RunnersCruiser and motorbikeCruiser accident
thick blue gradient line

SIU Director’s Report - Case # 18-OCD-303

Contents:

News Releases for this Case:

French:

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 55-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On October 12, 2018, at 12:42 a.m., the London Police Service (LPS) notified the SIU of the death of the Complainant subsequent to his arrest for impaired driving three hours earlier. The LPS reported that on October 11, 2018, at 9:00 p.m., a civilian called the LPS through the 911 system to report a suspected impaired driver on Wonderland Road south of the city centre. The caller, Civilian Witness (CW) #2, followed the suspect vehicle on Wonderland Road to the intersection of Harry White Drive, where it left the roadway, entered a ditch and became immobilized.

Police soon arrived and arrested the Complainant at 9:49 p.m. He was transported by police cruiser to the LPS main station and was found to be in extreme distress once at the sally port doors prior to entering the station. Police officers and EMS personnel tried in vain to resuscitate the Complainant but he was later pronounced dead at hospital.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

55-year-old male, deceased


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The Complainant entered medical distress at the sally port entrance to the cell area at 601 Dundas Street, the LPS Headquarters.

Forensic Evidence


Post-Mortem Examination Report (Received February 7, 2019)


The autopsy on the Complainant was conducted on October 12, 2018, at 1:15 p.m. at the London Health Sciences Centre. The forensic pathologist certified that the cause of death was multi-drug toxicity of such drugs as fentanyl, cocaine, methamphetamine, trazadone and ethanol. The level of fentanyl alone was well into the fatal zone.

A significant condition that contributed to the death but was not causally related to the immediate cause of death was Cardiomegaly. That ailment predisposed the Complainant to fatal cardiac arrhythmia.

No significant injuries were found; the linear contusions on the wrists were from the application of the handcuffs.

Toxicology Report (Received February 7, 2019)


The Report was prepared by an expert toxicologist at the CFS. Her findings were that the Complainant died from an acute overdose of fentanyl. The results of her tests showed that fentanyl was present in the amount of 9.9 ng/ml in the Complainant’s blood. The toxicologist noted that fentanyl has been found to be lethal at doses as low as 3.0 ng/ml but the median toxic amount is 4 ng/ml and up. The Complainant, therefore, had ingested a dose of the drug over twice the toxicity limit.

The toxicologist further noted the presence of cocaine and methamphetamine at the recreational level. Cannabis and alcohol were also present in the Complainant’s system. The alcohol concentration was 22 milligrams per 100 mililitres of blood, or just under three times the legal limit for the operation of a motor vehicle.

Health Canada – Certificate of Analysts


On October 12, 2018, LPS seized an aluminum coffee thermos from the vehicle driven by the Complainant. The thermos was found in the rear seat compartment of the vehicle and contained a variety of illicit drugs. The container was sent to Health Canada on October 31, 2018, by LPS and was received by Health Canada scientists for analysis. Multiple analysts analyzed the sample and found cocaine, cannabis, Sulindac (a prescription drug), methamphetamine and fentanyl or an isomer thereof.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the LPS:
  • Booking Record for the Complainant;
  • List of Involved Officers;
  • Prior LPS Booking Photo of the Complainant;
  • LPS Seizure of Contraband;
  • LPS Witness Statement of CW #2;
  • Notes of witness officers;
  • Record of Arrest for the Complainant; and
  • Will Says of the witness officers.

Incident Narrative

The facts in question are clear and may be briefly summarized. At about 9:00 p.m., the LPS took a 911 call from a motorist reporting that he was driving southbound on Wonderland Road behind another vehicle - a Kia Forte, which was being operated in a dangerous fashion. The caller continued to follow the vehicle while speaking to the police and provided a running description as it veered from side-to-side, drove in the oncoming lane of traffic and knocked over construction barrels. The driver of the Kia was the Complainant. He was severely impaired at the time by alcohol and drugs.

The 911 caller eventually reported that the Kia had travelled off the roadway into a ditch on the right side of Wonderland Road around Harry White Drive. Several police officers responded to the scene. Among them were the SO and WO #2, whom the SO was training at the time. The officers arrived at the site at approximately 9:30 p.m. From outside the vehicle, they could see that the Complainant was awake and looking for paperwork. WO #2 ordered the Complainant out of the vehicle and he complied. The Complainant appeared uninjured but unsteady on his feet. He was arrested for impaired driving, handcuffed and lodged in the backseat of the SO and WO #2’s cruiser.

En route to the police station, the Complainant fell asleep and started snoring. As the officers entered the cell bay doors at about 10:20 p.m., they noted that the Complainant had stopped snoring and was unresponsive. Realizing that the Complainant was in medical distress, they pulled him from the cruiser, placed him on the floor, attempted the use of an automated external defibrillator (AED), commenced CPR and called for an ambulance. The Complainant was taken to hospital but could not be resuscitated and was pronounced deceased.

Cause of Death


The pathologist at autopsy attributed the immediate cause of the Complainant’s death to “Multi-Drug Toxicity (fentanyl, cocaine, methamphetamine, trazodone, ethanol)”.

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

The Complainant died on October 11, 2018. He was in the custody of two LPS officers at the time. The more senior of the two, the SO, was identified as the subject officer. For the reasons that follow, I am satisfied there are no reasonable grounds to believe the SO committed a criminal offence in connection with the Complainant’s death.

The offence that arises for consideration is criminal negligence causing death contrary to section 220 of the Criminal Code. Liability under the provision is predicated, in part, on conduct that constitutes a marked and substantial departure from the level of care that a reasonable person would have exercised on the circumstances. In this case, the key question is whether there was anything more the SO could have reasonably done to prevent the Complainant’s demise. When he arrived at the scene of the accident, there was nothing in the way the Complainant presented that would have given the officer cause to suspect he was in acute medical distress as the result of a drug overdose. While the Complainant appeared unsteady on his feet, he had managed to calmly exit his vehicle and make his way back up the ditch largely on his own strength. The same held true in the time the Complainant was in the SO’s custody during the short drive back to the police station. The Complainant slept for part of the trip. Upon arriving at the police station and realizing the Complainant was not responsive, the SO acted immediately to render assistance. With the help of WO #2, the officer pulled the Complainant from the cruiser and contacted Emergency Medical Services while other officers started CPR and hooked the Complainant up to an AED. Paramedics arrived in short order and assumed control of the Complainant’s care. On this record, I am satisfied that the SO acted at all times with due care and regard to the Complainant’s health and safety throughout their interaction. Accordingly, there are no reasonable grounds to conclude that the SO transgressed the limits of care prescribed by the criminal law in connection with the Complainant’s death, and the file is closed.


Date: September 6, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit