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SIU Director’s Report - Case # 18-OCD-379

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 29-year-old man (“the Complainant”).

The Investigation

Notification of the SIU

On December 28, 2018 at 4:20 p.m., the London Police Service (LPS) contacted the SIU and relayed the following information.

On December 26, 2018, at about 3:00 p.m. LPS police officers attended a men’s shelter in London and arrested the Complainant for the offence of arson. The Complainant was arrested without incident and was returned to the LPS Headquarters where he was lodged in a cell awaiting a bail hearing. While in custody, the Complainant complained that he was suffering from back pain but did not ask for medical attention.

On December 27, 2018, at 8:45 a.m., the Complainant was transported to court located at 80 Dundas St., London, and lodged in the holding cells area awaiting his court appearance. At about 12:00 p.m., a prisoner [now known to be the CW], that was lodged with him, called to a Special Constable and advised that the Complainant appeared sick. The cells area supervisor [believed to PEW #2] was summoned and spoke to the Complainant who apparently turned down an offer of medical attention.

At 4:45 p.m., the Complainant was transported to the Elgin Middlesex Detention Centre (EMDC) and was turned over to the holding centre personnel. A short time later, the Complainant collapsed and was transported to the London Health Sciences Centre (LHSC) Victoria Hospital, arriving at 6:24 p.m. At 10:59 p.m., the Complainant was pronounced deceased.

On December 28, 2018, a forensic pathologist conducted a post-mortem examination of the Complainant. The preliminary cause of death appeared to be pneumonia and lung abscesses.

The LPS advised the incident was being investigated by LPS Major Crime Unit personnel however when they discovered court security were made aware the Complainant was feeling ill, all further interviews were halted. The LPS secured all divisional and court cell video and was obtaining further involved LPS personnel information. The LPS also advised that LPS Forensic Identification Service was involved in the post-mortem examination of the Complainant.

The Team

Number of SIU Investigators assigned: 2

Complainant:

29-year-old male, deceased


Civilian Witnesses

CW Interviewed

Police Employee Witnesses

PEW #1 Interviewed
PEW #2 Interviewed
PEW #3 Interviewed
PEW #4 Interviewed
PEW #5 Interviewed
PEW #6 Interviewed
PEW #7 Interviewed
PEW #8 Interviewed


Subject Officers

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


Evidence

The Scene

There was no scene other than the secure area in the Admitting and Discharge department of the EMDC under human and CCTV monitoring/surveillance where the Complainant collapsed during the admitting phase of his custody and received emergency medical care before transfer to the Emergency Department of the LHSC, where he was pronounced deceased.

Video/Audio/Photographic Evidence

None of the CCTV data obtained from the LPS and obtained from the EMDC provided any objective evidence of the Complainant’s deteriorating condition as reported, at the material time, to LPS personnel, as none of the dialogue was audible. None of the CCTV equipment had any capability for audio-recording with the exception of the data from the interview room which had no bearing on the incident investigated by the SIU. No LPS members were involved in the admission and discharge of the Complainant at the EMDC on December 27, 2018.

What follows below is a summary of the relevant LPS CCTV data.


December 27, 2018 – 9:22:22 a.m.

The Complainant was depicted standing in the east sally port moments after his arrival in the courthouse custody area after getting out of the prisoner transportation van, with one other male inmate. The Complainant and the male inmate were in the presence of and apparently conversing with three male uniformed LPS courthouse custody staff members including PEW #7 and two undesignated police employee witnesses, with the undesignated police employee witnesses having delivered the Complainant to 80 Dundas Street with other prisoners from LPS Headquarters. The Complainant was the male inmate facing the camera. The male inmate to his left with long hair worn in a bun and with a beard appeared to be the same inmate later handcuffed to the Complainant for transfer to the EMDC.


December 27, 2018 – 9:26:39 a.m.

The Complainant was depicted being escorted to ‘bullpen’ cell two by a male uniformed LPS courthouse custody staff member via a custody-area corridor behind another male uniformed LPS courthouse custody staff member. The Complainant was being followed by the same male inmate with whom he was standing in the east sally port followed by another male uniformed LPS courthouse custody staff member.


December 27, 2018 – 9:26:49 a.m.

The Complainant and the same male inmate were lodged in ‘bullpen’ cell two. Two other male inmates were already inside the same cell.


December 27, 2018 – 9:27:21 a.m.

Two male uniformed LPS courthouse custody staff members were near the open door for ‘bullpen’ cell two as the Complainant exits the cell following a corridor conversation near the same cell involving three male uniformed LPS courthouse custody staff members between 9:26:10 a.m. and 9:27:14 a.m.


December 27, 2018 – 9:27:37 a.m. to 9:27:56 a.m.

Three male uniformed LPS courthouse custody staff members were depicted escorting the Complainant back along the same custody-area corridor that led to ‘bullpen’ cell two.


December 27, 2018 – 9:51:45 a.m.

Five male uniformed LPS courthouse custody staff members were with the Complainant as he was directed to counsel/inmate meeting room one, from the same custody area corridor used to communicate between the sally port area and ‘bullpen’ cell two.


December 27, 2018 – 10:01:55 a.m.

The Complainant was depicted emerging from counsel/inmate meeting room one with three male uniformed LPS courthouse custody staff members standing by. By 10:02:18 a.m., at least one male uniformed LPS courthouse custody staff member concluded escorting the Complainant back toward the sally port area via the same custody-area corridor.

NOTE TO READER – The CCTV data timestamps below were not one-hundred percent synchronized with other LPS CCTV equipment elsewhere at 80 Dundas Street.


December 27, 2018 – 9:59:50 a.m.

The Complainant was lodged in cell seven following his consultation with counsel in counsel/inmate meeting room one described above as occurring at 10:01:55 a.m.


December 27, 2018 – 10:06:42 a.m.

PEW #5 was depicted at the door to cell twelve to lodge the CW in cell twelve. The Complainant was depicted resting on his left side with his head resting on the bunk in cell seven directly across the corridor from cell twelve. Six seconds later, at 10:06:48 a.m., PEW #5 and the CW appeared to be looking at the Complainant whose position was unchanged.


December 27, 2018 – 11:06:47 a.m.

An LPS Cadet was depicted placing a cup with a granola bar in it, at the bottom of the cell that contained the Complainant and the same LPS Cadet appeared to be looking at and possibly conversing with the Complainant for the ensuing ten seconds.


December 27, 2018 – 11:20:57 a.m.

An LPS Cadet with a cart appeared to be looking at and possibly conversing with the Complainant. The cup with the granola bar in it placed there by perhaps the same LPS Cadet about 14 minutes earlier remained untouched by the Complainant.


December 27, 2018 – 12:05:32 p.m.

The Complainant appeared to have some difficulty sitting up with his feet on the cell floor and remaining in that position.


December 27, 2018 – 12:19:34 p.m.

The Complainant was depicted resting on his left side on the bunk while looking in the direction of PEW #5 looking at him from the doorway leading to the corridor separating the cells that contained the Complainant and the CW.


December 27, 2018 – 12:19:49 p.m.

The Complainant and PEW #5 appeared to be conversing until 12:19:55 p.m., when PEW #5 left the corridor.


December 27, 2018 – 12:20:15 p.m.

PEW #2 appeared to be conversing with the Complainant whose posture remained unchanged.


December 27, 2018 – 12:20:38 p.m.

PEW #2 left the area of the Complainant and the CW’s cells.


December 27, 2018 – 12:34:15 p.m.

The Complainant appeared to have difficulty breathing. PEW #5 looked at the Complainant through the doorway leading to the corridor for one second.


December 27, 2018 – 12:52:14 p.m.

The Complainant was depicted sitting up with his feet on the floor of his cell and looking out of his cell.


December 27, 2018 –1:10:26 p.m.

PEW #8 appeared to be looking at the cell that contained the CW.


December 27, 2018 - 1:11:52 p.m.

PEW #8 appeared to be looking at and possibly conversing with the Complainant whose posture had not changed.


December 27, 2018 – 1:13:15 p.m.

PEW #8 had left the area of the cells that contained the Complainant and the CW.


December 27, 2018 – 2:32:13 p.m.

PEW #5 unlocked the Complainant’s cell for his court appearance, and at 2:32:33 p.m., the Complainant stepped from his cell into the corridor’s doorway leaving the focal range of the CCTV equipment.


December 27, 2018 – 2:35:06 p.m.

The Complainant was depicted walking from his cell corridor to the hall where the elevator to the court rooms was located. There were three male uniformed LPS courthouse custody staff members in the hall.


December 27, 2018 – 2:35:14 p.m.

The Complainant was depicted walking down the hall and boarding the elevator. He was escorted at the rear by PEW #3.


December 27, 2018 – 2:35:51 p.m.

The Complainant was depicted leaving the elevator and walking down the hall beyond the focal range of the CCTV equipment.


December 27, 2018 – 2:35:58 p.m.

The Complainant was depicted leaving the elevator corridor on the third floor as he walked into the third-floor control area on his way to the court room. He was escorted by PEW #8 at the rear and there was another male uniformed LPS courthouse custody staff member seen at a desk in the control area.


December 27, 2018 – 2:36:10 p.m.

The Complainant was depicted walking without any apparent difficulty in the hall from the third floor control area to the stairway leading to the court room. He was escorted by PEW #8 at the rear.


December 27, 2018 – 2:37:00 p.m.

The Complainant descended two sets of stairs in the stairwell to the court room without any apparent difficulty, with PEW #8 escorting the Complainant at the rear. At 2:37:20 p.m., PEW #8 opened the door leading to the prisoner’s dock in court room eight and led the Complainant inside.


December 27, 2018 – 2:43:00 p.m.

The Complainant reappeared in the stairwell escorted by PEW #8 at the rear and they ascend the stairs to the elevator to return the custody area in the basement of the court house. The Complainant did not exhibit any overt difficulty ascending the stairs and was walking without any assistance.


December 27, 2018 – 2:43:20 p.m. to 2:44:10 p.m.

The Complainant was depicted entering the elevator escorted by PEW #5 with PEW #8 handing PEW #5 a piece of paper before the elevator door closed.

NOTE TO READER
– The CCTV data timestamps below were not one-hundred percent synchronized with other LPS CCTV equipment elsewhere at 80 Dundas Street.


December 27, 2018 – 2:42:22 p.m.

The Complainant was depicted in the corridor about to re-enter his cell having walked the same route taken to get him to the court room, and entered his cell at 2:42:23 p.m., with PEW #3 behind him.


December 27, 2018 – 2:42:27 p.m.

PEW #3 left the corridor after locking the cell that contained the Complainant who was still standing as PEW #3 departed.


December 27, 2018 – 3:52:09 p.m.

The Complainant was depicted resting on the bunk on his left side with his feet off the floor.


December 27, 2018 – 4:07:37 p.m.

The Complainant appeared to drink from the cup left for him earlier.


December 27, 2018 – 4:33:29 p.m.

The Complainant had walked from his cell into the corridor doorway with PEW #4 standing by for transportation to the EMDC.


December 27, 2018 – 4:33:57 p.m.

The Complainant was depicted walking well and not in handcuffs to the prisoner transportation van. He was escorted front and rear by two male uniformed LPS courthouse custody staff members, with the trailing member now known to be PEW #4.

Forensic Evidence

On June 5, 2019, the SIU received from the Centre of Forensic Sciences a report indicating that multiple drugs, including narcotics and central nervous system stimulants, were detected in the urine specimen collected from the Complainant during the autopsy. No ethanol was detected.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the LPS:
  • Closed Circuit Television (CCTV) Data – LPS 80 Dundas St., London;
  • CCTV Data – LPS Custody Area at 80 Dundas St., London;
  • CCTV Data – LPS Custody Area and Medic Alert;
  • CCTV Data – LPS Interview Room;
  • CCTV Data – LPS Transport Vehicle;
  • General Occurrence Reports (x8)
  • LPS Court Cells Duty Schedule and Admission Data re the Complainant;
  • LPS Forensic Identification Service Photographs;
  • Narrative or Statements of PEW #2, PEW #3, PEW #4, PEW #5 and an undesignated witness officer;
  • Notes of PEW #3, PEW #4, PEW #5, PEW #6, PEW #7, and PEW #8
  • Position Description-Cadet;
  • Position Description-Sergeant-Case-Management-Unit;
  • Position Description-Sergeant-Court-Liaison-and-Security-Unit;
  • Position Description-Staff-Sergeant-Court Offender;
  • Procedure-Transportation-of-Prisoners;
  • Procedure-Police Response to Emotionally Disturbed; and
  • Procedure-Prisoner care and detention.

Incident Narrative

With some exception, the material events in question are relatively clear on the information gathered by the SIU in its investigation. LPS officers arrested the Complainant in the afternoon of December 26, 2018 for the offence of arson. He was taken into custody and lodged in police cells at the LPS headquarters building at 601 Dundas Street. The following morning, the Complainant was transported to the courthouse and lodged in cell seven awaiting his court appearance. As he appeared to be in some discomfort and was having difficulty walking, the Complainant was “medically segregated” by staff working in the cells. The staff working in the cells area of the courthouse say nothing about being made aware of the Complainant’s troubled breathing or him asking to be taken to the hospital. As far as they knew, the Complainant was experiencing back pain and had refused medical treatment. Following his court appearance, the Complainant was taken to the EMDC and turned over to the holding centre personnel. He collapsed a short time later, was transported to hospital, arriving at about 6:30 p.m., and died a short time later.


Cause of Death

A post-mortem examination was performed on the Complainant’s body on December 28, 2018. According to the post-mortem examination report, the pathologist attributed the cause of the Complainant’s death to “a) Staphylococcal Sepsis, Due to or as a consequence of b) History of Intravenous Drug Use”.

Relevant Legislation

Sections 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.

Section 215, Criminal Code - Failure to provide necessaries

215 (1) Every one is under a legal duty

 (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.

(2) Every person commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse to perform that duty, if

(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

On December 27, 2018, the Complainant was at the EMDC in the process of being admitted when he collapsed. He was transported to the LHSC and eventually pronounced deceased shortly before 9:00 p.m. Prior to being taken to the EMDC, the Complainant had been detained in the cells area of the London courthouse at 80 Dundas Street awaiting a court appearance. The staff responsible at the courthouse reported to the subject officer (the “SO”) in the SIU’s investigation. For the reasons that follow, there are no reasonable grounds in my view to believe that the SO committed a criminal offence in connection with the Complainant’s death.

The offences that arise for consideration in this case are failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 of the Criminal Code, respectively. As offences of penal negligence, neither crime is made out unless the impugned conduct amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. The evidence revealed gives cause for concern regarding the care received by the Complainant while in cells at the courthouse. There is some evidence that the guards were repeatedly alerted that the Complainant was having trouble breathing and needed medical attention, and these requests were either ignored or not acted upon. Certainly, if this evidence is believed, the conduct of the personnel who dealt with the Complainant at the courtroom cells is subject to legitimate scrutiny under one or both of the aforementioned Criminal Code provisions. The focus of the SIU’s liability analysis, however, is with the conduct of the SO, as the police employee witnesses who interacted with the Complainant do not fall within the mandate of the SIU. The SO did not provide a statement to the SIU, nor did the SO authorize the release of notes, exercising the SO’s legal rights in both instances. In the circumstances, it is difficult to know what the SO knew of the Complainant while the Complainant was in custody at the courthouse. Certainly, none of the police employee witnesses who were interviewed by the SIU who dealt with the Complainant reported conveying any information or concerns about his well-being to the SO. Moreover, while the SO was the officer in charge of the police employee witnesses who worked in the cells looking after the prisoners, it appears that the overall responsibility for the prisoners’ well-being fell in practice to the supervisory special constables on duty at the time. One of those special constables, for example, went so far as to say that the supervisory special constables made 99.9% of the decisions regarding the prisoners given their level of experience. On this record, there is insufficient evidence to conclude on reasonable grounds that the SO’s conduct transgressed the limits of care prescribed by the criminal law. Consequently, there is no reasonable basis to proceed with criminal charges in this case and the file is closed.


Date: September 13, 2019

Original signed by

Joseph Martino
Interim Director
Special Investigations Unit