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

Notification Date and Time: 02/12/2014 at 1440 hours

Notified By: Police

Overview

On February 12, 2014, 1440 hrs, Notifying Officer of the Thunder Bay Police Service (TBPS) contacted the SIU to report a custody injury to Deceased. Notifying Officer reported that at 1320 hrs, TBPS were called to the area of ----redacted Trillium Way in Thunder Bay for three males, one with a gun. Deceased was arrested and taken to the station. At the station Deceased went vital signs absent (VSA) in the booking room. He was taken to hospital and was revived en route.

On February 16, 2014, Deceased passed away while in the Intensive Care Unit (ICU) of the Thunder Bay Regional Health Sciences Centre (TBRHSC).

The investigation

Response type: Attend Immediately

Date and time team dispatched: 02/12/2014 at 1527 hours

Date and time SIU arrived on scene: 02/12/2014 at 2345 hours

Number of SIU investigator(s) assigned: 2

Number of SIU forensic investigator(s) assigned: 1

Complainant

Deceased N/A

Civilian witnesses

Civilian Witness #1 Initial Interview: February 19, 2014

Civilian Witness #2 Initial Interview: February 19, 2014

Civilian Witness #3 (Referred to as Senior Paramedic in this report) Initial Interview: February 19, 2014

Civilian Witness #4 Initial Interview: February 19, 2014

Civilian Witness #5 N/A

Subject officers

Subject Officer #1 Initial Interview: February 20, 2014

Subject Officer #2 Initial Interview: February 20, 2014

Copies of notebook entries were not provided by the subject officers.

Witness officers

Witness Officer #1 Initial Interview: February 13, 2014

Witness Officer #2 Initial Interview: February 13, 2014

Witness Officer #3 Initial Interview: February 13, 2014

Witness Officer #4 Initial Interview: February 13, 2014

Witness Officer #5 Initial Interview: February 13, 2014

Witness Officer #6 Initial Interview: February 20, 2014

Witness Officer #7 Initial Interview: February 20, 2014

Upon request the SIU obtained and reviewed the following materials and documents from the TBPS:

  • Adult Accused Charge Report - a person
  • Email from Notifying Officer
  • Event Chronology
  • lntelliBook Report-a person
  • lntelliBook Report-Civilian Witness #1
  • lntelliBook Report-Civilian Witness #2
  • Investigative Overview- Case Details
  • Known file Impressions of Deceased
  • Notes - Witness Officer #7
  • Notes - Witness Officer #3
  • Notes - Witness Officer #4
  • Notes - Witness Officer #5
  • Notes- Witness Officer #2
  • Notes- Witness Officer #1
  • OPP Occurrence Report- Fingerprints
  • Playlist- 911 Call
  • Playlist - ops 1
  • Playlist - ops 2
  • Playlist - Phone Calls
  • Procedure - Care and Handling of Prisoners
  • Supplementary Occurrence Report- Witness Officer #7
  • Supplementary Occurrence Report - Witness Officer #3
  • Supplementary Occurrence Report- Witness Officer #5
  • Supplementary Occurrence Report - Witness Officer #2
  • Supplementary Occurrence Report - Witness Officer #1, and
  • Supplementary Occurrence Report - Witness Officer #6

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

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

There are no reasonable grounds, in my view,to believe that either of the subject officers- Subject Officer #1 and Subject Officer #2 - committed a criminal offence in connection with the death of Deceased on February 16, 2014.

Deceased was arrested on February 12, 2014 at about 1300 hrs by several TBPS officers.

Sensitive commentary that does not relate to the Director’s Decision

According to Civilian Witness #1, Deceased was outside the residence on Academy Street at about 1230 hrs of February 12, 2014, seemingly annoyed or angry. A short time thereafter, the TBPS received information indicating the presence of three black males in the vicinity of Ravenwood Avenue, one of whom was armed with a firearm. Witness Officer #1 was patrolling in that area and was among the first officers to respond, followed by Witness Officer #7 and Witness Officer #6. Witness Officer #1 observed a male that loosely matched the description of the suspect who had reportedly been seen with the firearm- black, average build and height, wearing a black hoodie and a covering on his face. The male was Deceased. According to Witness Officer #1, the male noticed his/her presence and ran away from the officer in the direction of the Trillium housing complex. The officer drove onto Trillium Place, exited his/her vehicle and caught up with the male. He/She ordered him to the ground and Deceased complied. Witness Officer #7 and Witness Officer #6 made it to the scene at about this time and proceeded to handcuff Deceased before placing him in the backseat of Subject Officer #1 ’s cruiser, which had just arrived.

I am satisfied that Deceased was lawfully arrested in relation to the firearms call. He generally fit the description that had been broadcast of the suspect, was found in the location

where he had reportedly been observed with a firearm and ran away from the police upon their arrival. In my view, these circumstances coalesced to give the officers reasonable grounds to believe Deceased was implicated in criminal activity related to the gun call.

Once arrested and placed in Subject Officer #1’s cruiser, Deceased was taken to the police station. The officers noticed that Deceased’s behaviour seemed odd- he had removed clothing in very cold weather - and his movements seemed laboured, but they were otherwise unconcerned about his health. According to Subject Officer #1 and Subject Officer #2, Deceased was animated inside the cruiser- kicking and screaming- before he finally settled and lay down on the cruiser’s backseat during the trip to the station. Once at the station, it became apparent that Deceased was in medical distress. It is the nature of the subject officers’ response to Deceased’s deteriorating health condition at the station that is the question in assessing their potential criminal liability.

It is appears evident on the video recording of Deceased’s arrival in the sally port that he was unresponsive and no longer in control of his faculties. Subject Officer #1 can be seen removing Deceased from the cruiser. In his statement to the SIU, the officer acknowledges that Deceased was unable to exert much strength but asserts that he was able to stand himself up to a degree, albeit with the officer’s assistance. The video recording would seem to belie that assertion. Deceased is placed on the floor of the sally port. In short order, Deceased is picked up by the officers and dragged into the booking room where he is again placed on the floor. He is first placed on his front side and articles of clothing are removed from him. The handcuffs are then removed and he is positioned on his back side. More clothing is removed consistent, as the officers say, with police policy. The officers observed white froth around Deceased’s mouth and that his eyes were looking upward and that he had urinated on himself. They were growing increasingly wary of Deceased’s condition. Subject Officer #1 proceeded to rub Deceased’s sternum to assess his responsiveness. According to the fficers, the rub prompted some movement on the part of Deceased but not much.

Witness Officer #3, who had observed Deceased’s arrival from a video monitor, made his/her way to the booking room. What he/she saw of Deceased’s condition on the video had given the officer cause to be concerned about his medical condition, a concern that was only reinforced when he/she observed Deceased on the booking room floor. He/She quickly ordered the officers to remove Deceased to hospital. Subject Officer #2 and Subject Officer #1 picked Deceased up again and moved him into the sally port. It was their intention to personally take him to hospital in a police cruiser. At Witness Officer #4’s suggestion, leg shackles were placed on Deceased at this time. The officers never made it as far as placing Deceased in a cruiser. It seems they realized Deceased was in immediate medical distress and would. be better served by having paramedics attend the station. They laid him down on the floor on his side in the recovery position and proceeded to call for an ambulance.

Firefighters were the first to respond to the station, but they were waved off by the police with the arrival of an ambulance right behind them. It was now about 18 minutes since Deceased’s arrival at the station. Senior Paramedic was the senior paramedic on scene. He/She was accompanied by another paramedic, Emergency Medical Personnel, and a trainee, Civilian Witness #4. They were briefed by the officers on the circumstances surrounding Deceased’s present condition. It does not appear that anyone thought that Deceased’s condition was critical at this time as he was left on the floor for a minute or so before he was first assessed by Civilian Witness #4. Civilian Witness #4 looked for a pulse, but could not find one. It is at this point that the paramedics jumped into action. They began CPR and quickly loaded him ono a stretcher and into the ambulance.

Deceased was taken to the TBRHSC. He remained there in critical condition until his death on February 16, 2014. The pathologist at autopsy concluded that Deceased’s death was the result of anoxic ischemic brain damage related to cardiovascular collapse and cocaine ingestion.

The offences that arise for consideration are failure to provide the necessaries of life (section 215 of the Criminal Code) and criminal negligence causing death (section 220 of the Code). Both are offences of penal negligence and are predicated upon a finding that the conduct in question amounts to a marked departure from the level of care that a reasonable person would have exercised in the circumstances. In essence, did the subject officers do enough to care for Deceased while he was in their custody? If not, was their lack of care so wanting as to attract criminal sanction?

The officers were clearly under a legal duty of care toward Deceased. He was in their lawful custody and had every right to expect he would be well treated as far as the basic necessities of life were concerned. The provision of medical attention to those in need of such attention is one such necessity where delay or denial places one’s life in risk. It seems to me that the officers could have done more to care for Deceased. In particular, it should have dawned on them upon their arrival at the police station or soon thereafter that Deceased was in bad shape, given his depressed consciousness, and in need of immediate medical attention. Regrettably, while it appears the officers had some concerns for the state of Deceased’s health, they also suspected Deceased was playing possum in order to create an opportunity for escape. I accept what the officers say, namely, that they had had experience with prisoners pretending to be ill. While that may be so, however, it behooves an officer to proceed with extreme caution in these situations and to arrange for prompt medical attention if there is any cause to believe someone’s health is in jeopardy. By their own admission, the subject officers say they were concerned with Deceased’s health, but nevertheless delayed in providing medical attention.

On the other hand, the delay in question was not one out of all measure in the circumstances. It was about ten minutes from the moment of Deceased’s arrival at the sally port, around which time, arguably, the officers ought to have acted, until the call is made for an ambulance.

During this time, according to the officers, Deceased was breathing, alleviating any concerns that he was in dire condition. In fact, as the officers explain, they refrained from checking for a pulse or administering CPR because they could see and believed that Deceased was breathing. There is nothing to detract from the officers’ evidence in this regard. Indeed, the evidence from Senior Paramedic lends credence to what the officers say. According to Senior Paramedic, he/she too found Deceased breathing. He/She described the breathing as "agonal" and explained it is the type of breathing that sometimes occurs with persons in cardiac arrest or dying- shallow, laboured and infrequent. Critically, Senior Paramedic suggests that agonal breathing, a cause for immediate concern to the medically trained eye, might not be so to the untrained eye of a police officer.

In the final analysis, the evidence suggests that the officers could have and should have done more to assess and preserve Deceased’s health upon their arrival at the sally port. Deceased was all but lifeless. Even his breathing seemed shallow at times. That said, I am satisfied on the evidence that their conduct was not so derelict as to amount to a marked departure from the level of care that a reasonable person would have exercised. They believed, and had reason to believe, that Deceased was breathing. It appears he was breathing. They took steps to assess his level of consciousness by administering a sternum rub and provoked some physical response, if only minimal. They should have called for an ambulance more quickly than they did, but a call was in fact made within about ten minutes of their arrival at the sally port. And they took steps to place Deceased in the recovery position and monitor his condition pending the arrival of the paramedics. Should they have checked for a pulse? Yes- it would have been the prudent thing to do. Had they done so, they might have noticed Deceased was without a pulse and taken steps to render medical aid sooner than occurred. Here too, however, it is speculation to conclude Deceased was in cardiac arrest or without pulse prior to the paramedics’ arrival and their assessment of the patient.

For the foregoing reasons, I am satisfied that the subject officers exercised a level of care that although substandard in critical ways was not so derelict as to warrant criminal charges.

Date: August 18, 2014

Original signed by

Tony Loparco
Director
Special Investigations Unit