Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.

Special Investigations Unit Act, 2019

Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following: 

Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.

A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.

In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.

This report relates to the SIU’s investigation into the serious injury a 35-year-old man (the “Complainant”) suffered.

Notification of the SIU

On December 15, 2020 at 9:04 a.m., the Barrie Police Service (BPS) reported that on December 6, 2020 at about 4:55 a.m., the Complainant was arrested for assault at the Quality Inn, 55 Hart Drive. He was taken to the police station. While BPS officials were walking the Complainant to the cells, he became unsteady on his feet and unresponsive. A BPS official administered naloxone and CPR (cardio-pulmonary resuscitation) was performed. The Complainant was taken to Royal Victoria Hospital (RVH) where he was intubated. The Complainant was not expected to recover.

The Scene

The series of events of concern to the SIU transpired in a room at the Quality Inn in Barrie and the BPS station.
 

Physical Evidence

Computer Aided Dispatch (CAD) Report

The CAD Report was received from BPS on December 22, 2020.

At about 4:05 a.m., on December 6, 2020, the CW called BPS from the Comfort Inn. At about 4:06 a.m., BPS officials were sent to the Comfort Inn, and they called an ambulance for the CW at about 4:09 a.m. At about 4:14 a.m., two other BPS officials arrived to assist and they dealt with the CW. At about 5:00 a.m., the SO reported a man by name (now known to be the Complainant, who provided an incorrect name at the time) was in custody for assault. At about 5:12 a.m., the SO took the Complainant to the BPS detention unit, arriving at about 5:31 a.m.

Video/Audio/Photographic Evidence

Body-worn Camera (BWC) Video

The BWC video was obtained from BPS on December 21, 2020.

The SO attended the Quality Inn during the early hours of December 6, 2020. He had a BWC and it recorded his interaction with the victim of an assault (CW), and his arrest of the Complainant for that assault. The BWC video revealed the Complainant was arrested without incident and taken to the BPS detention unit. No complaints of injury or mistreatment by any BPS official were recorded on the footage.

The following scenario emerges on the information collected by the SIU, which included video recordings from the SO’s body worn camera and a camera in the BPS booking room, which together captured most if not all of the police interaction with the Complainant. In the morning of December 6, 2020, BPS received a 911 call from the CW. The CW indicated that she had just been assaulted by the Complainant in a room of the Quality Inn in Barrie. Officers were dispatched to attend at the Quality Inn and speak with the CW.

The SO arrived at the Quality Inn and proceeded to take the Complainant into custody. The arrest was uneventful. The Complainant was transported to the BPS and paraded before WO #1.

As the Complainant was being booked at the BPS before WO #1, he became increasingly drowsy and unsteady on his feet. Suspecting that the Complainant was overdosing on opiates, the Complainant was placed on a bench and then on the floor where WO #1 delivered three doses of nasal naloxone and CPR was begun by the SO. At about 5:40 a.m., paramedics arrived at the station and took over the Complainant’s medical care. Within minutes, the Complainant was loaded into an ambulance and taken to RVH.

Arriving at hospital at 6:10 a.m., the Complainant was revived and responded to further naloxone treatment. He remained in hospital until December 17, 2020, whereupon he was discharged into the custody of guards with the CNCC.

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.

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,

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

On December 6, 2020, the Complainant lapsed into acute medical distress while in the custody of the BPS. The officer who had arrested the Complainant, the SO, was identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s medical condition.

The only offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing bodily harm contrary to sections 215 and 221 of the Criminal Code, respectively. Liability in respect of the former is not made out unless the conduct in question amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The latter is a more serious offence and captures conduct that is a marked and substantial departure from a reasonable level of care. In my view, it is plain that the SO did not transgress the limits of care prescribed by the criminal law.

There is no suggestion in the evidence that the Complainant’s arrest for having assaulted the CW was unlawful. Given the information at the officer’s disposal on dispatch and what he learned personally after speaking with the CW, I am satisfied there were grounds to take the Complainant into custody.

Thereafter, the evidence indicates that the SO and WO #1 conducted themselves with due regard for the Complainant’s health and safety. On the evidence gathered by the SIU, the arrest was without incident, as was the Complainant’s transport to the station. Soon after it became apparent at the station that the Complainant’s condition was deteriorating, WO #1 and the SO acted quickly to render medical attention. Suspecting a drug overdose, WO #1 delivered three doses of naloxone via the nasal passage. And when the Complainant began to lose vital signs, the SO began chest compressions. As this was happening, an ambulance was summoned and arrived at about 5:40 a.m., not more than 20 minutes from the time the Complainant had been brought into the booking area.

As there is some evidence that the Complainant had secreted drugs into his rectum prior to being arrested, the issue arises whether there was a want of care associated with the fact that the Complainant was not subjected to a strip search after being taken into custody. I do not believe so. Strip searches, as the Supreme Court of Canada made clear in R. v. Golden, [2001] 3 SCR 679, are not to be performed as a matter of routine. Rather, given their inherent impact on the dignity of the person, strip searches are only countenanced where there are reasonable and probable grounds to believe they are necessary. In the instant case, there was nothing in the circumstance surrounding the Complainant’s arrest to suggest he had drugs on his person. Beyond that, it is not at all clear that a strip search, even had one been done, would have discovered drugs, or would have discovered them at a point in time sufficient to have made a difference to the Complainant’s well-being.

In the result, as I am unable to reasonably conclude on the aforementioned-record that the SO, in concert with WO #1, conducted himself other than lawfully throughout his interaction
 
with the Complainant, there is no basis for proceeding with criminal charges in this case and the file is closed.



Date: February 8, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit