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 37-year-old man (the “Complainant”).

Notification of the SIU
 

On October 19, 2020, at 12:20 a.m., the Ontario Provincial Police (OPP) notified the SIU of the Complainant’s death.

According to the OPP, on October 18, 2020, at 6:27 p.m. Central Standard Time (CST), Atikokan OPP Subject Officer (SO) #2 and SO #1 observed the Complainant in breach of conditions by not being in the company of his surety. SO #2 and SO #1 attempted to arrest the Complainant, who resisted and was taken to the ground. The Complainant was taken to the OPP detachment and collapsed in the cells. Cardiopulmonary resuscitation (CPR) was commenced when the Complainant was found not breathing. Paramedics were notified and transported the Complainant to Atikokan General Hospital (AGH) where he was pronounced deceased at 11:57 p.m.

The Team
 

Number of SIU Investigators assigned:     3

  Number of SIU Forensic Investigators assigned:     1

Complainant:

37-year-old male, deceased

Civilian Witnesses (CW)
 

CW #1     Not interviewed (Next-of-kin)

CW #2     Interviewed

CW #3     Interviewed

CW #4     Interviewed

CW #5     Interviewed

CW #6     Interviewed

CW #7     Interviewed

CW #8     Interviewed

The civilian witnesses were interviewed between October 20 and 26, 2020.

Police Employee Witness (PEW)
 

PEW     Interviewed on October 22, 2020

Subject Officers 
 

SO #1     Declined interview and to provide notes, as is the subject officer’s legal right

SO #2     Interviewed on January 25, 2021, and notes received and reviewed

The Scene
 

The scene where the Complainant’s condition deteriorated was inside a cell at the Atikokan Detachment and outside the cell in the custody area where CPR was administered before the Complainant was transported by ambulance to the AGH.

The SIU Forensic Investigator took photographs of the roadside scene where the Complainant was arrested, the OPP police cruiser used to transport the Complainant from the arrest scene to the Atikokan Detachment, the cells area inside the Atikokan Detachment, and the Complainant’s property.

Forensic Evidence 
 

OPP Global Positioning System (GPS) Data

A review of the OPP GPS data demonstrated that SO #2 and SO #1’s police cruiser was stationary at roadside while SO #2 and SO #1 were arresting the Complainant from 7:21:00 p.m., until 7:28:31 p.m., when it departed for the OPP detachment in Atikokan, arriving there at 7:31:30 p.m.

The police cruiser’s speed throughout the distance travelled between the arrest scene and the detachment never exceeded 59 km/h, averaged 39.16 km/h, and never came to a complete stop until the cruiser reached the detachment at 7:31:30 p.m.

Video/Audio/Photographic Evidence 
 

Civilian Cellular Telephone Images

The images obtained from CW #5 and CW #8 were of no probative value to advance the investigation of the Complainant’s death.

OPP Closed-circuit Television (CCTV) Data

From about 7:00 p.m., until about 9:30 p.m., the Complainant was depicted sitting on the cell bunk bent forward at the waist and asleep, possibly snoring.

At about 9:30 p.m., the Complainant slumped further forward and fell from his seated position to the floor.

At about 9:35 p.m., SO #2 attempted to rouse the Complainant, who appeared to be breathing but unresponsive and, by about 9:45 p.m., the PEW was depicted summoning SO #2 to assist.

By about 9:47 p.m., the cell was opened by SO #2 and, by about 9:48 p.m., he had started chest compressions and rescue resuscitation.
By about 9:50 p.m., SO #1 was providing rescue resuscitation and SO #2 was providing chest compressions.

At about 9:55 p.m., Emergency Medical Services personnel had arrived and took over the Complainant’s care.

Police Communications Recordings
 

OPP Communications Recordings – October 18, 2020

At 7:26:26 p.m., SO #2 advised the dispatcher that the Complainant was in custody for a bail violation and resisting arrest.

At 10:47:16 p.m., SO #2 telephoned the Provincial Communications Centre (PCC) requesting Emergency Medical Services to attend the detachment for a prisoner [now known to be the Complainant] having trouble breathing. SO #2 also advised that the Complainant was positive for COVID-19.

At 11:11:18 p.m., SO #2 informed the PCC that he was at the AGH and wanted the sergeant to head there as the Complainant was deceased at the AGH. SO #2 further advised that the guard [now known to be the PEW] was sent home and the cell was secured.

Materials obtained from Police Service
 

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

• Release Order – the Complainant;
• Affidavit – Manager of OPP Video and Voice Services;
• CCTV Data – Atikokan Detachment;
• Communications Audio Recordings;
• Deceased Continuity Register;
• History of OPP Occurrences (x2);
• Prisoner Custody Report and Security Check Forms;
• GPS Data – OPP transporting cruiser;
• Notes-SO #2;
• Notes-the PEW;
• COVID Screening Checklist-the Complainant;
• Record of OPP disclosure to SIU;
• Photographs;
• Computer-aided Dispatch Reports (x2);
• Occurrence Details and Reports; and
• Training Records – SO #2 and SO #1.


 

Materials obtained from Other Sources

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

• Post-mortem and Toxicology Reports, and Clothing Form, from the Coroner’s Office;
• Emails and photographs from CW #5 and CW #8; and
• Medical records for the Complainant relevant to the incident.

The events in question are clear on the evidence collected by the SIU, which included an interview with one of the subject officers – SO #2 – and a video recording of the Complainant’s time in police cells. As was his legal right, SO #1 chose not to interview with the SIU or authorize the release of his notes.

In the evening of October 18, 2020, the Complainant was on Mercury Avenue East having earlier visited a friend who lived in the area. As he was not in the company of his surety at the time, the Complainant was in breach of a term of his release.

At about the same time, SO #2 and SO #1 were on patrol traveling west in their cruiser on Mercury Avenue East when they came across the Complainant. Aware that the Complainant was violating his release conditions, the officers decided to stop and arrest him. SO #2 executed a U-turn, drove east a short distance toward the Complainant, and parked the cruiser in a driveway on Mercury Avenue East. Advised by the officers that he was under arrest, the Complainant attempted to flee from the officers but was caught by SO #1.

The Complainant resisted arrest and was grounded by the officers following a strike to the torso delivered by SO #1. He continued to resist on the ground and was met with multiple punches to the arms by SO #2. The officers were eventually able to subdue the Complainant and restrain him in handcuffs.

The Complainant was placed in the police cruiser, taken to the detachment, and lodged in a cell. He acknowledged having consumed alcohol but denied any drug use while being booked. As he was flagged a suicide risk on police records, his clothing was removed, and he was placed in a prisoner’s gown. A civilian guard – the PEW – was brought in to monitor the Complainant.

At about 9:30 p.m., [1] about three hours after he had been placed in the cell, the Complainant fell from his seated position on the cell bunk onto the floor. When the PEW tried and failed to rouse the Complainant, he called for help. SO #2 arrived in the cell area and, after banging on the bars and receiving a verbal reaction from the Complainant, left. The Complainant was still breathing at this time, albeit his breathing was laboured.

Minutes later, the Complainant stopped breathing altogether. The PEW alerted SO #2 and SO #1. SO #2 contacted Emergency Medical Services and then joined SO #1 in administering CPR to the Complainant.

Paramedics arrived in the cells at about 9:55 p.m. and took over the Complainant’s care. He was taken to hospital, where he was eventually declared deceased.

Cause of Death

The pathologist at autopsy attributed the Complainant’s death to hypertensive heart disease with fentanyl and methadone toxicity.

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

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,

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 October 18, 2020 while in the custody of the OPP. Hours earlier, he had been arrested by OPP officers in Atikokan and lodged in a cell. The arresting officers – SO #1 and SO #2 – were identified as subject officers for purposes of the investigation. On my assessment of the evidence, there are no reasonable grounds to believe that ether officer 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 a more serious offence and is reserved for lapses of care that amount to a reckless or wanton disregard for the lives or safety of other persons. It is not made out unless the impugned conduct is both a marked and substantial departure from a reasonable level of care in the circumstances. In the instant case, the issue is whether there was a want of care on the part of either subject officer that caused or contributed to the Complainant’s death and/or was sufficiently egregious as to attract criminal sanction. In my view, there was not.

SO #2 and SO #1 were engaged in the lawful execution of their duties when they took the Complainant into custody. The Complainant was in breach of a term of his release from custody which required him to be in the presence of his surety when out. He was, therefore, subject to arrest.

Thereafter, I am satisfied that SO #2 and SO #1 comported themselves with due care and regard for the Complainant’s health and safety. Aware that the Complainant was a suicide risk, the officers took steps to remove his clothing and brought in a civilian guard to monitor him while in cells. The Complainant’s time in cells appears to have been largely uneventful. Though in a seated position slumped forward at the waist, the Complainant slept through most of this time. When he fell from the cell bench onto the floor and appeared unresponsive, the civilian guard summoned SO #2. The officer attended and was able to elicit a verbal reaction from the Complainant when he rattled the cell bars. Minutes later, when the civilian guard called out that the Complainant had stopped breathing, paramedics were summoned to the station by SO #2. The officers then administered CPR until paramedics arrived. While it might have been preferable in hindsight to call for paramedics at the first sign of unresponsiveness on the Complainant’s part – at about 9:30 p.m. when he fell forward off the cell bench – I am unable to reasonably conclude that any such lapse in judgment amounted to a marked departure from a reasonable level of care, much less a marked and substantial departure. Though laboured, SO #2 had satisfied himself that the Complainant was still breathing, and he was aware that the civilian monitor would continue to keep a close watch. Moreover, he did not have any concrete reason to believe that the Complainant was labouring under the effects of fentanyl and methadone. The Complainant had denied drug consumption when he was booked at the station.

In the result, as there are no reasonable grounds to believe that either subject officer transgressed the limits of care prescribed by the criminal law in their dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: August 16, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit