SIU Director’s Report - Case # 23-OCD-166

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Mandate of the SIU

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.

Information Restrictions

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.

Mandate Engaged

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 death of a 57-year-old man (the “Complainant”).

The Investigation

Notification of the SIU[1]

On May 4, 2023, at 1:29 a.m., the Niagara Regional Police Service (NRPS) contacted the SIU with the following information.

On May 3, 2023, a female (Civilian Witness (CW) #4) contacted and requested police attend her residence near Pelham Road and Glendale Avenue, St. Catharines, to remove her boyfriend (the Complainant) and his friend from the home. The relationship between CW #4 and the Complainant had been deteriorating due to the Complainant’s increased drug use. On this date, CW #4 returned to the home to find the two males apparently consuming an unknown quantity of illicit drugs. Police attended the residence at 11:46 p.m. The Complainant was observed to be acting irrationally and was asked to leave. When the Complainant attended the front yard of the home, he began causing a disturbance and officers made attempts to arrest him for breaching the peace. As the Complainant was being handcuffed, a struggle ensued, and he was grounded. At 11:54 p.m., the Complainant was observed to go unconscious. Officers initiated CPR and administered four doses of Narcan. At 12:04 a.m., the Complainant was transported by Emergency Medical Services (EMS) to the Niagara Health – St. Catharines Site located at 1200 Fourth Avenue, St. Catharines.

At the time of SIU notification, the Complainant was being assessed at hospital and was breathing on his own. Subsequent information indicated that the Complainant had been admitted to hospital and placed on a ventilator, and that he was in critical condition.

On May 7, 2023, the Complainant was pronounced deceased at hospital.

The Team

Date and time team dispatched: 05/04/2023 at 12:24 p.m.

Date and time SIU arrived on scene: 05/05/2023 at 9:54 a.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

57-year-old male; deceased

Civilian Witness

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

CW #5 Interviewed

CW #6 Interviewed

The civilian witnesses were interviewed between May 8, 2023, and May 12, 2023.

Subject Official

SO #1 Declined interview, as is the subject official’s legal right; notes received and reviewed

SO #2 Declined interview and to provide notes, as is the subject official’s legal right

Witness Official

WO #1 Notes reviewed, interview deemed not necessary

WO #2 Interviewed

WO #3 Interviewed

WO #4 Notes reviewed, interview deemed not necessary

WO #5 Interviewed

WO #6 Interviewed

WO #7 Interviewed

WO #8 Not interviewed; notes received and reviewed

The witness officials were interviewed on May 17, 2023.

Investigative Delay

Investigators met with initial delays in obtaining access and consent from the family of the Complainant to his medical records and person. These difficulties were eventually overcome through counsel retained by the family.

Delays were further incurred waiting for the finalization of the Report of Postmortem Examination, received from the Coroner’s Office on July 8, 2024.

Evidence

The Scene

The events in question transpired on the front lot of a house near Pelham Road and Glendale Avenue, St. Catharines.

Forensic Evidence

Conducted Energy Weapon (CEW) Deployment Data

The data downloaded from the CEWs assigned to SO #1 and SO #2 were contained in reports authored by the NRPS Training Branch.

The data from a Taser 7, assigned to SO #2, indicated that on May 3, 2023, at 11:50:09 p.m., the weapon safety was turned to “OFF” and the weapon was armed for 52.713 seconds, but not discharged. The weapon was then disarmed, and the safety returned to the “ON” position.

The data from a Taser 7, assigned to SO #1, indicated no “armed” events during the course of his shift on May 3-4, 2023, around the time of the incident.

Video/Audio/Photographic Evidence[2]

Video Footage

A resident across the street from the incident, CW #5, took three videos and one still photo from inside her residence. The information contained in the recordings and image captured the response of additional NRPS officers, and Niagara Emergency Medical Services (NEMS) and St. Catherines Fire Department (SCFD) personnel.

SIU investigators observed a camera above the garage of a nearby residence that might have captured the interaction or parts of it. Calls to the person with control of the footage went unanswered.

Call to Police by CW #4

CW #4 indicated that she needed someone removed from her home as “he was all messed up on drugs”. She informed the call-taker that this was not the first time, and that she had given him numerous chances. A male – the Complainant – could be heard in the background stating he needed his phone charger. CW #4 became increasingly upset, yelling at the Complainant to get out of her room. CW #4 identified the Complainant as a person that rented a room sometimes. As the call progressed, CW #4 became increasingly agitated, crying and screaming at the Complainant to leave her room. The Complainant could be heard asking about a phone charger, but little else could be made out as to what he was saying because of her screaming. The call was then disconnected.

Police Radio Communications

SO #1 was dispatched to an ‘unwanted person’ call that the dispatcher stated was “turning into a bit of a domestic”. SO #1 acknowledged the call as did SO #2.

SO #1 subsequently advised that everything was alright at the location, but he still required SO #2 to attend.

The NRPS dispatcher made repeated calls to SO #2 as “you keep keying your mic” to check on her wellbeing. SO #2 eventually responded and requested an additional unit to the location.

SO #1 requested an ambulance because “our male is unresponsive from drug use”. He later asked for the ambulance to “step it up” as they had used three “Narcan”.

WO #2 asked SO #1 to check with CW #4 to see if she knew what the Complainant had taken or if he had a history of using benzodiazepines as Narcan would not work on those drugs. He was advised by an unknown male voice that CW #4 did not know, and that CPR had been started.

A short time later, it was reported that NEMS and SCFD personnel were on scene.

A NRPS officer advised that he had spoken to CW #4, and she indicated that she had returned home at 11:14 p.m. to find the Complainant acting odd and very erratic. She suspected he was high on drugs.

Materials Obtained from Police Service

The SIU obtained the following records from the NRPS:

  • Deployment data from CEWs;
  • Computer-assisted Dispatch Report;
  • Notes of Witness Officials and SO #1;
  • Policy – Use of Force;
  • Policy – Naloxone;
  • Policy – Powers of Arrest;
  • General Occurrence Report;
  • Scene photographs;
  • Property List;
  • Witness List;
  • Training Log – SO #1;
  • Training Log – SO #2; and
  • Communications recordings of all phone calls and radio communications for the event; and
  • Audio recording of NRPS interview of CW #4.

Materials Obtained from Other Sources

The SIU obtained the following records from the following other sources:

  • The Complainant’s medical records from Niagara Healthcare System – St. Catharines Site;
  • The Complainant’s medical records obtained from NEMS;
  • Report of Preliminary Autopsy Findings from the Ontario Forensic Pathology Service; and
  • Report of Postmortem Examination, dated July 2, 2024, from the Coroner’s Office.

Incident Narrative

The evidence collected by the SIU, including interviews with police and non-police witnesses, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU. SO #1 did authorize the release of his notes.

In the evening of May 3, 2023, CW #4 contacted the NRPS seeking to have the Complainant removed from her home – a house located near Pelham Road and Glendale Avenue, St. Catharines. CW #4 reported that the Complainant was under the influence of drugs.

SO #1 was the first officer on scene. The officer entered the house and observed firsthand the Complainant’s unusual behaviour. He fidgeted, muttered to himself, and poured gravy into a napkin. After some time, SO #1 was able to coax the Complainant out the front door. At about this time, SO #1 was joined by SO #2.

The officers followed as the Complainant made his way to a small boat on a trailer, parked on a strip of lawn. The Complainant started to bounce the boat up and down, causing noise, and reached inside its hull for items. SO #1 decided to arrest the Complainant for breaching the peace and causing a disturbance.

The Complainant was being escorted towards the officers’ cruisers at the bottom of the driveway when he started to become aggressive and attempted to break free of SO #1’s hold. He continued resisting after he was grounded by the officers, refusing to release his arms to be handcuffed. SO #1 and SO #2 eventually wrestled control of the Complainant’s arms and handcuffed them behind the back. It was around this time that the Complainant became unresponsive.

SO #1 and SO #2 sat the Complainant up and tried to rouse him. Sternum rubs were performed and four doses of naloxone administered without success. The Complainant was placed on his back and SO #2 performed CPR while the officers waited for EMS to arrive.

EMS and firefighters arrived on scene at about midnight. The Complainant was loaded on a stretcher and transported to hospital.

On May 7, 2023, the Complainant was pronounced deceased at hospital.

Cause of Death

The pathologist at autopsy concluded that the Complainant’s death was attributable to “acute toxicity of cocaine in a man with an enlarged heart”.

Relevant Legislation

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

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) 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 175 (1), Criminal Code – Causing a Disturbance

175(1)Every one who

(a) not being in a dwelling-house, causes a disturbance in or near a public place,

(i) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language,

(ii) by being drunk, or

(iii) by impeding or molesting other persons,

is guilty of an offence punishable on summary conviction.

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 220, Criminal Code - Criminal Negligence Causing Death

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.

220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable

(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and

(b) in any other case, to imprisonment for life.

Section 2(1), Trespass to Property Act - Trespass an Offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,

(a)without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b)does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

Analysis and Director’s Decision

The Complainant passed away on May 7, 2023. He had lapsed into medical crisis late on May 3, 2023, from which he never recovered. As the Complainant was being arrested by NRPS officers at the time of his medical event, the SIU was notified of the incident and initiated an investigation. Two subject officials were identified – SO #1 and SO #2. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the Complainant’s death.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law.

SO #1 was lawfully placed and in the execution of his duties through the series of events culminating in his decision to arrest the Complainant. He had information from CW #4 that the Complainant did not live at her home, but only stayed there on occasion with her indulgence. On this record, when CW #4 asked that he be removed from the premises, SO #1 was within his rights under the Trespass to Property Act to escort the Complainant off the property. Once outside, there is evidence from SO #1, via his notes, that the Complainant was causing a ruckus by bouncing the boat off its trailer. Given the hour, about midnight of May 4, 2023, I am further satisfied there were grounds to take the Complainant into custody for causing a disturbance under section 175 of the Criminal Code.

The evidence falls short of any reasonable suggestion that the force brought to bear by SO #1 and SO #2 in aid of the Complainant’s arrest was unlawful. When the Complainant made it difficult to handcuff his hands by pushing at the officers and adopting an aggressive posture, it made sense to force him to the ground. In that position, the officers would be in a better position to manage any continuing resistance on the part of the Complainant. There is conflict in the evidence regarding the nature of the takedown. There is some evidence that SO #1 grabbed the Complainant’s arms from behind and used his weight to slam the Complainant to the ground. In his notes, and in utterances made post-incident at the scene, SO #1 indicated he had “softly” taken the Complainant to the ground, suggesting a controlled takedown. Even accepting the more incriminating version of events of a more forceful takedown, I do not believe the force was excessive. It is undisputed that the Complainant was actively struggling against SO #1 at the time of the takedown, and it is unclear if lesser force would have resulted in the Complainant being grounded. Finally, the evidence suggests there was force used once the Complainant was on the ground, but this consisted of nothing more than SO #1 and SO #2 wrestling control of his arms so they could be handcuffed behind the back. No strikes of any kind were delivered.

I have also considered whether the evidence could possibly give rise to liability pursuant to the offences of failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 of the Criminal Code, respectively. Both require something more than a simple want of care. 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 subject officials, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or caused his death. In my view, there was not.

For the reasons noted above, the force used by the officers was reasonable in the circumstances. In addition, once on the ground, the weight of the evidence indicates that SO #1 did not place unnecessary pressure on the Complainant’s back – a recognized risk factor with respect to the death of persons under restraint. As soon as the Complainant became unresponsive, SO #1 and SO #2 sat him up from a prone position, administered multiple doses of naloxone, contacted EMS, and performed CPR. On this record, it is apparent that neither subject official transgressed the limits of care prescribed by the criminal law.

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

Date: September 6, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit

Endnotes

  • 1) Unless otherwise specified, the information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s findings of fact following its investigation. [Back to text]
  • 2) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]

Note:

The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.