SIU Director’s Report - Case # 10-OOD-009

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 January 18, 2010 at 0915 hrs, Notifying Officer of the Ottawa Police Service (OPS) notified the Special Investigations Unit (SIU) of a suspicious death investigation being conducted at a location, Ottawa.

Notifying Officer reported that OPS were called to a location in the early hrs of January 7, 2010, for a domestic related incident. Five OPS officers attended the address but were unable to contact the occupants of a location. The officers then cleared the scene. On January 16, 2010, OPS were called back to a location where the bodies of Ms. Ashley Boudreau and Mr. Andrew Ferguson were located.

By the time the SIU was notified the coroner had attended the scene and determined both individuals had been deceased for some time.

The investigation

Two SIU investigators and two SIU forensic investigators (FI) were immediately dispatched to the scene at a location, Ottawa, and commenced an investigation.

The exterior scene at a location was photographed. The SIU did not attend the post-mortem examinations of Ms. Boudreau or Mr. Ferguson, conducted at the time the SIU was notified.

Civilian witness Civilian Witness #1 was interviewed on January 18, 2010.

On January 19, 2010 the following officers were designated as witness officers and interviewed on the noted date:

• Witness Officer #1 (January 20, 2010), and
• Witness Officer #2 (January 20, 2010)

Initially, on January 19, 2010, Witness Officer #3 and Witness Officer #4 were designated as subject officers. After review and analysis of interviews conducted and materials released to the SIU, they were re-designated as witness officers and interviewed on February 2, 2010.

On January 19, 2010, as a result of preliminary investigation, Subject Officer was designated as subject officer. On February 2, 2010, through Counsel Counsel, Subject Officer refused to provide the SIU with a statement or a copy of his memorandum book entries.

Upon request, the OPS provided the SIU with the following documentation:

• copy of the Computer Aided Dispatch Report (CAD) for Event 2010-----redacted
• copy of detailed Call Summary for event 2010-----redacted
• copy of Officer Radio Log for January 7, 2010, from 0400 hrs to 0700 hrs
• copy of GPS history for cruisers ----redacted, ----redacted, ----redacted, ----redacted, relative to event 2010-----redacted
• copy of CAD for Event 2010------redacted
• copy of Call Hardcopy for Event 2010------redacted
• copy of General Occurrence Hardcopy for Event 2010------redacted
• copies of all occurrences involving Ms. Ashley Boudreau
• copies of all occurrences involving Mr. Andrew Ferguson
• copy of OPS Partner Assault/Partner Conflict Policy # 5.25
• copy of OPS Board Policy # LE-024, Domestic Violence Occurrences; and
• copy of download of Mr. Ferguson’s cellular phone (----------redacted).

During the course of the investigation, the SIU obtained information and documentation from the OPS in relation to Mr. Ferguson’s cellular phone. The phone was downloaded and determined to contain 67 images. Image number 67 contained a date stamp indicating the photo was taken on January 7, 2010, at 12:50:47 hrs. The picture was of Ms. Boudreau, lying in a prone position and appeared consistent with her positioning when she was found on January 16, 2010. Ms. Boudreau appeared to be deceased in the photo.

Confidential 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

The investigation by this Unit has been completed, the file has been closed and no further action is contemplated. In my view, there are no reasonable grounds to believe that the named subject officer, Subject Officer, committed a criminal offence in relation to his acts or omissions when dispatched to a ‘disturbance in progress’ at a location in the early morning of January 7, 2010. The subject officer and four other officers responded to the dispatch, made inquiries, and left the scene without entering the apartment or speaking to its two occupants, Ms. Boudreau and Mr. Ferguson. On January 16, 2010, the OPS was called back to the same apartment and discovered their two dead bodies. A combination of forensic and photographic evidence suggests that Mr. Ferguson killed Ms. Boudreau some time in the later morning of January 7^th, and then took his own life at a later point in time. The focus of the SIU inquiry is not that any officer directly caused either of their deaths. Rather, it is whether the omission of the subject officer on January 7^th when he attended a noise complaint and made no attempt to gain a forced entry into the apartment was of a marked and substantial departure from that of a reasonably prudent person in those circumstances and whether that omission caused the death of Ms. Boudreau. If so, there could be reasonable grounds to lay a charge of criminal negligence causing death: R. v. F(J.), 2008 3 S.C.R. 215. For the following reasons, I am of the view that the subject officer’s omission was not of such a marked and substantial departure from that of a reasonably prudent person in these circumstances assuming that it caused Ms. Boudreau’s death.

Shortly after 0439 hrs on January 7^th, a neighbour phoned in a complaint of a disturbance from the next door residence. The call was dispatched in this manner: “fight going on at A/M for 3-4 hrs, was verbal-can see them thru window, throwing things, hitting each other – heard something about a bat – top floor, south side (left at top of stairs) –saw girl bent over male.” Five officers attended the scene, one of them being the subject officer. The subject officer and a witness officer spoke to the neighbour and were informed that he/she saw Ms. Boudreau and Mr. Ferguson fighting and arguing. He/She also told them that the lady swung an object and struck the male. He/She heard a female voice say, “I love you. I love you.” The neighbour returned to her second floor apartment and heard an officer say from below, “I can hear them clearly now and they are at it again.”

Other officers went to the a location address and discovered a subdivided house with four buzzers on the front door. One of the officers rang all the buzzers and knocked on the front door but received no answer. The same officer went around the back, climbed the fire escape stairs and peered into a window with the aid of his flashlight. He saw Mr. Ferguson and identified himself as a police officer. Mr. Ferguson did not make eye contact, and looked like he had just woken up. The witness officer asked him to open the front door and Mr. Ferguson turned and left the window. The officer returned to the front door, banged on it, but no-one came.

Another witness officer spent approximately 15 to 20 minutes at the front door, did not hear any sounds, and left. Yet another officer went to the south side of a location and attempted to look into the ground floor using his/her flashlight. He/She saw nothing. The officers cleared the scene at approximately 0511 hours and none of the witness officers included anything of the incident in their notes. The subject officer did not provide his notes to the investigators, as is his right under O. Reg 673/98 of the Police Services Act.

The dispatch information and further information received from the neighbour could reasonably suggest that this incident was a partner conflict as opposed to the original designation as a “disturbance in progress.” If characterized as a partner conflict, pursuant to OPS Policy # 5.24, officers dispatched to the scene are duty bound to gain forced entry to the residence under certain circumstances. The relevant part of the policy permitting forced entry reads as follows:

While the Unit’s investigation would have benefited from contemporaneous notes from the involved officers to ascertain more detail about the January 7^th incident, it is my view that the subject officer’s omission of not forcing entry into the apartment is not such a marked and substantial departure from the acts of a reasonably prudent person to satisfy the criteria of criminal negligence, even assuming that omission caused the death of Ms. Boudreau. Here, the subject officer had received information that a “girl was bent over the male” and that the female had struck the male with an object. It can be reasonably inferred that the subject officer learned the male protagonist did not appear to be in distress – Mr. Ferguson was viewed by a witness officer and, had he been visibly injured, we can reasonably assume that this information would have been communicated to other officers, including the subject officer. Further, at the point the officers decided to leave, the disturbance was not continuing, and by police accounts everything was now quiet in the apartment from which the noise emanated. Going back to some of the stated criteria in the forced entry provision of the OPS Policy, there was scant information in the minds of the involved officers to support the proposition that an offence was continuing or would be repeated.

With the power of hindsight, one could say that Ms. Boudreau’s life might have been saved by the involved officers taking a more proactive step of forcing entry into the residence, but even this statement is debatable. We do not know what the result would have been if the officers had spoken to Ms. Boudreau or Mr. Ferguson when called to the apartment on January 7^th. It is unclear if any officer would have been able to form reasonable grounds to arrest either Ms. Boudreau or Mr. Ferguson had they had the opportunity to interview them or view the apartment after a forced entry. In my view, it is setting the bar too high to conclude a charge of criminal negligence causing death is warranted because an officer did not gain forced entry into a residence in these circumstances.

I have also considered the charge of failing to provide the necessaries of life under s. 215 of the Criminal Code, and am of the view that it is inapplicable to these facts because the decedent was not “under his charge” and therefore the subject officer owed no legal duty to her. In sum, no criminal liability may attach to the subject officer’s acts or omission in relation to this January 7^th incident.

Date: February 22, 2010

Ian Scott
Director
Special Investigations Unit