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 death of an 18-month-old boy (the “Complainant”).

Notification of the SIU

On February 16, 2021, at 12:22 p.m., the Stratford Police Service (SPS) contacted the SIU with the following information.

At 5:30 a.m. that same day, the SPS had commenced a sudden death investigation related to the death of an 18-month-old baby, the Complainant. The SPS had reviewed their records and learned that SPS officers, on January 12, 2021, were aware of concerns regarding the treatment and neglect of the Complainant.

The Scene

The scene was the interior of a residence on Downie Street, Stratford. The SIU was notified after the death and the scene had been released.

Expert Evidence

Expert on Child Development

An expert was provided a copy of the post-mortem report. The expert reviewed the report prior to the SIU interview. The expert was made aware that the SPS had information 35 days (January 12, 2021) prior to the death of the Complainant relating to his welfare. The question posed to the expert was whether the outcome would have been different had there been intervention or action taken by the SPS officers.

The expert believed that intervention by SPS officers on January 12, 2021, would have taken the form of intervention or apprehension by the Children’s Aid Society (CAS) and the removal of the baby to the emergency department of a hospital. If not the hospital, then at a minimum, the baby should have been seen by a family doctor. He believed that CAS would have ensured that the baby was seen by a medical professional.

The expert noted in the post-mortem report that, three weeks prior to the death, the Complainant had been seen by a doctor and measured. The report did not specify the date of the examination or who the doctor was, but the expert assumed it would have been the family doctor. That doctor measured and weighed the Complainant and, because of the clear lack of growth and weight gain, and malnutrition, did the right thing by referring the baby to a paediatrician. This referral was the accepted protocol.

The expert wondered what the family doctor was told by the parent(s) at the time of the visit that caused the doctor not to call CAS. The expert felt that based on the baby’s measurements at the time of the visit, a referral to CAS could and maybe should have been considered.

Not knowing what information was provided to the SPS, the expert could not comment on whether or not there were grounds for the SPS to have apprehended the baby. Had there not been a visit to the family doctor, then inaction by SPS could have been a contributing factor, but it was difficult for him to say if it would have prevented the death. The Complainant was “failing to thrive”, which was what health professionals called chronic malnutrition.

Had the baby been taken to a hospital and seen by a paediatrician, there would have been tests done to determine why the baby was malnourished and dehydrated. Once other factors such as infections or heart issues were ruled out, as the post-mortem showed, they would have fed and monitored the baby, and he believed the baby would have slowly gained weight.

Based on the expert’s experience, the likely conclusion is the parents were not feeding the baby properly. Parents in these cases are required to come in and learn how to feed their babies properly in supervised conditions.

Video/Audio/Photographic Evidence [1]

Communications Recordings

On February 18, 2021, the SPS provided the SIU the relevant Computer-assisted Dispatch (CAD) Event Details Report. The following is a summary of the pertinent information.

On February 16, 2021, at about 4:25:17 a.m., Perth County Emergency Medical Services (EMS) called SPS dispatch as they were attending an address on Downie Street, Stratford. The CAD indicated that an 18-month-old child was ‘VSA’ (Vital Signs Absent). The CAD listed 19 SPS officers for the call.

At about 4:29:16 a.m., the first officer on the scene was performing cardiopulmonary resuscitation. The Stratford Fire Department arrived and a call was made for the SPS Criminal Investigation Division officers to attend.

At about 4:38:35 a.m., the Complainant was loaded onto an EMS ambulance and taken to the Stratford General Hospital (SGH) where he was subsequently pronounced deceased.
At about 5:16:37 a.m., SPS officers were trying to locate the father. At about 5:25:59 a.m., a scenes of crime officer was sent to the residence to take pictures. At about 5:32:18 a.m., a doctor contacted the coroner.

At about 6:21:24 a.m., the Coroner attended at the SGH. Then, at about 8:04:42 a.m., the Coroner attended the residence while SPS officers held the scene.

Materials Obtained from Police Service

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

• Debriefing Report about the Complainant;
• SPS Policy-Child Abuse and Neglect;
• SPS Policy-Criminal Investigation Management Plan;
• CAD Event Details Report;
• Communications recordings;
• Scene photographs; and
• SPS-Role Sheet.

Materials Obtained from Other Sources

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

• Preliminary Autopsy Findings Report from the Ontario Forensic Pathology Service; and
• Post-mortem Report (including findings and recommendations from the Child Injury Interpretation Committee), received by the SIU on February 3, 2022.

The following scenario emerges from the evidence collected by the SIU, which included a review of an expert medical opinion regarding the cause of the Complainant’s death. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

First responders were called to an address on Downie Street, Stratford, in the morning of February 16, 2021. They arrived to find the Complainant – 18-months-old - VSA. Taken to SGH, the Complainant was pronounced deceased at 4:53 a.m.

The pathologist at autopsy was unable to ascertain the cause of the Complainant’s death. He observed that the Complainant’s growth had been stunted through his life and found that the child was acutely malnourished at the time of the death. The Complainant also showed signs of dehydration. The pathologist, however, could not determine the exact mechanism by which the Complainant’s ‘abnormal growth parameters’ contributed to his death.

On or about January 12, 2021, the SO and WO #1 became aware of concerns regarding the Complainant’s well-being. They were aware that the Complainant looked “really malnourished”, and was being ignored when crying and force fed to go to sleep. The parents were reported to be drug users.

WO #1 attempted to identify the parents via various checks of police records and social media sites, without success. She prepared a report of the information she had been provided and disseminated it to other officers, none of whom came forward with information about who the parents might be. The matter was not reported to the child welfare authorities.

Sections 219 and 220, Criminal Code -- Criminal negligence causing death

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

(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.

Section 125, Child, Youth and Family Services Act – Duty to report child in need of protection

1. The child has suffered physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

i. failure to adequately care for, provide for, supervise or protect the child, or

ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

2. There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,

i. failure to adequately care for, provide for, supervise or protect the child, or

ii. pattern of neglect in caring for, providing for, supervising or protecting the child.

5. The child requires treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide the treatment or access to the treatment, or, where the child is incapable of consenting to the treatment under the Health Care Consent Act, 1996, refuses or is unavailable or unable to consent to, the treatment on the child’s behalf.

The Complainant’s lifeless body was discovered on February 16, 2021. He was 18-months-old at the time. Several weeks earlier, members of the SPS had information raising concerns about the child’s welfare. Because of that information, the question arose whether the police could have intervened to prevent the Complainant’s death in the days before he passed away. The SIU was contacted by the police service and initiated an investigation with that question as the focus. The SO was identified as the subject official. 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 offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. Simple negligence is insufficient to give rise to liability for the crime. Rather, what is required is a marked and substantial departure from the level of care that a reasonable person would have observed in the circumstances. In the instant case, the issue is whether there was a want of care on the part of the SO in the manner in which he dealt with the matter, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s death. In my view, there was not.

The SO’s conduct is subject to legitimate scrutiny. A police officer’s foremost duty is the protection and preservation of life. In the context of child welfare, that duty finds particular expression in section 125 of the Child, Youth and Family Services Act. The provision provides that all persons are under a legal obligation to report to a child welfare authority cases they reasonably suspect involve the maltreatment of children. The SO arguably failed in this duty. The information he was aware of was alarming to say the least. It also appears to have been actionable – the perpetrators of the maltreatment were identified as the parents of the child and described by their first names. The approximate location of their residence was also identified. WO #1 suggests that she and the SO tried to identify the parents, but one wonders how diligent their search was. An online search performed by a SIU investigator was able to find the approximate location of their home in fairly short order, and persons interviewed by the SIU who resided in the area were all well aware of the suspects and the predicament of the child. More to the point, the fact is that neither the SO nor WO #1 reported the matter to a child welfare authority. That inaction, in my view, placed the Complainant at unnecessary risk of bodily harm and even death.

On the other hand, it would be unfair to say that the SO did nothing with the information. He and WO #1, having assessed the strength of the information, were apparently of the view that it was vague and conflicting. Accordingly, it was decided that they would wait until they had obtained more information before determining their next course of action. A report was prepared by WO #1 and distributed to other SPS personnel seeking their assistance in identifying the suspects. No one stepped forward with any useful information. A crime analyst with the police service was engaged but she could find no links between what was known and other information in police records.

I am satisfied that the SO fell short in his duty of care towards the Complainant. At the very least, in my view, the SO was aware of information detailed and alarming enough to have warranted a call to the child welfare authorities. That did not happen. I am also not satisfied that the SO did enough to investigate the information they had received. To reiterate, it would appear to have been a simple matter to have attended at the location to attempt to locate the suspects and perform a wellness check on the Complainant. There is nothing in the evidence available to the SIU to suggest that that happened either.

What is less clear is whether the officer’s indiscretions, weighed in the balance with the extenuating considerations, amounted to a marked and substantial departure from a reasonable level of care. In the final analysis, I am unable to reasonably conclude that they did for the aforementioned-reasons, recognizing the high standard required to make out criminal negligence.

Moreover, even if the SO were criminally negligent in not taking further action, criminal negligence alone is not an offence. Instead, there needs to be proof that the criminally negligent actions caused the death, which is open to debate in the present case. The SIU received information that at least three people had already called child welfare authorities to report similar concerns about the mother neglecting her children and using illicit substances, and it is unclear whether further investigation from the SO would have revealed any new information allowing for intervention. Moreover, the expert the SIU spoke with opined that intervention would have taken the form of child welfare authorities bringing the Complainant to a medical professional. In fact, the Complainant had a medical appointment with his family doctor on January 27, 2021 – three weeks prior to his death. The Complainant was there with his parents for his 18-month check-up. The doctor took note of the Complainant’s weight and height, and referred him to a pediatrician to be assessed for developmental delay. While the Complainant possibly may have received more intensive treatment if brought to the emergency department, I acknowledge that the evidence of causation, as it stands, is relatively frail.

In the result, as there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with charges against the officer.


Date: August 3, 2022


Electronically approved by

Joseph Martino
Director
Special Investigations Unit