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 36-year-old man (the “Complainant”).

Notification of the SIU[1]

On March 4, 2024, at 3:28 p.m., the Ontario Provincial Police (OPP) contacted the SIU with the following information.

On March 3, 2024, OPP officers arrested the Complainant and transported him to the Killaloe Detachment. He was lodged in a cell and held for a bail hearing. On the morning of March 4, 2024, members of the Offender Transport Unit attended the detachment to take the Complainant to court. The Complainant was in the presence of Offender Transport Unit special constables when he ingested a pill and then went into medical distress. Emergency medical services were dispatched, and they administered naloxone. The Complainant was taken to hospital in Barry’s Bay (St. Francis Memorial Hospital) where nursing staff removed a torn bag containing unknown substances from his anus. He was intubated and, at the time of notification of the incident, was being transported to hospital in Pembroke (Pembroke Regional Hospital) because he was not responding well to medical intervention.

The Team

Date and time team dispatched: 2024/03/04 at 8:34 p.m.

Date and time SIU arrived on scene: 2024/03/05 at 1:15 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

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

The Complainant was interviewed on April 22, 2024.

Subject Official (SO)

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

Witness Officials (WO)

WO #1 Not interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

The witness official was interviewed on June 24, 2024.

Service Employee Witnesses (SEW)

SEW #1 Interviewed; notes received and reviewed

SEW #2 Not interviewed; notes received and interview deemed unnecessary

The service employee witness was interviewed on June 24, 2024.

The Scene

The events in question transpired in the OPP Killaloe Detachment.

Video/Audio/Photographic Evidence[2]

In-car Camera (ICC) Recording – The SO’s Vehicle

The recording began at 4:37 p.m. on March 3, 2024. The Complainant was seated in the rear seat of the police vehicle. A female police officer advised the Complainant he was being arrested for breaching release conditions. Once read his rights to counsel, the Complainant stated he wished to speak to a lawyer. He was coherent. After being read a primary caution, and being asked if he understood the caution, he responded he had a mental disorder and did not understand what had been read. He then stated he did not wish to speak anymore.

While departing for the police station, a female police officer answered a telephone call. She advised the person to whom she was speaking she was transporting a male [the Complainant] back to the station. She advised the person to whom she was speaking he would have to conduct a more thorough search of the Complainant before he could be lodged in a cell, as she had simply conducted a pat-down search.

The Complainant was having difficulty remaining awake during the drive to the police station.

At 5:01 p.m., the vehicle arrived at the station and, at 5:02 p.m., the Complainant was removed from the vehicle.

Custody Video

Starting at 5:01 p.m., March 3, 2024 – an OPP SUV arrived in the sally port of the detachment. Two female officers exited the vehicle.

Starting at 5:02 p.m. – the Complainant exited the vehicle and walked into the police station. He was able to navigate through the hallways without issue and arrived at the “Cell Vestibule” processing area. He sat on a chair while one of the female arresting officers spoke to him. A male officer - WO #2 - was standing nearby.

Starting at 5:04 p.m. – the Complainant stood and WO #2 removed the handcuffs (he had been handcuffed with his hands behind him). The Complainant removed a jacket and two fleece hooded cardigans, and he emptied his pockets. He then sat and removed his boots before standing and emptying his pants pockets.

Starting at 5:08 p.m. – the Complainant placed his hands up on the wall and WO #2 conducted a search. The Complainant was wearing a T-shirt, loose fitting jeans, underwear and socks at the time of the search. WO #2 checked the neckline of the Complainant’s shirt, his pants pockets and waistband, and rolled up his pantlegs to check the bottom of his pants. A bandage was visible on the Complainant’s left ankle area. The officer then searched one of the hooded cardigans and returned it to the Complainant to wear in the cell. The Complainant displayed no difficulty participating in the search.

Starting at 5:11 p.m. – the Complainant was placed into a cell. WO #2 stood at the cell door and spoke to him.

Starting at 5:13 p.m. – the cell door was closed.

Starting at 5:29 p.m. – WO #2 entered the cell and showed the Complainant a bag that appeared to contain a pill bottle. They discussed the item.

Starting at 5:30 p.m. – WO #2 exited the cell and the door was closed. The Complainant sat on the bunk.

Starting at 6:58 p.m. – a civilian prisoner custodian entered the cell and placed cups on the floor. That person then returned with a meal tray. A female officer also entered the cell and she had the Complainant sign a document. The officer and civilian exited the cell, and the door was closed. The Complainant ate his meal.

Starting at 7:06 p.m. – the cell door opened and the Complainant exited the cell (to speak to counsel).

Starting at 7:08 p.m. – he returned to the cell.

Starting at 7:31 p.m. – the Complainant was sitting on the bunk and appeared to be manipulating something in his hands. His head was lowered, and his actions could not be discerned; it is possible he was sniffing or ingesting something. The Complainant started to rock forward repeatedly. It appeared he was either fatigued and falling forward, or he was straining to pass something from his rectum.

Starting at 7:43 p.m. – the Complainant reclined on the bunk. He was then sleeping or being very still, as the camera did not detect motion.

Starting at 1:50 a.m. – he stood and was at the toilet urinating. He then returned to the bunk and covered himself with a blanket.

Starting at 5:22 a.m. – he arose and went to the toilet to urinate again. He then returned to the bunk and pulled the blanket over his lower body.

Starting at 5:23 a.m. – the Complainant appeared to be reaching with his left hand into the rear of his pants. He then brought his hands under the blanket and appeared to be examining something that was under the blanket.

Starting at 5:24 a.m. – he arose and sat on the toilet. He removed toilet paper from the roll and appeared to wipe his buttocks. The OPP privacy box covered the view of the toilet area.

Starting at 5:25 a.m. – he returned to the bunk and went to sleep.

Throughout the night at regular intervals the civilian prisoner custodian approached the cell door and checked on the Complainant.

Starting at 10:11 a.m. – SEW #1 and SEW #2 and a different civilian custodian arrived in the cell area. SEW #2 started to bag the Complainant’s property (clothing).

Starting at 10:14 a.m. – something outside the cell door appeared to wake the Complainant. Outside the cell, SEW #1 was knocking on the cell door.

Starting at 10:16 a.m. – SEW #1 opened the cell door and then closed it. The Complainant stood and appeared unsteady on his feet. He sat on the toilet. He then appeared to wipe his buttocks.

Starting at 10:24 a.m. – the Complainant stood, but he was squatting and appeared to be reaching in the area of his anus. He then sat on the toilet again. He stood and pulled up his pants.

Starting at 10:26 a.m. – SEW #1 opened the cell door and the Complainant exited the cell. SEW #2 instructed the Complainant to hold his hands open and he applied hand sanitizer to the Complainant’s hands. The Complainant rubbed his hands together. The Complainant was directed to place his hands up on the wall to be searched. The Complainant started shuffling his feet and lowered his left shoulder (the camera was over his right shoulder, so his manipulations on his left side could not be seen on the recording). He was possibly reaching into his left pant pocket.

Starting at 10:26:42 a.m. – the Complainant quickly brought his left hand up to his mouth. SEW #1 was behind him on his left side and SEW #2 was behind him on his right side, starting a search. SEW #1 immediately reacted and approached the Complainant. She motioned to her mouth and appeared to be asking him what he had just ingested.

Starting at 10:27 a.m. – SEW #1 opened the cell and the Complainant was returned to the cell.

Starting at 10:28 a.m. – the Complainant was displaying symptoms of intoxication. He was exhibiting great difficulty remaining seated upright.

Starting at 10:38 a.m. – SEW #1 was at the cell door looking into the cell door window with a cellular telephone to her ear.

Starting at 10:52 a.m. – two female constables wearing face masks opened the cell door and spoke to the Complainant. They then closed the cell door.

Starting at 10:54 a.m. – the Complainant was standing at the toilet and was having difficulty staying upright. He slumped forward and his head was against the cell wall briefly.

Starting at 10:57 a.m. – a sergeant arrived at the cell door and briefly spoke to the Complainant.

Starting at 11:13 a.m. – paramedics arrived at the cell area. The paramedics conducted an examination of the Complainant. The Complainant was walked from the cell by the paramedics.

Cell Surveillance Recording

In the cell surveillance recording, the Complainant was observed lying on the cell bunk while wrapped in a blanket. He then sat up, still wrapped in the blanket, and the door of the cell opened. After ten seconds, the door was closed.

The Complainant stood, picked up a roll of toilet paper, and was unsteady on his feet. He then lowered his pants and sat on the toilet. While seated on the toilet, the Complainant was motionless. His right hand reached towards his buttocks more than once.

The Complainant stood and his hands moved towards his buttocks. He then crouched, removed more toilet paper, and again sat on the toilet. The Complainant stood and dropped the toilet paper into the toilet bowl. The cell door then opened, and the Complainant shuffled out of the cell.

The Complainant was soon returned to the cell, and he sat on the bunk. The cell door was closed. Several times the Complainant started to fall forward while seated on the bunk.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the OPP between June 12, 2024, and to June 21, 2024:

• Policy – Search;
• Duty notes of WO #1 and WO #2;
• Duty notes of SEW #2 and SEW #1;
• ICC recordings from the SO’s vehicle during transport of the Complainant to the police station;
• Custody footage;
• Computer-aided dispatch (CAD) record related to the arrest on March 3, 2024; and
• CAD record related to the Complainant’s overdose on March 4, 2024.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources on May 9, 2024:

• TheComplainant’s medical records from the

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

The Complainant was arrested in the afternoon of March 3, 2024, by the SO and WO #1. The officers, responding to the scene of an attempted break and enter, took the Complainant into custody for a breach of bail conditions. He was in the company of a female with respect to whom he was not supposed to associate. The Complainant was searched at the scene, yielding containers with pills and unknown substances, and transported to the Killaloe OPP Detachment.

The Complainant was searched again at the detachment by a male officer – WO #2. The search unearthed nothing new. The Complainant was subsequently lodged in a cell.

The following morning, while being searched outside his cell by a special constable in preparation for transport to a detention centre, the Complainant was able to access a quantity of drugs in his left pants pocket and ingest it. His condition began to deteriorate. Paramedics were summoned to the scene and administered naloxone.

The Complainant was transported to hospital and treated for substance intoxication. A torn bag containing unknown substances was removed from his anus by medical staff.

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.

The Complainant suffered a medical crisis while in the custody of the OPP on March 4, 2024. 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 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 officers who dealt with the Complainant, sufficiently serious to attract criminal sanction, that endangered his life or contributed to his overdose. In my view, there was not.

There are no questions raised regarding the legality of the Complainant’s arrest. It would appear the SO and WO #1 had grounds to arrest him for breach of a bail condition. That being the case, I am also satisfied the Complainant was lawfully in custody from the moment of his arrest through his time in cells.

With respect to the care afforded the Complainant, the evidence falls short of establishing a marked departure from a reasonable standard. The key issue involves the failure on the part of the Complainant’s custodians to locate the substances he had on his person and remove them before he was lodged in a cell.[3] The SO, I am satisfied, discharged her duty of care. The Complainant was subjected to a pat-down search at the scene of his arrest, in the course of which drugs of one variety and another were located and seized. The evidence suggests that the Complainant had secreted a quantity of fentanyl in his rectum prior to arrest, and that it was those drugs that the Complainant accessed and ingested while in custody. Those drugs could only have been detected by way of a strip search or a body cavity search. Neither, however, were options for the SO or her partner. Among the prohibitive considerations at the time, both officers were in the field and neither was male. The question becomes whether the Complainant ought to have been strip searched at the detachment. In my view, it is not clear that there was a basis to justify such a search, which requires reasonable and probable grounds to conclude that a strip search is necessary in the particular circumstances of the arrest: R. v. Golden, [2001] 3 SCR 679. On the one hand, the Complainant had not been arrested for a drug offence. On the other, drugs had been found on his person at the time of his arrest and he appeared sluggish. In light of these competing considerations, if the Complainant ought to have been strip searched, I am unable to reasonably conclude that the failure to do so was an omission that departed markedly from a reasonable standard of care, much less a marked and substantial departure. The same holds true with greater force in relation to a body cavity search, which requires even greater justification given the invasiveness of the procedure.

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

Date: July 2, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit