SIU Director’s Report - Case # 24-OCI-424
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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 the serious injury of a 42-year-old man (the “Complainant”).
The Investigation
Notification of the SIU[1]
On October 4, 2024, at 2:52 p.m., the Thunder Bay Police Service (TBPS) contacted the SIU with the following information.
On October 4, 2024, TBPS officers attended an address in the area of Balmoral Street and Forest Street, Thunder Bay, for a suspicious person call. The Complainant was arrested on two outstanding warrants at 5:20 a.m. The arrest was without incident, and the Complainant was transported to the TBPS headquarters.
At 5:30 a.m., while at the police station during the intake process, the Complainant was seated on a metal bench in the booking room. Both legs were bent at the knees and his arms and hands were wrapped around his legs. He was not handcuffed. The Complainant was coming down after ingesting fentanyl several hours prior. At that time, he fell off the bench and onto the floor. There was no visible injury, and he was lodged in a holding cell without incident.
At approximately 10:00 a.m., the Complainant was removed from his cell and brought before a Justice. At that time, he complained of pain to his left shoulder and Emergency Medical Services (EMS) were contacted.
At approximately11:20 a.m., the Complainant was transported to the Thunder Bay Regional Health Sciences Centre (TBRHSC). After X-rays he was diagnosed with a broken left clavicle. The Complainant was then remanded to the Thunder Bay Jail.
The Team
Date and time team dispatched: 2024/10/07 at 8:22 a.m.
Date and time SIU arrived on scene: 2024/10/07 at 2:26 p.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
42-year-old male; interviewed; medical records obtained and reviewed
The Complainant was interviewed on October 8, 2024.
Subject Official (SO)
SO Declined interview and to provide notes, as is the subject official’s legal right
Witness Officials (WO)
WO #1 Interviewed; notes received and reviewed
WO #2 Interviewed; notes received and reviewed
The witness officials were interviewed between October 21, 2024, and October 22, 2024.
Service Employee Witness (SEW)
SEW Interviewed; notes received and reviewed
The service employee witness was interviewed on October 22, 2024.
Evidence
The Scene
The events in question transpired in and around the booking area of the TBPS Headquarters, 1200 Balmoral Street, Thunder Bay.
Video/Audio/Photographic Evidence[2]
Body-worn Camera (BWC) Footage - WO #2 and WO #1
The footage revealed no issues or conflict during the Complainant’s arrest or transport to the TBPS station.
In-car Camera (ICC) Footage - WO #2 and WO #1
No issues or concerns. There was nothing in the footage to suggest the Complainant was injured during his arrest or transport to the TBPS station.
Custody and Cell Footage
On October 4, 2024, starting at about 5:05:30 a.m., the Complainant was escorted into the booking area handcuffed to the rear. WO #1 removed the handcuffs and WO #2 guided the Complainant through the intake process. The SO was also present. The Complainant was unsteady on his feet.
Starting at about 5:12:53 a.m., WO #1 stood alone in the booking hall. The Complainant, and WO #2 and the SO, walked into the booking hall from the cell area. The Complainant sat on the bench, positioned himself sideways, put his feet up onto the bench pulling his knees to his chest and tucking them under his shirt. WO #2 told the Complainant to open his eyes and pay attention. The Complainant was asked if he had any alcohol or drugs in his system, and he responded “mhm”. Recalling that the Complainant had admitted to taking fentanyl earlier, WO #2 asked when he had last consumed fentanyl. Initially, the Complainant did not respond, and WO #2 had to repeat his name twice. The Complainant then responded, “I have to see.”
Starting at about 5:17:21 a.m., the Complainant was sleeping on the custody bench with his feet up and almost fell. He regained his balance and returned to the same position on the bench.
The SO told the Complainant to put his feet on the ground because he was going to fall.
Starting at about 5:20:21 a.m., the Complainant fell from the bench onto the floor. The Complainant screamed out and started crying, moving his right hand to his left shoulder. The Complainant got up from the ground and sat back on the bench still crying. WO #2 told the Complainant to sit on the floor. WO #1 told WO #2 to place the Complainant in a cell. WO #1 walked to the Complainant and told him to get up. WO #1 and WO #2 walked the Complainant, still crying, to his cell. The SO walked away. No medical attention was offered by the officers.
Starting at about 10:54 a.m., the Complainant was observed walking with the SEW and a police employee to WASH[3] court. He was hunched over and favoured his left shoulder.
The Complainant sat on a bench in front of a camera for WASH court. He favoured his left shoulder. At one point, the Complainant laid down on the bench. It appeared the Complainant sat back up and court was in session. During this time, the SEW appeared to be speaking to the courtroom. The Complainant was bent over on the bench. When court ended the Complainant had difficulty getting up from the bench to walk back to his cell. The Complainant left WASH court bent over favouring his left shoulder with the SEW and the female following.
Starting at about 11:20 a.m., the SEW returned the Complainant to his cell. Twenty-two minutes later, a uniformed sergeant arrived at the cell with the SEW. The Complainant removed his shirt and turned around facing in the direction of the sergeant. The sergeant and special constable left the cell area. The Complainant placed his shirt back on and laid down on the bench. Eighteen minutes later, the SEW opened the cell door for two paramedics who entered the cell. The Complainant was then removed from the cell, and they departed the custody area.
Materials Obtained from Police Service
Upon request, the SIU obtained the following records from the TBPS between October 10, 2024, and December 4, 2024:
- Communications recordings
- Computer-assisted Dispatch Report
- General, Supplementary, Arrest, and Lodging Reports
- Booking and cell block footage
- ICC footage
- BWC footage
- TBPS Prisoner Care Policy
- TBPS Jailer Training Manual
- Bench Warrant - the Complainant
- Notes - WO #1 and WO #2, and the SEW
Materials Obtained from Other Sources
The SIU obtained the medical records of the Complainant from TBRHSC on December 2, 2024.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and police witnesses, and video footage that captured the incident in part, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the morning of October 4, 2024, WO #1 and WO #2 were dispatched to a residence in the area of Balmoral Street and Forest Street, Thunder Bay, for an unknown male in the neighbourhood, walking through yards and driveways and looking into cars. Upon arrival, officers observed the Complainant in the vicinity of the property; he matched the description of the male. The Complainant provided a false name to police during the investigation, but they were able to confirm his identity by a tattoo and learned that he had two outstanding warrants. The Complainant was arrested on the strength of the warrants, searched, and transported to TBPS headquarters without incident.
Upon arrival at TBPS headquarters, the Complainant was escorted to the booking hall and put through the intake process. WO #2 asked the Complainant if he had any drugs or alcohol in his system. The Complainant admitted to having fentanyl in his system. WO #2 asked the Complainant when he had last consumed fentanyl, and he did not respond. WO #2 called his name twice to prompt him to answer and the Complainant said, “I have to see.” During the intake process, the Complainant was lethargic and unsteady on his feet. His speech was slow and slurred, and he had to be asked questions a number of times before he responded. He was falling asleep while talking to WO #2.
While waiting for the intake process to be completed, the Complainant, heavily intoxicated at the time, was seated on a bench affixed to the wall in the booking hall. The bench was approximately 2.4 metres long, and 0.6 metres high. The Complainant positioned himself sidelong on the bench in a crouched position with his knees tucked under his shirt, his arms folded on his knees, and his head resting between his arms. At 5:17:21 a.m., the Complainant almost fell off the bench but regained his balance. The SO told him to put his feet down because he was going to fall. The Complainant returned to the same position on the bench. At 5:18:46 a.m., WO #2 cautioned the Complainant that he was going to fall. At 5:20:22 a.m., while asleep on the bench with both legs bent at the knees and tucked under his shirt, his head now between his knees, his arms extended with hands folded and resting on his feet, the Complainant fell sidewards from the bench to the concrete ground.
Upon falling to the ground, the Complainant screamed out and started crying, moving his right hand to his left shoulder. The Complainant got up from the ground and sat back on the bench still crying. WO #2 told the Complainant to sit on the floor. WO #1 told WO #2 to place the Complainant in a cell and told the Complainant to get up. WO #1 and WO #2 walked the Complainant, still crying, to his cell. No medical attention was suggested or offered by any of the officers.
After being lodged, the Complainant was monitored throughout the morning and checked regularly by staff. Staff noticed that the Complainant was moaning as the checks continued. At 9:13 a.m. the SEW asked the Complainant if he was “dope sick”. The Complainant advised he was coming down from using fentanyl earlier. At 9:49 a.m., the SEW asked the Complainant if he was okay, and he advised that his shoulder was sore. At 10:02 a.m., the SEW went to see the Complainant, and the Complainant complained more about his left shoulder. He was asked if he wanted medical attention and declined. The SEW assumed with him coming off the fentanyl high the pain was becoming more intense.
At 10:54 a.m., the Complainant appeared in WASH court, where the presiding justice observed him to be in distress and insisted he get medical attention. 911 was called and EMS took the Complainant to the TBRHSC, where he was diagnosed with a fracture to his left clavicle.
Relevant Legislation
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
The Complainant was seriously injured while in the custody of the TBPS on October 4, 2024. The SIU was notified of the incident and initiated an investigation naming the jailer - 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 SOcommitted a criminal offence in connection with the Complainant’s arrest and injury.
The offence that arises for consideration is criminal negligence causing bodily harm contrary to section 221 of the Criminal Code. The offence is reserved for serious cases of neglect that demonstrate a wanton or reckless disregard for the lives or safety of other persons. It is predicated, in part, on conduct that amounts to a marked and substantial departure from the level of care that a reasonable person would have exercised in the circumstances. In the instant case, the question is whether there was a want of care on the part of the SO, sufficiently egregious to attract criminal sanction, that caused or contributed to the Complainant’s injury. In my view, there was not.
At the time of the incident in question, the Complainant was lawfully in custody on the strength of outstanding warrants.
I accept that the Complainant’s injury was the result of his fall from the booking bench to the ground. However, there was very little opportunity for the officers to process what was happening, much less to take any steps to prevent it. It is true that the Complainant had almost fallen moments before and that the officers present, including the SO, seemed to have been aware that he was at risk of falling again. That said, this was not a situation of high alert demanding immediate preventative measures. Nor did the officers turn a blind eye – they warned him to sit properly and knew that he would be taken to a cell soon. The Complainant was checked regularly in cells and had conversation with personnel who monitored him. When it appeared that the Complainant was in medical distress, medical attention was offered. The Complainant declined. It was a short time later than paramedics were called to the scene and took the Complainant to hospital.
In the result, there are no reasonable grounds to conclude that the SO transgressed the limits of care prescribed by the criminal law in his dealings with the Complainant. As such, there is no basis for proceeding with charges in this case. The file is closed.
Date: January 31, 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]
- 3) WASH = Weekend, After hours, Statutory Holiday court [bail court after typical weekday court hours]. [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.