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SIU Director’s Report - Case # 17-PCD-360

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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 52-year-old man (the Complainant) on December 6, 2017.

The Investigation

Notification of the SIU

At approximately 3:59 p.m. on December 6, 2017, the Ontario Provincial Police (OPP) notified the SIU of the death of the Complainant.

The OPP reported that CW #1 had called the OPP earlier that day and reported that she found a suicide note left by her husband, the Complainant, at approximately 3:00 p.m. OPP police officers responded to the residence in the Town of Killaloe and found the Complainant at the back of the property burning some garbage. When the police officers approached the Complainant, he raised a rifle. One of the police officers attempted to discharge a conducted energy weapon (CEW) when the Complainant shot himself in the head.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 3

Complainant:

52-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Interviewed, notes received and reviewed
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Notes reviewed, interview deemed not necessary

The notes of WO #3 and WO #4 were reviewed and it was determined that they were not present at the time of the incident and they were therefore not interviewed.


Subject Officers

The SO Interviewed, notes received and reviewed


Incident Narrative

On December 6, 2017, at 2:46:31 p.m., CW #1 contacted the Fire Department with respect to a large fire in the bush behind her farmhouse. The Fire Department then notified the OPP that CW #1 had indicated that the Complainant had left her a suicide note.

A follow up call from the OPP to CW #1 revealed that CW #1 had received a text message from her husband at 2:07 p.m. directing her to look for a note in the basement and that he loved his wife and their children but that he “was done”. A note located in the basement again indicated that the Complainant “was done” and that he left all of his belongings to CW #1 and that “life is too much for me, sorry for what I’m doing”.

CW #1 indicated that her husband was not in the house, but that there was smoke coming from a fire in the bush approximately ten minutes from the house. CW #1 also confirmed that the Complainant owned hunting rifles, but that the gun safe was locked and she was unable to determine whether or not he had any of his firearms with him.

As a result of the call, 13 OPP officers from both the Smiths Fall and Killaloe Detachments were dispatched to the residence.

A subsequent request to the Internet Service Provider for the location of the Complainant’s cell phone confirmed that he was in the immediate area of the residence.

At approximately 3:13 p.m., the SO and WO #1 arrived at the Complainant’s property and drove a cruiser to the back of the property where it was mostly farm land. The SO and WO #1 saw fire and smoke coming from a big pile of brush. When the SO and WO #1 approached the brush, they saw the Complainant sitting inside the brush holding a shotgun between his legs. While the SO and WO #1 attempted to speak with the Complainant, they saw the Complainant raise the shotgun. When the SO discharged his Conducted Energy Weapon (CEW) at the Complainant, in order to try to incapacitate him and stop him from discharging the firearm, the Complainant simultaneously shot himself in the head.

Cause of Death

On October 19, 2018, the Final Post-Mortem Report was received by the SIU, wherein it was confirmed that the cause of death was a shotgun wound to the neck and head. The report indicated that shot pellets and a disrupted plastic shot pellet cup were recovered from within the brain of the Complainant.

Evidence

The Scene

The Complainant’s residence was situated on approximately 100 acres of rural farm property, with a mixture of farm animals and crops.

In the basement of the home was a room that had three portable coolers stacked on top of each other. On top of the last cooler was a set of car keys and a manila coloured file folder. Written on the back of the folder was a message signed by the Complainant, in which he wrote that his life was too much for him and that he loved CW #1.

The brush in which the Complainant was located was about one and a half kilometres behind the house on the back property. The SO’s cruiser was parked on the frozen field next to a farm tractor. The cruiser was facing a large pile of brush. There was a smell of burnt wood in and around the brush. The Complainant’s body was located inside the brush. The Complainant was wearing an orange coloured reflective jacket and he was lying in a supine position. There appeared to be a firearm entrance wound under the right side of his chin.

A single shot shotgun was located about one and one half metres in front of the Complainant’s body. There was also a spent CEW cartridge and a 12 gauge shotgun shell casing near a cellphone. There were copper wires leading from the CEW cartridge to the left side of the Complainant’s body. The probes from the CEW were on the outside of the Complainant’s jacket on the left chest and abdomen area. There were two fire extinguishers and a gasoline container nearby.

Physical Evidence

Description of the Firearm Used by the Complainant

On December 11, 2017, an SIU Forensic Investigator examined the shotgun that was found near the Complainant’s body on December 6, 2017. The firearm was a Cooey, model 840, 12 gauge single shot shotgun. The length of the barrel was 660 mm. The serial number on the shotgun was not legible. 

An SIU Forensic Investigator examined the shotgun that was found near the Complainant’s body. The firearm was a Cooey, model 840, 12 gauge single shot shotgun.   


Summary of Note Written by the Complainant

On December 6, 2017, at approximately 2:07 p.m., CW #1 discovered a note that was handwritten by the Complainant. The note was located in the basement of the Complainant’s home. The Complainant expressed in the note that he loved CW #1 and wanted her to have everything that he owned. The Complainant also said that he was sorry for what he was doing and that his “life is too much for me.”

Forensic Evidence

On December 20, 2017, samples of the Complainant’s urine and blood were sent to the Centre of Forensic Sciences for examination. The Toxicology Report, which the SIU received appended to the Post-Mortem Report on October 19, 2018, indicated that the Complainant had ethanol (alcohol) in his body in the amount of 144 mgs per every 100 ml of blood. [1] He also had a small amount of THC (the active ingredient in marijuana) and over-the-counter allergy, cold, decongestant, and pain medication in his system, none of which contributed to his death

Expert Evidence

On December 7, 2017, at 12:42 p.m., an autopsy was conducted by the pathologist. At the end of the autopsy, the pathologist stated in a preliminary autopsy report that the Complainant died of a single shot shotgun wound to the right side of his neck that travelled into his head. The pathologist also indicated that there were two CEW barbs in the Complainant’s upper body clothing with one barb embedded.
On October 19, 2018, the Final Post-Mortem Report was received by the SIU, wherein it was confirmed that the cause of death was a shotgun wound to the neck and head. The report indicated that shot pellets and a disrupted plastic shot pellet cup were recovered from within the brain of the Complainant.

Video/Audio/Photographic Evidence

As the incident took place in brush on private property, there was no video available.

Communications Recordings

911 / Radio Communications Summary

On December 6, 2017, at 2:45 p.m., OPP communications received information from the Renfrew Fire Department regarding a phone call from CW #1. CW #1 had reported that there was smoke coming from the back property outside of her house. CW #1 stated she was unable to find her husband (the Complainant) and that she had found a suicide note in the basement.

  • • At 2:53:21 p.m., an OPP communications dispatcher contacted CW #1. CW #1 advised that she believed that the Complainant was in the back of the house in the brush and that the Complainant owned hunting rifles but she was not certain if any were missing. CW #1 stated that the Complainant had texted her cell phone at 2:07 p.m. and said that there was a note in the basement. CW #1 last saw the Complainant at about 2:00 p.m. in the shed and he was drinking beer. CW #1 said there was a lot of smoke coming from the back of her property but she did not see flames. The dispatcher asked CW #1 to go to the basement and check if there were any firearms missing from the gun cabinet. When CW #1 arrived at the gun cabinet, she advised that it was locked and that she did not have the keys to open it; 
  • At 3:04 p.m., the SO advised the dispatcher that he had arrived at the address and saw smoke coming from the property at the back of the residence. The SO provided the dispatcher with the Complainant’s cell phone for a cell phone tower triangulation. The dispatcher said that the Complainant’s cell phone was about 200 metres from the residence;
  • At 3:07 p.m., WO #1 advised that he had arrived on scene; 
  • At 3:13 p.m., the SO and WO #1 advised that they were going into the woods;
  • At 3:15 p.m., WO #1 advised that there was a brush fire but he did not have the Complainant in sight; 
  • At 3:16 p.m., WO #1 advised that he had sight of the Complainant. Shortly thereafter, WO #1 requested that more police officers attend;
  • At 3:18:01 p.m., one of the police officers requested an ambulance;
  • At 3:18:21 p.m., the SO advised that a shot had been fired and a Taser (CEW) deployed; 
  • At 3:18:44 p.m., the SO advised that the Complainant had shot himself in the head; and
  • At 3:20:18 p.m., WO #1 advised that “he’s 10-45” (dead/death/fatality).

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the OPP:
  • Event Details Report;
  • History Report for the Complainant;
  • List of Involved Officers and Role;
  • Notes of WO #s 1-4 and the SO;
  • OPP Log On Sheet (Final);
  • OPP Log On Sheet;
  • OPP Renfrew CEW Sign Out Log;
  • Scene Control Log; and
  • Use of Force Report authored by the SO.

Upon request, the SIU obtained and reviewed the following materials and documents from other sources:
  • Preliminary Autopsy Findings;
  • Post-Mortem Report (received October 19, 2018); and,
  • Toxicology Report (appended to Post-Mortem Report).

Relevant Legislation

Section 219, Criminal Code -- Criminal negligence 

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.

Section 220, Criminal Code -- Criminal negligence Causing Death 

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

At 2:45 p.m. on December 6, 2017, Ontario Provincial Police (OPP) Communications received information from the Renfrew Fire Department with respect to a call for assistance from Civilian Witness (CW) #1 at a residence located in the Killaloe Detachment area of the OPP. CW #1 had reported that there was smoke coming from the back of her property, that she was unable to locate her husband, and that her husband had left a suicide note in the basement of their home.

As a result, at 2:47:03 p.m., numerous OPP units, from both the Smiths Falls and the Killaloe Detachments, were dispatched to the residence.

A call back from the dispatcher to CW #1 revealed that the Complainant owned hunting rifles, but CW #1 was unable to determine if any of them were missing, as the gun cabinet was locked; the Complainant had sent her a text message at 2:07 p.m. telling her that there was a note in the basement; and, there was a lot of smoke coming from the back of the their property.

At 3:04 p.m., the Subject Officer (SO) arrived at the Complainant’s residence and observed the smoke coming from the back of the property. The SO spoke briefly with CW #1; he obtained the Complainant’s cell phone number which he then relayed to the dispatcher in order that the Internet Service Provider (ISP) could be contacted and the cell phone of the Complainant could be triangulated in order to confirm its location; he read both the text message and the note in the basement from the Complainant, in each of which the Complainant had indicated an intention to end his own life; and, he checked the gun cabinet, but found it to be locked.

The dispatcher advised the SO that the ISP had confirmed that the Complainant’s cell phone was within 200 metres of the residence.

At 3:07 p.m., Witness Officer (WO) #1 arrived at the residence and he and the SO went into the brush at the back of the residence, where they observed the smoke.

At 3:15 p.m., the SO was heard to transmit on his radio that he had seen the fire, but had not yet located the Complainant.

At 3:16 p.m., WO #1 transmitted that he had sighted the Complainant and requested that additional officers attend. WO #1 then used the loudspeaker from the cruiser to request that the Complainant exit the brush so that they could talk. There was no response.

The SO then saw the Complainant moving about behind the brush, following which the Complainant sat down. The SO asked the Complainant what was going on, but the Complainant did not respond. The SO then observed the barrel of a shotgun between the Complainant’s legs and the SO yelled out to alert WO #1 to the presence of a firearm.

The SO withdrew his firearm and held it in the low ready position, but when he saw that the Complainant did not have the shotgun pointed in his direction, but rather had lifted the barrel of the shotgun and placed it under his chin, the SO re-holstered his firearm and drew his Conducted Energy Weapon (CEW).

WO #1 told the Complainant to drop the gun, but he refused to do so. The SO, in an attempt to incapacitate the Complainant and prevent him from taking his own life, discharged his CEW. On the evidence of both the SO and WO #1, it appears that the CEW and the shotgun were discharged simultaneously and, even before the probes of the CEW made contact, the shotgun shell entered the Complainant’s body and he fell backwards.

At 3:18:21 p.m., the SO was heard to radio that a shot had been fired and that a Taser (CEW) had been deployed. A second transmission was received at 3:18:44 p.m. that the Complainant had shot himself in the head. At 3:20:18 p.m., WO #1 radioed that the Complainant was “10-45”, or dead.

On the evidence of both the SO and WO #1 that the CEW and the shotgun were discharged simultaneously, that there was no visible reaction from the Complainant to the CEW, as well as the fact that only one of the probes made contact with the Complainant’s body with both probes later found embedded in his clothing, I find that there is no evidence to indicate that the deployment of the CEW had any effect whatsoever on the Complainant. I also find that the Complainant discharged his shotgun despite the efforts of the SO and WO #1 to prevent him doing so, as had clearly been his plan pursuant to both his previous text message and his note in the basement.

It is clear on a review of all of the evidence, that the Complainant was intent on taking his own life and had planned and taken all steps to carry out his intention, from texting his wife, to writing a suicide note/will for his loved ones and leaving it in the basement for his wife to find, to taking his firearm from the locked gun cabinet, and to going out into the woods after texting his wife as to his intention.

The response by the OPP was swift and extensive, with numerous officers being dispatched to the residence and the first officer, the SO, arriving at the scene within 19 minutes of the initial call. Despite the best efforts of the SO and WO #1 to prevent the stated intention of the Complainant to take his own life, it is clear that the Complainant had made up his mind and was intent on achieving that goal, and he acted on that intention without any verbal or physical interaction with police, and before the police had the opportunity to intervene.

The only criminal charge open for consideration on these facts would be one of criminal negligence causing death contrary to s.220 of the Criminal Code. There is no dispute that the death of the Complainant was not in any way attributable to the actions of the SO or WO #1, the only question being whether or not the SO or WO #1 failed in their duty toward the Complainant. Specifically, the question to be posed is whether the SO or WO #1 omitted to do anything that it was their duty to do and, in failing to do so, showed a wanton or reckless disregard for the life or safety of the Complainant (s.219 of the Criminal Code: definition of criminal negligence).

There are numerous decisions of the higher courts defining the requirements to prove an offence of criminal negligence; while most relate to offences involving driving, the courts have made it clear that the same principles apply to other behaviour as well. In order to find reasonable grounds to believe that the SO or WO #1 committed the offence of criminal negligence causing death, one must first have reasonable grounds to believe that they had a duty toward the Complainant which they omitted to carry out, and that omission, pursuant to the decision of the Supreme Court of Canada in R. v. J.F. (2008), 3 S.C.R. 215, represented ‘a marked and substantial departure from the conduct of a reasonably prudent person in circumstances’ where the SO or WO #1 ‘either recognized and ran an obvious and serious risk to the life’ of the Complainant ‘or, alternatively, gave no thought to that risk’. The courts have also made clear that the risk of death to the Complainant must have been foreseeable in the circumstances (R. v. Shilon (2006), 240 C.C.C. (3d) 401 Ont. C.A.).

On this evidence, I cannot find that the actions of either the SO or WO #1 amounted to an omission to carry out their duties, nor did they amount to ‘a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances’. While the actions of the Complainant, as a result of the information received in the 911 call, the notes authored by the Complainant, and his attending in the brush with his firearm, would clearly have made his suicide foreseeable, I cannot find that the police service, or the SO and WO #1 specifically, could possibly have done more than they did to prevent the Complainant’s death.

Rather than reasonable grounds to believe that the SO and/or WO #1 showed a wanton and reckless disregard for the life or safety of the Complainant, it appears that they were in fact actively seeking to assist him and to prevent him from taking his own life. In all, the response by the OPP was swift and substantial. Unfortunately, the Complainant had clearly made up his mind to end his life and he too acted swiftly when he saw that police had arrived, and before either of the SO or WO #1 could take any action to save his life. As soon as the SO went to discharge his CEW, the Complainant almost simultaneously discharged his shotgun, thereby ending his own life and thwarting the efforts of police to the contrary.

On this record, I cannot find reasonable grounds to believe that the actions of either of the SO or WO #1 satisfy any of the elements required in order to pursue a charge under s.220 of the Criminal Code in that they neither omitted to carry out any duty to act; nor did their actions amount to a marked and substantial departure from the conduct of a reasonably prudent person in their circumstances; and neither did they not show a wanton or reckless disregard for the life or safety of the Complainant. Additionally, despite their best efforts, it was not within the power of either officer to prevent the Complainant’s subsequent and tragic death.

On all of the evidence, it is clear that the death of the Complainant was as a result of his own voluntary actions and there is no causal connection between the actions of the SO or WO #1 and the death of the Complainant. On this record, I can find no basis for the laying of criminal charges nor any basis for the assignment of blame, and no charges shall issue.


Date: October 23, 2018



Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) 80 mg of ethanol per 100 mL of blood is the legal limit for driving. [Back to text]