
- Communications Log (x3)
- Confidential Duty Report- SO #2;
- Notes of WO #1, WO #3, WO #4, SO #1 and SO #2
- Occurrence Details- (B and E);
- OPP Audio Interview of four civilian witnesses (including WO #1);
- Radio Communications;
- Rough Notes- SO #1; and
- Written Statement- SO #1.
Section 219 and 220, Criminal Code -- Criminal negligence Causing Death
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
(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
In circumstances like these it is challenging not to speculate about how things could have gone differently and how the Complainant’s death could have been prevented; however, the question to be considered in this decision is limited to whether there are reasonable grounds to believe that SO #1 or SO #2 are criminally responsible for the Complainant’s death. For the reasons that follow, I am unable to form those grounds.
The SIU was notified and responded to the incident on January 13, 2018. SO #1 and SO #2 were designated as subject officers in the SIU’s investigation which included, but was not limited to, interviews with 12 civilian witnesses, five witness officers and both subject officers. With few exceptions, the witness statements were overwhelmingly consistent and the factual circumstances surrounding the Complainant’s death are predominately clear.
At around midnight on January 13, 2018, SO #1 and SO #2 were involved in an unrelated break and enter investigation. The officers noticed a pickup truck pulling into a driveway and saw CW #2 walking away. One of the 911 callers had identified CW #2 as the person responsible for a break and enter  and an officer called out to him, but he did not stop. The subject officers investigated the truck and noticed the Complainant crouched next to the passenger side of the truck. The officers yelled at her to not move and drew their service pistols. The officers re-holstered their pistols when it became apparent that the Complainant was not a threat. The Complainant was detained for investigative purposes, handcuffed and placed in the back of SO #2’s police cruiser. SO #2 was familiar with CW #2’s family and reassured the Complainant that he only wanted to confirm that CW #2 was safe and that he was not concerned if he had been drinking and driving.
SO #2 drove the Complainant to CW #8’s residence (where CW #2 was believed to be), followed by SO #1 and two other officers. SO #2 met CW #4 and CW #5 on the front porch of the residence and they told him that CW #2 had been there earlier but had left the residence. SO #2 was satisfied that CW #2 was safe and had a conversation with CW #4 and CW #5 about what to do with the Complainant. CW #4 said she could stay at CW #8’s residence, but the Complainant insisted that she be brought to her home because she needed to stoke her wood burning stove. SO #2 informed the Complainant’s family of this then drove the Complainant to her home, followed by SO #1 in a separate cruiser. The two other officers left and had no further involvement in this incident.
After they arrived at the Complainant’s house, SO #2 let the Complainant out of the rear of his police vehicle. At this point the Complainant was no longer handcuffed, although there is conflicting evidence about when the handcuffs were removed.  The officers and the Complainant engaged in a brief conversation before they left her. SO #1 asked the Complainant why she had snuck up on them and she said she was “between a rock and a hard place.” Before the officers left, the Complainant realized that she did not have the keys to her house. SO #2 asked the Complainant if she could get into her home and she replied matter-of-fact and with confidence, “Don’t worry, I can get into my own house.” She hugged and thanked the officers. SO #2 believed she was capable of getting into her home, and the officers returned to their vehicles and drove away. The Complainant walked toward the porch and was last seen by the officers standing next to her front door. Neither subject officer was aware of whether the Complainant had a cellular phone.
The Complainant was found deceased outside her home the following morning. When SIU investigators attended the scene the front door was locked and there was blood located at the east side of the deck. A post-mortem examination of the Complainant was performed by a forensic pathologist who noted that the Complainant had injuries to her face, torso and limbs indicative of falling and typical of crawling. The Complainant’s blood ethanol was 232 mg/100 ml. There was no evidence that the Complainant was attacked and her cause of death was determined to be hypothermia with alcohol intoxication as a contributory factor. 
The only criminal offence that could apply in these circumstances is criminal negligence causing death contrary to section 220 of the Criminal Code. Section 219 of the Criminal Code states that “[e]very one is criminally negligent who in doing anything, or omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.” The decision of the Court of Appeal for Ontario in R. v. Sharp (1984), 12 C.C.C. (3d) 428 (Ont. C.A.), sets out the test for criminal negligence as requiring “a marked and substantial departure from the standard of a reasonable person in circumstances”. On this evidence, I am unable to find that the subject officers showed a wanton or reckless disregard for the life of the Complainant, nor am I able to find that their conduct amounted to a marked departure from the standard of a police officer. The officers, in fact, demonstrated care in taking the Complainant to multiple residences that night in an attempt to get her to shelter. Although leaving her on her porch without ensuring that she had entered her premise was a decision that had tragic consequences,  I do not find that this meets the high standard required for criminal negligence.
In coming to this conclusion, I have considered several factors. To begin, I have considered that it was an extremely cold, windy night and the roads were snow-covered and slippery. The subject officers were clearly alive to the risk posed by the weather because they insisted on locating CW #2, who had walked out into a swampy area, and agreed to drive the Complainant home. However, the risk posed by the weather was attenuated because the Complainant was dressed appropriately for the weather and was left by the officers at her home. Although the Complainant was not wearing a hat or gloves, she was wearing a winter, snowmobile-style jacket, a sweater and shoes. SO #2 was aware that the Complainant did not have a key to her home, but this factor alone did not pose an obvious risk. The Complainant said she could get into her own home and SO #2 believed she was being sincere. Moreover, even if the Complainant was unable to get into her home, her home was not in an isolated area. The Complainant had a neighbouring home about 50 metres away and, as a resident in the area, could reasonably be expected to be familiar with other nearby houses where she could seek shelter. 
The final and most important factor in assessing negligence is whether the Complainant presented as too impaired to care for herself when the officers dropped her off at her home. There is no doubt that the Complainant drank a significant amount of alcohol and was impaired that evening. SO #1 and SO #2 referred to her as “heavily intoxicated” and “hammered” in their notes and over the radio, although they told the SIU that their initial impression was that she was only moderately intoxicated (placing her at a 5 or 6 on a scale of 1 to 10, 1 being sober and 10 being heavily intoxicated). While this discrepancy is concerning, I believe the officers when they stated that the Complainant sobered up considerably when she was in their custody. The Complainant spent well over an hour with the officers and during that time they observed her thought process become clearer and quicker. Her speech was not slurred when they left her. Both officers were qualified breath technicians and relied on their training and experience in making this assessment. While the Complainant’s blood alcohol content of 232 mg/100 ml is normally indicative of obvious impairment, the pathologist advised the SIU that a heavy drinker may not display the usual signs of intoxication associated with a high blood alcohol content and, in fact, may function quite well at the Complainant’s blood alcohol level. I believe the Complainant appeared capable of caring for herself, and note that she demonstrated she was capable of making a rational decision when she decided she wanted to go home to stoke the fire. I accordingly believe that the Complainant was not presenting as severely intoxicated when she was left at her home and the officers’ belief that she could take care of herself was not objectively unreasonable.
The Complainant’s death has clearly been a heartbreaking experience for her family and has also affected the subject officers deeply. In my opinion, while the subject officers made a very unfortunate decision by not ensuring that the Complainant had entered her home after leaving her on her porch, I am nevertheless satisfied that the Complainant’s death was unforeseeable and the officers’ conduct does not amount to criminal negligence in the circumstances. No charges will issue and the file will be closed.
Date: December 3, 2018
Original signed by
Special Investigations Unit
- 1) Almost three times the legal limit for driving in Canada. [Back to text]
- 2) This turned out to be incorrect. [Back to text]
- 3) SO #2 stated that he removed the Complainant’s handcuffs at CW #8’s residence but SO #1 said that the Complainant’s handcuffs were removed when they arrived at her home. I believe this discrepancy is minor and has no bearing on either officers’ credibility. [Back to text]
- 4) Alcohol intoxication contributed to the Complainant’s death because alcohol causes blood to flow to the extremities, accelerating the onset of hypothermia. [Back to text]
- 5) Some might consider their decision an error in judgment. However, in evaluating their conduct, I am informed by the fact that the Complainant’s family knew she was returning to her home to stoke a fire (which obviously can be potentially dangerous). I am certain that if her family thought that she was in such an impaired state that she could not have handled a wood fire or otherwise taken care of herself, that someone would have gone to check on her or made further inquiries with the OPP to ensure that she was safe. [Back to text]
- 6) The Courts considered a similar factor in R. v. Payne,  NLSCTD 62. In Payne, the accused was charged with criminal negligence causing bodily harm after leaving his girlfriend in a field on a broken-down skidoo in approximately -20 degree Celsius weather, resulting in her sustaining severe frostbite. The accused and his girlfriend had been drinking alcohol and smoking “hash oil” although there was no evidence that the complainant was significantly impaired when she was left alone in the field. The judge acquitted the accused, finding that it was not unreasonable for the accused to presume that the complainant could have walked home because she was appropriately dressed, the night was clear, and she was left in a familiar area that was close to the main trail. [Back to text]
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.