SIU Director’s Report - Case # 23-TCI-183
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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 serious injury of a 36-year-old woman (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 serious injury of a 36-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU [1]
On May 14, 2023, at 6:23 a.m., the Toronto Police Service (TPS) notified the SIU of an injury to the Complainant. According to the TPS, on May 13, 2023, at 8:25 a.m., TPS police officers were called to assist in a Toronto Emergency Medical Services (TEMS) call in the area of Pape Avenue and Danforth Avenue, Toronto. The call for service involved two individuals believed to be impaired by drugs. TPS police officers arrived and assisted the paramedics. One of the individuals - the Complainant - was medically cleared by TEMS. When further investigation revealed that the Complainant was subject to outstanding arrest warrants, she was arrested by the officers, transported to TPS 55 Division, and paraded before Witness Official (WO) #2. The Complainant was deemed fit for custody and placed in a Youth Cell to await a bail hearing. In the afternoon, the Complainant was remanded in custody. At 7:45 p.m., the Complainant was transported by Court Services to the Vanier Centre for Women (VCFW) in Milton. VCFW personnel refused custody of the Complainant on medical grounds as she appeared incoherent. The Complainant was transported to Milton District Hospital, where she was examined. A small quantity of suspected drugs was in her vagina. The Complainant was administered three doses of Narcan and admitted to the Intensive Care Unit (ICU), where her condition stabilized.
The Team
Date and time team dispatched: 05/14/2023 at 7:49 a.m.Date and time SIU arrived on scene: 05/16/2023 at 10:13 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
36-year-old female; not interviewed (declined)Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed between May 16 and 17, 2023.
Service Employee Witnesses (SEW)
SEW #1 InterviewedSEW #2 Not interviewed; notes reviewed, and interview deemed not necessary
SEW #3 Not interviewed; notes reviewed, and interview deemed not necessary
SEW #4 Not interviewed; notes reviewed, and interview deemed not necessary
SEW #5 Not interviewed; notes reviewed, and interview deemed not necessary
The service employee witness was interviewed on June 6, 2023.
Evidence
The Scene
The events in question transpired in a laneway in the area of Pape Avenue and Danforth Avenue, Toronto, and in the booking and cells area of TPS 55 Division, 101 Coxwell Avenue, Toronto.Video/Audio/Photographic Evidence [2]
In-car Camera System (ICCS) Video Footage - WO #1
ICCS was obtained for the TPS vehicle operated by WO #1 on May 13, 2023. The footage started at 8:57 a.m. with imagery of a laneway. A disheveled woman - the Complainant - was dressed in dark clothing, and she sat crouched over on a curb. An older man sat close to her, and they both had bicycles beside them. The Complainant had several bags scattered on the ground around her. At 9:02 a.m., WO #1 had the Complainant stand up, after which he handcuffed her behind the back before allowing her to sit back down.
At 9:07 a.m., the SO had the Complainant stand up and the officer performed a pat-down search of the Complainant. The SO went through the Complainant’s pockets, and searched her waistband and legs.
At 10:21 a.m., WO #1 led the Complainant to the driver’s side of the police vehicle.
The police vehicle subsequently arrived in the parking lot of TPS 55 Division at 11:00 a.m.
Body-worn Camera (BWC) Footage – WO #1
On May 13, 2023, at 8:31 a.m., WO #1 was captured arriving on scene in a laneway. The Complainant was seen to be in a seated position on a paved curb, bags scattered around her. The Complainant’s movements were slow. She spoke coherently. At 9:51 a.m., WO #1 spoke to the Complainant about her being in possession of possible stolen property.
At 10:21 a.m., WO #1 placed the Complainant in the back seat of his police vehicle and read her rights to counsel.
BWC Footage – The SO
At 8:38 a.m., the SO was captured arriving on scene at 9:07 a.m. An ambulance was present. The Complainant stood up and the SO performed a pat-down search of her. The SO checked all of the Complainant’s pockets, the hood on her hoodie, and her waistband. A pat-down search of the legs was completed. For the most part of the two-hour video, the SO stood by while WO #1 investigated the Complainant’s identity and possession of stolen property.TPS Custody Video
Booking Room FootageOn May 13, 2023, at 12:13 p.m., WO #2 was behind the booking counter. The Complainant entered the booking room handcuffed behind her back. The SO held onto the Complainant’s left arm, and WO #1 followed behind. The Complainant was escorted by the SO to a washroom adjacent to the booking room. WO #1 left the booking room momentarily before he returned and stood at the exit door. SEW #1 brought tissue to the SO, who was inside the washroom.
At 12:14 p.m., SEW #1 entered the washroom and the door closed.
At 12:16 p.m., the washroom door opened, and the Complainant exited followed by the SO and SEW #1.
At 12:17 p.m., the SO told WO #2 that the Complainant was arrested for a warrant. The SO told WO #2 that a pat-down search was performed on the Complainant at the time of her arrest, and she requested authorization to conduct a frisk search to ensure she had nothing on her that could cause harm.
At 12:18 p.m., WO #2 began to ask questions of the Complainant. WO #2 asked the Complainant if she was opposed to being searched by a female and she responded that she had no objections. WO #2 asked the Complainant about the use of non-prescription drugs, cannabis, and alcohol. The Complainant responded, “Yes, all three.” The Complainant advised that she had taken fentanyl and crack cocaine at 7:00 a.m., specifically, $40 worth of crack cocaine and “two points” (that is, .2 grams) of fentanyl. The Complainant said she had no negative reaction to the drugs. She had also consumed a joint of marijuana and drank a pint of rum. When asked about the amounts the Complainant used, she advised that she used fentanyl ten times a day. WO #2 asked the Complainant if she was currently intoxicated, and she replied that she was not.
At 12:22 p.m., WO #2 authorized a frisk search of the Complainant. The SO began the frisk search of the Complainant. The Complainant’s coat was removed and WO #1 searched the coat. The SO searched the Complainant’s right arm and hoody followed by her left arm, waist, and pockets. After the Complainant’s legs were searched, she was asked to sit on the bench. The Complainant removed her shoes, which were searched. The search was completed, and WO #2 asked further questions of the Complainant.
Youth Cell Footage
The video camera for the Youth Cell was motion-activated and located on the opposite wall, outside the cell, with a partial view into the cell.
At 12:40 p.m., the SO placed the Complainant in the cell. Before the cell door was shut, the SO had the Complainant bend over and shake her hair, after which she had the Complainant take off her jacket and shake her bra at the front bra line.
At 12:55 p.m., SEW #1 checked at the cell. The Complainant went to sleep.
At 2:45 p.m., a male police constable entered the cell, followed by SEW #1, who started to drag the Complainant out of the cell. The Complainant got up and walked out. At 2:55 p.m., the Complainant was placed back in the cell.
At 3:14 p.m., SEW #1 removed the Complainant a second time. At 3:23 p.m., the Complainant was placed back in the cell, and she went to sleep.
At 5:56 p.m., the Complainant sat on the cell bed and bent over.
At 5:57 p.m., SEW #1 rapped on the cell door.
At 6:44 p.m., SEW #1 opened and shut the cell door; the Complainant was seated on the cell bed. The Complainant sat on the toilet and, at 6:45 p.m., SEW #1 brought the Complainant toilet paper. The Complainant continued to sit on the toilet and, at 6:55 p.m., WO #3 and SEW #1 stood outside the door as the Complainant finished on the toilet. The Complainant then stood up on her own and was able to put her coat on by herself. The Complainant walk out of the cell at 6:59 p.m., just after a special constable placed handcuffs on her in front of her body.
Interior Hallway Footage
At 7:00 p.m., the Complainant was able to walk down the hallway with SEW #2 and SEW #4 on either side, followed by WO #3.
Communications Recordings
On May 13, 2023, at 8:25 a.m., a man reported that there were two persons present in the alley at the rear of his residence, who seemed very impaired, possibly, by drugs. Both were breathing and asleep, and no weapons were seen. It was possible that there was one woman and man, and they were not foaming at the mouth. The SO and WO #1 were dispatched.
At 9:03 a.m., WO #1 advised he had one person [now known to be the Complainant] in custody, and he was going to bring her into TPS 55 Division.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the TPS between May 17, 2023, and June 16, 2023:• Policy – Persons in Custody;
• Policy – Search of Persons;
• Event Details Report;
• General Occurrence Report;
• Holding Folder;
• Involved Officer List;
• Known Offender Summary;
• List of Warrants;
• Notes – SEW #5;
• Notes – WO #1;
• Notes – WO #2;
• Notes – WO #3;
• Notes – SEW #3;
• Notes – SEW #1;
• Notes – SEW #2;
• Notes – SEW #4;
• Custody video;
• BWC footage;
• Communications recordings;
• ICCS footage; and
• Warrant in the First.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources:• Ambulance Call Report, received from Halton Region Paramedic Services on June 12, 2023; and
• Ambulance Call Report, received from TEMS on June 14, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with police officers who dealt with the Complainant during her time in custody and video footage that captured the incident in parts, gives rise to the following scenario. As was her legal right, the SO chose not to interview with the SIU or authorize the release of her notes.
The Complainant was arrested on the strength of outstanding warrants in the morning of May 13, 2023, in a laneway near Pape Avenue and Danforth Avenue, Toronto. Paramedics and police had been called to check on the welfare of two persons in the laneway who seemed impaired by drugs. WO #1, the lead officer on scene, handcuffed the Complainant, after which she was subjected to a pat-down search by the SO. No contraband was seized.
The Complainant was transported to 55 Division where she was subjected to a second search of her person. This one involved a somewhat more invasive search, namely, a frisk search in which the searching officer digs into a person’s pockets and removes outerwear for inspection. Again, no drugs were located.
In the evening of the day in question, having spent the afternoon at 55 Division, the Complainant was taken to a detention centre in Milton. Reportedly, the Complainant appeared drowsy on her arrival and was refused admission to the facility. Paramedics attended and transported the Complainant to hospital.
The Complainant was examined at hospital and eventually placed in the ICU. A nurse attempting to insert a catheter had located and removed a small plastic container from the Complainant’s vagina with suspected drugs inside. The Complainant was subsequently discharged from hospital.
The Complainant was arrested on the strength of outstanding warrants in the morning of May 13, 2023, in a laneway near Pape Avenue and Danforth Avenue, Toronto. Paramedics and police had been called to check on the welfare of two persons in the laneway who seemed impaired by drugs. WO #1, the lead officer on scene, handcuffed the Complainant, after which she was subjected to a pat-down search by the SO. No contraband was seized.
The Complainant was transported to 55 Division where she was subjected to a second search of her person. This one involved a somewhat more invasive search, namely, a frisk search in which the searching officer digs into a person’s pockets and removes outerwear for inspection. Again, no drugs were located.
In the evening of the day in question, having spent the afternoon at 55 Division, the Complainant was taken to a detention centre in Milton. Reportedly, the Complainant appeared drowsy on her arrival and was refused admission to the facility. Paramedics attended and transported the Complainant to hospital.
The Complainant was examined at hospital and eventually placed in the ICU. A nurse attempting to insert a catheter had located and removed a small plastic container from the Complainant’s vagina with suspected drugs inside. The Complainant was subsequently discharged from hospital.
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 not exceeding ten years ; or(b) an offence punishable on summary conviction.
Analysis and Director's Decision
The Complainant was admitted to hospital on May 13, 2023, while in the custody of the TPS. The TPS notified the SIU of the Complainant’s medical condition, prompting an SIU investigation in which 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 stay in hospital.
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 her medical condition. In my view, there was not.
There are no issues raised with the lawfulness of the Complainant’s arrest. She was subject to a number of warrants and WO #1 was within his rights in taking her into custody. That being the case, the police also had the authority to search the Complainant as an incident of her lawful arrest pursuant to their common law powers.
With respect to the care afforded the Complainant while in police custody, the only possible miscue would appear to be the fact that she was not dispossessed of a small plastic container of drugs. It remains unclear whether those drugs played any role in her ICU admission, but even if they did, the evidence falls short of making out any malfeasance on the part of her custodians in failing to locate them. The fact is, the Complainant was subjected to two searches, each of which appears to have been conducted with due diligence. It would be speculation to conclude that a further strip search, had it been conducted, would have discovered the plastic container. However, whether the officers had sufficient grounds to strip search the Complainant is arguable. As the governing law in this area makes clear, the police must establish reasonable and probable grounds justifying a strip search in connection with the need to discover weapons or evidence on the person searched: R v Golden, [2001] 3 SCR 679. The officers concluded that those grounds did not exist in the circumstances of this case. As the Complainant appeared mostly coherent and physically capable while in police custody, I am unable to reasonably conclude that the officers’ assessment was clearly wrong.
In the result, as there are no reasonable grounds to believe that the SO or any of the officers involved in the Complainant’s care while in police custody transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges. The file is closed.
Date: September 11, 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 the SO, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or contributed to her medical condition. In my view, there was not.
There are no issues raised with the lawfulness of the Complainant’s arrest. She was subject to a number of warrants and WO #1 was within his rights in taking her into custody. That being the case, the police also had the authority to search the Complainant as an incident of her lawful arrest pursuant to their common law powers.
With respect to the care afforded the Complainant while in police custody, the only possible miscue would appear to be the fact that she was not dispossessed of a small plastic container of drugs. It remains unclear whether those drugs played any role in her ICU admission, but even if they did, the evidence falls short of making out any malfeasance on the part of her custodians in failing to locate them. The fact is, the Complainant was subjected to two searches, each of which appears to have been conducted with due diligence. It would be speculation to conclude that a further strip search, had it been conducted, would have discovered the plastic container. However, whether the officers had sufficient grounds to strip search the Complainant is arguable. As the governing law in this area makes clear, the police must establish reasonable and probable grounds justifying a strip search in connection with the need to discover weapons or evidence on the person searched: R v Golden, [2001] 3 SCR 679. The officers concluded that those grounds did not exist in the circumstances of this case. As the Complainant appeared mostly coherent and physically capable while in police custody, I am unable to reasonably conclude that the officers’ assessment was clearly wrong.
In the result, as there are no reasonable grounds to believe that the SO or any of the officers involved in the Complainant’s care while in police custody transgressed the limits of care prescribed by the criminal law, there is no basis for proceeding with criminal charges. The file is closed.
Date: September 11, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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.