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SIU Director’s Report - Case # 20-OCD-047

Contents:

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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 February 29, 2020, at 9:26 a.m., the Thunder Bay Police Service (TBPS) notified the SIU of, what at the time of notification was, the Complainant’s injury.

According to the TBPS, on February 28, 2020, at 10:46 a.m., the TBPS received a call for service in relation to a domestic matter. The Complainant’s mother, Civilian Witness (CW) #1, told the TBPS she was revoking her role as surety in respect of the Complainant and that she wanted him removed from her home. She said the Complainant was experiencing a drug withdrawal episode at the time of her call for service.

At 10:59 a.m., Emergency Medical Services (EMS), fire department personnel, and TBPS officers arrived at the Complainant’s home. The Complainant was arrested but turned over to EMS personnel and immediately taken to the Thunder Bay Regional Health Sciences Centre (TBRHSC) for treatment.

On February 29, 2020, between 7:00 a.m. and 7:30 a.m., the Complainant was preparing to be transported to court. He asked police officers guarding him to allow him to go to the bathroom. Upon returning to his room, the Complainant was found by a nurse to be ‘vital signs absent’ (VSA) and blue. He was intubated and moved to the Intensive Care Unit (ICU).

The Complainant subsequently passed away on March 10, 2020.

The Team

Number of SIU Investigators assigned: 4

Complainants

Complainant: 29-year-old male, deceased


Civilian Witnesses

CW #1 Not interviewed – next of kin [1]
CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Notes reviewed, interview deemed not necessary
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed
WO #9 Interviewed


Subject Officers

SO #1 Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.
SO #2 Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

There was no scene relevant to the Complainant’s in-custody death other than his bed in the ICU in the TBRHSC. The arrest of the Complainant at his mother’s home did not involve any injuries to the Complainant.

Forensic Evidence

On July 15, 2020, the SIU received the Report of Post Mortem Examination authored by the pathologist dated June 23, 2020, a Toxicology Report authored by a forensic scientist specializing in toxicology, dated May 27, 2020, and a Toxicology Letter of Opinion authored by the same scientist dated June 22, 2020.

The pathologist’s final determination regarding the cause of death was “complications of viral (H1N1) community acquired pneumonia”.

The Toxicology Report indicated that benzoylecgonine was detected in the Complainant’s urine at post mortem and that the benzoylecgonine indicated prior administration of cocaine.

The Toxicology Letter of Opinion contained interpretations and opinions based on scientific data regarding the elimination of benzoylecgonine in urine, but was inconclusive as to the amount of benzoylecgonine found in the Complainant’s post mortem urine, and more importantly, how and when it entered the Complainant’s metabolism.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Communications Recordings


TBPS Communications Audio Recordings


The communications audio recordings provided by the TBPS were reviewed and found not to contain any information of probative value in respect of how, on February 29, 2020, the Complainant attended a hospital bathroom and, after several minutes there with its door closed, returned to his bed and became VSA while being monitored by SO #1 and SO #2.

The police radio communications recordings received from the TBPS were only those that resulted from police officers attending CW #1’s residence and the Complainant’s subsequent arrest on February 28, 2020.

The SIU also received recordings of four internal police telephone calls. The call that was first in its relevance to this incident [now known to be recording “WC1”] was one from an undesignated officer to a second undesignated officer on February 29, 2020, shortly after the Complainant had been admitted to the ICU. The first undesignated officer provided an update on the situation that was developing regarding the Complainant.

The second undesignatedofficer was heard being told that the Complainant had been arrested the day before at 11:08 a.m. and taken to the hospital possibly for medical reasons, that the Complainant was charged with Controlled Drug and Substances Act (CDSA) offences, and that he had a committal warrant. The Complainant was guarded by TBPS police officers overnight and the police officers were relieved in the morning.

The Complainant went to the washroom and SO #2 had reported that when the Complainant came back to this room, he was “looking a little strange”. The first undesignated officer reported that ten minutes later, the Complainant went VSA and hospital staff were working on him as he spoke with the second undesignatedofficer. He said it appeared the Complainant was “not going to make it” and that the Complainant was to appear in court that morning. The first undesignatedofficer said he instructed SO #2 to seal off the emergency room and bathroom.

The other telephone call that was second in its relevance [now known to be recording “WC2”] was a telephone conversation between the first undesignatedofficer and an unidentified police officer. The utterances of the unidentified police officer were indiscernible. Through the first undesignated officer’s end of the conversation, he instructed the unidentified police officer to hold the room in the Emergency Department because the incident would be an SIU incident. The first undesignatedofficer advised that the second undesignatedofficer was on another telephone at the same time. The remainder of the telephone call was between the first undesignatedofficer and the second undesignatedofficer. The content was reported as above in respect of WC1.

Recording “WC3” was the first undesignatedofficer reporting to the second undesignated officer that the hospital wanted the room in their Emergency Department back in service. The first undesignatedofficer was instructed to call their Identification Officer and process the rooms.

Recording “WC4” was the first undesignated officer calling an Identification Officer of the Forensic Identification Branch with instructions to photograph the hospital room and bathroom in the Emergency Department where the Complainant had been prior to his transfer to the ICU. The first undesignated officer provided the Identification Officer of the Forensic Identification Branch with a brief overview of the circumstances and speculated that perhaps the Complainant had taken some drugs that the Complainant “had hooped maybe,” and that this incident would probably become an SIU matter.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the TBPS:
  • 911 and communications audio recordings;
  • General Occurrence Report and Supplementary Reports relevant to the arrest and admission to hospital of the Complainant on February 28, 2020;
  • General Report dated March 10, 2020;
  • Niche Report – the Complainant;
  • Statement – SO #1;
  • Notes – all WOs;
  • Notes – some IOs;
  • Photographs by the Identification Officer of the Forensic Identification Branch; and
  • Radio Transmissions-Playlist.

Materials obtained from Other Sources

In addition to the materials received from the TBPS, the SIU obtained and reviewed the following materials from other sources:
  • Report of Postmortem Examination, dated June 23, 2020;
  • A copy of the Complainant’s medical records from the TBRHSC;
  • Toxicology Report, dated May 27, 2020; and
  • Toxicology Letter of Opinion, dated June 22, 2020.

Incident Narrative

The material events in question are well understood on the weight of the evidence collected by the SIU, which included statements from the officers who initially arrested the Complainant and then guarded him at hospital prior to the subject officers’ involvement. The investigation also benefited from statements provided by nurses who cared for the Complainant in hospital and a review of the pathological evidence. As was their right, neither subject officer interviewed with the SIU or authorized the release of their incident notes. The service did produce, however, a statement authored by SO #1.

The Complainant was arrested at his mother’s home on Pomona Drive in the morning of February 28, 2020. Police had been called to the residence by CW #1, who had earlier removed herself as the Complainant’s bail surety in relation to outstanding criminal charges. The Complainant had shown up at the home announced and CW #1 wanted him out.

A committal warrant authorizing the Complainant’s arrest was confirmed by police and officers were dispatched to CW #1’s home. EMS and firefighters were also dispatched as CW #1, in her 911 call, also expressed concern about the Complainant’s health. WO #7 and WO #6 arrived at the residence shortly before 11:00 a.m. CW #1 let them into the house. The Complainant was in a locked bathroom and refusing to come out. The officers were able to unlock the door, enter the bathroom and take the Complainant into custody without incident.

The Complainant was led outside and assessed by paramedics, who recommended that he be taken to hospital for further examination. With the officers in tow, the Complainant was lodged in the ambulance and transported to the TBRHSC. Before leaving the residence, the Complainant had been searched by the police and a quantity of drugs, cash and syringes seized from his pockets.

From about 1:00 p.m. on February 28, 2020, when he was first moved into a room in the Emergency Department, to just before 8:00 a.m. on February 29, 2020, when he was discovered “vital signs absent” in another Emergency Room to which he had been moved, the Complainant was cared for by various medical professionals. A chest X-ray during this time confirmed he was suffering from pneumonia. His symptoms at hospital also suggested he was in the throes of withdrawal from drugs. Throughout this time, various police officers stood guard outside his room as the Complainant remained under arrest and in custody.

At about 7:50 a.m., the Complainant’s nurse, CW #4, entered his room and found him without a pulse and not breathing. With the help of other nurses and arriving doctors, emergency measures were quickly administered and the Complainant taken to the ICU. He would remain there until his death on March 10, 2020. Two days prior to his passing, the Complainant had been declared braindead.

SO #2 and SO #1 were present in the hallway outside the Complainant’s room when he fell into acute medical distress. About a half-hour earlier, SO #1 had accompanied the Complainant to the bathroom, located a short distance from his room. While SO #1 did not enter the bathroom with the Complainant, he kept the door slightly open with his foot to prevent it being locked and listened in on the Complainant’s activities, occasionally asking what the Complainant was doing. The Complainant indicated that he was having a bowel movement. When the Complainant was done in the bathroom, SO #1 accompanied him back to his room and watched as he seemed to fall asleep after his partner, SO #2, handcuffed the Complainant’s right wrist to the bed frame.

Cause of Death


The pathologist at autopsy attributed the Complainant’s death to “complications of viral (H1N1) community acquired pneumonia”.

Relevant Legislation

Section 219, Criminal Code -- Criminal negligence 

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.

Section 220, Criminal Code -- Causing death by criminal negligence 

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 - Duty of persons to provide necessaries

215 (1) Every one is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years;
(b) to provide necessaries of life to their spouse or common-law partner; and
(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
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or
(ii) 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 endangered permanently; or
(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.
(3) Every one who commits an offence under subsection (2)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.

Analysis and Director's Decision

The Complainant passed away in hospital on March 10, 2020. He had been admitted to hospital on February 28, 2020 following his arrest by TBPS officers and fell into acute medical distress in the morning of February 29, 2020. SO #1 and SO #2, who had custody of the Complainant in the hospital when he was rushed to the ICU, were identified as the subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject officer committed a criminal offence in connection with the Complainant’s death.

The offences that arise for consideration are criminal negligence causing death and failure to provide the necessaries of life contrary to section 220 and 215 of the Criminal Code, respectively. As crimes of penal negligence, liability for both offences 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. I am satisfied that neither officer ran afoul of the limits of care prescribed by the criminal law.

As a prisoner in their custody, the Complainant was owed a duty of care by each of the officers who held him in custody from the moment of his arrest. WO #7 and WO #6 were the arresting officers. Given the Complainant’s appearance, the recommendation of the attending paramedics, and what they knew about the Complainant’s condition, the officers did the prudent thing and ensured he was taken directly to hospital following his arrest. Thereafter, there is nothing in the record to suggest that the officers who relieved each other of the Complainant’s custody at hospital did anything to cause or contribute to the Complainant’s deteriorating condition. Indeed, as the Complainant was under regular medical supervision in an emergency room throughout this time, it is hard to imagine how the officers, whose activity was largely confined to being present outside his room, could have failed their charge.

The only area for possible criticism, and it is a speculative one at that, is the suggestion that the officers did not do enough to discover, or prevent the Complainant’s ingestion of, narcotics secreted on his person. Speculative, because it remains unknown whether the Complainant had drugs – specifically, cocaine – secreted on his person. Speculative, because there is no evidence to establish that he was able to retrieve said drugs and consume them while in custody. And, speculative, because drug ingestion was not established as having any direct causative impact on the Complainant’s death.

Even if the Complainant was able to secrete and then ingest cocaine after his arrest, it is not at all apparent that there was much more the officers could have done to save him from what happened. The Complainant was, after all, subjected to a pat-down search at the scene of his arrest, which search yielded a quantity of crack cocaine. Might the officers have gone further and conducted a strip search, and might such search have turned up possible drugs? Perhaps, but I am unable to fault the officers for concluding, as they appear to have concluded, that there were insufficient grounds to justify a strip search. Might the officers have kept a closer eye on the Complainant while he was in hospital to prevent him consuming any illicit substances? Again, yes, but the evidence indicates that the Complainant was regularly checked by the officers who held guard over him. It is true that SO #1 chose not to accompany the Complainant into the bathroom as the latter used the facilities. In his written statement to the SIU, SO #1 said he did so to afford the Complainant some privacy, but that he maintained a level of vigilance by keeping the door open and listening carefully to what was occurring inside the bathroom. On this record, if SO #1 fell short by not maintaining a presence in the bathroom, I am unable to characterize SO #1’s indiscretion as either marked or substantial.

In the final analysis, as I am satisfied that the officers met their duty of care to the Complainant while he was in their custody, notwithstanding the “what ifs” that may be raised in the evidence, there are no grounds for proceeding with criminal charges in this case and the file is closed.


Date: September 21, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) Although CW #1 was never formally interviewed by the SIU, she communicated with the SIU’s investigators and gave them information about this incident. [Back to text]