Director's Report Details

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.

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.

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 24-year-old woman (the “Complainant”).

Notification of the SIU
 

On May 21, 2020, at 6:43 p.m., the Niagara Regional Police Service (NRPS) notified the SIU of the following.

On May 20, 2020, at 5:20 p.m., the Complainant was brought to the police station.

On May 21, 2020, between 2:02 p.m. and 2:04 p.m., the Complainant attended a video bail hearing and was remanded back into custody. Shortly after the Complainant was brought back to her cell, she was seen taking something from her crotch area and placing it in her mouth. At 2:22 p.m., the Complainant laid on the bed and placed a blanket over her body. At 3:13 p.m., the Complainant’s leg could be seen falling off the bed and. At 4:50 p.m., special constables attended her cell to conduct a well-being check and found her unresponsive. At 5:15 p.m., the Complainant was pronounced dead.

The Team
 

Number of SIU Investigators assigned:     3

Number of SIU Forensic Investigators assigned:     1

Complainant:

24-year-old female, deceased

Witness Officers (WO)
 

WO #1     Interviewed

WO #2     Notes reviewed, interview deemed not necessary

WO #3     Notes reviewed, interview deemed not necessary

WO #4     Notes reviewed, interview deemed not necessary

WO #5     Interviewed

WO #6     Interviewed

WO #7     Interviewed

The witness officers were interviewed between June 1 and 16, 2020.

Police Employee Witnesses (PEW)
 

PEW #1     Interviewed

PEW #2     Interviewed

PEW #3     Interviewed

The police employee witnesses were interviewed on June 5, 2020.

Subject Officer (SO)
 

SO     Declined interview and to provide notes, as is the subject officer’s legal right

The Scene
 

On May 20, 2020, the Complainant was lodged in a cell in the women’s corridor.

Upon arrival of the SIU Forensic Investigator on May 21, 2020, the Complainant was found on her back on the floor just outside her cell. The Complainant’s arms were above her head and her mouth had been intubated. She was wearing a pair of pants with socks and a T- shirt that had been cut open. There was further evidence of Emergency Medical Services (EMS) intervention on the floor in the immediate area and a bag of medical waste was found close by. An automated external defibrillator (AED) unit was lying on the floor showing evidence that it had been deployed. Defibrillator pads were also attached to the chest area of the deceased.

Closed-circuit television (CCTV) video cameras were located at the north door entrance to the corridor and an individual camera was located inside the Complainant’s cell in the north/east corner ceiling area. Monitors for these cameras were in the custody area reception and a specific room monitored by special constables. There was also another set of monitors installed in the staff sergeant’s office on the main floor of the building away from the custody area.

There were two main hallways that led from the booking reception area to the Complainant’s cell.

The Complainant’s cell was not in plain view from the sergeant’s booking and special constables’ desk.

Video/Audio/Photographic Evidence 
 

NRPS Booking and Cell Video Summary

On May 20, 2020, at 5:13 p.m., the Complainant was brought to the NRPS holding cell by WO #3 and WO #4. Upon arrival, the Complainant was met by WO #5, who checked the Complainant’s temperature with an electric thermometer and placed a mask on her face. The Complainant was brought into the booking area where WO #5 advised the Complainant that the area was being audio and video recorded.

At 5:17:38 p.m., WO #3 advised that the Complainant was brought to the station because she had failed to comply with a recognizance, that her time of arrest was at 4:45 p.m., and that WO #1 (Street Crime Unit) was the arresting police officer.

At 5:18 p.m., WO #5 asked the Complainant if she had any drugs or alcohol today or if she had any injuries, illnesses or contagious diseases. The Complainant replied in the negative. When WO #5 asked if the Complainant suffered from any mental illnesses, the Complainant stated she had PTSD, anxiety and depression, and was not taking any prescribed medication. The Complainant became upset and started to cry while WO #5 asked if she was going to try to hurt herself or escape while she was in custody. While crying, the Complainant shook her head ‘no’ to the questions.

WO #5 advised that she was going to check the Complainant’s temperature again since it was warm in the cruiser and she was sweating. The Complainant became more upset and shook her head ‘no’ while WO #5 asked her questions about any flu-like symptoms she may have. The Complainant confirmed that she had been tested for COVID the week before and the results of the test were negative.

The Complainant was eventually brought to the wall that was directly across from the special constable’s desk and she was searched by a special constable. It appeared nothing was recovered during the search. Shortly thereafter, the Complainant was escorted to a room, across from the booking desk, where she spoke to her lawyer. Afterwards, the Complainant was escorted and lodged into a cell.

The Complainant was escorted out of her cell a few times from May 20, 2020 to May 21, 2020 for different reasons.

On May 21, 2020, at 2:01 p.m., the Complainant was escorted out of the cell by two special constables [it is now known that the Complainant attended a video bail hearing]. At 2:03 p.m., the Complainant was escorted back to her cell by the two special constables.

At 2:03 p.m., the Complainant entered the cell and threw a face mask onto the ground but then picked it up and gave it to the special constable. Once the cell door was closed, the Complainant sat down on the bench and appeared to be very upset. She placed her hands over her face and leaned over her legs. There appeared to be a cup on the floor by her feet and a blanket over the bottom half of her body.

At 2:07 p.m., the Complainant, while sitting cross legged on the bench, turned around so her back faced the cell door and it appeared she placed both of her arms/hands under the blanket, which was draped over her thigh area. The Complainant’s hands then came up from under the blanket and she remained in the sitting position and leaned over. It appeared she was looking at something in her hand/hands.

At 2:08:41 p.m., the Complainant got up and walked to the sink/toilet area with a cup. When she arrived at the toilet, it appeared she placed her hands back down the front of her pants and then reached in the sink area with the cup.

At 2:09 p.m., it appeared the Complainant placed her hand over her mouth, tilted her head back and took a sip from the cup. Seconds later, the Complainant walked back to the bench and placed the blanket over the bottom half of her body. She then turned around and sat facing the cell door.

At 2:14 p.m., the Complainant walked to the sink, took the cup and brought it back to the bench. At this time, the Complainant stood in a horse stance, appearing to place her left hand down the front of her pants, after which she sat back down on the bench with her back facing the cell door. As she sat cross legged on the bench, it appeared she was looking down at her hands and fidgeting with something in her hands.

At 2:15:50 p.m., the Complainant took a sip from the cup, placed her hand over her mouth, tilted her head back and took another sip from the cup. The Complainant stood up and then placed her hands back down the front of her pants. She sat back down on the bench with her legs crossed on the bench.

At 2:20:07 p.m., the Complainant walked up to the sink and appeared to place a cup in the sink, after which she walked back towards the bench. Seconds later, while standing, the Complainant placed her right foot on the bench and used her right hand to reach down the front of her pants. She then sat back down, cross legged, on the bench and looked down at her hands, hunched over.

At 2:21:24 p.m., the Complainant took a sip from the cup, placed her hand over her mouth and tilted her head back. This action was repeated at 2:22:05 p.m. and 2:22:28 p.m.

At 2:22:47 p.m., the Complainant walked to the toilet and appeared to reach down into the toilet area. She then washed her hands, returned to the bench and wrapped herself with the blanket. The Complainant laid down on the bench on her left side with her head facing the cell door. She laid on her left side with her right leg on top of her left leg.

From about 2:29 p.m. to 3:12 p.m., the Complainant lay on her side with little to no movement.

At 3:12:04 p.m., the Complainant’s legs slowly moved towards the edge of the bench and, soon after, her right leg slipped off the bench and her foot slowly moved toward the ground.

At 4:52:30 p.m., PEW #2 entered the cell and leaned over the Complainant. The Complainant was motionless. PEW #1 stood by the threshold of the cell door.

At 4:53:29 p.m., PEW #2 and PEW #1 pulled the Complainant out of the cell and laid her on her back just outside the cell. The special constables began to render cardiopulmonary resuscitation (CPR) using a defibrillation machine and chest compressions.

At 5:00:34 p.m., paramedics arrived with a stretcher and eventually rendered CPR.

At 5:19:09 p.m., paramedics and police personnel walked out of the cell area leaving the Complainant’s body on the ground.

Special Constables Cell Checks - May 21, 2020

At 2:20:36 p.m., a special constable walked from the left of the Complainant’s cell door and walked down the main hallway. It appeared that he had an item or card in his right hand. It appeared that the Complainant was sitting on the bench.

At 2:55:09 p.m., PEW #1 walked by from the left of the Complainant’s cell door and looked in the cell through the glass. It appeared that the Complainant was lying on the bench with her head close to the cell door. It appeared that WO #1 used a card and swiped several readers as he walked down the hallway.

Police Communications Recordings
 

Communication Recordings Summary – May 21, 2020

NRPS provided communications recordings that were not time stamped.

On May 21, 2020, WO #7 requested an ambulance at the NRPS headquarters and advised the dispatcher that the Complainant was found unresponsive in her cell. WO #7 further advised that the AED was used in an attempt to revive the Complainant. WO #7 said that additional police officers were required to assist.

Materials obtained from Police Service
 

Upon request, the SIU obtained and reviewed the following materials and documents from NRPS:

• Call Summary;
• Communication Recordings;
• Defibrillator Incident Log;
• Officers' Identity Search;
• General Occurrence Hardcopy;
• General Order-Persons in Custody;
• General Order-Search and Seizure;
• Information Folder Hardcopy;
• Notes-PEW #3;
• Notes-WO #7;
• Notes-WO #5;
• Notes-WO #2;
• Notes-WO #1;
• Notes-WO #4;
• Notes-WO #6;
• Notes-PEW #2;
• Notes-WO #3;
• Notes-PEW #1;
• Cell Occupancy-May 21, 2020;
• Officer Timeline Information;
• Property Items Report;
• Screenshot-Arrest Information- arrest;
• Screenshot-Booking;
• Screenshot-Arrest Information- details;
• Known Offender Summary;
• Occurrence Reports (x3);
• Officers’ Schedule Screenshots (x3);
• Sudden Death Report; and
• Booking and Cell Video.

Materials obtained from Other Sources

The SIU obtained and reviewed the following records from non-police sources:

• Preliminary Autopsy Findings from the Ontario Forensic Pathology Service;
• Report of Post-mortem Examination, July 30, 2020, from Ontario Forensic Pathology Service; and
• Opinion letter, dated October 6, 2020, from Ontario Forensic Pathology Service; and
• Opinion letter, dated May 17, 2021, from third-party expert.

The events in question are clear on the evidence collected by the SIU, which included interviews with various police personnel who had dealings with the Complainant during her period in custody and a video recording that captured her time in cells. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the afternoon of May 20, 2020, the Complainant was arrested by WO #1 for being in breach of a term of her probation requiring her to remain at her residence except when in the company of a third party. Two days prior, WO #1 had seen the Complainant on Lundy’s Lane, alone, visiting a suspected drug house.

The Complainant was taken into custody without incident and transported to the police station. Prior to being lodged in cells, the Complainant was asked whether she had consumed any drugs or alcohol, and answered in the negative. The Complainant was placed in a cell at about 5:30 p.m.

The Complainant’s time in custody was relatively uneventful until about 2:03 p.m. of the following day, when she appeared upset on her return to the cell following a video court appearance. She had been refused bail and was to be sent to a correctional facility. Starting at about 2:07 p.m., the Complainant, on multiple occasions, retrieved quantities of fentanyl by reaching down and inside her pants, which she ingested. This continued until about 2:22 p.m., at which time the Complainant laid on the cell bench on her left side, her right leg on top of her left leg.

At about 3:12 p.m., the Complainant’s legs slowly moved towards the edge of the bench. Shortly thereafter, her right leg slipped off the bench and her foot slowly dropped toward the floor.

The Complainant was discovered unresponsive in her cell by PEW #1 at about 4:45 p.m. The officer-in-charge – WO #7 – was alerted to the situation. She called for an ambulance as PEW #1 and PEW #2 commenced CPR. Paramedics arrived at the station at about 5:00 p.m. and eventually took over the Complainant’s care. She could not be revived and was declared deceased at 5:15 p.m.

Cause of Death

The pathologist at autopsy attributed the Complainant’s death to fentanyl toxicity.

Sections 219 and 220, Criminal Code -- Criminal negligence causing death

(a) in doing anything, or

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

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.

On May 21, 2020, the Complainant died of a drug overdose while in NRPS cells. The SO, the officer in charge of the station for a period when the Complainant was in custody, 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 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 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. The latter is reserved for more serious cases of neglect and is implicated in relation to behaviour that reflects a wanton or reckless disregard for the lives or safety of others. It is not made out unless the impugned conduct constitutes a marked and substantial departure from a reasonable level of care. In the instant case, the question is whether there was any want of care on the part of the SO that caused or contributed to the Complainant’s death and/or was so egregious as to attract criminal sanction. In my view, there was not.

There are two areas of possible neglect as far as the officers’ interactions with the Complainant are concerned. The first relates to the fact that the Complainant was allowed into police cells with illicit substances still on her person, and asks whether enough was done to discover the drugs. More specifically, as it appears that the Complainant was subjected to at least two searches over her clothing, once at the scene of her arrest and then again at the station, should she also have been strip searched?

There are arguments on both sides of this question. On the one hand, the Complainant had been seen frequenting a suspected drug house in the days before her arrest and, in fact, had just exited such a site when she was taken into custody by WO #1. In the circumstances, when the initial searches had not turned up any evidence of drugs, it might well have been prudent for the police to look for substances secreted on her person behind her clothing. On the other hand, the Complainant had not been arrested for a drug offence, suggesting there may not have been reasonable grounds to believe she was in possession of illegal substances. She had also denied drug consumption when being booked, and presented as someone who was not under the influence for most of her time in custody. On this record, mindful of the Supreme Court of Canada’s admonition in R. v. Golden, [2001] 3 SCR 679 that strip searches must be strictly reserved for instances in which there are reasonable and probable grounds to believe they are necessary, I am not satisfied that the decision to forego one in this case was without foundation. Moreover, it is not clear that a strip search, had it been performed, would have turned up the drugs as there remains the distinct possibility that the Complainant had inserted the substances in her vaginal orifice.

The second area of legitimate scrutiny is with the quality of the Complainant’s supervision while in cells. Of particular focus is the almost two-hour period that the Complainant went unchecked between about 3:00 p.m. (some 50 minutes after it appears she started consuming the fentanyl in her possession) and 4:45 p.m., when she was discovered unresponsive. By policy, the Complainant ought to have been checked every 30 minutes. Had that occurred, it might well have been the case that her medical distress would have been caught far earlier and medical attention brought to bear to save her life. Indeed, the medical evidence suggests that the Complainant’s death was not a foregone conclusion from the moment she finished ingesting the fentanyl. Thus, for example, the administration right up until the moment her heart stopped beating of an antidote, namely, naloxone, would likely have kept the Complainant alive. The special constable who appears most responsible for personally conducting the checks, PEW #1, says that he was prevented from doing so during this critical period because he was preoccupied with other duties. While some delay is to be expected depending on a custodian’s workload from moment to moment, I am not persuaded that a delay of nearly two hours was justified in this case.

That said, if the special constable fell short in his duties, I am unable to reasonably conclude that the SO is implicated in PEW #1’s failings. Though the SO, the officer-in-charge of the cells between 3:00 p.m. and 4:30 p.m., was ultimately responsible for the health and well-being of the prisoners per official policy, it was widely understood that the special constables did the actual work of monitoring the prisoners and tending to their needs. This is not to say that senior personnel in the SO’s position can never be held liable for the shortcomings of their staff. Certainly, if they are aware of circumstances in need of redress and do nothing about them, or fail to exercise diligence in the overall operations of the cells, they may well attract sanction. However, in this case, the SO’s connection to the events in question is attenuated by the relatively brief period during which he was in charge and the cell checks were missed. Nor does it appear that the system in place at the facility gave the sergeant any notice of the fact that cell checks had been missed. [1] On this record, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law vis-à-vis the Complainant’s death.

In the result, as I am satisfied that the SO comported himself lawfully throughout the Complainant’s period in cells under his watch, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: July 12, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit