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SIU Director’s Report - Case # 19-OCD-087

Contents:

News Releases for this Case:

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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 39-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On April 27, 2019, at 12:20 p.m. the Waterloo Regional Police Service (WRPS) contacted the SIU and reported an injury to the Complainant.

The WRPS advised that on April 27, 2019, the WRPS received intelligence that a person of interest in a homicide investigation, the Complainant, was in a vehicle in the parking lot of the UPI gas station in Cambridge. The WRPS sent an Emergency Response Unit (ERU) to conduct a High Risk take down. The Complainant apparently became aware of the police presence when the ERU attended the gas station. He exited his vehicle and went into a nearby wooded area. A single gunshot was heard by police officers and they located the Complainant with a suspected self-inflicted gunshot wound to his head. The Complainant was still alive at the time of notification and transported to Cambridge Memorial Hospital (CMH) by Emergency Medical Services.

The Team

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

On the morning of April 27, 2019, three investigators and two forensic investigators (FI) initiated an investigation in Cambridge. A canvass was conducted for closed-circuit television (CCTV) footage at the UPI gas station and secured. The scene in the wooded area was processed by FI and items of relevance recorded and photographed. The service firearms of all the involved police officers were examined and it was verified that none had been discharged during this incident. One Subject Officer and seven Witness Officers were designated.

Complainant:

39-year-old male, deceased


Civilian Witnesses

CW #1 Not interviewed (Next-of-kin)
CW #2 Not interviewed (Next-of-kin)
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed


Subject Officers

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


Evidence

The Scene

The scene for this occurrence was in a wooded area to the east of the UPI Gas Station. The area consisted of several vehicle trails and evidence of occupancy by homeless people. Approximately 200 metres south of the parking lot was a second scene that had been properly secured and guarded by WRPS police officers. Within this guarded area was a black Toyota RAV4. This vehicle was partially submerged in water on one of the trails. There was evidence that attempts had been made to free the vehicle from this point.

Figure 1 - The wooded area where a black Toyota RAV4 was found partially submerged in the mud.

Figure 1 - The wooded area where a black Toyota RAV4 was found partially submerged in the mud.


On a nearby trail approximately 30 metres from the vehicle was an area also being guarded. Within the confines of this area was another trail consisting of water and muddy ruts created by vehicles.

In the centre of this scene on dry ground between the ruts was the following weapon: Glock Model 22 .40 cal. semi-automatic pistol. This weapon had been rendered safe as it was found with the slide locked back and magazine removed. A cartridge was located close to the weapon in the mud and another cartridge was noted inside the magazine well at the butt of the grip. In close proximity to the weapon submerged in water was a single .40 cal. cartridge case.

Figure 2 - The Glock Model 22 .40 cal. semi-automatic pistol that was found at the scene.

Figure 2 - The Glock Model 22 .40 cal. semi-automatic pistol that was found at the scene.

East of the weapon and on dry ground was a small duffel bag with several cartridges lying on the ground along with a magazine spring. In close proximity to this item was an area of suspected blood staining and biological matter.

Figure 3 - The small black duffel bag found with multiple cartridges.

Figure 3 - The small black duffel bag found with multiple cartridges.

Physical Evidence


Examination of Police Firearms


The SIU received the weapons of ERU police officers, and the Brantford Police Service (BPS) police officer present at the incident. Visual examination of these weapons and magazines concluded that no police weapons had been fired.

Forensic Evidence


Centre of Forensic Sciences (CFS) Firearms Report


Arrangements were made between the SIU Forensic Identification Services (FIS) and WRPS FIS that the weapon found next to the Complainant be taken possession of by WRPS FIS and submitted to CFS for examination. The SIU submitted a cartridge case found at the scene for comparison to the firearm submitted by the WRPS.

The examination of the weapon and the cartridge case, located next to the Complainant, found that within the limits of practical certainty the cartridge case had been fired from the weapon.


Post Mortem Report


At autopsy, there were three injury groupings:

  • Gunshot wound of the head;
  • Abrasions and lacerations of the right arm; and
  • Contusions and abrasions of the anterior chest and contusions of the upper arms.
The gunshot wound of the head was a contact range wound with the entry at the right side of the head. There was an exit wound on the left side of the head. The entry and exit wounds corresponded with the sites of two defects viewed on a cloth hat that was present at the scene. This was a perforating gunshot wound; no projectile was recovered from examination of the head. A severely hemorrhagic and destructive wound pathway extended through the cerebral hemispheres. This was a fatal wound.

There was a group of blunt force injuries, consisting of red abrasions and superficial lacerations, circumferentially around the right forearm. The injuries spanned a 25 cm area involving the length of the forearm from the wrist to the elbow. These injuries were in keeping with dog bites. None of the injuries of the right arm involved any major blood vessels, ligaments or tendons. These injuries would have required medical attention, but they were not lethal. The injuries would not have prevented the use of the right arm.

There were focal contusions and abrasions of the chest, and focal blue contusions of the upper arms. The injuries occurred due to blunt force. These injuries did not contribute to death.

The brain was serially examined, however, due to the severely hemorrhagic and destructive gunshot wound pathway, any pre-existing anatomic condition could not be appreciated.

Toxicology analysis of the hospital admission blood samples, performed at the CFS, detected methamphetamine 0.67 mg/L, amphetamine 0.13 mg/L, midazolam 17 ng/mL, beta-hydroxybutyrate 108 mg/L and acetone. The detected drugs and ketones did not contribute to the mechanism of death.

Based upon the history, circumstances, autopsy findings and results of the ancillary studies, the cause of death was a gunshot wound of the head.

Video/Audio/Photographic Evidence


CCTV Footage from the UPI Gas Station


A mud-covered black Toyota RAV4 drove into the UPI gas station from a southerly direction off Franklin Boulevard. The RAV4 drove past the front of the gas station store and out of view. The RAV4 reappeared in the back lot of the gas station property and drove over to the south east corner of the gas station lot. It drove into a grassy area off the lot and out of view. 

The RAV4 drove back onto the gas station property from the location it had entered the grassy area and drove west in the lot towards Franklin Boulevard. The RAV4 drove back onto the grassy area where the south west end of the gas station property joined Franklin Boulevard. 

The RAV4 could be seen driving westbound on the grass towards Franklin Boulevard. The RAV4 re-entered the gas station lot from the grassy area at Franklin Boulevard and drove east to the back of the lot. The RAV4 drove back into the grassy area behind some parked trucks at the east end of the gas station lot and out of view.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the BPS and WRPS:
  • Computer-Assisted Dispatch Details;
  • Notes of witness officers;
  • Scribe Notes;
  • Operational Plan-the Complainant;
  • WRPS Procedure-Use of Force;
  • WRPS Procedure-Arrest and Release;
  • BPS Procedure Canine Services Policy;
  • Training Record-Canine Certification 2018 – WO #4;
  • Training Record-Canine Training Log – WO #4;
  • Use of Force Report; and
  • Warrants-the Complainant.

Materials obtained from Other Sources

The SIU also obtained and reviewed the medical records from Hamilton General Hospital (HGH) and CCTV footage from the UPI gas station.

Incident Narrative

The material events in question are largely apparent on the evidence collected by the SIU, which included statements from each of the officers who were present in and around the area where the Complainant was shot, a video recording of parts of the incident captured by a surveillance camera, and information derived from the Complainant’s autopsy and forensic examination of the scene, police firearms and a non-police firearm. On April 27, 2019, the Complainant was wanted by police on two arrest warrants for having breached various conditions of his release from custody. He was also a suspect in the shooting death of a woman in Cambridge on April 17, 2019. A plan had been developed by the WRPS to apprehend the Complainant on the strength of the warrants and to interview him in relation to the homicide. The Complainant would be placed under surveillance and officers with the WRPS ERU deployed at an opportune time to effect his arrest. The involvement of the tactical officers was believed necessary in light of police information that the Complainant was in possession of a firearm. The SO had overall responsibility for the operation.

On April 26, 2019, officers with the WRPS Mobile Support Unit (MSU) were staked out on Morning Calm Drive, a location they had reason to suspect the Complainant would visit. Indeed, the Complainant was observed to enter a building on Morning Calm Drive at about 5:40 a.m. of April 27, 2019. He was then seen leaving in a Toyota RAV4 at about 10:00 a.m. The MSU officers followed the Complainant north on Franklin Boulevard and watched as he turned right into the UPI gas station, south of Moorefield Street. It appears the Complainant may have realized he was being followed by police at this time because he drove his vehicle into a wooded area behind the gas station.

MSU officers set up in positions around the gas station to contain the area. One of them, WO #2, spotted the Complainant using a pair of binoculars and alerted the team members of his observations. The Complainant’s RAV4 was stuck in a muddy trail and he was seen walking around the bush carrying things to place under the vehicle’s tires.

At about 11:30 a.m., a WRPS ERU team, joined by a BPS canine unit consisting of WO #4 and her dog, convened at a staging post that had been set up on Savage Drive north of the wooded area. They were briefed on the situation, advised of their arrest authority and cautioned that the Complainant was likely armed with a gun and dangerous. At 11:45 a.m., the decision was made to enter the wooded area to arrest the Complainant. WO #3 was the team leader. With him were the canine unit and fellow ERU officers, WO #5, WO #6 and WO #7. As they neared to within about 50 metres of the Complainant, a number of officers called out ordering him to stop, raise his hands and get to the ground. Within a matter of seconds, the Complainant dropped what he was carrying and ran in a southerly direction. The officers gave chase and WO #4 released her dog. Just as the dog caught up with the Complainant, a single gunshot was heard. The Complainant fell onto the ground on a trail between wheel tracks with pools of water in them. He had shot himself in the head with a Glock semi-automatic handgun.

The officers arrived on scene and approached the Complainant. Between the Complainant’s left arm and body was the handgun. The Complainant was removed to the police staging area on Savage Drive where paramedics took over his care.

The Complainant was taken to CMH before being transported to HGH. He was declared deceased at 10:33 a.m. on April 28, 2019.


Cause of Death


The pathologist at the Complainant’s post-mortem examination concluded that his death was the result of a gunshot wound to the head. The injury was described as a contact range wound with the entry on the right side of the head and the exit on the left. Also noted were abrasions and lacerations of the right arm (likely caused by the police dog), and contusions and abrasions of the anterior chest and contusions of the upper arms.

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

The Complainant was 39 years old when he died of a gunshot wound to the head suffered on April 27, 2019. He was being pursued on foot by officers with the WRPS and the BPS when the gunshot wound was inflicted. The foot pursuit was the culmination of a police operation that had been developed to track the Complainant’s movements and take him into custody. The SO was the officer in overall command of the operation and identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO 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. The offence is predicated, in part, on conduct that represents a marked and substantial departure from a reasonable level of care in the circumstances. In the context of this case, the liability analysis essentially boils down to the following questions: Was there anything more that the officers could have done to prevent the Complainant’s self-inflicted death and, if so, were the officers so wanting in this regard that their conduct transgressed the limits of care prescribed by the criminal law? I need only address the first question to resolve the matter as, in my view, it must be answered in the negative.

The operational plan that was devised to locate and arrest the Complainant was sensible in design and prudent in its execution. The Complainant was known from prior police contacts to be a violent man who was armed and dangerous following his suspected involvement in a homicide a week-and-a-half prior. In the circumstances, the police were right to deploy specialized teams in tracking his location and effecting his arrest – the MSU and the ERU. They were also wise in waiting to confront the Complainant in the wooded area off the UPI gas station even though they had earlier tracked him to an apartment building on Morning Calm Drive. The unit which the Complainant was visiting contained other persons, including children, whose safety would have been jeopardized had the police decided to act at that location.

Having followed the Complainant to the UPI gas station and now set up around him as he tried to free his vehicle from a patch of mud, the officers waited and maintained a lookout for upwards of an hour. Their caution was well warranted. If the Complainant did have a firearm at his disposal, it behooved the officers to get as a good a read as possible regarding his intentions before making their next move while ensuring at the same time he remained contained. When it appeared that the Complainant was preoccupied with extricating his vehicle and not by any outward indication aware of their presence around him, the decision was made at about 11:45 a.m. to adopt a more proactive posture. By this time, the ERU officers were joined by WO #4 and her dog, an additional and important resource that would allow the police to engage the Complainant from a distance in the event he decided to resist arrest. The Complainant did in fact resist arrest when the officers called out to him as they approached his location in the bush. He ran from the officers in a southerly direction but was quickly caught by the dog; WO #4 had given the Complainant fair warning that she would release her dog if he did not stop and then did so when he continued to run. On the weight of the evidence, the Complainant shot himself in the head just as the dog made first contact with him or immediately before.

With the officers still watching from a distance, WO #4’s dog latched on to the Complainant’s right arm as he lay on the ground and shook it, dislodging a handgun from his right hand. Realizing that the Complainant had sustained a head wound and required immediate medical attention, the officers approached the body without waiting for ballistic shields to be brought to the scene. The officers did so at some risk to their own safety given that the Complainant was still breathing at this time and could still conceivably access the firearm. Once at the Complainant’s side, the officers did what they could to render first aid at the scene while arranging to carry the Complainant out on a stretcher to paramedics waiting at a staging area. Regrettably, the Complainant could not be saved and was declared deceased at hospital the following morning.

On the aforementioned record, I am unable to find fault with the law enforcement exercise that culminated in the Complainant’s self-inflicted death. The officers had lawful grounds to search for the Complainant and seek his arrest, and they were professional and prudent with due regard for public safety in the execution of a reasonable plan toward that end. In the final analysis, though they were unable to thwart the Complainant’s fateful final act, their failure to do so was not through any want of care on their part. In the result, there are no grounds for proceeding with criminal charges against the SO or any of the officers who participated in the operation, and the file is closed.


Date: November 25, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit