Director's Report Details

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release 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 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:

• subject officer name(s)
• witness officer name(s)
• civilian witness name(s)
• 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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.

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into the serious injury reportedly sustained by a 52-year-old man while in police custody on August 22^nd, 2017.

Notification of the SIU

At approximately 12:25 a.m. on Wednesday, August 23^rd, 2017, the Waterloo Regional Police Service (WRPS) contacted the SIU and relayed the following information:

On Tuesday, August 22^nd, 2017, the Complainant was released from custody following a bail hearing in the City of Kitchener. At about 5:10 p.m., the WRPS and EMS responded to a report of a male party, later identified as the Complainant, who was either injured or passed out at an address in the City of Kitchener. The Complainant refused medical attention, however did accept a bandage for an injury to the back of his head from EMS personnel. The WRPS dispatched an officer, [later identified as Witness Officer (WO) #1], who offered the Complainant a ride to a shelter located in the City of Kitchener, and the Complainant accepted.

At about 5:50 p.m., the WRPS was contacted by the shelter and advised that the Complainant was drunk and disruptive and the shelter requested that the police remove him from the premises.

The WRPS re-attended and, while speaking with the Complainant on the front step area of the shelter, the Complainant fell. WO #1 arrested the Complainant for public intoxication and subsequently returned him to the police station, where he was lodged in a cell.

At about 9:30 p.m., while conducting cell checks, a WRPS special constable heard a thud sound and located the Complainant on the cell floor having what appeared to be a seizure. The EMS was contacted and the Complainant was transported to the hospital where he was diagnosed as having two areas of brain bleeding. The Complainant was admitted to the hospital for further monitoring.

The WRPS cell and WO #1’s cruiser, which was used to transport the Complainant, were secured pending the arrival of the SIU.

The Team

Number of SIU Investigators assigned: 5

Number of SIU Forensic Investigators assigned: 1

Complainant:

52-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

Police Employee Witnesses

PEW #1 Interviewed, notes received and reviewed

PEW #2 Interviewed, notes received and reviewed

Subject Officers

SO #1 Interviewed, but declined to submit notes, as is the subject officer’s legal right.

On the morning of August 23^rd, 2017, the Complainant was released from custody at the courthouse in the City of Kitchener following a bail hearing.

By mid-afternoon, the Complainant was highly intoxicated and had fallen down in the vicinity of Brenton Street in the City of Kitchener and a bystander contacted 911. EMS personnel attempted to assist the Complainant, but he refused treatment. The EMS then requested police assistance, and WO #1 was dispatched. Upon arrival at the scene, WO #1, in an attempt to house the Complainant in a safe location, took him to a shelter, where the Complainant had been court ordered to reside in any event.

The Complainant was initially accepted at the shelter, but it quickly became apparent that he was too intoxicated to remain as the staff were unable to deal with him. The shelter staff was also concerned that the Complainant was at risk of falling and injuring himself, due to his intoxicated state, as a result of which they contacted the WRPS to remove the Complainant.

WO #1 returned to the shelter, and while he was speaking with staff members about the Complainant’s situation, the Complainant was observed to fall down in the hallway of the shelter. WO #1 then decided to arrest the Complainant for being intoxicated in a public place contrary to section 31 (4) of the Liquor Licence Act, as the Complainant was clearly unable to care for himself.

WO #1 transported the Complainant to the WRPS central station, where he paraded him in front of the SO. The SO booked the Complainant into the station and lodged him in a standard cell. After a period of being in the cell, the Complainant appeared to be having a seizure, during which he fell backwards onto the floor and landed between the cell wall and the toilet. The Complainant was unable to break his fall, due to the seizure he was experiencing at the time, and appeared to hit his head on either the floor or the toilet. The Complainant’s head was then observed to be bleeding and an ambulance was requested and the Complainant was transported to the hospital where he was assessed.

Nature of Injuries / Treatment

A CT scan was performed on the Complainant’s head, revealing a subarachnoid hemorrhage and cerebral contusions.

According to the medical records, the Complainant was not a candidate for surgery and none was performed. The Complainant remained in hospital until September 5^th, 2017, at which time he was discharged to a retirement home for support, in the hope that his condition would improve over time.

The Scene

On August 23^rd, 2017, at 2:15 a.m., an SIU Forensic Investigator (FI) arrived at the WRPS central lock up, located at 145 Fredrick Street in the City of Kitchener. Upon arrival, cell #9, where the Complainant had been lodged, was observed to have been locked and sealed using a WRPS Seal, which had been placed there by the SO.

The cell and the booking area where the closed circuit television (CCTV) monitors were located were photographed. A scale diagram (below) was completed.

A small pooling of what appeared to be blood was located on the floor beside the toilet and the north wall. There was also what appeared to be a blood transfer stain on the north wall and on the mattress. Swabs were taken from both locations.

Photos of Cell Area

At 4:30 a.m., the SIU FI examined and photographed the WRPS cruiser which had been used by WO #1 to transport the Complainant. Nothing of evidentiary value was located in the prisoner compartment of the cruiser.

At 11:15 a.m., the SIU FI arrived at the shelter where the Complainant had been housed. The area where the Complainant was reported to have fallen and struck his head was examined and photographed. Nothing of evidentiary value was observed.

Scene Diagram

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

The booking and the cell area videos of the WRPS station were received and reviewed. The following is a summary:

• The relevant video commences at 6:16 p.m., when the WRPS cruiser arrives in the sally port. WO #1 exits the driver’s seat and assists the Complainant from the rear passenger compartment
• At 6:17 p.m., WO #1 and the Complainant arrive at the booking desk, where they are met by PEW #2, PEW #1, and the SO
• At 6:24 p.m., PEW #2 and PEW #1 escort the Complainant to a cell
• At 9:22 p.m., the Complainant can be seen standing at the cell door and he begins to strike the door with his right palm and his buttocks
• At 9:23 p.m., PEW #2 arrives at the cell door and has a discussion with the Complainant
• At 9:25 p.m., the Complainant is still standing at the cell door, he looks up at the ceiling of the cell and he begins to turn slowly to his left while still looking up. The Complainant’s left hand begins to move up and down quickly as if he is waving. The Complainant’s upper body tilts backward and his weight goes off center and he falls backward, landing on his buttocks between the toilet and the cell wall and his left leg begins to shake. He remains lying prone on the floor
• At 9:26 p.m., PEW #2 arrives in the cells
• At 9:35 p.m., the Region of Waterloo EMS arrives at the cell
• At 9:37 p.m., the Complainant is picked up off the cell floor and placed on a stretcher, and
• At 9:41 p.m., the Complainant is removed from the cell area and taken to the hospital

No other video or audio recordings of the various locations where the Complainant had fallen earlier could be located.

Communications Recordings

The 911 calls and police transmission communications recordings were obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the WRPS:

• Computer Aided Dispatch (CAD) Details (x2)
• Event Details
• Booking and Cell Video from police station
• Letter to SIU re Disclosure
• Notes of WO #1 and PEW #s 1 and 2
• Occurrence (Person) Report for the Complainant
• Occurrence Details (x2)
• Previous Certificate of Offences involving the Complainant
• Previous Crown Brief Synopsis involving the Complainant
• Previous Event Details involving the Complainant
• Previous General Reports involving the Complainant
• 911 Calls and Police Communications Transmission Recordings, and
• Procedure: Prisoner Care and Control

The SIU also obtained and reviewed the following materials from other sources:

• Medical records of the Complainant, and
• Incident report from shelter

Section 31(4), Liquor Licence Act – Intoxicated in a public place

31 (4) No person shall be in an intoxicated condition,

1. In a place to which the general public is invited or permitted access; or
2. In any part of a residence that is used in common by persons occupying more than one dwelling in the residence

Sections 219 and 221, Criminal Code - Criminal negligence Causing Bodily Harm

219 (1) Every one is criminally negligent who

1. in doing anything, or
2. 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 an indictable offence and liable to imprisonment for a term not exceeding ten years.

On August 22^nd, 2017, following a period of time in which he was lodged in the Waterloo Regional Police Service (WRPS) cells, the Complainant was transported to the hospital where he was diagnosed with a subarachnoid hemorrhage (bleeding into the compartment surrounding the brain) and cerebral contusions (bruises of the brain tissue). The purpose of this investigation was to determine if any member of the WRPS was responsible for the injuries sustained by the Complainant, or if the WRPS, under the supervision of the subject officer (SO), was criminally negligent in its care of the Complainant, resulting in his injuries.

While the Complainant himself had no memory of any involvement with police on August 22^nd, 2017, or indeed any recall of August 22^nd, 2017 at all, with the assistance of two civilian witnesses (CWs), one police and two police employed witnesses (PEWs) and the SO, along with the communications recordings, a clear picture of what occurred on August 22 involving the Complainant became quite clear. There is no dispute as to the facts.

On August 22^nd, 2017, the Complainant, after having been arrested for shoplifting, was taken to court in the City of Kitchener, where he had a bail hearing and was released with a condition that he reside at a shelter in the City of Kitchener.

Following his release, the Complainant initially checked in at the shelter, and then went out into the community where he became intoxicated. The Complainant, based on all those interviewed who were familiar with him, suffered from severe alcoholism and seizures. The Complainant had revealed to others in the past that he drank in order to avoid the seizures, which he felt did not afflict him while he was actively intoxicated.

At 2:38 p.m., a 911 call was received by the WRPS reporting that the caller had located a man lying outside of St. Matthews Church, in the parking lot, and he was bleeding. The caller, who did not identify herself, indicated that she did not see the man fall, but assumed he had done so, as she observed blood on the sidewalk, on the stairs, and on the man. She described the male as confused and drowsy, with his eyes closed but breathing, and she believed that he had sustained a concussion. An ambulance was dispatched to the scene.

Upon arrival, paramedics located the Complainant with an actively bleeding injury to the back of his head. The Complainant, however, refused treatment and the paramedics contacted the WRPS, with witness officer (WO) #1 being dispatched as a result.

Upon arrival, WO #1 was told by paramedics that the Complainant had a cut to the rear of his head. WO #1 also noted that the Complainant had an odour of alcohol on his breath and was unsteady on his feet. Since the Complainant refused either to be assessed by paramedics, or to be transported to hospital for treatment, WO #1 requested that paramedics bandage the Complainant’s head and he then transported the Complainant back to the shelter.

While the Complainant was at the shelter, he was observed to be intoxicated with both an unsteady gait and an odour of alcohol on his breath. The shelter was aware, through prior experience, that the Complainant had fallen numerous times in the past and that he often struck the back of his head, with one staff member specifically recalling that he had witnessed the Complainant fall onto the concrete just the week prior and strike his head, during a seizure. During the Complainant’s stay on this date, he was observed by staff to lose his balance and stumble into a staff member and then sway backwards into a second staff member.

Shelter staff then contacted the WRPS and requested that the Complainant be removed, as he was in contravention of shelter rules in that he could not be present in the facility while intoxicated. WO #1 was again dispatched to the shelter where, while he was speaking with a staff member, a civilian witness observed the Complainant to lose his balance and fall quite violently backwards causing the right side of his head to strike the wall. The witness then observed a blood stain on the wall where the Complainant had made contact, and a patch of blood on the back of the Complainant’s head and in his hair.

WO #1 indicated that he was told by shelter staff that no intoxicated person could be at the shelter, especially if they were unable to care for themselves, and, as the Complainant had a lengthy history of falling down, the shelter did not want him there in case something was to happen. WO #1 then approached the Complainant, where he had fallen and was lying on the floor and, when shelter staff refused to assist, WO #1 picked the Complainant up and arrested him for public intoxication.

As a result of the shelter’s refusal to accept the Complainant into their facility, the Complainant’s refusal to go to hospital, and the fact that the detox centre was full and had no beds available, WO #1 indicated he had no other reasonable alternative for the safe care of the Complainant other than to arrest him for being intoxicated in a public place, as he appeared unable to care for himself. WO #1 then transported the Complainant to the police station.

While being booked into the station, WO #1 told the booking sergeant that as he had observed the Complainant fall down some stairs at the shelter, he believed that the Complainant would be at risk out in the community and that was why he had eventually arrested him, after exhausting all other options.

The WRPS station where the Complainant was eventually booked in did not have a soft or padded cell, so the Complainant was lodged into Cell 9, which is normally reserved for intoxicated persons and which is closest to the booking area. The cell area for the WRPS is both audio and video monitored at all times and the monitors are visible to the booking sergeant. Additionally, the Complainant was physically observed by a special constable every 30 minutes, when the constable walked through the cell area and then made a note on the detention sheet, confirming that they had done so.

At 9:30 p.m., the SO observed the Complainant rocking back and forth against the cell door and he alerted PEW #2, who then went and made a physical check, reporting back that the Complainant wished to be released and that he had told the Complainant to sleep it off in the cells and that he would be released in a few hours.

While the SO was sitting at the desk with the cell monitors, he heard a noise coming from the cell area and he observed the Complainant lying on the floor in Cell 9 and both he and the two Special Constables attended the cell area, where they observed the Complainant appearing to have a seizure, with his whole body vibrating and his head between the wall of the cell and the toilet.

An ambulance was immediately requested and the Complainant was transported to the hospital where he was assessed as having sustained a subarachnoid hemorrhage and cerebral contusions.

Upon arrival at Cell 9 at the WRPS station, SIU forensic investigators observed blood both on the mattress on the bunk inside the cell, as well as a pool of blood between the toilet and the wall, where the Complainant had been located. While it is clear that the Complainant’s head was bleeding in the cell, it is equally clear that he had already sustained an injury to that same area of his head earlier in the day at St. Matthews Church. That injury was still bleeding when he fell at the shelter and again while in the cell. On this information, it is clear that while the Complainant’s injury may have been exacerbated, or may have simply started to bleed again while in the cell, the injury to his head had been pre-existing and there is no question that the injury was not directly caused by any police officer.

The only question to be determined, then, on these facts, is whether or not the WRPS, under the supervision of the booking sergeant, the SO, who exercised authority and control over the cell area during the Complainant’s stay, was criminally negligent contrary to s.219 of the Criminal Code and therefore caused bodily harm to the Complainant (contrary to s.221).

The offence of ‘criminal negligence’ has the following essential elements:

219. (1) Everyone is criminally negligent who

1. In doing anything, or
2. 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.

The Ontario Court of Appeal, in its decision of R. v. Sharp (1984), 12 CCC (3d) 428 (Ont. C.A.), defined the legal requirements of ‘criminal negligence’ as follows:

Criminal negligence does not require proof of intention or deliberation, indifference being sufficient. …Thus, the accused may be convicted on proof of driving amounting to a marked and substantial departure from the standard of a reasonable driver in circumstances where the accused either recognized and ran an obvious and serious risk to the lives and safety of others or, alternatively, gave no thought to that risk.

Although the decision in R. v. Sharp relates specifically to criminal negligence in the act of driving, it is generally applicable to all actions wherein there is shown to be “a marked and substantial departure from the standard of a reasonable person in circumstances” where the accused “showed a reckless disregard for the lives and safety of others” in doing anything, or omitting to do anything, which they have a legal duty to do.

With respect to the conduct of the SO when the Complainant arrived at the station and was subsequently lodged into the cells, I find that there is no evidence to establish a “wanton or reckless disregard for the lives and safety of others” on the part of the SO, as is required to make out the offence of criminal negligence, nor can I find any evidence that the SO either did anything, or omitted to do anything, which he had a legal duty to do, for the following reasons:

• Based on the information provided by WO #1 during the booking process, the SO was made aware that WO #1 had made every effort to safely house the Complainant, including attempts to have him go to the hospital, to house him at the shelter, and to get him a bed at the detox centre, with his being arrested only as a last resort in order to ensure the Complainant’s safety
• The SO, although aware that the Complainant had an injury to the back of his head, was also made aware that the Complainant had refused medical treatment and had been medically assessed by paramedics
• While no soft or padded cell was available to house the Complainant, he was lodged in the cell closest to the booking hall which is normally used to house intoxicated persons
• The SO was unaware that the Complainant was prone to falling, as he had never done so during the ten to 20 times that the Complainant had been in the cells under the SO’s watch in the past
• The Complainant was constantly audio and video monitored, while in the cells, as well as being subjected to a physical check every 30 minutes
• As soon as there was any indication of an issue, which occurred twice, a special constable immediately attended the cell to deal with the Complainant
• Once the Complainant experienced a seizure and fell, an ambulance was immediately requested and immediately arrived to transport the Complainant to hospital; and, finally
• There is no evidence that the injuries sustained by the Complainant were caused during his stay in the cells, as opposed to as a direct result of his earlier falls either at the church or at the shelter. On the evidence before me, it is clear that the Complainant was already injured prior to his arrival at the cells

Based on all of the evidence, it is clear that WO #1 took every possible step to ensure that the Complainant was properly and safely housed and it was only when the Complainant refused to go to hospital, which he could not be forced to do, and every other option was unavailable to him, that he was arrested and lodged in the cells.

Furthermore, the SO clearly fully exercised his duty of care to the Complainant during his stay in the cells, with constant and vigilant monitoring of his condition and any needs that he might have. The response to his fall/seizure was immediate and medical attention was immediately called for and provided.

Finally, there is no evidence by which I can be satisfied on reasonable grounds that there is any causal connection between the actions, or lack of action, of any police officer and the injuries sustained by the Complainant.

On this record, not only is there no evidence to satisfy me that any police officer involved with the Complainant committed any criminal offence, but I find that on all of the evidence both WO #1 and the SO provided the Complainant with the best of care available to them, when all other resources proved to be unavailable. As such, I find that there is no basis here for the laying of criminal charges and none shall issue.

Date: May 31, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit