SIU Director’s Report - Case # 22-OOD-252
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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 section 14 (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 death of a 57-year-old man (the “Complainant”).
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 a 57-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 26, 2022, at approximately 6:32 p.m., the Owen Sound Police Service (OSPS) contacted the SIU with the following information.On September 26, 2022, at 10:00 a.m., a man [now known to be the Complainant] was arrested on the strength of numerous outstanding warrants in the area of 4th Avenue East, Owen Sound. The Complainant was transported to the OSPS station at 922 2nd Avenue West, Owen Sound, where he was held pending a video bail hearing. At booking, the Complainant acknowledged that he suffered from asthma and had recently missed a methadone appointment. At approximately 3:40 p.m., the Complainant was released from custody.
At approximately 4:00 p.m., a medical call was received from the Tim Hortons located at 155 9th Street East, Owen Sound. The Complainant had requested staff at the restaurant contact Emergency Medical Services (EMS) as he was in medical distress. Upon the arrival of EMS, the Complainant collapsed and was subsequently transported to the Grey Bruce Health Services – Owen Sound (GBHS), located at 1800 8th Street East, Owen Sound.
A short time after arrival at hospital, the Complainant was pronounced deceased.
The Team
Date and time team dispatched: 09/26/2022 at 7:46 p.m.Date and time SIU arrived on scene: 09/26/2022 at 8:01 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
57-year-old male; deceasedCivilian Witnesses
CW #1 Not interviewed; next-of-kinCW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
The civilian witnesses were interviewed on September 29, 2022.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Official
WO Interviewed The witness official was interviewed on October 2, 2022.
Evidence
The Scene
The Complainant went into medical distress while inside the Tim Hortons at 155 9th Street East, Owen Sound. He was transferred to GBHS where he was pronounced deceased. The Complainant had been held in the custody of the OSPS located at 922 2nd Avenue West, Owen Sound.
Expert Evidence
Pathologist Telephone Discussion
On December 15, 2022, at 11:15 a.m., the SIU initiated a telephone call with the pathologist. The pathologist advised the investigator that after reviewing the concluding toxicology, he was confident suggesting that the Complainant had consumed lethal doses of drugs after his release from police custody. Based on the toxicology report, had the Complainant consumed drugs prior to his time in police custody, it would have been eliminated from his system or shown up as trace amounts at the time blood was drawn. The high levels of toxicity suggested that the Complainant had consumed the drugs close to his time of death. Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained audio and video records of relevance, as set out below.
Police Communications
The following is a summary of the pertinent police communications.At 8:40:40 a.m., September 26, 2022, the WO broadcast via radio that he had the Complainant arrested in the area of 4th Avenue East. The Complainant had two outstanding warrants, both with OSPS.
At 8:42:42 a.m., an unknown police officer responded to the WO, “One of those warrants is not endorsed for release.”
At 8:44:33 a.m., the WO advised that he was transporting the Complainant to the police station.
At 3:57:17 p.m., an unknown woman called 911 and requested an ambulance as someone was having an asthma attack. There were multiple call-backs and hang-ups due to a poor telephone signal. Eventually, an address was provided - 155 9th Street East.
An OSPS dispatcher advised the WO to attend the downtown Tim Hortons at 155 9th Street East for a man that was vital signs absent (VSA). EMS and Fire Services were also responding. Approximately 40 seconds later, the WO stated, “I’m on scene here. Paramedics are doing cardiopulmonary resuscitation in the back of the ambulance. The only info is a lone male entered the Tim Hortons, was yelling at everybody that he couldn’t breathe and needed his puffer and, apparently, he went VSA right in front of EMS.” The OSPS dispatcher advised that the man was the Complainant.
OSPS Cell Block Video
The following is a summary of the pertinent footage.The WO arrived at the OSPS driving a police vehicle. He opened the rear passenger door and a man dressed in black - the Complainant - exited with his hands handcuffed behind his back. The WO escorted the Complainant to a door leading into the station.
A uniform police officer - the SO - walked down the corridor to the booking room entrance into the station and out of view. The booking area consisted of a table with visible shelves on the left side of the hall, and a bench on the right side of the hall for prisoners to sit on. The SO walked from the entrance door to the counter. The Complainant followed the SO and sat down on the bench on the right side, opposite the counter.
The SO had a piece of paper on the counter and talked with the Complainant. The WO put on black gloves and asked the Complainant to stand. He moved to the left side of the Complainant and conducted a pat-down search. The Complainant removed his boots and pants, while his long shorts remained on. He entered a room and returned wearing his pants and socks.
The Complainant was escorted north to the cell area by the WO and the SO. There was a camera outside the cell. The Complainant walked into the cell and sat down in the left rear corner.
The Complainant was checked approximately 12 times throughout the duration of his time in police custody. On each occasion, the WO or the SO initiated a conversation with the Complainant. The Complainant left the cell twice, on one occasion to participate in a video bail hearing.
The SO retrieved the Complainant from the cell and escorted him into the booking area. The SO and the Complainant walked to the booking counter and completed paperwork relevant to the Complainant’s release. The SO provided the Complainant with his property bag, and paperwork.
The Complainant put on his boots and knelt down to tie them up. When he stood up he appeared to hunch over at the waist and use the desk to steady himself, and he also put his right hand onto the wall above his head to steady himself. There was no audio to this portion of the video. They both walked to the end of the hallway where the Complainant walked out a door.
The SO walked back to the counter, closing doors in the hallway.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from OSPS on September 30, 2022:- Computer-assisted dispatch reports;
- Communications recordings;
- Custody and cell block video footage;
- The Complainant’s Arrest - Warrant 1;
- The Complainant’s Arrest - Warrant 2;
- Cellblock Prisoner Log;
- Prisoner Property Report;
- Notes-WO;
- Occurrence Report;
- Supplementary Occurrence Report;
- Arrest Report; and
- Homicide / Sudden Death Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Report of Postmortem Examination from the Coroner’s Office;
- Ambulance Call Report from the Grey Bruce EMS; and
- Toxicology Report from the Centre of Forensic Sciences.
Incident Narrative
The evidence collected by the SIU, including an interview with the officer who arrested the Complainant and video footage that captured the Complainant’s time in police 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 the WO at about 8:40 a.m. on September 26, 2022. The officer, on patrol at the time, had observed the Complainant on 4th Avenue East. Running a check on the Complainant on his cruiser computer, and learning that he was wanted on outstanding arrest warrants, the WO proceeded to take the Complainant into custody. The arrest was without incident.
The Complainant was transported to the police station, processed, and lodged in a police cell. Following a bail hearing, he was released from custody at about 3:40 p.m.
At about 4:00 p.m., a 911 call was made from the Tim Hortons at 155 9th Street East. The caller reported that a male was in medical distress inside the restaurant. Ambulance and police were dispatched to the address.
The Complainant was the male. He had entered the restaurant and almost immediately yelled out that he could not breathe and needed an ambulance. A customer retrieved an asthma puffer and provided it to the Complainant, who used it, but that did not alleviate the Complainant’s distress. [2] He continued to gasp for air and rocked back and forth. Patrons comforted the Complainant while they waited for the ambulance.
Paramedics arrived at the Tim Hortons within minutes of the 911 call. They placed the Complainant on a stretcher and loaded him into the ambulance. Before leaving the scene, the Complainant lost vital signs. The paramedics attempted to resuscitate the Complainant and took him to hospital.
The Complainant was pronounced deceased at hospital at 4:43 p.m.
Cause of Death
The pathologist at autopsy concluded that the Complainant’s death was attributable to ‘[m]ultiple drugs toxicity (fentanyl, methamphetamine, amphetamine, methadone)’.
The Complainant was arrested by the WO at about 8:40 a.m. on September 26, 2022. The officer, on patrol at the time, had observed the Complainant on 4th Avenue East. Running a check on the Complainant on his cruiser computer, and learning that he was wanted on outstanding arrest warrants, the WO proceeded to take the Complainant into custody. The arrest was without incident.
The Complainant was transported to the police station, processed, and lodged in a police cell. Following a bail hearing, he was released from custody at about 3:40 p.m.
At about 4:00 p.m., a 911 call was made from the Tim Hortons at 155 9th Street East. The caller reported that a male was in medical distress inside the restaurant. Ambulance and police were dispatched to the address.
The Complainant was the male. He had entered the restaurant and almost immediately yelled out that he could not breathe and needed an ambulance. A customer retrieved an asthma puffer and provided it to the Complainant, who used it, but that did not alleviate the Complainant’s distress. [2] He continued to gasp for air and rocked back and forth. Patrons comforted the Complainant while they waited for the ambulance.
Paramedics arrived at the Tim Hortons within minutes of the 911 call. They placed the Complainant on a stretcher and loaded him into the ambulance. Before leaving the scene, the Complainant lost vital signs. The paramedics attempted to resuscitate the Complainant and took him to hospital.
The Complainant was pronounced deceased at hospital at 4:43 p.m.
Cause of Death
The pathologist at autopsy concluded that the Complainant’s death was attributable to ‘[m]ultiple drugs toxicity (fentanyl, methamphetamine, amphetamine, methadone)’. 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.
Section 220, Criminal Code -- Criminal Negligence Causing Death
220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable(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.
Analysis and Director's Decision
The Complainant passed away on September 26, 2022, from a drug overdose. As he had been arrested and spent time in police custody earlier in the day, the SIU was notified and commenced 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 Complainant’s death.
The offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 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 the SO, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or caused his death. In my view, there was not.
The Complainant’s arrest was lawful. There were warrants in effect authorizing the Complainant’s arrest and the WO was within his rights in taking him into custody.
Once in custody, there is no indication that the SO, the officer with ultimate responsibility for the health of prisoners in cells, failed to comport himself with due care and regard for the Complainant’s well-being. From the moment of his arrest until his release by police, the Complainant was in custody for about seven hours. During that time, the Complainant was personally checked while in cells 12 times, including by the SO. Aside from the time of his release, when the Complainant steadied himself on a wall and may have complained of shortness of breath prior to exiting the police station, the Complainant appears not to have given any indication of discomfort. That episode was momentary, reportedly explained by the Complainant to the SO as related to his asthma, and followed by the Complainant walking unassisted down a corridor. Moreover, at no point was the Complainant captured on police cameras consuming drugs. Coupled with the medical evidence, this strongly suggests that the Complainant consumed lethal doses of drugs after his release from police custody and prior to his arrival at the Tim Hortons – a time interval of about 20 minutes.
For the foregoing reasons, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law in connection with the supervision received by the Complainant while in police custody. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 24, 2023
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 death contrary to sections 215 and 220 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 the SO, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or caused his death. In my view, there was not.
The Complainant’s arrest was lawful. There were warrants in effect authorizing the Complainant’s arrest and the WO was within his rights in taking him into custody.
Once in custody, there is no indication that the SO, the officer with ultimate responsibility for the health of prisoners in cells, failed to comport himself with due care and regard for the Complainant’s well-being. From the moment of his arrest until his release by police, the Complainant was in custody for about seven hours. During that time, the Complainant was personally checked while in cells 12 times, including by the SO. Aside from the time of his release, when the Complainant steadied himself on a wall and may have complained of shortness of breath prior to exiting the police station, the Complainant appears not to have given any indication of discomfort. That episode was momentary, reportedly explained by the Complainant to the SO as related to his asthma, and followed by the Complainant walking unassisted down a corridor. Moreover, at no point was the Complainant captured on police cameras consuming drugs. Coupled with the medical evidence, this strongly suggests that the Complainant consumed lethal doses of drugs after his release from police custody and prior to his arrival at the Tim Hortons – a time interval of about 20 minutes.
For the foregoing reasons, there are no reasonable grounds to believe that the SO transgressed the limits of care prescribed by the criminal law in connection with the supervision received by the Complainant while in police custody. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: January 24, 2023
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) There is evidence that the puffer was empty. [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.