Director's Report Details

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.

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: 

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 32-year-old man (the “Complainant”).

Notification of the SIU [1]

On March 5, 2023, at 10:30 p.m., the Cornwall Police Service (CPS) notified the SIU of an injury to the Complainant.

According to the CPS, on March 4, 2023, at 4:04 p.m., the Complainant was arrested at a local restaurant and searched at the scene prior to his transport to the police station. While at the police station, the Complainant was searched again before he was lodged in a cell at 4:57 p.m. The Complainant apparently ingested something and began to sleep heavily. Emergency Medical Services (EMS) were called and the Complainant was transported to hospital at 8:38 p.m. He was breathing on his own and described as being in a coma-like condition. A condom was found inside the toilet of the Complainant’s cell. The following day, at 12:37 p.m., the CPS received a call from officers at the hospital indicating the Complainant was going to be released at 4:00 p.m. A review of the cell video depicted the Complainant taking a condom out of his rectum and ingesting the contents.

The Team

Date and time team dispatched: 03/06/2023 at 7:07 a.m.

Date and time SIU arrived on scene: 03/06/2023 at 7:37 a.m.

Number of SIU Investigators assigned: 3

The Scene

The events in question transpired in and around a cell at the CPS headquarters, 340 Pitt Street, Cornwall.

On March 6, 2023, at 2:55 p.m., a SIU forensic investigator (FI) arrived on scene. The cellblock was in the basement of the station and the cell was encountered locked with barrier tape on the bars and door.

The cell consisted of a concrete bed along the left side, which had a mattress, and a stainless-steel toilet and sink unit against the back wall. The cell was approximately 2.5 metres deep by 2 metres wide.

Inside the toilet, there was clear plastic debris with two condoms and tissue.

Outside the cell, there was a camera mounted on the opposite side of the wall, facing the cell.

The cell and the communications room, with monitors depicting the cell, were photographed. The monitor screen had a privacy square over the toilet in the cell.

Physical Evidence

The SIU requested that the CPS collect and secure the condom with the then unknown substance found in the toilet of the cell in their drug storage facility.

Video/Audio/Photographic Evidence [2]

Custody Video

On March 6, 2023, the SIU received a copy of the relevant custody video from the CPS. The video recordings, which were date and time-stamped and in colour, captured the garage, cell hallway, booking area, stairs, and cell during the Complainant’s detention on March 4, 2023. The camera, which was affixed outside of a cell, was equipped with a privacy square over the toilet.

On March 4, 2023, at 4:18 p.m., SO #2, who was the sole occupant and operator of a marked police vehicle, was captured arriving at the station. He escorted the Complainant and his property into the booking area, and paraded him in front of SO #1. The Complainant was without injury and was handcuffed with his hands behind his back.

After the handcuffs were removed by SO #2, the Complainant removed his jacket, belt and shoes. SO #1 directed the Complainant to place his hands against the wall while SO #2 conducted a frisk search over his clothing.

During the booking process, the Complainant removed his black pants and provided it to SO #2, who removed Canadian currency after searching the pant pockets. The Complainant remained in long johns and showed SO #1 that he was wearing boxer underwear. SO #2 continued the frisk search while the Complainant remained in his long johns. The officer waved a wand over the Complainant’s person.

Following the frisk search, SO #1 completed the medical intake form based on responses provided by the Complainant.

The Complainant’s property was placed in an evidence bag and lodged in an evidence locker.

Starting at about 4:45 p.m., SO #2 used a telephone in the booking area. Five minutes later, the Complainant was speaking on the telephone in private.

Starting at about 4:57 p.m., the Complainant was lodged in a cell.

Starting at about 8:11 p.m., the Complainant used his left hand to retrieve something from behind his lower back as he was seated on the toilet. He placed the item in the well of the sink.

Starting at about 8:22 p.m., the Complainant, who had his back towards the camera, stood in front of the toilet and blessed himself multiple times.

Starting at about 8:26 p.m., the Complainant retrieved an opaque object from the sink, and manipulated it with both hands before tossing the object into the toilet as he sat on the bench.

Starting at about 8:27 p.m., the Complainant reached towards the back of the sink, retrieved a brown cup, and held the cup in his right hand while the opaque object was in his closed left hand. He sipped from the cup before titling his head back and consuming the contents from his left hand via his mouth.

Starting at about 8:30 p.m., the Complainant picked something off the bench out of camera view and then held his closed left hand near his leg.

Starting at about 8:32 p.m., the Complainant sipped from the cup and then emptied the contents of his left hand into his mouth. He collected items off the bench into his left hand, brushed the bench off, and held his closed left hand near his leg.

Starting at about 8:37 p.m., the Complainant sipped on the cup, then emptied the contents of his left hand into his mouth.

Starting at about 8:38 p.m., the Complainant blessed himself several times, looked into the camera, and made faces and rude gestures before laying down on the bench.

Starting at about 10:05 p.m., the Complainant sat up on the bench before laying back down.

Starting at about 10:20 p.m., the Complainant’s head and shoulders slid off the bench and came to rest in between the bench and the toilet.

Starting at about 10:26 p.m., a uniformed police officer [now known to be WO #1] attended the cell and attempted to get the Complainant’s attention before using her radio. The Complainant’s chest was rising and falling.

Starting at about 10:40 p.m., another uniformed officer [now known to be WO #2] joined WO #1 and both attempted to rouse the Complainant by tugging at his feet, resulting in his arms twitching.

Starting at about 10:41 p.m., the Complainant, now completely on the ground on his back, was intermittently moving both his arms with his chest visibly rising and falling. WO #2 used his portable radio.

Starting at about 10:57 p.m., EMS arrived at the cell and assessed the Complainant after he was pulled out into the hallway by his feet by WO #2. WO #1 handcuffed the Complainant with his hands to the front of his body.

Starting at about 11:07 p.m., WO #1 searched the cell and alerted officers and paramedics of something in the toilet.

Starting at about 11:10 p.m., the Complainant was loaded onto a stretcher and went out of camera view with paramedics.

The material events in question are clear on the evidence collected by the SIU and may briefly be summarized. As was their legal right, neither subject official agreed an interview with the SIU. They did authorize the release of their notes.

In the afternoon of March 4, 2023, the Complainant, in violation of a judicial order, was loitering in the bathroom of a restaurant in Cornwall. Police were called and SO #2 attended at the location. The officer arrested the Complainant and searched him, locating a knife in the process.

The Complainant was transported to the police station, subjected to a frisk search and lodged in a cell. Asked whether he had ingested any alcohol or drugs, the Complainant said he had not. Following a telephone conversation with his lawyer, the Complainant was placed in a cell at about 5:00 p.m.

SO #2 subsequently had a conversation with SO #1 in which he indicated that he had reason to believe that the Complainant was thinking of dying by suicide. Based on this information, arrangements were made to have the Complainant regularly checked every 15 minutes, instead of the usual 30-minute interval.

Starting at about 8:10 p.m., the Complainant retrieved drugs in a condom that he had secreted in his rectum, after which he ingested the substance.

At about 10:20 p.m., the civilian member of the police service that had been assigned to watch the Complainant – the SEW – noticed that his head had slumped off the bench to a position between the toilet and bench. Concerned, the SEW attempted to rouse the Complainant verbally. When that did not work, she notified WO #2, who had taken over for SO #1. Further efforts, including physical stimuli, were made to wake the Complainant. He remained unresponsive and an ambulance was called.

Paramedics arrived at the station at about 11:00 p.m. and took charge of the Complainant’s care.

The Complainant was transported to hospital and treated for an overdose of his prescription anti-depressant medication.

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.

Section 221, Criminal Code -- Criminal Negligence Causing Bodily Harm

221 Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years

The Complainant lapsed into medical distress on March 4, 2023, and was taken to hospital for a treatment of a drug overdose. As he was in police custody at the time, the SIU was notified and initiated an investigation. Two officers –SO #1 and SO #2 – were identified as subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the Complainant’s medical episode.

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 #2 and/or SO #1, sufficiently serious to attract criminal sanction, that endangered the Complainant’s life or caused bodily harm. In my view, there was not.

The Complainant was lawfully in police custody throughout the series of events culminating in his hospitalization. He was in breach of the terms of his release and had also committed ‘mischief’ at the restaurant where he was arrested.

Once in custody, I am satisfied that SO #2 and SO #1 comported themselves with due care and regard for the Complainant’s health and wellbeing. The only real issue raised in the evidence is how it was that the Complainant was able to bring drugs into the cell with him and consume them. It is apparent that the Complainant was subjected to two searches prior to being lodged in cells, but, of course, those searches would not have been able to detect the drugs, which the Complainant had secreted in his anus. Perhaps a strip search might have revealed the presence of the drugs, but this too is not altogether clear given their placement within the Complainant’s person. Nor does it appear that there were grounds to conduct such a search. As the case law makes clear, such searches are inherently degrading and cannot be justified in the absence of reasonable and probable grounds for concluding a strip search is necessary: R v Golden, [2001] 3 SCR 679. The Complainant had not been arrested for a drug offence and had denied drug and alcohol consumption. For essentially the same reasons, I am unable to reasonably conclude that either subject official was remiss for not taking steps to ensure the Complainant was kept under constant and uninterrupted supervision though, it must be noted, arrangements were made to increase the frequency of cell checks with the information about the Complainant’s suicidal ideations. But for that having been done, the Complainant might have found himself in a more dire predicament.

In the result, as there are no reasonable grounds to believe that either subject official transgressed the limits of care prescribed by the criminal law in their dealings with the Complainant, there is no basis for proceeding with charges. The file is closed.


Date: June 30, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit