SIU Director’s Report - Case # 23-OCI-309
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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 death of a 25-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 death of a 25-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On August 3, 2023, at 7:56 p.m., the Ottawa Police Service (OPS) notified the SIU of an injury to the Complainant.According to the OPS, on August 3, 2023, at approximately 4:00 p.m., OPS officers responded to a domestic disturbance at a residence in Ottawa. Upon arrival a woman could be heard screaming. They knocked on the door and a woman ran out stating that she had been assaulted. Officers arrested the Complainant for domestic assault, and noted the presence of drugs and drug paraphernalia. They searched the Complainant incident to arrest and located crack cocaine and unknown pills in his pockets. At 4:30 p.m., the Complainant was transported to the police station and paraded before the officer-in-charge. He was belligerent with custody staff and a search was conducted prior to lodging. No additional drugs were found. During a cell check at 5:57 p.m., special constables found the Complainant unresponsive and drooling. They entered the cell and found he had shallow breathing and a weak pulse. Emergency Medical Services (EMS) responded and transported the Complainant to The Ottawa Hospital. The Complainant lost vital signs en route but was resuscitated. While being examined in the hospital, doctors located a large, unprotected piece of suspected crack cocaine in the Complainant’s rectum. The Complainant’s symptoms were deemed consistent with acute drug overdose.
The Team
Date and time team dispatched: 08/03/2023 at 9:54 p.m.Date and time SIU arrived on scene: 08/04/2023 at 7:20 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
25-year-old male; deceasedSubject Officials (SO)
SO #1 Interviewed; notes received and reviewedSO #2 Interviewed; notes received and reviewed
The subject officials were interviewed on August 28, 2023.
Witness Officials (WO)
WO #1 Interviewed; notes received and reviewed WO #2 Interviewed; notes received and reviewed
WO #3 Interviewed; notes received and reviewed
The witness officials were interviewed on August 16, 2023.
Service Employee Witnesses (SEW)
SEW #1 InterviewedSEW #2 Interviewed
The service employee witnesses were interviewed on August 16, 2023.
Evidence
The Scene
The events in question transpired inside the booking and cellblock areas of the OPS Headquarters, 474 Elgin Street, Ottawa.On August 4, 2023, at 1:49 p.m., the SIU attended the scene. It was unremarkable except for five naloxone kits and an automated external defibrillator (AED), which were on the floor near the Complainant’s cell.
Forensic Evidence
The following reports have not to date been received by the SIU:- Autopsy Report; and
- Toxicology Report.
Video/Audio/Photographic Evidence [2]
OPS Video Footage – Booking Area
Starting at about 4:40:28 p.m., the Complainant was walked into the booking area by WO #3 and WO #1, each positioned on either side of him and holding his arms. He was dressed only in short pants and handcuffed behind his back.
Starting at about 4:40:47 p.m., the Complainant was paraded by WO #1 before SO #1. While the charges were being read, the Complainant made unintelligible utterances with a raised voice. He was walked down the hallway into the search corridor.
Starting at about 4:41:13 p.m., the Complainant was searched by SEW #1 and SEW #2. SO #1 stood nearby and observed.
Starting at about 4:41:58 p.m., the Complainant was walked to the cell area.
OPS Video Footage - Cells
Starting at about 4:42:53 p.m., the Complainant walked into the cell unassisted and sat down on the bench.Starting at about 4:44:13 p.m., the Complainant removed his pants and sat down on the toilet. The Complainant reached behind him with his right hand into the toilet bowl and under his buttocks.
Starting at about 4:44:29 p.m., both of the Complainant's hands were to his front and positioned between his legs. He was looking down and moving his hands.
Starting at about 4:44:57 p.m., the Complainant reached behind and flushed the toilet.
Starting at about 4:45:03 p.m., the Complainant put his left hand to his mouth, stood up and stumbled forward. He pulled his pants up and sat down on the bench.
Starting at about 4:45:25 p.m., the Complainant appeared to remove something from his mouth with his right hand, place it in the toilet and flush it.
Starting at about 4:45:40 p.m., the Complainant laid down on the bench on his back.
Starting at about 4:48:42 p.m., the Complainant placed his right hand over his mouth and made a chewing motion.
Starting at about 4:51:14 p.m., SEW #1 approached the Complainant’s cell, stopped and looked inside. The Complainant was lying on the bench moving his arms around.
Starting at about 4:51:18 p.m., SEW #1 walked away.
Starting at about 4:52:08 p.m., the Complainant rolled onto the floor and laid down on his front.
Starting at about 4:59:25 p.m., the Complainant’s last noticeable movement was observed.
Starting at about 5:19:53 p.m., SEW #1 approached the Complainant’s cell, stopped and looked inside.
Starting at about 5:20:06 p.m., SEW #1 walked away.
Starting at about 5:51:33 p.m., SEW #2 approached the Complainant’s cell and looked inside.
Starting at about 5:52:33 p.m., SEW #2 walked away.
Starting at about 5:54:16 p.m., SO #2, SEW #1 and SEW #2 approached the Complainant’s cell and looked inside.
Starting at about 5:54:41 p.m., the cell door was opened, and they stood outside observing the Complainant.
Starting at about 5:54:52 p.m., the special constables entered the cell and rendered aid to the Complainant.
Starting at about 5:58:12 p.m., the Complainant was removed from the cell and pulled into the common area. Cardio-pulmonary resuscitation in conjunction with an AED was administered by the special constables.
Starting at about 6:11:14 p.m., EMS arrived.
OPS Communications Recordings
The police radio and telephone communication recordings detailed the OPS officers’ attendance at the residence for the initial intimate partner violence call. A synopsis of the transmissions were not included in this report as they did not further the investigation or detail events specific to the interaction that occurred in the cellblock. Materials Obtained from Police Service
- Upon request, the SIU received the following materials from the OPS between August 4 and 17, 2023:
- Names and roles of involved police officers;
- Civilian witness names and statements provided;
- Crown Brief Synopsis;
- Information from computer-assisted dispatch;
- Communications recordings;
- Booking area and cell video footage;
- Forensic photographs;
- Schematic renderings of cell block;
- Prisoner logs;
- Duty book notes – WO #1;
- Duty book notes – WO #2;
- Duty book notes – WO #3;
- Duty book notes – SEW #1;
- Duty book notes – SEW #2;
- Duty book notes – SO #1;
- Duty book notes – SO #2;
- Policy - Arrest;
- Policy - Search of Persons;
- Policy - Police Facilities; and
- Policy - Use of Force.
Materials Obtained from Other Sources
The SIU obtained the following record from other sources:- Preliminary Autopsy Findings from the Ontario Forensic Pathology Service, received August 9, 2023.
Incident Narrative
The evidence collected by the SIU, including interviews with both subject officials and other officers involved in the Complainant’s custody, gives rise to the following scenario.
In the afternoon of August 3, 2023, OPS officers were dispatched to a residence in Ottawa following reports of a domestic disturbance. WO #1 and WO #2 arrived at the address and arrested the Complainant for assault. The Complainant was intoxicated at the time. In a search at the scene, WO #1 retrieved what he believed to be crack cocaine in a baggie from the Complainant’s left pant pocket. WO #2 would also find a baggie of a white rock-like substance in the apartment.
At the station, the Complainant was paraded before SO #1. WO #1 noted that the Complainant had been arrested for assault, breach of probation, and possession of a controlled substance. A further search of the Complainant’s person was conducted and he was lodged in a cell. The time was about 4:42 p.m.
At about 4:45 p.m., after sitting on the toilet, the Complainant removed something from the area of his buttocks and placed it in his mouth. At about 4:52 p.m., he laid himself on the cell floor. Seven minutes later, the Complainant made a final, noticeable movement.
While conducting a cell check at 5:51 p.m., SEW #2 became concerned with the Complainant’s well-being. His breathing seemed laboured. The special constable alerted the officer-in-charge – SO #2 – and suggested he enter the cell to check on the Complainant and place him in a recovery position.
SEW #2 entered the cell with SEW #1 at about 5:54 p.m. They quickly discerned that the Complainant was unresponsive. The officers commenced emergency first-aid, including the administration of an AED device, several doses of naloxone and CPR. An ambulance was called.
Paramedics arrived at the cells at about 6:11 p.m. and assumed charge of the Complainant’s care.
The Complainant was transported to hospital and died five days later.
Cause of Death
The pathologist at autopsy was unable to arrive at a preliminary opinion regarding the cause of the Complainant’s death. The cause of death remains pending at this time.
In the afternoon of August 3, 2023, OPS officers were dispatched to a residence in Ottawa following reports of a domestic disturbance. WO #1 and WO #2 arrived at the address and arrested the Complainant for assault. The Complainant was intoxicated at the time. In a search at the scene, WO #1 retrieved what he believed to be crack cocaine in a baggie from the Complainant’s left pant pocket. WO #2 would also find a baggie of a white rock-like substance in the apartment.
At the station, the Complainant was paraded before SO #1. WO #1 noted that the Complainant had been arrested for assault, breach of probation, and possession of a controlled substance. A further search of the Complainant’s person was conducted and he was lodged in a cell. The time was about 4:42 p.m.
At about 4:45 p.m., after sitting on the toilet, the Complainant removed something from the area of his buttocks and placed it in his mouth. At about 4:52 p.m., he laid himself on the cell floor. Seven minutes later, the Complainant made a final, noticeable movement.
While conducting a cell check at 5:51 p.m., SEW #2 became concerned with the Complainant’s well-being. His breathing seemed laboured. The special constable alerted the officer-in-charge – SO #2 – and suggested he enter the cell to check on the Complainant and place him in a recovery position.
SEW #2 entered the cell with SEW #1 at about 5:54 p.m. They quickly discerned that the Complainant was unresponsive. The officers commenced emergency first-aid, including the administration of an AED device, several doses of naloxone and CPR. An ambulance was called.
Paramedics arrived at the cells at about 6:11 p.m. and assumed charge of the Complainant’s care.
The Complainant was transported to hospital and died five days later.
Cause of Death
The pathologist at autopsy was unable to arrive at a preliminary opinion regarding the cause of the Complainant’s death. The cause of death remains pending at this time.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 220, Criminal Code -- Criminal Negligence Causing Death
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.
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.
Analysis and Director's Decision
On August 3, 2023, the Complainant lapsed into medical crisis while in the custody of the OPS and was transported to hospital. The SIU was notified of the incident and initiated an investigation, naming two subject officials: SO #1 and SO #2. On August 8, 2023, while still in hospital, the Complainant passed away. 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 Complainant’s death.
The offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 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/or SO #2, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or caused his death. In my view, there was not.
There are no questions raised in the evidence around the lawfulness of the Complainant’s arrest. It appears that there were grounds to take the Complainant into custody for assault and possession of illicit substances.
Nor are there any real questions with respect to the care afforded the Complainant while in custody. He was personally checked at about 4:50 p.m. and then again at about 5:20 p.m. by SEW #1. On neither occasion was there reason to believe that the Complainant was in medical distress. On the third regularly-scheduled check, at 5:50 p.m., SEW #2 correctly surmised that something was wrong. He promptly advised the officer-in-charge and officers moved with dispatch to render emergency first-aid to the Complainant while they waited for an ambulance. It is true that the Complainant’s custodians did not see him apparently ingesting a substance he had retrieved from the area of his buttocks, but that is not entirely surprising. The Complainant’s conduct occurred over a relatively short period of time and might well have been missed short of continuous surveillance of his cell. The situation, however, did not necessarily call-out for that level of scrutiny. This takes us to the nub of the liability analysis, namely, whether the subject officials ought to have taken more seriously the possibility that the Complainant continued to be in possession of drugs and ordered a strip search of his person.
In R. v. Golden, [2001] 3 SCR 679, the Supreme Court of Canada laid out the circumstances in which a strip search would be legally permissible. Owing to their inherently degrading and invasive nature, strip searches are only condoned where officers have reasonable and probable grounds for believing they are necessary in the particular circumstances of an arrest. It is arguable whether those grounds existed in the case of the Complainant. The fact that drugs had been found in the Complainant’s clothing and apartment might have raised a suspicion that he could be concealing illicit substances in his person, but there was no hard information that really pointed in that direction. Moreover, by the time the Complainant was placed in cells, he had already been subjected to two non-strip searches of his person. On this record, I am unable to reasonably conclude that SO #1 failed to exercise his discretion to order a strip search in a way that departed markedly from a reasonable standard of care.
For the foregoing reasons, I am satisfied that neither subject official transgressed the limits of care prescribed by the criminal law in their dealings with the Complainant. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 1, 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 death contrary to sections 215 and 220 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/or SO #2, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or caused his death. In my view, there was not.
There are no questions raised in the evidence around the lawfulness of the Complainant’s arrest. It appears that there were grounds to take the Complainant into custody for assault and possession of illicit substances.
Nor are there any real questions with respect to the care afforded the Complainant while in custody. He was personally checked at about 4:50 p.m. and then again at about 5:20 p.m. by SEW #1. On neither occasion was there reason to believe that the Complainant was in medical distress. On the third regularly-scheduled check, at 5:50 p.m., SEW #2 correctly surmised that something was wrong. He promptly advised the officer-in-charge and officers moved with dispatch to render emergency first-aid to the Complainant while they waited for an ambulance. It is true that the Complainant’s custodians did not see him apparently ingesting a substance he had retrieved from the area of his buttocks, but that is not entirely surprising. The Complainant’s conduct occurred over a relatively short period of time and might well have been missed short of continuous surveillance of his cell. The situation, however, did not necessarily call-out for that level of scrutiny. This takes us to the nub of the liability analysis, namely, whether the subject officials ought to have taken more seriously the possibility that the Complainant continued to be in possession of drugs and ordered a strip search of his person.
In R. v. Golden, [2001] 3 SCR 679, the Supreme Court of Canada laid out the circumstances in which a strip search would be legally permissible. Owing to their inherently degrading and invasive nature, strip searches are only condoned where officers have reasonable and probable grounds for believing they are necessary in the particular circumstances of an arrest. It is arguable whether those grounds existed in the case of the Complainant. The fact that drugs had been found in the Complainant’s clothing and apartment might have raised a suspicion that he could be concealing illicit substances in his person, but there was no hard information that really pointed in that direction. Moreover, by the time the Complainant was placed in cells, he had already been subjected to two non-strip searches of his person. On this record, I am unable to reasonably conclude that SO #1 failed to exercise his discretion to order a strip search in a way that departed markedly from a reasonable standard of care.
For the foregoing reasons, I am satisfied that neither subject official transgressed the limits of care prescribed by the criminal law in their dealings with the Complainant. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 1, 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.