SIU Director’s Report - Case # 23-OCI-307
Warning:
This page contains graphic content that can shock, offend and upset.
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 39-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 serious injury of a 39-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On August 2, 2023, at 10:21 p.m., the Windsor Police Service (WPS) contacted the SIU with the following information.On August 2, 2023, at 5:00 p.m., WPS officers were called to the area of Dougall Avenue and Cabana Road West for a man - later identified as the Complainant - causing a disturbance waving a knife. Police officers responded and apprehended the Complainant without incident. He was taken to WPS Central Lock-up and paraded before the officer-in-charge at 5:33 p.m., at which time the Complainant admitted to having consumed methamphetamine earlier that day. The Complainant was lodged in a cell. At 5:52 p.m., the Complainant’s condition started to decline and he admitted to having consumed fentanyl as well that day. At 5:55 p.m., the Complainant began to lose vital signs. Emergency Medical Services (EMS) was called. The custody sergeant administered naloxone and EMS transported the Complainant to the Windsor Regional Hospital (WRH). The Complainant was stabilized and held for observation.
The Team
Date and time team dispatched: 2023/08/02 at 10:21 p.m.Date and time SIU arrived on scene: 2023/08/03 at 8:04 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
39-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on August 3, 2023.
Subject Official (SO)
SO Interviewed; notes received and reviewedThe subject official was interviewed on September 18, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
The witness officials were interviewed on September 18, 2023.
Service Employee Witnesses (SEW)
SEW #1 InterviewedSEW #2 Interviewed
SEW #3 Interviewed
The service employee witnesses were interviewed on September 15, 2023.
Evidence
The Scene
The events in question transpired in the WPS Detention Unit.Video/Audio/Photographic Evidence [2]
Police Communications Recordings
On August 2, 2023, starting at about 4:18 p.m., multiple 911 calls were received by the police about a man - the Complainant - in the middle of traffic near the intersection of Dougall Avenue and Cabana Road. The Complainant was reportedly walking northbound and screaming at cars with one hand in his pocket. He carried a blue Walmart bag. The Complainant had no weapons displayed and appeared under the influence of drugs.
Starting at about 4:28 p.m., a caller identified the Complainant by name and stated he was under the influence of crystal methamphetamine and not in his right mind. The caller would remain in the area until WPS arrived.
Starting at about 4:37 p.m., an off-duty paramedic reported the Complainant had stepped into traffic and carried a knife in his right hand. WPS officers were in the area for another incident.
Starting at about 4:40 p.m., another caller reported that the Complainant had unlawfully activated a fire alarm in Walmart approximately 45 minutes before.
Officers were dispatched to Dougall Avenue and Roseland Drive East for the Complainant, who walked in traffic and screamed. A knife was held in his right hand.
A WPS officer reported the knife had been dropped and the Complainant was down on the sidewalk.
Starting at about 5:21 p.m., the Complainant was transported to WPS headquarters in a police car.
WPS Cell Video
On August 2, 2023, starting at about 5:25:33 p.m., the Complainant was brought to the registration desk from the elevator by a WPS officer. SEW #3 processed the Complainant, who mumbled and spoke in hoarse, low tones. Throughout the process, he appeared intoxicated with slow reactions and unsteadiness. He was inaudible at times but was compliant and answered all questions. The Complainant claimed he was bipolar, had no injuries, and did not require medical attention. The Complainant indicated he had not taken prescribed medication for four days and had smoked drugs that day, but the type and amount was inaudible.Starting at about 5:33:29 p.m., the Complainant was asked if he knew why he was there, and he responded ‘yes’.
Starting at about 5:53:14 p.m., the Complainant entered a cell, led by SEW #3 and another special constable. He laid down and responded to SEW #3, but the audio was distorted.
Starting at about 5:56:25 p.m., SEW #3 entered the cell and attempted to rouse the Complainant. He told him to breathe and applied a vigorous sternum rub, which appeared to revive him. Another special constable attended along with the SO.
Starting at about 5:58:06 p.m., the SO administered naloxone to the Complainant with no immediate effect.
Starting at about 5:58:27 p.m., WO #2 delivered another dose of naloxone to the SO.
Starting at about 5:58:56 p.m., the SO administered a second dose of naloxone to the Complainant with no immediate effect. SEW #3 confirmed the Complainant had a pulse. The SO applied a sternum rub and they tried to communicate with the Complainant.
Starting at about 6:00:17 p.m., the Complainant showed signs of consciousness but did not respond verbally until 6:01:08 p.m. The Complainant was asked what drugs, and how much, he had taken. The audio was distorted inside the cell, but fentanyl was later mentioned by the first paramedic who attended.
Starting at about 6:02:49 p.m., a paramedic entered the cell and attended to the Complainant with the assistance of SEW #3.
Starting at about 6:11:38 p.m., another paramedic entered the cell. The Complainant had difficulty keeping his eyes open but remained conscious while treated.
Starting at about 6:13:59 p.m., the Complainant was assisted from the cell by the second paramedic and SEW #3.
Starting at about 6:17:13 p.m., the Complainant was taken into the elevator on a gurney by paramedics.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the WPS between August 18 and 30, 2023:- Detention Registration and Cell Report;
- Detailed Call Summary;
- Arrest Report;
- Directive Prisoner Care & Control;
- Cell video;
- Communications recordings;
- Notes – WO #1;
- Notes – the SO;
- Notes – WO #2;
- Notes – SEW #1;
- Notes – SEW #2;
- Notes – SEW #3; and
- General and Supplementary Reports.
Materials Obtained from Other Sources
The SIU obtained the following record from other sources:- The Complainant’s medical records from the WRH.
Incident Narrative
The events in question, clear on the evidence collected by the SIU, may briefly be summarized.
The Complainant was taken into custody in the afternoon of August 2, 2023. He was of unsound mind at the time, experiencing the effects of drug overdose and possible mental illness. Officers on an unrelated call located the Complainant acting oddly in and around the area of Dougall Avenue and Cabana Road West. He was screaming and waving a knife at passing motorists. A short time earlier, the Complainant had pulled the fire alarm at the Walmart in the area. The Complainant was arrested and transported to the WPS Detention Unit.
At the station, the Complainant admitted to having consumed a quantity of crystal methamphetamine. Asked if he wanted to go to the hospital, he declined. Concerned about the effects of his drug use, the Complainant was lodged in a cell that allowed for greater monitoring. The special constables who escorted him to the cell learned from the Complainant that he had also consumed fentanyl. The time was about 5:53 p.m.
The information about the Complainant’s fentanyl use was conveyed to the officer-in-charge of the detention unit – the SO – by the special constables, who suggested the Complainant be taken to hospital. The SO agreed. An ambulance was called. A couple of minutes later, SEW #3 entered the Complainant’s cell, found him unresponsive on the cell bench, and alerted other officers.
The SO arrived at the cell and assisted SEW #3 in providing emergency care. The SO administered two doses of nasal naloxone. Combined with a sternum rub, the second dose appeared to return the Complainant to consciousness. The time was about 6:00 p.m.
EMS arrived at the cells at about 6:02 p.m. and took charge of the Complainant’s care. He was transported to hospital and treated for overdose.
The Complainant was taken into custody in the afternoon of August 2, 2023. He was of unsound mind at the time, experiencing the effects of drug overdose and possible mental illness. Officers on an unrelated call located the Complainant acting oddly in and around the area of Dougall Avenue and Cabana Road West. He was screaming and waving a knife at passing motorists. A short time earlier, the Complainant had pulled the fire alarm at the Walmart in the area. The Complainant was arrested and transported to the WPS Detention Unit.
At the station, the Complainant admitted to having consumed a quantity of crystal methamphetamine. Asked if he wanted to go to the hospital, he declined. Concerned about the effects of his drug use, the Complainant was lodged in a cell that allowed for greater monitoring. The special constables who escorted him to the cell learned from the Complainant that he had also consumed fentanyl. The time was about 5:53 p.m.
The information about the Complainant’s fentanyl use was conveyed to the officer-in-charge of the detention unit – the SO – by the special constables, who suggested the Complainant be taken to hospital. The SO agreed. An ambulance was called. A couple of minutes later, SEW #3 entered the Complainant’s cell, found him unresponsive on the cell bench, and alerted other officers.
The SO arrived at the cell and assisted SEW #3 in providing emergency care. The SO administered two doses of nasal naloxone. Combined with a sternum rub, the second dose appeared to return the Complainant to consciousness. The time was about 6:00 p.m.
EMS arrived at the cells at about 6:02 p.m. and took charge of the Complainant’s care. He was transported to hospital and treated for overdose.
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 Death or 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.
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.
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.
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
On August 2, 2023, the Complainant lapsed into medical crisis while in a WPS cell. He was transported to hospital and diagnosed with polysubstance overdose. The SIU was notified of the incident and initiated an investigation. The officer with overall care of prisoners at the time of 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 medical condition.
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 his medical condition. In my view, there was not.
There are no questions raised in the evidence regarding the lawfulness of the Complainant’s apprehension. He had pulled a fire alarm for no good reason, was waving a knife at motorists, and appeared a danger to himself and others because of possible mental disorder and drug use. On this record, he was subject to arrest pursuant to the Mental Health Act and the Criminal Code.
While in the custody of the WPS, it is apparent that the Complainant was properly cared for at all times. Cognizant of his drug use, the Complainant was assigned a cell for high risk detainees that would permit his custodians greater scrutiny of his condition. The moment the special constables realized the Complainant was at even higher risk than had initially been thought following the news about his fentanyl use, they and the SO acted with dispatch to contact paramedics to have him taken to hospital. Lastly, the SO and the special constables moved quickly to render emergency care to the Complainant as soon as he was discovered unresponsive in his cell. The administration of naloxone and sternum rubs appeared to return the Complainant to consciousness just before the arrival of paramedics at the cells.
For the foregoing reasons, it is apparent that the SO did not transgress the limits of care prescribed by the criminal law in relation to his care of the Complainant. As such, there is no basis for proceeding with charges in this case. The file is closed.
Date: November 30, 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 his medical condition. In my view, there was not.
There are no questions raised in the evidence regarding the lawfulness of the Complainant’s apprehension. He had pulled a fire alarm for no good reason, was waving a knife at motorists, and appeared a danger to himself and others because of possible mental disorder and drug use. On this record, he was subject to arrest pursuant to the Mental Health Act and the Criminal Code.
While in the custody of the WPS, it is apparent that the Complainant was properly cared for at all times. Cognizant of his drug use, the Complainant was assigned a cell for high risk detainees that would permit his custodians greater scrutiny of his condition. The moment the special constables realized the Complainant was at even higher risk than had initially been thought following the news about his fentanyl use, they and the SO acted with dispatch to contact paramedics to have him taken to hospital. Lastly, the SO and the special constables moved quickly to render emergency care to the Complainant as soon as he was discovered unresponsive in his cell. The administration of naloxone and sternum rubs appeared to return the Complainant to consciousness just before the arrival of paramedics at the cells.
For the foregoing reasons, it is apparent that the SO did not transgress the limits of care prescribed by the criminal law in relation to his care of the Complainant. As such, there is no basis for proceeding with charges in this case. The file is closed.
Date: November 30, 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.