SIU Director’s Report - Case # 21-PCI-371
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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 serious injury a 44-year-old man (the “Complainant”) suffered.
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.
The Investigation
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
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
44-year-old male, interviewed; medical records obtained and reviewedThe Complainant was interviewed on November 10, 2021.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Not interviewed, but notes received and reviewedWO #2 Interviewed
WO #3 Not interviewed, but notes received and reviewed
WO #4 Interviewed
The witness officials were interviewed on November 5, 2021.
Evidence
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.
OPP Communications / Event Detail Reports
On November 8, 2021, the OPP provided the event details / communications recordings regarding the initial traffic stop and the call for paramedics in the OPP cells. The call for the ambulance was on October 29, 2021 at 2:01 p.m. Paramedics arrived and left for CHM at 2:11 p.m.The traffic stop was broadcasted by the SO at 8:09 a.m., on October 29, 2021. At 8:22 a.m., the officer broadcasted that he had a man in custody and attempts were being made to identify him.
OPP Cell Area Video
On November 2, 2021, the OPP provided the cell area video to the SIU. The video covered the booking area, sally port and cells. The following is a summary of the relevant footage. In the booking area, personal property was removed from the Complainant and he was lodged into a cell at 8:57 a.m., [2] where he remained until his medical distress became apparent at about 2:00 p.m.
The Complainant slept on the cell bench most of the time, but towards 1:43 p.m., he sat in the corner and pulled his knees up to his chest. The Complainant then tucked his head into his T-shirt so that his arms were under the T-shirt. His face was covered showing only the crown of his head, and the T-shirt was pulled over his knees. The Complainant could be seen moving about under the T-shirt in the area of his crotch.
At 1:58 p.m., the Complainant stopped moving and remained motionless.
At 2:00 p.m., the Complainant’s body went completely limp and his legs gave way. Minutes later, OPP officers appeared at the cell door and subsequently entered the cell. The Complainant was taken off the cell bench and placed on the cell floor in the recovery position. Two small baggies were located on the Complainant’s body and placed away from him. Three naloxone doses were administered as police personnel waited for the arrival of the paramedics.
Materials Obtained from Police Service
Upon request, the SIU received the following materials and documents from the OPP between November 2 and 8, 2021:- Shift Briefing Log On Sheet;
- Arrest Booking Report;
- Arrest Report;
- Cell Area Video Footage;
- Communications Recordings;
- Custody Record;
- Custody Summary;
- Event Details (x2);
- Notes-WO #1;
- Notes-WO #3;
- Notes-WO #2;
- Notes-WO #4;
- Police Orders Regarding Search;
- Person Details Report; and
- Prisoner Custody Report.
Materials Obtained from Other Sources
The SIU received the following record from other sources on November 15, 2021:- Medical records from the PRHC.
Incident Narrative
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.
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.
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 bodily harm
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.
Analysis and Director's Decision
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
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
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 time depicted in the video. [Back to text]
- 3) The removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas or undergarments. [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.