SIU Director’s Report - Case # 20-OCI-178
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Mandate of the SIU
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.
Freedom of Information and Protection of 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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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 serious injuries sustained by a 48-year-old woman (the “Complainant”).
Notification of the SIUOn July 20, 2020, the Kingston Police (KP) notified the SIU of an injury to the Complainant.
The KP reported that, on July 19, 2020, the Complainant stole a Canadian National Railway vehicle in the area of the Collins Bay Marina, Kingston. She drove the vehicle to a nearby Tim Hortons where she dumped it and then carjacked another vehicle from a pregnant woman. The Complainant drove the stolen vehicle back to the marina where she abandoned it and got into a canoe. She paddled the canoe down the shore all the way to Picton where she was eventually arrested by the Ontario Provincial Police (OPP).
The OPP transported the Complainant back to Kingston and turned her over to the KP at 9:25 a.m. The Complainant was being held for a Bail Hearing on multiple charges. At approximately 7:50 p.m., the Complainant complained to the custody staff that she did not feel well. She admitted to having ingested some drugs which she had concealed in her vagina. Emergency Medical Services responded and transported her to the Kingston General Hospital (KGH) where she was admitted and placed into the Intensive Care Unit in life-threatening condition. The Complainant was intubated and on life-support. The hospital would not divulge to KP what drug the Complainant had in her system.
KP forensic services photographed the cell and the custody video was secured for the SIU.
The TeamNumber of SIU Investigators assigned: 3
Complainant:48-year-old female interviewed, medical records obtained and reviewed
Witness OfficersWO #1 Interviewed
WO #2 Interviewed
Police Employee WitnessesPEW #1 Interviewed
PEW #2 Interviewed
Additionally, the notes from one other police employee witness were received and reviewed.
Subject OfficersSO Interviewed, but declined to submit notes, as is the subject officer’s legal right.
The SceneThe Complainant emptied the contents of a baggie into her mouth while she was detained in a cell at KP police headquarters.
Closed-circuit Television (CCTV) Footage from Cell BlockAt 11:38:29 a.m., the Complainant was placed into a cell by a female police officer. She was wearing grey-coloured dungaree shorts and a black sleeveless top. The Complainant sat down on the cell bunk and the cell door was closed. She spent most of the afternoon either sitting on the cell bunk or walking around the cell. She periodically stood at the cell door and looked out the cell door inspection window.
At 1:18:02 p.m., the Complainant kicked and banged with both her hands on the cell door. She shouted out but what she said was inaudible. A shadow could be seen outside the cell door inspection window and the Complainant appeared to be talking to someone. She sat down on the bunk and periodically shouted out expletives. She walked over to the cell door and stood facing into the corner of the door jam. Both her hands are in front of her body at waist height. There appeared to be some movement of her right hand around her crotch area. She sat down on the bunk and was sobbing. The Complainant spoke to a man (unseen) outside the cell door, and then sat down on the bunk. An officer passed in some tissue paper through a slot in the cell door. She spread the tissue paper around her bare shoulders and legs as if she was cold.
At 4:05:30 p.m., the Complainant got up from the bunk and knocked on the cell door. She had a conversation (inaudible) with a woman (unseen) outside the door. She then sat down on the floor behind the cell door. White forensic protective-type coveralls were handed into the cell through the door service hatch. The Complainant put the coveralls on and sat back down on the floor and appeared to fall asleep.
At 5:37:00 p.m., the Complainant was handed some food (hamburger) through the cell door service hatch. She sat down on the bunk and took a bite of the hamburger. The Complainant stood at the door and shouted (inaudible). She went back to the bunk, ate some more of the hamburger, and then sat down on the toilet.
At 6:18:55 p.m., the Complainant took the reminder of the hamburger off the bunk and sat down on the floor beside the cell door. She ate some more of the hamburger. She went to the faucet and took a drink of water. She spent some time leaning down towards the toilet bowl and then flushed the toilet. She then went back to sit on the floor beside the cell door, and ate some more of the hamburger. She stood up and spoke to a woman (unseen) outside the cell door. She sat down on the toilet. When finished on the toilet, she sat down on the floor beside the cell door.
At 6:49:02 p.m., the Complainant went over to the bunk, took a bite from the hamburger, and lay down on her right side on the bunk. She lay on her right side on the bunk with her back towards the camera and her right arm removed from the sleeve of the coveralls. Her left hand moved down towards the area of her crotch. The buttons on the front of her dungaree shorts appeared to be undone. There was a lot of movement of her left hand and noises similar to plastic rattling could be heard.
At 6:59:22 p.m., the Complainant’s left hand went towards her mouth as she raised her head. She turned towards the camera and there was a white-coloured object held in her lips. She got off the bunk, walked to the cell door and looked out the inspection window. She poured the contents of the white object (a baggie) into her mouth on two occasions. She disposed of the baggie down the toilet and took a drink of water from the faucet. She walked to the cell door and looked out the inspection window. The Complainant went back and flushed the toilet. She walked around the cell, sat down on the bunk and fixed her clothing underneath the coveralls.
At 7:01:54 p.m., a female spoke to the Complainant through the cell door. The Complainant’s demeanour appeared normal and, when she finished her conversation, she walked over to the cell bunk and stood there breathing heavily. She sat down and was rummaging through the pockets of her dungaree shorts. She was rocking back and forth on the cell bunk.
At 7:11:58 p.m., the Complainant lay down on the cell bunk. After approximately two minutes she sat up and felt her neck and forehead. She then got up from the bunk and took off the coveralls. She used the toilet, washed her hands and sat back down on the bunk.
At 7:17:08 p.m., the Complainant got up from the bunk and held her left hand on the cell wall to support herself as she appeared to be dizzy. She took a drink of water from the faucet and then knelt on the floor with her elbows and upper body on the bunk. She could be heard mumbling, but her words could not be made out. She then lay down on her back on the cell floor, pointed at the ceiling camera, and appeared to be intoxicated or high.
At 7:18:58 p.m., the Complainant went to the cell door and called out several times. She appeared to have a conversation with another detainee and asked for their name. She took another drink of water from the faucet and again knelt on the floor with her upper body rested on the bunk. She then sat on the floor with her back against the wall.
At 7:22:10 p.m., the Complainant went to the cell door, knocked on it and called out. She had a conversation with a male officer who asked her to standby. She walked around the cell and appeared to be unsteady on her feet. She went over to the faucet for a drink of water several times. She walked around the cell and appeared to be intoxicated by whatever she had taken. She was continually talking to herself and acting strangely.
At 7:29:09 p.m., the Complainant went to the cell door and was shouting back and forth with other detainees. She remained beside the cell door and her behaviour changed; she became very jittery and her hands were shaking.
At 7:34:05 a.m., a male police officer spoke with the Complainant from outside the cell door. The police officer was heard to ask the Complainant if she was good. She nodded in the affirmative, and the police officer left. She remained close to the cell door and continued to talk to herself and shout at other detainees. Her hands and legs were shaking, and she appeared very disorientated. She continually talked to herself.
At 7:38:40 a.m., the Complainant got up from the bunk, stood facing the wall with both her hands on the wall, and acted strangely. She went over to the cell door and talked out loud to herself. She waved at the ceiling camera in a beckoning motion.
At 7:41:14 a.m., a female spoke to the Complainant through the cell door inspection window. The Complainant stood with her arms folded as she spoke with the female. The female asked the Complainant if she was okay and she told her she was not. The female asked her what was going on, but her reply was indiscernible. As she replied, the Complainant waved her hand towards her mouth. At 7:42:09 p.m., the female walked away from the cell door. The Complainant shouted back and forth with a detainee.
A 7:44:45 p.m., a male police officer spoke to the Complainant through the cell door. He asked her if she had taken something and she replied she had. He asked what she had taken but her response was inaudible. She showed the police officer that both her hands were shaking. At 7:45:34 p.m., the police officer walked away from the cell door.
At 7:51:18 p.m., a police officer opened the cell door and told the Complainant that paramedics were going to check her out. She left the cell with the police officer. She was escorted into the booking area by two uniform police officers. The Complainant was staggering as she walked and almost fell as she was placed sitting on a bench.
At 7:54:26 p.m., paramedics entered the booking hall and the Complainant was placed on a stretcher and taken from the booking hall.
Materials obtained from Police ServiceThe SIU obtained and reviewed the following records from the KP:
- Booking Information Folder;
- General Order - Prisoner Care and Control;
- Kingston Police Daily Report by WO #1;
- Release Order-the Complainant;
- Notes of the PEWs, WO #2 and an undesignated police employee;
- Occurrence Report;
- Occurrence Report-Medical Situation In cells; and
- CCTV footage from KP Cell Block.
Materials obtained from Other SourcesInvestigators obtained and reviewed the following material from non-police sources:
- Medical records from KGH.
At about 11:38 a.m. on July 19, 2020, the Complainant was lodged in a cell at KP police headquarters. She had earlier been arrested by OPP officers in Picton in relation to her involvement in a carjacking and theft of a canoe in Kingston that morning. KP officers took custody of the Complainant from the OPP and returned her to Kingston.
The Complainant’s time in the police cell was largely uneventful. This changed at about 6:49 p.m., at which time the Complainant removed a baggie of drugs from her vagina. Starting at about 7:00 p.m., the Complainant began to consume the drugs. The first signs of the Complainant’s health being impacted by the drugs started at about 7:17 p.m., at which time she appeared unsteady on her feet and started to mumble. At 7:29 p.m., the Complainant’s hands started to shake and she became very jittery. When asked by a cell monitor at 7:41 p.m. whether she was okay, the Complainant replied that she was not. That was followed shortly by the Complainant’s responding in the affirmative when asked if she had “taken something”.
An ambulance was summoned to the station and the Complainant escorted out of the cell into the booking area. Paramedics arrived at about 7:54 p.m. The Complainant was placed on a stretcher and taken to hospital.
Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
Section 215, Criminal Code - Failure to Provide Necessaries
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and(ii) is unable to provide himself with necessaries of life.
(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently.
Analysis and Director's Decision
It being clear that the Complainant’s condition was the result of her own drug ingestion, the only issue that arises is whether her custodians contributed to the Complainant’s difficulties through any want of care sufficient to attract criminal sanction. In my view, they did not.
There are two offences that arise for consideration: the failure to provide the necessaries of life and criminal negligence causing bodily harm contrary to sections 215 and 221 of the Criminal Code, respectively. The former is premised, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. That is, something more than a simple want of care is required. Criminal negligence captures behaviour that is even more derelict. That is to say, the impugned conduct must be both a marked and substantial deviation from a reasonable level of care.
I am unable to reasonably conclude that the SO, or any of the other KP members who had a hand in dealing with the Complainant while she was in a police cell, transgressed the limits of care prescribed by the criminal law. I accept that the Complainant was lawfully in police custody. There was evidence that she had participated in a carjacking in Kingston earlier in the morning and thereafter stolen a canoe in which she made her way to Picton before being arrested by OPP officers.
I am also satisfied that the Complainant was adequately monitored while in custody by those persons responsible for keeping an eye on her and tending to her needs. The cell monitors on duty through her time in custody did not notice anything remarkable about the Complainant until about 7:45 p.m. The cell video recording appears to confirm this because it does not depict anything remarkable until about 6:50 p.m., at which time the Complainant retrieves drugs from her person and, shortly thereafter, begins to consume them. Thereafter, it appears PEW #2 took prompt action to alert her superiors of the Complainant’s deteriorating health at about 7:45 p.m., not more than 30 minutes after the Complainant began to display symptoms, whereupon medical attention was quickly arranged.
The question arises whether the Complainant ought to have been more carefully searched for drugs before being lodged in cells. After all, the Complainant had admitted to cocaine and methamphetamine use at the time she was booked. It should be noted that the Complainant was subject to a pat-down search before she was placed in a cell. That the drugs were not discovered in this process is not surprising as the Complainant had in fact secreted the baggie in her vagina. That being the case, whether a strip search of the Complainant’s body would have discovered the contraband would be mere speculation. And that is assuming that there were grounds to conduct a strip search, which I am not certain was the case. According to the law set out in R. v. Golden,  3 SCR 679, in addition to reasonable and probable grounds justifying an arrest, the police must establish reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. Notwithstanding her admitted drug use, the Complainant presented in good health at the time of her booking and appeared that way through most of her time in custody. In the circumstances, I am unable to fault the officers for not subjecting the Complainant to a strip search. That being the case, I am even less persuaded that a body cavity search, which may well have been the only way to find the baggie and requires more justification than a strip search, was a viable option or that the officers’ failure to perform one was sufficiently remiss to attract criminal liability.
In the final analysis, I am satisfied on the foregoing analysis that the care the Complainant received was within the limits defined by the criminal law despite her being able to access and consume drugs while in custody. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: January 25, 2021
Electronically approved by
Special Investigations Unit
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.