SIU Director’s Report - Case # 23-OCI-360
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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 31-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 31-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On September 2, 2023, at 6:42 a.m., the London Police Service (LPS) contacted the SIU with the following information.
On September 1, 2023, at 12:15 p.m., a man – the Complainant – was arrested for having breached a conditional sentence order. He was transported by police to the LPS Headquarters located at 601 Dundas Street, and lodged in a cell. At approximately 3:45 p.m., the Complainant was remanded following a video hearing and returned to a cell at 3:55 p.m. According to the cell video, the Complainant removed his pants while in the cell and was observed fidgeting. He eventually removed a neon-coloured item from his pants. At 4:45 p.m., the Complainant appeared to be resting on his side and, at 5:26 p.m., when being removed for transport to a correctional facility, was found to be unresponsive. The cell sergeant immediately administered a dose of Narcan and Emergency Medical Services (EMS) was requested to attend. The Complainant did not respond to the initial Narcan dose, and the sergeant administered four additional doses. The Complainant was transported by EMS to London Health Sciences Centre (LHSC) where his vitals were regained. When he was ultimately released from hospital, the Complainant was transferred to the London Middlesex Detention Centre.
The Team
Date and time team dispatched: 02/09/2023 at 10:35 a.m.Date and time SIU arrived on scene: 02/09/2023 at 11:35 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1
Affected Person (aka “Complainant”):
31-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 6, 2023.
Subject Officials (SO)
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 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 on September 20, 2023.
Service Employee Witnesses (SEW)
SEW #1 Interviewed SEW #2 Interviewed
The service employee officials were interviewed on September 20, 2023, and September 21, 2023.
Evidence
The Scene
The events in question transpired in and around a cell at LPS police station, 601 Dundas Street, London. Physical Evidence
At 3:00 p.m., September 2, 2023, a SIU forensic investigator arrived on scene and met with a LPS staff sergeant, who escorted him to the custody area where he was directed to a cell. The cell had been secured. The adjoining hallway had also been secured and no other inmates were present in the immediate area. The cell was a larger cell that could accommodate two inmates having two beds and a single toilet in the middle. Beds were labelled “A” (to the left as one faced the cell entrance) and “B” (to the right of the cell entrance). On bed “A” were a pair of sandals and one “Narcan” dispenser that had been discharged. On bed “B” was evidence of non-prescribed drug use along with further evidence of this substance on the floor near the bed. Also on this bed was a pair of gloves. Examination of these gloves revealed a small straw.
At 3:35 p.m., the SIU forensic investigator attended the garage area with the staff sergeant for examination of a police cruiser. The cruiser, a 2018 Dodge Charger, was a marked police car displaying graphics adopted by the LPS. The SIU forensic investigator examined the interior rear seat area and found nothing of evidentiary value.
Video/Audio/Photographic Evidence [2]
Police Custody Video
Starting at about 12:33:47 p.m., a LPS cruiser was captured pulling into the police garage. WO #1 exited the police car and put on gloves. She was joined by two other LPS officers wearing tactical style uniforms. She opened the right rear passenger door of her police car. The Complainant, bare-chested, wearing orange underwear and jeans, handcuffed with his hands in front of his body, exited the police car. He stood against a nearby wall and was searched by WO #1. She appeared to be very thorough in her search, paying close attention to his pants and underwear. After the search was completed, the Complainant and the police officers exited the bay into the LPS station.
Starting at about 12:38:57 p.m., the Complainant entered the booking area in the company of WO #1 and two other LPS officers. He was processed by SO #2 and, once the interaction was completed, he was led out of the booking area by WO #1.
Starting at about 12:46:00 p.m., the Complainant was placed in a cell. He was restless in the cell; he kicked and punched the door of the cell. He spent some time sitting on the toilet, fidgeted, and engaged in unknown activities, placing his hands inside his pants at the crotch area multiple times. He pulled his outer pants down such that they were half-on, and then took them off. A black bracelet was seen on his right ankle. The Complainant appeared to be yelling or talking at times. At different intervals, LPS officers walked past his cell.
At 3:42 p.m., the Complainant was removed from his cell for a bail hearing.
Starting at about 3:50 p.m., the Complainant was returned to the cell in a very agitated state. Again, he fidgeted inside his orange underwear and pants at his genital area with his pants partially down.
Starting at about 4:27:50 p.m., the Complainant put his right hand to his mouth and appeared to ingest something before having a drink of water.
Starting at about 4:29:26 p.m., the Complainant again took something from his genital area with his right hand, put it in his mouth and then took another drink of water.
Starting at about 4:30:50 p.m., the Complainant openly fiddled with something white in colour at his genital area. He laid down on the bench on his right side and did move after that point.
Starting at about 5:00:40 p.m., a male LPS police officer walked by a cell and looked in.
Starting at about 5:20:48 p.m., SEW #2 walked by the cell, stopped, and looked in.
Starting at about 5:26:52 p.m., SEW #1 opened the door of the cell and attempts were made to rouse a seemingly unconscious Complainant. After that, multiple other LPS police officers and cadets arrived to assist the Complainant, clearly in medical distress. Several doses of Narcan were administered and CPR commenced. LPS officers took turns performing compressions.
Starting at about 5:38:52 p.m., firefighters arrived, followed by paramedics moments later. First-aid continued and, at 5:43:19 p.m., the Complainant was moved onto a waiting stretcher and removed from the cell block.
Police Communications Recordings
At 5:28 p.m., on September 1, 2023, an internal telephone call was made from the Detention Unit to the Communications Centre. A request was made for the EMS to be called for an unresponsive man [now known to be the Complainant] who was not breathing. Materials Obtained from Police Service
The SIU obtained the following records from LPS between September 3, 2023, and September 25, 2023:- Custody video;
- Detailed Call Summary;
- Information from computer-assisted dispatch;
- Notes – WO #1;
- Notes – WO #2;
- Notes – WO #3;
- Notes – SEW #1;
- Notes – SEW #2;
- Policy - Persons In Custody and Control;
- Policy - Transportation of Persons in Custody;
- Policy - Search of Persons in Custody;
- Policy - Safe Handling of Suspected Controlled Substances; and
- Policy - Medical Care and Accommodation of Persons in Custody.
Materials Obtained from Other Sources
The SIU obtained the following records from the following other sources: - The Complainant medical records from LHSC.
Incident Narrative
The evidence collected by the SIU, including video footage that captured the Complainant’s time in custody, gives rise to the following scenario. As was their legal right, the subject officials did not agree an interview with the SIU or the release of their notes.
The Complainant was arrested by WO #1 in the afternoon of September 1, 2023, for violating the term of a conditional sentence order. Against his surety’s wishes, the Complainant had left his residence. The Complainant was searched twice at the scene of his arrest and a glass pipe was seized. He was searched again by WO #1 at the police station. Nothing of note was located and the Complainant was lodged in a cell.
The Complainant had a quantity of fentanyl secreted on his person at the time of the aforementioned-searches, a fact which he denied when asked by SO #2 at his booking whether he was in possession of drugs. The Complainant decided to ingest the fentanyl after he had been denied bail and was returned to his cell. The time was about 4:30 p.m.
At about 5:30 p.m., as arrangements were being made to transport him to a correctional facility, the Complainant was located unresponsive in his cell. A special constable entered the cell and was unable to rouse the Complainant. SO #1 was alerted to the situation. He and others administered several doses of Narcan and performed CPR.
Paramedics arrived on scene at about 5:40 p.m. and took carriage of the Complainant’s care. He was transported to hospital where he was treated and eventually recovered from a 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.
221 Every person who by criminal negligence causes bodily harm to another person is guilty of
(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or(b) an offence punishable on summary conviction.
Analysis and Director's Decision
The Complainant suffered a drug overdose on September 1, 2023, while in the custody of the LPS. The SIU was notified of the incident and initiated an investigation, identifying the two officers with overall responsibility for the care of prisoners during the Complainant’s time in cells – SO #1 and SO #2 – the subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s overdose.
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 SO #2 or SO #1, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or contributed to his overdose. In my view, there was not.
There are no questions raised in the evidence regarding the lawfulness of the Complainant’s arrest and period of detention in LPS cells.
With respect to the care afforded the Complainant while in custody, I am satisfied that SO #2 and SO #1 comported themselves with due care and regard for his health and safety. The key issue is whether either subject official was derelict in their duties having regard to the fact that the Complainant was able to bring an illicit substance into the cell with him and ingest it. On this question, it should be noted that the Complainant had been searched three times before he was placed in a cell. The last of those searches, conducted by WO #1 at the station and captured on camera, gave the appearance of being a thorough search that included his pants and underwear. Ought the Complainant have been subjected to a strip search by his custodians? Perhaps, but I am not persuaded that their failure to do so was a markedly unreasonable decision. As the Supreme Court of Canada made clear in R v Golden, [2001] 3 SCR 679, strip searches should only be performed in exceptional circumstances given their inherently degrading nature. The Complainant had denied being in possession of drugs and appeared in control of his faculties when he was processed at the station. On this record, I am unable to reasonably conclude that this was a clear case demanding a strip search. It is also important to note that the Complainant’s custodians acted quickly to, first, discern the fact he was in acute medical distress and, second, provide emergency medical care.
For the foregoing reasons, I am satisfied that neither subject official transgressed the limits 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: November 2, 2021
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.