SIU Director’s Report - Case # 23-OCI-340
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section 14 (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:- Confidential investigative techniques and procedures used by law enforcement agencies; and
- Information that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- Location information;
- Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
- Other identifiers which are likely to reveal personal information about individuals involved in the investigation.
Personal Health Information Protection Act, 2004
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.Mandate Engaged
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into the serious injury of a 35-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 35-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On August 21, 2023, at 10:02 a.m., the London Police Service (LPS) contacted the SIU with the following information.On August 20, 2023, at 3:38 p.m., LPS officers arrested the Complainant. He was taken to the police station and booked into cells at 4:24 p.m. having previously disclosed that he had ingested fentanyl. At 6:45 p.m., the Complainant had a medical emergency. Emergency Medical Services (EMS) were called and transported the Complainant to London Health Sciences Centre (LHSC) Victoria Hospital where he was admitted.
The Team
Date and time team dispatched: 08/22/2023 at 5:30 a.m.Date and time SIU arrived on scene: 08/22/2023 at 9:36 a.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
35-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on August 22, 2023.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
The civilian witnesses were interviewed on November 23, 2023.
Subject Officials (SO)
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on September 20, 2023, and November 30, 2023.
Service Employee Witnesses (SEW)
SEW #1 Interviewed SEW #2 Interviewed
SEW #3 Interviewed
The service employee witnesses were interviewed on November 17, 2023.
Evidence
The Scene
The events in question transpired in the booking and cell areas of the LPS Headquarters, 601 Dundas Street, London.The scene was not examined by SIU forensic investigators. SIU investigators did not attend the LPS booking or cell area. The area was video-recorded.
Video/Audio/Photographic Evidence [2]
Video Footage - Booking Area
Starting at about 4:24:37 p.m., August 20, 2023 (time-stamp on video), the Complainant was captured entering the booking area accompanied by WO #1 and WO #2. He walked on his own without assistance.Starting at about 4:26:00 p.m., WO #1 advised the SO, who was behind the booking desk, of the charges in relation to the Complainant. The SO asked the Complainant if he had any alcohol that day, and the Complainant replied, "No." The SO then asked if he had taken any drugs that day that were not prescribed, and he replied, "Yes." The SO asked what type of drug he had taken, and the Complainant's response was indiscernible. The SO asked the Complainant if he had taken a normal amount for him and if he could "handle it". WO #1 advised the SO that the Complainant had admitted to smoking fentanyl prior to his arrest and that he had swallowed more "on the way here". The SO asked the Complainant if what he had swallowed was fentanyl, and the Complainant replied, "Yes." The SO inquired if there was a reason to be concerned about him, or if he could handle it. The Complainant stated that it was the normal amount for him, but that he did not normally take it all at once. The SO asked the Complainant if he just wanted to lay down and go to sleep? The Complainant stated that he did not care: "Whatever you guys think."
Starting at about 4:33:13 p.m., the SO advised the Complainant that they were contacting Duty Counsel for him and that, "If something changes with your health, let one of us know." The Complainant stated that if he fell asleep, he was a light breather, and, " As long as I'm breathing, I should be fine." The SO advised the Complainant that they would be checking on him. The Complainant walked out of camera view to speak with Duty Counsel.
Starting at about 4:34:30 p.m., the SO, WO #1 and WO #2 stood at the booking desk and discussed the Complainant’s condition. The SO asked if the Complainant was going to be okay. WO #2 stated that he did not know how much the Complainant had ingested but that his mouth was purple. WO #1 said that the Complainant admitted that he had smoked a "point" of fentanyl prior to his arrest and then swallowed a "street point" after his arrest. The SO stated words to the effect of, “Okay, we will keep our fingers crossed that he will be okay,” as he crossed his fingers on his left hand. WO #1 advised that he and WO #2 would not be far, and would return if the Complainant needed to go to the hospital.
At 4:36:56 p.m., the video concluded.
Video Footage - Cell
Starting at about 5:14:59 p.m., August 20, 2023 (time-stamp on video), the Complainant was secured in the cell. He walked into the cell unassisted and appeared to have a conversation with SEW #1 as he sat on the bunk inside the cell.Starting at about 5:20:00 p.m., SEW #1 returned to the cell. The Complainant was in between the two bunks in a plank position.
Starting at about 5:40:33 p.m., SEW #1 returned to the cell for a regularly scheduled cell check. The Complainant was laying between the two bunks and moved his head and arms as SEW #1 appeared to say something to him.
Starting at about 6:00:44 p.m., SEW #1 returned to the cell and conducted a cell check. The Complainant was laying on the cell floor between the two bunks and appeared to be asleep.
SEW #1 again conducted a cell check starting at about 6:21:10 p.m. He knocked on the glass portion of the cell door as the Complainant was still laying on the cell floor between the bunks. The Complainant did not appear to physically move. SEW #1 exited out of camera view.
The next cell check conducted by SEW #1 was at 6:40:25 p.m., with the Complainant captured on video still laying in the same position.
Starting at about 6:40:53 p.m., SEW #1 opened the door of the Complainant’s cell.
Starting at about 6:41:09 p.m., SEW #2 arrived at the cell and, at 6:41:33 p.m., she entered the Complainant’s cell. SEW #2 illuminated her flashlight, located a small object next to the toilet and placed it on the bunk. SEW #2 shook the Complainant by the arm and, at 6:42:43 p.m., the Complainant sat up and was assisted into a seated position on a bunk.
SEW #3 and WO #3 entered camera view outside of the Complainant’s cell.
Starting at about 6:52:52 p.m., EMS arrived at the cell and took over care of the Complainant.
Starting at about 6:53:45 p.m., the Complainant exited the cell and was placed onto a stretcher. The video concluded.
Materials Obtained from Police Service
The SIU obtained the following records from the LPS between August 24, 2023, and November 16, 2023:- Procedure – Persons in Custody Care and Control;
- Procedure – Transportation of Persons in Custody;
- Procedure - Medical Care and Accommodations of Persons in Custody;
- Information from computer-assisted dispatch;
- General Occurrence Report;
- Release Order;
- Custody video footage;
- Notes - WO #1 ;
- Notes - WO #2 ;
- Notes - SEW #1; and
- Notes - SEW #2.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources between August 30, 2023, and September 15, 2023:- Middlesex-London Paramedic Service – records of the Complainant; and
- LHSC medical records – the Complainant
Incident Narrative
The evidence collected by the SIU, including interviews with police staff responsible for the Complainant’s monitoring while in cells and video footage that captured his time in custody, 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 for break and enter in the afternoon of August 20, 2023. The homeowner of a property on William Street had returned to his residence from vacation to find a man inside. Officers were dispatched and arrested the Complainant in the vicinity of the property. The Complainant cooperated with his arrest. When asked, he told the arresting officers – WO #1 and WO #2 – that he had consumed fentanyl earlier in the day.
The Complainant was taken to the police station where a search of his backpack revealed a substance suspected of being fentanyl. Asked again about his drug use, the Complainant reiterated that he had consumed fentanyl before his arrest. He was also seen to swallow twice and acknowledged that he had just ingested more fentanyl.
The booking officer - the SO - was made aware of the Complainant’s drug use. He asked the Complainant if the quantity of drugs he had consumed was normal for him, and the Complainant confirmed that it was, albeit he did not ordinarily consume that quantity as quickly as he presently had. The SO directed that the Complainant be lodged in a cell.
The Complainant was lodged in a cell at about 5:15 p.m. He was checked at 20-minute intervals starting at 5:20 p.m. by custodial staff. At about 6:40 p.m., one of the custodians – SEW #1 – opened the cell door to find the Complainant unresponsive. SEW #2 arrived in the cell and managed to wake the Complainant with a sternum rub. The Complainant was sat up and EMS were contacted.
Paramedics arrived at the cell at about 6:52 p.m. They took charge of the Complainant’s care and transported him to hospital.
The Complainant was admitted to hospital and treated for drug overdose.
The Complainant was taken to the police station where a search of his backpack revealed a substance suspected of being fentanyl. Asked again about his drug use, the Complainant reiterated that he had consumed fentanyl before his arrest. He was also seen to swallow twice and acknowledged that he had just ingested more fentanyl.
The booking officer - the SO - was made aware of the Complainant’s drug use. He asked the Complainant if the quantity of drugs he had consumed was normal for him, and the Complainant confirmed that it was, albeit he did not ordinarily consume that quantity as quickly as he presently had. The SO directed that the Complainant be lodged in a cell.
The Complainant was lodged in a cell at about 5:15 p.m. He was checked at 20-minute intervals starting at 5:20 p.m. by custodial staff. At about 6:40 p.m., one of the custodians – SEW #1 – opened the cell door to find the Complainant unresponsive. SEW #2 arrived in the cell and managed to wake the Complainant with a sternum rub. The Complainant was sat up and EMS were contacted.
Paramedics arrived at the cell at about 6:52 p.m. They took charge of the Complainant’s care and transported him to hospital.
The Complainant was admitted to hospital and treated for drug 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 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.
Analysis and Director's Decision
On August 21, 2023, the LPS contacted the SIU to report that a male in their custody – the Complainant – had been admitted to hospital for treatment of an overdose. The SIU initiated an investigation and named the SO 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 condition. In my view, there was not.
There are no questions raised in the evidence regarding the lawfulness of the Complainant’s arrest. It would appear he was lawfully in custody in relation to the reported ‘break and enter’ call.
I am also satisfied that the SO comported himself with due care and regard for the Complainant’s health and well-being while he was in police cells. Under his watch, the Complainant was checked every 20 minutes and medical attention was summoned promptly as soon as it appeared he was in medical distress. It is arguable that the Complainant ought to have been sent directly to hospital or subjected to more frequent monitoring while in cells given what the SO knew of his fentanyl use. That said, the Complainant appeared coherent and in control of his faculties at the time he was booked. On this record, the evidence falls short of any suggestion that the SO transgressed the limits of care prescribed by the criminal law during the roughly hour-and-a-half that the Complainant was in cells.
For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 19, 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 condition. In my view, there was not.
There are no questions raised in the evidence regarding the lawfulness of the Complainant’s arrest. It would appear he was lawfully in custody in relation to the reported ‘break and enter’ call.
I am also satisfied that the SO comported himself with due care and regard for the Complainant’s health and well-being while he was in police cells. Under his watch, the Complainant was checked every 20 minutes and medical attention was summoned promptly as soon as it appeared he was in medical distress. It is arguable that the Complainant ought to have been sent directly to hospital or subjected to more frequent monitoring while in cells given what the SO knew of his fentanyl use. That said, the Complainant appeared coherent and in control of his faculties at the time he was booked. On this record, the evidence falls short of any suggestion that the SO transgressed the limits of care prescribed by the criminal law during the roughly hour-and-a-half that the Complainant was in cells.
For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: December 19, 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.