Cruiser and motorbikeCruiser accidentRunners
thick blue gradient line

SIU Director’s Report - Case # 18-OCD-278

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 34-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 16, 2018, at 8:47 p.m., the Kawartha Lakes Police Service (KLPS) in Lindsay contacted the SIU and reported a man had run from police officers and had possibly drowned in the Scugog River.

According to the KLPS, at approximately 6:35 p.m. on September 16, 2018, KLPS officers responded to the rear of an apartment building on Colborne Street West [1] regarding a man who was acting strangely near the bank of the Scugog River. The responding police officers located the man lying under some bushes near the water. The man then ran into the river and had not been found. The man, the Complainant, was wanted on several outstanding warrants at the time.

A search was conducted by KLPS officers and the fire department [the Kawartha Lakes Fire Rescue Service]. The search was called off at 8:35 p.m. due to darkness. It was not known whether the Complainant drowned or escaped.

On September 17, 2018, at 3:32 p.m., the KLPS advised the SIU that Ontario Provincial Police (OPP) divers had recovered the Complainant’s body from the Scugog River at 3:20 p.m.

The Team

Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 1

The SIU immediately dispatched three investigators and one forensic identification investigator. An additional investigator was later added to the investigation.

The SIU interviewed witnesses and canvassed the area for surveillance cameras and additional witnesses.

The SIU were told of a person who reportedly witnessed the events. This individual was difficult to identify and locate. The KLPS provided the SIU with a suspected identity for the individual and on December 28, 2018, SIU investigators located CW #10 and interviewed him.

Complainant:

34-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Not interviewed (Next-of-kin)
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 Not interviewed (Information obtained during canvass)

Witness Officers

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



There were no subject officer designations issued during this investigation.

Evidence

The Scene

The Scugog River winds through Lindsay in an orientation that is generally north to south.

The apartment building on William Street North is on the west side of the Scugog River. Between the building parking lot and the river, at the east edge of the parking lot, there is a shrub garden that slopes down toward the river.

There is also a public walkway along the west bank of the river. Travelling northbound along that walkway from the apartment building on William Street North a person would come to a construction area on the west shore of the river. The construction area was enclosed with temporary fencing.

Continuing northbound along the walkway, a person would then arrive at a public park located in front of the apartment building on Colborne Street West. In the public park were picnic tables and a number of benches.

On the east bank of the Scugog River there was a construction project. To the north of the construction project was the Lindsay municipal boat dock and boat launch ramp.

At the point where the Complainant attempted to cross the river, the Scugog River is 150 feet wide.

Video/Audio/Photographic Evidence

The SIU obtained surveillance video recordings from a Green For Life construction project on the east side of the Scugog River. Unfortunately, the location of the cameras was such that the video recordings did not assist in this investigation.

Police Communications Recordings

On September 16, 2018, at 6:29 p.m., CW #3 called the KLPS to report there was a man who was acting unusually in the rear parking lot of an apartment building on William Street North. She reported the man was obviously on drugs and was going crazy. The man [the Complainant] was going in and out of a green Subaru Forrester and was then crawling into some bushes at the front of the vehicle. At 6:31 p.m., WO #2 and WO #4 were dispatched to investigate the matter.

At 6:36 p.m., a police officer reported the Complainant had taken off, running northbound along the trail that borders the river. The police officer believed the Complainant was a wanted person.

At 6:37 p.m., WO #2 stated she would go to where the trail exited, near Colborne Street West. The dispatcher confirmed the Complainant was wanted on a number of charges. At 6:39 p.m., WO #2 reported she was in front of the apartment building on Colborne Street West. WO #2 reported she had spoken to people in the area and the Complainant had not come that far.

At 6:40 p.m., CW #5 called the police and asked that the female police officer who had just been to the apartment building on Colborne Street West return. CW #5 reported the guy the police were looking for was in the river at that moment. The dispatcher stated the police officer [WO #2] had just gone up to William Street but they would send her back.

At 6:41 p.m., the dispatcher reported the Complainant had been seen in the river in front of the apartment building on Colborne Street West. WO #3 reported the Complainant was trying to make his way to the construction site on the other side of the river. A male police officer reported that the Complainant was heading toward the boat launch area. At 6:42 p.m., the male police officer stated he no longer had eyes on the Complainant.

The police officers started to discuss whether anyone saw the Complainant exit the river. At 6:45 p.m., the decision was made to request the assistance of the fire department for a possible water rescue. A female police officer reported the Complainant’s arms apparently had been flailing around and he was last seen in the middle of the river, trying to go to the far shore.

At 6:47 p.m., there was discussion regarding having one of the police officers approach someone with a boat [at the boat docks] to go up and down the river to search for the Complainant.

At 6:48 p.m., CW #3 again called the police and reported the man who had been driving the green Subaru Forrester had returned to the vehicle. She stated he was rummaging through the car and was then hiding things in the bushes in front of the car. CW #3 stated the passenger from the vehicle had made a break for it down the hill.

The police officers discussed the possibility the Complainant had exited the river at a location further down. At 6:49 p.m., a male police officer stated he had spoken to two people who saw the Complainant in the middle of the river and they had reported he did not make it across.

At 6:51 p.m. the fire department was reported to be on scene.

At 7:13 p.m., WO #1 telephoned a KLPS inspector and reported what had happened. WO #1 reported there was a call to an apartment building on William Street North regarding a male crawling around. WO #1 stated WO #2 and WO #4 responded and located the Complainant, who was “wanted on a million things.” According to WO #1, the police officers called out the Complainant’s name and he ran down a trail. WO #3 and WO #1 responded to assist and they believed the Complainant had ducked into bushes along the trail, but while they were looking for him people in the area of the apartment building on Colborne Street West yelled out a guy had entered the river. WO #1 stated they looked and saw the Complainant trying to get across the river. WO #1 stated all of the officers saw the Complainant in the river at some point. The last time they saw him he was in the middle of the river. However, they had no indication the Complainant made it to the other side.

WO #1 and the inspector discussed the need to call the SIU. They agreed the Complainant was not in custody at any time, but they also agreed the Complainant likely took off from police because of his outstanding warrants, so he was running from the police. The inspector stated he would consider the matter further.

WO #1 then placed a telephone call to another police officer. In that call he again stated all of the police officers saw the Complainant in the river at some point.

Forensic Evidence

The SIU received the Report of Post-Mortem Examination on December 14, 2018. The included toxicology report identified evidence of recent use of fentanyl, heroin, methamphetamine, cocaine, amphetamine and cannabis products. The pathologist determined the drug intoxication was a contributory factor to the Complainant’s death, given the likelihood of impairment to the Complainant’s judgement, his coordination and his swimming ability.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the KLPS:
  • The related radio and telephone communications;
  • Current Address - Person report for CW #7;
  • Current (Involved) Officers – Occurrence;
  • Event Chronology;
  • Involvements (Persons) - Occurrence;
  • KLPS Witness Statement - CW #3;
  • KLPS Witness Statement - CW #4;
  • Notes of all witness officers; and
  • Occurrence (Person) - the Complainant.

Incident Narrative

The events in question are evident on the weight of the reliable information collected by the SIU in its investigation, which included statements from a number of police officers and civilian witnesses. At about 6:30 p.m., residents of an apartment building on William Street North noticed the Complainant, who was in the parking lot at the rear of the building, behaving strangely. A 911 call was made to police reporting a male – the Complainant – who was going in an out of a vehicle, crawling on the ground and seemingly high on drugs.

WO #2 and WO #4 were dispatched to investigate. They arrived in separate cruisers and parked next to the Complainant’s vehicle. The Complainant was not in the vehicle at the time, but with the assistance of a resident from the building, the officers soon located him in some bushes on the embankment that sloped toward the Scugog River. WO #4, who recognized the Complainant, called out to him. The Complainant immediately fled from the officers down the hill toward the walkway that lined the west bank of the river and ran northward. The officers returned to their vehicles and attempted to head him off further north.

The Complainant entered the water at a point near a park across the apartment building on Colborne Street West. He attempted to swim across the river, but only made it as far as the midway point when he started to have trouble. The Complainant eventually failed to resurface.

WO #2 and WO #4, now joined by WO #1 and WO #3, soon learned that the Complainant had attempted to swim across the water. At WO #1’s direction, WO #4 made his way over to the river’s east bank. There he learned that a civilian had seen the Complainant in the river, but she had not seen him get out of the water. Quickly realizing that this was now a potential search and rescue operation, WO #4 commandeered a citizen’s boat and began patrolling the river in search of the Complainant. The fire department also arrived and, with the use of their boat, also began to scour the river for the Complainant. The Complainant could not be found.

The following day, with the assistance of OPP divers, the Complainant’s body was located and removed from the river.


Cause of Death

The pathologist at the Complainant’s post-mortem examination attributed his death to “drowning in a man with mixed drug intoxication”. The Complainant was found to have a variety of drugs in his system, including cocaine, fentanyl and methamphetamine.

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

In the evening of September 16, 2018, the Complainant drowned to death in the Scugog River in Lindsay. A couple of KLPS officers had earlier approached the Complainant. He fled from them north along a walkway on the west bank of the river before entering the water. For the reasons that follow, there are no reasonable grounds to believe any KLPS officers committed a criminal offence in connection with the Complainant’s death.

The offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. Liability under the provision is predicated, in part, on conduct that amounts to a marked and substantial departure from the standard of care that a reasonable person would have observed. In the circumstances of this case, the key consideration is whether there is anything more the police officers could and should have done to prevent the Complainant’s death. In my view, there was not. The officers clearly were under a duty – their foremost duty – to protect and preserve the Complainant’s life. In pursuit of that duty, they responded to the scene quickly to check on the Complainant’s welfare when a report came in to police that he was acting bizarrely in the parking lot. The Complainant was intoxicated at the time by a cocktail of drugs, which explains his strange behaviour and his decision to flee the officers. His impairment at the time may also explain why he decided to enter the river and the difficulty he had in successfully crossing it. Be that as it may, the officers immediately attempted to locate the Complainant, first on land and then, when they learned he was in the river, on water. With the use of a citizen’s boat, WO #4 began to navigate the waters where the Complainant was last seen. Paramedics were summoned and staged in the area in the event the Complainant was rescued and required their services. Firefighters were also summoned to the scene to assist in the water search. Regrettably, all these efforts provide futile and the Complainant’s body was not recovered until the next day when he was discovered by OPP divers.
To those who might suggest that the officers should have entered the river to attempt a rescue, it would be asking too much, in my view, to have expected the officers to adopt that course of action. By the time they realized the Complainant was in the river, the Complainant had submerged for the last time and could not be seen. By all accounts, the water in the area was murky and any effort to swim into the river to locate him would likely have proved futile and fraught with danger. On this record, I am satisfied on reasonable grounds that the officers who responded to the scene, attempted to locate the Complainant, and endeavoured with other first responders to rescue him from the river exercised a level of care in so doing that fell well within the limits prescribed by the criminal law. Accordingly, there are no grounds for proceeding with charges in this case and the file is closed.


Date: September 6, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The address was actually on William Street North. [Back to text]