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.

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.

Notification of the SIU

On February 10, 2021, 9:31 a.m., the Peel Regional Police (PRP) contacted the Special Investigations Unit (SIU) and reported the following.

On February 9, 2021, at 6:30 p.m., PRP officers responded to a residence where Civilian Witness (CW) #2 was unable to control her son, the Complainant. The Complainant was autistic and had mental health issues. When PRP arrived, the Complainant had already fled the home.

He was later apprehended at 6:54 p.m., under the Mental Health Act (MHA), and taken to Credit Valley Hospital (CVH). The Complainant was under police guard, with one hand handcuffed to a stretcher awaiting assessment. Around midnight, the Complainant’s health deteriorated, and he was transferred to the Intensive Care Unit where he was now on life support. The Complainant might have taken an unknown drug which he had hidden in his anus.

The Team

Date and time team dispatched: 02/10/2021 at 10:23 a.m.

Date and time SIU arrived on scene: 02/10/2021 at 10:40 a.m.

Number of SIU Investigators assigned: 3

The Scene

The Complainant was believed to have ingested an unknown substance while in a room in the Emergency Department of CVH.

Physical Evidence

The SIU obtained a white knotted cellophane bag from the PRP on February 24, 2021. It was noted that PRP had retrieved the item from a garbage bin located in the Complainant’s room at CVH.

The SIU also obtained a plastic fragment from the Centre of Forensic Sciences (CFS) on March 8, 2021.

Forensic Evidence

The following submissions were made by the SIU to the CFS.

The following scenario emerges from the evidence collected by the SIU, which included interviews with SO #1, the Complainant’s parents, and medical staff who treated the Complainant in hospital. As was his legal right, SO #2 chose not to interview with the SIU or authorize the release of his notes.

In the evening of February 9, 2021, CW #1 and CW #2, the Complainant’s parents, became concerned for with their son’s welfare and contacted police for assistance. The Complainant, autistic and with a mental health disorder, had left the family home and they were worried about his well-being.

SO #1 made his way to the Complainant’s residence as other officers began to search for the Complainant, assisted by CW #2’s tracking app. After speaking with the Complainant’s parents and learning of his struggles, including his recent possession of knives and suicidal ideations, the officer was of the view that the Complainant was subject to apprehension under the MHA. SO #1 broadcast as much via his radio to the officers searching for the Complainant. Shortly thereafter, the officer heard that the Complainant had been located in the area of Doug Leavens Boulevard and Lisgard Drive.

WO #3 had found the Complainant at about 6:52 p.m. Soon joined by SO #2 and WO #1, the Complainant was arrested without incident, searched and placed in SO #2’s cruiser for transport to CVH.

SO #2 and the Complainant arrived at the hospital, together with WO #1 in a separate cruiser, at about 7:20 p.m. After being triaged, the three made their way to the emergency room waiting area. At about 8:00 p.m., WO #1 was relieved by WO #2, who in turn was relieved by SO #1 at about 9:30 p.m. The Complainant’s behaviour vacillated between periods of calm, restlessness and agitation. He would sit at times. At others, he slid himself off the chair and assumed a prone position. A passing paramedic supervisor, noting the Complainant was lying prone on the chairs with his hands cuffed behind his back, approached the officers to express his concern. The officers agreed the Complainant’s position was not ideal – the Complainant kept returning to it even after the officers assisted in picking him up. As it had been several hours since the Complainant had arrived at the emergency department, the supervisor made inquiries with the nursing staff about the delay and was told there were no acute care beds at the moment.

It was not until about 11:00 p.m. that the Complainant was placed on a bed in a treatment room in the emergency department with the door open. SO #1 and SO #2 accompanied him and stood outside the room after removing the Complainant’s handcuffs and re-handcuffing his left hand to the bed rail. [2] Sometime between 11:30 p.m. and midnight, a paramedic walking by alerted the officers to the fact that the Complainant was fidgety. The paramedics and the officers entered the room and observed the Complainant bring something to his mouth. Questioned whether he had just consumed drugs, the Complainant admitted he had taken a single Percocet. Questioned further, the Complainant acknowledged that he had ingested fentanyl.
SO #1 and the paramedic advised the nursing staff of what had just occurred. The paramedic indicated that the Complainant had taken a Percocet while SO #1 reported that he had consumed an unknown drug. A nurse examined the Complainant and found his vital signs to be normal. About an hour later, the Complainant sat up in his bed and said he was not feeling well. SO #1 immediately found a nurse, and advised her that the Complainant needed assistance.

Emergency medical care was initiated with respect to the Complainant. SO #1 and SO #2, told by a doctor that their presence was no longer needed, left the hospital at about 2:40 a.m.

The Complainant passed away while still in hospital on February 11, 2021. His cause of death remains unknown pending the results of toxicological analyses.

Section 219, Criminal Code -- Criminal negligence causing death

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

Section 220, Criminal Code -- Criminal negligence causing death or bodily harm

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 - 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.

The Complainant passed away on February 11, 2021 while in hospital in Mississauga. As he had been apprehended and taken to hospital days earlier by PRP officers, the SIU was notified and opened a file. SO #1 and SO #2 were identified as subject officials for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the Complainant’s death.

The offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 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 exercised in the circumstances. The latter is a more serious offence and is reserved for behaviour that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the impugned conduct constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the issue is whether there was a want of care in the manner in which one or both of the subject officials dealt with the Complainant that caused or contributed to his death and/or was sufficiently egregious as to attract criminal sanction. In my view, there was not.

The Complainant was lawfully in the custody of the officers throughout the events in question. Given the information the police had been provided from the Complainant’s parents about his struggles with mental health and their concerns for his safety, I am satisfied that the Complainant’s apprehension was lawful pursuant to section 17 of the MHA.

Thereafter, I am unable to reasonably conclude that either subject official fell short in how they cared for the Complainant while he was in their custody. Starting with the pat down search at the scene of the arrest, there is no indication that it was conducted other than professionally. Nor does it appear that the substance or substances the Complainant consumed while in hospital were in his clothing or on his person, and therefore missed during the search. Rather, as SO #1 says the Complainant admitted to him as medical staff initiated emergency care, he had retrieved them – reportedly, methamphetamines – from within his rectum. The question is raised whether the officers should have conducted a more invasive search of the Complainant that might have discovered the drugs. WO #3 explained that he did not believe grounds existed to justify such a search, a position that was reasonable, in my view. In R v Golden, [2001] 3 SCR 679, the Supreme Court of Canada made it clear that a strip search incident to arrest could only be justified where there were reasonable and probable grounds for concluding that a strip search was necessary in the circumstances of the arrest. Though the officers were aware that the Complainant had been in possession of weapons, expressed suicidal ideas, and possibly even that he struggled with drug and alcohol abuse, they had no information suggesting he was presently in possession or under the influence of illicit substances.

With respect to his time at the hospital, the evidence indicates that SO #1 and SO #2 comported themselves with due care and regard for the Complainant. They maintained watch over the Complainant and quickly alerted hospital staff when, first, it appeared that he had ingested a drug and, then, his condition started to deteriorate. It is true that the Complainant was somehow able to retrieve drugs secreted in his rectum and ingest them while in the officers’ presence. That said, it bears reiterating that the officers had no articulable reason to believe that the Complainant was in possession of drugs. While it appears they knew he was a drug user, the Complainant had indicated when asked that he had not consumed any drugs. And, the evidence establishes that SO #1 and SO #2 reacted quickly in entering the Complainant’s room to remove his hand or hands from his mouth, despite the fact they were too late. On this record, if the officers were remiss to some extent, I am not satisfied on reasonable grounds that any such shortcoming amounted to a marked lapse from a reasonable standard of care, let alone a marked and substantial one.

On the aforementioned-record, and for the foregoing reasons, there are no reasonable grounds to believe that the subject officials comported themselves other than within the confines of the criminal law in relation to the Complainant, notwithstanding his tragic demise. Accordingly, there is no basis for proceeding with criminal charges, and the file is closed.


Date: June 10, 2021


Electronically approved by

Joseph Martino
Director
Special Investigations Unit