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SIU Director’s Report - Case # 19-OOD-240

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 26-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On October 1, 2019, at 7:50 p.m., the North Bay Police Service (NBPS) notified the SIU of the apparent death by drowning of the Complainant, subsequent to a single vehicle motor vehicle collision investigation.

The NBPS reported that on October 1, 2019, at 5:49 p.m., police were called to investigate a complaint of erratic driving in North Bay. A motor vehicle had been seen driving along railway tracks. Prior to the arrival of police, the vehicle had driven off the tracks and rammed into a tree. The driver fled on foot and entered Lake Nipissing, just as Emergency Medical Services (EMS) and Fire Services personnel converged on the scene.

Police arrived moments after the Complainant had entered the lake. Two police officers waded into the lake in an effort to convince the Complainant to return to shore. They were unsuccessful and the Complainant swam about 150 metres further out and disappeared under the water.

The Team

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

The SIU initiated an investigation in North Bay on October 2, 2019. Civilian witnesses were identified and interviewed, and various documents and materials were obtained from the NBPS.

An SIU forensic investigator was present for the post-mortem examination of the Complainant, which was held on October 4, 2019, in Sudbury.

Complainant:

26-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

Additionally, the notes from five other officers were received and reviewed.


Evidence

The Scene

The motor vehicle collision occurred near a pedestrian trail south of the railway tracks at the end of 10th Street at Jet Avenue in the City of North Bay - an area where vehicular traffic was strictly prohibited. The involved vehicle was a 2019 Jeep owned by the father of the deceased. The shore of Lake Nipissing was about 150 metres from the collision scene.

The Complainant was last seen in the water of Lake Nipissing some 100 to 200 metres from the shoreline at the end of a footpath at the base of 10th Street.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the NBPS:
  • Communications Log;
  • Disclosure Logs;
  • Duty Roster for October 1, 2019;
  • Event Details;
  • General Occurrence Report;
  • Homicide/Sudden Death Report;
  • Motor Vehicle Accident Report;
  • NBPS Interview Synopses of five civilian witnesses;
  • NBPS Witness List; and
  • Notes of witness officers and five undesignated officers.

Incident Narrative

On October 1, 2019, at approximately 5:50 p.m., the North Bay Fire Service (NBFS) was notified of a reported car fire; the pumper unit, with CW #2 as the team lead, was dispatched to the scene. Upon their arrival, the firefighters were informed that there had been a vehicle collision, but no fire, and that the driver – the Complainant - had left his vehicle and run down a trail leading to Lake Nipissing.

Upon the arrival of firefighters on the beach, the Complainant was seen to be between 100 to 200 metres from shore. The firefighters yelled to the Complainant to come out of the water. The Complainant was heard yelling, but his words could not be made out. The firefighters on scene immediately called and requested water rescue equipment, while they continued attempts to coax the Complainant back to shore.


Shortly thereafter, EMS personnel and three officers, WOs # 1 – 3, arrived on scene; the police officers also joined in trying to convince the Complainant to come out of the water. WO # 3 contacted the OPP Marine Unit to attend, as the Complainant was quite far out in the lake. While they were attempting to coax the Complainant back to shore, he disappeared below the water’s surface and did not reappear.

When the Complainant sank into the water, WO #1 and WO #2 removed their duty belts, and, along with firefighters, prepared to enter the water. Just at that point, a member of the NBFS attended with the water safety equipment, and the firefighters entered the water with flotation devices; the police officers had none. The firefighters and officers swam out to where the Complainant had last been seen and searched for him, diving down as far as they could, but they were unable to locate him. The water was described as very cold, deep and dark. When the OPP Marine Unit Craft arrived, the police officers and firefighters returned to shore, where they were treated for hypothermia, while the search for the Complainant continued in vain.

The Complainant’s body was recovered the following day by an OPP underwater search and recovery team. 
 

Cause of Death


A post-mortem examination of the deceased was held at Sudbury General Hospital on October 4, 2019, at 9:00 a.m. The final autopsy report attributed the Complainant’s death to “drowning”.

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 only 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 amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. On the facts before me, based on the statements of EMS and fire rescue personnel present at the time of the incident, which confirmed the statements of the three involved officers, I can find no evidence that the actions of these officers departed from the level of care that a reasonable person would have exercised in the circumstances. On the contrary, the evidence indicates that the officers went above and beyond what was required in the line of duty to save the Complainant’s life. When it appeared that the Complainant was treading in the water, they implored him at the top of their lungs to return to shore. The water was cold, deep and dark, and the officers acted prudently in their efforts to engage the Complainant from the safety of the shoreline at this time while the firefighters waited for the arrival of water rescue equipment with which to attempt a rescue. In the meantime, arrangements were quickly made to mobilize an OPP marine unit, which arrived in very short order. As soon as the Complainant disappeared below the surface of the water, WO #1 and WO #2 together with a number of firefighters, at great risk to themselves, entered the water and swam out to where the Complainant was last seen. Reaching the location, they dove into the water but could not locate him. With the arrival of the OPP boat, they returned to shore and were treated by waiting paramedics for hypothermia.

On the aforementioned-record, there is no question of any want of care on the part of the involved officers causing or contributing to the Complainant’s tragic death. As such, I find that there are no reasonable grounds for proceeding with criminal charges in this case and the file is closed.


Date: June 1, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit