Director's Report Details

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.

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: 

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”).

Notification of the SIU [1]

On September 28, 2023, at 10:55 p.m., the Niagara Regional Police Service (NRPS) contacted the SIU with the following information.

On September 28, 2023, at 4:45 p.m., NRPS officers attended a residence in Niagara Falls for an ‘unwanted man’. The man – the Complainant – was located and arrested without incident for break and enter. At 5:15 p.m., the Complainant was transported to the NRPS custody facility in Niagara Falls, where he was searched and placed in a holding cell. At 6:12 p.m., a check revealed the Complainant to be unconscious. At 6:21 p.m., Emergency Medical Services (EMS) were called, and they transported the Complainant to the Greater Niagara General Hospital (GNGH). He was subsequently transferred to the Intensive Care Unit. Various packets of drugs were located within his rectum. It was suspected that one of the packets had broken, resulting in his medical distress.

The Team

Date and time team dispatched: 09/29/2023 at 9:23 a.m.

Date and time SIU arrived on scene: 09/29/2023 at 10:28 a.m.

Number of SIU Investigators assigned: 3

The Scene

The events in question transpired inside the NRPS 2 District Central Holding facility.

Forensic Evidence

Health Canada Submissions

The NRPS, at the request of SIU investigators, submitted the packages removed from the Complainant’s rectum by medical staff to Health Canada for analysis. A report of the results of their examination remains pending.

Video/Audio/Photographic Evidence [3]

NRPS Custody Video

On September 28, 2023, a NRPS cruiser was captured entering the sally port. The Complainant was taken from the cruiser by three police officers. He was handcuffed behind his back and his head was slumped forward such that his chin touched his chest. He was led into the booking area.

The Complainant was lethargic, and responded to questions slowly and with slurred speech. He was told he was under arrest in connection with a warrant for ‘break and enter’. When questioned if he had any injuries, his response was inaudible. When asked of any mental health issues, he responded, “All of the above.”

Following the booking process, the Complainant was placed in a cell and lightly boxed with closed fists on the door. He appeared to bang his fist on the slot in the door and squatted against the wall across from the bench. His head was consistently slumped towards his chest, and he remained in a squatted position. He paced for a short time before he returned to a bent position over the bench. At times he squatted and bounced lightly with his knees, close to his chest.

Starting at about ten minutes from when he entered the cell, the Complainant knelt in a tight fetal position, his back to the cell door, with forehead and elbows placed on the floor. He rested his buttocks on his heels while his forehead remained on the floor. His movements became very subtle except for shallow breaths.

Starting at about 27 minutes from when he entered the cell, a sliver of light entered the cell as if the food tray slot opened. A shadow passed through the light and a special constable entered the cell while another special constable stood outside the threshold. The Complainant was shaken a few times and he appeared to rouse slightly. Another special constable entered the cell as the Complainant was rolled onto his left side in a fetal position. There appeared to be vomit on the floor where the Complainant was hunched over.

A special constable administered a dose of Narcan to the Complainant, but he did not react. The Complainant’s legs were straightened out and he was placed onto his back.

Niagara EMS entered the cell. A sternum rub on the Complainant was ineffective. Four paramedics attended to the Complainant until he regained consciousness. He appeared to drift in and out of consciousness for the next several minutes. The paramedics removed the Complainant from the cell.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the NRPS between September 29, 2023, and November 9, 2023:

• Notes – SEW #1;
• Notes – SEW #2;
• Notes – SEW #3;
• Notes – SEW #4;
• Notes – WO #1;
• Notes – WO #2;
• Policy - Persons in Custody.
• Cell video footage;
• Arrest Warrant – the Complainant; and
• Occurrence Reports.

The material events in question, clear on the evidence collected by the SIU, may briefly be summarized. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.

In the afternoon of September 28, 2023, officers responding to a break and enter call at a residence in Niagara Falls arrested the suspect – the Complainant. The Complainant was subsequently released at the scene in connection with the break and enter investigation but taken into custody pursuant to an outstanding arrest warrant for a different break and enter. Searched by one of the arresting officers, drug paraphernalia was located in the pockets of the Complainant’s jeans and confiscated by the officers.

The Complainant was transported to a NRPS holding facility where he was again searched and lodged in a cell. The time was about 5:46 p.m.

At about 6:16 p.m., a special constable conducting a cell check found the Complainant unresponsive in his cell. He was breathing but could not be roused. Paramedics were called and naloxone was administered by a special constable.

The Complainant was transported to hospital where he was treated for a drug overdose. Medical staff had detected and removed from his rectum packets of suspected drugs.

Section 215, Criminal Code - Failure to Provide Necessaries

(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.

(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

(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 

The Complainant lapsed into acute medical distress while detained in a cell of the NRPS on September 28, 2023. The SIU was notified of the incident and initiated an investigation, naming the officer with overall responsibility for the care of prisoners – 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 medical episode. In my view, there was not.

At the time of the events in question, the Complainant was lawfully in custody on the strength of a warrant that had been issued in August 2023 authorizing his arrest on charges of break and enter.

With respect to the care afforded the Complainant while in police custody, I am satisfied that his custodians comported themselves with due regard for his health and well-being. Not more than about 20 minutes elapsed from the moment the Complainant assumed a crouched position on the cell floor and the moment he was found in distress and attended by special constables. Paramedics were promptly called, and a dose of naloxone was administered. The fact that the Complainant was lodged in cells with drugs in his possession is subject to scrutiny but does not alter the liability calculus. These substances, apparently secreted in his rectum, would not have been discovered but for a strip search. However, it is not at all clear that there were grounds to lawfully conduct such a search. Per the Supreme Court of Canada’s decision in R v Golden, [2001] 3 SCR 679, strip searches cannot be carried out as a matter of routine. Rather, owing to their intrusive nature, they can only be justified where there are reasonable grounds to believe they are necessary in the particular circumstances of an arrest. The Complainant had not been arrested for a drug offence. Moreover, though he appeared lethargic at times, the Complainant was otherwise coherent in his dealings with the involved officers, denied recent drug use, and behaved as he normally behaved when he had previously been arrested. All of which is to say that the decision to forego a strip search was not an unreasonable one.

In the result, there are no reasonable grounds to conclude that the SO or any of the involved officers 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. The file is closed.


Date: January 22, 2024

Electronically approved by

Joseph Martino
Director
Special Investigations Unit