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 injuries a 46-year-old woman (the “Complainant”) suffered.

Notification of the SIU

On June 20, 2021, the Durham Regional Police Service (DRPS) notified the SIU of an injury to the Complainant.

DRPS reported that on June 18, 2021, the Complainant was arrested and taken to DRPS 17 Division police station. The Complainant was placed in an interview room in the Criminal Investigation Bureau (CIB) and, while being interviewed by a detective, she went into medical distress. Two doses of Narcan were administered, and Emergency Medical Services transported her to the Lakeridge Health Hospital.

Doctors advised the DRPS that the Complainant had fentanyl and benzodiazepine in her system, and she was admitted to the Intensive Care Unit.

The Team
 

Date and time team dispatched: 06/21/2021 at 1:54 p.m.

Date and time SIU arrived on scene: 06/21/2021 at 2:46 p.m.

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

46-year-old female, unable to provide interview; medical records obtained and reviewed

Civilian Witness (CW)
 

CW Interviewed

The civilian witness was interviewed on September 28, 2021.

Subject Official (SO)
 

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

Witness Officials (WO)
 

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

WO #8 Interviewed

The witness officials were interviewed between June 25, 2021 and September 15, 2021.

Service Employee Witnesses (SEW)
 

SEW #1 Interviewed

SEW #2 Interviewed

SEW #3 Interviewed

The service employee witnesses were interviewed between July 3, 2021 and August 20,
2021.

The Scene 

The incident occurred at DRPS 17 Division while the Complainant was in custody.

Video/Audio/Photographic Evidence [1]

911 Calls to DRPS Communications Centre

1:04:56 p.m.
A woman advised the call-taker that she had just had her wallet stolen by two people. Mall Security had a video of the two people and their description. The caller said that it was pouring rain out and she was running to her car when she dropped her wallet in the parking lot of the Oshawa Centre (OC) Mall. She realized she dropped it and, as she ran back to pick it up, the two people ran up and stole it. She said everything happened in three seconds

The caller described the two people and stated one was female and the other male. Both were last seen walking towards Elm Grove Avenue. The caller advised that all her identification was in the wallet.
The call-taker advised the woman that police would search the area, and then come and see her.

1:12:19 p.m.
The woman called the DRPS Communications Centre again and advised that she had just learned from the OC Mall Security that the two people who stole her wallet had also been in a store in the same mall, buying something. As the store staff could only let people into their store with an appointment, they would have the peoples’ names and addresses for contact tracing, and they would give this information to police.

The caller at this point advised the call-taker that she owned a handgun and that the restricted licence for it was in her wallet.

2:15:53 p.m.
The same woman called the DRPS Communications Centre and advised that she had just spoken to Mastercard to report her credit card stolen, and Mastercard advised her that someone had just tried to buy a gun online for $902.00 using the caller’s Mastercard and restricted licence.

The call-taker advised the caller that she would pass the information along to the officers attending the call.

2:58:56 p.m.
The same woman called the DRPS Communications Centre again and advised that she had just spoken to staff at a second store in the OC Mall and an employee there said the two people who had stolen the caller’s wallet could be identified by the employee, and had been in the store earlier that day.

The caller advised the call-taker that it was actually the Complainant who had picked the wallet up from the ground and that, at first, she did not realize the male was with her, but they did walk away together. The caller asked the call-taker to pass this information along to the investigating officer as the officer had told the caller that they would like to get the name of the female suspect in order to get a warrant for her. The call-taker said she would pass the information along to the investigating officer.

DRPS Radio Communications

Dispatcher
Can you attend a theft that just occurred at 419 King Street. I will work on backup for you. Complainant was walking through the parking lot outside Shoppers Drug Mart, dropped her wallet, and a male and a female picked it up and took off running east on Elm Grove. [Description provided]. Security has them on camera footage. Caller is an [name provided].

WO #2 and WO #1
You can mark us on that call as well.

Dispatcher
10-4. The complainant has called back and it looks like the suspects were in [another] store previously - you need an appointment to go inside so they may have names and a photograph.

WO #2 and WO #1
We just checked the area, negative results, we are going to see the complainant now and the other unit can disregard.

Dispatcher
I have an update for you on your call. The complainant has called back and says she had a firearm licence in her wallet that was stolen. She has just spoken with Mastercard who advised her that a purchase was just attempted to be made to purchase a firearm for $900.00 on her card and the purchase was denied by Mastercard.

WO #4
Can you send a message to all Oshawa units we are looking for [the Complainant]. RPG for Theft and Attempt Fraud. She attempted to use a PAL and a Mastercard to buy a gun. If they could find her for us, that would be appreciated. We are over at the Oshawa Centre now.

WO #3
I dealt with [the Complainant] this morning. I’m pretty sure she went to [address provided] in Oshawa. I will come and see you [WO #4] at the mall now.

WO #4
We are at the [store name provided] here.

WO #3
I’m at 17 Division with [WO #2 and WO #1] and we are all heading to [address provided by WO #3] to attempt to locate [the Complainant]

WO #3
Dispatch, [WO #2 and WO #1] has [the Complainant] in custody now and mark me with a second party, a male YO in custody as well, and we all are heading to 17 Division.

Dispatcher
10-4, 4:39 p.m.

WO #3, and WO #2 and WO #1
At 17 Division. Transport complete. 4:41 p.m.

Booking Hall Video

At 5:00:00 p.m., WO #5 was seen sitting at a computer desk with keyboard and monitors. He was separated from prisoners being booked by a large Plexiglas shield.

At 5:00:42 p.m., the Complainant appeared in front of the Plexiglas shield at the booking counter. She was not masked. The audio was activated by WO #5. SEW #1, who was masked, gloved, and wearing a face shield, walked into camera view and placed a hoodie and a pair of shoes on a wooden bench behind the Complainant.

WO #5 began asking a series of booking and COVID questions to the Complainant. She responded by stating that she suffered from shortness of breath, could not breathe, and had a sore chest, commenting that she was not sure if that was from the defibrillator that was used on her a few days before as a result of a guy she knew, who had picked her up off the ground and choked her out. She added that five to six days ago, she lost her sense of taste, that her son and brother tested positive for COVID eight days ago and were in self-quarantine, and that she should be in quarantine as well but they made her take her tent down and she had nowhere to quarantine.

WO #5 told the Complainant to put a mask on and WO #1 gave her a blue surgical mask, which the Complainant put on. WO #5 then reached through a slot in the Plexiglas shield with a hand-held device taking the forehead temperature of the Complainant. She said she did not wish to call a lawyer at that time. She said she wished to call her mother. She explained that she had pericarditis - an infection in the sac around her heart. She said she also suffered from pleural effusion, which she explained was her lungs filling up with fluid.

The Complainant explained to WO #5 that doctors had inserted tubes in the sides of her lungs and drained the lungs. The last time she had her lungs drained she was in hospital for nine weeks. She went on to say that she did not require any medications at present, had not had any alcohol or drugs in the previous 12 hours, had never tried to harm herself, and did not own or have access to firearms. She added that the only injury she had was a sore chest on her left side that she believed was from the CPR and defibrillator a few days earlier.

SEW #1 removed the handcuffs from the Complainant, and she removed the headband she was wearing.

At 5:09:44 p.m., WO #1 conducted an external pat down search of the Complainant while she was standing at the booking counter. The search was without incident and the Complainant was cooperative. The Complainant picked up her hoodie and shoes from the nearby wooden bench, put her mask on, and left the booking area, walking unassisted and followed by WO #1 and WO #2.

Cell Video (No Audio)

The camera view was from a camera mounted on the wall opposite the cell, pointed in a downward angle into the cell. The cell door was slid open fully to the left. The cell contained a toilet / sink combination at the opposite end of the cell directly in line with and opposite the cell door. There was a concrete bunk on the wall to the left of the door in the cell that ran the entire length of the cell from back to front.

At 5:12:12 p.m., the Complainant was escorted unassisted to the cell by a special constable and WO #2 and WO #1. The special constable closed and secured the cell door, and left the area. WO #2 and WO #1 remained speaking with the Complainant, who sat herself on the bunk at the cell bars and put on her hoodie while speaking to them.

At 5:13:26 p.m., WO #2 and WO #1 left. The Complainant slid down on the bunk and put on her headband.

At 5:38:19 p.m., WO #5 arrived at the cell and opened the door. The Complainant stood and followed him out of the cell.

Interview Room Video

At 5:39:00 p.m., the Complainant entered the interview room wearing a blue surgical mask, a hoodie, shorts, and running shoes. No one accompanied her into the room although she could be heard speaking to someone as she sat herself on a wooden bench at a stainless-steel table, facing the interview room door. The bench and table were permanently affixed to the back wall of the interview room. There were two chairs on rollers on the opposite side of the table. Facing the table there was a large clear Plexiglas panel permanently affixed to the wall and the table, separating the interviewer from the interviewee.

The Complainant bent forward and laid her head down on the table. She appeared to be sleeping and could be heard breathing normally. She sat up, leaned to her left and put the left side of her face up against the wall. Her eyes were closed, and she appeared to be sleeping.

At 5:57:25 p.m., the Complainant sat up straight, put her chin down on her chest, and appeared to be sleeping.

At 6:04:03 p.m., WO #1 entered the interview room and the Complainant sat up. WO #1 advised her of the various charges that were being laid against her, read her a caution and a secondary caution, and advised her that she was going to be held for bail. The Complainant readily admitted to committing the offences she was charged with and had a brief discussion with WO #1 about that. The Complainant appeared normal and was speaking clearly, saying she understood everything that was being said. She asked to speak with her lawyer.

At 6:09:22 p.m., WO #1 exited the interview room closing the door behind her. The Complainant sat on the bench, laid her head down on the table in front of her, and appeared to be sleeping. She could be heard breathing normally.

At 7:29:42 p.m., WO #1 returned, and advised the Complainant that they were still waiting to hear from her lawyer. The Complainant said, “OK,” and continued to lay on the bench with her back to WO #1. At 7:30:20 p.m., WO #1 left the interview room, leaving the Complainant still sleeping on the bench.

At 8:54:20 p.m., WO #1 returned, and advised the Complainant they were still waiting to hear from her lawyer and that, in the interim, they wanted to take photos of her. WO #1 told the Complainant that WO #2 would take photos of her now. Six photos were taken while the Complainant stood at the end of the wooden bench with her back to the wall, facing the interview room door. WO #1 served a notice to tender documentary evidence on the Complainant. At 9:02:20 p.m. WO #1 left the interview room. The Complainant leaned forward, put her head on the table again, and appeared to be sleeping.

At 10:17:06 p.m., the SO entered the interview room, and told the Complainant that they were still waiting to hear back from her lawyer and that they would be releasing her on an undertaking. The Complainant asked to use the washroom. The SO said he would have a special constable obtain the key and take her back to the cell to use the washroom. The SO then left interview room. He then returned to the interview room and told the Complainant that the special constable would take her to the washroom. The Complainant stood up and walked out of the interview room unassisted.

Back in the Cell Area

At 10:24:14 p.m., the Complainant was escorted into a cell by SEW #1, who then secured the cell door and left. The Complainant was wearing a blue surgical mask and a hoodie with the hood up, track pants and running shoes. The Complainant sat herself on the toilet (this activity was shaded out on the video for privacy purposes). The stainless-steel toilet and sink combination were permanently affixed to the back wall of the cell facing the cell door.

The Complainant stood up from the toilet, pulled her track pants up, turned around with her back to the camera, leaning over the sink. She was continually adjusting the waistband of her pants while leaning over the sink. She was doing something with her hands in front of her but because her back was to the camera, it was impossible to see what she was doing with her hands. At times she seemed to be washing her hands and possibly drinking from the tap in the sink. She continually adjusted the waistband of her pants and pulled the bottom of her hoodie down over the waistband of her pants.

There were two objects on the cell floor to the right of the toilet. These items was not there when the Complainant entered the cell.

The Complainant seemed unsteady on her feet and was no longer wearing the mask. She walked over to the bunk in the cell and waved her left hand at the camera. She then sat on the bunk, leaned over to her right, and waved her left hand out towards the bars, looking up at the camera. It appeared she was trying to get the attention of the cell block personnel to tell them that she had finished using the toilet and could be taken back to the CIB.

SEW #1 arrived at the cell and the Complainant walked unassisted with him out of the cell and out of camera view.

At no time throughout this recording did the Complainant touch the items that were lying on the bunk in the cell when she was put in at the beginning of this recording.

Back in the Interview Room

At 10:29:47 p.m., the Complainant returned to the interview room and the door closed behind her. The SO returned to the interview room, advised the Complainant of the charges she was facing, read her a caution, and ensured she was aware of her rights to counsel. He advised that they were still waiting to hear from her lawyer. The Complainant was answering the SO’s questions and speaking normally.

At 10:49:57 p.m., while speaking with the SO, the Complainant placed her right hand at her throat. She was wheezing and breathing heavily. The SO asked her what was wrong. The Complainant did not reply. He asked her twice if she needed an ambulance and she said, “No,” but was obviously having difficulty catching her breath. The SO told the Complainant to lie down and think about things, and that he would return shortly. He then left the interview room at 10:50:57 p.m. The Complainant was still having trouble breathing, wheezing with very noisy breathing. She was sitting on the bench with her face down on the table.

At 11:01:23 p.m., the Complainant was heard groaning and wheezing, with very noisy breathing, gasping for air and still face down on the table.

At 11:18:43 p.m., all sound coming from the Complainant ceased. She was still sitting on the bench, leaning forward with the right side of her face lying down on the table in front of her.

At 11:20:22 p.m., WO #5 entered the interview room and shouted the Complainant’s name, but received no response. He grabbed her by the right sleeve of her hoodie and her right arm flopped out from under her and onto the bench she was sitting on. He shook her and was shouting her name, and received no response. Her right hand appeared blue or discoloured. She appeared lifeless.

The SO entered the interview room. WO #5 commented, “She’s blue.” The SO began shouting her name, pulled her away from the table, laid her down on her back on the bench she had been sitting on, and commenced chest compressions, continually shouting her name but getting no response. He told WO #5, “We need an ambulance.”

WO #5 left the interview room and could be overheard telling someone in the CIB to call 911 now.

The Complainant was still holding her surgical mask grasped tightly in her left hand. The SO was increasingly panicking, shouting for help, and reiterating that an ambulance be called. Off frame, SEW #1 arrived with the automated external defibrillator (AED). Neither he nor the SO seemed very familiar with the AED, each asking the other how it was to be operated. The SO said, “What do you have to do with that?” SEW #1 asked the SO, “Are you getting anything?” The SO replied, “No.” Voice commands from the AED advised it was analyzing heart rhythm, and then instructed that chest compressions be continued. The SO did so.

The SO shouted out to give the Complainant another dose of Narcan as he continued with chest compressions. SEW #1 took over chest compressions from the SO, who was standing in the interview room doorway and could be overheard saying to someone, “Do you know what, she must have taken something when she went to the bathroom.” The SO took over chest compressions from SEW #1. He said the Complainant was breathing, “But just barely.”

At 11:31:37 p.m., a gowned paramedic arrived in the interview room and asked the SO how the Complainant was doing. He replied, “Not so good.” The paramedic took over chest compressions. There was a second gowned paramedic standing in the interview room doorway. SEW #1, from the hallway, advised that the Complainant had been “Narcan’d twice”. The paramedics could be heard saying that the Complainant looked familiar, that she had overdosed the previous Sunday and was given Narcan, and that they had worked on her for 20 minutes. The paramedics dragged the Complainant out of the interview room on her back into the adjoining hallway and out of camera view.

Video of Cleaning of the Cell - June 19, 2021

At 10:42:54 a.m., the recording commenced. The cell in which the Complainant had been previously lodged was not occupied and the cell door was in the open position (slid to the left). There were a number of unknown items on the cell bunk at the front of the cell just inside the bars of the cell. There was an unknown white square object/item and a clear-coloured item on the floor to the right of the toilet as one looked into the cell, and an unknown white square object atop the sink/toilet combination.

A gloved and masked maintenance man, a broom and dustpan in hand, entered the cell and with his hands picked the items from atop the sink/toilet combo and from the floor beside the toilet. He threw them out of the cell to the floor in front of the cell. He then swept the items from atop the bunk onto the floor of the cell and then out onto the floor just outside the front of the cell. Thereafter, he swept all the items from the floor outside the cell into his dustpan.

Materials Obtained from Police Service
 

Upon request, the SIU received the following materials from DRPS between June 22, 2021 and October 6, 2021:

• Cellblock PowerPoint Course 2020;
• Cellblock Supervisor Course Notes;
• Detailed Call Summaries (x2);
• Notice of Intention regarding Documents;
• Policy-Arrest;
• Policy-Arrest and Warrant Applied For;
• Policy-Prisoner Care and Control;
• Policing Standards Manuals (x2);
• Detention Record;
• General Occurrence Hardcopies (x3);
• Video Footage from Sally Port and Cell Block;
• Video footage from CIB Interview Room;
• Video from OC Mall;
• Photographs;
• Detention Record;
• 911 Recording;
• Radio Communications;
• Notes-WO #1;
• Notes-WO #2;
• Notes-WO #3;
• Notes-WO #4;
• Notes-WO #5;
• Notes -WO #6;
• Notes-WO #7;
• Notes-SEW #1;
• Notes-SEW #2;
• Investigative Action Report – WO #2;
• Narrative-WO #2;
• Narrative-WO #4;
• Narrative-WO #3;
• Prisoner Check Log; and
• Prisoner Log Synopsis (Cell Check Records).

Materials Obtained from Other Sources

The SIU received the following records from other sources:

• Medical Records from Lakeridge Health Hospital; and
• Ambulance Call Report.

The following scenario emerges from the evidence collected by the SIU, which included interviews of officers involved in the Complainant’s custody and video recordings that captured her time at the police station. Owing to her injuries, the Complainant was unable to provide a statement to the SIU. The SO, as was his legal right, chose not to interview with the SIU or authorize the release of his notes.

In the afternoon of June 18, 2021, the Complainant was arrested at an address in Oshawa in relation to a theft and attempted fraud investigation. Earlier that day, the police had received a call from a citizen complaining that her wallet had been stolen by two persons at the Oshawa Centre. The two persons were identified on security camera video footage as the Complainant and her son. Arriving at the address, WO #1, WO #2 and WO #3 located the wallet and took the Complainant into custody. The arrest was uneventful.

The Complainant was taken to 17 Division and booked before WO #5 starting at 5:00 p.m. In answer to a series of question, the Complainant explained that she had difficulty breathing, suffered from a heart and lung condition, and had not consumed alcohol or drugs in the past 12 hours. A pat down search was conducted of the Complainant by WO #1 with negative results, following which she was lodged in a cell at 5:12 p.m.

At about 5:38 p.m., WO #5 removed the Complainant from the cell so she could be taken to an interview room in the Criminal Investigation Bureau (CIB) office. Officers hoped to interview the Complainant in relation to the theft and attempted fraud, the latter arising from an effort made to purchase a firearm using a credit card from the stolen purse. WO #1 entered the interview room shortly after 6:00 p.m. to speak with the Complainant. The Complainant indicated she wanted to speak with her lawyer. WO #1 left the room at about 6:10 p.m., and the Complainant appeared to fall asleep.

WO #1 returned to the interview room again at about 7:30 and 9:00 p.m., each time advising the Complainant that she was still attempting to contact her lawyer. On both occasions after the officer left the room, the Complainant seemingly fell asleep.

The SO took over the theft and attempted fraud investigation from WO #1 and WO #2, the arresting officers reporting off-duty at about 9:30 p.m. At the Complainant’s request, the SO arranged to have the Complainant escorted from the interview room to her cell so she could use the bathroom. The time was about 10:24 p.m.

The Complainant was in her cell until about 10:29 p.m. During that time, she made use of the toilet and the sink. Though her back was to the cell camera as she apparently used the sink, it seemed that the Complainant was fiddling with her waistband and doing something with her hands. As she exited the cell, there were two objects lying on the floor beside the toilet that had not been there when she entered.

Shortly after her return to the interview room, the SO met with the Complainant, explained the charges she was facing, and attempted to elicit from her a statement. Some twenty minutes later, as the two continued to speak in the interview room, the Complainant placed her right hand at her throat and began to experience difficulty breathing. The detective asked the Complainant if she was okay and offered to request an ambulance if she thought she needed one. The Complainant replied she did not need an ambulance. The SO exited the room.

The Complainant’s condition began to markedly deteriorate from about 10:50 p.m. She wheezed and breathed heavily, and sat with her head rested on a table. At 11:18 p.m., all sound coming from the Complainant ceased.

At 11:20 p.m., WO #5 entered the interview room. He had made his way to the CIB to ascertain why they were taking so long with the Complainant, and had learned that the Complainant was about to be released shortly. WO #5 had gone to convey the news to the Complainant when he noticed her unresponsive in the interview room. He and the SO, joining WO #5 in the interview room, tried to wake the Complainant with no success. WO #5 left the room and gave instructions that an ambulance be called. He, together with the SO, and SEW #1 and SEW #2, proceeded to administer emergency care, including CPR, the administration of two doses of Narcan, and the use of an AED.

Paramedics arrived on scene at about 11:30 p.m. and took charge of the Complainant’s care. She was transported to hospital, where she was treated and ultimately diagnosed with drug overdose, status epilepticus, anoxic brain injury, and malnutrition.

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

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 was seriously injured while in the custody of DRPS officers on June 18, 2021. One of the officers responsible for the Complainant’s care at the time, the SO, was identified as a subject official 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 injuries.

The 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. 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 exercised in the circumstances. The latter is a more serious offence reserved for cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. Liability is not made out unless, inter alia, the impugned conduct rises to the level of a marked and substantial departure from a reasonable standard of care. In the instant case, the issue is whether there was any dereliction of care on the part of the SO that caused or contributed to the Complainant’s injuries and / or was sufficiently egregious as to attract criminal sanction. In my view, there was not.

At the outset, it bears noting that the Complainant was lawfully in the custody of the DRPS throughout her time at 17 Division. Based on the information at their disposal, the arresting officers had reasonable grounds to believe that the Complainant had stolen a purse at the Oshawa Centre and then used a credit card in the purse to try to purchase a firearm.

The SO’s care of the Complainant was far from perfect. The Complainant had effectively been placed in his custody at about 5:40 p.m. when she was transferred to the interview room. For most of her time in the room, the Complainant appeared in good condition and seemed to be either resting or sleeping. That changed at about 10:40 p.m., after her return from using the toilet, when her movements became laboured. The Complainant was seated at the time speaking with the SO, who had entered the room to talk to her about the events giving rise to her arrest. At about 10:50 p.m., the Complainant placed her right hand on her throat, prompting the SO to ask if anything was wrong and whether she wanted an ambulance. The Complainant turned down the ambulance, and the SO left the room, indicating he would return. Arguably, the detective ought to have arranged for an ambulance at that point given the symptoms the Complainant was displaying. Certainly, having left the room, he ought to have ensured the Complainant was closely monitored, but that does not appear to have taken place. From about 11:00 p.m., about ten minutes after the SO left the room, the Complainant’s condition began to demonstrably decline. Her head resting on the table in front of her, the Complainant struggled to breathe – she wheezed, gasped and groaned. Any reasonable observer would have concluded the Complainant was in medical distress and in need of immediate medical attention. And yet, though the CIB office was equipped with video monitors providing a live feed of the Complainant in the room, neither the SO nor any other officer picked up on what was transpiring or did anything about it until about 11:20 p.m., when WO #5 entered the room – approximately two minutes after all sounds from the Complainant had ceased.

Notwithstanding what in my view was a want of care on the part of the SO, I am not satisfied that the officer’s failings departed markedly from a reasonable standard in the circumstances. I arrive at this conclusion with reference to the relatively short period of time in which the officer failed to take reasonable precautions with respect to the Complainant’s well-being – about 35 to 40 minutes from the moment the Complainant began to give indication that she was not well. Prior to that time, the Complainant seemed by outward appearance in good condition and there is no affirmative evidence that any of her custodians did not accord her a reasonable level of care. In fact, what evidence there is on this front suggests that the Complainant was predominantly monitored on screens in the CIB office via a camera providing a live feed, including audio, of the interview room.

The liability analysis might well have been different had the SO known that the Complainant had told WO #5 of her difficulties breathing, and her heart and lung conditions, but WO #5 never apprised him of this information. The same may be said of the Complainant’s time back in the cell using the toilet, during which she appeared to manipulate her waistband and hands raising the possibility that she had retrieved and ingested drugs. The SO’s failure to act to secure medical attention for the Complainant more promptly than occurred having had notice of a potential medical issue might well have transgressed the limits of care prescribed by the criminal law, but none of his had been brought to his attention.

For the foregoing reasons, and on the aforementioned-record, there are no reasonable grounds to believe that the SO comported himself unlawfully throughout his engagement with the Complainant. Though mistakes were made in the care received by the Complainant, they were not of a magnitude to run afoul of the criminal law, either individually or in their cumulative effect. Accordingly, there is no basis for proceeding with criminal charges in this case.


Date: October 18, 2021

Electronically approved by

Joseph Martino
Director
Special Investigations Unit