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 serious injuries sustained by a 38-year-old man (the “Complainant”).

Notification of the SIU

On February 11, 2022, at 4:35 a.m., the Kingston Police (KP) contacted the SIU with the following information.

On February 10, 2022, at 6:12 p.m., the Complainant was one of seven people arrested on a drug warrant at Park Street. The Complainant was taken to the police station where he was lodged into a cell - he said he had not taken any drugs. At 7:45 p.m., KP officers saw the Complainant shaking in the cell and an ambulance was called. He was taken to Kingston General Hospital (KGH) and admitted to the Intensive Care Unit (ICU).

The Scene

The Complainant was believed to have ingested the drugs while in a KP transport van en route to KP cells.

Video/Audio/Photographic Evidence [2]

The SIU searched for and obtained audio and video records of relevance, as set out below.

KP Radio Communications

The following is a summary of relevant police radio communications on February 10, 2022.
• At 37 seconds into the recording, there was a call asking if there was a police wagon available as there were several people in custody;
• At 34 minutes and nine seconds, there was a radio call from WO #11 advising that he had arrived at Park Street. A male police officer responded and asked which vehicle he was driving. WO #11 provided the number of the vehicle he was driving and confirmed that he was at the rear of the building;
• At 39 minutes and 46 seconds, WO #11 called into KP communications to indicate that he was en route to the station with seven prisoners on board;
• At 41 minutes and 58 seconds, an officer contacted a sergeant to advise she was returning to the station to assist with searching the seven people arrested. The sergeant advised that there were two women among the seven in custody; and
• At 46 minutes and 19 seconds, WO #11 called to advise KP communications he had arrived at the station.

KP Booking Footage

The following is a summary of the relevant video footage of the police cell block on February 10, 2022.
• The video captured the booking area with a view from behind the booking desk and was six minutes and one second in length;
• At 6:12:11 p.m., the Complainant was observed entering the booking area. He was greeted by a male officer who removed his handcuffs. The Booking Sergeant [now known to be WO #4] behind the desk confirmed the Complainant’s first name;
• The Complainant sat on the bench after his handcuffs were removed but the view of him was obstructed by a pillar at the booking desk. He was observed removing his shoes and handing them to the police officer who had removed his handcuffs. He took his socks off and turned them inside out, before putting them back on;
• At 6:13:39 p.m., WO #4 asked the Complainant if he had taken any drugs in the previous few hours, and he answered that he had not. WO #4 asked the Complainant if he was sure and said he was asking for the purpose of his own health. The Complainant said that he was sure. The Complainant was asked if he had any health concerns. He answered “no”;
• At 6:13:51 p.m., the Complainant was observed getting up and turning to face the wall. A police officer was observed searching him before he sat down again and the view of him was again obstructed by the pillar at the desk;
• At 6:14:40 p.m., WO #4 confirmed with the Complainant that he had no injuries;
• At 6:15:51 p.m., the Complainant told WO #4 that he did have a health concern and stated that he sometimes blacked-out if he got up too quickly;
• At 6:16:08 p.m., WO #4 handed the police officer with the Complainant a document he had just printed, and he called the Complainant to the booking desk to sign it; and
• At 6:16:27 p.m., the Complainant was escorted away from the desk and out of the frame by the police officer who had searched him.

KP Cell Footage

• At 6:16:51 p.m., the Complainant was observed entering a cell;
• At 6:17:55 p.m., the cell door was opened, and the Complainant exited the cell;
• At 6:18:01 p.m., the Complainant entered a different cell with his hands in the front pockets of his jeans: The door was closed behind him;
• He walked over to the bench and immediately walked back over to the door. He was observed speaking to someone through the window of the cell door but sounded muffled - what he said was inaudible;
• At 6:18:31 p.m., the Complainant walked over to the bench, sat down, and stretched his legs out on the bench. Both hands were still in his pockets and his feet were crossed;
• The Complainant remained seated on the bench with his back against the wall, his hands in his pockets and legs crossed;
• At 6:22:29 p.m., the Complainant got up off the bench, looked up at the camera and waved with his right hand, while the left hand remained in his pocket;
• The Complainant was observed standing at the cell’s number on the floor of the cell, with his right hand behind his head and left hand still in his pocket, looking towards the door;
• At 6:23:13 p.m., he looked up at the camera again and waved his right hand. The Complainant stood in the same position and waved at the camera again at 6:23:45 p.m. His left hand did not leave his pocket;
• The Complainant took a step backwards and stood waiting:
• At 6:24:24 p.m., the Complainant looked at the camera again and waved for 15 seconds before putting his right hand back in is front pocket;
• At 6:25:07 p.m., he turned slightly towards the camera and waved again for another five seconds;
• The Complainant walked over to the cell door and looked out the window, then walked back to the cell’s number on the floor and began to wave again at 6:25:34 p.m.;
• At 6:26:03 p.m., the Complainant walked over to the door and looked out the window: He was heard speaking to someone outside of the cell, but what was said was inaudible;
• At 6:26:23 p.m., the Complainant went and sat upright on the bench;
• At 6:28:36 p.m., the Complainant removed his T-shirt, folded it, and laid himself down on the bench, with his head on the folded T-shirt: He periodically moved his legs around but remained lying down;
• At 7:10:22 p.m., the Complainant was still lying on the bench when the cell door opened and a man in a grey shirt, dark-coloured pants, and Toronto Blue Jays baseball cap appeared in the doorway and was heard speaking with the Complainant, who remained horizontal on the bench. The conversation sounded muffled;
• At 7:10:55 p.m., the man stepped back, the cell door was closed, and the Complainant was observed lying on his stomach with his head resting on his hands;
• At 7:27:45 p.m., the Complainant was lying on his stomach, moving his legs around and rubbing his feet together. His right leg appeared to be shaking slightly. He continued to lie in that position with his arms above and head resting on his hands, rubbing his feet together;
• At 7:30:07 p.m., the Complainant turned over onto his right side, backing the camera. He was observed moving his legs and feet, curling up and stretching back out, crossing his feet;
• At 7:33:21 p.m., the Complainant was observed lying on the bench on his right side. His feet appeared to be shaking;
• The Complainant was moving his legs around. He would curl up in the recovery position and then stretch his legs out repeatedly. He remained on his right side;
• At 7:38:27 p.m., the Complainant’s right hand began trembling, fingers shaking;
• At 7:39:27 p.m., the Complainant was observed attempting to roll over onto his back. Seven seconds later he was on his back on the bench with his legs shaking and he was still moving them around constantly;
• At 7:39:49 p.m., the Complainant’s left hand, resting on his stomach, was seen shaking. His right arm was down at his side and was only partially visible, but the hand could not be seen. His legs began moving around more and more;
• By 7:40:07 p.m., his upper body was shaking as well. The Complainant turned back over onto his right side and the shaking continued;
• At 7:41:39 p.m., the cell door opened. WO #4 and another male police officer in a grey tactical uniform entered the cell;
• WO #4 approached the bench the Complainant was on and said, “Are you okay man?” The Complainant responded, “Yeah.” WO #4 then asked, “What’s wrong?” The Complainant replied, “Nothing.” WO #4 asked something else that was inaudible and the Complainant’s response was also inaudible. Then WO #4 asked, “Is it ‘cause you’re cold or you’re not feeling good, man?” The Complainant said, “I’m fine.” WO #4 asked, “Did you take something?” The Complainant’s response was again inaudible. WO #4 asked the Complainant if there was a medical reason he knew about causing him to shake and the Complainant told him “no”. WO #4 then told the Complainant that an ambulance was on the way;
• The Complainant was still lying down facing the wall. Due to the angle of the camera, WO #4’s and the officer in the tactical uniform’s faces could not be seen. The officer in the tactical uniform had remained at the door on the inside of the cell;
• At 7:42:03 p.m., WO #4 was observed tapping the Complainant on the waistline of his jeans, just above his left buttock. He asked the Complainant if he was breathing okay and did not receive a response. The officer in the tactical uniform moved closer to the bench. WO #4 tapped the Complainant again and leaned over him, asked him to look at him and then asked him to sit up;
• At 7:42:13 p.m., the Complainant was observed getting up on his own. He sat up on the bench with his feet on the ground and his arms down at his sides with his hands on the bench. He did not appear to be shaking at that time;
• There were two people on the outside of the cell door but only their lower legs and feet were observed;
• WO #4 asked the Complainant again, “What’s wrong, man?” The Complainant’s response was unclear. The officer in the tactical uniform asked him, “Did you take something?” The Complainant answered, “No.” The officer asked, “Since you got here?” The Complainant said “no” again. The officer asked, “Nothing?” The Complainant again said “no”. The officer asked him if he took anything at the apartment prior to coming to the station and was again told “no”. The officer pointed out to the Complainant that he had not been behaving that way before and they were trying to figure out if there was a medical problem. The Complainant said he was fine, and the officer said he did not appear to be fine;
• At 7:42:38 p.m., WO #4 left the cell while the officer in the tactical uniform remained with the Complainant. He remained seated on the bench and did not make any movements as the officer continued speaking to him. He told the Complainant that they wanted to make sure he was okay, an ambulance was coming, and his vital signs would be checked;
• At 7:43:10 p.m., the officer in the tactical uniform exited the cell and remained outside the cell door;
• The Complainant remained still for approximately 15 seconds before he was observed reaching for his T-shirt and putting it back on. He did not appear to be shaking during that time;
• He remained seated on the bench and continued speaking with the police officers standing outside of the cell;
• At 7:44:12 p.m., a man’s voice in the hall was heard asking the Complainant if he suffered from seizures and he told the man he did. He was asked if he took medication for his seizures and said he did not. The Complainant was asked when his last seizure was, and he said it had been about three months prior;
• At 7:44:29 p.m., WO #4 re-entered the cell with a black mat that he placed on the bench and then exited again as the Complainant got up and then sat on the mat. He remained seated in the same position with his hands resting at the edge of the bench and did not appear to be shaking;
• At 7:46:26 p.m., the Complainant’s feet could be seen shaking slightly and, within a minute, it appeared that his whole body was shaking slightly as he continued to sit on the bench. He was asked again if he took anything and kept telling the police officers “no” and that was he was “okay”, even as the shaking appeared to get progressively worse over the course of the next five to six minutes;
• At 7:51:52 p.m., a man’s voice was heard telling the Complainant that the paramedics had arrived. A woman’s voice was then heard talking to the Complainant and telling him to come sit on the bed so that his blood pressure and other things could be checked; and
• At 7:52:20 p.m., the Complainant was observed getting up off the bench and walking out of the cell unassisted. The woman was heard asking the Complainant how he was feeling, and he told her he felt great. She asked if he had any idea why he was shaking and he said he had no idea.

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the KP:

• Computer-assisted Dispatch Report;
• Communications recordings;
• Custody video;
• General Order - Search of Persons
• General Order – Prisoner Care and Control;
• Notes of WOs and one undesignated officer;
• Prisoner Property Report;
• Sergeant Statement;
• Sworn copy of search warrant; and
• Synopsis of undesignated officer.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from the following other sources:

• Medical Record - Kingston Health Sciences Centre

The material events in question are clear on the evidence collected by the SIU, which included interviews with the Complainant and the SO.

In the afternoon of February 10, 2022, the Complainant was in an apartment on Park Street, Kingston, when police entered the residence on the strength of a search warrant.

The search warrant had been obtained under the Controlled Drugs and Substances Act by the KP Drug Enforcement Unit (DEU) earlier in the day. It named several individuals as persons involved in the drug trade, and listed drugs and drug paraphernalia as the items to be searched for and seized. The Complainant was not a target of the warrant.

The Complainant was located inside a bedroom by WO #1 and WO #3 of the KP ERU. The ERU had been enlisted to enter the apartment ahead of the DEU officers to ‘clear’ the area – that is, to detain persons present in the apartment and ensure the safety of the space. The Complainant was handcuffed and briefly patted-down by WO #1 without incident.

The SO and other DEU officers entered the unit and searched the premises. The officer entered the bedroom, formally arrested the Complainant and subjected him to another search. The SO checked his pockets and beltline, and found nothing. He asked if the Complainant had any drugs on him. The Complainant replied that he did not.

The Complainant was transported from the scene in a prisoner van to the station where he was lodged in cells at about 6:10 p.m. In the course of his booking, he denied having drugs or having consumed drugs. In fact, the Complainant had consumed a quantity of crystal methamphetamine.

The first physical signs suggesting the Complainant had overdosed began at about 7:30 p.m. when his feet and legs started to shake. His condition deteriorated to the point that his upper body and limbs also started to shake. A civilian employee of the service noticed what was happening on a video monitor and alerted WO #4, the officer-in-charge of the station.

In the company of another sergeant, WO #4 went to the cell to speak with the Complainant. The officers asked the Complainant what was wrong and whether he had consumed any substances. The Complainant insisted he was okay and had not taken any drugs. Paramedics were called to the station.

Paramedics attended and assumed the Complainant’s primary care. They left with the Complainant in ambulance at about 8:00 p.m. for KGH.

The Complainant was treated for an overdose of crystal methamphetamine and eventually discharged on February 15, 2022, without any adverse health consequences.

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.

Section 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 person who by criminal negligence causes bodily harm to another person is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

On February 11, 2022, the KP contacted the SIU to report that a male they had taken into custody the day before – the Complainant – had been taken from cells to hospital and admitted into the ICU. The SIU initiated an investigation naming the arresting officer –the SO – as the subject official. 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 hospitalization.

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 reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. The departure from the reasonable standard of care must be both marked and substantial. 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 endangered his life or health, or contributed to his hospitalization. In my view, there was not.

There is little to no evidence that the SO or any of the other officers who had a hand in his arrest and custody were remiss in their duty of care towards the Complainant. From the moment he was confronted at the site of his arrest to his discovery in cells in medical distress, the Complainant had repeatedly been asked whether he had drugs or had consumed any drugs. He consistently replied in the negative. Nor did the Complainant give the officers any reason to be concerned by his physical appearance and demeanour. He seemed well and was lucid through most of his time in custody. Within minutes of becoming aware that the Complainant was in trouble, prompt action was taken to secure expert medical attention. Importantly, the Complainant had also been subjected to two searches at the apartment and another search at the police station prior to being lodged in cells, each of which failed to turn up any evidence of drugs or drug consumption.

The question arises why the Complainant was not strip searched? Had he been, arguably, evidence that he was in possession of or had consumed crystal methamphetamine might have been located. The SO said he did not think he could do so lawfully. Presumably, WO #4 felt the same way. I am not convinced they were wrong.

In R. v. Golden, [2001] 3 SCR 679, the Supreme Court of Canada placed strict limits on the performance of strip searches in recognition of their capacity to degrade and humiliate. In short, the court ruled that strip searches were only authorized following a lawful arrest where there existed reasonable and probable grounds to believe they were necessary in the circumstances of the arrest. While it is true that the Complainant had been arrested for drug offences, he had in every other respect given the officers no reason to believe he had drugs secreted on his person. He was not the target of the search warrant. He had cooperated fully with his arrest. He had been subjected to several pat-down searches. He repeatedly denied having drugs or having consumed drugs. He said he was fine and seemed as much. On this record, I am inclined to agree with the officers’ assessment that a strip search was not necessary.

For the foregoing reasons, there are no reasonable grounds to believe that the SO or the other officers transgressed the limits of care in their dealings with the Complainant. Accordingly, there is no basis for proceeding with charges in this case. The file is closed.


Date: June 10, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit