SIU Director’s Report - Case # 23-TCI-104
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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 serious injuries sustained by a 46-year-old man (the “Complainant”). This report relates to the SIU’s investigation into serious injuries sustained by a 46-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 serious injuries sustained by a 46-year-old man (the “Complainant”). This report relates to the SIU’s investigation into serious injuries sustained by a 46-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On April 10, 2023, at 11:07 p.m., the Toronto Police Service (TPS) contacted the SIU regarding a drug arrest that had recently taken place.According to the TPS, on April 10, 2023, at 5:28 p.m., TPS Drug Squad officers witnessed a drug deal take place in the area of Yonge Street and Alexander Street and arrested the Complainant for trafficking. While attempting to take him into custody, the Complainant was observed to ingest an unknown quantity of drugs in his possession. Shortly thereafter, the Complainant was taken to St. Michael’s Hospital (SMH) where he went vital signs absent. He was revived a short time later and admitted to the hospital at 10:21 p.m.
The Team
Date and time team dispatched: 04/11/2023 at 7:32 a.m.Date and time SIU arrived on scene: 04/11/2023 at 10:32 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
46-year-old male interviewed, medical records obtained and reviewedThe Complainant was interviewed on April 20, 2023.
Civilian Witnesses
CW Not interviewed; next-of-kinSubject Officials
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Declined interview and to provide notes, as is the subject official’s legal right
Witness Officials
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on April 20, 2023.
Evidence
The Scene
The scene was the northwest corner of Yonge Street and Alexander Street, Toronto. The scene was not held for the SIU, nor was it forensically evaluated or photographed prior by TPS before its release, which was well before the notification to the SIU.
Video/Audio/Photographic Evidence [1]
Body-worn Camera (BWC) Footage
On April 20, 2023, the SIU obtained footage from the BWCs assigned to SO #1, WO #1 and WO #2, as well as three additional officials (Officer #1, Officer #2, Officer #3). No video existed for the BWC assigned to SO #2.
SO #1
On April 10, 2023, starting at about 5:27:15 p.m., SO #1’s BWC footage began with the Complainant’s face down on a sidewalk as SO #1 and SO #2 struggled to control him. The Complainant was eventually handcuffed with his hands behind his back. He repeatedly grunted with a closed mouth. A napkin was removed from the Complainant’s right hand and thrown onto the sidewalk.
Starting at about 5:28:26 p.m., the napkin was searched by SO #1, who said, “He’s got drugs in his mouth.” SO #1 told the Complainant to spit out the drugs to prevent an overdose. The front pocket of the Complainant’s backpack was searched as well as the back pockets of his jeans and the rear of his jean’s waistband. The Complainant’s right hand reached towards his front right jeans pocket. He continued to grunt. He was rolled onto his right side and the left side of his coat was searched by SO #2. An assortment of miscellaneous items were removed from his coat. Officer #1 restrained the Complainant’s feet. SO #1 removed his BWC and put it up to the Complainant’s face. The Complainant’s mouth was closed, and his lips looked pale. After about 30 seconds, the BWC was placed back on SO #1’s body. Several police officers searched the left side of the Complainant’s coat pocket, his sweatshirt, and his left jeans pocket. The Complainant appeared to chew on something.
Starting at about 5:32:50 p.m., the Complainant was stood up. He continued to grunt repeatedly with a closed mouth. SO #1 said, “He tried to eat it I think, looks like crack all over his lips.” The Complainant was escorted around the corner to a police vehicle and placed up against it. Officer #1 restrained the Complainant’s arms. Officer #2 searched the Complainant’s backpack which had been removed from his back. SO #1 removed a prescription pill container and a plastic bag with white powder from a pocket. SO #1 palpated the coat and then used scissors to cut into the lining and interior pockets of the Complainant’s coat.
Starting at about 5:35:25 p.m., a male police officer said, “[The Complainant], if you want to go to the hospital, I have no problem sitting with you at the hospital.” SO #2 tried to get the Complainant to talk but he continued to grunt.
Starting at about 5:37:08 p.m., SO #2 advised he had recovered cocaine powder from the Complainant’s left side. Starting at about 5:37:42 p.m., SO #2 appeared satisfied with his search of the Complainant’s left side.
Starting at about 5:38:32 p.m., SO #2 told the Complainant he would be transported to a police station.
Starting at about 5:38:55 p.m., SO #2 advised the Complainant had “right away ate some, we got a good amount of coc’ already”.
Starting at about 5:39:11 p.m., SO #2 said to the Complainant, “You were talking fine before you ate.” SO #2 said, “We’re going to cuff him to the front because if it’s in the back it’s going to be gone.” SO #1 searched the rear right pocket of the Complainant’s jeans. He emptied the front right pocket of the jeans and turned it inside out. He palpated something under the right jeans leg and then cut the jeans at the location with scissors. It revealed the pocket of a second pair of pants underneath.
Starting at about 5:40:14 p.m., SO #1 finished his search of the Complainant’s right side. The Complainant was escorted to another police vehicle. His handcuffs were removed from behind his back and re-applied to the front of his body. His handcuffed hands were then secured with a second pair of handcuffs to the divider between the front and rear compartments of the police vehicle. He protested with loud grunts as he was placed in the police vehicle.
Officer #3 arrived at the hospital behind WO #1 and WO #2. When the police vehicle door opened, the Complainant was seen with his fingers in his mouth.
The BWC footage from the other officers was consistent with the imagery captured by SO #1’s camera.
In-car Camera System (ICCS) Footage
On April 20, 2023, the SIU obtained ICCS video from TPS. The ICCS captured the rear compartment of WO #1 and WO #2’s police vehicle. On April 10, 2023, the camera was mounted on the ceiling of the police vehicle which depicted the back seat. The video began with the rear right passenger door open and the Complainant outside the police vehicle. The Complainant mumbled and grunted. The Complainant entered and sat on the backseat. His hands were handcuffed in front of his body and were then handcuffed with a second pair of handcuffs to the divider between the front and rear of the police vehicle. SO #2 advised the Complainant he was to be transported to the police station. The Complainant was only visible from the chest up. The Complainant breathed rapidly and grunted with each breath as he leaned forward in the back seat.
Starting at about seven minutes and 14 seconds into the video, WO #1 advised by radio transmission that the Complainant was being transported to 51 Division. The Complainant would frequently lean over and bob his head.
Starting at about seven minutes 42 seconds into the video, the police vehicle left the scene. During the transport, the Complainant leaned to his right side frequently and mumbled intermittently. He continued to breathe rapidly. The Complainant used his hands to manipulate his jacket and reach for something below the frame of the camera. The Complainant leaned over to his right side and later to his left side.
Starting at about 14 minutes and 50 seconds into the video, WO #1 called out the Complainant’s name, but he did not respond.
Starting at about 16 minutes and 34 seconds into the video, the Complainant sat upright and faced the camera with his right hand at his mouth. He had several fingers inserted and his forehead appeared sweaty.
Starting at about 16 minutes and 44 seconds into the video, the emergency warning systems were activated. The Complainant sat back in the seat with his fingers in his mouth. He moved his jaw as if he chewed on something. His grunts increased in frequency, and he gagged. The Complainant leaned over to his left side and out of the camera frame. WO #1 said, “Hey, don’t put it back in.”
Starting at about 19 minutes and 42 seconds into the video, the police vehicle stopped [now known to be at SMH].
Starting at about 21 minutes and five seconds into the video, the Complainant exited the police vehicle.
Materials Obtained from Police Service
Between April 18, 2023, and July 11, 2023, the SIU obtained the following records from the TPS:- Computer-aided Dispatch Report;
- Radio communications recordings;
- BWC footage;
- ICCS footage;
- Notes – WO #1;
- Notes – WO #2;
- Search of Persons Policy;
- Custody of Persons Policy;
- Medical Emergencies Policy;
- Incident Response (Use of Force) Policy; and
- General Occurrence Report.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources: - The Complainant’s medical records from St. Michael’s Hospital.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant and BWC footage that captured the incident in parts, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU or the release of their notes.
In the late afternoon of April 10, 2023, the Complainant was arrested for drug trafficking by SO #1 and SO #2 outside the A & W restaurant at the northwest corner of Yonge Street and Grosvenor Street. The Complainant was taken to the ground, handcuffed and searched by the officers. He was subsequently stood up, placed against a police cruiser, and subjected to a further search. Multiple items, including illicit substances, were recovered during the searches.
The Complainant was placed into the rear of a police cruiser for transportation to the police station. En route, he was able to retrieve another baggie with drugs and insert it into his mouth. Suspecting that the Complainant had ingested drugs, WO #1, an occupant of the cruiser, decided to re-direct the Complainant to hospital.
The Complainant was taken to hospital and treated for the wrapping that had become lodged in his throat, which was surgically removed. He had suffered a hypoxic cardiac arrest.
In the late afternoon of April 10, 2023, the Complainant was arrested for drug trafficking by SO #1 and SO #2 outside the A & W restaurant at the northwest corner of Yonge Street and Grosvenor Street. The Complainant was taken to the ground, handcuffed and searched by the officers. He was subsequently stood up, placed against a police cruiser, and subjected to a further search. Multiple items, including illicit substances, were recovered during the searches.
The Complainant was placed into the rear of a police cruiser for transportation to the police station. En route, he was able to retrieve another baggie with drugs and insert it into his mouth. Suspecting that the Complainant had ingested drugs, WO #1, an occupant of the cruiser, decided to re-direct the Complainant to hospital.
The Complainant was taken to hospital and treated for the wrapping that had become lodged in his throat, which was surgically removed. He had suffered a hypoxic cardiac arrest.
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.
Sections 219 and 221, Criminal Code -- Criminal negligence causing bodily harm
219 (1) Every one is criminally negligent who
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.
(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.
Analysis and Director's Decision
The Complainant lapsed into medical distress while in the custody of TPS officers on April 10, 2023. In the ensuing SIU investigation of the incident, SO #1 and 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 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 SO #1 and SO #2, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or contributed to his predicament. In my view, there was not.
There is no issue taken with the lawfulness of the Complainant’s arrest. He was in possession of illicit drugs and had engaged in what appeared to be a drug-trafficking transaction with another male in view of SO #1 and SO #2. Once lawfully under arrest, the officers were authorized to search the Complainant for evidence or potential weapons, and this is precisely what they did.
With respect to the care afforded the Complainant while he was in police custody, I am unable to reasonably conclude that either subject official transgressed the standards prescribed by the criminal law. The only real question relates to the sufficiency of the searches conducted by the officers at the scene of the arrest. That is to say, how was it that the Complainant remained in possession of drugs on his person, which he was able to retrieve and ingest while in the police cruiser?
Whatever the answer to that question, the evidence falls short of establishing conduct on the part of the officers that deviated markedly from a reasonable standard of care. A review of the video footage that captured the searches in part reveals that the officers went to some length to ensure that the Complainant’s clothing had been fully inspected. SO #1 even cut through various layers of clothing to get at items concealed within the lining of the Complainant’s jacket and pants he was wearing underneath another pair of pants. This included the right side of the Complainant’s pants, which, the evidence suggests, is where he was able to retrieve the drugs inside the cruiser. In the final analysis, I am satisfied that the failure by the officers to locate and seize the drugs in question was not for any want of reasonable efforts on their part.
On the aforementioned-record, there are no reasonable grounds to conclude that the subject officials comported themselves other than within the limits of the criminal law in their dealings with the Complainant. As such, there is no basis for proceeding with charges in this case. The file is closed.
Date: August 8, 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 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 SO #1 and SO #2, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or contributed to his predicament. In my view, there was not.
There is no issue taken with the lawfulness of the Complainant’s arrest. He was in possession of illicit drugs and had engaged in what appeared to be a drug-trafficking transaction with another male in view of SO #1 and SO #2. Once lawfully under arrest, the officers were authorized to search the Complainant for evidence or potential weapons, and this is precisely what they did.
With respect to the care afforded the Complainant while he was in police custody, I am unable to reasonably conclude that either subject official transgressed the standards prescribed by the criminal law. The only real question relates to the sufficiency of the searches conducted by the officers at the scene of the arrest. That is to say, how was it that the Complainant remained in possession of drugs on his person, which he was able to retrieve and ingest while in the police cruiser?
Whatever the answer to that question, the evidence falls short of establishing conduct on the part of the officers that deviated markedly from a reasonable standard of care. A review of the video footage that captured the searches in part reveals that the officers went to some length to ensure that the Complainant’s clothing had been fully inspected. SO #1 even cut through various layers of clothing to get at items concealed within the lining of the Complainant’s jacket and pants he was wearing underneath another pair of pants. This included the right side of the Complainant’s pants, which, the evidence suggests, is where he was able to retrieve the drugs inside the cruiser. In the final analysis, I am satisfied that the failure by the officers to locate and seize the drugs in question was not for any want of reasonable efforts on their part.
On the aforementioned-record, there are no reasonable grounds to conclude that the subject officials comported themselves other than within the limits of the criminal law in their dealings with the Complainant. As such, there is no basis for proceeding with charges in this case. The file is closed.
Date: August 8, 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]
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.