THUNDER BAY — The director of Ontario's Special Investigations Unit has determined there are no reasonable grounds to believe a Thunder Bay Police officer committed a criminal offence in connection with the death of Jenna Ostberg.
Joseph Martino released his decision Tuesday, more than 18 months after the 21-year-old woman from Bearskin Lake First Nation was found dead at a residence on Ray Boulevard.
The SIU investigation focused on the Thunder Bay Police Service response to three 911 calls on Dec. 30, 2023.
According to the SIU report, TBPS received the first call at 2:05 a.m. concerning a domestic incident involving Ostberg and her boyfriend.
The caller said the woman was an unwanted person in the house and that she and the boyfriend were not supposed to be in contact because of a court order related to a domestic assault charge against him earlier in the year.
She was advised officers would get there as soon as they could, and that she should call back if anything changed.
About 18 minutes later, the same caller dialed 911 to advise that Ostberg was no longer at the house, and that the call for assistance should be cancelled because she believed the young woman had left.
The communications operator told her to lock the door, and that the call would be cancelled.
The original call remained in a queue, but was reviewed by a supervising officer before being removed from the queue at 3:08 a.m. with no officers being dispatched to the residence.
Finally, at 10:34 a.m., a third 911 call from the home reported Ostberg had been located "passed out" in a bedroom closet, and that an ambulance was required.
Despite efforts to resuscitate her, paramedics subsequently pronounced her deceased.
The SIU examined screenshots of messages between her and her boyfriend the evening prior to, and during the early morning hours of the day she died.
It found that despite a court order prohibiting communication, the two began texting each other on Dec. 29, and that Ostberg asked if she could come to his home.
He initially told her not to, but she insisted, and when she arrived they began to argue.
At this point, another resident of the home who was aware of the non-communication order instructed the boyfriend to go to the basement, then called 911.
After falling asleep briefly, the caller woke up to a silent house and assumed Ostberg had left the residence, so she called 911 to cancel the call.
But at 10:30 a.m., when the boyfriend went back upstairs to his bedroom, he found her unresponsive in a closet.
During its investigation, the SIU interviewed eight civilian witnesses between January 9 and June 23, 2024, but the supervising police officer invoked his legal right to decline to be interviewed or to provide notes.
Records provided by TBPS show police received 17 calls for service to the same residence throughout 2023, and these were variously classified as "domestic", "family dispute", "person welfare," and "assist". Officers were dispatched in most of the incidents, but not all of them.
In his analysis, the SIU director said the supervising officer would have known, at a minimum, that there was a non-communication order related to the parties, and that, had he reviewed any of their recent history with police, he also would have known that order stemmed from an incident of violence.
"There is a case to be made that the officer failed in his duty of care," he wrote.
"On the one hand, pursuant to TBPS policy, it may be that the initial call classified as Unwanted/Violent (a Priority 2 call) ought not to have been cancelled. Faced with a domestic disturbance call involving alcohol and potential violence arising in the context of a history of violence, one might reasonably have expected a police officer to err on the side of caution and insist on a police response regardless of a subsequent request for cancellation."
But Martino noted police policy at the time did not address a situation where a 911 call-taker received additional information, prior to any police response, that undermined the reasons for a Priority 2 classification.
"As for the understanding and practice of the call-takers, it seems that information received subsequent to the first call for service could result in the call being treated as a lower priority. Arguably, with information (Ostberg) had left the residence, the officer could reasonably believe that any potential for violence had dissipated, and that he was within his rights to cancel the call."
The SIU director went on to explain that the difficulty with finding criminal liability also relates to two separate but related issues.
If there was negligence, he asked, when did it crystallize, and was it causally connected to Ostberg's death?
He said that, theoretically, had the call not been cancelled, and had officers responded, she would have been removed from the home and, presumably, not died in the manner she did.
The expert medical opinion was unable to discern a time of death, leaving open the "distinct possibility" the woman was dead shortly after her last known cell phone activity at 2:42 a.m.
"If that is what happened, and any criminal negligence arose after (the officer) confirmed the cancellation at 3:08 a.m, then the officer's conduct cannot be said to have caused or contributed to the death."
Martino said the question then becomes whether there was negligence before 2:42 a.m.
"The call was cancelled by the call-taker at 2:23 a.m, and then sent to (the officer) for review. That effectively left him about 19 minutes to turn his attention to the task, consider his options, and make a decision."
The SIU director concluded that, considering that it was a busy night in the 911 communications centre, the officer would have been occupied with other matters, and that at least several minutes would have elapsed before police could attend the house in any event, he was unable to reasonably conclude "in this condensed window of time" that any negligence by the officer transgressed the limits of care prescribed by the criminal law."
The length of the investigation, the SIU report states, resulted from the complexity of the case and from "resource pressures" among the investigative team.
It also notes that a report prepared by the Forensic Data Recovery Unit of the Ministry of the Attorney General wasn't received until last month.
The family of Jenna Ostberg has not yet responded to the outcome of the SIU investigation.
The Thunder Bay Police Service issued a statement saying now that the SIU probe is completed, it will begin a required administrative review in accordance with provincial legislation.
"The purpose...is to review member conduct, the policing provided, and procedures as they related to the incident."
TBPS said the results of this review will be reported to the Thunder Bay Police Service Board.
