SIU Director’s Report - Case # 06-OCD-025

Explanatory note

The Ontario Government is releasing past SIU Director Reports (submitted to the Attorney General prior to May 2017) that include fatalities involving a firearm, physical altercation, and/or use of conducted energy weapon, or other extensive police interaction that did not result in a criminal charge.

Justice Michael H. Tulloch made recommendations about the release of past SIU Director Reports in the Report of the Independent Police Oversight Review, released on April 6, 2017.

Justice Tulloch explained that since past reports were not originally drafted for public release they may have to be edited substantially to protect sensitive information. He took into account that confidentiality assurances were given to various witnesses during the course of SIU investigations, and recommended that some information be redacted in the interests of privacy, safety, and security.

As recommended by Justice Tulloch, this explanatory note is being provided to assist the reader’s understanding of why certain information is redacted in these reports. Notes have also been inserted throughout the reports to help describe the nature of the information that was redacted and why it was redacted.

Law enforcement and personal privacy information considerations

Consistent with Justice Tulloch’s recommendations and guided by section 14 of the Freedom of Information and Protection to Privacy Act (FIPPA) (relating to law enforcement information), portions of these reports have been removed to protect:

• confidential investigative techniques and procedures used by the SIU
• 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
• witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Consistent with Justice Tulloch’s recommendations and guided by section 21 of FIPPA (relating to personal privacy information), personal information, including sensitive personal information, has also been redacted, except that which is necessary to explain the rationale for the Director’s decision. 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
• other identifiers which are likely to reveal personal information about individuals involved in the investigation, including in relation to children
• witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Personal health information

Information related to the personal health of individuals that is unrelated to the Director’s decision (taking into consideration the Personal Health Information Protection Act, 2004) has been redacted.

Other proceedings, processes, and investigations

Information may have also been excluded from these reports 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.

Director’s report

Notification of the SIU

On Friday, February 10, 2006 at 0555 hrs, Notifying Officer of the Hamilton Police Service (HPS) notified the SIU of a custody injury to 40-year-old Darin Fournier. It was Notifying Officer’s understanding, based upon information from HPS personnel close to the incident, that HPS members had arrested Mr. Fournier on Thursday, February 9, 2006 at 1710 hrs, for public intoxication and lodged him in a police cell at HPS Central Division. At some point, Mr. Fournier apparently fell off his bunk^{footnote 1[1]} but got back up on the bunk and fell asleep. During a routine check sometime later, Mr. Fournier could not be roused and was taken to St. Joseph’s Hospital before being transferred to the Hamilton General Hospital where he was in critical condition. Mr. Fournier lingered in a coma until he died on until Sunday, February 12, 2006.

The Investigation

On February 10, 2006 two SIU investigators were assigned to investigate the circumstances of Mr. Fournier’s injury. Non-Witness Officer, the HPS liaison officer, told the SIU that Mr. Fournier was unconscious and suffering from a subdural hematoma (brain) and was not expected to live.

The SIU investigators commenced their investigation by visiting the LCBO store on Dundurn Street in Hamilton, the site of Mr. Fournier’s arrest. There they interviewed a number of civilian witnesses. Meanwhile, a SIU forensic identification technician (FIT) went to the HPS Central Division where she videotaped and photographed the cell in which Mr. Fournier had been lodged after his arrest.

At the onset of the investigation, it was unclear if Mr. Fournier’s subdural hematoma had occurred prior to his arrest or after his incarceration. As a consequence, the initial SIU probe centered on Mr. Fournier’s pre-arrest activities, which lead SIU investigators to a number of witnesses. Sometime later, it was determined that Mr. Fournier’s subdural hematoma most likely occurred after the police arrested him so the focus of the investigation broadened.

Based on this information, the SIU designated the following HPS personnel as subject officers:

• Subject Officer #1
• Subject Officer #2
• Subject Officer #3, and
• Subject Officer #4

On March 3, 2006 all four officers provided statements, in addition to their notes, to the SIU.

In addition, the following two HPS officers were designated as witness officers:

• Witness Officer #1, and
• Witness Officer #2

They too were interviewed by the SIU on March 3, 2006.

Upon request, the HPS provided the SIU with the following material:

• Copy of Communications tape regarding the incident
• Cell video tape
• CAD printout
• Duty Roster
• Event Chronology
• HPS Policy and Orders on Prisoners, and
• The list of computerized recordings for prisoners

In the days following the incident, the SIU interviewed the following civilian and medical witnesses on the dates noted:

• Civilian Witness #1 (February 10, 2006)
• Civilian Witness #2 (February 16, 2006)
• Civilian Witness #3 (February 17, 2006)
• Civilian Witness #4 (February 17, 2006)
• Civilian Witness #5 (February 23, 2006)
• Civilian Witness #6 (February 27, 2006)
• Civilian Witness #7 (February 27, 2006)
• Civilian Witness #8 (February 17, 2006)
• Civilian Witness #9 (February 10, 2006)
• Civilian Witness #10 (February 10, 2006)
• Civilian Witness #11 (February 12, 2006)
• Civilian Witness #12 (February 24, 2006)
• Civilian Witness #13 (March 13, 2006)
• Civilian Witness #14 (February 27, 2006), and
• Civilian Witness #15 (March 4, 2006)

Confidential witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence (Law Enforcement and Privacy Considerations)

Director’s Decision under s. 113(7) of the Police Services Act

After much deliberation and consultation I have come to the view that the evidence that is available in this case would not support a criminal charge against any of the subject officers. It is arguable that the officers showed a lapse of judgment in their care of Mr. Fournier. I have, however, reached the conclusion, that this lapse in judgment (if it be such) is not so egregious as to form the basis of a criminal prosecution. The three charges that were considered were assault causing bodily harm (or greater), criminal negligence causing death and failure to provide the necessaries of life. When I balanced all of the circumstances and applied the appropriate tests, I determined that the available evidence did not support any of these charges. In accordance with my appreciation of my jurisdiction under the Police Services Act, I am offering no opinion other than on the issue of criminal prosecution although part of my analysis does involve a consideration of the policies and procedures of the HPS.

Let me first deal with the facts as I believe them to be based upon a consideration of all of the evidence. I pause to acknowledge that once again the HPS and all of its members were open, cooperative and forthcoming throughout this investigation. This Unit has come to expect this in dealing with the HPS and although it is expected it is not taken for granted and it is truly appreciated. During the course of my factual exposition I will explain why there are clearly no grounds to believe that any of the subject officers committed any assault on Mr. Fournier. I will then turn to my analysis of why I do not believe there are any grounds to believe that the officers committed any crime of omission.

Mr. Fournier was a chronic alcoholic. On February 9, 2006 in the middle of the afternoon, having just received some money, he and a friend went to the LCBO on Dundurn Street in Hamilton. There Mr. Fournier bought two bottles of wine, one for himself and one for his friend. The two then went off and each rather quickly drank their own bottle and then parted ways. Mr. Fournier returned to the LCBO on Dundurn and his friend headed downtown. Mr. Fournier got back to the LCBO around 5 PM and shortly thereafter his presence was reported to the management and staff of the LCBO who in turn called the police. Two HPS officers arrived at the store and very quickly determined that Mr. Fournier was intoxicated and in a public place and he was arrested for that infraction.

Two things should be noted at this point. First, a toxicologist has calculated Mr. Fournier’s blood alcohol concentration by relating readings taken from blood drawn on Mr. Fournier’s admission to the hospital and extrapolating them back to the time of his arrest. The toxicologist is of the opinion that Mr. Fournier’s blood alcohol concentration at the time of his arrest (5:17 p.m.) was between 290 and 370 mgs of alcohol / 100mls of blood. Second, Mr. Fournier was extremely well known to the Hamilton police, particularly those in the central lock up facility. Sensitive Personal Information . Furthermore, since 1988 HPS officers arrested Mr. Fournier 288 times for being intoxicated in a public place and took him back to the central holding cells. That figure does not include many other occasions when the police took him to a detoxification centre rather than to the cells.

This level of familiarity may well have played a role in the assumptions made and inferences drawn by the police in their dealings with Mr. Fournier. I say this not as a criticism but merely as an observation. We are all human and we learn from past experiences and we predict future behaviour based upon what has happened in the past. Signs of injury that may have been noticed on someone previously unknown to the police may well be misinterpreted in respect of someone whose routine behaviours are known to the police.

The officers who arrested Mr. Fournier checked to see if they could take Mr. Fournier to a detoxification centre and they were advised that was not an option since there was no room. The only option was to continue the arrest and take Mr. Fournier to the central holding cells.

When the officers arrived at the central station Mr. Fournier became non-compliant. He was described either that way or as belligerent or combative by all those who had dealings with him at the station.

The officer in charge of the cells was occupied on other duties in another part of the station and so one of the constables called the officer in charge and advised him/her that Mr. Fournier was there and that he met the conditions for being booked into the cells. The officer in charge instructed the constable to continue the process.

Mr. Fournier had been dragged from the cruiser and into the booking area of the cells. Mr. Fournier was disheveled in appearance and intoxicated. The officers decided to lodge him in one of the cells. Two of the cell personnel took hold of Mr. Fournier, raised him from the floor and started to take him to the cell into which he is usually placed. While they were in the process of doing that Mr. Fournier wiggled free of their grasp and assumed what was described as a combative stance with the constables. At one point he advanced on one of the custodial officers and that man put his hands up to prevent Mr. Fournier from advancing any further and there was likely a nudging of Mr. Fournier in that process.

Mr. Fournier’s equilibrium was compromised at the best of times. He suffered from a serious self-inflicted brain injury in 1995. The effects of that injury endured and were exacerbated by his abuse of alcohol. In any event, as a result of this contact Mr. Fournier lost his balance (which was made even more precarious by virtue of the fact that he was in sock feet and those socks were wet by virtue of Mr. Fournier having lost control of his bladder). Mr. Fournier fell backwards, apparently first to his buttocks and then flat on his back. His head hit the concrete floor, hard.

One of the constables recalls that Mr. Fournier’s eyes remained open but he was unresponsive for a time, other officers recall Mr. Fournier appearing to fall immediately asleep and commence snoring. The evidence is unanimous that one of the constables immediately went to check on Mr. Fournier and could find no sign of external injury. Mr. Fournier did come around and re-assumed his belligerent attitude. The officers all thought that he had not been hurt and chalked up his demeanour to how he usually behaved with the police when he was intoxicated.

We now know, from the expert we retained, that the snoring was likely stertorous respiration indicative of a depressed level of consciousness and a compromised ability by the individual to maintain an airway. However, we also know that intoxication mimics and masks the effects of brain injury so it is quite unlikely that the officers would have been able to discern the true significance of what they were witnessing. Indeed they did not. He was taken to his usual cell and not to a hospital.

In respect of the injury to his brain, it was at first unclear where Mr. Fournier suffered it. There is evidence that Mr. Fournier fell in the LCBO parking lot and likely hit his head even before the police were called. It is however equally clear that Mr. Fournier suffered a significant and largely uncontrolled fall to a concrete floor in the holding cells. On balance, I am satisfied that Mr. Fournier suffered the acute injury while in police custody and that it was as a result of that fall that his brain began to bleed and eventually led to his death. His cause of death was determined to be a subdural hematoma and contusions of the brain due to blunt trauma to the head consistent with a fall.

I believe that he fell as a result of a scuffle, which he initiated, in the cells and the force that the police used in that interaction was not unreasonable and certainly was not used with the intention of causing him to fall let alone to cause him any injury.

A more complex situation presents itself in respect of the analysis of the issues surrounding criminal negligence and failure to provide the necessaries of life. Before embarking upon that analysis I reiterate the neurologist’s opinion to the effect that intoxication masks the indicia of brain injury and that the difference in these two types of indicia are very difficult to discern, even for a doctor. I also remind myself of the neurologist’s observation that chronic alcoholism causes the brain to atrophy and shrink, thus allowing more space for a break in a blood vessel in the cerebrum to bleed into before the hemorrhage becomes so large that pressure builds and manifests itself in the behaviour of the patient. Finally, the neurologist found evidence of a chronic hemorrhage underlying the acute one (this was likely as a result of long term substance abuse).

At 7:35 p.m. Mr. Fournier was up and about in his cell. This activity was captured by the video monitoring system at the central station.^{footnote 5[5]} He then went back to sleep and appeared to be sleeping right up until 11:30 p.m. Routine cell checks were carried out periodically and each time it appeared that Mr. Fournier was sleeping. At 11:30 p.m. one of the constables decided that Mr. Fournier could likely be safely released and went to his cell to start the release process.

The officer became alarmed when he/she could not rouse Mr. Fournier and called for assistance. While that custodial officer tried to awaken Mr. Fournier the first officer went to call an ambulance. The custodial officer left behind decided to move Mr. Fournier out of the cramped cell and to the front desk area in order that the EMS personnel would have space to move. Unfortunately he/she did this by dragging Mr. Fournier by one arm.

In respect of both of the crimes of omission I have considered, a preliminary consideration is whether or not the person who is the subject of the investigation owed the deceased a duty of care. Of course the custodial officers and those with authority over Mr. Fournier owed such a duty. What then is the content of that duty? What is its nature and extent? There is no set answer to these questions but their answer is found by recourse to the “reasonable person.”

The test is an objective one in which the impugned conduct is measured against a standard defined by the conduct of a reasonable person in similar circumstances. However, it is modified with a subjective component in that it is the subject’s perceptions of the circumstances that prevailed at the time of the conduct in question that informs the scenario constructed for the reasonable person.

What then were the subject officers’ perceptions of the circumstances as they unfolded that night? They all saw Mr. Fournier fall and they all appreciated that the fall may have hurt him. One of the officers checked Mr. Fournier and found no external injury. When Mr. Fournier resumed his non-compliant behaviour, they took that as normal for him and inferred (erroneously) that he was okay. The outward signs of the injury were slow to manifest themselves - what signs there may have been were masked by his level of intoxication.

Another source of evidence to aid in the determination of what is reasonable is custom evidence and that can be found in the policies and procedures of the individual police agency. During the course of this investigation and my deliberations, I have compared the actual conduct of the officers to the written policies and procedures of the HPS and found some incongruity. It is insufficient to provide a basis to believe that there was a criminal lack of care. These policies provide some guidance on custom or at least a professed accepted standard of care. They do not have the force of statute.

Just as compliance with a policy would not necessarily shield officers from criminal prosecution, non-compliance does not mean, of necessity, that a crime was committed. The policy provides an indication of what the police service says is the acceptable level of care for a prisoner and that policy is designed to reflect and protect a myriad of different interests. The criminal law imposes a more substantial test before an act or omission is properly considered a crime.

The crux of the reasonableness inquiry resolves itself around the following question – how would a reasonable person in the subject officers’ position have behaved? On a matter of life or death, where death or serious injury was a foreseeable consequence of a wrong decision, the reasonable person would have erred on the side of caution and taken the person to hospital for prompt medical attention. However this was not an obvious matter of life or death. I do not believe that there was a breach of the duty of care imposed on these officers by the criminal law.

Even where there is such a breach, the simple failure to comply with a duty of care will not suffice to warrant conviction in the criminal context. Where the Criminal Code creates an offence of penal negligence, the offence will not be made out unless the impugned conduct amounts to a marked and substantial departure from the conduct of a reasonably prudent person in all the circumstances: see R v Creighton (1993), 83 CCC (3d) 347 at 382 (SCC). This approach was expressly adopted by the Supreme Court of Canada in R v Naglik (1993), 83 CCC (3d) 526 as the test to be applied in assessing the actus reus component of section 215. I do not believe that there was such a marked and substantial departure.

It may be that one or more of the police officers or special constables missed signs that Mr. Fournier was in medical distress, but this failure, if it be such, certainly does not rise to the level of criminal negligence. Indeed, in fairness to those involved, it must be noted that they are not alone in assuming that a person who is breathing and snoring cannot be in serious medical difficulty.

Date: April 4, 2006

James L. Cornish

Director

Special Investigations Unit