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SIU Director’s Report - Case # 19-OCD-206

Contents:

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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 37-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 25, 2019 at 11:25 a.m., the Peel Regional Police (PRP) reported the following. At 10:00 a.m., PRP officers responded to Ogden Avenue in Mississauga for a father and son domestic dispute. The son pointed a loaded gun at his father. When the PRP officers arrived, the son [now known to be the Complainant] fled on foot and a perimeter was set up with tactical officers and K9. A short time later, the Complainant was found hiding under a deck at the rear of a home on Ogden Avenue. When the officers made their presence known, the Complainant shot himself. He was taken to St. Michael’s Hospital (SMH) and was vital signs absent at the time. [The Complainant was pronounced dead at 1:33 p.m.] 
 

The Team

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

Complainant:

37-year-old male, deceased


Civilian Witnesses

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

Witness Officers

WO #1 Interviewed
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 Not interviewed, but notes received and reviewed
WO #7 Not interviewed, but notes received and reviewed


Subject Officers

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



Evidence

The Scene

The scene was located at a property on Ogden Avenue. It was a detached single-family brick bungalow with a wooden backyard deck. The backyard was enclosed with a bush and a fence line. The wooden deck was elevated off the ground, 61 centimetres at the west end and 30 centimetres at the east end, close to the basement wall. The deck had a lattice enclosure at the west side of the base and was open at the stairs.

Physical Evidence

The following items were collected by SIU forensic services at the scene:
  • A cloth bag with identification for the Complainant and personal items;
  • Four keys on a key chain;
  • Four assorted cards and a white cigarette;
  • Three syringes;
  • Husky stubby screwdriver;
  • Orange disposable lighter and aluminum cigarette wrappers;
  • Ruger P94 .40 calibre pistol, stainless steel with serial number ground off;
  • Five Sig Sauer .40 calibre Smith & Wesson cartridges; and
  • One Winchester .40 calibre Smith & Wesson cartridge.

Forensic Evidence


Centre of Forensic Sciences (CFS) Submissions and Results


The SIU submitted six items to the CFS. The items included samples of the Complainant’s femoral blood, heart blood and urine; a swab of blood from the scene at Ogden Avenue; a Ruger P94 .40 caliber pistol without magazine; and, a cartridge case from Ogden Avenue.
The toxicology report found stimulants and opioids in the blood samples provided to the CFS.

Post-Mortem Report


A forensic pathologist provided a Report of Post-Mortem Examination on February 26, 2020. The cause of death was determined to be a gunshot wound to the head. It was a perforating gunshot wound of the right temple. The wound was hemorrhagic and fatal. There was a muzzle imprint surrounding the entrance wound on the right temple.

Video/Audio/Photographic Evidence


Cellular Telephone Video


The SIU received two cellular telephone videos on the SIU website, but they did not provide any evidentiary value to the investigation.

Closed-Circuit Television (CCTV) Recording from Ogden Avenue


On August 26, 2019, SIU investigators retrieved CCTV recordings from an address on Ogden Avenue. The address had four cameras and the camera numbers were 5, 6, 7 and 8. Camera 5 was mounted on the northwest corner with a view of the side yard and street. Camera 6 was mounted on the side door on the south side with a view of the driveway toward the street. Camera 7 was mounted over the backyard deck facing southwest into the backyard and camera 8 was also mounted over the backyard deck facing northwest. The time on the CCTV recordings was incorrect and off by about one hour and 20 minutes. There were also missing slots of time in the recording.

Camera 5

At 8:44:58 a.m., the Complainant ran on the sidewalk and up the side of the house. He ran up to the bushes at the side of the house and disappeared. At 9:09 a.m., WO #2 walked southbound on Ogden Avenue and a man came out of his house and spoke to WO #2. A police service dog (the “PSD”) walked across the driveway of Ogden Avenue and then WO #3 walked across the driveway. WO #3 and the SO walked westbound up the driveway and WO #2 followed. WO #2 walked toward Ogden and looked at something on the ground [now known to be the Complainant’s bag].

Camera 6

At 9:10:37 a.m., WO #3, the SO and the PSD walked westbound down the driveway towards the backyard followed by WO #1. At 9:12:38 a.m., WO #2 ran down the driveway into the backyard, followed by an undesignated officer. WO #7 stood on the driveway. A tactical officer stood on the driveway. At 9:20:38 a.m., an ambulance stopped at the end of the driveway. At 9:32:33 a.m., the Complainant was on a stretcher and removed from the backyard.

Camera 7

At 9:10:45 a.m., the PSD entered the backyard followed by WO #3 and the SO. WO #3 and the PSD went into the north side of the backyard. The SO crouched in the backyard and then went into the north side of the backyard. WO #1 walked to the centre of the backyard and then to the southwest of the deck. At 9:16:51 a.m., WO #2 stood with WO #1 at the end of the driveway close to the backyard. Eventually, the SO, WO #1 and WO #3 left the backyard and walked toward the street.

Camera 8

At 9:11:03 a.m., WO #3 and the PSD walked across the backyard to the north, followed by the SO. WO #1 entered the backyard and stood on the southwest corner of the deck. WO #3 and the PSD walked across the front of the deck toward the driveway and then checked the sheds in the back of the property, followed by the SO. WO #1 walked toward the driveway. WO #3 and the PSD walked toward the driveway. The SO crouched near the southwest corner of the deck.

At 9:12:25 a.m., WO #1 walked to the southwest corner of the deck, crouched with his rifle pointed under the deck for a few seconds, and then walked toward the driveway. The SO jogged to the north side of the deck stairs and went into a prone position. WO #1 walked behind the SO, knelt and looked under the deck. WO #1 walked to the deck stairs and back toward the driveway. The SO remained prone but raised his head several times and pointed under the deck. WO #1 ran to the north side of the backyard. At 9:14:34 a.m., the SO remained in the prone position at the deck stairs. A third tactical police officer ran into the backyard to the north side of the backyard. At 9:15:54 a.m., WO #3 and the PSD remained in the northwest corner of the backyard. Two tactical police officers dragged the Complainant into the yard. Three tactical police officers crouched down near the Complainant.

Communications Recordings


911 Communication Calls


The PRP provided the SIU with two 911 calls and four calls from the communications room. The four calls from the communications room were not relevant to this investigation.

The first 911 call was four minutes and 56 seconds long and was made by CW #1. CW #1 told the operator that the Complainant assaulted him twice with a gun. The Complainant was currently fighting with CW #2. The Complainant cocked the gun and was pointing it at CW #2. He then reported that the Complainant went down the street along the train tracks. CW #1 was ducking trying to avoid being shot. The operator said the police were on their way. CW #1 said the argument was about the Complainant’s lost cellular phone. He explained that his son was an addict and described the gun (confirming it was a handgun). He provided the name, date of birth and a detailed description of his son.

CW #1 said the Complainant was now pointing the gun at him and screamed, “What are you doing?” The operator told CW #1 to get to safety and CW #1 said he was leaving because his son was pointing the gun at him, trying to shoot him. CW #1 said CW #2 tried to help the Complainant by giving him a job but now he had a gun. CW #1 said the police were on the street and a police officer drove up beside CW #1’s vehicle. The call ended.

The second 911 call was five minutes and 23 seconds long. The 911 caller said there was a huge domestic fight with four men down the street from her home. The men had been fighting for ten minutes in the middle of the road near the train tracks in front of a shop and the fight was escalating. The men were fighting about a phone. About two minutes and 42 seconds into the call, the caller said the men were walking away from each other and a silver car drove southbound. At four minutes and 27 seconds into the call, everyone left and one of the men was walking eastbound, along the train tracks. The police arrived and the call ended.

PRP Radio Transmissions


The PRP provided a copy of their radio transmissions for August 25, 2019. At 9:59:44 a.m., police officers and the tactical unit were dispatched to a weapons call at Edgeleigh Avenue. A man [now known to be the Complainant] had a gun and was arguing with another man [now known to be CW #2]. At 10:00:41 a.m., there was another 911 call reporting four men fighting at the same address and a .45 calibre handgun was involved. A silver sedan was involved, and the men were walking away. The argument was about a phone. At 10:02:30 a.m., a description of the Complainant was provided including information that he was carrying a bag. He pointed the gun at someone [now known to be CW #1] and left Edgeleigh Avenue. At 10:03:43 a.m., a police officer reported that a man [now known to be the Complainant] walked along the train tracks toward Ogden Avenue. At 10:04:27 a.m., the officer said the Complainant went southbound on Ogden Avenue. WO #2 was on Ogden Avenue with the officer.

At 10:07:45 a.m., WO #2 set up a perimeter on Lakeshore Avenue between Ogden and Edgeleigh Avenues. He requested no lights or sirens. A police officer reported that the gun was real because he found live ammunition from a .38 calibre handgun. The Complainant could be arrested for possession of a handgun and assault on two parties. At 10:16:01 a.m., WO #2 announced that the tactical team and a canine unit were on Ogden Avenue where the Complainant was last seen. At 10:18:12 a.m., a police officer said the Complainant attempted to shoot his father, but the gun jammed and no shots were fired. At 10:19:47 a.m., a police officer asked if the Complainant still had a firearm and the dispatcher confirmed he did. At 10:22:12 a.m., a police officer asked if the Complainant had a cellular telephone that could be “pinged”, but it was confirmed he did not have a cellular telephone. At 10:26:55 a.m., WO #2 confirmed the tactical team and canine unit began the search. At 10:29:00 a.m., a member of the tactical team asked if the Complainant had a grey bag and the dispatcher confirmed he did. The police officer from the tactical team confirmed it was beside a property on Ogden Avenue. At 10:30:52 a.m., WO #2 confirmed the bag was empty.

At 10:31:35 a.m., WO #2 reported that contact was made. A police officer said, “We need a rush on medics, the male just shot himself in the head,” on the police radio. At 10:32:32 a.m., WO #1 said the Complainant still had his hand on the gun and was taking shallow breaths from a self-inflicted gunshot wound to the head. At 10:45:41 a.m., WO #2 said that the Complainant still had a pulse and was breathing. At 10:50:19 a.m., a police officer said the Complainant had a faint pulse and was now on a stretcher. At 10:54:31 a.m., WO #2 advised the ambulance was going to SMH and a police officer was in the ambulance. At 10:57:58 a.m., WO #2 advised the ambulance left the scene and the Complainant no longer had a pulse, but the paramedics were doing chest compressions.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the PRP:
  • Audio Copy Report-911 Calls;
  • Audio Copy Report-Radio;
  • Event Chronology;
  • Notes of witness officers;
  • Occurrence Details;
  • Officer list with assigned roles;
  • Person Details-the Complainant;
  • Private Owner Firearm Acquired – Canadian Firearms Program;
  • Procedure - Incident Response;
  • Procedure - Crisis Negotiations;
  • Procedure - Canine Unit; and
  • Procedure - Criminal Investigations.

Materials obtained from Other Sources

The following other items were collected and reviewed:
  • Cellular Telephone Videos submitted on SIU website (from unknown sources); and
  • CCTV recordings from an address on Ogden Avenue.

Incident Narrative

The material events in question emerge uncontested on the evidence collected by the SIU, which included statements from WO #1 and WO #3, each of whom was present at the time of the shooting, together with an additional police officer and three civilian witnesses. The investigation further benefitted from CCTV footage of the area in which the incident occurred, police communications recordings and a post-mortem examination.

On August 25, 2019, a 911 call was received by the PRP from CW #1. CW #1 reported that his son, the Complainant, had twice assaulted him with a gun and that he was currently fighting with his brother. CW #1 further reported that the Complainant had cocked the gun and was pointing it at his brother. As the call continued, CW #1 reported that the Complainant was now pointing a gun at him and screaming at him. When told by the 911 call taker to get to safety, CW #1 reported that he was leaving because the Complainant was trying to shoot him. CW #1 further advised that his son had raised the gun at him and tried to shoot, but the gun had either jammed or was not properly loaded, as it did not fire. As a result of the 911 call, PRP officers were dispatched to the area at 9:59:44 a.m., with the call terminating when CW #1 reported that the first police officer had arrived at his location on Edgeleigh Avenue.

An undesignated officer was the first officer to arrive on Edgeleigh Avenue. He spoke to the Complainant’s brother and learned that the gunman was the Complainant and that he had run down an alleyway. Additional PRP police officers, including a canine unit – WO #3 and his PSD - arrived to conduct a search for the Complainant.

At 10:18 a.m., after a report was received that the Complainant might be in a backyard on Ogden Avenue, three police officers – the SO, WO #1 and WO #3, guided by the PSD, began to track the Complainant. The dog led the officers to a backyard on Ogden Avenue, which had a number of sheds and a deck which extended approximately five to six metres out from the back of the house. The sheds and area around the deck were searched, but the skirting around the deck made it difficult to see under the deck. WO #1 remained at the top of the driveway in order to be able to have an overview of anything occurring in the backyard. When WO #3 directed his dog to check a stairwell to the house, the dog appeared to want to return to the deck. The SO was then heard to yell, “Don’t move! He’s got a gun!” advising that he had spotted the Complainant under the deck.

As soon as the SO shouted that he had located the Complainant under the deck and that he had a gun, WO #1 moved into the backyard with his rifle up and at the ready and tried to see under the deck, but he could not locate the Complainant. When he asked the SO where he had seen the Complainant, the SO indicated that he was “way under the deck.” The SO continued to yell, “Drop the gun!” The CCTV footage revealed WO #1 walked to the southwest corner of the deck and crouched, with his rifle pointed under the deck for a few seconds. The SO was seen to jog to the north side of the deck and lie on his stomach, following which WO #1 joined him and also looked under the deck. The SO was seen to remain lying prone on the ground and raising his head several times and pointing under the deck. Both officers repeatedly directed the Complainant to put down the gun, pausing between each command to wait for a response, but none was ever heard. The Complainant was on the ground under the deck with the gun in his right hand and held to his temple. At no time did the Complainant acknowledge that the police were present; instead, he avoided eye contact and remained silent.

Within 10 to 15 seconds of the police arriving at the deck and directing the Complainant to drop the gun, the Complainant pulled the trigger. At 10:31:35 a.m., the communications recording revealed a police officer reporting, “We need a rush on medics, the male just shot himself in the head!”

The handgun remained in his right hand, with his finger still on the trigger. Because the gun was still in the Complainant’s hand, and his finger was on the trigger, the police were effectively prevented from approaching him to offer medical assistance out of concern that he could twitch and inadvertently discharge the handgun. WO #1 continued to point his rifle at the Complainant, while commanding him to take his hand off the gun. The SO also maintained his firearm on the Complainant. Within seconds, another member of the tactical team entered the backyard and assisted in pulling the Complainant out and into the open, whereupon lifesaving measures were immediately commenced.

Shortly thereafter, the Complainant was transported to hospital, but died of his injuries.


Cause of Death


The pathologist who performed the post-mortem examination of the Complainant determined the cause of death to be a gunshot wound to the head. The wound was a perforating wound to the right temple and was hemorrhagic and fatal. A muzzle imprint surrounded the entrance wound.

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 morning of August 25, 2019, the Complainant suffered a fatal, self-inflicted gunshot wound to the head. A number of police officers had been searching for him at the time and were present when the Complainant shot himself. The SO was the officer who had located the Complainant, and was 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 has to be considered in this case is that of criminal negligence causing death contrary to section 220 of the Criminal Code. This offence is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. The evidence establishes that the Complainant was located under the rear deck of a residence on Ogden Avenue with a loaded firearm and had failed to voluntarily come out from under the deck or to put down or surrender his handgun, instead opting to take his own life. From all of the evidence, it is clear that no police officer discharged their firearm at any time.

The SO and the other police officers searching for the Complainant were clearly carrying out their lawful duties in searching for the Complainant and, upon locating him, would have been acting pursuant to their duties in disarming and arresting him for assault and weapons offences. Unfortunately, the Complainant, acting of his own accord, chose to end his life when he was located. It appears on all of the evidence that the SO, WO #1 and WO #3 acted with prudence and exercised due care and caution in not immediately approaching the Complainant under the deck while he was still armed with a firearm and posed a danger to the officers. Within seconds of the police locating the Complainant, however, and before they could do anything more than direct him to drop his weapon, the Complainant acted quickly and decisively to end his life.

With respect to the officers not immediately approaching the Complainant and removing him from under the deck after he had shot himself, it is clear that to have done so while the Complainant still had his finger on the trigger of the gun would have endangered the lives of the responding officers. Furthermore, there is no evidence that any life saving measures, had they been begun seconds earlier, would have saved the Complainant’s life in any event.

On this record, while the death of the Complainant was unfortunate, I am satisfied that the level of care exercised by the SO, WO #1 and WO #3 fell within the limits prescribed by the criminal law. Accordingly, there is no basis for proceeding with charges in this case and the file is closed.


Date: May 19, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit