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 injuries sustained by a 38-year-old male on March 1, 2016 following his arrest for public intoxication.

Notification of the SIU

On March 2, 2016 at 10:45 a.m., Sarnia Police Service (SPS) notified the SIU of the custody injury of the Complainant.

SPS reported that on March 1, 2016, at 8:32 p.m., the Complainant was brought to the SPS station after being arrested at the Inn of the Good Shepherd for intoxication. The Complainant became resistant and was grounded in the booking room at 8:37 p.m. The Complainant was placed in a cell overnight, and in the morning complained of a sore leg. He was taken to the hospital where he was diagnosed with a fractured tibia. The Complainant was later transferred to a London hospital for further treatment.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant

Interviewed, medical records obtained and reviewed

Civilian Witnesses

CW #1 Interviewed

CW #2 Interviewed

Witness Officers

WO #1 Interviewed

WO #2 Interviewed

WO #3 Interviewed

WO #4 Interviewed

Subject Officers

SO Interviewed, and notes received and reviewed

The Scene

Cell seven at the SPS station is a rectangular room with a solid metal door with a window at face height. The cell is a large cell with no bed, there is a toilet with a small sink. A video camera is secured on the cell wall. The camera is motion activated but does not have audio capability.

CCTV

Sally Port:

This video depicts an SPS marked SUV arriving in the sally port. At 8:30 p.m., the Complainant was taken out of the rear passenger seat by the arm by the SO and escorted into the booking area by the SO and WO #1.

Video Recordings of the Booking Area:

The booking cell video was not equipped with audio capability.

The video showed that at 8:20 p.m., WO #1 and the SO entered the booking hall with the Complainant. The Complainant was handcuffed with his hands behind his back and appeared unsteady on his feet. The video footage revealed that the Complainant was not compliant with WO #1 and the SO. He persistently walked beyond the designated area, a black line marked on the floor in front of the booking counter. The SO pulled the Complainant back several times behind the line.

WO #1 took hold of the Complainant’s right arm to stop him from moving. The Complainant turned toward WO #1. The SO appeared to be removing small items from the Complainant’s pockets and placing them on the booking counter. The Complainant was actively resisting the search as he moved around making it difficult for the SO to search him.

At 8:35:26 p.m., WO #2 arrived in the booking area and stood behind the booking counter with a document supported on a clip board. WO #2 walked from the booking counter and began to make notations on the document. The Complainant continued to turn toward WO #1. WO #1 stepped back away from the Complainant, referring to her notebook while she spoke to WO #2. WO #1 then returned to her original position beside the Complainant.

At 8:37:21 p.m., the SO began to search the Complainant’s front waist area. He resisted the search again by moving around making it problematic for the SO to search him.

At about 8:37:37 p.m., WO #2 leaned forward to say something to the Complainant. Moments later, the Complainant was moved out of the camera’s view by the SO and WO #1. WO #2 followed behind WO #1 and the SO out view of the camera.

At 8:44:35 p.m., the recording stopped.

Cell Seven:

In cell seven the video recordings were motion sensitive with no audio capability.

At 8:37:41 p.m., the Complainant entered the cell ahead of the SO. The Complainant’s hands were handcuffed behind his back. The Complainant was actively resistant as he tried to pull away from the SO’s grasp. The Complainant can be seen bending forward and away from the SO. The SO was using both his hands to maintain control of the Complainant’s left arm.

WO #2 can be seen standing outside the cell door watching what was going on inside the cell. WO #1 appeared in the camera’s view and moved into the cell to assist the SO.

At 8:37:48 p.m., the video images revealed the Complainant actively resisting WO #1 and the SO as they tried to maneuver him to the floor. The Complainant tilted backwards as if to prevent being propelled forward by WO #1 and the SO. WO #1 appeared to have her right leg in front of the Complainant’s right leg. The SO can be seen widening his stance to rotate the Complainant forward to the left in a downward motion toward the floor.

At 8:37:52 p.m., the Complainant was propelled forward by the SO and all three of them landed face down on the cell floor. It appeared that the SO landed on top of the Complainant’s body. The Complainant’s left leg can be seen protruding out between the SO’s legs. WO #1 can be seen on the floor near the Complainant’s right side. The video images revealed WO #1 and the SO continuously struggling with the Complainant on the floor as he thrashed about.

The video images showed the SO struggling with the left side of the Complainant’s body. WO #1 was struggling with the Complainant’s right side as she tried to restrain him on his stomach. She quickly situated herself to the Complainant’s head area. The Complainant’s right leg was straight out and his left leg was drawn towards his chest as he moved sideways on the floor. The SO appeared to reach down to one of the Complainant’s legs. The SO moved the Complainant’s lower left leg down toward the right foot.

The SO can be seen searching the Complainant’s waist area. WO #2 stepped into the cell and removed the Complainant’s white running shoes. WO #2 can be seen tossing the Complainant’s shoes out into the hallway outside the cell. The SO and WO #1 rolled the Complainant from his stomach onto his right side. WO #2 remained standing at the cell door as he watched WO #1 and the SO continue the search.

The Complainant’s belt was removed by the SO who handed it to WO #2. WO #2 tossed the belt into the hallway. The Complainant was then moved onto his left side by WO #1 and the SO. The search of the waist and pockets was continued by the SO.

At about 8:40:00 p.m., the SO appeared to hand something to WO #2 who took the object and left the cell.

At 8:40:06 p.m., WO #2 returned to the cell. He reached down and retrieved something from the floor while WO #1 and the SO continued their search of the Complainant.

At 8:40:49 p.m., the Complainant drew his left knee up toward his stomach. All three police officers converged toward the Complainant’s upper torso. WO #1 stood up and quickly exited the cell out of sight. The SO and WO #2 remained restraining the Complainant on the floor. WO #1 returned to the Complainant’s front torso area and WO #2 returned to the doorway.

WO #1 and the SO removed the Complainant’s jacket and handed it over to WO #2. The SO and WO #1 removed the handcuffs from the Complainant’s wrists. The SO can be seen leaving the cell first because he was furthest from the cell door. WO #1 was the last to leave and left with apparent caution.

At 8:43:56 p.m., the Complainant can be seen pushing himself up from the floor to sit up but could not. He remained on his side as he grabbed his left leg displaying apparent pain. At one point he tried standing but his left knee buckled and immediately collapsed on the floor near the toilet. He reached with his right hand to grab his left knee. Throughout the video the Complainant tried to stand but collapsed to the floor several times grabbing his left knee. The Complainant moved across the floor and lay down on his left side at the base of the cell door. He remained in that position until he was released from custody in the morning.

During the Complainant’s incarceration, the video evidence indicated that the Complainant made efforts to get the attention of a cell officer by hitting the cell door with his right hand. Unfortunately there were no audio recordings surrounding this event. It is unknown whether the Complainant made enough noise in his cell to alert a cell officer or if he shouted to report he was injured. However it is clear in the video evidence that the Complainant showed signs of a potential knee injury and that no cell officer opened the cell door to physically check on his wellbeing.

Cell Check Records

There are a total of nine entries in the Contact with Prisoner log for Tuesday, March 1 and Wednesday, March 2, 2016 with notations by the cell check officers. Of the nine contacts only five might be considered as meaningful where someone was seen on the cell video standing just outside the window of the cell door for a period of time to check on the Complainant’s wellbeing.

According to the Prisoner Log at times of 10:30 p.m., 1:45 a.m., 5:00 a.m. and 6:00 a.m., there was no observable evidence on the cell seven video suggesting that any cell officer looked in the window to view the Complainant who was lying near the bottom of the door.

On July 20, 2016, when it became known to the SIU that some physical cell checks may not have occurred, the SIU contacted SPS and requested more video for the exterior of cell seven. SPS reported the video no longer was in existence because the retention period was less than one month.

Materials obtained from Police Service

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

• Arrest Report;
• Background Event Chronology;
• CPIC for the Complainant;
• Lock-up Admittance Record;
• Notes of WO #1 and WO #3;
• Person History for the Complainant;
• Policy - Arrest, Detention, Transport, Care of Prisoners;
• Policy - Use of Force;
• Provincial Offence Notice-Intoxicated in a Public Place;
• Provincial Offence Notice-Open Liquor 1;
• Provincial Offence Notice-Open Liquor 2;
• Training Attendance Record-WO #1;
• CD of sally port video;
• CD of booking area video;
• CD of prisoner insertion and incarceration video for the Complainant; and
• Will State for WO #2.

On March 1, 2016, the Complainant attended The Inn of the Good Shepherd Lodge, a homeless shelter in Sarnia. Because of his behaviour at the shelter, the SPS was notified.

When the SO and WO #1 arrived at the shelter, they found the Complainant to be agitated and belligerent. Both officers detected the strong odour of an alcoholic beverage on the Complainant’s breath and he displayed clear signs of intoxication, including unsteadiness. As the Complainant was evicted from the shelter, the officers canvassed whether the Complainant had anywhere else to go. The Complainant said he did not. Concerned about the winter weather, the SO and WO #1 arrested the Complainant for being intoxicated in a public place, with a view to bringing him to the police station and releasing him in the morning.

The Complainant was taken to the SPS station. During the drive, the Complainant was volatile and challenged the SO to fight once they arrived at the station. At the SPS station, the Complainant was paraded before WO #2. He continued to be aggressive and uncooperative, and would not permit the SO or WO #1 to conduct a search in the booking area. WO #2 directed the Complainant to be searched in cell seven, commonly known as the “drunk tank”.

In cell seven, the Complainant resisted the officers’ attempts to search him while in a standing position. Because of the Complainant’s behaviour, WO #2 directed that the Complainant be searched on his knees or on the floor on his stomach. The Complainant was directed several times to get on his knees, but refused. In an effort to bring the Complainant down to the floor, the SO and WO #1 placed their legs in front of the Complainant’s knees. The SO was able to pull the Complainant forward, but the Complainant stepped over WO #1’s leg at the time. All three lost their balance and fell to the floor. The SO, being a large man, landed on top of the Complainant, with the Complainant’s left leg protruding out from between the SO’s legs. Although the Complainant continued to struggle once on the ground, the SO and WO #1 completed the search. At no time during the search did the Complainant indicate that he had been injured.

Contrary to SPS policies, limited cell checks were done throughout the night. Accordingly, it was only the next morning, when the Complainant was to be released, that it was discovered that he was in significant pain and could not put any weight on his left leg. WO #3 called for an ambulance and the Complainant was transported by ambulance to the hospital where he was assessed and later transferred to a London hospital for surgery. It was discovered that the Complainant’s left knee was shattered. Surgery was performed and the bone and joint reconstructed. Because of the delay in treatment, however, the Complainant’s lower left leg is now non–functioning and permanently damaged and he may lose his leg through future amputation.

Section 25(1), Criminal Code - Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

1. as a private person,
2. as a peace officer or public officer,
3. in aid of a peace officer or public officer, or
4. by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Section 31(4), Liquor Licence Act - Intoxication

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

1. in a place to which the general public is invited or permitted access;

Section 31(5), Liquor Licence Act - Arrest without warrant

(5) A police officer may arrest without warrant any person whom he or she finds contravening subsection (4) if, in the opinion of the police officer, to do so is necessary for the safety of any person.

Section 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. causes bodily harm to the complainant,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

Section 219, Criminal Code - Criminal negligence

(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.

Definition of duty

(2) For the purposes of this section, duty means a duty imposed by law.

Section 221, Criminal Code - Criminal negligence causing bodily harm

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 March 1^st, 2016, the complainant was arrested at the Inn of the Good Shepherd by the SO and WO #1. While in police custody, the Complainant received a serious injury that has left him without the use of his left leg, and he may in future lose the leg altogether.

WO #1 and the SO responded to that call from the Inn of the Good Shepherd to remove the Complainant and made every effort to re-accommodate the Complainant somewhere other than jail. When that was unsuccessful, he was arrested for being Intoxicated in a Public Place pursuant to the LLA. There has been no complaint with respect to the police treatment of the Complainant while at the Inn or in the course of his arrest and removal from the Inn.

The statements of the SO and WO #1, as well as of the booking sergeant, WO #2, are consistent in their recall of the events. All three of these officers indicated that upon arrival at the Sarnia police station, the Complainant was intoxicated, belligerent and uncooperative. They indicate that the Complainant, because he could not be searched in the booking hall due to his obstructive behaviour, was taken to cell seven to be searched, as that cell is considered to be a safer location in which to search aggressive or resistant prisoners since it is larger than a normal cell and does not contain any bunks. When the Complainant continued to resist being searched, WO #2 directed the officers to take him down to the floor and search him on his knees or stomach. Both WO #1 and the SO indicated in their statements that this method was considered to be the safest method by which to search an aggressive prisoner, for all persons involved, including the prisoner and the searching officers. This maneuver was attempted by the officers on a number of occasions, in the presence of WO #2, until the Complainant eventually went to the floor where he was then searched.

The cell video depicts what occurred inside cell seven at the time in question. At 8:37:48 p.m., the Complainant is seen actively resisting while WO #1 and the SO try to maneuver him to the floor, and they are unable to do so. At 8:37:52 p.m., the SO is seen propelling the Complainant forward and all three of them land face down on the cell floor. The video reveals that the Complainant continued to struggle once down on the floor. It appears from the video that the SO may have landed on top of the Complainant’s body as his left leg can be seen protruding out from between the SO’s legs. It is unfortunate that there is no audio on the cell recording, but it certainly appears that the Complainant does not seem at that time to be suffering from any injury. It is important to note that the Complainant is handcuffed during the entirety of this contact, until just before the officers exit the cell.

During the remainder of the Complainant’s stay at the police station, there does not appear to have been any further physical contact with officers. As such, it is clear that the Complainant’s injury had to have occurred either during, or before, the search in cell 7. Since the Complainant is seen standing on both legs in the booking hall, it is clear that he had not been injured at that point. All three officers stated that at no time during the interaction in cell 7 did the Complainant complain of any pain or injury. One can only speculate that possibly he was so intoxicated that he was unaware at that point of his injury. As early as 8:43:56 p.m., however, the motion activated video depicts the Complainant trying to push himself up from the floor into a sitting position, but he is unable to do so. The video clearly shows that the Complainant is grabbing his left leg and appears to be in pain. Thereafter, he attempts to stand on a number of occasions but his left knee buckles and he collapses to the floor, grabbing at his left knee. Finally he lies down on his left side at the base of the cell door where he remains until he is released in the morning. At no time during the night does any officer open or enter into cell 7 to check on the Complainant’s wellbeing, despite the fact that he is seen hitting the cell door. Due to the lack of audio, we are unable to hear what exactly the Complainant was saying or how loud his attempts were to get help.

The Complainant does not allege that he was struck or kicked by any officer at any time was, and this is confirmed by the video. It is fairly clear that it was the act of putting the Complainant to the ground, while he was actively resisting, that caused his injury. It is perhaps trite to say that had there been compliance with SPS Policy - Arrest, Detention, Transport, Care of Prisoners, including adequate monitoring, which, in the case of an intoxicated prisoner, should have occurred every 30 minutes, the injury to the Complainant would have been discovered much earlier and the grave consequences to the Complainant could have been avoided. It is clear from the video that as early as 8:34:56 p.m., the Complainant was cognizant that he had severe pain and had lost the use of his left leg, and he made attempts to get help, which did not come.

It is not within the mandate of the SIU to determine whether or not the SPS was civilly negligent or is civilly liable for the lifelong consequences that the Complainant will now have to endure. That is for someone else to decide. Our mandate is to determine if the officers who dealt with the Complainant on the night of March 1^st, 2016, were carrying out the lawful execution of their duties and were justified in using the force that they did to apprehend and lodge the Complainant and whether or not they were criminally negligent thereafter in failing to provide the Complainant with medical assistance and thereby caused the bodily harm to the Complainant. On that basis, there are two separate issues that must be determined, that being:

1. Did the SO and WO #1 use excessive force in their dealings with the Complainant and thereby cause him bodily harm contrary to s. 267(b) of the Criminal Code; and,
2. Was the SPS, under the direction of the booking sergeant who exercised authority and control over the cell area during the Complainant’s stay, criminally negligent contrary to s.219 of the Criminal Code and did thereby cause the bodily harm (contrary to s.221) to the Complainant.

With respect to the first issue, the Complainant alleges that the SO used excessive force in his dealings with him on the night in question when he landed on the ground. If, however, the taking to the floor of the Complainant was done by the officers in the lawful execution of their duties, and for a lawful purpose, the action may be justified, despite the unfortunate and unintended consequences.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear that he was intoxicated, confrontational and combative at the time of his contact with police. It is also clear that the Complainant, due to his condition, was an unwanted guest at the Inn of the Good Shepherd and that he was, at that point, trespassing. Officers were acting within the confines of their duties when they responded to the alarm and attended to remove the Complainant. Additionally, it appears that they explored all other options available to ensure that the Complainant was safe, and not left out in the cold to freeze, prior to placing him under arrest. When all other options were exhausted, officers were acting lawfully when they placed the Complainant under arrest for being in breach of the LLA. As such, the apprehension of the Complainant was legally justified in the circumstances.

Once the Complainant was delivered to the police station, officers were duty bound to search him prior to leaving him in a cell, for the safety of himself and officers he might come in contact with. It was the Complainant, himself, due to his combativeness and physical resistance to being searched, likely largely due to his state of intoxication, which led officers to the only remaining option open to them. The SO and WO #2 both advised that to their knowledge and in their experience, taking an aggressive prisoner down to the floor to be searched was the safest method for all parties. It appears that this was a method that was commonly used at the SPS as WO #2 directed the officers to take the Complainant to cell seven for that very purpose and stood by to supervise while this maneuver was carried out. WO #1 advised that she has used this maneuver in the past and was successful in getting the prisoner to the floor without injury. It would be easy to second guess the actions of the officers in hindsight, but it is clear from the video that officers were making every attempt to bring the Complainant down in a controlled fashion, while the Complainant was thwarting those attempts. Things were moving quickly and when the SO forcefully pulled the Complainant forward, the momentum caused both officers to fall to the floor with the Complainant, possibly causing the SO to land on top of the Complainant’s leg and causing the injury. It is clear that the weight and momentum of the fall were far greater than anticipated and unforeseen in the circumstances.

Although I find that the Complainant’s injury was caused by the SPS officers taking him to the ground in an attempt to safely search him before being lodged in a cell, I find that pursuant to section 25(1) of the Criminal Code, the officers involved used no more force than was reasonably necessary in the execution of their lawful duties in attempting to search and lodge a very intoxicated, combative and extremely resistant man. I find that the degree of force with which the Complainant struck the floor may have been greater than anticipated by the officers as the momentum increased with the officers falling with, and on top of, the Complainant, who was doing everything in his power to thwart the officers in their lawful duties. As such, as serious as the injury was, I am satisfied on reasonable grounds on this record that the actions exercised by the officers fell within the limits prescribed by the criminal law and there are no grounds for proceeding with criminal charges on this basis.

Turning next to the second issue, that being whether the booking sergeant in charge of the SPS cells on the night in question was criminally negligent (s.219 of the Criminal Code) and thereby caused the bodily harm (s.221 of the Criminal Code) to the Complainant.

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 C.C.C. (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 legally duty to do.

On the facts in this matter, the booking sergeant responsible for the Complainant’s wellbeing during his stay at SPS cells involved three different sergeants over various periods of time: first, WO #2, who was present when the Complainant was initially brought in and observed the Complainant to be intoxicated, resistant of officers and had to be taken to the ground by way of a method which was generally understood to be the safest method by which to search an intoxicated prisoner, but was not apparently aware that the Complainant had been injured; second, WO #4, who came in off the road in order to relieve WO #2, who was both unaware of the injury and unaware that there had been a struggle with police, and finally, WO #3, who relieved WO #2 at 5:30 a.m. and was only given information that the Complainant had been arrested for public intoxication and had been “an asshole”.

Dealing with the last two officers first, it is clear that both WO #3 and WO #4 had no knowledge of a possible injury to the Complainant nor were they aware that there had been a physical interaction between the arresting officers and the Complainant. With respect to WO #3, who only came on duty at 5:30 a.m., the Complainant was sleeping during the time that he observed him, and as soon as he was made aware by the Complainant that he had an injury, he summoned medical assistance. As such, WO #3 lacked the requisite knowledge that the Complainant may have required extra assistance and rendered assistance as soon as he became aware of the requirement. Clearly, no fault lies with the actions of WO #3.

With respect to WO #4, who was only on duty during WO #2’s lunch break beginning at 11:00 p.m., WO #4 checked the booking in sheet, observed that the Complainant was last checked at 10:30 p.m., and made the required visual cell check by looking through the window at 11:36 p.m. While WO #4 observed the Complainant to be yelling angrily and swearing to himself, he neither observed nor heard any indication from the Complainant that he was in distress or required assistance. As such, no fault can be attributed to WO #4.

Finally, dealing with WO #2, who was the booking officer responsible for the cell area from the time that the Complainant was brought in at 8:32 p.m. until he was briefly relieved by WO #4 between 11:00 p.m. and midnight for his lunch break and was again relieved at 5:30 a.m., when his shift ended, according to WO #2, and supported by the SO and WO #1, despite his presence during the grounding of the Complainant, he was unaware that the Complainant had been injured; I find this quite likely due to the Complainant’s state of intoxication and his already loud, belligerent and combative attitude and due to the fact that he made no complaint of injury that was heard by any of the three officers. On the evidence of all three officers, it is clear that it was under the direction of WO #2 that the Complainant was taken to the floor to be searched, as that was deemed to be the safest procedure; in this regard, at least, it is clear that WO #2 was considerate of the issues presented by the Complainant and resorted to the safest measure to ensure everyone’s safety, including that of the Complainant, in having the Complainant searched and lodged in the cells.

With respect to the conduct of WO #2 once the Complainant was lodged in the cells, I find that there is insufficient evidence to establish a “wanton or reckless disregard for the lives and safety of others” sufficient to make out the offence of Criminal Negligence for the following reasons:

While s.14.3 of the SPS Policy of Arrest, Detention, Transportation, Care and Handling of Prisoners, indicates that intoxicated prisoners should be checked every 30 minutes, I cannot find that a policy instituted by the police service equates with a “duty imposed by law” as required pursuant to the court in R. v. Coyne (1958), 124 C.C.C. 176 (N.B.C.A.);

Further, there is no evidence to indicate that WO #2 was aware that the Complainant had sustained an injury;

While the Complainant is seen on the cell video to be hitting the cell door and possibly yelling out, the absence of audio on the recording makes it unclear if the Complainant is shouting for assistance or simply carrying on with his previous loud and unruly behaviour and whether or not cell officers would have been alerted of the Complainant’s injuries by his actions;

According to the prisoner log, the Complainant’s cell was checked on nine occasions between the time he was lodged, at approximately 8:40 p.m., and when WO #3 opened the cell door to release him at 7:10 a.m. During that time frame the Complainant was apparently sleeping from 12:45 a.m. until the time that WO #3 attempted to wake him at 7:10 a.m. While the policy mandated officers to check on intoxicated persons every 30 minutes, and the log indicates that checks were made closer to one hour and on several occasions up to one and one half hours apart, I infer from the fact that WO #4 was called in to work an overtime shift to assist WO #2, that the police service was understaffed at the relevant time and it was likely a busy night. As such, although the actual visual checks at the cell door may have been less than ideal, I cannot find the delay of 30 - 60 minutes between the recommended cell checks as indicating “a wanton or reckless disregard for the lives and safety of others”. Additionally, as the video from outside the cell was unavailable for viewing and there is evidence that, despite the lack of actual physical cell checks, that WO #2 was able to monitor the prisoners from a video monitor, I am unable to determine definitively how many times the Complainant was actually observed either in person through the cell window or by anyone watching from the live video monitor.

For the foregoing reasons, as stated earlier, although the conduct of the SPS may not have been ideal and their lack of diligence may have delayed the Complainant receiving medical attention which exacerbated his injury, I cannot find sufficient evidence to raise their conduct to the level required to make out reasonable grounds to believe that they were criminally negligent contrary to the Criminal Code and, as such, find that there is no basis here for the laying of criminal charges.

Date: August 23, 2017

Original signed by
Tony Loparco
Director
Special Investigations Unit