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 of a 41-year-old man (the “Complainant”).

Notification of the SIU

On July 6, 2022, at about 6:55 p.m., the Owen Sound Police Service (OSPS) contacted the SIU with the following information.

On July 6, 2022, at about 1:08 a.m., a man [known to be the Complainant] was brought into the OSPS Headquarters located at 922 2nd Avenue West in Owen Sound after being arrested on outstanding warrants. The arrest was reported to be without incident. The Complainant was held in custody pending a court appearance to be held later in the morning. Following the hearing, the Complainant was remanded in custody to await transportation to Central North Correctional Centre (CNCC) in Penetanguishene. While in OSPS cells, the Complainant was observed at about 2:30 p.m. to be acting unusually by the Service Employee Witness (SEW) #1, who notified Witness Official (WO) #1. The Complainant was demonstrating behaviour consistent with an overdose and remnants of fentanyl were observed in the cell. An ambulance was summoned to the OSPS and the Complainant was transported to Grey Bruce Health Services – Owen Sound Site (GBHS). Narcan was administered to the Complainant at the hospital with a positive response; however, the Complainant then slipped into unconsciousness and was admitted to the Intensive Care Unit where he remained on a Narcan drip. The medical staff indicated that the Complainant was expected to recover.

The cell area had been secured; however, all the evidence had been removed and secured in police storage. The cell video was available.

Once the Complainant was released from hospital, he was to be transferred to the CNCC.

The involved officers were Subject Official (SO) #1 (arresting officer), SO #2 (booking officer), SEW #2 (cell security) and WO #1 (responded to the cell and contacted emergency medical services (EMS)).

The Team

Date and time team dispatched: 07/07/2022 at 7:45 a.m.

Date and time SIU arrived on scene: 07/07/2022 at 8:41 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

41-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on July 11, 2022.

Subject Officials (SO)

SO #1 Declined interview and to provide notes, as is the subject official’s legal right
SO #2 Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

The witness officials were interviewed between July 19 and 28, 2022.

Service Employee Witnesses (SEW)

SEW #1 Interviewed
SEW #2 Interviewed

The service employee witnesses were interviewed between July 13 and 20, 2022.

The Scene

The scene was located at OSPS Headquarters in a cell.

On July 6, at about 1:21 a.m., the Complainant was escorted to a cell by SO #1 and SO #2.

At about 2:30 p.m., WO #2, WO #1 and SEW #1 removed the Complainant from the initial cell and put him in another cell. Four chunks of pink fentanyl were subsequently located in the initial cell.


Figure 1 - A piece of pink fentanyl located at the scene

Video/Audio/Photographic Evidence[1]

OSPS Communications Recordings

The OSPS provided four recordings.

First Recording
The first recording was a call from the cells to a sergeant, starting at 2:27:03 p.m. SEW #1 called WO #1 and said, “He’s a frigging mess. He’s like falling over and he’s snotting and drooling, like on purpose. I don’t know. Then he’s in and out of consciousness and in and out of talking to me. He says he can’t get his mouth open. I told him to lie down so many times and he said he would but then he just keeps falling asleep. He’s just a mess.” WO #1 asked, “Do you think he’s doing it on purpose?” and SEW #1 said, “No, I don’t think he is. I think he literally can’t control that he’s falling asleep.” WO #1 said, “Okay, I’m going to come back there,” and SEW #1 said, “Okay.”

Second Recording
The second recording, starting at 2:57:35 p.m., captured a request for an ambulance. WO #1 called police dispatch and EMS, and requested an ambulance. She said there was a 40-year-old man, who had possibly consumed fentanyl and was awake but lethargic.

Third Recording
The third recording, starting at 2:41:25 p.m., involved a call from a sergeant to dispatch to create a ‘drug occurrence’. WO #1 asked dispatch to create a ‘drug occurrence’ for the Complainant. WO #1 said, “CDSA,[2] believed to be pink fentanyl in cell after behaviour of the Complainant deteriorated.”

Fourth Recording
The fourth recording, starting at 12:53:43 a.m., captured radio transmissions. At 12:53:54 a.m., SO #1 asked dispatch to run a check on the Complainant for warrants. At 12:54:43 a.m., a dispatcher replied, “There’s a [redacted], shows a radius of 63 kilometers for our service, theft under X 3 not endorsed, fail to comply probation X 4 unendorsed, possession of property under X 2 unendorsed, use of credit card X 7 unendorsed and fail to attend court which was endorsed.”

At 1:03:43 a.m., SO #1 said he was at the police station with the Complainant.

At 1:17:07 p.m., WO #1 asked a unit to pick up a prisoner meal.

At 3:04:54 p.m., WO #1 confirmed that EMS was on scene.

OSPS Custody Video

Video One
Video one captured cell A corridor. The Complainant was seen with WO #1 and WO #2 walking from one cell to the next.

The paramedics arrived, SEW #1 opened the door to the second cell, and the Complainant was removed and placed on a stretcher.

Video Two
Video two captured the second cell. The Complainant was placed in the second cell by WO #1 and WO #2. The Complainant went to sleep. WO #1 checked on the Complainant several times. The paramedics arrived and removed the Complainant from the cell.

Video Three
Video three captured the initial cell corridor. The Complainant was seen escorted into the corridor by SO #2 and SO #1, and then entering the initial cell. The police officers walked away.

About 21 cell checks were conducted of the Complainant.

The Complainant was seen leaving the cell, walking down the hallway with WO #1, WO #2 and SEW #1, and going to a different cell block.

Video Four
SO #2 and SO #1 were seen placing the Complainant in the initial cell. SO #2 visited the cell a short time later. SO #1 also visited with documents, which he read to the Complainant.

The Complainant was seen leaning forward with his feet on the ground, his head lowered to his knees, and something was captured falling on the ground. The Complainant picked it up, laid down on the bed and went to sleep. SEW #1 arrived at the cell door, and the Complainant got up and spoke to her, after which he left the cell with her.

Video Five
Video five captured the initial cell corridor. SEW #1 was seen escorting the Complainant back to the initial cell. Several cell checks were completed by SEW #1. She brought a cart with a laptop to the cell door for the Complainant to participate remotely in his bail court hearing. WO #1, WO #2 and SEW #1 entered the hallway and walked to the Complainant’s cell. The Complainant walked out into the hallway with the police officers and SEW #1. SEW #1 had a black fanny pack in her hand.

Video Six
Video six captured the initial cell. The Complainant was laying on the bed with a white blanket covering him. He sat up with his hands under the blanket and looked under the blanket. He removed his hands from under the cover and put them near his face. It appeared like he was eating something. The Complainant placed the blanket over his head and laid back down. SEW #1 approached the cell and spoke to the Complainant. He stood up, walked to the cell door and had a conversation with her. The Complainant went back to the bed and sat down, leaning forward. He sat up and then laid down in the bed.

SEW #1, WO #2 and WO #1 approached the cell, opened the door and entered the cell. WO #1 searched the Complainant and removed a fanny pack from him. He was handcuffed and removed from the cell.

Videos Seven to 14, and Video 18
Videos 7 to 14 and 18 were of no evidentiary value.

Videos 15 and 16
Video 15 and 16 captured the sally port. SO #1 removed the Complainant from a police vehicle and escorted him to the entrance of the booking hall. SO #2 stood at the entrance to the booking hall with the door from the sally port opened. The Complainant walked into the booking area.

Video 17
Video 17 captured the booking. The Complainant arrived at OSPS with his hands handcuffed behind his back. He was taken to a small bench and sat down. SO #2 spoke to the Complainant as SO #1 stood nearby. SO #1 put black gloves on his hands. SO #1 removed the Complainant baseball cap and put it on the counter in the booking hall. SO #2 spoke to the Complainant. The Complainant removed his shoes and he was seen wearing white socks. The Complainant stood up and faced the wall with SO #1 at his back. SO #1 tried to remove the Complainant’s jacket, but he was still handcuffed. The handcuffs were removed and put on the bench. SO #2 approached the Complainant, took items from him and put them in an evidence bag. The Complainant put his hands on the wall and SO #1 started to search him. SO #1 searched both arms and shoulders, his back, and the left and right pocket of the Complainant’s shirt, as well as his right and left leg. SO #2 approached the Complainant and took him to the bathroom for about 60 seconds. The area was not monitored by video. SO #1 removed the Complainant’s shirt, searched it and returned the shirt. The Complainant was escorted to the cell area by SO #2 and SO #1.

Materials Obtained from Police Service

Upon request, the SIU reviewed the following materials from the OSPS between July 8, 2022, and August 16, 2022:

• Event Chronology;
• The Complainant - OSPS Police Contacts up to July 8, 2022;
• The Complainant - Arrest Report;
• The Complainant - Prisoner Property Information;
• Notes - WO #1;
• Notes - WO #3;
• Notes - SEW #1;
• Notes - WO #2;
• Occurrence and Supplementary Reports;
• Policy - Care and Handling of Persons in Custody;
• Policy - Search of Persons;
• Policy - Arrest;
• Photographs of cells;
• Prisoner Check Log;
• Prisoner Log;
• Prisoner Log - Complainant;
• Cell block footage; and
• Communications recordings

Materials Obtained from Other Sources

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

• Ambulance Call Report – Grey County EMS; and
• Medical records – GBHS.

The evidence collected by the SIU, including interviews with the Complainant and police staff responsible for his supervision while in police custody, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU or to authorize the release of their notes.

At about 12:45 a.m. of July 6, 2022, SO #1 came across the Complainant riding a bicycle on 9th Avenue East, Owen Sound. The officer checked with his communications centre about the existence of any arrest warrants for the Complainant, learned that there were warrants in effect for his arrest, and proceeded to arrest and then search the Complainant.

The Complainant was taken to the police station where he was booked, searched again, and lodged in a cell. He slept through much of the night and attended a bail hearing – “virtually” – in the morning, the result of which was his remand in custody at a correctional facility.

Returned to his cell awaiting transportation to the correctional facility, the Complainant began to lapse into medical distress. He appeared groggy, was very sleepy, and started to drool. The special constable who first noticed this at about 1:50 p.m. – SEW #1 – alerted the sergeant on duty at the time – WO #1. WO #1 personally attended the cells to check on the Complainant. Asked what was wrong, the Complainant responded that he was just tired and frustrated. SEW #1 and WO #1 undertook to monitor the Complainant more closely.

At about 2:30 p.m., when it appeared that the Complainant’s condition was deteriorating, WO #1 attended the cells with WO #2. Fearing that the Complainant might be overdosing on a drug, the sergeant planned to enter the cell and to carefully inspect it, and the Complainant, for drugs.

WO #1 and WO #2 entered the cell, handcuffed the Complainant without incident, and conducted a search of his person. Among other items, they found and seized a fanny pack strapped around the Complainant’s waist, his pants’ drawstring, and some coins from a pocket. The Complainant was escorted out of his cell into another cell, after which WO #1 and WO #2 located four chunks of what they believed to be fentanyl in his initial cell.

At about 3:00 p.m., after SEW #1, assigned to watch over the Complainant in the other cell, reported that he had vomited, WO #1 contacted emergency medical services. Paramedics arrived at the station and transported the Complainant to hospital in ambulance.

The Complainant lapsed into unconsciousness at hospital and was treated for multi-drug overdose, a condition from which he eventually recovered.

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 221, Criminal Code -- Criminal negligence causing death or bodily harm

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 the custody of the OSPS on July 6, 2022. In the ensuing SIU investigation, the officer who had arrested the Complainant earlier in the day – SO #1 – and the officer with overall responsibility for the Complainant’s care at the time of his booking – SO #2 – were identified as the subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the Complainant’s overdose.

The offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing bodily harm contrary to section 215 and 221 of the Criminal Code, respectively. Both require something more than a simple want of care to give rise to liability. 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 premised on even more egregious conduct that demonstrates a wanton or reckless disregard for the lives or safety of other persons. It is not made out unless the neglect constitutes a marked and substantial departure from a reasonable standard of care. In the instant case, the question is whether there was any want of care on the part of SO #1 or SO #2, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or contributed to his overdose. In my view, there was not.

At the outset, I note that this would not appear to be a case in which the question of adequate supervision is in issue. On all the evidence, it appears that the Complainant was regularly monitored throughout his time in police custody, more closely monitored when there was reason to believe he might not be doing well, and provided prompt medical care when his condition suggested medical attention was required. Rather, the question appears to be how the Complainant was able to retrieve and consume drugs while in a police cell; more to the point, why were the drugs not confiscated by police prior to his admission in cells?

On its face, it seems that the searches conducted by SO #1, the first at the scene of the arrest, and the second, under SO #2’s watch, as the Complainant was being processed at the station, were less than thorough. It is difficult to understand why, for example, the fanny pack strapped to the Complainant’s waist was not detected or, if it was, confiscated. If that oversight happened, one can understand why the drugs on the Complainant’s person, were they in a position to be noticed, went unnoticed. This is a rather disappointing commentary on the care with which SO #1 pursued his responsibilities, particularly in light of the fact that he searched the Complainant not once, but twice. Clearly, had SO #1 been more diligent with the searches he conducted, it might well have been the case that the Complainant would not have found himself in such dire straits. Was his want of care enough to give rise to criminal liability? I do not believe so.

There are a number of considerations that render SO #1’s conduct something less than a marked departure from a reasonable standard of care. For starters, it is not as if the officer was completely remiss in his duties. The evidence establishes that he did, in fact, conduct two pat-down searches of the Complainant and seized certain items. These included a glass pipe and foil. The Complainant’s arrest would also appear to have had nothing to do with drugs. Had that been the case, the officer would have been placed on higher notice of the need to complete a fulsome search of the Complainant’s person.[3] Finally, causation is also an issue because I am unable to completely discount the possibility that the Complainant had the drugs secreted in a body cavity – his rectum - when he was arrested and then lodged in a cell. If that were true, then it is possible that nothing short of a strip search, and maybe even a body cavity search, would have sufficed to locate the drugs. However, I am not certain, per the law set out in R v Golden, [2001] 3 SCR 679, that such searches would have been legally justified in the circumstances.

In the result, as I am not reasonably satisfied that the searches conducted by and under the auspices of SO #1 and SO #2 transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges in this case.

Date: November 3, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit