SIU Director’s Report - Case # 20-PCI-106
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Mandate of the SIU
Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.
Freedom of Information and Protection of Privacy Act (“FIPPA”)Pursuant to section 14 of FIPPA (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 whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- Subject Officer name(s);
- Witness Officer name(s);
- Civilian Witness name(s);
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation may have also 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.
“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.
This report relates to the SIU’s investigation into a serious injury sustained by a 17-year-old youth (the “Complainant”).
Notification of the SIUOn May 6, 2020 at 4:43 p.m., the Ontario Provincial Police (OPP) reported the Complainant’s hospital admission.
The OPP advised that at 12:30 a.m., on May 6, 2020, OPP police officers from the Leamington Detachment responded to a call regarding a possible stabbing in Leamington. Three men were seen running by a civilian, who overheard one of them say that he had been stabbed. The Subject Officer (SO) and Witness Officer (WO) #2 arrived and located the Complainant, who was standing by a man lying on the ground. The police officers arrested the Complainant on reasonable grounds to believe he had committed an assault causing bodily harm and placed him in the back of WO #2’s cruiser. The Complainant’s arrest was in relation to an investigation unrelated to this incident. At 1:20 a.m., the SO transported the Complainant to the detachment in WO #2’s cruiser. At 1:34 a.m., the Complainant was placed in the cells. The Complainant admitted he had consumed alcohol and smoked marijuana. At 9:56 a.m., WO #1 tried to speak to the Complainant but the Complainant would not respond to the police officer. The Complainant was breathing heavily, and the police officer became concerned for the Complainant’s health. Windsor Essex Emergency Medical Services were called and the Complainant was transported to Erie Shores Health Centre (ESHC). At 2:30 p.m., the Complainant was admitted into care and intubated.
The OPP attempted to confirm the Complainant’s medical condition. At 5:40 p.m., the OPP contacted the SIU and advised that the Complainant was found to have cocaine, Demerol and marijuana in his system. According to the OPP, he was to be transferred to London Health Sciences Centre (LHSC).
The TeamNumber of SIU Investigators assigned: 3
The Complainant was contacted by an SIU investigator on June 9, 2020 and, at that time, the Complainant did not want to give the SIU a statement.
On June 18, 2020, four witness officers and one civilian police witness were interviewed.
On July 6, 2020, the subject police officer – the SO - was interviewed.
The Complainant did not sign a medical release and medical records were not obtained.
Complainant:17-year-old male, not interviewed
Witness OfficersWO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
Police Employee WitnessesPEW Interviewed
Subject OfficersSO Interviewed, but declined to submit notes, as is the subject officer’s legal right.
The SceneThe Complainant was held in cell number one at the Leamington Detachment of the OPP.
Sally Port, Booking and Cell Video ReportThe following is a summary of the video recordings dated May 6, 2020:
The Complainant was captured handcuffed, with his hands in front of him, and wearing dark-coloured sweatpants with an elastic waistband and some sort of shoes or boots. He was not wearing a shirt. He was bent forward at the waist as he walked into the booking area from the sally port. It was hard to assess the Complainant’s sobriety as he was bent over but he was not fall down drunk. WO #3 assisted the SO and they walked the Complainant into cell number one. The Complainant was never searched in the police station before he was placed in the cell. The Complainant sat on the bench and the SO removed the Complainant’s handcuffs and footwear.
At 1:33 a.m., WO #3 searched the backseat area of the SO’s cruiser.
At 1:48 a.m., a second prisoner was brought into the lock-up area and the SO placed the prisoner in cell number two, next to the Complainant’s cell.
Between 2:12 a.m. and 2:23 a.m., paramedics were called for the second prisoner. The Complainant stood in his cell and watched the paramedics.
At 2:45 a.m., a civilian guard, the PEW, was in the cell area and checked on the Complainant.
The Complainant was extremely restless throughout the entire time he was in the cell. At times he lay or sat on the bench and at other times he lay or sat on the floor. He attempted to stand and, on many occasions, fell over. On one occasion, he struck his head on the wall. Just when it looked like he was falling asleep, he suddenly jarred awake. The Complainant’s stomach rose up and down when he breathed. The Complainant pushed himself up to a seated position and two dark objects, which looked like baggies, appeared to fall from the right side of his waistband or right-side pocket onto the bench to the right of the Complainant. The Complainant was oblivious to the baggies. He did not react or look at the baggies. He placed his hand on one of the baggies and knocked it onto the floor when he stood up a few seconds later. Both baggies ended up on the floor and were pushed and moved around beneath the blankets.
At 9:56 a.m., a police officer [now known to be WO #1] was outside of the Complainant’s cell as the Complainant lay on the floor with his head next to the toilet.
At 10:24 a.m., paramedics attended the cell. The Complainant pushed himself up to a standing position and stepped to the stretcher, which was just outside of the cell door. The baggies were in plain view on the cell floor next to the bench. The Complainant was not seen to consume anything.
At 10:32 a.m., the Complainant was taken on the stretcher by the paramedics out through the garage.
Police Communications RecordingsThe audio communications for this investigation were reviewed and found to have no investigative value.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from the OPP:
- Communications recordings;
- General Occurrence Report;
- Computer-aided Dispatch Reports;
- Notes of the witness officers and PEW;
- OPP Audio Statements of three civilians;
- OPP Cell Video;
- OPP List of Involved Officers; and
- Prisoner Log-the Complainant.
At about 1:50 a.m. on May 6, 2020, the Complainant was lodged in cell number one at the OPP Leamington Detachment by the SO. The Complainant had been arrested at about 12:40 a.m. by the SO and his partner, WO #2. The officers had travelled to the scene together following a call to police reporting that a man had been stabbed on the roadway. The injured male was located with the Complainant standing over him. The Complainant was intoxicated, yelled profanities at the officers, and refused to stand back as the officers attempted to treat the injured male. Though the officers had no reason to believe that the Complainant was responsible for the stabbing, they did have information from a fellow officer that the Complainant had earlier committed an assault causing bodily harm and placed him under arrest for that offence.
The Complainant was handcuffed without incident and escorted to the passenger side of the officers’ cruiser where he was subjected to a frisk search. Neither the SO nor WO #2 found anything of any note. The SO proceeded to drive the Complainant to the detachment.
Without being further searched, the Complainant was jailed and a civilian member, the PEW, was brought in to monitor his time in custody. Over the course of the next nine hours or so, the Complainant was extremely restless. He repeatedly lay and sat on the floor and cell bench, occasionally falling asleep for periods of time before awakening. He was unsteady on his feet, falling over on occasion while attempting to stand. At one point, a couple of baggies fell from the right side of his pants; the Complainant was oblivious to their presence. Worried that the Complainant had not sobered much during his time in custody, the PEW communicated her concerns to WO #1 at about 10:00 a.m., whereupon it was decided that an ambulance would be called.
Paramedics arrived at the cells at about 10:24 a.m. The Complainant was placed on a stretcher, loaded into the ambulance and taken to ESHC.
The Complainant lapsed into unconsciousness at hospital and was intubated. He reportedly had cocaine, Demerol and marijuana in his system. At about 5:00 p.m., medical staff indicated that the Complainant was to be transferred to the LHSC.
Section 219 and 221, Criminal Code -- Criminal negligence causing bodily harm
(a) in doing anything, or(b) in omitting to do anything that it is his duty to do,
Section 215, Criminal Code - Failure to Provide Necessaries
(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.
(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.
Analysis and Director's Decision
There is no suggestion in the evidence that any force was used against the Complainant other than the minimal amount that would have been necessary to take hold of the Complainant and place his arms in handcuffs. The issue resides in the propriety of the care afforded the Complainant while he was in police custody.
The offence that arises for consideration is failure to provide the necessaries of life contrary to section 215(2)(b) of the Criminal Code. As an offence of penal negligence, liability under the provision is premised, in part, on conduct that amounts to a marked departure from a reasonable level of care in the circumstances. Arguably, the offence of criminal negligence causing bodily harm, pursuant to section 221 of the Criminal Code, is also implicated in the instant case. It is a more serious offence which requires, in part, a finding that the impugned conduct constituted a marked and substantial departure from the level of care that a reasonable person would have exercised. In my view, there is insufficient evidence to reasonably conclude that the care the Complainant received while in police custody transgressed the limits of care prescribed by the criminal law.
At the outset, it should be noted that there is nothing in the evidence to suggest that the Complainant’s apprehension was unlawful. In the absence of any contrarian evidence, there is no reason to call into question the reliability of the evidence at the officers’ disposal indicating that there was cause to take the Complainant into custody for an assault.
There is really only one area suggesting a significant want of care on the part of the officers - their failure to find and remove from the Complainant two baggies containing apparent drugs prior to lodging him in cells. The baggies fell onto the cell bench from what appears to have been the Complainant’s waistband or pants pocket calling into question the competence of the frisk search completed at the scene of the Complainant’s arrest by the SO and WO #2. Had the drugs been discovered, as they arguably would have been had a proper frisk search been conducted, it stands to reason that the officers charged with the Complainant’s care would have had reason to believe his intoxication was the result of the consumption of drugs beyond simply alcohol and marijuana, and may well have acted with greater dispatch in securing medical attention.
On the other hand, the evidence establishes that the Complainant was very carefully monitored throughout his time in cells. According to civilian guard, the PEW, the Complainant was continuously checked via video monitor and physically checked every 15 minutes or so. Throughout that time, the Complainant was active for large periods of time. And when he was asleep, it was clear he was breathing. While the PEW expressed concerns to officers about the Complainant’s heavy and noisy breathing, she was told that it was the result of the Complainant’s weight. While it would have been preferable for the officers to further investigate the PEW’s concerns at an earlier time, the fact remains that the Complainant does not appear to have been unresponsive until just before the time that paramedics were summoned. Even then, it was more a concern that the Complainant had not sufficiently sobered through the night and early morning that prompted the call to paramedics, not any prolonged lapse of consciousness  or other signs of acute medical distress.
In the final analysis, while it appears that the SO and the other OPP members who had a role in the Complainant’s arrest and custody could have done better, particularly in respect of their understanding of what was behind the Complainant’s intoxication, I am not satisfied on balance that any such indiscretions amounted to a marked deviation from a reasonable level of care in the circumstances. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: January 18, 2021
Electronically approved by
Special Investigations Unit
- 1) In fact, the Complainant was sufficiently awake by the time of the paramedics’ arrival that he was able to make it over to the stretcher largely on his own strength. [Back to text]
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.