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SIU Director’s Report - Case # 18-PCD-125

Contents:

News Releases for this Case:

French:

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.

Information restrictions

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.

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 54-year-old man on April 23, 2018, in Oxford County.

The Investigation

Notification of the SIU

On April 23, 2018, at 4:45 a.m., the OPP notified the SIU of the custody death of the Complainant. 

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2
 

Complainant:

54-year-old male, deceased


Civilian Witnesses

CW #1 Not interviewed (Next-of-kin)
CW #2 Not interviewed (Trustee)

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Incident Narrative

On April 23, 2018, at 12:38 a.m., the Complainant called 911 to report that he intended to kill himself. He said that he was in a vehicle north of the intersection at Oxford County Road 22 and Oxford County Road 29.

At around 12:54 a.m., witness officer (WO) #1 and WO #2 arrived on the scene and saw the Complainant’s vehicle with its four-way flashers on. The subject officer (SO), who was the supervisor, was aware that the Complainant had a firearm registered in his name and ordered the officers to stay away from the vehicle.

The SO arrived on the scene at 1:06 a.m. and attempted to communicate with the Complainant by calling and texting his cellphone. He tried to shine light into the Complainant’s vehicle and to use the ditch as cover to get closer to the vehicle, but he was unable to see inside the vehicle.

At 2:00 a.m., the Tactical Rescue Unit was dispatched and, at 3:45 a.m., WO #3 and WO #4 arrived with an armoured vehicle. WO #3 and WO #4 used the armoured vehicle to get closer to the Complainant’s vehicle. The Complainant was discovered with a gunshot wound to his head and a firearm in his hands. Suicide notes and a do not resuscitate form were located in the vehicle.

Cause of Death

On April 24, 2018, at 9:00 a.m., a pathologist conducted a post-mortem examination of the Complainant at the London Health Sciences Centre. Once the post-mortem examination was completed the pathologist advised the cause of death to be a “perforating gunshot wound to head and brain.” The final post-mortem report was received by the SIU on February 22, 2019 and concluded that the immediate cause of death was a perforating intraoral gunshot wound.

Evidence

The Scene

The scene was at Oxford County Road 22, which runs in a general north-south direction and runs north from Oxford County Road 29. The area is rural with no residences in view. There was no artificial lighting. There was a gravel shoulder on either side of the roadway. One vehicle was located within the scene.

Vehicle 1 was a Grey Mazda 5 station wagon. The Mazda 5 was parked on the east gravel shoulder of Oxford County Road 22, facing in a northerly direction. It was located 169 metres north of Oxford County Road 29. The Mazda 5’s four-way flashers were on.

A typed “suicide note” was taped to the interior of the driver’s side window. [1] A do not resuscitate form was taped to the steering wheel. On the front driver’s dash was a copy of the “suicide note”, an emergency contact note and advanced care directive note. The keys to the vehicle were in the ignition.

The Complainant was seated in the driver’s seat. There appeared to be an exit wound to the top of his head. The Complainant’s hands were together in his lap with a revolver in his right hand pointed towards the floor area. High velocity bloodstaining was visible to the roof liner behind the driver’s seat. A raised mark was located on the left side of the roof of the vehicle behind the driver’s seat. A wheelchair was located in the back seat of the car.

Physical Evidence

Firearm Seized from Scene

SIU Forensic Investigators (FIs) recovered a Smith and Wesson, Model 686-6, .357 calibre Magnum stainless steel revolver at the scene. Upon proving the revolver safe, an SIU FI removed a single .38 calibre cartridge case from the chamber. The cartridge case was positioned in the twelve o’clock position directly behind the firing pin of the revolver. A Canadian Firearms Registry check determined the revolver was legally registered to the Complainant.

Communications Recordings

911 Call from the Complainant

The SIU obtained the 911 call made by the Complainant to the OPP Communications Centre on April 23, 2018. The call began at 12:38 a.m. and showed the following:
  • A man [now determined to be the Complainant] called and said he was in a small grey van;
  • He provided his name;
  • The Complainant said he was on Oxford Road 22 and Oxford Road 29. He was about half a kilometre north of Oxford Road 29;
  • The Complainant told the dispatcher “I hate to say it but I’ve decided to commit suicide, I just wanted to let you know”;
  • Almost immediately the call was dropped;
  • The dispatcher called the Complainant’s cell phone several times and received the same automated message ‘the customer you have dialed is currently unavailable’; and
  • The dispatcher called Bell and obtained the subscriber information for the Complainant, namely his name, address, and phone number.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP (Oxford Detachment):
  • Crime Scene Control Register;
  • Communications Recordings;
  • Event Details;
  • Homicide Sudden Death Report;
  • Notes of the SO, WO #1, WO #2, WO #3 and WO #4;
  • Occurrence Details;
  • Occurrence Involvements and Associations;
  • Occurrence Summary;
  • OPP CPIC – the Complainant;
  • Preliminary Police Report (Forensic); and
  • Supplementary Occurrence Report.

Relevant Legislation

Section 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 April 23, 2018, police officers with the Oxford Detachment of the Ontario Provincial Police (OPP) responded to a 911 call indicating that the Complainant was in a vehicle in a rural area and intended to commit suicide. The Complainant was later discovered in the driver’s seat of his vehicle with a gunshot wound to his head. A suicide note, a do not resuscitate (DNR) form and an advanced care directive were found inside the vehicle. The SIU’s investigation into the Complainant’s death included interviews with the SO and four witness officers (WOs). The police communication recordings and incident notes of the officers were also received and reviewed. The evidence was overwhelmingly consistent and it is clear that the Complainant decided to take his own life. I accordingly have no reasonable grounds to believe that the subject officer (SO) committed a criminal offence in relation to the Complainant’s death.

The Complainant came to the OPP’s attention on April 23, 2018, at 12:38 a.m., when the Complainant called 911 to report that he was in a grey vehicle north of the intersection at Oxford County Road 22 and Oxford County Road 29. The Complainant said, “I hate to say it, but I’ve decided to commit suicide. I just wanted to let you know.” The call was dropped and the dispatcher tried to call the Complainant back multiple times, but the Complainant did not answer his phone.

The SO, WO #1 and WO #2 were initially dispatched to the scene. While the officers were en route, a cell phone “ping” test confirmed the Complainant’s location. The Communications Centre also performed a Canadian Firearms Registry query and determined that a .38 calibre handgun was registered in the Complainant’s name.

At approximately 12:54 a.m., WO #1 and WO #2 arrived at the scene. The scene was a rural, unlit road with no nearby houses. WO #1 and WO #2 observed the Complainant’s vehicle about 100 to 150 metres away from their location with its hazard lights on, but the SO told them not to approach the vehicle. At 1:06 a.m., the SO also arrived.

The SO felt that he could not safely approach the vehicle due to the nature of the circumstances, the surrounding area and the information about a potential firearm. Instead, the SO attempted to communicate with the Complainant by calling and texting his cell phone. He identified himself as a police officer and stated he wanted to talk, but got no response. The SO also directed officers to attend the Complainant’s residential address, which was obtained by querying his licence plate, but it was unoccupied.

Other OPP officers arrived and they, along with WO #1, blocked the road with pylons. Spike belts were deployed north and south of the Complainant’s vehicle to stop him in the event that he decided to flee.

The SO attempted to use a spot light to illuminate the Complainant’s vehicle, but could not see inside it due to the glare. The SO also tried to approach the Complainant’s vehicle with another officer, using the ditch and tree line for cover, but they could not safely get close enough to determine if the Complainant was inside the vehicle.

At approximately 2:00 a.m., the Critical Incident Commander ordered the Tactical Rescue Unit (TRU), including WO #3 and WO #4, to respond. The TRU arrived on scene at about 3:45 a.m. with an armoured police vehicle. Shortly thereafter, the TRU approached the Complainant’s vehicle in the armoured vehicle and observed a piece of paper titled “Suicide Note” taped to the inside of the driver’s side window. The Complainant was slumped over and motionless in the driver’s seat. The TRU officers exited the armoured vehicle and approached the Complainant’s vehicle. Both WO #3 and WO #4 described seeing a handgun in the Complainant’s hands and obvious trauma to his head. Inside the vehicle was a copy of the suicide note, a DNR form and an advanced care directive. [2]

On April 24, 2018, a pathologist performed a post-mortem examination and determined the Complainant’s cause of death to be a “perforating gunshot wound to the head and brain.” The final post-mortem report, received by the SIU on February 22, 2019, concluded that the immediate cause of death was a perforating intraoral gunshot wound. That is, a gunshot wound that emanated from inside the mouth that injured the head and brain.

Based on a review of all the evidence, it is clear that the Complainant felt his circumstances were unbearable and that he shot himself in order to end his suffering. There is no evidence that any police officer is responsible for shooting the Complainant and the only charge that could be considered in these circumstances is criminal negligence causing death contrary to s. 220 of the Criminal Code. Criminal negligence is a high threshold. The decision of the Court of Appeal for Ontario in R. v. Sharp, (1984), 12 CCC (3d) 428 (Ont CA), states that criminal negligence requires a “marked and substantial departure” from the standard of a reasonable person in the circumstances, such that an accused’s act or omission shows “a wanton or reckless disregard for the lives and safety of others.” [4]

The SO was the assigned supervisor that night and thought it was unsafe to approach the Complainant’s vehicle. This decision meant that around three hours passed from the time the officers arrived on the scene to the time the Complainant’s body was found. I believe this decision was absolutely reasonable in the circumstances, which included an uncommunicative person in distress who was believed to have a firearm. [5] I am similarly unable to find that the SO’s conduct demonstrated a reckless disregard to the Complainant’s life. Throughout the incident, the SO demonstrated considerable concern for the Complainant’s well-being. He attempted to contact the Complainant by calling and texting his cell phone and also sent officers to the Complainant’s residence. He even attempted to approach the vehicle using the ditch as cover, despite the potential danger. It is apparent that the SO took several reasonable steps to determine whether the Complainant was safe without compromising the safety of himself or the other OPP officers.

In any event, I am not satisfied that the SO’s decision to not immediately approach the vehicle contributed to the Complainant’s death and believe the Complainant was likely already dead by the time WO #1 and WO #2 arrived on the scene. The police officers interviewed by the SIU did not report seeing any activity in the vehicle or hearing a gunshot after they arrived. [6] Also, when the Complainant’s body was finally found he was reportedly pale and the blood from his wound had pooled and coagulated, indicating that the Complainant had been dead for some time. I accordingly believe it likely that the Complainant, who had made a clear plan to end his life, shot himself prior to the arrival of the police officers.

In closing, I have no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s death and instead believe he made reasonable attempts to verify the Complainant’s well-being. I am unable to find his actions negligent in any way [let alone criminally negligent] and suspect the Complainant was already dead by the time the officers arrived on scene. No charges will issue and the file will be closed.


Date: February 28, 2019




Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) The suicide note explained that the author committed suicide because of unbearable suffering caused by long-term disability and failing health. The author explained that he made this decision in a normal state of mind and that he did not want to be revived. [Back to text]
  • 2) These items were observed by SIU investigators who attended the scene. The suicide note stated that the Complainant took his life because his long-term disability and declining health caused unbearable suffering. He felt hopeless and had been considering suicide for years. He left clear instructions that he was not to be resuscitated if he were found alive. [Back to text]
  • 3) The mouth is most often used as the entry point to the head by people committing suicide by gun. See Fernández, Enrique & Andreu-Tena, Eduardo & Magaña-Loarte, Concepción & Ruiz-Tagle Fernández, Elisa & Caceres Monllor, David & Luis Souto López-Mosquera, José & Santiago-Sáez, Andrés. (2017). Deaths by firearm and intraoral gunshot: Medicolegal etiology. Spanish Journal of Legal Medicine. 10.1016/j.remle.2017.04.002. [Back to text]
  • 4) See s. 219 of the Criminal Code. [Back to text]
  • 5) WO #1 also reported fearing for her safety because she was concerned about a potential ambush. [Back to text]
  • 6) No gunshots were heard or reported to be heard on the police radio communications either. [Back to text]