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 46-year-old man (the “Complainant”).

Notification of the SIU

On September 12, 2022, at 6:54 p.m., the Toronto Police Service (TPS) contacted the SIU with the following information.

On September 11, 2022, at 11:11 a.m., police officers responded to a distress call at a residential unit. The Complainant and others were arrested for weapons and drugs. The Complainant was taken to 51 Division and, after a Level 2 search, fentanyl was found on his body. He was subsequently lodged in a cell. At 5:00 a.m., on September 12, 2022, the Complainant went into medical distress. He was taken to St. Michael’s Hospital and was in the ICU at the time of notification. TPS had since searched the Complainant’s cell and found more fentanyl.

The Team

Date and time team dispatched: 09/13/2022 at 7:57 a.m.

Date and time SIU arrived on scene: 09/13/2022 at 2:25 p.m.

Number of SIU Investigators assigned: 2

The Scene

The scene was the cell block area of TPS 51 Division police station at 51 Parliament Street, Toronto.

Video/Audio/Photographic Evidence [1]

Police Custody Video

The following is a summary of pertinent portions of the custody footage.

Booking Footage
At 9:39 p.m., the WO escorted the Complainant into the booking area. The WO introduced the Complainant to the SO. The reason for arrest was communicated and a request for a Level 2 search was requested.

The Complainant disclosed that he had consumed fentanyl and crystal methamphetamine earlier in the day, and that he was having reactions from coming down off the drugs. He had also consumed some alcohol during the day. The Complainant appeared lethargic, cooperative, and coherent.

The SO explained that the Complainant would be subjected to a Level 2 frisk search. The search was conducted by the WO.

At 9:50 p.m., the Complainant was escorted from the booking area to an interview room to wait and speak with duty counsel.

Interview Room Footage
At 9:51 p.m., the Complainant entered the interview room by himself and sat on a chair.

At 11:11 p.m., the Complainant exited the room to speak with duty counsel. He returned to the interview room two minutes later, after which he was escorted to a cell.

Cell #2 Footage from Motion-activated Camera
• At 11:16 p.m., on September 11, 2022, the Complainant was placed in the cell.
• At 11:20 p.m., the Complainant sat on the toilet and reached with his hands towards his buttocks, concealing his activity.
• At 11:27 p.m., the Complainant sat on the bunk while concealing his activities. He appeared to be crushing something onto the bunk.
• At 11:30 p.m., the Complainant leaned down and snorted something off the bunk.
• At 11:32 p.m., the Complainant again leaned down and snorted something off the bunk.
• At 11:35 p.m., the Complainant laid down on the bunk.
• No further recordings were registered until 4:51 a.m.
• At 4:51 a.m., on September 12, 2022, the cell door opened and the Complainant was checked by a special constable.
• At 4:54 a.m., with the assistance from a second special constable, the Complainant was lifted and guided out of the cell.
• At 5:09 a.m., a constable attended and photographed the cell and items on bunk.
• At 5:18 a.m., two constables attended the cell and seized items from the bunk.

Print Room
• At 4:54 a.m., on September 12, 2022, the Complainant was brought into the print room on a wheeled office chair.
• At 5:00 a.m., a sergeant attended and spoke with the Complainant.
• At 5:03 a.m., the Complainant was fingerprinted.
• At 5:18 a.m., Emergency Medical Services (EMS) arrived at the print room.
• At 5:31 a.m., the Complainant was placed on a stretcher and transported away by EMS.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the TPS on October 4, 2022:
• Policy - Search of Person - Risk Assessment - Level of Search;
• Policy - Persons in Custody;
• Booking Record – the Complainant;
• Custody video;
• Notes – the WO;
• Notes – SEW #2;
• Notes – SEW #1;
• Occurrence Report; and
• Officer-in-Charge Booking Questions.

The evidence collected by the SIU, including interviews with the Complainant and members of the TPS responsible for his care while in custody, gives rise to the following scenario. As was his legal right, the SO declined an interview with the SIU and the release of his notes.
The Complainant was arrested by TPS officers in the evening of September 11, 2022, on drug trafficking charges. The arrest was relatively uneventful. A search of the Complainant’s person incident to arrest uncovered a quantity of fentanyl.

At his booking before the SO at 51 Division, the Complainant disclosed that he had consumed a quantity of fentanyl, methamphetamine and alcohol prior to his arrest. He appeared to be lethargic but was otherwise coherent and cooperative. The Complainant was subjected to a further frisk search, after which he was held temporarily in an interview room before being lodged in a cell. The time was about 11:16 p.m.

Soon after he was placed in the cell, the Complainant discreetly removed a quantity of fentanyl that he had secreted in his rectum. He crushed the substance, arranged it into separate lines on the cell bunk, and proceeded to snort the drug. Several minutes later, the Complainant laid down on his bunk and went to sleep. The time was about 11:35 p.m.

The Complainant was roused by a special constable – SEW #2 – at about 4:51 a.m. of the following day. As the Complainant was very sleepy and unable to support himself, SEW #2 sought the assistance of his colleague – SEW #1 – to move him to the fingerprint room. The Complainant was placed in a wheeled chair and removed from the cell. As the Complainant was having his prints taken by SEW #2, SEW #1 returned to the cell and observed powder on the cell bunk. Suspecting the powder was an illicit substance, the special constable advised the officer-in-charge – Sergeant #1.

Sergeant #1 attended the fingerprint room to check on the Complainant’s condition. The time was about 5:00 a.m.

EMS were contacted and arrived on scene at about 5:18 a.m.

The Complainant was taken to hospital and treated for a suspected overdose. He was expected to make a full recovery.

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 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 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

On September 12, 2022, the Complainant lapsed into medical distress and was transported to hospital where he was treated in the ICU. As the Complainant was in police custody at the time, the SIU was notified of the matter and initiated an investigation. 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 incident.

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. 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 the SO, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or contributed to his medical predicament. In my view, there was not.

It is unlikely there was anything more that could have been done to detect the drugs within the Complainant’s person prior to his placement in cells. It might have been that a strip search, had it been conducted, would have revealed the presence of fentanyl in the Complainant’s rectum, but that is largely conjecture. More to the point, it is not clear that the circumstances surrounding the Complainant’s apprehension would have legally justified such a search. The SO specifically turned his mind to the question, and decided that there were insufficient grounds to authorize such an invasive search. Though the Complainant had admitted to drug consumption and appeared to be under the influence, he was coherent and responsive, and had no prior history of concealing drugs in custody. On this record, I am satisfied that the sergeant’s decision to forgo a strip search was well-founded.

Once in cells, it is clear that there were problems in the level of supervision that the Complainant was afforded. Though his custodians might perhaps be forgiven for not having noticed behaviour on the part of the Complainant’s suggesting the retrieval and consumption of drugs – that conduct occurred over a period of minutes and could reasonably have been missed by anything other than continuous surveillance – it is difficult to understand why they did not keep a closer eye on him throughout the night. Pursuant to TPS policy, prisoners ought to be personally checked about once every half-hour, and sleeping intoxicated prisoners ought to be woken, at minimum, every four hours. That did not happen in the case of the Complainant. SEW #2 and SEW #1, the officers most directly responsible for the Complainant’s care, last checked him in-person at about 12:30 a.m. of September 12, 2022. The next time that happened was at about 4:50 a.m., when SEW #2 attended the cell to wake the Complainant and take him for fingerprinting. I accept that the Complainant’s health and well-being were placed in jeopardy with every hour that passed from the moment he consumed the fentanyl at about 11:30 p.m. until he was woken. I also accept that there is a reasonable prospect that medical attention could have been provided to the Complainant earlier had the special constables checked him personally and, perhaps, observed the drug residue in the cell. And I accept that the special constables’ failings must, to one degree or another, be visited upon the SO – he was the officer with overall responsibility for the welfare of prisoners in cells and for ensuring the competent performance of the special constables under his command.

Whatever the officers’ failings, however, I am not satisfied they departed markedly from a reasonable standard of care. The special constables missed the four-hour window within which to rouse the Complainant, but did so at the five-hour and 20-minute mark – a likely breach of policy to be sure, but not a gross one. The evidence also indicates that one or the other of the special constables checked the Complainant via computer monitor about every half-hour or so. That too was arguably substandard supervision, but one which, in my view, did not transgress the limits of care prescribed by the criminal law. That might have been different had the special constables had any particular reason to believe that the Complainant was at risk of overdose. However, as far as they knew, the Complainant had been searched, and was coherent at the point of his arrest and booking.

In the result, as there are no reasonable grounds to believe that the SO, or the special constables who reported to him, comported themselves in violation of the criminal law, there is no basis for proceeding with charges in this case. The file is closed.


Date: January 10, 2023


Electronically approved by

Joseph Martino
Director
Special Investigations Unit