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 a 32-year-old man (the “Complainant”).This report relates to the SIU’s investigation into the death of a 32-year-old man (the “Complainant”).

Notification of the SIU [1]

On April 28, 2023, at 8:09 p.m., the Toronto Police Service (TPS) notified the SIU of the death of the Complainant.

According to TPS, on April 28, 2023, at 10:16 a.m., the Complainant was arrested without incident for trafficking narcotics. During transport to 51 Division, he ingested an unknown white substance and was re-routed to St. Michael’s Hospital (SMH). The Complainant remained stable throughout the day, but subsequently went vital signs absent. At 7:46 p.m., he was pronounced deceased.

The Scene

The Complainant was taken into custody at the corner of Jarvis Street and Wellesley Street East, Toronto. The intersection was in a busy commercial area with vehicle, bicycle and pedestrian traffic. The scene had not been secured by TPS and was not examined by SIU.

The SIU attended 51 Division and examined the TPS vehicle driven by WO #2, a Ford Explorer.




Figure 1 – WO #2’s Ford Explorer




Figure 2 – Back seat of WO #2’s Ford Explorer

During transport, the Complainant was removed from the police vehicle at the corner of Homewood Avenue and Carlton Street. The scene had not been secured by TPS and was not examined by SIU.

Physical Evidence

A plastic bag containing an unknown white substance lay on the ground outside the police vehicle after it was removed from the Complainant’s mouth. The bag and contents were seized by the TPS and held in their custody.




Figure 3 – Plastic bag on the ground outside the police vehicle

Video/Audio/Photographic Evidence [2]

Body-worn Camera (BWC) Footage – SO #2

Starting at about 10:14 a.m., SO #2 and SO #1 were captured on police bicycles. SO #1 was the lead bicycle. SO #1 dismounted his bicycle and placed the Complainant on the ground. He turned the Complainant around and put his hands behind his back.

Starting at about 10:15 a.m., WO #2 placed handcuffs on the Complainant behind his back. He was told he was being arrested for trafficking.

Starting at about 10:16:28 a.m., SO #1 and SO #2 stood the Complainant up on the sidewalk and simultaneously searched him. The search involved turning out pockets on the front and back of his pants, hooded sweatshirt and exterior jacket, lifting his shirt bottoms, searching pant waistlines, lifting pant legs and turning out sock tops, checking within the hood of the hooded sweatshirt, and removing any personal belongings discovered.

Starting at about 10:18:54 a.m., the search concluded and the Complainant was seated on the curb.

Starting at about 10:22 a.m., WO #2 searched the back seat of his police vehicle.

Starting at about 10:23 a.m., SO #2 searched the back seat of the police vehicle driven by WO #2 and then placed the Complainant inside.

The events in question, clear on the evidence collected by the SIU, may briefly be summarized. As was their legal right, neither subject official agreed an interview with the SIU or the release of their notes.

In the morning of April 28, 2023, TPS officers were conducting surveillance at the intersection of Wellesley Street East and Jarvis Street following community complaints about drug-trafficking. The Complainant was observed in what appeared to be a drug transaction. The surveilling officers called for his arrest.

SO #1 and SO #2, on patrol travelling on bikes, heard the call and proceeded to arrest the Complainant in the northwest corner of the intersection. The arrest was uneventful. The Complainant was taken to the ground where he was held pending the arrival of WO #1 and WO #2 in their cruiser.

Arriving within minutes, WO #2 handcuffed the Complainant behind the back, after which he was stood up and subjected to a search. The search was conducted simultaneously by SO #1 and SO #2. A number of personal items were collected during the search, but no drugs were found.

Following the search, the Complainant was placed in the driver’s side rear seat of WO #1 and WO #2’s cruiser for transport to the station. While en route, the Complainant shifted his body, shuffled his feet, and reached with his handcuffed hands to the area of his waistband and left pant pocket. Asked by WO #2 what he was doing, the Complainant said the handcuffs were too tight. The Complainant continued to manipulate his body to the point that he came to rest on his left side, his legs lying across the passenger’s side rear seat.

No longer visible in the officer’s rearview mirror, WO #2 stopped the cruiser on Homewood Avenue at the Carlton Street intersection. He and WO #1 exited to check on the Complainant. The Complainant had propelled himself face first onto the rear driver’s side foot well and managed to place a plastic bag with a white powder in his mouth. The officers told him to spit the bag out and tried to remove him from the cruiser. WO #2 eventually dislodged the bag from the Complainant’s mouth. By that time, most of the white powder was gone.

Suspecting that he had ingested drugs, the officers called for paramedics and then decided to transport the Complainant to hospital themselves. They arrived at hospital at about 10:45 a.m. The Complainant was pronounced deceased at hospital at 7:46 p.m.

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,

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.

On April 28, 2023, the TPS contacted the SIU to report that the Complainant, whom they had arrested earlier that day, subsequently passed away in hospital. The SIU initiated an investigation, naming SO #1 and SO #2 as the subject officials. The investigation is now concluded. On my assessment of the evidence, I am satisfied there are no reasonable grounds to believe that either subject official committed a criminal offence.

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. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of one or other of the subject officials, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s death. In my view, there was not.

There are no questions raised on the evidence around the lawfulness of the Complainant’s arrest for drug trafficking. He had apparently been observed engaging in a drug transaction, and SO #1 and SO #2 were within their rights in taking him into custody. That being the case, the officers were also entitled to search the Complainant for evidence and potential weapons pursuant to their common law powers.

With respect to his time in the custody of SO #1 and SO #2, I am satisfied that the officers comported themselves with due care and regard for the health and safety of the Complainant. The only real issue is with the adequacy of the search they performed in light of their apparent failure to locate and dispossess the Complainant of a bag containing, presumably, an illicit substance. This issue, however, is quickly settled by a review of the video footage that captured the search. It establishes, in my view, that the officers conducted a diligent search over the course of two-and-a-half minutes: they patted the Complainant over his clothing, lifted his shirt bottoms, turned out his jacket, sweater and pants pockets, turned over his sock tops, and checked his pant waistlines.

It might have been that the Complainant had concealed the drugs in his underwear or within his person, and that a strip search would have located the substance, but I am not persuaded that the conditions were in place justifying such a search. In R v Golden, [2001] 3 SCR 679, the Supreme Court of Canada observed that strip searches, as an incident of lawful arrest, must be premised on reasonable and probable grounds to justify the search in order to discover evidence or weapons. In addition, given their serious infringement on privacy and personal dignity, strip searches should generally only be performed at the police station except in the case of exigent circumstances. It would not appear that this was an exceptional case justifying a strip search executed in the field. the Complainant, who appeared coherent throughout, repeatedly denied that he was in possession of drugs.

In the result, while it is highly regrettable that the Complainant was able to access drugs on or in his person while in police custody, and that he appears to have died as a result of consuming the drugs, his death is not attributable to any transgressions by either subject official of the limits of care prescribed by the criminal law. As such, there is no basis for proceeding with charges against the officers. The file is closed.


Date: August 25, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit