SIU Director’s Report - Case # 10-OCD-242
Issued: April 15, 2011
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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.
Notification of the SIU
On Thursday, November 11, 2010, at 0813 hrs, Notifying Officer of the Orangeville Police Service (OPS) notified the SIU of Mr. Adam Sprague’s custody death.
Notifying Officer reported that on Wednesday, November 10, 2010, at 2305 hrs, Mr. Sprague was arrested for intoxicated in a public place and was lodged in the drunk tank. At 0110 hrs, Mr. Sprague was observed on video moving and at 0604 hrs was found by Witness Officer #4 to be unresponsive. Dufferin County Ambulance Service (DCAS) responded and at 0720 hrs Mr. Sprague was pronouced vital signs absent (VSA).
On Thursday, November 11, 2010, at 0846 hrs, five SIU investigators and two forensic investigators (FI) were assigned and commenced an investigation.
On November 11, 2010, Subject Officer was designated as a subject officer. Subject Officer declined to be interviewed or provide a copy of his notes.
On November 11, 2010, the following officers were designated as witness officers. They supplied their notes and were interviewed on the dates indicated:
- Witness Officer #1 (November 11 and December 2, 2010)
- Witness Officer #2 (November 11 and December 2, 2010)
- Witness Officer #3 (November 11 and December 2, 2010)
- Witness Officer #4 (November 11, 2010)
- Witness Officer #5 (November 11, 2010)
- Witness Officer #6 (November 11, 2010)
- Witness Officer #7 (November 11, 2010)
- Witness Officer #8 (November 18, 2010)
- Witness Officer #9 (November 18, 2010)
- Witness Officer #10 (December 2, 2010), and
- Notifying Officer (April 6, 2011)
The following civilian witnesses were interviewed on the dates indicated:
- Civilian Witness #1 (November 11, 2010)
- Civilian Witness #2 (November 11, 2010)
- Civilian Witness #3 (November 13, 2010)
- Civilian Witness #4 (November 11, 2010)
- Civilian Witness #5 (November 11, 2010)
- Civilian Witness #6 (November 11, 2010)
- Civilian Witness #7 (November 11, 2010)
- Civilian Witness #8 (November 11, 2010)
- Civilian Witness #9 (December 17, 2010)
- Civilian Witness #10 (December 20, 2010)
- Civilian Witness #11 (December 20, 2010)
- Civilian Witness #12 (December 17, 2010)
- Civilian Witness #13 (December 20, 2010)
- Civilian Witness #14 (December 20, 2010)
- Civilian Witness #15 (December 20, 2010), and
- Civilian Witness #16 (December 20, 2010)
SIU investigators received and reviewed the following materials from the OPS:
- Computer aided dispatch (CAD)
- Deceased profile and occurrences
- Event Chronology
- Communication recordings
- List of witnesses
- Scene log
- Duty rosters
- Memo Re: Check on Prisoners not obviously Awake, dated August 25, 2008
- OPS Procedure Arrest/LE-005
- Prisoner Logs
- OPS CPIC Search
- Special Constable training schedule
- E-Mails from Notifying Officer
- E-Mail from Non-Witness Officer to Special Constables
- Members of the Board Minutes, dated September 4, 2008
- Meeting Agenda February 1, 2008
- E-Mail and Memo regarding cell death in Cobourg
- DVDs containing the all cell recordings, booking hall, kitchen, including sally port and hallways
- Statements of Fire Fighters Emergency Personnel #1, Emergency Personnel #2, Emergency Personnel #3, and Emergency Personnel #4
- CD Photos, and
- Incident Chronology
The prisoner log for Mr. Sprague indicated that he was checked seven times during the night. After 0150 hrs, he was always in the prone position. The checks were all made by the communications personnel. A check at 0420 hrs indicated that there was body movement but this is not supported by video. Four of the checks indicated no body movement but no physical check was made.
Members of the Board Minutes, dated September 4, 2008, outlined the Ministry of Community Safety and Correctional Services Inspection of the OPS and Recommendations. One of the recommendations stated: “The Chief of Police ensures that physical security checks are conducted in accordance with Ministry guideline LE-016.” This Police Services Board meeting resulted in the approval of the hiring of four additional part-time Court Special Constables to assist in duty/prisoner monitoring.
SIU investigators received and reviewed the following materials from the Ontario Provincial Police (OPP):
- interview summary of Civilian Witness #2, dated November 26, 2010
- interview summary of Civilian Witness #1, dated November 12, 2010
- interview summary of Civilian Witness #1, dated December 1, 2010
- CD audio interview of Civilian Witness #2, and
- DVDs of the interviews of Civilian Witness #1
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
In my view, there are no reasonable grounds to believe that the named subject officer, Subject Officer, committed a criminal offence in relation to the death of Mr. Sprague on November 11, 2010. At approximately 2300 hrs the night before, the decedent was arrested for being intoxicated in a public place. The arrest is probably unlawful because Mr. Sprague was on private property at the time of his alleged intoxication. However, for our purposes, the issue of the lawfulness of the arrest does not affect the legal analysis; Mr. Sprague was lodged in the OPS cells shortly thereafter and placed into the custody of others who had no reason to question the grounds of arrest. In other words, those further down the chain of custody of Mr. Sprague had an honestly held belief that the prisoner was under lawful arrest.
Once at OPS, he was lodged in cell #2. The prisoner log indicates when he was checked at 2315 hours and 0032 hrs the following day, there was movement. The log then indicates checks at 0150 hrs – no movement; 0319 hrs – no movement; 0420 hrs – movement; 0612 hrs – no movement; and 0708 hrs – no movement. However, his cell was monitored by a movement sensitive video camera. The video imagery showed he stopped moving at 0110 hours with no further movement. Dispatchers in another part of the station could view continuous video imagery of the cell. From their perspective, Mr. Sprague appeared to be sleeping all night. There was an audio monitoring of the cell due to the fact that the audio connection to Mr. Sprague’s cell was mistakenly fed into the cell holding Civilian Witness #1. Intermittent breathing and/or gasping can be heard from Mr. Sprague from 0111 hrs to 0441 hrs. He was physically checked at 0741 hrs for purposes of release and found to be VSA. A reasonable conclusion to be drawn from video and audio recordings is that Mr. Sprague last moved in cell #2 at 0110 hours, was alive until 0441 hrs and died sometime between that time and shortly before being discovered at 0741 hrs.
Civilian Witness #1 was awake most of the night, yelling and motioning to the video camera. The audio recording indicates that Civilian Witness #1 did not express a concern for Mr. Sprague’s condition.
The subject officer was in charge of the prisoners in the cells that evening, and it is clear that he did not ensure that Mr. Sprague was physically checked in contravention of the internal Prisoner Care and Control policy. He did not check the cell himself, nor did he call in a special constable to assist in prisoner monitoring. While he declined to give a statement, according to Notifying Officer, the subject officer did not check the prisoner because he thought he must have been awake due to the noise emanating from Civilian Witness #1’s cell. The subject officer also stated, “I was watching him from the sergeant’s office all night and I could have swore he moved.”
After Mr. Sprague was discovered at 0741 hrs, there was a valiant attempt made by police officers, special constables, fire fighters and paramedics to resuscitate him. However, he never gained consciousness. The post-mortem report received by the SIU on March 16, 2011 lists the cause of death as ‘acute oxycondone toxicity’.
The relevant sections of the Criminal Code are fail to provide the necessaries of life and criminal negligence causing death. In my view, the legal proof of liability is similar for both offences – they both require a marked and substantial departure from the level of care that a reasonable custodian would have taken in circumstances where an accused recognized and ran an obvious and serious risk to life and safety, or alternatively gave no thought to the risk: see Naglik (S.C.C.) & Sharp (Ont. C.A.). Assuming for the moment that medical evidence supports the proposition that Mr. Sprague would have survived had he been effectively monitored, in my view, the omissions of the subject officer do not support either charge. While the subject officer did have a legal duty to protect those under his custody and he failed to effectively monitor the decedent during his watch, his omissions do not constitute such a marked departure in circumstances where he recognized and ran an obvious and serious risk to his life and safety, or alternatively gave no thought to the risk. The dispatchers who were monitoring the cell videos thought that the decedent was sleeping and did not notify the subject officer regarding his apparent lack of movement. As previously mentioned, the subject officer erroneously thought the decedent was awake in his cell. While he should have been more proactive in ensuring that Mr. Sprague was not lapsing into medical distress, the evidence suggests that the subject officer was more negligent than criminally negligent; there is no suggestion that he positively knew Mr. Sprague was in distress and then intentionally ignored his plight. Accordingly, while the omissions of the subject officer raise disciplinary and training issues which may be addressed in other forums, I am of the view that no criminal liability may attach in these circumstances.
Date: April 15, 2011
Original signed by
Special Investigations Unit
There were no issues with the notes or questions put to the witness officers in this case.