SIU Director’s Report - Case # 23-PCI-313

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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 the serious injury of a 36-year-old man (the “Complainant”).

The Investigation

Notification of the SIU [1]

On August 7, 2023, at 5:03 p.m., the Ontario Provincial Police (OPP) East Region contacted the SIU with the following information.

On August 6, 2023, at approximately 8:54 p.m., OPP in Pembroke arrested the Complainant for outstanding warrants in relation to drug trafficking offences. He was taken to the OPP Pembroke Detachment and held for a bail hearing. On August 7, 2023, the Complainant was denied bail and was to be remanded to the Ottawa-Carleton Detention Centre. At 11:30 a.m., when custody staff went to get the Complainant from his cell to ready him for the transport unit, he was sleepy and unable to stand on his own. The Complainant was transported by Emergency Medical Services (EMS) to Pembroke Regional Hospital (PRH) where he was admitted and placed on an intravenous Narcan drip. Hospital staff located suspected fentanyl in the Complainant’s underwear while he was put into a hospital gown.

The Team

Date and time team dispatched: 08/07/2023 at 6:30 p.m.

Date and time SIU arrived on scene: 08/07/2023 at 6:41 p.m.

Number of SIU Investigators assigned: 4
 
Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

36-year-old male; declined interview

Subject Official (SO)

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed

The witness officials were interviewed between August 25 and 30, 2023.

Service Employee Witnesses (SEW)

SEW #1 Interviewed
SEW #2 Interviewed
SEW #3 Interviewed

The service employee witnesses were interviewed between August 30, 2023, and September 10, 2023.

Evidence

The Scene

The events in question transpired in various locations inside the OPP Pembroke Detachment, 77 International Drive, Pembroke.

Video/Audio/Photographic Evidence [2]

OPP Custody Video

Starting at about 9:13:20 p.m., August 6, 2023, the Complainant was walked out of a marked OPP police vehicle into the booking area. He walked in the room without issue and sat upright. He was handcuffed behind his back.

Starting at about 9:23:44 p.m., the Complainant had the handcuffs removed and appeared to have a conversation with an OPP police officer.

Starting at about 9:30:17 p.m., the Complainant removed his belt, shoes, and one shirt. A search was conducted, which included the Complainant pulling out his pockets.

Starting at about 9:32:18 p.m., the Complainant signed his name on a booking sheet, and walked out of the booking area. The Complainant was placed in a cell that was video monitored. He walked on his own accord and was provided with a blanket.

Starting at about 9:50:11 p.m., the Complainant exited the cell and returned at 9:52:36 p.m.

Starting at about 11:07:18 p.m., the Complainant was provided another blanket and laid down on the cell bench. The Complainant slept through the night with no reported activity.

Starting at about 9:24:05 a.m., August 7, 2023, WO #3 and WO #1 entered the cell and woke the Complainant. The Complainant walked out of the cell for bail court.

Starting at about 9:35:07 a.m., the Complainant was returned to his cell. He was seated and leaned over for a few minutes. It was not clear what he was doing as the camera was on his back.

Starting at about 9:36:05 a.m., the Complainant received food at his cell.

Starting at about 9:41:08 a.m., the Complainant was seated. He swayed back and forth, and his head leaned toward his shins. This continued for approximately ten minutes.

Starting at about 9:58:49 a.m., the Complainant almost fell on the floor and lost his balance.
 
Starting at about 10:05:10 a.m., the Complainant stood in front of the toilet with his back to the camera.

Starting at about 10:06:26 a.m., the Complainant grabbed a drink box. He swayed, leaned over, and almost fell at 10:19:37 a.m.

Starting at about 10:20:11 a.m., the Complainant lay down on the bench.

Starting at about 10:46:31 a.m., WO #3 entered the cell and attempted to wake the Complainant.

Starting at about 10:56:04 a.m., WO #3 entered the cell with SEW #3 and SEW #2. They applied leg shackles to the Complainant and handcuffs at 10:57:12 a.m.

Starting at about 11:00:30 a.m., the Complainant was brought into the sally port area to the OPP transport vehicle. He was slumped over while being escorted. The Complainant was unable to get his feet up into the secured compartment of the transport vehicle and was heard mumbling.

Starting at about 11:01:30 a.m., after being assisted by SEW #3, the Complainant was seated. Immediately, he fell over face-first with his head pointed towards the floor. He was handcuffed to the front
.
Starting at about 11:03:50 a.m., SEW #3 checked on the Complainant and asked if he was doing alright. The Complainant mumbled. He was still in the same position.

Starting at about 11:06:23 a.m., SEW #3 tried to help the Complainant sit up. He was asked by SEW #2 if he had consumed drugs, and the Complainant replied, “No,” and that he was tired.
Starting at about 11:09:14 a.m., after being assisted in sitting upright, the Complainant fell back over in the fetal position on the floor.
Starting at about 11:13:04 a.m., the Complainant stated that he was stuck. It was suggested by SEW #3 that he be moved to the rear compartment where there would be more room for him to lie down. The Complainant mumbled, and again was asked if he had taken anything. The Complainant stated that his leg was sore.

Starting at about 11:16:14 a.m., SEW #3 assisted the Complainant in getting out of the smaller compartment. The handcuffs were removed to assist him, but he had difficulty getting up.

Starting at about 11:23:11 a.m., the Complainant was brought to a larger compartment in the OPP transport vehicle. It was suggested he lie on the floor as he could fall off the seat during transport.

Starting at about 11:26:25 a.m., SEW #3 had difficulty assisting the Complainant in lying down. The handcuffs were put back on in front of the Complainant’s body. It was suggested that the Complainant be taken to the hospital.

Starting at about 11:41:04 a.m., EMS were present and checked the Complainant. His handcuffs were removed, and he was placed on a stretcher.
 
At 11:51:14 a.m., the stretcher left the view of camera.
 

Body-worn Camera (BWC) Footage – WO #3

At 10:45:46 a.m., the BWC video started. WO #3 was captured sitting in front of a police computer.
 
Starting at about 10:45:55 a.m., SEW #1 walked towards WO #3 and appeared to say something to him. WO #3 got up immediately and started to follow SEW #1 while putting on leather gloves. WO #3 moved past SEW #1 as the door to the booking hall was opened by her. The police officer also grabbed the keys to the cell doors. 
WO #3 approached the Complainant’s cell door and immediately called-out to him. He opened the door to the cell after no response was received. The Complainant was observed lying on the cell bench on his right side and did not appear to be moving. WO #3 touched the Complainant’s left leg and received no response. 
WO #3 removed his glove and placed his right hand near the Complainant’s nose. WO #3 shook the Complainant’s left shoulder and called-out the Complainant's name. He did not receive a response but heard a grunt sound. 
WO #3 then said, “Yeah, he's okay.” WO #3 could not wake the Complainant. He advised the Complainant that the transportation unit was at the detachment and, because of the travelling distance, it was important for him to use the bathroom. The Complainant did not respond, and WO #3 was heard saying, “Man.” 
WO #3 started to shake the Complainant’s left leg and called-out his name. The Complainant was not responding. An unknown yellow/brown substance or stain could be observed on both the floor and cell bench. WO #3 continued to call-out to the Complainant and ask him if he could hear him. WO #3 advised the Complainant that he must wake up or he would be transported anyway. WO #3 walked towards the cell entrance where he saw SEW #1, who was advised by WO #3 that the Complainant was likely asleep. 
WO #3 told SEW #1 that the Complainant would have to be transported in that condition and he could sleep in the transportation unit. WO #3 exited the cell walking towards the hallway with the cell door left open.

Starting at about 10:48:56 a.m., WO #3 walked back into the cell and called-out to the Complainant. The officer then exited the cell and locked the cell door without the Complainant responding.

At 10:49:35 a.m., the BWC video ended.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the OPP between August 8, 2023, and November 8, 2023:
• Arrest Report;
• General Report;
• Prisoner Transport Log;
• Supplementary Report;
• Day Shift Log On Sheet;
• General Occurrence Report;
• Arrest Warrant;
• Prisoner Search Policy;
• List of involved officers;
• Custody video;
BWC footage – WO #3;
• Prisoner Security Check;
• Prisoner Custody Report;
• Notes – WO #3;
• Notes – WO #1;
• Notes – WO #2;
• Notes – SEW #2;
• Notes – SEW #1; and
• Notes – SEW #3.

Incident Narrative

The evidence collected by the SIU, including interviews with officers involved in the Complainant’s period of custody, and video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

The Complainant was arrested by OPP officers on August 6, 2023, on charges of drug trafficking. He was taken to the OPP Pembroke Detachment, searched, and lodged in a cell where he appeared to sleep through the night.
In the morning of August 7, 2023, the Complainant was awakened to attend a bail hearing via remote link from the detachment. He failed to make bail and was kept in custody. The Complainant was returned to his cell to await the arrival of a prisoner transport vehicle that would take him to the Ottawa-Carleton Correctional Centre. The time was about 9:35 a.m.

Operated by SEW #3 and SEW #2, the prisoner transport vehicle arrived at the detachment at about 10:45 a.m. By this time, the Complainant appeared sluggish and lethargic. After attempts were made to rouse the Complainant and have him exit the cell on his own power, he was eventually assisted to the prisoner transport vehicle in the sally port by SEW #3 and SEW #2, and loaded into the prisoner compartment of the vehicle with some difficulty. The Complainant’s condition started to cause the special constables concern and they wondered whether it would not be better to have an ambulance take him to hospital.
 
The civilian guard under whose supervision the Complainant had spent the night – SEW #1 – agreed. She brought her concerns to the detachment administrator who, in turn, contacted the SO. SEW #1 was advised that the SO wanted the Complainant taken by the prisoner transport team to the detention centre. SEW #1 and the special constables felt unease with that decision, particularly as they continued to observe the Complainant’s condition. At about 11:30 a.m., SEW #1 brought her concerns to an officer present in the detachment – WO #2.

WO #2 observed the Complainant. He was lethargic and unable to stand. The special constables expressed concern with transporting him to the detention centre in that condition, particularly as the facility might not accept him in that state. WO #2 called the SO but was unable to reach him. He called another officer who was with the SO – Officer #1 – and sought advice about what he should do. Officer #1 directed him to call an ambulance.

Paramedics arrived at the detachment at about 11:40 a.m. The Complainant was taken to hospital and treated for drug overdose. A quantity of fentanyl was reportedly discovered when the Complainant’s underwear were removed at 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.

221 Every one 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 7, 2023, the Complainant lapsed into medical distress while in the custody of the OPP. The SIU was notified of the incident and launched an investigation. The SO, the officer with overall responsibility for the care of detainees at the time, 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 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 arrest and detention on drug trafficking charges.

I am also satisfied that the Complainant was afforded a level of care while in police custody that did not transgress the limits prescribed by the criminal law. Most of the Complainant’s time in cells was unremarkable. He appeared to sleep through much of it. It was only after his return to cells from a bail hearing, at about 9:30 a.m., that the Complainant’s condition seemed to deteriorate. It would not be until about 10:45 a.m. that the civilian monitor – SEW #1 – started having concerns about the Complainant. She had been unable to rouse him from his bunk so that he could prepare himself for transport in the prisoner vehicle. She did what she could and had an officer enter the cell to assist. The officer – WO #3 – assured himself that the Complainant was breathing and seemed to conclude that he was just sleeping. That conclusion was not without reason particularly as, moments later, the officer would observe the Complainant awaken and walk out of the cell, albeit with the assistance of the special constables. The SO’s active involvement in the Complainant’s care would occur a short time later when his direction was sought about taking him to hospital instead of the detention centre. The officer indicated that the Complainant should be taken to the detention centre. He was apparently concerned about staffing issues on the platoon at the time. Whatever the merits of that decision, however, I am unable to reasonably conclude that it materially contributed to the Complainant’s plight. Not more than about 30 minutes later, paramedics were called.
 
The fact that the Complainant appears to have ingested a quantity of drugs while in cells is subject to scrutiny, but here too that event would not appear the result of any markedly substandard care by the police. With respect to a strip search, which did not happen and which might have, had it occurred, discovered drugs secreted on the Complainant’s person, the police had to determine whether there were reasonable and probable grounds to believe such a search was necessary: R. v. Golden, [2001] 3 SCR 679. It is arguable whether that standard was met. The Complainant was arrested on drug charges and had a history of drug offences. On the other hand, there was no hard evidence that suggested he was in possession of drugs – he had been searched over his clothing with negative results and had presented at the detachment in seemingly good condition. Moreover, short of continuous monitoring, it is not altogether surprising that the Complainant might have been able to retrieve and consume drugs on his person without detection. That level of surveillance, however, was neither in effect nor necessarily warranted in the circumstances of the Complainant’s arrest.

For the foregoing reasons, there is no basis for proceeding with criminal charges against the SO in this case. The file is closed.


Date: December 5, 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.