SIU Director’s Report - Case # 19-PCD-128

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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 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 35-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On June 11, 2019 at 1:25 a.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s injury.

According to the OPP, on June 10, 2019, at about 11:00 p.m., Kenora OPP responded to a break and enter at a tire and auto repair business located at an address on Railway Street, Kenora. [1] Upon police arrival, they found the premises unsecure and began a search inside. The Subject Officer (SO) located the Complainant inside and attempted to arrest him for the offence of breaking and entering. A struggle ensued, and the Complainant was grounded. A second police officer, Witness Officer (WO) #5, assisted with gaining control of the Complainant, and handcuffed him. An injury in the Complainant’s eye area was observed; however, the exact nature of the injury was unknown. The Complainant was subsequently transported by North West Emergency Medical Service (NWEMS) personnel to the Lake of the Woods District Hospital (LWDH) in Kenora where he underwent a Magnetic Resonance Imaging (MRI) examination of his head. [2]

Information subsequently provided indicated that on June 11, 2019, at 3:30 a.m., the Complainant was air-lifted to the Winnipeg Health Sciences Centre (WHSC) where he was listed in critical condition with a chance of dying.

Both Kenora and Winnipeg hospitals refused to provide the OPP with any information regarding the Complainant’s injuries or medical condition.

The scene was not held; however, OPP Forensic Identification Service police officers processed it in relation to the break and enter event. The OPP also advised that the premises had a closed-circuit television (CCTV) security system.

It was learned that the Complainant was with no fixed address and from Grassy Narrows First Nation (GNFN), and that the OPP were attempting to obtain next of kin information.

The Complainant never regained consciousness and died in hospital at the WHSC on June 15, 2019.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainants

Complainant: 35-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Not interviewed – next of kin
CW #6 Interviewed
CW #7 Interviewed
CW #8 Interviewed
CW #9 Interviewed

Witness Officers

WO #1 Not interviewed [3]
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed


Subject Officers

SO Interviewed, but declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The area where the Complainant was taken to the floor by the SO was in a corridor between the customer service area and the vehicle service bay of a tire and auto repair business on Park Street, Kenora. The floor was made of concrete.

Expert Evidence

The following opinion was obtained from the Ontario Forensic Pathology Service.

Consultation Report of Pathologist


The consultation report, which recited the medical and investigative facts known at that time, and included copies of diagnostic images obtained during the investigation, concluded with the following opinions:

MEDICOLEGAL OPINIONS:

1. How much force was required to cause the fatal injury on June 10, 2019?

Unfortunately, there is no scientific way to determine, with any precision, how much force was required to cause the acute change in the Complainant's subdural hematoma. What can be said, however, is that the existence of a pre-existing subdural hematoma made him more vulnerable to developing an acute expansion of the hematoma. This is a relatively common clinical entity. Also, given the absence of a new scalp bruise or new skull fracture at autopsy, it is reasonable to conclude that the force that resulted in the expansion of the subdural hematoma is less than that experienced during the event that occurred on May 23. It is also reasonable to conclude that the expansion of the subdural hematoma is unlikely to have resulted from significant impact on the head. Bleeding diatheses can also increase the risk of re-bleeding in a pre-existing subdural hematoma. I do not have any indication that the Complainant had a bleeding diathesis; however, his full medical records have not been reviewed.

2. Are there other significant issues to be considered in this case?

More significant to this matter, however, was the delay in recognition of a significant change in the decedent's neurologic status. Owing to the fact that subdural hematomas are venous or low-pressure bleeds that usually take some time to accumulate, there is typically a window of opportunity for successful treatment. The typical course starts with some degree of trauma, followed by a lucid interval (from minutes to several hours), followed by a period where neurosurgical treatment may reverse the effects completely or partially, followed by irreversible/catastrophic brain injury. Indeed, the assertion that the decedent began snoring after being placed into the cruiser was indicative of a significant change in his neurologic status requiring medical investigation.

Note that these opinions are based solely on the medical history provided to me by the SIU as well as review of the imaging studies provided. The autopsy findings have not been independently reviewed. I reserve the right to alter/amend my opinions should further information be made available to me.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following:
  • CCTV Data - Liquor Control Board of Ontario (LCBO) Store; and
  • CCTV Data - OPP Kenora Detachment.


CCTV Data - Liquor Control Board of Ontario (LCBO) Store


The OPP obtained CCTV data from the liquor store relevant to the incident under investigation. This requested disclosure item was stored on a Universal Serial Bus (USB) that contained 20 video files, which were indexed to depict date and time. However, the video files were not time-stamped. For this report, the time-stamps are presumed to be in Central Daylight Time. The following is a summary of the video footage from the LCBO store at an address on Park Street, Kenora.

On June 10, 2019, between 2:00 p.m. and 3:00 p.m., the Complainant attended the LCBO store alone. He was wearing a grey hoodie, green khakis, black crocs footwear, and a black backpack. The Complainant’s pants were ripped near his right knee.

The Complainant paid cash for two alcoholic beverages and placed them in his backpack. The Complainant exited the LCBO store and purposefully walked towards an individual who waited outside in the Kenora Shoppers Mall parking lot.

At approximately 3:59 p.m., two unknown men attended the LCBO store and attempted to gain entry. The security guard denied access and the men walked back toward the parking lot. These two men engaged in a disturbance with several individuals. While standing outside the main entrance of the LCBO store, the security guard made a cellular telephone call and a vehicle with emergency lights arrived at their location. The video did not clearly capture the disturbance in the parking lot and, as such, the reported assault on the Complainant by a named but unidentified person could not be confirmed or refuted. An identified person’s vague description of the named but unidentified person matched several men who entered the LCBO store.

CCTV Data - OPP Kenora Detachment


There was no audio recording on the surveillance videos. The DVD contained 14 video files of the detachment interior, notably the Hallway, Booking Area One and Two, Vestibule One, and Cell Two. The bullpen camera did not record any data. The following is a summary of the video files.

At 10:39 p.m., [4] a uniformed police officer [now known to be WO #5] conducted a body drag of a male [now known to be the Complainant] from an unknown location within the detachment to Booking Area One. The Complainant was wearing a light-brown, hooded sweater, ripped, olive green pants, and a right shoe. The Complainant was handcuffed with his hands behind his back and his legs were crossed. The Complainant was supported up on a bench by WO #5. Another uniformed police officer [now known to be the SO] entered Booking Area One with the Complainant’s left shoe.

At 10:40 p.m., the SO and WO #5 conducted a visual inspection of the Complainant and made attempts to rouse him. As the SO and WO #5 assisted him to the floor, the Complainant was flaccid. The SO and WO #5 searched the Complainant and removed his sweater.

At 10:42 p.m., while on his buttocks, the Complainant was pulled by both arms from Booking Area One to Cell Two. WO #5 was on the Complainant’s left side and the SO on his right side. While in Cell Two, the SO and WO #5 placed the Complainant in a recovery position on his right side.

At 10:44 p.m., the SO checked the Complainant’s radial and carotid pulse while WO #5 stood at the threshold of Cell Two.

At 10:45 p.m., two uniformed female police officers [now known to be WO #2 and WO #3] attended the outside of Cell Two. One of the female police officers [believed to be WO #3] entered Cell Two and made observations of the Complainant but did not make any physical contact with him.

At 10:48 p.m., a third male uniformed police officer [now known to be WO #4] entered Cell Two with the SO and attempted to rouse the Complainant.

At 10:59 p.m., WO #4 escorted two EMS paramedics [now known to be CW #7 and CW #6] into Cell Two. While in Cell Two, CW #6 performed a sternum rub, checked the Complainant’s breathing and pupils, and assessed for visible head injuries.

At 11:05 p.m., the Complainant was lifted off the ground by CW #7 and CW #6, and loaded onto a stretcher in the hallway.

Police Communications Recordings


911 Call – CW #3


CW #3 reported to the OPP that a man was breaking into Fraser Tire and Auto Service. He provided the 911 call-taker with the location of the incident and his observations until the SO and WO #5 arrived.

OPP Communications Audio Recordings


Summarized as follows:
  • At 10:15 p.m., [5] the SO and WO #5 arrived on scene.
  • At 10:16 p.m., an identified unit [now known to be the SO and WO #5] confirmed the Complainant was inside Fraser Tire and Auto Service and were “cuffing him right now.”
  • At 10:23 p.m., the SO advised dispatch of the Complainant’s identity.
  • At 10:30 p.m., the Complainant was en route to the Highway 17A Detachment.
  • At 10:37 p.m., the Complainant arrived at the Highway 17A Detachment for lodging in a cell.
  • At 10:50 p.m., WO #4 requested that NWEMS attend the detachment for the Complainant.
  • At 10:53 p.m., a police officer with the Provincial Communications Centre (PCC) advised of NWEMS engagement at the detachment for the Complainant.
  • At 11:13 p.m., WO #4 phoned PCC and asked to speak to the police officer with the PCC.
  • At 11:33 p.m., WO #4 requested that any available units attend Fraser Tire and Auto Service and make it a crime scene.
  • At 11:42 p.m., WO #4 phoned the police officer with the PCC.
  • At 11:51 p.m., WO #4 phoned the police officer with the PCC and advised the Complainant was admitted and being transferred to Winnipeg.
  • At 11:56 p.m., a police officer phoned the police officer with the PCC for subject particulars, involved officers, and incident details.
  • At 12:09 a.m., a second police officer phoned the police officer with the PCC and requested the scene and cell be secured.
  • At 12:42 a.m., the first police officer telephoned the police officer with the PCC to advise that the SIU was not invoking its powers at this time and requested the Complainant’s condition be monitored.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • Communications audio recordings;
  • CCTV data from OPP Kenora Detachment cells area;
  • Drawing by WO #5;
  • Event Details Report;
  • Notes-all WOs;
  • Two Occurrence Reports;
  • Occurrences (Historic)-the Complainant;
  • Photograph made by SIU used during the SO’s interview;
  • Photographs made by SIU used during WO #5’s interview;
  • Prisoner Custody Report-the Complainant;
  • Property List;
  • Scene Photographs;
  • Supplementary Report-WO #4;
  • Two other Supplementary Reports-written by two different police officers; and
  • USB containing data from OPP parallel criminal investigation.

Materials obtained from Other Sources

In addition to the materials received from the OPP, the SIU obtained and reviewed the following materials from other sources:
  • Consultation Report by a pathologist from Ontario Forensic Pathology Service;
  • Kenora Fellowship Centre ‘Pass-on Book’ notes;
  • LWDH medical records relevant to the incident and the Complainant’s earlier admissions;
  • NWEMS Incident Report;
  • NWEMS Ambulance Call Reports – various dates;
  • WHSC medical records relevant to the incident; and
  • On July 28, 2020, the postmortem report prepared by the Manitoba Office of the Medical Examiner.

Incident Narrative

The following events emerge uncontested from the evidence. At about 10:10 [6] p.m. on June 10, 2019, the OPP received a 911 call indicating that a person was breaking into a tire and auto repair business on Park Street. The Complainant was that person. He had broken the window of a door into the business and gained access. OPP officers received word of the break and enter in progress and dispatched officers to investigate.

The SO and his partner, WO #5, were the first to arrive at the premises. The SO entered via the damaged door and quickly located the Complainant standing against a wall in the corridor that led to the service bay of the business. The SO ordered the Complainant to the ground, but he remained standing. The SO moved in to take hold of the Complainant’s right bicep. The Complainant reacted by pulling away and breaking free of the officer’s grasp. The SO reasserted his hold and forced the Complainant to the floor.

WO #5, who had momentarily separated from his partner once inside the business, arrived to find the Complainant being grounded by the SO. A prone Complainant struggled against the officers’ efforts to secure his arms behind his back. At one point, he attempted to lift himself from the ground and was met with a right-handed palm strike to the back by the SO, forcing him back down. The officers were soon able to wrestle control of the Complainant’s arms and restrain them in handcuffs. The time was about 10:16 p.m.

Following his arrest, the Complainant was picked up off the floor. He took a few steps on his own power but then went limp and had to be dragged out of the business and into the rear seat of WO #5 and the SO’s cruiser.

The Complainant was placed in a seated position in the cruiser. He snored en route to the detachment and remained unresponsive as the officers asked him questions. Growing increasingly concerned, the SO performed a sternum rub once at the detachment but was not able to rouse the Complainant.

WO #5 pulled the Complainant into the detachment. The time was about 10:40 p.m. The Complainant’s handcuffs were removed and he was placed in Cell Two on the floor in the recovery position. At about 10:44 p.m., the SO checked the Complainant’s pulse in the cell. The SO then contacted WO #4, expressed his concerns about the Complainant’s condition and recommended that paramedics be called. WO #4 arrived at the cell at about 10:48 p.m. He examined the Complainant and contacted the ambulance service at 10:52 p.m.

The paramedics, WO #6 and WO #7, arrived at the cell area at about 10:59 p.m. The Complainant was assessed and quickly loaded into the ambulance for transport to the LWDH, arriving at the hospital at about 11:25 p.m.

The Complainant was transferred from LWDH to the WHSC, where emergency brain surgery was performed in the morning of June 11, 2019. A large, solid, blood clot was removed from the right side of the brain. The Complainant never regained consciousness following surgery; he had sustained irreversible brain damage. Four days later, the Complainant passed away.

Cause of Death


As a result of the post-mortem examination of the Complainant conducted in Winnipeg on June 17, 2020 by a pathologist of the Office of the Chief Medical Examiner of Manitoba, the immediate cause of death was found to be complications of acute on chronic subdural hematoma with an antecedent cause of blunt force injuries with chronic ethanolism as a significant condition contributing to the death.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

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 -- Causing death by criminal negligence 

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.


Section 215, Criminal Code - Duty of persons to provide necessaries

215 (1) Every one is under a legal duty

(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.

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or
(ii) 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 endangered permanently; or
(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. 

(3) Every one who commits an offence under subsection (2)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.


Analysis and Director's Decision

The Complainant was removed from life support and passed away at the WHSC on June 15, 2019. He had been admitted to hospital after lapsing into acute medical distress following his arrest on June 10, 2019 in Kenora. The SO of the OPP was among the arresting officers and designated as the SO for purposes of the SIU investigation. On my assessment of the evidence, I am satisfied there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and subsequent death.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties to the extent such force was reasonably necessary in the execution of an act they were required or authorized to do by law. Based on what the SO and WO #5 had been told of the Complainant’s entry into the auto repair shop, and what they observed while there, the Complainant’s arrest was clearly lawful.

I am further satisfied that the force used by the officers in aid of the Complainant’s arrest was lawful. When confronted by the SO and told to get on the floor, the Complainant remained standing. Thereafter, the Complainant pulled backward and freed himself from the SO as the SO took hold of his right arm. In the circumstances, confronted in the dark with an individual who had just broken into private business premises and was refusing to comply with police orders that he surrender himself, the SO had good cause to force him to the floor. In that position, the officers would be better equipped to deal with any continuing resistance on the Complainant’s part. The Complainant did, in fact, continue to resist by refusing to release his arms to be handcuffed and attempting to push himself up. The SO reacted by delivering a single open-handed palm strike to the Complainant’s back, following which the officers were able to take control of his arms and affix them in handcuffs. On this record, I am unable to reasonably conclude that the force used by the officers was excessive in relation to the task at hand. This determination, however, does not conclude the liability analysis.

The medical evidence gathered by the SIU indicating that subdural hematomas may be treated successfully with early intervention raises the question whether the officers acted with appropriate dispatch in securing medical attention for the Complainant. If not, the offences that arise for consideration are failing to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220, respectively, of the Criminal Code. As crimes of penal negligence, both offences are predicated, 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.

It appears that the Complainant fell into acute medical distress the moment he went limp in the auto repair shop and then passed out in the cruiser. Despite his snoring in the police vehicle, neither the SO nor WO #5 believed the Complainant was in need of medical attention until their arrival at the detachment, some 24 minutes after his arrest. Given the odour of alcohol coming from the Complainant, the officers were under the impression until that point that the Complainant was simply highly intoxicated. When, back at the detachment, the Complainant did not rouse in response to a sternum rub, the SO suspected there was more going on than intoxication. He contacted WO #4 with his concerns and arrangements were soon made for the attendance of paramedics.

Arguably, medical attention ought to have been secured sooner for the Complainant following his arrest. Ideally, it appears this ought to have occurred at the arrest scene in light of the medical evidence obtained by the SIU to the effect that the Complainant’s snoring in the cruiser was “indicative of a significant change in his neurologic status requiring medical investigation.” In any event, whether and to what extent the delay in securing medical attention for the Complainant contributed to his brain injury and eventual death, I am not satisfied that any delay attributable to the SO deviated markedly from a reasonable level of care.

The SO demonstrated a level of vigilance with the Complainant’s well-being from the moment of his arrest until the paramedics were called. While he perhaps ought to have interpreted the Complainant’s snoring as more of a cause for concern, the Complainant’s presentation was not inconsistent with that of heavily inebriated individuals in the SO’s experience. When the SO could not rouse the Complainant with a sternum rub upon arrival at the detachment, he contacted WO #4 and asked that an ambulance be called. Those arrangements were made, and the Complainant examined by paramedics, all within approximately 20 minutes of his arrival at the detachment.

The Complainant had a complicated medical history of brain injury that made it difficult to attribute his subdural hematoma to any act or omission on the part of the officers who dealt with him. Be that as it may, whether or not the physical altercation that marked his arrest in the auto repair shop played a role in the injury, [7] there are no reasonable grounds to believe that either the SO or WO #5 used unlawful force against the Complainant. Similarly, if any unnecessary delay incurred by the police in having the Complainant medically assessed contributed to his tragic demise, there is insufficient evidence, in my view, to conclude that such delay was of sufficient magnitude to amount to a criminal offence. In the result, there is no basis for proceeding with criminal charges against the officers in this case, and the file is closed.


Date: August 31, 2020
Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) In fact, the tire and auto repair business was Fraser Tire and Auto Service located on Park Street, Kenora. [Back to text]
  • 2) In fact, now known to have been a Computed Tomography (CT) scan. [Back to text]
  • 3) WO #1 was not interviewed. A review of WO #1’s notes indicated she was not involved in the arrest of the Complainant nor with his transportation from the scene of the arrest to the OPP detachment. WO #1’s notes also indicated that she later stood by at the LWDH and received the Complainant’s clothing while medical personnel facilitated stabilizing treatment and diagnostic imaging of the Complainant who was unconscious throughout. WO #1 had no interaction with the Complainant. She had no information to advance the investigation that was not already known from the SO, the civilian and police witnesses who were interviewed, and from medical and police data obtained during the investigation. [Back to text]
  • 4) Times in this section of the Director’s Report are denoted in Central Time. [Back to text]
  • 5) Times in this section of the Director’s Report are denoted in Central Time. [Back to text]
  • 6) All times in this section of the Director’s Report are in Central Standard Time. [Back to text]
  • 7) There is some evidence to suggest the Complainant may have banged his head in the course of being forced to the floor by the SO. [Back to text]

Note:

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.