SIU Director’s Report - Case # 23-OCI-200

Warning:

This page contains graphic content that can shock, offend and upset.

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.

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. 
Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following: 
  • 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 a serious injury sustained by a 31-year-old man (the “Complainant”).

The Investigation

Notification of the SIU [1]

On May 27, 2023, at 9:23 a.m., the Halton Regional Police Service (HRPS) contacted the SIU with the following information.

On May 26, 2023, at 6:24 p.m., a HRPS officer arrested the Complainant for impaired operation of a motor vehicle at Appleby Line and 2 Side Road, Burlington. He had been involved in a Motor Vehicle Accident (MVA). No use of force option was used and there was no struggle during the arrest. The Complainant was transported to the HRPS central lock-up, arriving at 7:00 p.m. At 7:08 p.m., the Complainant was lodged in cells. After speaking to counsel and taking a sobriety test, the Complainant was again lodged back in cells at 8:43 p.m. At 9:03 p.m., as the Complainant was to be released, he was sitting on a bench when he had seizures. The seizures lasted two minutes. Paramedic services were called and arrived at 9:40 p.m. The Complainant was transported to Oakville Trafalgar Hospital.
 

The Team

Date and time team dispatched: 05/27/2023 at 0952 hours

Date and time SIU arrived on scene: 05/27/2023 at 1132 hours

Number of SIU Investigators assigned: 2 
Number of SIU Forensic Investigators assigned: 0
 

Affected Person (aka “Complainant”):

31-year-old male interviewed; medical records obtained and reviewed

The Complainant was interviewed on May 27, 2023.


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

The civilian witnesses were interviewed between May 29, 2023, and June 22, 2023.

Subject Officials

SO Declined interview, as is the subject official’s legal right; notes received and reviewed


Witness Officials

WO #1 Interviewed
WO #2 Interviewed

The witness officials were interviewed on June 1, 2023.
 

Service Employee Witnesses

SEW #1 Interviewed
SEW #2 Interviewed

The service employee witnesses were interviewed on June 1, 2023.


Evidence

The Scene

The initial scene was on the shoulder of the southbound lane of Appleby Line, Burlington, approximately one-and-a-half kilometres north of Side Road 2.

The subsequent scene was HRPS 20 Division located at 93 Oak Walk Drive, Oakville

Video/Audio/Photographic Evidence [2]


Police Communications Recordings

On May 29, 2023, the SIU received a copy of police communications in connection with the incident under investigation.

On May 26, 2023, at 5:52 p.m., there was a 911 call from a man [now known to be CW #2] reporting a single vehicle MVA near 5140 Appleby Line, Burlington. He reported another man [now known to be CW #1] had tried to call but could not get a cell signal. CW #2 advised of a damaged Dodge Journey, and of something wrong with the driver [now known to be the Complainant]. CW #2 speculated about drugs or alcohol involvement. CW #1 told CW #2 that the Complainant was disoriented. CW #2 advised paramedic services were required.

The radio communications occurred on May 26, 2023, from 5:56 p.m. to 9:14 p.m. The SO was dispatched to the MVA. A radio transmission advised of a single vehicle MVA, and the driver was potentially impaired. The SO arrived and reported the Complainant was conscious but “very disoriented”.

At 6:24 p.m., the SO advised the Complainant had been arrested. WO #1 advised she had custody of the Complainant, and the SO was to perform as the ‘DRE’ [Drug Recognition Expert].

Later, a radio transmission from a dispatcher advised paramedic services wanted to know if the Complainant had more than one seizure in a row. WO #1 advised of the Complainant’s earlier MVA and indicated she now suspected the MVA had been caused by a seizure.

In-car Camera System (ICCS) Footage

On May 30, 2023, the SIU received three ICCS videos from HRPS in connection with the incident under investigation.

At 6:19:04 p.m., a police vehicle [now known to be driven by WO #1] parked in front of a Dodge Journey on the side of the road [now known to be the southbound lane of Appleby Line in Burlington north of Side Road 2]. The Dodge Journey had its hazard lights on, and its driver’s side door was open. There was a fire truck parked behind the Dodge Journey. There was minor damage to the front right side of the Dodge Journey. WO #1 walked behind the Dodge Journey and spoke with an unseen individual [now known to be the SO].

At 6:20:15 p.m., WO #1 approached the driver [now known to be the Complainant] who remained seated in the driver’s seat of the Dodge Journey.

At 6:22:34 p.m., the Complainant stepped out of his vehicle. The Complainant was placed up against his vehicle and handcuffed with his hands behind his back. WO #1 and the SO walked the Complainant towards WO #1’s police vehicle. The Complainant walked with a steady gait. He was placed in the back seat of the police vehicle. The Complainant advised WO #1 he was not impaired. He presented as very talkative, and WO #1 had to tell him to stop talking so she could read the cautions. The Complainant asked WO #1 if his uncle was still at the scene. [3]

The Complainant talked continuously to himself while he was left alone in the police vehicle. He did not present with any signs of apparent acute medical distress while in the back of the police vehicle. He did not sit still.

At 6:30:50 p.m., paramedic services arrived and parked behind WO #1’s police vehicle.

At 6:32:05 p.m., two paramedics approached WO #1.

At 6:32:19 p.m., the two paramedics walked away from WO #1. A third paramedic briefly walked into camera view but never made contact with WO #1.

At 6:42:22 p.m., WO #1 left the scene in her police vehicle to transport the Complainant to the police station [now known to be HRPS 20 Division located at 93 Oak Walk Drive]. The Complainant talked continuously to WO #1 while on the way to the police station. He advised he smoked some cannabis in the morning and had a single beer around noon. He did not know which road his MVA was on when asked. He advised the damage to the front of his vehicle was from a previous incident in which he had backed into a pole at a construction site.

Booking and Cell Video

On May 29, 2023, the SIU received the pertinent booking and cell video from HRPS.

On May 26, 2023, at 6:57:10 p.m., a police vehicle [now known to be driven by WO #1] arrived in the sally port of HRPS 20 Division located at 93 Oak Walk Drive, Oakville. A man [now known to be the Complainant] was in custody in the back seat of the police vehicle. The Complainant was handcuffed with his hands behind his back.

The Complainant walked into the police station on his own with a steady gait and sat on the bench across from the booking desk. He advised he understood he was under arrest for impaired driving, and he understood his rights to counsel. He also advised he would “pass with flying colours”.

A special constable [now known to be SEW #1] asked the Complainant a series of questions from the Prisoner Custody Record form. He advised he had not taken any medications. He noted numerous previous injuries including prior head injuries. The most recent head injury was from one and a half weeks ago. He did not advise of any current injuries or have any complaints of current pain. The Complainant answered questions appropriately and seemed aware of his surroundings.

At 9:02:48 p.m., the Complainant was brought to the bench at the booking desk where he waited to be released.

At 9:03:25 p.m., the Complainant looked over his left shoulder towards the wall and made a prolonged grunting sound. He drifted to his right from his seated position towards the floor. WO #1 and SEW #1 caught him and eased him to the floor. The Complainant convulsed in a manner consistent with a generalized motor seizure for approximately one minute while WO #1 supported his head. WO #1 requested an ambulance. The convulsions stopped and he had snoring respirations for approximately one minute.

At 9:08:47 p.m., WO #2 arrived at the booking desk. SEW #2 advised WO #2, “He said he had a lot of head injuries, but he never said anything about being injured or anything,” to which WO #1 remarked, “He said that was a week ago. I think it’s a TBI, [4] like I think he’s probably - he has a brain injury from a while ago.”

At 9:14:27 p.m., the Complainant woke up and WO #1 told him he had a seizure. He had slurred speech. The Complainant was asked to raise his arms above his head. He did not seem to understand. His speech declined and became nonsensical.

At 9:17:53 p.m., the SO arrived at the booking desk. WO #1 and the SO spoke about the Complainant’s confusion at the scene of the MVA. The SO advised the Complainant thought one of the 911 callers was his uncle.

At 9:21:05 p.m., the Complainant’s speech became sensical again and he advised of a bump on the back of his head. He was unable to follow verbal commands.

At 9:22:56 p.m., WO #1 told him again he had a seizure. The Complainant did not seem to remember he had been told this moments ago. WO #1 told him he had fallen off the booking bench and the Complainant did not believe her.

At 9:25:37 p.m., the SO advised WO #2 of the Complainant’s old injuries and said, “He did not make any other mention of any other injuries.” The SO advised, “He was kinda like that at the scene, but not seizing…for my purposes of the DRE, vitals and assessed physicals were like, not impaired.”

At 9:31:01 p.m., the Complainant said, “I don’t remember having a seizure, I told you my head’s been hurting. The reason it’s hurting is from that head injury like a week ago.”

At 9:37:08 p.m., SEW #1 told the Complainant he had a seizure and again he did not seem to remember being told this information previously.

At 9:45:13 p.m., paramedic services arrived. The Complainant told SEW #2 his headache started approximately two hours ago. Seconds later, the Complainant told paramedics he had a headache all day. He left the police station in the ambulance.
 

DRE Video

On June 21, 2023, the SIU received a custody video of a DRE interview from HRPS.

On May 26, 2023, at 7:33:34 p.m., a man [now known to be the Complainant] entered the DRE interview room with two police officers [now known to be the SO and WO #1]. The Complainant believed he was arrested some time between 4:30 and 5:00 p.m. At 7:41:31 p.m., he believed the time of the DRE interview to be around 6:45 to 7:00 p.m. At 7:42:25 p.m., the SO asked if the Complainant was sick and he replied, “No.” The SO asked if he was injured. The Complainant pointed to the scar above his left eye which he said he received a week and a half ago. The SO asked if the old injury required paramedic services and the Complainant responded, “No,” and continued about how he gets headaches and migraines occasionally. The SO asked if the Complainant was epileptic and he responded, “No.” The Complainant spoke about previous injuries, including a previous head injury. The Complainant was asked if he received a concussion at the time of his head injury from one and a half weeks ago and he said, “Probably, I didn’t go to the doctor.” The Complainant complained of a migraine which he had all day. He localized the pain with his hand to the left side of his head and said he had a bump on his head. The SO assessed the Complainant’s pupils, pulse, blood pressure, oral temperature, and balance. A sample of the Complainant’s breath was collected.

At 8:42:53 p.m., the Complainant left the room with WO #1 to be returned to his cell.

Materials Obtained from Police Service

Between May 29, 2023, and June 21, 2023, the SIU obtained the following records from the HRPS:
  • Record of computer-aided dispatch;
  • HRPS Drug Impairment Evaluation;
  • HRPS Drug Influence Evaluation-Facesheet;
  • HRPS Intox Report;
  • HRPS Policy-Impaired Operation;
  • HRPS Policy-Motor Vehicle Collisions;
  • Policy-Police Video Program;
  • Policy-Prisoner Care and Control;
  • List of Involved Officers and Civilians;
  • Notes-SEW #1;
  • Notes-WO #2;
  • Notes-SEW #2;
  • Notes-the SO;
  • Notes-WO #1;
  • Occurrence Report;
  • Police Custody Record and Medical Incident Report;
  • Motor Vehicle Accident Report;
  • ICCS video footage;
  • A copy of DRE video footage; and
  • Communications recordings.

Materials Obtained from Other Sources

  • The Complainant’s medical records from Oakville Trafalgar Memorial Hospital

Incident Narrative

The evidence collected by the SIU, including an interview with the Complainant and video footage that captured much of his time in police custody, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

The Complainant was involved in a motor vehicle collision in the evening of May 26, 2023. While traveling south in his Dodge Journey on Appleby Line, it seems he lost control of his vehicle and struck the guard rail. Passersby found the Complainant in his vehicle, which had come to rest on the shoulder of the southbound lane, and contacted 911.

The SO was the first officer on scene. Fire department personnel and paramedics also attended. The officer spoke to the Complainant and requested his driving papers. The Complainant appeared confused and the SO came to believe that he was impaired by drugs – his eyes were glossy, he spoke quickly, and did he did not seem to appreciate he had been involved in a collision.

WO #1 arrived at the site of the collision after the SO. She eventually arrested the Complainant for ‘impaired driving’ and placed him in the rear of her cruiser for transport to the station. Prior to leaving the scene, WO #1 spoke with paramedics and advised them that the Complainant did not require medical assessment.

WO #1 and the Complainant arrived at HRPS 20 Division, 93 Oak Walk Drive, Oakville, at about 7:00 p.m. Starting at about 7:30 p.m., the Complainant was subjected to examination by the SO – a Drug Recognition Expert. The examination was concluded at about 8:40 p.m. with a finding that the Complainant was not, in fact, impaired. The Complainant was lodged in a cell.

At about 9:00 p.m., the Complainant was returned to the booking desk to be released on charges of ‘careless driving’ under the Highway Traffic Act. Very shortly into that process, while seated on a bench, the Complainant started to grunt and slumped downwards towards the floor. WO #1 and another officer nearby caught the Complainant on the way down and eased him to the floor where he convulsed for about a minute.

Paramedics were called to the station and arrived at about 9:45 p.m. By that time, the Complainant was awake and responsive, but in a state of confusion.

The Complainant was taken to hospital and diagnosed with a generalized motor seizure. He remained in hospital until May 30, 2023. The cause of the seizure was not identified.

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 221, Criminal Code -- Causing bodily harm by criminal negligence 

221 Every person who by criminal negligence causes bodily harm to another person is guilty of                                                                                                                               
(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 suffered a serious injury while in the custody of the HRPS on May 26, 2023. In the ensuing SIU investigation of the incident, one of the officers involved in the Complainant’s custody – 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 injury.

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 police, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or contributed to the seizure he experienced. In my view, there was not.

The Complainant was lawfully in the custody of the HRPS throughout the events in question. Given the manner in which he presented at the scene – confused, rapid speech, glossy eyes – the SO and WO #1 had cause to believe that the Complainant was an impaired driver.

Once in police custody, I am satisfied that the Complainant’s custodians comported themselves with due care and regard for his health and well-being. At the scene of the collision, there was nothing in particular to distinguish the symptoms the Complainant was displaying from being as consistent with drug impairment as they might have been with brain injury. Moreover, the Complainant was asked several times whether he wished medical treatment - at the collision scene and the police station - and declined on each occasion. While it might be that the officers at the site of the collision – the SO and WO #1 – could have done more to facilitate an assessment of the Complainant by the paramedics, I am unable to reasonably conclude that their failure to do so transgressed the limits of care prescribed by the criminal law. To reiterate, the Complainant’s outward appearance was consistent with drug impairment, besides which he appeared to have control of his faculties up until the onset of his seizure at the station – he walked with a steady gait and was mostly coherent in conversation. Once the Complainant lapsed into acute medical distress, the involved officers provided adequate care and promptly arranged for the attendance of paramedics.

In the result, as there are no reasonable grounds to believe that the SO or any HRPS officer failed to conduct themselves within the limits of the criminal law in their dealings with the Complainant, there is no basis for proceeding with charges in this case.


Date: September 22, 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]
  • 3) He confused the 911 caller with his uncle. His uncle never attended the scene. [Back to text]
  • 4) TBI = common acronym for Traumatic Brain Injury. [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.