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:

• 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 Personal 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.

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

• 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.

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 54-year-old man (the “Complainant”).

Notification of the SIU[1]

On March 2, 2024, at 1:08 a.m., the Sault Ste. Marie Police Service (SSMPS) notified the SIU of an injury to the Complainant.

According to the SSMPS, on March 1, 2024, at 3:32 p.m., the Complainant was arrested on an outstanding warrant, with a Feeney[2] endorsement, at his residence. At the time of arrest the Complainant consumed an unknown quantity of fentanyl. The involved police officers treated the Complainant with Narcan, and paramedics transported him to Sault Area Hospital (SAH) for treatment. He was discharged from hospital and lodged at the SSMPS cells at 6:02 p.m. to await a bail hearing. The Service Employee Witness (SEW) completed cell checks. At 7:30 p.m., the SO, having found the Complainant asleep sitting up with his chin down, placed the Complainant in the recovery position. At 11:48 p.m., the SO observed on the monitor that the Complainant had not moved after he was placed in the recovery position. The SO and Witness Official (WO) #2 attended the cell and found that the Complainant’s breathing was shallow, and he had a weak pulse. Paramedics from the Algoma Paramedic Emergency Medical Services (EMS) were called, and the Complainant was taken back to the hospital where he was admitted to the intensive care unit.

The Team

Date and time team dispatched: 2024/03/02 at 8:05 a.m.

Date and time SIU arrived on scene: 2024/03/02 at 8:30 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

54-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on March 11, 2024.

Subject Official

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Not interviewed; statement reviewed and interview deemed unnecessary

WO #4 Not interviewed; notes reviewed and interview deemed unnecessary

WO #5 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed on March 7, 2024.

Service Employee Witness

SEW Interviewed

The service employee witness was interviewed on March 7, 2024.

The Scene

The events in question transpired in a cell in the custody area of the SSMPS Headquarters, 580 Second Line East, Sault Ste. Marie.

Video/Audio/Photographic Evidence[3]

Police Custody Video 1

At 5:59 p.m., March 1, 2024, WO #1 was captured opening the rear door of the driver’s side of a fully marked police vehicle parked in the sally port at the station.

At 6:07 p.m., WO #1 leaned inside and pulled out a man wearing dark clothing – the Complainant. The Complainant’s body appeared to be stiff. He moved very slowly and was supported by police officers.

At 6:09 p.m., the Complainant was carried into the booking room. He was stood leaning over the counter as a uniformed police officer - Officer #1 - stood on his left side. WO #1 stood behind the Complainant and supported him. The Complainant never moved and continued to lean over as he was searched.

At 6:12 p.m., the Complainant was escorted by both police officers down the hall and out the booking room. WO #1 and Officer #1 carried the Complainant from around a corner wall and placed him in a cell.

At 6:13 p.m., the SO entered the cell. There was sound but it was at a distance, and voices could not be distinguished.

At 6:15 p.m., all three police officers left the front of the cell.

At 7:15 p.m., a special constable - the SEW - attended the front of the cell. He kicked the door and banged the cell bars three times before leaving at 7:16 p.m. The SEW returned at 7:18 p.m. He bent down in front of the cell door and appeared to speak to the Complainant.

At 7:38 p.m., the SO attended the cell, accompanied by WO #2. Both supervisors entered the cell and then exited six minutes later at 7:44 p.m.

At 8:16 p.m., 8:50 p.m., 9:25 p.m., 9:57 p.m., 10:15 p.m., 10:31 p.m., and 10:46 p.m., the SEW attended the cell, and noted in the log that he observed the Complainant breathing with his chest rising and falling. In the checks up to 9:25 p.m., the SEW bent down in front of the door. In the later checks, he stood outside the cell door.

At 11:46:45 p.m., the SEW attended the front of the cell and this time he stayed for half a minute and continued to look inside the cell.

At 11:49:20 p.m., the SO along with WO #2 and the SEW attended the cell. WO #2 and the SO entered the cell and, at 11:50 p.m., WO #2 left. WO #2 returned and, at 11:56 p.m., EMS paramedics arrived in front of the cell. The Complainant was carried out of the cell at 11:58 p.m., placed on a stretcher and wheeled away from the hallway at 12:04 a.m., on March 2, 2024.

Police Custody Video 2

At 6:13 p.m., the Complainant was put in a cell by WO #1 and Officer #1, and placed in a seated position. The Complainant started to fall forward, and he was steadied by the police officers. The SO attended and WO #1 handed him something white in colour. The SO left, returned shortly and checked the Complainant’s collar line behind his neck.

The Complainant started to fall to his right side while seated and, at 7:38 p.m., the SO and WO #2 attended the cell and placed the Complainant in the recovery position, laying him on his right side with his head towards the cell door. The cell checks were captured on video. The Complainant never moved from that position, except for extending his right arm straight out, off the bench.

At 11:50 p.m., the SO and WO #2 attended the cell. The supervisors checked on the Complainant, who was eventually removed from the cell by paramedics.

Police Communications Recordings

On Friday March 1, 2024, at 2:56 p.m., Officer #2 notified dispatch that he was attending a residence with uniformed police officers, WO #4 and WO #3, to arrest the Complainant. He was in possession of a domestic violence arrest warrant with a Feeney authorization.

At 3:34 p.m., Officer #2 advised they were in the residence and had one person in custody. He asked for EMS, noting that the Complainant had ingested fentanyl and they had administered Narcan on two occasions.

At 3:52 p.m., WO #4 advised that the ambulance was en route to the SAH.

At 5:52 p.m., WO #1 advised dispatch that the Complainant was cleared medically, and he would be returned to the police station.

At 11:51 p.m., WO #2 telephoned dispatch and requested EMS at the cell for the Complainant.

At 12:06 a.m., March 2, 2024, Officer #3 advised he would be in the ambulance.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the SSMPS between March 5 and 19, 2024:

• Policy - Prisoner Care and Control;
• Policy - Arrest;
• Booking Report;
• Arrest Report;
• Police History - the Complainant;
• Crown Brief Synopsis;
• Custody Record;
• Event Details Reports;
• Arrest Warrant;
• Notes – Officer #2;
• Notes – WO #1;
• Notes – WO #4;
• Notes – WO #5;
• Notes – the SEW;
• Notes – Officer #1
• Notes – Officer #4;
• Notes – WO #2;
• Witness statement – Officer #2;
• Witness statement – WO #1;
• Witness statement – WO #4;
• Witness statement – Officer #5;
• Witness statement – WO #5;
• Witness statement – Officer #3;
• Witness statement – Officer #1; and
• Witness statement – WO #3.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between March 4 and 21, 2024:

• Ambulance Call Records from EMS; and
• The Complainant’s medical records from SAH.

The evidence collected by the SIU, including interviews with officers who dealt with the Complainant throughout his period in custody and video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.

The Complainant was arrested in his home on the strength of an arrest warrant in the afternoon of March 1, 2024. Shortly after, the Complainant’s condition started to deteriorate, the result of an ingestion of fentanyl. Officers on scene administered naloxone and contacted paramedics. The Complainant was transported in ambulance to hospital, arriving at about 4:00 p.m.

Medical staff examined the Complainant and cleared him medically. At 5:45 p.m., he was transported by police to the station and subsequently lodged in a police cell. A special constable – the SEW – was assigned to keep watch over him.

The SEW conducted regular in-person checks of the Complainant starting at about 6:48 p.m. At 7:15 p.m., he observed the Complainant sleeping awkwardly in a seated position. He summoned his supervisor – the SO – for assistance. With the help of WO #2, the SO placed the Complainant in the recovery position. The Complainant remained in that position for about four hours. During that time, the SEW satisfied himself that he was breathing on each of his checks.

At about 11:30 p.m., the SEW became concerned with the Complainant’s health. He noticed brown liquid on the bed, drool at the Complainant’s mouth, and an eye that was open. He contacted the SO for help, who arrived with WO #2. The officers were unable to rouse the Complainant. His breathing had slowed significantly and his nails had turned blue. An ambulance was called to the scene.

Paramedics arrived within minutes and took carriage of the Complainant’s care. He was taken to hospital and treated in the intensive care unit. The Complainant had reportedly aspirated fluid into his lungs.

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.

On March 1, 2024, while in the custody of the SSMPS, the Complainant fell ill and was taken to hospital. The SIU was notified of the incident and initiated an investigation naming 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 crisis.

The offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing bodily 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 caused him bodily harm. In my view, there was not.

I am satisfied that the Complainant was lawfully in the custody of police throughout the events in question. The police were within their rights in arresting the Complainant on the authority of an arrest warrant, and keeping him in custody to be dealt with according to law.

I am also satisfied that the SO and the other officers who dealt with the Complainant comported themselves with due care and regard for his health and safety throughout his period of custody. The arresting officers were quick to recognize that the Complainant was suffering the effects of a possible fentanyl overdose and administered naloxone while waiting for an ambulance to attend. Back at the station, the Complainant having been medically cleared at hospital, the SO ensured that he was subject to regular monitoring by a dedicated special constable, took steps to place the Complainant in a safe position while he slept, and promptly called for paramedics as soon as it was clear the Complainant had become unresponsive.

For the foregoing reasons, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: June 28, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit