SIU Director’s Report - Case # 24-OCI-367
Warning:
This page contains graphic content that can shock, offend and upset.
Contents:
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 serious injuries sustained by a 36-year-old man (the “Complainant”).
The Investigation
Notification of the SIU[1]
On September 4, 2024, at 7:05 a.m., the Durham Regional Police Service (DRPS) notified the SIU of an injury to the Complainant.
According to the DRPS, on September 3, 2024, at 12:45 p.m., a DRPS constable took custody of the Complainant from two Toronto Police Service (TPS) constables. The Complainant had been arrested by TPS on the strength of a DRPS ‘fail to appear’ warrant. The prisoner transfer took place at a McDonald’s on Port Union Road, near the border of DRPS and TPS patrol zones. The Complainant appeared fine and was driven to the DRPS Central Lock-up. The DRPS officer pulled his cruiser inside the sally port and left the Complainant alone to go see the booking staff. Upon the officer’s return, the Complainant appeared groggy. The DRPS officer departed the station and drove the Complainant to Lakeridge Health (LH). The Complainant was initially put on a Narcan drip, but was later admitted to the Intensive Care Unit.
The Team
Date and time team dispatched: 2024/09/04 at 1:11 p.m.
Date and time SIU arrived on scene: 2024/09/05 at 9:32 a.m.
Number of SIU Investigators assigned: 2
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 September 5, 2024.
Subject Officials
SO #1 (TPS) Declined interview and to provide notes, as is the subject official’s legal right
SO #2 (TPS) Declined interview and to provide notes, as is the subject official’s legal right
SO #3 (DRPS) Interviewed; notes received and reviewed
SO #3 was interviewed on October 4, 2024.
Witness Officials
WO #1 (TPS) Interviewed
WO #2 (TPS) Interviewed
The witness officials were interviewed on September 27, 2024.
Investigative Delay
SO #3 was not interviewed until October 4, 2024. Toronto Emergency Medical Services (EMS) documentation was not received until October 8, 2024.
Evidence
The Scene
The events in question transpired in and around a TPS police cruiser as it travelled from an address near Fort York Boulevard and Dan Leckie Way, Toronto, to 7431 Kingston Road, Toronto; and continued in and around a DRPS police cruiser (below) as it travelled to 17 Division in Oshawa.
Figure 1 - The backseat of the DRPS vehicle
Video/Audio/Photographic Evidence[2]
Video Footage from Tim Hortons
The footage did not contain an audio track or time stamps.
The Complainant was seen outside the fenced in area of the Tim Hortons. He was approached by three TPS police officers. The Complainant was carrying a knapsack on his back. He was also in possession of a handbag. A police officer[now known to be WO #2] appeared to be speaking with the Complainant. The Complainant sat down on the sidewalk.
A marked police vehicle arrived on the roadway. A police officer [now known to be SO #1]exited the police vehicle and walked towards the other three police officers and the Complainant. SO #1 appeared to be speaking with the Complainant.
WO #2 walked closer to the Complainant and appeared to be speaking with him. SO #1also approached the Complainant. WO #1,on the left side of the Complainant, grabbed his left arm, and SO #1 grabbed his right arm. The Complainant was assisted by both police officers from the ground and raised to a standing position. The Complainant walked away from the Tim Hortons with SO #1 and WO #1 to SO #1’s vehicle. The other two officers picked up the Complainant’s knapsack and brought it to the police vehicle. WO #1 handcuffed the Complainant to the front.
SO #1 searched the Complainant’s left side, waist area, and SO #2 searched his right side. The Complainant appeared cooperative. The search of the Complainant and his belongings went on more than eight minutes. The Complainant was placed in the rear seat of the police vehicle.
Body-worn Camera (BWC) Footage - SO #2
On September 3, 2024, between 10:36:22 a.m. and 10:36:57 a.m., the Complainant stood with SO #2 and WO #2. SO #2 addressed the Complainant, “You know you’re wanted with Durham?” The Complainant said, “Kill the camera for one sec,” and SO #2 replied, “It’s already on, my man.”
Between 10:37:06 a.m. and 10:37:29 a.m., SO #2 said, “We’ll just make a call, they’ll probably not return for you, and then we can talk after, okay?” WO #2 said, “Listen, the cops asked you for your date of birth, and you gave the wrong date of birth, that’s obstruction of a police officer, that’s another criminal charge, so I’m going to give you a caution on that, so next time, you could be charged.” SO #2 and WO #2 informed the Complainant there was a bench warrant in effect for failure to attend court.
At 10:37:45 a.m., WO #2 read the Complainant his rights to counsel.
Between 10:37:47 a.m. and 10:39:42 a.m., WO #1 directed the Complainant to remove his hands from his clothing. The Complainant removed two bags from his shoulder, sat down, and had a cigarette.
At 10:40:44 a.m., WO #2 made a phone call and stepped away. WO #2 explained they had the Complainant in custody on a bench warrant and a warrant in the first out of their jurisdiction.
Between 10:45:02 a.m. and 10:47:10 a.m., SO #1 entered the left camera frame and stood to the Complainant’s right. SO #2 made a phone call and confirmed they could drive the Complainant to the Oshawa detachment.
Between 10:49:10 a.m. and 10:49:28 a.m., WO #2 informed the Complainant he would be transported to Oshawa. WO #1 and SO #1 held the Complainant’s arms and assisted him to his feet. The Complainant informed the police officers they could not handcuff him behind his back due to his hand. The Complainant seemed to have a physical disability to his upper body. SO #2 said, “We can accommodate you, it’s no problem, man […], but we’re still going to have to search you.” The Complainant informed the police officers he had syringes on him. SO #2 collected the Complainant’s bags, and WO #1 and SO #1 escorted the Complainant to a police vehicle parked southbound on Dan Leckie Way.
Between 10:50:12 a.m. and 10:50:48 a.m., the Complainant stood with his front against the front panel of the police vehicle. WO #1 handcuffed the Complainant’s left wrist and then handcuffed the right wrist in front of him.
Between 10:52:26 a.m. and 10:52:51 a.m., SO #2 searched the Complainant’s right pants pocket. The Complainant informed SO #2 there might be syringes in the shoulder bag he wore. SO #2 searched the Complainant’s right pants leg down to the right ankle. SO #2 then searched the Complainant’s back left pocket, lifted the back of his hoodie, and pulled his waistband out. SO #2 checked the Complainant’s right ankle and found he wore a pair of long johns under his pants.
At 10:53:26 a.m., SO #1 tugged on the back of the Complainant’s pants to pull them up for him. SO #1 asked the Complainant which hand to uncuff to assist in the removal of the hoodie, and he informed them the left hand.
At 10:53:41 a.m., WO #1 informed the Complainant he would be charged for possession of a schedule one substance. The Complainant said the bag belonged to his girlfriend. WO #1 said that did not matter.
Between 10:54:14 a.m. and 10:54:27 a.m., SO #2 began to assist the Complainant to remove his hoodie by pulling up the back of the hoodie. WO #1 found a scale in the bags she searched on the hood of the police vehicle, and SO #2 informed the Complainant he was also charged with possession for the purpose of trafficking a schedule one substance. The Complainant reported the scale belonged to his girlfriend. SO #1 continued to remove the hoodie.
Between 10:54:51 a.m. and 10:55:17 a.m., SO #1 removed a lanyard from the Complainant’s neck. The Complainant wore another hoodie under the outer hoodie, and SO #1 and SO #2 assisted with the removal of that item of clothing. SO #1 said, “The cuff is coming off just so you can get the satchel off, okay?”
At 10:55:58 a.m., the Complainant reported he did not feel well and requested water. SO #2 replied they needed to finish the search first.
At 10:56:33 a.m., SO #1 informed the Complainant the handcuffs would be reapplied, and he handcuffed the Complainant to the front.
At 10:57:06 a.m., SO #2 searched the Complainant’s hoodie. SO #2 patted the Complainant’s right arm, his front pants pocket, the back left pocket, and his back waistband. SO #2 slid his hand up the inner right thigh and up into the buttocks area with the back of his left hand. He then lifted the back of the Complainant’s sweater and T-shirt.
At 10:58:24 a.m., SO #2 asked SO #1 if he was satisfied with the search. SO #1 said, “On my side, yeah,” and SO #2 said he was satisfied with his side. SO #1 led the Complainant to the rear of the police vehicle and SO #2 joined WO #1 and WO #2 at the front of the police vehicle.
Between 10:58:47 a.m. and 11:01:09 a.m., SO #2 turned and faced north as SO #1 closed the rear passenger side door. The police officers dealt with sorting and searching the Complainant’s belongings. WO #2 informed SO #2 they had found a quantity of crystal methamphetamine.
At 11:01:33 a.m., SO #2 made a phone call to the Criminal Investigations Bureau and informed them they had the Complainant in custody on a warrant from DRPS. They had found scales and a quantity of crystal methamphetamine. The Complainant had provided a false name initially, but they recognized him from a prior interaction. The officer asked if they wanted him brought in for drug trafficking.
BWC Footage - SO #1
On September 3, 2024, at 10:44:17 a.m., SO #1 exited his police vehicle and walked to the sidewalk where he met up with SO #2, WO #1 and WO #2.
At 10:50:11 a.m., WO #1 and SO #1 directed the Complainant to lean stomach first against the front panel of the passenger side of SO #1’s police vehicle.
Between 10:52:29 a.m. and 10:52:55 a.m., SO #1 lifted the bottom of the Complainant’s hoodie on his left side. SO #1 searched the Complainant’s left pants pocket and the left lower pants pocket. SO #1 then searched the back left pocket of the Complainant’s pants.
At 10:58:46 a.m., SO #1 placed the Complainant into the rear passenger seat and closed the door.
Between 12:40:34 p.m. and 12:41:18 p.m., the video opened with a street view from the interior of SO #1’s police vehicle. SO #1 and WO #1 were parked in the McDonald’s parking lot located at 7431 Kingston Road. SO #1 opened the rear passenger side door of his police vehicle. The Complainant’s head nodded to the right as SO #1 called his name and informed him he needed to exit the vehicle. The Complainant was unresponsive.
Between 12:41:34 p.m. and 12:41:47 p.m., SO #1 used his left hand to raise the Complainant’s head. A gloved hand [now known to be WO #1’s] reached into the police vehicle and rubbed the Complainant’s right shoulder with a closed fist.
Between 12:42:10 p.m. and 12:42:21 p.m., SO #1 used his right fist to rub the Complainant’s chest as he and WO #1 called his name and tried to rouse him. WO #1 reached in and used her right fist to rub on the Complainant’s chest.
Between 12:42:48 p.m. and 12:43:51 p.m., SO #1 used his right hand to rub on the Complainant’s chest. WO #1 stepped in front of SO #1 and tried to rouse the Complainant. The Complainant mumbled.
Between 12:43:58 p.m. and 12:44:03 p.m., WO #1 pulled the Complainant’s left shin and turned him to face her. WO #1 used her right hand to grasp the Complainant’s left shirt sleeve and pulled him to a standing position. The Complainant began to fall to his right and SO #2 held him up.
Between 12:44:11 p.m. and 12:44:49 p.m., SO #3 introduced himself to the Complainant and the Complainant mumbled. The Complainant attempted to answer SO #3, and he began to drool.
At 12:45:18 p.m., SO #3 asked the Complainant when he last consumed illegal substances or alcohol. The Complainant slowly shook his head from side to side. The Complainant held himself up in a bent over position and WO #1 urged him to stand up straight. The Complainant stood with his eyes closed as WO #1 removed the handcuffs.
Between 12:46:36 p.m. and 12:46:53 p.m., SO #3 handcuffed the Complainant to the front. SO #1 assisted the Complainant to the rear driver’s side seat and placed him in SO #3’s police vehicle.
Between 12:49:18 p.m. and 12:51:08 p.m., WO #1 provided the Complainant a cigarette, which he had requested. SO #1, WO #1 and SO #3 stood outside the open rear driver’s side door. The Complainant rested his head on his hands with his eyes closed as he held a lit cigarette with his left hand.
In-car Camera (ICC) Footage – Street View - SO #1
On September 3, 2024, at 10:50:09 a.m., the Complainant was directed into the right camera frame by SO #2 and SO #1. The Complainant was made to stand at the front passenger side of the police vehicle. His backpacks and bags were placed on the hood of the police vehicle. The items and the Complainant were searched.
At 10:54:23 a.m., the Complainant removed his sweater with the help of SO #2 and SO #1. He wore a hoodie under the sweater. The police officers assisted him to remove the hoodie and a satchel.
At 10:56:45 a.m., SO #1 handcuffed the Complainant’s hands in front of him.
At 10:58:27 a.m., the Complainant was escorted by SO #2 and SO #1 out of the right camera frame.
ICC Footage – Rear Seat View - SO #1
On September 3, 2024, at 10:58:40 a.m., the rear passenger door opened, and the Complainant was directed into the rear passenger seat by SO #1.
At 10:59:02 a.m., the Complainant used his left hand to touch the front of his waistband and move it around his stomach.
Between 11:00:23 a.m. and 11:00:43 a.m., the Complainant used his left hand to reach into the front waistband of his pants. The Complainant sat still with his left hand on his lap.
Between 11:06:44 a.m. and 11:06:52 a.m., the Complainant asked for water and reported he did not feel well. SO #1 said, “No.”
At 11:07:58 a.m., the rear passenger side door opened and WO #1 spoke with the Complainant to inform him he was not going to be charged for the quantity of crystal methamphetamine. The Complainant asked not to be transported to Oshawa as he felt police officers would want to speak with him. The Complainant was informed he would be transported to Oshawa based on the outstanding warrant. The Complainant requested a stop to get his methadone. He explained he would go into withdrawal if he did not take his methadone. The police officers refused to make an extra stop and the Complainant requested to attend a hospital. The police officers informed the Complainant they would call 911 if he had a seizure.
At 11:16:25 a.m., the rear passenger side door opened and SO #1 handed the Complainant a Tim Hortons cup. The Complainant drank from the cup.
At 11:17:34 a.m., the Complainant requested transport to the hospital as he felt a seizure pending. The Complainant began to shake.
At 11:18:06 a.m., WO #1 informed the Complainant they would take care of him and work it out once at the police station. The Complainant asked which station and WO #1 said, “Oshawa.” The Complainant reported he was having a seizure and began to convulse.
Between 11:19:16 a.m. and 11:19:44 a.m., SO #1 and WO #1 asked the Complainant what he was doing. The rear passenger side door opened. SO #1 spoke with the Complainant and the Complainant reported he required his methadone, or he would get extremely ill. The Complainant insisted he would play the game to make them stay in emergency all day long, and cursed at the police officer. SO #1 shut the door.
At 11:21:41 a.m., the Complainant used his left hand to fumble around the front of his waistband and tug on his sweater.
At 11:23:54 a.m., the rear passenger side door opened and WO #1 asked the Complainant if he was all right. The Complainant responded, “No.”
Between 11:25:42 a.m. and 11:26:03 a.m., the Complainant refused to speak with paramedics. He addressed the paramedics, “I’m good, I’m good, don’t waste your time, I’m good, close the door, fuck off.”
Between 11:28:48 a.m. and 11:29:40 a.m., the Complainant used his left hand to fumble with the front of his sweater by his waistband. The Complainant rested his hand in his lap. The Complainant used his left fingers to fumble with the front of his sweater.
At 11:30:14 a.m., the Complainant moved his left hand to his face and stuck out his tongue.
At 11:37:20 a.m., the police vehicle was moving.
Between 12:13:40 p.m. and 12:19:43 p.m., the police vehicle stopped in a residential area in Scarborough at Lawrence Avenue and Kingston Road [now known to be a shopping plaza]. WO #1 exited the police vehicle, and then re-entered.
At 12:31:50 p.m. and 12:40:24 p.m., the police vehicle was in transit.
Between 12:41:16 p.m. and 12:41:46 p.m., the rear passenger side door opened and SO #1 said, “[The Complainant], hey!” SO #1 used his left hand and held the Complainant’s head up as he attempted to rouse him. WO #1 reached into the police vehicle from behind SO #1 and used her right hand in a fist to rub on the Complainant’s sternum. SO #1 and WO #1 rubbed the Complainant’s sternum, shook him by the shoulder and tried to sit him upright but the Complainant remained asleep.
Between 12:43:22 p.m. and 12:43:37 p.m., WO #1 used her right hand to hold the Complainant by the right shoulder and pressed her right thumb into his clavicle as she repeated the Complainant’s name. The Complainant lifted his hands slowly and breathed deeply. WO #1 pulled the Complainant’s legs to the side and encouraged him to stand.
At 12:44:04 p.m., the Complainant exited the police vehicle and stood outside the rear passenger side door.
At 12:46:54 p.m., the Complainant was escorted out of the top camera frame. The Complainant was unsteady on his feet and crossed over his legs as he stepped.
DRPS Sally Port Video Footage
On September 3, 2024, between 1:21:46 p.m. and 1:21:52 p.m., the exterior door of the sally port began to rise. The driver’s side of a fully marked DRPS police vehicle was in front of the door. The police vehicle backed up and turned nose first into the sally port.
Between 1:22:13 p.m. and 1:22:30 p.m., the driver’s door opened and SO #3 exited the police vehicle. He opened the rear driver’s side door and reached into the back seat with his left arm. SO #3 closed the rear driver’s side door, closed the sally port door, and exited through a door to the right camera frame at the top of the sally port.
Between 1:29:43 p.m. and 1:29:49 p.m., SO #3 entered the right camera frame and walked to the rear driver’s side door. He opened the rear driver’s side door and bent over to reach in. Due to the angle, it was not clear what happened.
Between 1:31:31 p.m. and 1:31:57 p.m., SO #3 closed the rear passenger door, sat in the driver’s seat, and closed the door. The police vehicle reversed from the sally port and exited the left camera frame.
BWC Footage – SO #3
On September 3, 2024, at 12:40:31 p.m., SO #3 met TPS WO #1 and SO #1 in the McDonald’s parking lot for the transfer of custody of the Complainant. WO #1 stood next to SO #1’s TPS police vehicle.
Between 12:41:06 p.m. and 12:41:19 p.m., SO #1 opened the rear passenger side door of the TPS police vehicle and supported the Complainant’s head. He called the Complainant’s name and told him he was being transferred to SO #3.
Between 12:41:32 p.m. and 12:41:46 p.m., WO #1 informed SO #3 the Complainant was handcuffed in front due to an injury to his hand. SO #1 attempted to rouse the Complainant by raising his bowed head and calling his name. WO #1 reached into the TPS police vehicle with her right hand and shook the Complainant. WO #1 and SO #1 attempted to rouse the Complainant with verbal requests and contact to his upper body. The Complainant did not respond.
Between 12:43:22 p.m. and 12:44:05 p.m., WO #1 stepped closer to the Complainant and appeared to shake him with her right hand. The Complainant was assisted to a standing position by WO #1 and SO #1.
Between 12:44:14 p.m. and 12:44:51 p.m., the Complainant mumbled but it was not clear what he tried to say. SO #3 informed the Complainant he would try to get him before the bail court today. The Complainant mumbled, and drool fell from his mouth.
Between 12:45:18 p.m. and 12:45:44 p.m., SO #3 asked the Complainant the last time he had consumed illegal substances or alcohol. The Complainant slowly shook his head from side to side. The Complainant slowly bent over. WO #1 directed him to stand up to remove the handcuffs. SO #1 stood to the Complainant’s right and supported him while WO #1 supported him on the left and removed the handcuffs.
Between 12:46:37 p.m. and 12:47:02 p.m., SO #3 handcuffed the Complainant in the front. The Complainant requested a cigarette and SO #3 directed him to sit in the rear driver’s side seat of his DRPS police vehicle. SO #3 agreed to allow the Complainant to smoke a cigarette. SO #1 assisted the Complainant to reposition himself on the seat.
Between 12:48:02 p.m. and 12:48:50 p.m., SO #3 informed the Complainant he was under arrest for failure to return to court and read him his rights to counsel. The Complainant had his eyes closed and he teetered forward.
Between 12:49:17 p.m. and 12:50:05 p.m., WO #1 handed the Complainant a lit cigarette. The Complainant lost his footing on the edge of the vehicle and fell forward but caught himself before he fell out of the police vehicle completely.
At 12:51:11 p.m., SO #3 stood to the side of the police vehicle and spoke with WO #1 and SO #1. The Complainant sat sideways in the rear passenger seat and rested his head on his hands with the cigarette in his left hand. The Complainant’s eyes were closed.
At 12:52:35 p.m., SO #3 asked the Complainant if he had consumed any illegal substances or alcohol. There was no audible response from the Complainant.
At 12:53:04 p.m., SO #3 asked the Complainant when he had last consumed alcohol or illegal substances. The Complainant reported he did not remember. SO #3 allowed the Complainant to finish his cigarette and assisted him to sit in the rear driver’s side seat to allow the door to close.
Between 12:54:47 p.m. and 12:55:42 p.m., SO #3 sat in the driver’s seat and was in transit.
Between 1:22:11 p.m. and 1:22:19 p.m., SO #3 arrived in the DRPS station sally port. SO #3 opened the rear driver’s side door. The Complainant sat bent over with his head between his legs. SO #3 used his left index finger to poke under the Complainant’s left armpit and told him he would be right back.
At 1:36:27 p.m., the video opened with a view from the interior of the emergency entry to LH.
Between 1:36:50 p.m. and 1:36:59 p.m., SO #3 opened the rear passenger door and grabbed the Complainant by his left arm. SO #3 said, “Hey, we’re at the hospital here.”
Between 1:37:08 p.m. and 1:37:22 p.m., SO #3 pulled the Complainant’s left leg out of the police vehicle and encouraged him to get out. SO #3 pulled the Complainant’s right leg out of the police vehicle. The Complainant made a gurgling sound.
Between 1:37:24 p.m. and 1:37:26 p.m., SO #3 used his left hand to pick up a brown substance from the Complainant’s left pant leg. SO #3 said, “I think you’re lying to me about taking drugs earlier.”
Between 1:37:36 p.m. and 1:37:47 p.m., SO #3 placed the brown substance in a white top container. SO #3 assisted the Complainant out of the police vehicle.
Between 1:38:07 p.m. and 1:38:10 p.m., SO #3 stood to the Complainant’s left side and used his right hand to support the Complainant and used his left hand to pat at his left pocket. SO #3 lifted the Complainant’s shirts and two small white objects fell to the ground and two more fell into SO #3’s hand. SO #3 dropped them on the ground with the others.
At 1:38:21 p.m., SO #3 rested the Complainant with his back against the trunk of his police vehicle and lifted the Complainant’s shirt again. Two white objects fell to the ground. The Complainant said, “Did that on purpose.”
At 1:38:34 p.m., SO #3 said, “Just watch him there,” and a voice [now known to be a DRPS police officer] said, “What going on?” SO #3 said, “Well, Toronto did a search and not a very good search, ‘cause this is all drugs that were on him” (as he picked up the pieces from the ground and placed them in the white container).
At 1:38:51 p.m., SO #3 said, “A bunch of fentanyl.”
Between 1:38:59 p.m. and 1:39:45 p.m., SO #3 conducted a pat down search on the Complainant. SO #3 escorted the Complainant into the hospital to be cleared medically.
At 1:40:37 p.m., SO #3 directed the Complainant to sit on a bench.
Materials Obtained from Police Service
The SIU obtained the following records from the DRPS and TPS between September 9, 2024, and October 4, 2024:
- DRPS Warrants for the Complainant;
- TPS Occurrence Report;
- TPS Notes – WO #1 and WO #2;
- DRPS Sally Port Footage;
- DPRS Directives: Arrest and Warrant, Prisoner Transportation, and Search of Persons;
- DPRS BWC footage – SO #3;
- DRPS ICC footage – SO #3;
- DRPS Photos;
- Property Report;
- TPS BWC and ICC footage;
- TPS Policies: ;
- DRPS notes - SO #3; and
- DRPS Arrest Report – SO #3.
Materials Obtained from Other Sources
The SIU obtained the following records from other sources between September 6, 2024, and October 8, 2024:
- Tim Horton’s video footage;
- The Complainant’s medical records from LH;
- Toronto EMS Ambulance Call Report; and
- Toronto EMS Incident Summary.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant, SO #3 and other police witnesses, as well as video footage that captured the incident in parts, gives rise to the following scenario. As was their legal right, SO #1 and SO #2 chose not to interview with the SIU or authorize the release of their notes.
In the morning of September 3, 2024, TPS officers on patrol in the area of Dan Leckie Way and Fort York Boulevard responded to a loitering call at Tim Hortons. Upon arrival officers found the Complainant asleep at a table inside the restaurant surrounded by several bags. WO #2 woke the Complainant and asked him to go outside with her and WO #2 and SO #2. The Complainant was cooperative in exiting the restaurant but provided a false name to police during the investigation. Police recognized him from a prior interaction and were able to confirm his identity. They discovered that he had outstanding warrants in Durham region.
The Complainant was arrested on the strength of the warrants. Due to a physical disability, he was handcuffed to the front of his body and searched incident to arrest. WO #1 and WO #2 searched the Complainant’s belongings and located a substance believed to be crystal methamphetamine, scales, and a large quantity of syringes. SO #2 and SO #1 conducted a frisk search of the Complainant’s person. SO #1 searched the Complainant’s left side and waist area, and SO #2 searched his right side. SO #2 asked SO #1 if he was satisfied with the search. SO #1 said, “On my side, yeah,” and SO #2 said he was satisfied with his side. No evidence or drugs were located on the Complainant’s person. Arrangements were made for DRPS officers to meet TPS officers at a midway point between Toronto and Durham Region for the transfer of the Complainant. The Complainant asked not to be transported to Oshawa as he felt police officers would want to speak with him. The Complainant was informed he would be transported to Oshawa based on the outstanding warrants.
While waiting for his transportation to the DRPS, the Complainant began complaining of not feeling well. He asked for methadone, and reported that he would get sick without it. At 11:17:34 a.m., he advised he did not feel well and was about to have a seizure. He asked to be taken to the hospital and began to shake. At 11:18:06 a.m., WO #1 informed the Complainant they would take care of him and work it out once at the police station. The Complainant asked which station, and WO #1 said, “Oshawa.” The Complainant reported he was having a seizure and began to convulse. WO #2 saw the Complainant suffering a seizure and requested EMS. At 11:19:16 a.m., SO #1 asked the Complainant what he was doing. The Complainant stated he would play the game to make them stay in emergency all day long and cursed at the officer.
At 11:25:42 a.m., upon arrival of the ambulance, the Complainant refused to speak with paramedics. He addressed the paramedics, “I’m good, I’m good, don’t waste your time, I’m good, close the door, fuck off.”
At 11:37:20 a.m., WO #1 and SO #1 were en route to the meeting point. The Complainant had a quantity of fentanyl secreted on his person. Despite his arms being handcuffed, the Complainant was able to retrieve the substance from the left side of his waistband and ingest it.
Shortly before 12:46 p.m., WO #1 and SO #1 arrived at a McDonald’s parking lot located at 7431 Kingston Road, with the Complainant, where custody was transferred to SO #3. They informed SO #3 that the Complainant had played up his condition. WO #1 and SO #1 opened the back door of the police cruiser where the Complainant was leaned over and sleeping. They woke the Complainant after about 30 seconds of rubbing his chest with knuckles and shaking his shoulder. WO #1 and SO #1 assisted the Complainant from the police vehicle, and SO #3 escorted the Complainant to his police vehicle.
SO #3 did not search the Complainant as the TPS police officers informed him they already searched him. SO #3 trusted their search and did not conduct his own. SO #3 asked the Complainant if he had consumed illegal substances or alcohol and the Complainant said, “No.” SO #3 asked the Complainant when he had last consumed illegal substances or alcohol, and the Complainant reported he did not remember. The Complainant’s speech was slurred. SO #3 was not certain if the Complainant was under the influence or playing up his condition. The Complainant drooled but SO #3 did not know if that was from sleeping. The Complainant had a slow gait and had to be questioned twice before he responded. SO #3 was not informed that TPS officers had found illegal substances, syringes, and scales on the Complainant when they conducted their search.
The transport took 26 minutes. Upon arrival at the police station, prior to being paraded, SO #3 noticed that the Complainant appeared drowsier than he had before. SO #3 searched the Complainant and found a container concealed under his clothing in his waistband containing fentanyl, which he believed the Complainant might have consumed. He transported the Complainant to the hospital.
Once at the hospital SO #3 assisted the Complainant out of the police vehicle, and conducted a subsequent search of his person, wherein approximately seven small packets of suspected fentanyl were located. The Complainant said, “I did it on purpose.”
At hospital the Complainant was treated and eventually recovered from a drug overdose.
Relevant Legislation
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.
Analysis and Director’s Decision
On September 3, 2024, the Complainant lapsed into medical distress while in the custody of the DRPS. The SIU was notified of the incident and initiated an investigation. SO #1, SO #2 and SO #3 were recognized as the officers with primary responsibility for the care of the Complainant during his time in custody and were identified as subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials committed a criminal offence in connection with the medical condition of the Complainant.
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 SO #1, SO #2 or SO #3, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or contributed to his medical condition. In my view, there was not.
At the time of the events in question, the Complainant was lawfully in custody on the strength of outstanding warrants held by the DRPS.
With respect to the care afforded the Complainant while in police custody, I am unable to reasonably conclude that any of the subject officials transgressed the standards prescribed by the criminal law. The issue essentially comes down to the searches that were performed, or not performed, by the officers, and how it was that the Complainant remained in possession of drugs on his person, which he was able to retrieve and ingest while in the TPS police cruiser.
The Complainant was subject to a pat-down / frisk search prior to being placed in the TPS police cruiser, where it appears he accessed the drugs from his waistband and ingested them. SO #1 and SO #2 failed to find the quantity of drugs in his waistband or elsewhere in his clothing when they initially searched the Complainant at the scene of the arrest. Though no strip search might have revealed the drugs, a strip search would have been inappropriate in the circumstances because the initial search was visible to the public. As per the Supreme Court of Canada’s decision in R. v. Golden, [2001] 3 SCR 679, strip searches should occur in private where no one other than those conducting the search can observe the search. Instead, the decision to do a less invasive pat-down / frisk search before transporting the Complainant while handcuffed was a reasonable approach. While the decision to secure the handcuffs in front of the Complainant, as opposed to behind him, contributed to his ability to access the drugs on his person during the transport, this choice was also reasonable given the bona fide need to accommodate the Complainant’s disability.
No search was conducted by SO #3 when he took custody of the Complainant from SO #1 and SO #2 at the transfer point; he relied on the search that had already been completed by SO #1 and SO #2. During the transfer SO #3 asked the Complainant if he had consumed illegal substances or alcohol, and the Complainant said, “No.” He asked the Complainant when he had last consumed illegal substances or alcohol, and the Complainant reported he did not remember. Though he appeared tired and lethargic at times later in his interactions with police, the Complainant had told officers that he would play the game to make them stay in emergency all day long. He had also refused medical treatment when EMS was called and attended at the scene of his arrest.
I accept that SO #3 was not informed the TPS officers had found illegal substances and scales when they searched the Complainant. Had he been informed he might have chosen to search the Complainant at the transfer. In any event, it is clear that when the Complainant’s symptoms worsened, SO #3 sought medical attention in a timely fashion, transporting the Complainant to the hospital himself.
It is clear that SO #3 erred in not searching the Complainant when he took him into custody; however, the Complainant had already ingested the illegal substance prior to being transferred. At best a search by SO #3 at the transfer would have resulted in the Complainant being taken to hospital earlier. It would not have addressed him being able to ingest an illicit substance during transport.
It is troubling that the Complainant was still in possession of illicit drugs, which were located on his person when searched by SO #3. However, if the search conducted by SO #1 and SO #2 was substandard, I am unable to conclude that their conduct fell markedly below a reasonable standard of care. The frisk search, captured on camera, gave the appearance of being a complete search that included the removal of the Complainant’s hoodies, the patting of his pockets, and the pulling out of his waistband.
In the result, as there are no reasonable grounds to conclude that any of the subject officials transgressed the limits of care prescribed by the criminal law in their dealings with the Complainant, there is no basis for proceeding with criminal charges. The file is closed.
Date: January 2, 2025
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.