Explanatory note

The Ontario Government is releasing past SIU Director Reports (submitted to the Attorney General prior to May 2017) that include fatalities involving a firearm, physical altercation, and/or use of conducted energy weapon, or other extensive police interaction that did not result in a criminal charge.

Justice Michael H. Tulloch made recommendations about the release of past SIU Director Reports in the Report of the Independent Police Oversight Review, released on April 6, 2017.

Justice Tulloch explained that since past reports were not originally drafted for public release they may have to be edited substantially to protect sensitive information. He took into account that confidentiality assurances were given to various witnesses during the course of SIU investigations, and recommended that some information be redacted in the interests of privacy, safety, and security.

As recommended by Justice Tulloch, this explanatory note is being provided to assist the reader’s understanding of why certain information is redacted in these reports. Notes have also been inserted throughout the reports to help describe the nature of the information that was redacted and why it was redacted.

Law enforcement and personal privacy information considerations

Consistent with Justice Tulloch’s recommendations and guided by section 14 of the Freedom of Information and Protection to Privacy Act (FIPPA) (relating to law enforcement information), portions of these reports have been removed to protect:

  • confidential investigative techniques and procedures used by the SIU
  • 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
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Consistent with Justice Tulloch’s recommendations and guided by section 21 of FIPPA (relating to personal privacy information), personal information, including sensitive personal information, has also been redacted, except that which is necessary to explain the rationale for the Director’s decision. 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
  • other identifiers which are likely to reveal personal information about individuals involved in the investigation, including in relation to children
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Personal health information

Information related to the personal health of individuals that is unrelated to the Director’s decision (taking into consideration the Personal Health Information Protection Act, 2004) has been redacted.

Other proceedings, processes, and investigations

Information may have also been excluded from these reports 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.

Director’s report

Notification of the SIU

On Monday, May 10, 2010 at 0707 hrs, Notifying Officer of Ontario Provincial Police (OPP) notified the SIU of the firearm death of Mr. Darren Burnside.

Notifying Officer reported that at 0230 hrs, OPP officers responded to a call regarding a male on a tractor who fired a gunshot at a residence. There was an exchange of gunfire and the male was later found deceased, under the tractor at West Back Line and Sideroad 80 in the Township of Holland Centre.

The investigation

On May 10, 2010 at 0715 hrs, four SIU investigators and three forensic investigators (FIs) were assigned to investigate the incident. The first investigators arrived at the outer perimeter at 0935 hrs. Non-Witness Officer #1 told investigators that he/she would notify Non-Witness Officer #2 that SIU had arrived, and asked that investigators wait at the outer perimeter. At 1000 hrs investigators met with Witness Officer #10 at the outer perimeter and were granted access to the scene at 1005 hrs. The scene was examined, photographed and videotaped. Physical evidence was collected and a scale drawing was prepared by the FIs. The area was canvassed for witnesses to the incident. An SIU collision reconstructionist attended, examined the scene and prepared a report.

Based on information received, Subject Officer was designated as a subject officer. He declined to be interviewed by SIU investigators and refused to supply a copy of his notes.

The following officers were designated as witness officers on May 10, 2010. They were interviewed and supplied their notes on the dates indicated:

  • Witness Officer #1 (May 11, 2010)
  • Witness Officer #2 (May 11, 2010)
  • Witness Officer #3 (May 11, 2010)
  • Witness Officer #4 (May 11, 2010)
  • Witness Officer #5 (May 11, 2010)
  • Witness Officer #6 (May 11, 2010)
  • Witness Officer #7 (May 11, 2010)
  • Witness Officer #8 (May 19, 2010)
  • Witness Officer #9 (May 13, 2010), and
  • Witness Officer #10 (May 25, 2010)

Interviews of Witness Officer #8 and Witness Officer #10 were delayed due to the officers’ vacation absence.

Witness Officer #11 and Witness Officer #12 were designated as witness officers on May 13, 2010 and were interviewed and supplied their notes on May 13, Witness Officer #13 was designated as a witness officer on May 13, 2010 and interviewed on May 27, 2010. Witness Officer #13 was unavailable prior to that date due to vacation absence. The following officers were designated as witness officers and supplied their notes, but they were not interviewed:

  • Witness Officer #14
  • Witness Officer #15
  • Witness Officer #16
  • Witness Officer #17
  • Witness Officer #18
  • Witness Officer #19
  • Witness Officer #20, and
  • Witness Officer #21

The following civilian witnesses were interviewed on the dates indicated:

  • Civilian Witness #1 (May 10, 2010)
  • Civilian Witness #2 (May 10, 2010)
  • Civilian Witness #3 (May 10, 2010)
  • Civilian Witness #4 (May 10, 2010
  • Civilian Witness #5 (May 10, 2010)
  • Civilian Witness #6 (May 15, 2010)
  • Civilian Witness #7 (May 15, 2010)
  • Civilian Witness #8 (May 15, 2010)
  • Civilian Witness #9 (May 15, 2010)
  • Civilian Witness #10 (May 15, 2010)
  • Civilian Witness #11 (May 15, 2010)
  • Civilian Witness #12 (May 20, 2010), and
  • Civilian Witness #13 (May 27, 2010)

Witnesses Civilian Witness #3, Civilian Witness #4 and Civilian Witness #1 were also interviewed by members of the OPP. Their statements were reviewed and the information is consistent with that provided to SIU. On May 10, 2010, members of the OPP conducted audio recorded interviews of three witnesses. Sensitive Personal Information These latter interviews took place despite a request made to OPP on the morning of May 10, 2010, to cease all interviews of civilian witnesses. These three witnesses had no information which would assist in this investigation.

The SIU requested and reviewed the following documents and materials from OPP:

  • Scene log
  • CAD report and event chronology
  • Communications audio
  • Sensitive Personal Information
  • OPP canvass list
  • Use of force and firearms qualifications records for Subject Officer
  • OPP policy and procedures on the C8 rifle
  • Cell phone log for Witness Officer #1
  • Audio statements of civilian witnesses
  • CD containing scene photos and drawings, and
  • OPP Occurrence report

Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence (Law Enforcement and Privacy Considerations)

Director’s decision under s. 113(7) of the Police Services Act

In my view, there are no reasonable grounds to believe that the named subject officer, Subject Officer, committed a criminal offence in relation to the firearms fatality of Mr. Darren Burnside on May 10, 2010. The following are the facts as I understand them.

In the early morning hours of May 10, 2010, Mr. Burnside left home on a farm tractor and drove to the residence of Civilian Witness #1 at a location. The tractor in question was adapted to permit it to be operated by hand devices Sensitive Personal Information. Civilian Witness #1 knew Mr. Burnside from high school. Civilian Witness #1’s residence is approximately ----redacted kilometres from the Burnside residence. When he arrived, Mr. Burnside began shooting at the house. He shot out two sliding patio doors on the ground floor. A person known to Civilian Witness #1 called the OPP to report the shooting, and indicated that he/she did not know the identity of the suspect. He/She told police that he/she thought the gunman may be a person, Sensitive Personal Information.

Mr. Burnside drove the tractor away from a location and went south on West Back Line. He stopped in the driveway of Civilian Witness #3 and Civilian Witness #4 on West Back Line south of Sideroad 80 where he began shooting randomly. While Mr. Burnside was in the driveway of a location, OPP officers including Witness Officer #2, Witness Officer #3 and subject officer Subject Officer began to assemble at and near the intersection of West Back Line and Sideroad 80, approximately one half kilometre to the north. The intersection and intersecting roads have no streetlights and there are no homes in the immediate vicinity. As a result, it was extremely dark.

Mr. Burnside left the driveway and drove the tractor north on West Back Line toward Sideroad 80. Officers at the intersection took cover, and one officer abandoned his cruiser facing south on West Back Line just south of Sideroad 80. Mr. Burnside shot at the cruiser, and then rammed it with the tractor, pushing it into the ditch. Mr. Burnside stopped the tractor beside the cruiser, still facing north on West Back Line. He began yelling and indicated that he knew police were in the area. He fired his long guns randomly, and some officers reported hearing gunshots and hearing rounds going over their heads.

Witness officers Witness Officer #2 and Witness Officer #3 and subject officer Subject Officer initially took cover behind a large rock at the southeast corner of the intersection. Subject Officer moved away from the intersection to the east, and concealed himself along a tree line. Witness Officer #2 and Witness Officer #3 moved north of the intersection and concealed themselves in a field. All three officers were armed with C8 rifles. Witness Officer #2 heard a series of references from Mr. Burnside that he “wanted a person.” (There is a person with a similar name, who lives nearby, but according to him/her, there was no animus between him/her and the decedent.) Witness Officer #3 heard the decedent say, “I have night vision.” Subject Officer, who did not provide a statement to the investigators (as is his right under the SIU regulation to the Police Services Act), fired three shots from his rifle, two of which struck Mr. Burnside. At 0431 hrs, the subject officer communicated that the suspect had shot at him and he returned fire.

Officers did not approach the tractor until daylight began. Emergency Response Team (ERT) officers approached and discovered Mr. Burnside apparently deceased, on the ground beside the tractor. Near the body were a .22 calibre rifle, and numerous spent and unspent shell casings. In the open tractor compartment were a shotgun, a box of shotgun shells and a spent shotgun shell, more spent and unspent .22 calibre shell casings and two half emptied bottles of liquor.

The post mortem disclosed that Mr. Burnside received two gunshot wounds, either of which could have been fatal. One entered the right side of his neck and the other the right side of his back, causing catastrophic damage to his internal organs.

In my view, the subject officer was justified in using lethal force against the decedent under either ss. 34(2) or s. 27 of the Criminal Code. Mr. Burnside was firing randomly at officers while driving a tractor in complete darkness, and appeared to be aware that there were officers in the area. He represented an imminent threat to all officers in the immediate vicinity and made no signs he was prepared to surrender. Those officers were in no position to escape the random shootings by Mr. Burnside. Accordingly, the subject officer was justified in the use of lethal force against the decedent for the purpose of either self-defence or the defence of those officers in the vicinity who were in immediate danger.

I intend to add the following to the Commissioner’s letter:

This investigation suffered from a series of breaches of O.Reg 267/10 to the Police Services Act. First, 14 witness officers refused to answer one of the SIU interviewer’s questions, an apparent breach of s. 8 of the applicable regulation. Those officers are:

  • Witness Officer #1
  • Witness Officer #2
  • Witness Officer #3
  • Witness Officer #4
  • Witness Officer #5
  • Witness Officer #6
  • Witness Officer #7
  • Witness Officer #8
  • Witness Officer #9
  • Witness Officer #10
  • Witness Officer #11
  • Witness Officer #12, and
  • Witness Officer #13

I will provide your office with relevant excerpts of their interviews upon request.

Second, the SIU investigators were denied access to the incident scene for half an hour. As well, a number of civilian witnesses were interviewed after the demise of Mr. Burnside on the basis that there was an ongoing attempted murder investigation. This investigation seems curious given that Mr. Burnside was clearly dead rendering any charge against him moot. Both of these latter acts would appear to be a breach of s. 5, which states that the SIU is the lead investigator in these circumstances.

Finally, and most seriously, Non-Witness Officer #3 apparently told a person Confidential Witness Statement , an utterance that could be construed as a thinly veiled threat that any statements a person made to the SIU investigators may have long term detrimental consequences. A comment of this nature if confirmed is minimally a form of interference in an SIU investigation and may be even more serious.

I understand that Mr. Paul Cormier, Executive Officer with the Unit, met with Non-Witness Officer #4 recently with respect to these issues, as well as others. I further understand that Non-Witness Officer #4 assured Mr. Cormier that these issues will be addressed and will not recur in subsequent incidents involving the SIU. I would appreciate it if you would provide me with a written response to this effect.

Date: September 29, 2010

Ian Scott

Director

Special Investigations Unit