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SIU Director’s Report - Case # 19-PCD-057

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 54-year old man (the “Complainant”).

The Investigation

Notification of the SIU

On March 15, 2019, at 9:19 p.m., the Almaguin Highlands Detachment of the OPP notified the SIU of the death of the 54-year-old Complainant at the Huntsville District Memorial Hospital (HDMH) after an 11-day stay there for a suspected cocaine overdose.

The OPP reported that on March 4, 2019, at 4:00 p.m., an OPP surveillance team, in conjunction with a traffic unit, conducted a vehicle stop in Burk’s Falls for the purpose of arresting the Complainant for drug possession. The Complainant was arrested at that time for offences under the Controlled Drug and Substances Act and later lodged in a cell at the Burk’s Falls Detachment.

Shortly after being placed in the cell, the Complainant covered his entire body in a blanket and appeared to be on his hands and knees atop the concrete bench. Police officers intervened and noticed a white powdery substance on the Complainant’s face and immediately called Emergency Medical Services (EMS) who transported him to HDMH where he was admitted for observation in the intensive care unit (ICU).

The SIU was notified at that time and decided to monitor the situation rather than invoke their mandate as the Complainant was alive but unresponsive. He was later removed from the ICU and placed in a ward where he died on March 15, 2019, causing the SIU to invoke their mandate.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

Complainant:

54-year-old male, deceased


Witness Officers

WO Interviewed


Police Employee Witnesses

PEW Interviewed


Subject Officers

SO Interviewed, and notes received and reviewed


Evidence

Video/Audio/Photographic Evidence


The Cell Area Video


No use of force options were used on the Complainant while he was in the cell. The Complainant was the only prisoner in the booking area and no other prisoners were lodged in cells. The Complainant was searched in the booking area by the WO and another officer without incident. A strip search of the Complainant was authorized by the SO and conducted in a private room not equipped with surveillance equipment. The Complainant was then placed in cell 1 and blankets/pads were made available to him upon his request.

The Complainant rested on the bed. He approached the cell door on several occasions. The Complainant then bent over the bed. He got on his hands and knees near the cell door and removed his clothing. Police officers then entered the cell. EMS was called and arrived within five minutes.

The Chronology

(Note: The camera in the cell activated only upon detecting movement, which explained the gap in the timer of the videotape).
  • 5:05 p.m.: The SO enters the cell and renders the toilet inoperable.
  • 5:14 p.m.: The Complainant enters the cell and receives extra bedding and blankets.
  • 5:21 p.m.: The Complainant is at the cell door on his knees with a blanket around his body. He drinks from the water fountain.
  • 5:25 p.m.: The Complainant sits on the concrete bench. He then places a second blanket around his body in the manner of a cocoon.
  • 5:27 p.m.: He lays on the bench completely covered by the blanket.
  • 5:42 p.m.: After walking to the cell door, the Complainant lays down on his right side covered in blankets while manipulating the blankets.
  • 5:52 p.m.: He is completely covered by the blankets.
  • 6:38 p.m.: He gets up from the bench and drinks water.
  • 7:07 p.m.: The Complainant is on his knees at the cell door after removing all of his top clothing.
  • 7:13 p.m.: Police enter the cell.
  • 7:18 p.m.: EMS arrives.

Forensic Evidence

Centre of Forensic Sciences (CFS) submissions were made as a result of the post-mortem. CFS testing indicated 2.6 mg/l of cocaine detected along with 6.5 mg/l of benzoylecgonine. Benzoylecgonine is a pharmacological and toxicological inactive breakdown product which is uniquely formed from cocaine.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the OPP:
  • Arrest Report for the Complainant;
  • Computer-Assisted Dispatch-Event Details Report;
  • General Report;
  • Prisoner Report and Security Log;
  • The notes of the WO and the SO;
  • Scene photographs; and
  • A comprehensive video of the entire cell area.

Incident Narrative

The material events in question are not in dispute and may be summarized in short order. At about 4:40 p.m. of March 4, 2019, while a passenger in a vehicle, the Complainant was arrested for drug possession in the area of Highway 11 and Ferguson Road in Armour. He was transported from the scene to the Burk’s Falls Detachment and lodged in cell #1 at about 5:10 p.m.

The SO was the booking officer with overall responsibility for the health and welfare of the inmates in custody at the detachment. Not satisfied with the Complainant’s assertions, when asked, that he was not in possession of any further drugs, the SO ordered that he be strip-searched prior to being lodged in cells. The WO and a second officer conducted the search but found nothing on the Complainant’s person.

The SO remained concerned that the Complainant had drugs on him. Accordingly, arrangements were made to disable the toilet in the cell (a “dry” cell) prior to the Complainant entering. That was done to prevent the Complainant destroying evidence in the event he had drugs concealed in his rectum.

The Complainant did have cocaine secreted in his rectum. He managed to remove the drug from his rectum and ingest some of it without detection, apparently under the concealment of a blanket that he had around his body. Thereafter, starting at about 7:00 p.m., the Complainant’s began to act strangely. Receiving word of the Complainant’s behaviour from the custodial monitor, the SO made his way to the cell at about 7:16 p.m. and observed a substantial amount of white powder on the floor. He asked the Complainant what he had done, and the Complainant replied he had removed cocaine from his rectum and eaten it to dispose of the evidence. An ambulance was called and arrived at the cell at about at 7:18 p.m. 

Cause of Death


A post-mortem examination of the body was performed in Toronto on March 18, 2019. The pre-admission blood vial obtained by the HDMH on March 4, 2019, was obtained. The post-mortem report was received by the SIU on January 28, 2020 and concluded that the cause of death was cocaine toxicity.

Relevant Legislation

Section 219, 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

The Complainant passed away on March 15, 2019 at the HDMH. He had been admitted to the hospital 11 days earlier following a cocaine overdose. As the overdose reportedly occurred while the Complainant was imprisoned in a cell of the OPP Burk’s Falls Detachment, the SIU commenced an investigation. The SO, the officer in charge of the cells at the time in question, was designated as the subject officer. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s death.

The offences that arise for consideration are failure to provide the necessaries of life and criminal negligence causing death contrary to sections 215 and 220 of the Criminal Code, respectively. Liability under both offences is predicated, in part, on conduct that amounts to a marked departure from the standard of care that a reasonable person would have exercised in the circumstances.

There is no indication of a want of care on the part of the SO that approaches the threshold for criminality. The Complainant had been arrested, lawfully it appears, for drug possession and taken into custody. While in custody, he was closely monitored by a civilian guard and the SO. Soon after the Complainant’s behaviour suggested he was in distress, paramedics were summoned to the scene and took him to hospital.

While it is regrettable that the Complainant was able to take cocaine into the cell with him, I am satisfied that the SO did what he could to detect any contraband prior to having him lodged. Given the information he had at his disposal suggesting the Complainant had more cocaine than had been found when he was arrested, the SO reasonably ordered that a strip-search be conducted. The WO and a second officer performed the search and found nothing on the Complainant. Still suspicious that the Complainant had cocaine, the SO committed to keeping a close eye on the prisoner. The cell records show that the Complainant was closely watched while in custody over a two-hour period. Might the SO have acted to have the Complainant subjected to a body cavity search at hospital? Perhaps, but I am not satisfied that there existed lawful grounds to proceed with such an invasive search nor, if there were, that the SO acted unreasonably in refraining to exercise his discretion to have such a search performed. After all, the Complainant had unequivocally denied having any more drugs on him, and the pat-down and strip searches that had occurred found no evidence of such.

In the result, as I am not satisfied that the Complainant’s unfortunate death was in any way attributable to criminally substandard treatment by the police while he was in their custody, there are no grounds for proceeding with charges against the SO. The file is, therefore, closed.

Date: April 14, 2020
Electronically approved by

Joseph Martino
Director
Special Investigations Unit