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SIU Director’s Report - Case # 18-OCD-186

Contents:

News Releases for this Case:

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

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.

Information restrictions

Freedom of Information and Protection of Personal 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. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • 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.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information 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.

Mandate engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“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 the death of a 32-year-old man (the Complainant) while in police custody on June 22, 2018.

The Investigation

Notification of the SIU

At approximately 4:22 p.m. on June 22, 2018, the Barrie Police Service (BPS) notified the SIU of the custody death of the Complainant.

The BPS reported that at approximately 2:30 p.m. on that same date, the Complainant was arrested on an outstanding warrant of arrest by BPS officers. The Complainant resisted and a Conducted Energy Weapon (CEW) was deployed. He was subsequently handcuffed and transported to BPS Headquarters.

Simcoe Paramedics (SP) were summoned and removed the CEW probes from the Complainant’s left shoulder blade. The Complainant’s vital signs were checked by the paramedics both before and after the probes were removed and he was found to be in good health.

The Complainant was then taken to a search room for a Level 3 search (strip search), in the company of two police officers, when the Complainant suddenly removed one or more objects from his buttocks and placed them in his mouth. The two police officers immediately tried to get the Complainant to remove the items from his mouth, but were unsuccessful. Within minutes, the Complainant went into medical distress. The police officers immediately began CPR and the SP were again summoned and responded to the booking area, where they found the Complainant vital signs absent (VSA). After some time spent trying to resuscitate the Complainant, he was transported to a hospital in Barrie where he was pronounced dead.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 2

Complainant:

32-year-old male, deceased

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
CW #7 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed
WO #2 Notes reviewed, interview deemed not necessary
WO #3 Interviewed, notes received and reviewed
WO #4 Interviewed, notes received and reviewed
WO #5 Interviewed, notes received and reviewed

Police Employee Witnesses

PEW #1 Interviewed, notes received and reviewed
PEW #2 Interviewed, notes received and reviewed


Subject Officers

SO #1 Interviewed, notes received and reviewed
SO #2 Interviewed, notes received and reviewed
SO #3 Interviewed, notes received and reviewed


Incident Narrative

At approximately 2:30 p.m. on June 22, 2018, the Complainant was arrested by BPS officers in the City of Barrie on an outstanding warrant. When the Complainant resisted his arrest, a CEW was deployed several times, allowing the police officers to gain control of the Complainant and place him under arrest and into handcuffs. The Complainant was then transported to the BPS station where he was booked into the station, following which EMS were contacted to attend to remove the CEW probes from the Complainant.

The EMS attended the booking area and, prior to removing the two probes from the Complainant’s back, his vital signs were checked and found to be acceptable. The paramedics then removed the probes in the Complainant’s back, following which his vital signs were again checked and found to be in the normal range, resulting in the paramedics leaving the area; this entire procedure was captured on video.

Once the paramedics left, it was determined that the Complainant was to undergo a Level 3 (strip) search, as he was going into custody and would be exposed to other prisoners, lawyers, and the court system. He was then escorted to the Breathalyzer room for the search by Subject Officer (SO) #3 and SO #2. In order to protect the privacy of the Complainant, and as found by the courts to be necessary in order to protect the sexual integrity of the person in custody, the video recording equipment in the Breathalyzer room was disabled, while the audio continued to record the search. During the search, the Complainant removed some packaged items from his rectal area and attempted to swallow them, with the police officers directing him to spit them out and attempting to prevent him from swallowing the packages. Shortly thereafter, the Complainant lost all vital signs and became unresponsive; the police officers present immediately initiated CPR and other life-saving measures, and the same paramedics were called to return to see to the Complainant.

The Complainant was then taken to the hospital by ambulance. During the course of his treatment, two golf ball sized plastic bags were removed from the Complainant’s airway. The Complainant was pronounced dead shortly thereafter.

Cause of Death

On June 25, 2018 at 12:39 p.m., a forensic pathologist conducted a post-mortem examination of the Complainant’s body.

On September 13, 2018, the SIU received a copy of the Final Post-Mortem Examination Report. In his report, the forensic pathologist concluded that the CEW did not cause any injury to the Complainant and that there was no direct connection between the CEW deployment and the Complainant’s subsequent collapse and death. The pathologist concluded that the cause of death was attributed to “airway obstruction by a foreign body,” namely the plastic balled objects located in the Complainant’s trachea at the time of his death.

Evidence

The Scene

The BPS HQ prisoner booking area was located on the main floor of the police station; there were two closed circuit television (CCTV) monitors capturing the area.

There was a long hallway (leading towards the south), with secure doors on either side of it leading to holding cells and legal-aid rooms, which was also monitored by overhead CCTV cameras. At the end of the hallway was a doorway leading to the Breathalyzer room.

A large quantity of medical debris, including an automated external defibrillator (AED), was located on the floor in the southeast corner of the hallway. On the floor at the entrance to the Breathalyzer room was an area of blood staining. The main hallway continued west and there was a chair located in this hallway which contained a pair of blue jeans, red shorts, and underwear.

Located on the booking area desk top were two sealed exhibit bags containing two CEW probes with a small amount of black fabric.

Photographs were taken of the police cruiser, the booking area, and the hallway leading to the Breathalyzer room.

On June 22, 2018, at 10:32 p.m., SIU FIs received a specimen container from Witness officer (WO) #2 containing a number of balled objects retrieved from the Complainant’s airway at the hospital.

Physical Evidence

A CEW cartridge case was located on the front centre console of the police cruiser which was identified as having been present for the arrest of the Complainant; the cartridge case was seized and made an exhibit. An examination of the cartridge case revealed that the blast doors and probes had been deployed, but a large quantity of CEW wire remained in the cartridge case.


CEW Download Data

The download data revealed that SO #2 had deployed his CEW on June 22, 2018, at the following times: at 2:32:11 p.m., he pulled the trigger for three seconds; at 2:32:16 p.m., he pulled the trigger a second time for five seconds; at 2:32:26 p.m., he pulled the trigger a third time for a period of eight seconds; and, at 2:32:32 p.m., he pulled the trigger for the last time, for a period of five seconds.

Forensic Evidence

Submissions to Health Canada

A secure specimen jar containing several plastic balled objects, which had previously been removed from the airway of the Complainant, was forwarded to Health Canada with a request to examine the contents; the exhibit was accepted by Health Canada on June 29, 2018.

The SIU later received a Certificate of Analyst dated July 6, 2018, from Health Canada, indicating that the items in the specimen container had been analysed and were identified as containing diacetylmorphine (heroin), fentanyl, caffeine, and dimethylsulphone [1].


Submissions to the Centre of Forensic Sciences (CFS)

Samples of the Complainant’s femoral blood, heart blood, and urine, obtained during the post-mortem examination, were submitted to the CFS for analysis.

The toxicological analysis of the post mortem blood revealed that the Complainant had cocaine and its metabolite, benzoylecgonine, as well as constituents of cannabis and their metabolites, in his system prior to his death but did not alter the cause of his death.

However, none of the substances identified by Health Canada as having been found contained in the plastic bags removed from the Complainant’s airway, were detected as having entered the Complainant’s blood prior to his death.

Expert Evidence

The post-mortem report, authored by the forensic pathologist who had performed the examination, concluded that the deployment of the CEW did not cause any injury to the Complainant and that there was no anatomic evidence of Taser injury and no direct connection between the CEW deployment and the Complainant’s subsequent collapse and death. The pathologist concluded that the cause of death was attributed to “airway obstruction by a foreign body,” namely the plastic balled objects located in the Complainant’s trachea at the time of his death.

Video/Audio/Photographic Evidence

Booking Area Recordings

The recording was provided by the BPS and was taken on June 22, 2018. The recording does not have a time stamp and begins at 0000 hours. It takes place in the booking area.

On June 22, 2018, at five minutes and 55 seconds into the recording, the Complainant is seen being escorted into the booking area in handcuffs, by SO #2. The Complainant takes a seat on a bench. There are no visible injuries to the Complainant and he is walking on his own.

At six minutes and 21 seconds into the recording, SO #1 begins speaking with the Complainant. At seven minutes in, SO #1 asks the Complainant about any injuries, medications, suicidal thoughts, contagious diseases, etc. At eight minutes, 41 seconds, the Complainant stands up and SO #1 does a visual inspection of his back. At nine minutes, SO #1 requests the EMS remove the CEW probes.

From nine minutes and 29 seconds to 33 minutes and 25 seconds, the Complainant and police officers wait for the arrival of the EMS. At 33 minutes and 25 seconds, the paramedics arrive. The paramedics conduct a visual exam of the Complainant at 33 minutes and 48 seconds. At 33 minutes and 55 seconds, the Complainant is hooked up to an EMS monitor and his vital signs are checked. At 34 minutes and 58 seconds, a paramedic removes the probes from the Complainant’s back. At 37 minutes and 39 seconds, the Complainant’s vital signs are checked once more and, at 39 minutes and 2 seconds, the paramedics leave.


BPS Breathalyzer Room Recordings

The SIU received CCTV recordings from the BPS taken by a camera installed in the Breathalyzer room. The footage was captured on June 22, 2018, and is 38 minutes and 57 seconds in length. The video footage did not have a time stamp and begins at 0000 hours. It depicts an interaction between the Complainant and members of the BPS.

At zero seconds, the recording begins and is showing the interior view of the breath technician room from four various angles. Ten seconds later, the Complainant enters the room accompanied by SO #2 and SO #3. SO #2 is dressed in a BPS uniform and SO #3 is in plain clothes. The Complainant is dressed in dark pants and a T-shirt, has no visible injuries, and is not handcuffed.

At 22 seconds into the recording, SO #2 covers the camera inside the Breathalyzer room, preventing the camera from actively capturing any video recordings, while the audio continues to record. At 30 seconds into the recording, SO #3 tells the Complainant, “I’ll tell you what clothing item to take off. I don’t want no funny business. Any funny business and you’re going on the ground.” SO #3 then continues, “Now slowly undo pants at front. Undo button and zipper, pull them down.”

At five minutes and 25 seconds into the recording, SO #3 tells the Complainant to, “Turn around, put your hands on the wall. Turn around, put your hands on the wall.” Some seven seconds later, SO #3 is heard to raise his voice and yell, “Hey, hey, hey. Don’t! Stop! Get it out of your mouth, spit it out.” SO #2 is also heard to say, “Stop resisting. Spit it out. Spit it out, you’re going to choke.”

At six minutes and 40 seconds into the recording, an unidentified voice is heard to say, “Spit it out (first name of Complainant), you’re going to die.” The requests for the Complainant to dispose of the substance he placed into his mouth are then repeated.

At seven minutes and 56 seconds into the recording an unknown voice is heard to say, “Want to bring him in hall where there’s more room?” At ten minutes and 26 seconds, an unidentified voice asks, “Is he breathing?” Another voice responds, “No, he’s not breathing” and then, “Keep going, keep going, AED (Automated External Defibrillator) in hallway.”

At 11 minutes and 48 seconds, a computer generated voice (believed to be the AED) says “Analyzing, no shock advised.” Then a tone that varies in pitch continues for several minutes, and an unidentified voice says, “We’re doing compressions.”

At 13 minutes and 58 seconds an unidentified voice says, “He’s got that probably in his mouth or in his throat, jammed it down far.” Another unidentified voice says, “He put half his hand in his mouth.” At 20 minutes into the recording, a transmission is heard from a radio device (believed to be EMS) indicating the address of the police station and “VSA male.” At 33 minutes and six seconds, a computer generated voice (AED) indicates, “Check patient.” The computer generated voice continues for several minutes repeating, “Check patient.” At 38 minutes and 57 seconds the recording stops.

Communications Recordings

The communications tape recorded the radio transmissions from the police officers involved in the location, apprehension, and arrest of the Complainant, but had little bearing on this investigation as it did not address how or why the Complainant later went into medical distress at the police station.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the BPS:

  • Communications Recording;
  • CCTV recordings from within the BPS police station, including those from the booking hall and the Breathalyzer room;
  • Arrest Booking Report;
  • Arrest Report;
  • Computer Aided Dispatch Events Summary;
  • Event Chronology (Background);
  • Event Details;
  • General Occurrence Report dated 16 June 2018;
  • Notes of WO #s 1-5, PEW #s 1 and 2, SO #s 1-3, and two undesignated officers;
  • Scene Photos;
  • Procedure: Arrest;
  • Procedure: Search of Persons;
  • Procedure: Prisoner Care and Control;
  • Procedure: SIU;
  • Procedure: Use of Force;
  • Supplementary Occurrence Report dated 16 June 2018;
  • Warrant for Arrest; and,
  • Written Statement from the audio video analyst.

The SIU obtained and reviewed the following materials and documents from other sources:

  • CCTV Arrest Video from Five Points Theatre, at 1 Dunlop Street, Barrie; 
  • Simcoe EMS Ambulance Call reports (x3);
  • Coroner Investigation Statement;
  • Forensic Pathology Exhibit Clothing Transfer;
  • Forensic Pathology Preliminary Cause of Death;
  • Health Canada Drug Analysis Report;
  • Request for Disclosure of Personal Information from Simcoe EMS;
  • Simcoe EMS Incident Reports (x2); and
  • Final Post-mortem Report with Toxicology Report appended, received by the SIU on September 13, 2018.

Relevant Legislation

Section 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.

Analysis and Director's Decision

On June 22, 2018, at approximately 2:30 p.m., the Complainant was arrested on an outstanding warrant by the Barrie Police Service (BPS). During the course of the arrest, and as later confirmed by the download data from the conducted energy weapon (CEW) of Subject Officer (SO) #2, SO #2 deployed his CEW on four occasions, for a total discharge time of 21 seconds, in order to gain the Complainant’s compliance and to handcuff him and transport him to the police station, which was then done. While the post-mortem examination of the Complainant’s body conclusively determined that the deployments of the CEW neither caused the Complainant any physical injury, nor did they, in any way, contribute to his death, it is not my intention to delve further into the use of force during the arrest of the Complainant, as it does not fall within my mandate, having neither caused any serious injury nor did it contribute to his death. I did take particular note, however, of the evidence of an independent civilian witness (CW) #3, that she observed the arrest of the Complainant, and that he was, in fact, resisting, and she saw no excessive use of force exercised by any police officer during the arrest.

Following the Complainant’s arrival at the police station, the entirety of the interaction between the Complainant and the members of the BPS was either video or audio recorded, leaving little confusion as to what occurred leading up to the Complainant’s tragic death. In addition to the recordings of the incident, the SIU, during the course of its investigation, interviewed seven civilian, five police, and two police employee witnesses, in addition to the three subject officers, SO #2, SO #3 and SO #1. The SIU also had access to, and reviewed, the notes of all police employed witnesses and the three subject officers, the communications recordings, the CEW download data, and the various expert reports generated during the course of the investigation and the post-mortem examination. The following is a synopsis of the events leading to the Complainant’s death.
Upon the Complainant’s arrival at the police station, he was booked into the station by SO #1, who asked him the required questions as to the state of his health and any injuries he may have sustained during his arrest. Upon noting the two CEW probes still present in the Complainant’s back, paramedics were then called to attend and remove the probes.

As evidenced on the video, and confirmed by the paramedics present, upon the arrival of the EMS, the Complainant’s vital signs were checked using a monitor, following which the probes were removed and the Complainant’s vital signs were checked a second time; on each occasion, the Complainant’s vital signs were found to be good and, when asked if he wished to go to hospital, the Complainant declined. The paramedics confirmed that the only visible injury to the Complainant were the two small holes in his back caused from the contact made by the CEW probes, and that the Complainant made no complaint of any other injury. The paramedics then left the police station and went outside to their vehicle and prepared to leave.

As SO #1 had authorized a Level 3 search, the Complainant was then escorted to the Breathalyzer room in order that the search could be carried out while still affording the Complainant some privacy. The Complainant was escorted to the Breathalyzer room by SO #3 and SO #2, while police employee witness (PEW) #1 and PEW #2 remained outside of the door, with the door closed. The Breathalyzer room was video and audio monitored and the video reveals that, at 22 seconds into the recording, SO #2 covered the camera preventing it from video recording, while still allowing the audio portion to continue; this is in compliance with BPS policy on how strip searches are to be carried out, as well as the dictates of our higher courts which indicate that strip searches are not to be video recorded and should be carried out in such a way as to preserve the privacy and sexual integrity of the person being searched. [2]

Having listened to the Breathalyzer audio recording, I find that the statements provided to SIU investigators by both SO #2 and SO #3, as the only two persons in the room other than the Complainant, during the Level 3 search, are fully consistent with the audio recording. The audio recording reveals SO #3 instructing the Complainant on the removal of his clothing. According to both of the police officers in the room, and as apparent on the audio recording, the Complainant is compliant, and he removes various pieces of clothing, which are then searched by SO #3, before being returned to the Complainant to put back on.

At five minutes and 25 seconds into the Breathalyzer room recording, SO #3 is heard to tell the Complainant to, “Turn around, put your hands on the wall. Turn around, put your hands on the wall.” SO #3, in his statement, indicated that he was going to visually inspect the Complainant’s buttocks, when the Complainant suddenly reached behind and down by his buttocks, whereupon SO #3 observed him to clench a white golf ball sized item in his right hand, which he then raised to his face and pushed into his mouth. According to SO #2, he saw the Complainant put his right hand down at his side, whereupon he almost immediately brought his right hand back up and pushed a white object, about the size of a golf ball, into his mouth.

SO #3 then immediately approached the Complainant and told him to “Spit it out!” This is confirmed by the audio recording, wherein at five minutes and 32 seconds into the recording, SO #3 is heard to raise his voice and yell, “Hey, hey, hey. Don’t! Stop! Get it out of your mouth! Spit it out!” while SO #2 is heard to say, “Stop resisting! Spit it out! Spit it out, you are going to choke!”

SO #3 then brought the Complainant down to the floor and tried to pull the Complainant’s hand away from his mouth. The Complainant resisted and refused to unclench his jaw to allow the officers to remove the item in his mouth. At six minutes and 40 seconds into the recording, someone is heard to address the Complainant by his first name and advise him to, “Spit it out, you’re going to die.” Numerous further requests are then heard being made for the Complainant to expel the substance he had placed into his mouth.

According to SO #3, after about 45 seconds of struggling with the Complainant, the Complainant appeared to stop breathing and SO #2 performed the Heimlich Manoeuvre on him, while PEW #2 and PEW #1 entered the room to assist, and the officers moved the Complainant out into the hallway.

This evidence is confirmed by the audio recording when, at seven minutes and 56 seconds into the recording, a voice is heard to ask if they should move the Complainant into the hallway, where there would be more room.

This is also consistent with the evidence of the paramedics, who were still in their ambulance in the parking lot prior to leaving, when a police officer came out and asked them to return to the station, as the Complainant had apparently swallowed an item that he had removed from his buttocks and swallowed, thereafter refusing to spit it out. The paramedics were also told that the police officers present had tried to dislodge the item/items from the Complainant’s throat by employing the Heimlich Manoeuvre, but that they were unsuccessful and that the Complainant became unresponsive.

The police officers then initiated CPR on the Complainant and, at ten minutes and 26 seconds, the recording reveals someone asking if the Complainant was breathing, and someone responded that he was not, following which one can hear, “Keep going, keep going! AED in hallway.”

At 13 minutes and 58 seconds, a voice is heard to say, “He’s got that probably in his mouth or in his throat, jammed it down far,” while a second voice is heard to indicate, “He put half his hand in his mouth.”

The two paramedics, after returning to the station and observing the Complainant lying on the floor, with several police officers working on him and an AED present, then inserted a breathing tube into the Complainant’s airway, but they were unable to ventilate the Complainant. They then attempted the insertion of a larger breathing tube, capable of going deeper into the airway, but it too was unsuccessful, leading to the Complainant beginning to vomit. The paramedics described the Complainant as vomiting a white liquid with blood in it. The paramedics then used suction to attempt to dislodge whatever was blocking the Complainant’s airway, but that too was unsuccessful. The Complainant was then transferred to a stretcher and transported to hospital, where paramedics observed that a Registered Respiratory Therapist (RRT) used a set of forceps to remove two balloons from the Complainant’s throat, the first of which was described as being intact and roughly the size of a golf ball, while the second was torn and seen to contain a white powdery substance.

This evidence is confirmed by CW #5, the respiratory therapist, who stated that she initially used a scope which she inserted into the Complainant’s airway, where she was able to observe an obstruction. She then inserted forceps into the Complainant’s airway, allowing her to remove a plastic bag which she described as located past the base of the tongue and tonsils. CW #5 described the item as being about five centimetres long and three centimetres wide and too large to pass through the airway, thereby causing the obstruction. After removing this item, CW #5 then looked down the Complainant’s throat a second time, locating a second plastic bag, which appeared to be broken open; upon a subsequent inspection, CW #5 observed and then removed a dark coloured piece of tissue, following which she was able to successfully insert a breathing tube. At no time during treatment, did the Complainant exhibit any vital signs.

At 4:29 p.m., the Complainant was pronounced dead at the hospital. The post-mortem examination revealed the cause of death as being due to ‘airway obstruction by a foreign body,’ that being the packages removed from the Complainant’s throat by the RRT. The attending pathologist confirmed that the deployment of the CEW neither caused any serious injury to, nor contributed to the death of, the Complainant.

As an RRT, CW #5 opined that if faced with this same situation, the first option to removing the blockage would be to perform the Heimlich Manoeuvre, following which, if that failed to dislodge the object, CPR compressions should be used.

Later analysis by Health Canada, of the two packages removed from the Complainant’s airway, determined that the two packages contained diacetylmorphine (heroin), fentanyl, caffeine, and dimethylsulphone, while a toxicological analysis conducted by the CFS of the blood samples obtained from the Complainant at the post-mortem examination, confirmed that none of these substances had entered his blood stream prior to his death. The toxicology report (which was included with the Post-Mortem Report) indicates that the Complainant’s blood contained cocaine and THC, and their derivatives, in amounts consistent with recreational use, but these drugs did not contribute to his death.

A civilian witness and the victim of the alleged assault for which the Complainant was arrested, CW #4, indicated that the Complainant had told her that he did not want to go back to jail and that if he was going back to jail, he would kill himself rather than doing so.

On all of the evidence, while it is unclear whether the Complainant actually intended to cause his own death when he placed the two packages of drugs into his mouth and swallowed them, or whether he was simply attempting to dispose of the items in order that they not be obtained by police and thereafter become the subject matter of further charges, it is clear that the objects which ended up blocking his airway, ultimately causing his death, were voluntarily swallowed by the Complainant, and that no police officer was involved in his taking the items, inserting them into his mouth, and then swallowing them.

Furthermore, while SO #3 and SO #2 were designated as subject officers as they were the only officers actually present for the strip search, and SO #1, as the senior officer in charge of the booking hall, was also designated as a subject officer as she was responsible for the safety and care of all prisoners in custody and therefore under her protection, it is clear that all of the officers present acted together in order to attempt to save the life of the Complainant.

On these facts, the only charge even remotely relevant for consideration would be that of criminal negligence causing death, contrary to sections 219 and 220 of the Criminal Code. In order to find reasonable grounds to believe that SO #3, SO #2, or SO #1, committed the offence of criminal negligence causing death, one must first have reasonable grounds to believe that they had a duty toward the Complainant which they omitted to carry out, and that omission, pursuant to the decision of the Supreme Court of Canada in R. v J.F. (2008), 3 S.C.R. 215, represented ‘a marked and substantial departure from the conduct of a reasonably prudent person in circumstances’ where they ‘either recognized and ran an obvious and serious risk to the life’ of the Complainant or, ‘alternatively, gave no thought to that risk’.

It is clear on the facts that the very purpose of the Level 3 search, which was authorized by SO #1 and carried out by SO #3 with the assistance of SO #2, was to locate and remove any objects in the possession of the Complainant which could potentially be used to cause harm to either himself or others. As such, it appears clear that all three of these officers were very aware of the possible consequences of failing to conduct an adequate search and were taking all steps in order to avoid any of those consequences and to ensure the safety of not only the Complainant, but of all persons with whom he might come into contact while in custody.

Furthermore, even had the actions of the Complainant been foreseeable, which I do not find to be the case, I cannot find that any of these three police officers could have done anything more than they were already doing, to ensure the safety of the Complainant and others.

Once the Complainant had inserted the secreted items into his mouth, both SO #3 and SO #2, as confirmed both by the audio recording and by other witnesses present, acted quickly to try and save the Complainant, first by attempting to remove the item from his mouth, which actions the Complainant strenuously resisted by clenching his jaw, and then, once he fell unconscious, by first attempting the Heimlich Manoeuvre a number of times to attempt to dislodge the items, then by attempting stomach thrusts, and finally by doing CPR. Additionally, the paramedics were immediately summoned back to the scene to attempt to revive and assist the Complainant.

While the toxicological analyses conclusively determined that none of the drugs in the bags ingested by the Complainant entered his blood stream, and therefore did not contribute to his death, even had the packages burst when the officers were attempting to remove the items from the Complainant’s mouth and throat, I could not find that they acted negligently, but rather that their actions were not only well-meaning, but were in compliance with the best practices as set out by the RRT, CW #5, that being to first resort to the Heimlich Manoeuvre, and then, if unsuccessful, to do CPR compressions.

On this evidence, I have no hesitation in finding that the Complainant’s death, however tragic, occurred not as a result of the actions of police, but rather despite the actions of police. It is clear that their actions were specifically aimed at saving the Complainant’s life. In the final analysis, there is no doubt that the Complainant, for whatever reason, decided to voluntarily ingest the two packages of narcotics that he had secreted on his person, and that he thereby caused his own death, whether intentional or not.

On these facts, I find that the evidence fails to satisfy me either that the conduct of any police officer represented ‘a marked and substantial departure’ from that of a reasonably prudent person in these circumstances, or that there is any causal connection between the actions of the officers present and the extremely unfortunate death of the Complainant. As such, there are no grounds here, reasonable or otherwise, for the consideration of criminal charges and thus none shall issue.


Date: January 14, 2019


Original signed by

Tony Loparco
Director
Special Investigations Unit

Footnotes

  • 1) Also known as Methylsulfonylmethane. It is a drug used to reduce pain, inflammation, and allergic reactions, as well as having wound healing, dermatologic, and exercise performance enhancing effects. [Back to text]
  • 2) Various levels of courts in Ontario and elsewhere in Canada have excluded evidence and/or stayed charges where a Level 3 search has been video recorded. [Back to text]