Director of the Special Investigations Unit (SIU), Joseph Martino, has determined that the Kingston Police officer in charge of the care of prisoners did not commit a criminal offence in connection with an overdose which took place while a woman was in custody.
On Thursday, Feb. 11, 2021 the SIU released their findings in the case regarding the incident and whether or not the officer in question was guilty of any wrongdoing. The incident occurred on Sunday, July 19, 2020.
On that date a 48-year-old woman consumed illicit drugs while lodged in a cell at Kingston Police headquarters, after OPP brought her to Kingston Police headquarters to be held for a bail hearing.
According to SIU documentation, the woman stole a Canadian National Railway vehicle in the area of the Collins Bay Marina, Kingston. She drove the vehicle to a nearby Tim Hortons where she dumped it and then carjacked another vehicle from a pregnant woman. The woman then drove the stolen vehicle back to the marina where she abandoned it and got into a canoe. She paddled the canoe down the shore all the way to Picton where she was eventually arrested by the Ontario Provincial Police (OPP).
The woman was handed over to Kingston Police at 9:25 a.m., according to SIU documentation, and at approximately 7:50 p.m. she complained to the custody staff that she did not feel well.
After investigation it was found that at about 6:49 p.m., the woman removed a baggie of drugs from a body cavity and ingested the contents. An ambulance was called and the woman was taken to Kingston General Hospital.
After a period in the Intensive Care Unit, the woman recovered and was discharged from hospital nine days later.
Because the woman was in police custody at the time of her drug ingestion, the SIU was notified and commenced an investigation.
“The investigation having concluded, I am satisfied that there are no reasonable grounds to believe that the SO (Subject Officer – the Kingston Police officer in charge of the care of prisoners) committed a criminal offence in connection with the Complainant’s time in custody,” Martino wrote in his findings.
Martino goes on to say that it’s clear the Complainant’s condition was the result of her own drug ingestion, and the only issue that arises is whether her custodians contributed to the Complainant’s difficulties through any want of care sufficient to attract criminal sanction. “In my view, they did not,” he said.
“There are two offences that arise for consideration: the failure to provide the necessaries of life and criminal negligence causing bodily harm contrary to sections 215 and 221 of the Criminal Code, respectively,” Martino explained. “The former is premised, in part, on conduct that amounts to a marked departure from the level of care that a reasonable person would have observed in the circumstances. That is, something more than a simple want of care is required. Criminal negligence captures behaviour that is even more derelict. That is to say, the impugned conduct must be both a marked and substantial deviation from a reasonable level of care.”
“The question arises whether the Complainant ought to have been more carefully searched for drugs before being lodged in cells,” he continued in his findings. “After all, the Complainant had admitted to cocaine and methamphetamine use at the time she was booked. It should be noted that the Complainant was subject to a pat-down search before she was placed in a cell. That the drugs were not discovered in this process is not surprising as the Complainant had in fact secreted the baggie in her vagina.”
Martino cited the law set out in R. v. Golden,  3 SCR 679, in addition to reasonable and probable grounds justifying an arrest, the police must establish reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest.
He said that notwithstanding her admitted drug use, the Complainant presented in good health at the time of her booking and appeared that way through most of her time in custody. “In the circumstances, I am unable to fault the officers for not subjecting the Complainant to a strip search. That being the case, I am even less persuaded that a body cavity search, which may well have been the only way to find the baggie and requires more justification than a strip search, was a viable option or that the officers’ failure to perform one was sufficiently remiss to attract criminal liability.”
The SIU is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury, or allegations of sexual assault. For the full SIU report, click here.