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SIU Director’s Report - Case # 18-PCD-117

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 61-year-old man.

The Investigation

Notification of the SIU

On April 14, 2018, at 10:10 p.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s custody death.

According to the OPP, on April 14, 2018 at about 6:50 p.m., OPP officers responded to a residence in Perth East near the community of Rostock, Ontario, for a domestic situation. The Complainant had apparently armed himself with a firearm and had discharged numerous shots inside the residence. The Complainant’s spouse and daughter were able to flee from the residence. OPP officers subsequently contained the area and a negotiator, along with tactical officers, took control of the incident. At some point, the Complainant indicated that he wished to commit ‘suicide by cop’ and he exited the residence, where he was confronted by tactical officers. An ‘Anti-Riot Weapon Enfield’ (ARWEN) was used in an effort to gain control of the Complainant, but it was ineffective. The Complainant turned and walked away from the police officers and discharged his firearm into his head. Emergency medical services personnel immediately tended to the Complainant, who was declared dead at the scene.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 2

Complainant:

61-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Not interviewed, but notes received and reviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed, but notes received and reviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Interviewed
WO #7 Not interviewed, but notes received and reviewed
WO #8 Interviewed
WO #9 Interviewed
WO #10 Not interviewed, but notes received and reviewed
WO #11 Not interviewed, but notes received and reviewed
WO #12 Interviewed
WO #13 Interviewed
WO #14 Interviewed
WO #15 Interviewed
WO #16 Interviewed
WO #17 Interviewed
WO #18 Not interviewed, but notes received and reviewed
WO #19 Not interviewed, but notes received and reviewed


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The scene was located on a rural farm residence. A number of OPP vehicles were parked on the roadway and on the laneway to the residence. The scene had been properly secured and guarded by OPP officers. The laneway to the residence had a north/south bearing and then an east/west bearing for access to, and egress from, the area of the house. Close to an outbuilding was a large armour-plated OPP tactical vehicle which was partially on the laneway and partially on the lawn, where it was stuck.

The Complainant’s body was located to the south of this vehicle, on the lawn near a group of trees; he was obviously deceased. The Complainant was lying on his right side with his head oriented in a southerly direction. He was fully clothed and wearing what appeared to be a tactical-style vest with many pockets to accommodate equipment. There was obvious trauma to his head. Near the Complainant’s feet, a .45 calibre semi-automatic pistol was located lying on the snow. The slide was forward and a magazine was still inserted in the pistol grip. Four large capacity rifle magazines were located nearby.

One .45 calibre cartridge case was located nearby, in the area of a small brush pile and a small evergreen tree that had been cut down.

An ARWEN projectile was located lying on top of the snow to the south of the Complainant’s body. Following a secondary search, which was completed prior to releasing the scene to the OPP, a second ARWEN projectile was located nearby.

The house was situated west of the Complainant’s body, near two civilian vehicles associated with the residence. To the south of these two vehicles, and near the porch, two .223 calibre cartridge cases were located lying on the snow.

The entrance to the residence led directly to an enclosed porch; a .223 calibre assault-style rifle was found to the right of the doorway, and two .223 calibre cartridges and a magazine were located on the floor nearby. The weapon exhibited the appearance of being ‘made safe’ as the action had been locked back and the magazine removed. The entrance-proper into the kitchen led from the porch; on the floor just inside the entrance was another assault-style rifle with the action forward and a magazine still inserted in the rifle. A note with an apology written by the Complainant was also found.

Scene Diagram

Scene diagram

Communications Recordings

The 911 calls placed by CW #3 and CW #1 exuded panic at the prospect that the Complainant might kill them and their neighbours before the police arrived.

The review of the OPP communications audio recordings indicated instructions that no physical use of force should be applied against the Complainant unless he posed a threat to the safety of the police officers deployed to help him. The communications audio recordings also indicated three times, instructions to try to get a police service dog (PSD) to the scene, but none were readily available. A forensic psychiatrist was requested to be contacted for assistance.

Forensic Evidence

The Toxicology Report indicated that the Complainant had an ethanol level of 16 mg/100 mL, morphine of less than 25 ng/mL, hydromorphone of less than 13 ng/mL and diphenhydramine of less than 0.025 mg/mL. The detected blood concentrations of morphine, hydromorphone and diphenhydramine were within or below a therapeutic range. The same report regarding the urine specimen collected during the autopsy indicated morphine had been detected.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the Perth County OPP Detachment:

  • 911 and communications audio recordings;
  • Deceased Person Continuity Register;
  • Computer Aided Dispatch (CAD) Data Table;
  • General Report (x3);
  • Global Positioning System (GPS) Data for Three Vehicles
  • Computer Aided Dispatch (CAD) Event Details;
  • Maintenance on involved ARWEN;
  • Notes of all witness officers;
  • Occurrence Details;
  • OPP Training re Anti-Riot Weapon (ARWEN);
  • Supplementary Occurrence Report (x4);
  • Training Record of SO #1;
  • Tactical Rescue Unit (TRU) Training Report of SO #1;
  • Video interview of CW #3; and
  • Will State of Technical Analyst.

Incident Narrative

The SIU’s investigation consisted of interviews with police officers who attended at the Complainant’s residence, as well as members of the Complainant’s family. The investigation further benefitted from information derived from the Complainant’s post-mortem examination, the SIU’s forensic processing of the scene and exhibits, and police records such as the 911 and communications audio recordings. The material events in question are not in dispute.

Shortly before 5:00 p.m., The Complainant’s wife and daughter, CW #3 and CW #1, placed a 911 call to police reporting that the Complainant was in the possession of a number of firearms and indicating they feared for their safety as well as that of their neighbours. Concerned about the Complainant’s intentions, CW #3 gathered her daughter and son, fled the residence and got in her pickup truck. The Complainant exited the home, approached the pickup truck equipped with a rifle slung over his shoulder and directed them to leave. They did just that, leaving the area and eventually making their way to the Sebringville OPP Detachment.

A number of OPP officers arrived at the residence within minutes of the 911 call. They encountered the Complainant walking toward their location down the driveway. He was holding an assault-type rifle, with another rifle hanging across his back and a handgun holstered to his front. One of the officers, WO #8, shouted at him to stop and drop his weapons. The Complainant refused. WO #8 pleaded with the Complainant to drop his weapons and implored him to consider that they both had families. The Complainant told WO #8 that he no longer had a family and was not interested in hurting the officer. The Complainant then turned and began to make his way back up the driveway toward his home. WO #6, who was among the officers on scene at the time, became concerned with the welfare of persons who lived in a residence next to the Complainant’s home and decided to follow the Complainant up the driveway in a police vehicle. WO #6 parked the vehicle near the end of the driveway and east of the Complainant’s home. He exited, drew his firearm and took up a position on the passenger side of the vehicle using the engine block as cover. From that location, he spoke with the Complainant, who paced back and forth between his home and the police vehicle. WO #6 directed him to drop his weapons, but the Complainant declined. The officer made it clear he wished for no one to come to any harm. The Complainant replied that his life was over and asked the police to shoot him. At one point during this exchange, the Complainant returned to the front of his house and discharged multiple rounds from his rifle into the air. At another, he approached the police vehicle and warned WO #6 that he had loaded armour-piercing ammunition. Fearing that the situation was escalating and that he and his officers were significantly outgunned, WO #6 decided that it was time to retreat. As the Complainant turned to walk back toward his home, he and WO #8 ran toward the neighbouring property and found cover behind a shed. From there they ensured that the neighbours in the home had been evacuated before WO #6 and his colleagues again took flight on foot through a field to the roadway, whereupon they eventually made their way to the OPP command post in Rostock.

An OPP Emergency Response Team (ERT) team arrived on scene and set up a perimeter around the residence. One of their members saw the Complainant discharge his rifle about ten times into the ground while standing on the driveway of his home. The time was about 6:50 p.m. From approximately 8:00 p.m. to 9:00 p.m., there was intermittent communication by phone between the Complainant and a trained OPP negotiator. At about 9:00 p.m., members of the OPP TRU team made their way to the property. Their mission was to isolate and contain the Complainant, and to have him peacefully surrender. A group of four TRU officers, including the team leader, WO #17, approached the property in an armoured vehicle and parked it about 15 metres from the Complainant’s residence. WO #3, among the officers in the vehicle, took the lead in communicating with the Complainant using a loudhailer. He repeatedly asked the Complainant to drop his weapons and stressed that they were there to help. The Complainant, standing in and around the porch of his home holding a handgun in his right hand and a rifle in his left, shook his head in the negative. At around 9:30 p.m., the Complainant put the handgun to his head with his right hand and then lowered it following WO #3’s exhortations that he not harm himself. The Complainant proceeded to step off the porch and walk slowly toward the left side of the armoured vehicle from which position he again raised the handgun to his head. At around this time, the TRU officers decided that they would shoot the Complainant with an ARWEN should he lower the handgun from his head. The Complainant did so and was struck twice with plastic rounds discharged by an ARWEN wielded by SO #1 from within the armoured vehicle. The rounds struck the Complainant’s left side, but did not have the intended effect of incapacitating him. The Complainant was stunned by the shots but quickly regained his composure and ran toward an area further to the left and the rear of the armoured vehicle. Soon thereafter, WO #5, another TRU member, radioed that he had heard a gunshot. The TRU officers inside the armoured vehicle exited and located the Complainant’s body nearby. He had shot himself in the head and was mortally wounded. The handgun he had been holding was resting near his feet. Paramedics arrived on scene and the Complainant was pronounced dead by a physician from a remote location.


Nature of Injuries / Treatment

The post-mortem examination and autopsy were conducted on April 16, 2018, at 9:38 a.m., by a forensic pathologist at University Hospital, London Health Sciences Centre in London, Ontario. The post-mortem examination report listed the cause of the Complainant’s death as, “Gunshot wound of head.”

According to the report:

  • The “[p]ostmortem examination showed a perforating contact-range gunshot wound of the head, entering through the right temporal scalp and exiting the left temporal scalp. It caused massive injury to the brain and rapid death. There was no retained bullet within the head. Overall features of the wound, in conjunction with the case history, are consistent with a self-inflicted injury”;
  • “A patterned bruise on right lateral cheek was very likely the result of a firearm muzzle being pushed against the skin”; and
  • “A lacerated well-defined circular bruise on the left elbow was consistent with an ARWEN projectile injury. A second, non-specific bruise on the left forearm microscopically showed healing features indicating it pre-dated the terminal episode.”

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Analysis and Director's Decision

At about 8:40 p.m. on April 14, 2018, on a property in the Township of Perth East, the Complainant suffered a fatal gunshot wound to the head. The wound was self-inflicted. A number of OPP officers were in the vicinity at the time. They had responded to the address following a call to police reporting that the Complainant was armed and dangerous. For the reasons that follow, I am satisfied that none of the officers involved in the circumstances culminating in the Complainant’s death, including the subject officers – SO #1 and SO #2, committed a criminal offence.

It is apparent on the record gathered by the SIU that the OPP officers involved in the sequence of events ending in the Complainant’s death conducted themselves lawfully at all times. They were duty bound to respond when contacted by the Complainant’s family; the Complainant was heavily armed, emotionally unstable, and a clear and present danger to himself and those around him. They did so quickly and professionally. Local OPP officers were the first to arrive. They set up a perimeter around the home to contain the threat and took steps to ensure that nearby residents were successfully evacuated. At great risk to themselves, WO #6 and WO #8 decided to engage the Complainant at close proximity with the aim of de-escalating the situation. Despite their repeated appeals, the Complainant remained steadfast and refused to surrender his firearms. On the contrary, he gave the officers increasing indication that he was bent on provoking a confrontation that would see him shot and killed by police. At the mention of armour-piercing bullets and sensing the Complainant’s growing resolve, the officers made the decision to retreat from the area as soon as an opportunity presented itself. They were wise, in my view, in so doing. A trained OPP negotiator was brought in and was able to speak with the Complainant by phone, but unable to convince him to stand down. ERT officers soon arrived and took over containment of the scene, followed by TRU team members. With the tactical resources at their disposal, TRU officers deployed a couple of armoured-vehicles to approach the scene. From within one of these vehicles, the officers continued their efforts at communication with the Complainant. During this time, attempts were made to contact a forensic psychiatrist to assist in guiding the police response. Regrettably, he could not be reached in time. The TRU team also considered the use of a properly trained canine unit, but, again, none were readily available to respond. In the end, as the Complainant’s behaviour escalated to the point of pointing his handgun at his head, the decision was made to shoot him with an ARWEN – a less lethal weapon designed to temporarily disable. In making the decision, the officers considered but dismissed the possibility of using a CEW, which was also available to them, given the windy conditions at the time and the winter jacket that the Complainant was wearing that could well impede the proper penetration of the weapon’s probes. While it is unfortunate that the ARWEN did not have the desired effect, I am unable to find any fault with the decision to use it. On the contrary, I am satisfied that it was a reasonable use of force in all the circumstances. The Complainant had given the officers every indication that he was about to shoot himself, and the officers were justified in using the ARWEN in an effort to prevent that from happening.

In short, the evidence establishes that the OPP officers, including SO #2, with overall command of the operation, and SO #1, who discharged the ARWEN, acted reasonably throughout the standoff with the Complainant. Consequently, I am satisfied there are no grounds for proceeding with criminal charges against any of the officers in relation to the Complainant’s self-inflicted death, and the file is closed.


Date: May 15, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit