SIU Director’s Report - Case # 21-TCD-344
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Contents:
Mandate of the SIU
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.
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.
Information Restrictions
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:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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.Mandate Engaged
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 death of a 48-year-old man (the “Complainant”).
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 death of a 48-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On October 14, 2021, at 8:59 a.m., the Toronto Police Service (TPS) notified the SIU of the death of the Complainant while in custody. The TPS advised that the Complainant was arrested on October 13, 2021, at 3:16 p.m., and held in custody at TPS 43 Division pending a bail hearing. At 8:17 a.m., October 14, 2021, the Complainant was found to be unresponsive and Toronto Paramedic Services were called. The Complainant was pronounced dead at the scene.
The Team
Date and time team dispatched: 10/14/2021 at 9:30 a.m.Date and time SIU arrived on scene: 10/14/2021 at 11:11 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Three SIU investigators and one forensic investigator were assigned.
Copies of the booking and cell video were requested and obtained, as well as a copy of the in-car camera system (ICCS) recording from a TPS police vehicle.
A copy of the ambulance call report was obtained.
A forensic investigator attended the post-mortem on October 15, 2021.
Six special constables, two constables, an acting staff sergeant and one staff sergeant were designated as witness officials.
One subject official was designated and declined to give the SIU an interview.
Affected Person (aka “Complainant”):
48-year-old male, deceasedCivilian Witnesses
CW #1 Not interviewed (Next-of-kin)CW #2 Not interviewed (Next-of-kin)
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed on October 16, 2021 and October 17, 2021.
Service Employee Witnesses
SEW #1 Interviewed SEW #2 Interviewed
SEW #3 Interviewed
SEW #4 Interviewed
SEW #5 Interviewed
SEW #6 Interviewed
The service employee witnesses were interviewed between October 17, 2021, and November 2, 2021.
Evidence
The Scene
The scene was the lock-up area of TPS 43 Division at 4331 Lawrence Avenue East. On October 14, 2021, at 12:15 p.m., a SIU forensic investigator entered the cell block area, which had been properly secured. A TPS Forensic Identification Officer advised that the coroner had moved the deceased during his examination.
The deceased was in the far north end of the secured area corridor, outside of a cell. The Complainant lay on his back, and medical equipment was attached to his bare chest. The right leg of his track pants was up at his knee. Both the Complainant’s arms were bent at the elbows and his hands were up by his neck.
The door to the cell was unlocked and open.
Photographs of the cell block area were taken, and sufficient measurements were taken to construct a planned drawing of the area. Photographs were also taken of the Complainant’s personal items that had been collected when he was lodged.
At 4:37 p.m., the removal service arrived and removed the deceased to the Forensic Services and Coroners Complex.
Scene Diagram
Video/Audio/Photographic Evidence [1]
ICCS Video
On October 13, 2021, at 1:23 p.m., the police vehicle was parked at a motel on Kingston Road. In the background, WO #1 and WO #2 could be heard to interact with the Complainant and a woman. At 1:28 p.m., WO #1 said the Complainant was under arrest for breaching conditions of his release. The Complainant was handcuffed and searched, and he said his balance was off because of a COVID vaccination he had received. The Complainant was calm and polite.
At 1:48 p.m., the rear seat camera activated.
At 2:09 p.m., WO #1 asked questions about drugs and alcohol consumption. The Complainant answered, “No,” to consuming drugs, and advised he had consumed alcohol the day before.
At 2:36 p.m., the cruiser departed the scene and travelled to TPS 43 Division. WO #1 asked COVID screening questions and the Complainant said he was covered in bruises from the second COVID vaccination he had received.
At 2:57 p.m., the police vehicle entered the sally port.
At 3:02 p.m., ICCS recording ended.
Booking Room Video
At 3:16 p.m., the Complainant was walked into the booking room by WO #1 and WO #2, and paraded in front of WO #3. When questioned by WO #3, the Complainant said he had issues with his right foot, his right eye, and his right hand. He also had numbness and balance issues, and had previously been covered with bruises. He attributed his ailments to having received a second dose of the COVID-19 vaccination, which he had received two to four weeks previously. The Complainant had a significant bruise on his right elbow, which he also attributed to the vaccination. The Complainant said he had consulted with a pharmacist and been told the ailments were normal and he was satisfied with what the pharmacist had told him.WO #3 spent time discussing the Complainant’s ailments and he instructed WO #1 to complete a TPS Injury Report. The Complainant told WO #3 about medications he was prescribed but had not taken for a month, and that he had consumed alcohol the previous day. The Complainant said he did not use drugs. They discussed the Complainant’s previous mental health occurrence in Durham Region.
WO #3 authorized a frisk search, and the Complainant moaned in pain when WO #1 searched near his right ankle. The Complainant did not request medical attention and he did not appear to require immediate medical attention. WO #3 did not specifically ask the Complainant if he wanted to go to a hospital.
Cell Video
The TPS provided the SIU with recorded video footage from two cells, which had no audio. Also received was a video of the cell corridor looking from the booking area near cell 1 to the back of the cell area. On October 13, 2021, and October 14, 2021, the Complainant interacted with the booker, SEW #6, and the finger-printer, SEW #4, on day shift, for both days. During the night shift from October 13, 2021, at 4:30 p.m., until October 14, 2021, at 4:30 a.m., SEW #5 was the booker, and SEW #3 was the finger-printer.
There were two solid metal doors in the cell area corridor. One door separated the booking area from the cell area. There was a second solid metal door about half-way through the cell area, which separated cells 1 to 6 from cells 7 to 10. Both doors remained open for most of the duration of the recordings but were occasionally shut. The door to each cell was solid metal with a small window in the centre. The cell doors slid open and closed in a sideways movement.
At 3:45 p.m., the Complainant was led from the booking area, through the corridor, and into a cell. He walked slowly and was unsteady on his feet.
At 4:44 p.m., the Complainant was removed from the cell and, at 4:55 p.m., was returned to the cell by the same special constable.
At 5:05 p.m. to 5:09 p.m., WO #1 opened the cell door, accompanied by a plainclothes police officer with papers, and they spoke to the Complainant.
At 5:31 p.m., SEW #5 opened the door, entered the cell, and roused the Complainant to check on him.
From 5:32 p.m. to 8:40 p.m., the Complainant lay on the bench with his feet nearest the door, on his back, and occasionally on his right or his left side.
From 8:41 p.m. to 8:49 p.m., the Complainant sat on the side of the bench with his feet on the floor, and appeared restless.
From 8:50 p.m. to 8:56 p.m., the Complainant hung over the toilet, then knocked on the window and waved at the camera.
From 8:58 p.m. to 9:02 p.m., the cell door was opened by SEW #5. The Complainant was removed from the cell and moved to another cell, which was directly across the hallway. SEW #5 spoke to the Complainant for about two minutes and then closed the door.
From 9:03 p.m. to 9:12 p.m., the Complainant sat and lay on the bench.
From 9:12 p.m. to 9:17 p.m., the Complainant sat on the bench and hung over the toilet.
From 9:17 p.m. to 11:12 p.m., the Complainant sat on the bench. The Complainant removed his right shoe and sock, put on and off his red-coloured vest, and put his sock and shoe back on.
From 11:13 p.m. to 11:21 p.m., SEW #3 opened the door and the Complainant was taken out of the cell, and then returned.
At 2:03 a.m., the Complainant sat on the bench with his shoes off, right sock off, and right pant leg pulled up to his knee.
From 2:10 a.m. to 2:34 a.m., the Complainant sat on the bench, fidgety, and at one point took his T-shirt off and then on again.
From 2:35 a.m. to 3:23 a.m., the Complainant lay on his back on the bench. The recording stopped for three periods of seven to ten minutes due to no motion. Both doors in the corridor remained propped open.
At 3:06 a.m., SEW #5 left the cell area with his lunch bag leaving SEW #3 the only special constable in the cell area.
From 3:24 a.m. to 3:31 a.m., the Complainant rolled onto his left side, and faced the wall with his hands up near his face. He still had his right pant leg pulled up to his knee and his right sock and both shoes off, and he lay still for about five minutes.
At 3:32 a.m., the Complainant suddenly flinched, then rolled towards his stomach but remained on his left side.
At 3:33 a.m., the Complainant was motionless, and the cell recording stopped.
At 4:16 a.m., SEW #6 entered the cell area in his civilian clothes, consistent with reporting for his day shift.
At 4:18 a.m., SEW #3 and SEW #6 left the cell area, with SEW #3 carrying his lunch bag, which was consistent with the end of his night shift.
At 4:21 a.m., SEW #4 entered the cell area in uniform. There had been no special constables in the cell area for about three minutes.
At 4:32 a.m., SEW #6 entered the cell area in uniform.
At 4:42 a.m., and 6:51 a.m., SEW #4 looked in the window of the Complainant’s cell.
From 7:15 a.m. to 7:30 a.m., there was a cleaner in the cell area.
At 7:37 a.m., SEW #4 looked in the window of the cell.
At 8:13 a.m., SEW #1 and SEW #2 were at the cell door, and the cell video recording resumed. SEW #1 knocked on, and then opened, the cell door. SEW #2 stepped into the threshold of the door. The Complainant was in the same position as he had been when the recording had stopped.
At 8:14 a.m., SEW #2 partially entered the cell and attempted to rouse the Complainant. SEW #1 was at the cell door. SEW #4 and SEW #6 came down the corridor to the cell. SEW #2 and SEW #6 entered the cell.
At 8:15 a.m., SEW #4 walked back to the booking area and then returned to the cell.
At 8:16 a.m., SEW #4 and SEW #6 walked out of the cell and down the corridor to the booking area. SEW #2 stepped into the corridor and SEW #1 started to close the cell door.
At 8:17 a.m., SEW #6 returned to the cell.
At 8:18 a.m., SEW #1 and SEW #2 entered and attempted to roll the Complainant over.
At 8:19 a.m., WO #4 came to the cell.
At 8:20 a.m., SEW #1, SEW #2 and SEW #6 were able to roll the Complainant onto his left side, and it was apparent rigor mortis was present.
At 8:22 a.m., the special constables carried and dragged the Complainant from the cell into the hallway, and commenced chest compressions and resuscitation.
At 8:27 a.m., firefighters were on scene.
At 8:32 a.m., paramedics were on scene.
At 8:34 a.m., the cell recording ended.
Communications
On October 13, 2021, at 12:57 p.m., TPS dispatch received a call from a man, who reported that a 48-year-old man [now known to be the Complainant] was throwing a 35-year-old woman around in a room at a motel on Kingston Road. The Complainant was reported to have been drinking, and was screaming and yelling. At 1:39 p.m., WO #1 said they had the Complainant in custody.
At 2:37 p.m., WO #1 said he was transporting the Complainant to 43 Division, with WO #2 following. They arrived at TPS 43 Division at 2:54 p.m.
On October 14, 2021, at 8:20 a.m. SEW #4 telephoned the police communications 911 and requested an ambulance. He was transferred to the ambulance communications centre. SEW #4 confirmed the address of 43 Division and said they had an emergency. He said they had a man in their cells with no vital signs.
At 8:21 a.m., the TPS communications centre called the ambulance communications centre and confirmed they had received the call for service at TPS 43 Division. Various telephone calls were made by the police communications centre and ambulance communications centre ensuring ambulance and police were responding.
At 8:29 a.m., the ambulance arrived.
Materials Obtained from Police Service
The SIU obtained and reviewed the following records from the TPS:- Booking and Cell Check Information;
- Communication recordings;
- Fingerprints form;
- Detailed Cell Check Information;
- Intergraph Computer-assisted Dispatch (ICAD) Log Search;
- ICAD Event Details Report;
- ICCS recording;
- Notes of WOs and SEWs;
- Occurrence and Supplementary Reports;
- Policy - Persons in Custody;
- Release Order for the Complainant;
- TPS Custody Video-Booking and Cells;
- TPS Injury Report; and
- Will-states from SEW #3 and SEW #4.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources: - Emergency Medical Services records; and
- Preliminary Autopsy Findings report from the Ontario Forensic Pathology Service.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the officers who arrested the Complainant and dealt with him while he was in custody. The investigation was also assisted by video recordings from the station that captured parts of the Complainant’s time in custody. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
At about 8:10 a.m. of October 14, 2021, the Complainant was found deceased in a cell at 43 Division. He was removed from the cell and efforts were made by special constables to resuscitate him, to no avail. Paramedics were summoned to the scene and determined there was nothing that could be done to revive him. It was evident that the Complainant had been deceased for some time.
The Complainant had been taken into custody in the afternoon of the day before. Officers responding to a 911 call from a motel on Kingston Road had arrested the Complainant for assault and failing to comply with the terms of his release. The Complainant appeared unsteady on his feet at the time and presented with bruising to various parts of his body. He explained to the officers that his condition was the result of a vaccination he had received several weeks prior. The arrest was otherwise uneventful.
At 43 Division, in the course of his booking, the Complainant was again questioned about his health by WO #3. The Complainant explained that his right foot, right eye, and right hand were ailing him, and that he had experienced bruising, numbness, and balance issues. All of this he attributed to the second dose of the vaccine he had received two to four weeks prior; a pharmacist he had consulted had told him that, and that these were normal side-effects that would resolve in time. WO #3 did not feel there was a need to seek medical attention, but had the Complainant’s injuries documented in an injury report.
The Complainant was lodged in a cell at about 3:45 p.m. At about 11:00 p.m., he was removed from the cell and lodged in a different cell. The Complainant was periodically checked by special constables assigned to monitor the prisoners. Some of these checks involved a physical walk-by. On these occasions, the special constable would peer through a small window in the otherwise solid metal sliding door of the cell. Most of the documented checks of the Complainant were done remotely via monitors that displayed a camera feed of the interior of the cell.
At about 3:30 a.m., the Complainant stopped moving as he lay on his left side on the cell bench. It would appear he remained in that position until he was discovered at about 8:10 a.m. by special constables there to escort the Complainant to a phone meeting with duty counsel. Unable to rouse the Complainant, the special constables called for help. Other special constables arrived in the cells, as did the officer-in-charge of the station at the time – WO #4. Paramedics were called to the scene.
Cause of Death
The cause of the Complainant’s death remains pending further studies at this time.
At about 8:10 a.m. of October 14, 2021, the Complainant was found deceased in a cell at 43 Division. He was removed from the cell and efforts were made by special constables to resuscitate him, to no avail. Paramedics were summoned to the scene and determined there was nothing that could be done to revive him. It was evident that the Complainant had been deceased for some time.
The Complainant had been taken into custody in the afternoon of the day before. Officers responding to a 911 call from a motel on Kingston Road had arrested the Complainant for assault and failing to comply with the terms of his release. The Complainant appeared unsteady on his feet at the time and presented with bruising to various parts of his body. He explained to the officers that his condition was the result of a vaccination he had received several weeks prior. The arrest was otherwise uneventful.
At 43 Division, in the course of his booking, the Complainant was again questioned about his health by WO #3. The Complainant explained that his right foot, right eye, and right hand were ailing him, and that he had experienced bruising, numbness, and balance issues. All of this he attributed to the second dose of the vaccine he had received two to four weeks prior; a pharmacist he had consulted had told him that, and that these were normal side-effects that would resolve in time. WO #3 did not feel there was a need to seek medical attention, but had the Complainant’s injuries documented in an injury report.
The Complainant was lodged in a cell at about 3:45 p.m. At about 11:00 p.m., he was removed from the cell and lodged in a different cell. The Complainant was periodically checked by special constables assigned to monitor the prisoners. Some of these checks involved a physical walk-by. On these occasions, the special constable would peer through a small window in the otherwise solid metal sliding door of the cell. Most of the documented checks of the Complainant were done remotely via monitors that displayed a camera feed of the interior of the cell.
At about 3:30 a.m., the Complainant stopped moving as he lay on his left side on the cell bench. It would appear he remained in that position until he was discovered at about 8:10 a.m. by special constables there to escort the Complainant to a phone meeting with duty counsel. Unable to rouse the Complainant, the special constables called for help. Other special constables arrived in the cells, as did the officer-in-charge of the station at the time – WO #4. Paramedics were called to the scene.
Cause of Death
The cause of the Complainant’s death remains pending further studies at this time. Relevant Legislation
Section 215, Criminal Code - Failure to Provide Necessaries
215 (1) Every one is under a legal duty
(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.
(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if
(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 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,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
(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.
Analysis and Director's Decision
The Complainant passed away in a TPS cell on October 14, 2021. An officer-in-charge of the station with overall responsibility for the care of prisoners in cells – the SO – was identified as the subject official for purposes of the ensuing SIU investigation. The investigation is now concluded. 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 exercised in the circumstances. The latter is reserved for even more serious cases of neglect – ones that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the impugned conduct consists of a marked and substantial departure from a reasonable standard of care. In the instant case, the issue is whether there was any want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s death. In my view, there was not.
There is no suggestion in the evidence that the Complainant was unlawfully in custody at the time of the events in question. Based on the information at the officers’ disposal, I am satisfied that the Complainant was lawfully arrested on October 13, 2021.
The Complainant did not appear entirely well when he was arrested and then booked at 43 Division, and the question arises whether his custodians ought to have sought medical attention. He was unsteady on his feet, had bruises and swelling to various parts of his body, and talked about experiencing numbness. The officer-in-charge at the time the Complainant was brought in - WO #3 - was cognizant of his condition and did not believe that medical attention was necessary. The Complainant had himself explained that his symptoms were not anything new. Rather, they were the result of a reaction to the second dose of the vaccine he had taken weeks prior. The Complainant indicated he had spoken with a pharmacist and was satisfied with the medical advice he had received, namely, that his symptoms would ameliorate over time. Questioned further, the Complainant denied having consumed drugs and said his last alcoholic drink was the previous day. As for his unsteadiness, WO #3 chalked it up to the swelling to the Complainant’s right ankle. On this record, while it might perhaps have been advisable to send the Complainant to hospital for examination, I am unable to reasonably conclude that the failure to do so by WO #3 and, by extension, the other officers-in-charge who followed him during the Complainant’s stay in cells, including the SO, amounted to conduct that departed markedly from a reasonable level of care.
The nature and extent of the supervision the Complainant received while in custody is subject to legitimate scrutiny, particularly from 3:30 a.m. Before then, the Complainant had been seen moving and walking. From that time forward, he was motionless. [2] One of the special constables assigned to monitor the Complainant during this time – SEW #3 – recorded checks at 3:47 a.m. and 4:16 a.m. He said that the Complainant was sitting up during his check at 4:16 a.m. That would not appear to have been the case. Further checks of the Complainant later that morning by SEW #4 – seven in total - said to have been conducted through the cell door window or via video monitors, failed to disclose that anything was amiss. According to SEW #4, the Complainant seemed to be sleeping comfortably and gave no indication that he was in distress. It is apparent that the Complainant was not sleeping for at least some of these checks, if not all of them – he was experiencing an acute medical episode or was deceased.
The SO was the officer-in-charge of the station from about 3:45 p.m. to 4:10 a.m., when he was relieved by WO #4. Though ultimately responsible for the welfare of prisoners in their custody at the station, officers-in-charge are not directly tasked with performing cell checks; they rely on the booking and fingerprint officers - special constables in this case - to perform that function and alert them to any problems. There is no evidence to suggest that either the SO or WO #4 had any reason to believe that the special constables were not discharging their duties in a reasonable and competent fashion. Nor is there any reason to believe that they were ever notified by the special constables of any concerns regarding the Complainant’s condition during this period, which only makes sense – they apparently had no concerns about the Complainant’s condition, believing he was asleep or more active than he actually was. In the circumstances, I am unable to visit any of the special constables’ indiscretions on the officers-in-charge, and certainly not to the extent of any reasonable conclusion that the SO and WO #4 failed markedly in their duty of care to the Complainant.
For the foregoing reasons, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law. Accordingly, though the cause of the Complainant’s death remains undetermined at this time, there is no reason to believe that it is attributable to any unlawful conduct on the part of the subject official.
As the SIU has no statutory jurisdiction to investigate special constables, the matter of their conduct in connection with the Complainant’s time in custody will be referred to the TPS.
Date: February 10, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 exercised in the circumstances. The latter is reserved for even more serious cases of neglect – ones that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the impugned conduct consists of a marked and substantial departure from a reasonable standard of care. In the instant case, the issue is whether there was any want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s death. In my view, there was not.
There is no suggestion in the evidence that the Complainant was unlawfully in custody at the time of the events in question. Based on the information at the officers’ disposal, I am satisfied that the Complainant was lawfully arrested on October 13, 2021.
The Complainant did not appear entirely well when he was arrested and then booked at 43 Division, and the question arises whether his custodians ought to have sought medical attention. He was unsteady on his feet, had bruises and swelling to various parts of his body, and talked about experiencing numbness. The officer-in-charge at the time the Complainant was brought in - WO #3 - was cognizant of his condition and did not believe that medical attention was necessary. The Complainant had himself explained that his symptoms were not anything new. Rather, they were the result of a reaction to the second dose of the vaccine he had taken weeks prior. The Complainant indicated he had spoken with a pharmacist and was satisfied with the medical advice he had received, namely, that his symptoms would ameliorate over time. Questioned further, the Complainant denied having consumed drugs and said his last alcoholic drink was the previous day. As for his unsteadiness, WO #3 chalked it up to the swelling to the Complainant’s right ankle. On this record, while it might perhaps have been advisable to send the Complainant to hospital for examination, I am unable to reasonably conclude that the failure to do so by WO #3 and, by extension, the other officers-in-charge who followed him during the Complainant’s stay in cells, including the SO, amounted to conduct that departed markedly from a reasonable level of care.
The nature and extent of the supervision the Complainant received while in custody is subject to legitimate scrutiny, particularly from 3:30 a.m. Before then, the Complainant had been seen moving and walking. From that time forward, he was motionless. [2] One of the special constables assigned to monitor the Complainant during this time – SEW #3 – recorded checks at 3:47 a.m. and 4:16 a.m. He said that the Complainant was sitting up during his check at 4:16 a.m. That would not appear to have been the case. Further checks of the Complainant later that morning by SEW #4 – seven in total - said to have been conducted through the cell door window or via video monitors, failed to disclose that anything was amiss. According to SEW #4, the Complainant seemed to be sleeping comfortably and gave no indication that he was in distress. It is apparent that the Complainant was not sleeping for at least some of these checks, if not all of them – he was experiencing an acute medical episode or was deceased.
The SO was the officer-in-charge of the station from about 3:45 p.m. to 4:10 a.m., when he was relieved by WO #4. Though ultimately responsible for the welfare of prisoners in their custody at the station, officers-in-charge are not directly tasked with performing cell checks; they rely on the booking and fingerprint officers - special constables in this case - to perform that function and alert them to any problems. There is no evidence to suggest that either the SO or WO #4 had any reason to believe that the special constables were not discharging their duties in a reasonable and competent fashion. Nor is there any reason to believe that they were ever notified by the special constables of any concerns regarding the Complainant’s condition during this period, which only makes sense – they apparently had no concerns about the Complainant’s condition, believing he was asleep or more active than he actually was. In the circumstances, I am unable to visit any of the special constables’ indiscretions on the officers-in-charge, and certainly not to the extent of any reasonable conclusion that the SO and WO #4 failed markedly in their duty of care to the Complainant.
For the foregoing reasons, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law. Accordingly, though the cause of the Complainant’s death remains undetermined at this time, there is no reason to believe that it is attributable to any unlawful conduct on the part of the subject official.
As the SIU has no statutory jurisdiction to investigate special constables, the matter of their conduct in connection with the Complainant’s time in custody will be referred to the TPS.
Date: February 10, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
- 2) The cell camera video recording system was motion-activated. That the recording stopped at about 3:30 a.m., and only resumed again upon the arrival of special constables at about 8:10 a.m., presumably means that the Complainant did not move during this time, or, at least, not sufficiently to activate the camera’s recording function. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.