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 injury a 44-year-old man (the “Complainant”) suffered.

Notification of the SIU

On October 30, 2021, at 2:00 p.m., the Ontario Provincial Police (OPP) notified the SIU of the following.

On October 29, 2021 at 8:09 a.m., an OPP officer observed a vehicle with plates registered as ‘unattached’. The vehicle was stopped and OPP officers questioned the identity of the driver. The officer ascertained the true identity of the driver to be the Complainant and arrested him for obstructing a peace officer. He was transported to the Central Hastings OPP Detachment. The Complainant was processed and held in cells while being guarded by a civilian guard.

At about 1:56 p.m., the guard called for assistance as the Complainant had fallen unconscious. Several OPP officers responded to assist and administered three doses of naloxone.

Emergency Medical Services were called and arrived at 2:12 p.m. The Complainant was transported to Campbellford Memorial Hospital. He was alert and aggressive with officers upon arrival at hospital. The Complainant was not admitted but directed to wait in the Emergency Room. He was given a naloxone drip and transferred to the Peterborough Regional Health Centre (PRHC).

The Team

Date and time team dispatched: 11/01/2021 at 10:15 a.m.

Date and time SIU arrived on scene: 11/01/2021 at 3:30 p.m.

Number of SIU Investigators assigned: 4

The Scene

The scene was a cell at the Madoc OPP detachment.

Video/Audio/Photographic Evidence [1]

OPP Scenes of Crime Officer (SOCO) Photographs

As no SIU forensic investigator attended the scene, the OPP had SOCO photographs taken of the Complainant’s cell at the detachment in Madoc. The photographs showed the cell and the seized plastic bags that contained a white powder residue.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and officers who dealt with him during his period of custody. The investigation was also assisted by video footage of the Complainant’s time in OPP cells. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

In the morning of October 29, 2021, the Complainant was arrested by the SO following a traffic stop on Highway 7, Marmora and Lake. The Complainant was searched, placed into the SO’s police vehicle, and taken to the OPP detachment in Madoc.

The Complainant was lodged in a cell at the detachment at about 9:00 a.m. At about 2:00 p.m., a guard alerted police personnel in the cell area that the Complainant appeared to be in medical distress – he was motionless and unresponsive. Some 15 minutes earlier, the Complainant had retrieved drugs from his person and ingested them.

OPP officers entered the cell, placed the Complainant on the floor in a recovery position, and administered three doses of naloxone. Paramedics were called and arrived at about 2:12 p.m.

The Complainant was taken in ambulance to Campbellford Memorial Hospital and, from there, transferred to the Peterborough Regional Health Centre. He was treated for a polysubstance overdose, which had resulted in streptococcus pneumonia, and released from hospital. The drug screen at hospital had returned positive for fentanyl, amphetamines, methamphetamines, and cocaine.

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.

Sections 219 and 220, 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.

The Complainant suffered a drug overdose while in an OPP cell on October 29, 2021. The arresting officer – the SO – was identified as a 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 arrest and overdose.

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 captures more serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the want of care constitutes a marked and substantial departure from a reasonable level of care. In the instant case, the issue is whether there was any want of care by the SO in connection with the Complainant’s overdose that was sufficiently egregious to attract criminal sanction. In my view, there was not.

There is no reason to cast doubt on the lawfulness of the Complainant’s arrest by the SO. The Complainant’s licence was under suspension at the time, the vehicle he was driving had ‘unattached’ plates, and he had provided the officer a false name when asked for his identification.

I am also satisfied that the Complainant was adequately monitored while in police cells. Most of his time in the cell was spent lying or sleeping on the cell bench. It was only at about 1:43 p.m. that the Complainant began to behave suspiciously, tucking his head and arms inside his T-shirt while seated on the cell bench. It is apparent that he was retrieving and ingesting illicit substances at this time. Within minutes of losing consciousness and becoming completely still, WO #2 and others, including the SO, entered the cell and rendered care, including the administration of naloxone. Paramedics were quickly summoned to the scene and took over the Complainant’s care. On this record, I am satisfied that the Complainant was regularly checked by police – about once every 15 minutes – throughout his period in cells, and that the officers acted with reasonable dispatch when first alerted that something was amiss.

There is a question as to how the Complainant was able to enter a police cell with a significant quantity of drugs. Arguably, had he been subjected to a strip search, [3] the substances would have been located and removed from his possession. However, as the Supreme Court of Canada made clear in R. v. Golden, [2001] 3 SCR 679, a strip search will not necessarily be countenanced in every case of a lawful arrest. Rather, the police must establish reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest. As the Complainant had not been arrested for drugs, did not appear to be under the influence of drugs, and had been subjected to a frisk or pat-down search in which no drugs had been detected, there would not appear to have been lawful justification for conducting a strip search.

For the foregoing reasons, there are no reasonable grounds to believe that the SO or the other involved officers transgressed the limits of care prescribed by the criminal law in connection with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: February 25, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit