R. v. Doering, 2019 ONSC 6360

COURT FILE NO.: 348/18

DATE: 20191101

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NICHOLAS DOERING

Accused

Jason Nichol and Katherine Beaudoin, for the Crown

Lucas O’Hara, for the Accused

HEARD: October 21, 22, 23, 24, 25, 28, November 1, 2019

POMERANCE j.

[1] On September 7, 2016, Debra Chrisjohn (“Ms. Chrisjohn”), a woman of indigenous heritage, died while in police custody. She had ingested a toxic level of methamphetamine resulting in a heart attack. The tragedy of her death is compounded by the fact that it might have been prevented. Timely medical intervention might well have saved her life. Regrettably, that did not occur.

[2] The Crown introduced a video of Ms. Chrisjohn being brought into the Ontario Provincial Police (“OPP”) detachment shortly before her death. It is silent witness to the gravity of her condition at the time. She is limp, silent, and demonstrating no signs of movement as she is dragged across the sally port and into the cells. The OPP summoned EMS, but by the time they arrived it was too late to save Ms. Chrisjohn’s life.

[3] During the critical time period, Ms. Chrisjohn was in the custody of the accused, Constable Nicholas Doering (“Cst. Doering”) of the London Police Service (“LPS”). He arrested her on an outstanding OPP warrant and eventually transferred her to OPP custody. The Crown alleges that Cst. Doering’s failure to obtain medical assistance for Ms. Chrisjohn amounted to a failure to provide the necessaries of life, contrary to s. 215 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown further alleges that, when Cst. Doering transferred custody of Ms. Chrisjohn to the OPP, he knowingly provided false and incomplete information about her medical condition. This, it is alleged, demonstrated a wanton and reckless disregard for Ms. Chrisjohn’s life and establishes commission of criminal negligence causing death, contrary to s. 222 of the Criminal Code. The Crown contends that Cst. Doering’s conduct represents a marked and substantial departure from the standard of care of a reasonably prudent police officer.

[4] Cst. Doering testified at trial that he did not perceive that Ms. Chrisjohn required medical attention. He believed that she was just experiencing the effects of methamphetamine and needed to “ride out the high.” He had received confirmation of that position from an EMS supervisor early on in the detention. The defence argues that the accused made an error in judgment, but an error that was reasonable in light of his past experience with methamphetamine users and the conversation with the EMS supervisor. The accused denies that he deliberately misled OPP officers during the transfer of custody. He argues that the Crown has failed to establish a marked, or a marked and substantial, departure from the standard of care of a reasonably prudent police officer.

[5] I have carefully considered the whole of the evidence called at trial, the exhibits, and the agreed upon facts. It is important to remember that hindsight is 20/20. We now know that Ms. Chrisjohn was in dire need of medical attention. However, I must focus on what was known and apprehended by Cst. Doering at the time of the events. What did he observe? What was he aware of? What did he make of those observations? Were his perceptions and resulting actions consistent with those of a reasonably prudent police officer in similar circumstances, or did he fall below the minimum standard of care?

[6] I will begin by outlining the evidence at trial. I will then turn to the governing legal principles. Finally, I will apply those principles to the facts of this case.

EVIDENCE AT TRIAL

Admissions and Agreed Facts

[7] The accused admitted various facts at trial, including the following:

While in the custody of Constable Nicholas Doering on September 7, 2016, Debra Chrisjohn/Elijah was unable to provide herself with the necessaries of life.
Methamphetamine is a powerful stimulant drug which floods the user’s brain and body with the adrenalin hormone. Users often experience side effects which can include confused cognitive function such as paranoia, elevated sensory stimulation, and agitations and restlessness.
Although there is no antidote to counter or reverse its effects, medical treatment and interventions are available for persons who have ingested methamphetamine. Medical treatment usually involves monitoring and treating as required the user’s symptoms in a hospital until the drug’s effects on the body have dissipated.
Not everyone who experiences side-effects as a result of using methamphetamine requires medical treatment or intervention.
For users who require medical treatment and intervention, the sooner they receive such intervention, the greater the chance of successful recovery or survival.
Due to the effects of using methamphetamine, Debra Chrisjohn/Elijah required medical treatment and intervention at the time of her transfer to the Ontario Provincial Police in the Tim Hortons’ parking lot on September 7, 2016.[^1]
From the time of her arrival at the Elgin OPP detachment onward, Ms. Chrisjohn was in a critical state and required urgent medical intervention and treatment.
The delay in providing her with medical attention and treatment impacted her chance of survival, although it is difficult to determine to what degree. Her death, however, was not inevitable. In other words, had she received medical attention or treatment prior to the involvement of paramedics at the Elgin OPP detachment and medical staff at the St. Thomas-Elgin General Hospital on September 7, 2016, she might have survived.

The Events of September 6, 2016

[8] Ms. Chrisjohn initially had contact with the LPS on September 6, 2016. Constable Jared Park (“Cst. Park”) was dispatched to attend at the intersection of Wharncliffe Road and Highview Avenue in the City of London. The dispatch was a “check welfare call,” which directs officers to try to locate a subject and determine if he or she is in distress or otherwise needs attention.

[9] Cst. Park arrived at 12:03 p.m. and was flagged down by two citizens. He observed Ms. Chrisjohn, at which time she ran in the direction of a strip mall. She appeared to be confused, nervous, and was constantly looking around. The officer believed that she was under the influence of a drug. He approached her and asked her name, to which she replied: “Deb.” She seemed unable to sit still and the officer came to believe that she had ingested crystal methamphetamine. She was speaking but did not make sense. The officer called for an ambulance at 12:05 p.m., telling dispatch that “this female is just, ah reacting to some crystal… crystal meth…can we just have an ambulance come by and see if they can check her out?”

[10] While waiting for the ambulance, Cst. Park spoke with Ms. Chrisjohn. He asked her where she was going, where she was coming from, and how much sleep she had had in the past day or two. She was running from place to place and, at one point, hopped into the front seat of a taxicab that already had a fare in the back seat. The officer asked her to sit in his cruiser and ran a check on her name. He learned that the OPP had an outstanding warrant for her arrest on a charge of failing to comply with a recognizance. He arrested her on the warrant, cautioned her, and waited for the ambulance.

[11] The ambulance arrived and transported Ms. Chrisjohn to hospital. The officer remained with her in triage until he was notified that the OPP would not be coming to take her into custody. Initially, indications were that the OPP would be coming to the hospital. Cst. Park then had a conversation with Sergeant Andy Doughty, a team leader at the Elgin detachment, who advised that the OPP would not attend London to wait at the hospital. They would not return on their warrant until Ms. Chrisjohn was “medically cleared” by the hospital. Upon receiving this information, Cst. Park released Ms. Chrisjohn from his custody and left her at the hospital. He later learned that she left the hospital against medical advice.

[12] When asked why he called for an ambulance, Cst. Park advised that Ms. Chrisjohn was acting erratically and running into traffic. He did not initially have any grounds to arrest her, but he could not just drive away. He testified that he did not think that it was a medical emergency. He testified that it is a common occurrence for officers to encounter individuals who have consumed methamphetamine, and that those individuals are not routinely medically assessed before being placed in custody. According to Cst. Park, Ms. Chrisjohn was extremely intoxicated, but her level of intoxication was average compared to what the officer encountered on a regular basis.

[13] Nicholas Vernon, an EMS officer, responded to the call for an ambulance on September 6, 2016. He testified that it is quite common for EMS officers to be called to deal with persons intoxicated by drugs. When responding to such calls, the EMS officer is required to take the individual to hospital, unless they refuse to go.

Events of September 7, 2016

Initial 911 Calls

[14] On September 7, 2016, various 911 calls were placed about Ms. Chrisjohn’s behaviour at the intersection of Highbury and Trafalgar Streets in London:

a. at 5:27 p.m., a call came in from Ahmed Fayad (“Mr. Fayad”), a civilian witness at the scene. LPS dispatch sent a call for a “check welfare in progress,” stating that a caller was concerned about female walking on the road and trying to get into cars and that he was trying to restrain her at Petro Can gas station until officers arrive”;

b. at 5:30 p.m., a female called 911 to report that a woman had been running through traffic at the intersection of Highbury and Trafalgar and that it looked like someone was holding her on the ground;

c. at 5:32 p.m., a 911 call was placed by a woman (referred to at trial as the woman in the van) who reported that someone “tried jumping in my van while I’m driving down the road.” She advised that there was an older gentleman “who has her pinned to the ground right now to try and keep her safe”;

d. at 5:33 p.m., Anna Parker (“Ms. Parker”), the second civilian attending to Ms. Chrisjohn, called 911 because she saw a police car drive by and thought it might have missed the location;

e. at 5:34 p.m., an employee of the Petro Canada gas station at Highbury Avenue called and reported that “there is a crackhead outside the store”; and

f. at 5:37 p.m., the sister of the woman in the van called for an ambulance to assist because her sister was having a panic attack.

Doering and Steeves are Dispatched

[15] At 5:34 p.m., Cst. Doering was dispatched to attend at the scene. Constable Steeves (“Cst. Steeves”) was dispatched to attend at 5:35 p.m. The dispatch provided that:

EMP FROM PETRO SAYS THE FEM IS A CRACKHEAD – HAD RUN INTO THE STORE PRIOR – NOW LAYING DOWN OUTSIDE.

[16] In response to this dispatch, Cst. Park radioed at 5:34 p.m.:

That kind of sounds like the girl I had yesterday, Debora Elija, she’s ah 10-63 [has a warrant] with the OPP, she’s also HIV and Hep C.

[17] At 5:36 p.m., Cst. Doering queried Debra Chrisjohn/Elijah on police systems RMS and CPIC. He arrived at the Petro Canada parking lot at 5:40 p.m., with Cst. Steeves following at 5:45 p.m.

Doering Arrives at the Scene

[18] At 5:40 p.m., Doering arrived and radioed “she’s just being held it (sic) down on the grass on the northwest corner of the Petro lot.”

[19] According to Mr. Fayad, one or two police officers arrived at the scene. He heard one officer get out of his cruiser and call Ms. Chrisjohn by name. He heard the officer say that she was wanted by the OPP. He arrested her and placed her in the back of a police car.

[20] Ms. Parker testified that she heard the officer say “yeah we know her well. We had her with us on Wednesday. She’s probably just cracked out.” She heard the officer say, “Debra, there’s a warrant out for your arrest.” He asked her to turn over onto her stomach and handcuffed her. The woman was agitated but cooperative. The officer took down Mr. Fayad’s name, but when Ms. Parker asked whether he needed her contact details he responded: “I think we’re good.” Ms. Parker then went over to the woman in the van who had called 911, who was very distraught. She stayed with that woman until her sister arrived. She did not recall seeing an ambulance at the scene.

[21] Thereafter, the following communication took place between Constables Doering and Steeves on the mobile data terminal:

5:49 Steeves: Just watch she doesn’t boot our your window. Your back left window is open.. fyi.. the rain

5:54 Doering: rgr thanks, she is so high on meth.

The CPIC Message re OPP Warrant

[22] At 5:50 p.m., Cst. Doering posted the following message to Prime ORI Handle:

To whom it may concern,

We have arrested a female, Debra CHRISJOHN dob on your outstanding warrant for Breach of recognizance, please let me know if you will return, we will be able to meet u half way if you would like. Be advised that CHRISJOHN is high on Crystal meth, however, it does not appear at this time that she requires to be cleared medically at the hospital.

Thanks,

Attendance of Sean Hill

[23] Sean Hill (“Mr. Hill”) is an EMS supervisor. On September 7, 2016, at 5:41 p.m., he heard a dispatch “code 3 for behavioural problems.” He took it upon himself to respond at the Petro Canada gas station at Highbury and Trafalgar. When he arrived, he saw two London Police cruisers parked at the gas station. He parked just in front and to the east. He saw Cst. Doering sitting in the driver’s seat of his vehicle and Cst. Steeves at his vehicle. Mr. Hill left his vehicle, as did Cst. Doering, and they had a brief conversation. Doering’s driver-side door was open and Mr. Hill was standing at the front of the officer’s vehicle. He noticed a female in the backseat of the cruiser, whom he observed through the front windshield and protective Plexiglass barrier.

[24] Mr. Hill recalled that the female was acting aggressively, throwing herself against the passenger side door, and yelling profanities. She was upright. He heard her speaking. She did not appear to have any trouble breathing. She was conscious. There was no blood or vomit. He estimated her to be at level 15 – the highest level of consciousness – on the Glasgow Coma Scale.

[25] In his testimony-in-chief, Mr. Hill testified that he asked Cst. Doering whether he wanted EMS to assess the patient in the back of the cruiser. He testified that Cst. Doering said that, based on her behaviour, she would not tolerate any form of assessment. According to Mr. Hill, Cst. Doering further said that she was wanted on outstanding warrants and that he was waiting for direction on what the OPP wanted LPS to do. Mr. Hill testified that there was some discussion about what a hospital might do for her, and the potential for abnormalities in her vital signs. He said that Cst. Doering told him that if he changed his mind, or had a further need for EMS, he could call them back.

[26] From there, Mr. Hill went to speak to the two paramedics who had by then arrived with an ambulance. Cst. Steeves was talking to Sarah May and Devon Mason, the paramedics. According to Mr. Hill, Cst. Steeves told them that LPS did not require the woman to be assessed and that he was clearing the scene. Mr. Hill recognized Cst. Steeves from a media release.

[27] In cross-examination, Mr. Hill was confronted with statements he made to Ministry of Health (“MOH”) investigators, to SIU investigators, and his testimony at the preliminary inquiry. It came to light that Mr. Hill had been scrutinized for certain aspects of his conduct. He failed to fill out an ambulance call report in a timely way. He also failed to notify the communications centre of his attendance at the scene.

[28] Mr. Hill’s testimony was inconsistent with his other statements. For example:

a) Mr. Hill told MOH investigators that he did not recall any conversation with the paramedics, yet he recalled a conversation when he testified at trial, claiming that his memory had gotten better.

b) Mr. Hill testified that, when he got the dispatch call, he did not know who the patient was that he was supposed to assess. He testified that he thought that the intended patient was the woman in the back of the police cruiser. He similarly told MOH investigators that the intended patient was the person believed to be breaking into cars. However, in his statement to the SIU investigators, Mr. Hill told them that the patient to be assessed was the woman in the minivan. During cross-examination, Mr. Hill acknowledged that, if he told MOH that the patient was the woman in the minivan, he could face negative findings for his failure to assess her.

c) Mr. Hill testified that he did not offer to assess the woman in the back of the cruiser because it was more appropriate for the paramedics to do so. However, he acknowledged that he had the same training as the paramedics and that policy required that the first responding paramedic complete the initial assessment. In an email sent on September 12, 2016 to his supervisor, he stated that he had offered to assess the woman, or alternatively advised the officers that the paramedics could do so.

[29] Mr Hill acknowledged that it is difficult to get a full set of vital signs on a person under the influence of methamphetamine. The drug can often lead to irregular vital signs. He acknowledged that, if he had assessed Ms. Chrisjohn and discovered irregular vital signs, he would have been required to take her to the hospital.

[30] Ultimately, Mr. Hill agreed that when asked by Cst. Doering what he could do, he told him that all he could do was check vitals and they would be “out of whack” due to ingestion of the drug. He did not recall telling Cst. Doering that, if Ms. Chrisjohn went to the hospital, she would just sit there for hours and be monitored, but he acknowledged that it was possible that he said that.

Paramedics are at the Scene

[31] Sarah May (“Ms. May”), one of the paramedics who attended at the scene, testified at trial. Her partner, Devon Mason, was too ill to testify, but her preliminary inquiry transcript was admitted into evidence with the accused’s consent. Ms. May had no contact with Ms. Chrisjohn. She was in attendance to assess the woman in the minivan who had reportedly had a panic attack. Ms. May reported a conversation with a police officer while at the scene, in which the officer told her that a lady high on crystal meth was trying to open some doors but that everyone was fine. She believed that the officer in question was the one who had been sitting in the cruiser with the woman in back. Ms. May testified that, before she left, she said to the officer, with reference to the woman in the cruiser, “She doesn’t need to be assessed?” to which the officer responded, “no we’re good to go.”

[32] There is some question about what Ms. May said to the officer before leaving the scene. In prior statements, she recalled asking, more generally, whether she could be of assistance. In any event, nothing turns on this because I find that Ms. May was speaking to Cst. Steeves, not Cst. Doering. She said she was speaking to the officer who had the woman in the backseat. That was Cst. Doering. However, she also testified that the officer had “darker and longer flippy hair,” not a “buzz cut.” That clearly describes Cst. Steeves. Moreover, Mr. Hill testified that it was Cst. Steeves who had walked over to the area where the ambulance was. I find that, on this point, Ms. May, while offering her honest recollection, is mistaken as to which car the officer came from. Cst. Doering played no part in the conversation that she had at the scene.

The Transfer of Custody to the OPP

[33] While travelling to the transfer point, Cst. Doering engaged in the following communication with Cst. Park over the mobile data terminal:

6:26:23

Park: “was that deb?”

6:26:40

Doering: “ya, high on meth”

6:26:49

Park: “yea she was a mess yesterday”

6:26:55

Park: “OPP was very annoying to try and deal with”

6:27:06

Doering: “same today but opps taking her”

6:27:12

Doering: “im driving her to st t”

6:27:37

Park: “i didn’t know who she was when i started dealing with her so i called for an ambulance and then i found out she was wanted but they didn’t want to get …”

6:27:51

Doering “got ya”

6:27:58

Dispatch “That location works for them. They are dispatching to meet you at Tim’s now”

6:28:53

Doering: “she can stay in custody now, shes wasnted by Brantford too”

6:29:00

Park: “yea saw that”

6:29:29

Doering: “thanks for the info fyi, made it so much easier to know who she was ahead of time”

6:29:48

Park: “yea no worries … as soon as I hear the desc I figured it was her and she was telling me yesterday she has a sister on Trafalgar”

6:30:05

Doering: “perfect”

6:31:05

Park: “yes sir … good that she will be out of our hair now though”

6:31:16

Doering: “yup”

6:35

Dispatch: “13B TRANSPORTING FEM TO HIGHBURY/RON MCNEIL TO MEET OPP” [13B was Cst. Doering’s call sign]

6:38

Doering Arrives at the TH.

[34] Constable Ashleigh Billing (“Cst. Billing”) is an officer with the Elgin detachment of Elgin-Middlesex OPP. On September 7, 2016, she was assigned to deal with a warrant. At 6:07 p.m., she spoke to the communication centre about the warrant confirmation for Debra Chrisjohn. She was told that London Police had her in custody and that they were willing to drive her halfway. She said that she would check with the Sergeant and call back. She was told “and just for the sergeant’s knowledge she is currently high on meth, but they don’t think she needs to be hospitalized.”

[35] At 6:20 p.m., Cst. Billing advised the communication centre that they would meet London Police halfway, on Wellington Road just south of the 401 at the McDonald’s restaurant. At 6:24 p.m., the communications centre was advised by Teri from London Police that London was already halfway to the location and that they were going to meet at a Tim Hortons restaurant located at Highbury Avenue and Ron McNeill Line, rather than at McDonald’s. Cst. Billing was advised of the new meeting place and she left with Constable Mark McKillop (“Cst. McKillop”) at approximately 6:17 p.m. They arrived at the Tim Hortons at 6:37 p.m. and pulled up two parking spots away from Cst. Doering’s cruiser.

[36] Cst. Billing went over to speak to Cst. Doering, whom she had not met before. He advised her that Ms. Chrisjohn was in the vehicle and that London Police had picked her up when she was in traffic opening doors. He advised that she was high on meth and had been medically cleared. He advised that she was Hepatitis C positive and violent toward police.

[37] Cst. Billing understood from this conversation that Ms. Chrisjohn had been assessed and did not require hospitalization. In cross-examination, she acknowledged that she might have been told that Ms. Chrisjohn was cleared by EMS but did not know if that was at the hospital or not. She also agreed that she might have mixed up what Cst. Doering said and what had been said over dispatch.

[38] Cst. McKillop testified that, while he did not recall the exact words used by Cst. Doering, he understood that, while in London, EMS had looked at Ms. Chrisjohn and assessed that she did not need to be taken to hospital. He understood that they took a look at her and determined that she was high and that they could not do anything further.

[39] During Cst. Billing’s conversation with Cst. Doering, she could see Ms. Chrisjohn in the back of the car. Ms. Chrisjohn was lying down on her right side across both back seats and was handcuffed. When Cst. Billing opened the door, she could see that Ms. Chrisjohn was making a moaning sound and shaking. Cst. McKillop testified that Ms. Chrisjohn’s feet “kind of kicked towards me” when they were trying to get her out of Cst. Doering’s cruiser.

[40] Cst. Billing testified that Cst. Doering told her that “this was how she was since he’s had her.” In cross-examination, she acknowledged that he might have said that she had been behaving like that since coming into his custody. Cst. Billing believed that she was under the influence of a drug and that her symptoms were a function of that.

[41] Cst. Billing went to the rear driver-side door to introduce herself to Ms. Chrisjohn and explain that she was being taken into OPP custody. Ms. Chrisjohn did not respond or do what was asked of her. All she did was moan. Cst. Billing waited to give her an opportunity to comply, but still she did not do so. Cst. Billing construed this as willful non-compliance.

[42] Constables Billing and McKillop got her feet on the ground outside of the cruiser, each took one side of her, and helped her out of the vehicle. Ms. Chrisjohn was partially weight-bearing. Cst. Billing used one hand to assist her, but used the other hand to shield her face, in case Ms. Chrisjohn became violent. Constables Billing and McKillop moved her around to the back of the car where Cst. Doering’s handcuffs were removed and replaced with OPP handcuffs. Cst. Billing spoke to Ms. Chrisjohn throughout this process but did not get any response.

[43] From there, Constables Billing and McKillop held her and walked her to the OPP cruiser. Cst. Billing believed that she could walk on her own but was refusing to do so, so she and the other officer walked her there. She was not speaking but continued to moan in an almost rhythmic way. When they arrived at the OPP cruiser, Cst. Billing told her “we need you to get into the cruiser.” She did not comply. Cst. McKillop put her into the cruiser at which point she lay down on her left side. Cst. Billing advised her that she was under arrest, advised her of her right to counsel, and administered a caution. There was no response, just persistent moaning.

[44] Cst. Doering sent the following message upon leaving the transfer point:

Doering: “CHRISJOHN HIGH ON DRUGS, NO CONCERNS FOR WELFARE. NFA”

Arrival at the OPP Detachment

[45] Constables Billing and McKillop drove to the Elgin detachment. During the drive, Ms. Chrisjohn continued to make moaning sounds and, every once in a while, moved in a jolting way. Shortly after they arrived, at 7:11 p.m., Cst. Billing opened the rear passenger-side door and asked Ms. Chrisjohn to get out of the car. She remained in a prone position, the same position she had been placed in at the transfer point. Both officers spoke with her but she was still just moaning. Cst. Billing believed that she was refusing to comply with their commands.

[46] When asked why she perceived non-compliance, Cst. Billing responded that this was based on the information she had been given. She dealt with prisoners on a daily basis and believed that Ms. Chrisjohn did not want to enter into custody.

[47] Constables Billing and McKillop got Ms. Chrisjohn to a standing position and walked her into the detachment. She was not assisting them in any way. She was no longer weight-bearing. The officers were effectively carrying her at this point.

[48] Ms. Chrisjohn was carried through the breezeway to the booking area and cell #1. She was placed on the bed so that her cuffs could be removed. Sergeant McMorgan (“Sgt. McMorgan”) then took the mattress off the bedding block so that she would not roll off the concrete bed. She was entirely unable to assist the officers at this point and they placed her in the recovery position.

[49] Cst. Billing testified that, at this point, Ms. Chrisjohn was non-responsive. She was not moving. She was still moaning, but not as loudly as in the cruiser. According to Cst. McKillop, she was not moving at all, was making very little noise, and was not at all weight-bearing. Her colour looked “off.”

[50] A guard was called in to monitor Ms. Chrisjohn while in custody. She was to be under constant supervision because it was known that she had consumed drugs. She was lodged in the cell at 7:20 p.m.

EMS Is Called by the OPP

[51] Cst. McKillop testified that Ms. Chrisjohn seemed very intoxicated. He spoke with Sgt. McMorgan, who was concerned about Ms. Chrisjohn’s condition. According to Cst. McKillop, there were two choices. They could either place her under constant supervision or contact EMS. The officers decided to call EMS, but, somewhat remarkably, did not perceive that they were dealing with a medical emergency. The call was a code 3, which conveyed: “no lights and sirens, obey all traffic laws.” The request was conveyed by Cst. McKillop to OPP communications at 7:28 p.m. as follows:

Can you send a 10-52 over to our cells. No rush, no lights or sirens or nothing. It’s justfor someone that we believ to be – used meth and we just want them checked out to make sure they’re okay to be in the cells.

[52] The communication centre contacted EMS to advise that there was a woman in custody and that “we just want her checked out to make sure she’s ok.” EMS asked if she was awake and breathing normally and the OPP responded: “yeah, yeah.” EMS asked if it was a possible overdose. OPP responded: “…no, no. they don’t want you coming lights and sirens or anything like that.” OPP said that “before they lodge her in cells they just want her checked out.”

EMS Arrives at the OPP Detachment

[53] Rob Redman (“Mr. Redman”) and Kimberly Snell (“Ms. Snell”), both EMS paramedics, arrived at the Elgin OPP detachment in response to the call. They were dispatched at 7:30 p.m. and arrived at 7:36 p.m. Ms. Chrisjohn was observed in the cell, supine on the floor, with no active movement, no spontaneous limb movement, no blinking of the eyes, and no sound. Normally, a patient who is conscious or semi-conscious will move limbs and blink eyes. Mr. Redman opined that Ms. Chrisjohn would register as a 3 out of 15 on the Glasgow Coma Scale. He observed that there is no measurement lower than 3.

[54] The paramedics determined that Ms. Chrisjohn’s heart rate was 171 beats per minute, a rate that could not be sustained for long. Her respirations were irregular and shallow. Her blood pressure was high. Her eyes were fixed, dilated, and the corneas were dry, signifying that the eyes had been open for some time. It was clear that Ms. Chrisjohn was unconscious and that there was a significant risk of cardiac arrest. She was placed in the ambulance and transported to hospital at 7:52 p.m.

[55] Ms. Snell testified that, when the ambulance arrived, the officers told them that they had a female that they wanted assessed, but she did not perceive any sense of urgency. It was only as they were leaving the detachment that the officers “had more sense of the gravity of the situation.”

Ms. Chrisjohn is Taken to Hospital

[56] Cst. Billing was assigned to follow Ms. Chrisjohn to the hospital. She arrived at the hospital at 7:58 p.m. and she stood outside the room where Ms. Chrisjohn was receiving medical attention. The door to the room was opened and someone asked for assistance with compressions. Cst. Billing went into the room and took over the administering of compressions, but Ms. Chrisjohn did not respond.

Cause of Death

[57] The report of the pathologist, Dr. M. J. Shkrum (“Dr. Shkrum”), was entered into evidence on consent. Dr. Shkrum identified the immediate cause of Ms. Chrisjohn’s death as “methamphetamine toxicity,” which led to a cardiac arrest.

[58] Marie Elliot (“Ms. Elliot”), a forensic toxicologist, testified about the analysis of blood and urine samples taken from Ms. Chrisjohn after death. Testing of the blood revealed 0.41mg of methamphetamine per litre of blood and 0.16mg of amphetamine per litre of blood. The level of amphetamine suggested that it was a metabolite of methamphetamine, though it is also possible that amphetamine was ingested. Ms. Elliot testified that, when it comes to methamphetamine, what is toxic for one person may not be toxic for another person, although death is more likely to occur at levels above 0.5 mg per litre.

Police Policies

[59] The Crown called Inspector Brian D’Wayne Price (“Inspector Price”) to testify about LPS policies and procedures. Inspector Price testified about policies governing the arrest of persons with warrants and the procedure to be followed.

[60] Inspector Price testified that officers are not specifically trained that certain signs require a prisoner to be taken to hospital. As he put it, there are expectations and it is about monitoring. Officers are given training in first aid and mental health issues.

[61] Inspector Price was asked about a LPS Policy – Part 9, Chapter A (2)(B)(7) – which, in 2016, provided as follows:

When the medical condition of a prisoner is in doubt (e.g. under the severe influence of drugs/alcohol), immediately arrange transport for the prisoner to the nearest hospital…

[62] Inspector Price testified that he believed that this particular policy had been revised after the death of Ms. Chrisjohn, such that the words “e.g. under the severe influence of drugs/alcohol” had been removed.

[63] Inspector Price also testified that there are between 1500 and 2000 pages of policies that officers are required to review, and that one would not expect an officer to retain all of this information. He testified that he himself was unaware of certain policies regarding arrests made on warrants held by other police agencies.

The Accused’s Testimony

[64] Cst. Doering testified at trial about his interactions with Ms. Chrisjohn. He testified that, while he was proceeding to the Petro Canada gas station at the intersection of Trafalgar and Highbury, he had a telephone call with Mr. Fayad, who had called 911. Mr. Fayad told him that he was holding the female down and that the officer needed to get there quickly. Cst. Doering believed that he could hear sounds of a struggle in progress.

[65] When Cst. Doering arrived, it looked as though Ms. Chrisjohn was being held down, but as he approached he saw that she was laying on her right side and that no one’s hands were on her. He observed that she was fidgety and moving her arms around. Her eyes were open and she looked “spaced out like she was high on meth.” Cst. Doering walked around to her right side, took her left wrist, and handcuffed it. Ms. Chrisjohn rolled onto her stomach and he handcuffed both hands behind her back. He told her to get up and she complied. Cst. Doering arrested her on the outstanding OPP warrant. He opened the rear passenger door of his cruiser and placed her inside, shutting the door. She was cooperative.

[66] Cst. Doering then spoke to Mr Fayad, who told him that Ms. Chrisjohn was high on drugs and was acting in an unusual way, including running in and out of traffic. Cst. Doering moved his vehicle off the roadway and into the Petro Canada parking lot. He backed his car in so that it was facing northbound. Not long after, Cst. Steeves pulled in next to him, facing southbound.

[67] On three separate occasions, Ms. Chrisjohn told him that there were bombs in the back. On each occasion, he was able to calm her down by telling her that there were no bombs.

[68] Mr. Hill arrived in his SUV. According to Cst. Doering, Mr. Hill walked over to his cruiser and stood by the open driver-side door. Mr. Hill was standing at the front of his cruiser looking in and could see Ms. Chrisjohn through the front windshield and the Plexiglass. At this time, Ms. Chrisjohn was no longer calm. She appeared angry and was moving aggressively in the back of the cruiser. In cross-examination, Cst. Doering agreed that Ms. Chrisjohn was erratic and delusional while at the Petro Canada station. He agreed that her level of consciousness, if 10 is fully alert and awake, was a “4”. It was obvious to him that she was not in good health, but he explained that this was the effect of long-term drug use. He testified that dealing with people high on meth was an everyday occurrence, as is the placement of persons high on meth into custody.

[69] In his cross-examination, Cst. Doering agreed that Ms. Chrisjohn was very high on methamphetamine. Yet, in a letter he wrote to the SIU responding to questions they had posed, he stated that Ms. Chrisjohn was in an average state of intoxication. He explained this by saying that, while she was very high, this was average compared to other individuals whom he had encountered in his day-to-day activities as a police officer.

[70] According to Cst. Doering, Mr. Hill asked if they needed assistance. Cst. Doering told Mr. Hill that he believed that Ms. Chrisjohn was high on meth and questioned whether she would tolerate an assessment. He asked Mr. Hill if there was anything they (EMS) could do. He testified that Mr. Hill told him that they could check Ms. Chrisjohn’s vitals, but that they would be out of whack due to the drug. Cst. Doering asked whether she should be taken to hospital and Mr. Hill responded that she would just sit there for hours while being monitored. Cst. Doering perceived that Mr. Hill was sharing his honest beliefs.

[71] At one point, Cst. Steeves left his cruiser. He stood with Mr. Hill and Cst. Doering briefly and then went over to where paramedics were attending, near a woman crying outside a van. Cst. Doering did not go over to the van as he believed that Cst. Steeves was dealing with that situation.

[72] Cst. Doering was asked what his perception of Ms. Chrisjohn’s condition was at that point in time. He testified that he interpreted his conversation with Mr. Hill as confirming that there was no need for Ms. Chrisjohn to be assessed and that she would just have to “ride out the high.” This was consistent with his own perception based on his experience as a police officer. During his testimony, Cst. Doering referred on several occasions to his experience with methamphetamine users, including his time as a cadet when he worked in cells. He testified that he routinely engaged with people who were high on methamphetamine, in cells and later on the street. He testified that Mr. Hill’s “advice enhanced my belief that she was just high and would have to ride it out” and that “she was safe to go into custody where she would be monitored.”

[73] Cst. Doering went back to the cruiser and advised Ms. Chrisjohn of her right to counsel and administered a caution. When he asked her “do you understand,” she responded “Yeah.” But when he asked if she wished to call a lawyer, she did not respond. He asked three times but she did not answer the question. At the end of the caution, when he asked her if she wished to say anything, she said “no.”

[74] Cst. Doering had sent a CPIC message about the OPP warrant. He learned that the OPP would return on the warrant and that they would meet him halfway. The original transfer point was McDonalds just off the 401, but Cst. Doering changed that location to the Tim Hortons at Highbury and Ron McNeill. On his own initiative, he began travelling southbound on Highbury. He testified that it seemed more reasonable to take Highbury because it had a posted speed limit of 100 kilometres per hour.

[75] During the drive to the Tim Hortons, Cst. Doering observed that Ms. Chrisjohn was sliding down in her seat. Each time she did so, Cst. Doering told her to sit up and she did. He observed that her eyes were open and that her head was up. While they were travelling, she said something in the back of the cruiser. Because the window was open, the sound of the wind made it impossible for him to hear what she said. He pulled over at one point and checked on her in the back of the cruiser, but only because he was concerned that she might try to slip out of the handcuffs. He was aware that people sometimes try to kick out the window of police vehicles. He testified that she was sitting upright with her eyes open, leaning forward slightly, “spaced out as if high on meth.”

[76] Cst. Doering arrived at the transfer point at 6:37 p.m. and the OPP officers arrived shortly thereafter. According to Cst. Doering, he told the female OPP officer that Ms. Chrisjohn was “high on meth, EMS said no immediate concerns for her health, she was just high.” He told them that Ms. Chrisjohn had been taken to the hospital the day before.

[77] At that point, he approached the rear driver-side door. Ms. Chrisjohn was now laying on her right side. Cst. Doering told her to get up. She did not. He believed that she was uncooperative. He started lifting her right arm up and she sat up with his assistance. The male OPP officer took her left arm and helped her get out of the vehicle. Cst. Doering testified that Ms. Chrisjohn was leaning forward and looking at him. Her eyes were open, her head was up, and it looked like she was standing up on her own. Handcuffs were exchanged. The OPP officers walked her over to their cruiser, though her feet were on the ground. She was not taking full steps and Cst. Doering perceived that she was being uncooperative. The OPP then left the parking lot.

[78] When asked why he thought that Ms. Chrisjohn was being uncooperative, Cst. Doering explained that he had observed the same things from other people who were high on meth. They are unpredictable, often alternating between anger and calm. He had seen those behaviours before. He believed that she was experiencing the ups and downs of someone high on meth as opposed to being in medical distress.

[79] During cross-examination, Cst. Doering testified that while he had on many occasions dealt with persons high on methamphetamine, he had never had occasion to have a person assessed, or take them to hospital, solely because of the ingestion of the drug. Cst. Doering testified that he monitored Ms. Chrisjohn while she was in his custody and that the idea of medical distress never entered his mind. In cross-examination, he was asked what would have had to happen for him to change his mind, and he responded that he would consider it medical distress if Ms. Chrisjohn was unconscious or completely limp.

[80] Cst. Doering testified that Ms. Chrisjohn’s physical condition was different at the transfer point than it had been at the Petro Canada station. She went from yelling and moving and talking about bombs to saying nothing and mumbling, with no violence or agitation. Cst. Doering was cross-examined on his statement to the SIU, in which he said that she was at that point exhibiting “the same demeanour as before.” He explained that what he meant by that was that she was still high on meth.

[81] Cst. Doering was also cross-examined on whether he told the OPP officers that Ms. Chrisjohn had been “looked at” by EMS. In his statement to the SIU, he said that he had told the officers that she was obviously high on drugs but that he did not believe her to be in any medical distress. He went on to tell the SIU:

I believe I also told them that EMS had looked at her and believed the same as, as, as what I had believed with regards to no immediate health concerns for her and I carried on from there.

[82] Cst. Doering agreed that he said that to the OPP officers, explaining that when he said that the EMS had looked at Ms. Chrisjohn. he was referred to the fact that Mr. Hill had looked at her through the front windshield of his vehicle when she was sitting in the back of the cruiser.

[83] In the letter written to the SIU after he became a subject officer, Cst. Doering stated that, at the time of the transfer, Ms. Chrisjohn “had laid down on her right side across the seat. Her eyes were open and she appeared to be in good health.”

ANALYSIS

General Principles

Failing to provide the necessaries of life

[84] The offence of failing to provide the necessaries of life is codified in s. 215 of the Criminal Code. For ease of reference, it is reproduced below:

215 (1) Every one is under a legal duty…

(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) Everyone commits an offence who, being under a legal duty within the meaning of subsection (1), fails without lawful excuse, the proof of which lies on him, to perform that duty, if…

(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.

[85] This offence is animated by the principle that, where a person is in the charge of another, the person having charge has a duty to provide the necessaries of life. Certain relationships and legal duties are described in s. 215 of the Criminal Code. As noted in R. v. A.D.H., 2013 SCC 28 at para. 67, [2013] 2 S.C.R. 269, “[the] essence of the s. 215 offence, then, is that it imposes legal duties arising out of defined relationships.”

[86] Section 215, as a penal negligence offence, imposes liability on an objective basis. As was explained in R. v. Peterson, 2005 CanLII 37972 (ON CA), [2005] O.J. No. 4450 (C.A.), at para. 35:

Subsection 215(2) imposes liability on an objective basis. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other. The personal characteristics of the accused, falling short of capacity to appreciate the risk, are not a relevant consideration. The use of the word “duty” is indicative of a societal minimum that has been established and is aimed at establishing a uniform minimum level of care: R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122 at paras. 37, 51 and 33 respectively.

[87] As with other like offences, s. 215 is designed to prescribe a uniform, minimum standard of care. The “necessaries of life” include medical attention: see R. v. S.J., 2015 ONCA 97, 124 O.R. (3d) 595. The standard is not one of perfection. For example, a parent or guardian is not required to run to a doctor or hospital whenever illness or the prospect of illness arises. An error of judgment will exculpate, so long as it does not, itself, reflect a marked departure from the relevant standard.

[88] The mental element of the s. 215 offence requires the Crown to prove, on an objective basis, a marked departure from the conduct of a reasonably prudent person having the charge of another, in circumstances where it is reasonably foreseeable that failure to provide the necessaries of life would lead to a risk of danger to the life of the victim, or a risk of permanent endangerment to their health. See e.g. R. v. Naglik, 1993 CanLII 64 (SCC), [1993] 3 S.C.R. 122, at p. 143.

Criminal negligence causing death

[89] The offence of criminal negligence is codified in s. 219 of the Criminal Code as follows:

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. [Emphasis in original.]

[90] Like s. 215, s. 219 of the Criminal Code operates by setting a minimum objective standard. In R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, the Supreme Court of Canada upheld the constitutional validity of the objective standard for liability. The Court recognized that factors such as lack of education and psychological predispositions might be relevant to sentencing but would “serve as no excuse for criminal conduct,” provided there was sufficient mental capacity to appreciate the risk. McLachlin J. (as she then was) stated:

[72] This is not to say that the question of guilt is determined in a factual vacuum. While the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity, it is particularized in application by the nature of the activity and the circumstances surrounding the accused's failure to take the requisite care. As McIntyre J. pointed out in R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1 S.C.R. 1392, the answer to the question of whether the accused took reasonable care must be founded on a consideration of all the circumstances of the case. The question is what the reasonably prudent person would have done in all the circumstances. Thus a welder who lights a torch causing an explosion may be excused if he has made an enquiry and been given advice upon which he was reasonably entitled to rely, that there was no explosive gas in the area. The necessity of taking into account all of the circumstances in applying the objective test in offences of penal negligence was affirmed in R. v. Hundal, supra.

[73] The matter may be looked at in this way. The legal standard of care is always the same—what a reasonable person would have done in all the circumstances. The de facto or applied standard of care, however, may vary with the activity in question and the circumstances in the particular case…

[91] Criminal negligence is a more serious offence than failing to provide necessaries of life. It is at the “high end of a continuum of moral blameworthiness” and “punishes, not a state of mind, but the conduct of the accused… Thus the physical action of the … [accused] … is as critical to the determination of wanton or reckless conduct as the mental element.” See R. v. L. (J.), 2006 CanLII 805 (ON CA), [2006] O.J. No. 131 (C.A.), at paras. 14 and 18. The actus reus of the offence of criminal negligence is found in the language of the provision. It requires proof that the accused did something or failed to do something that was his legal duty to do that demonstrates a wanton and reckless disregard for the lives and safety of others: see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43. The mens rea requires proof that the accused’s conduct was a marked and substantial departure from the standard of care that a reasonably prudent person would observe in the circumstances. The circumstances are those in which the accused either recognized and ran an obvious and serious risk to the life or safety of the victim or, alternatively, gave no thought to the risk.

[92] The analytical distinction between s. 215 and s. 219 was explained by Fish J. in R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215:

[9] On the count alleging criminal negligence, the Crown was bound to show that the respondent’s very same omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk: R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1 S.C.R. 1392, at pp. 1430-31; R. v. Sharp (1984), 1984 CanLII 3487 (ON CA), 12 C.C.C. (3d) 428 (Ont. C.A.). [Emphasis in original.]

[37] I agree with McIntyre J. that where criminal negligence is “piggy-backed” onto an alleged failure to provide the necessaries of life — as it was explicitly in Tutton and, in effect, here as well — the analysis may be expected to proceed in two stages. The jury would then consider whether the accused had a duty to protect the child — that is, to provide the necessaries of life — and whether the accused failed in that duty. If so, the jury would be entitled to find that the accused committed an offence under s. 215(2)(a)(ii). The jury would then be required to decide whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for the life or safety of the child. If so, the jury would be bound to find the accused guilty of criminal negligence. If not, the jury could still find the accused guilty of failure to provide the necessaries of life, but not of criminal negligence.

The Significance of the Accused’s State of Mind

[93] Penal negligence offences are different from those calling for proof of subjective mens rea, particularly as it relates to the state of mind of the accused. In a traditional subjective mens rea offence, an exculpatory state of mind will serve as a complete defence to the charge. Not so in the penal negligence context, as the test for liability is a modified objective standard. That said, the accused’s state of mind is not irrelevant. It can serve as a defence if it casts doubt on whether a reasonably prudent person would have appreciated the risks associated with the act or failure to act.

[94] Recently, the Court of Appeal for Ontario observed in R. v. Ibrahim, 2019 ONCA 631:

[33] However, given that these subjective perceptions must be considered within an objective framework, their acceptance does not necessarily lead to a verdict of not guilty. That is, it may be possible for the trier of fact to accept the accused’s evidence about what occurred but find that the marked departure standard has been proved. Still, as Beatty makes clear, the testimony of an accused person about his or her perceptions may be capable of raising a reasonable doubt about whether a reasonable person in the circumstances would have been aware of the risk created by the conduct. Indeed, the wording in Beatty at para. 49 directs that where such evidence is adduced, the trier of fact must consider whether this evidence raises a reasonable doubt. This is consistent with the underlying justification for the modified objective test as explained by Charron J. in Beatty, at para. 8:

Objective mens rea is based on the premise that a reasonable person in the accused’s position would have been aware of the risks arising from the conduct. … However, where the accused raises a reasonable doubt whether a reasonable person in his or her position would have been aware of the risks arising from the conduct, the premise for finding objective fault is no longer sound and there must be an acquittal.

[34] Therefore, in light of the direction in Beatty, the testimony of an accused person may be relevant to the actus reus of dangerous driving, as well as the two interrelated mens rea elements: (i) whether the conduct in question constitutes a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances; and (ii) whether a reasonable person in similar circumstances would have been aware of the risk of the danger involved in the conduct manifested by the accused.

APPLICATION TO THIS CASE

Failing to Provide the Necessaries of Life

[95] The actus reus of the s. 215 offence is admitted by the accused in this case. He admits that:

a. He was under a legal duty to provide the necessaries of life to Ms. Chrisjohn, having taken her under his charge;

b. Ms. Chrisjohn was unable to withdraw herself from that charge by reason of her detention;

c. Due to her detention, Ms. Chrisjohn was unable to provide herself with the necessaries of life, specifically medical assistance; and

d. The failure of the accused to provide Ms. Chrisjohn with medical assistance while she was under his charge endangered her life.

[96] The issue in dispute concerns the mens rea of the offence. Cst. Doering maintains that his conduct did not amount to a marked departure from the standard of care of a reasonably prudent police officer in the circumstances. On that basis, he urges the court to find him not guilty.

[97] I accept that Cst. Doering did not subjectively perceive that Ms. Chrisjohn required medical attention and treatment. This subjective perception is not required to ground liability under s. 215. I have considered to what extent Cst. Doering’s state of mind raises a reasonable doubt on the modified objective standard of liability. I have concluded that, in the circumstances of this case, neither Cst. Doering’s testimony nor any other evidence is capable of raising a reasonable doubt on this central issue.

[98] Cst. Doering’s state of mind does not exculpate. Rather, in failing to advert to the need for medical treatment, he turned a blind eye to risks that would have been apparent to a reasonably prudent police officer. I need not determine the precise point at which the duty to seek medical attention was triggered. I am satisfied that it was clearly engaged by the time that Cst. Doering arrived at the transfer location to meet the OPP. The failure to get medical help at that stage amounted to a failure to provide the necessaries of life and represented a marked departure from the standard of care of a reasonably prudent police officer.

[99] The evidence indicates that Cst. Doering decided, early on in his encounter with Ms. Chrisjohn, that he would not be seeking medical assistance for her. In his CPIC communication of 5:50 p.m., he wrote: “it does not appear at this time that [Ms. Chrisjohn] requires to be cleared medically at the hospital.” In his testimony, Cst. Doering candidly acknowledged that he did not remember whether he wrote that before or after he spoke with Mr. Hill. There is reason to believe that he wrote it before he spoke to the EMS supervisor. Mr. Hill recalled Cst. Doering telling him that he was waiting on a response from the OPP. This suggests that the CPIC memo had been written and submitted before Mr. Hill arrived.

[100] In his testimony, Cst. Doering referred, on several occasions, to his experience dealing with persons who are “high” on methamphetamine. He spoke about his years as a cadet when he booked and monitored methamphetamine users in the cells and his years on patrol when he similarly dealt with persons under the influence of the drug. He testified that he had never taken a methamphetamine user to hospital merely because the person had consumed drugs. He firmly believed that use of methamphetamine was not a reason, standing alone, to obtain medical attention.

[101] Cst. Doering received some confirmation for this view when he spoke to Mr. Hill. I found Mr. Hill to be a less-than-reliable witness in describing his conversation with Cst. Doering and therefore accept Cst. Doering’s account of what was said. To recap, Mr. Hill asked about an assessment of Ms. Chrisjohn, and Cst. Doering told Mr. Hill that he did not think she would tolerate an assessment. She was, at that time, yelling and aggressively moving about in the back of the cruiser. Mr. Hill told Cst. Doering that, if he assessed Ms. Chrisjohn, her vitals would be “out of whack” given her ingestion of the drug. When Cst. Doering asked whether he should take Ms. Chrisjohn to the hospital, Mr. Hill told him that she would just sit there for hours while her condition was being monitored.

[102] At that stage, it was not unreasonable for Cst. Doering to rely on what Mr. Hill told him. It is apparent that Mr. Hill had no interest in assessing Ms. Chrisjohn and his responses fortified Cst. Doering’s belief that an assessment was not necessary.

[103] Had that been the end of the matter, there would be insufficient evidence to ground criminal liability.

[104] However, Ms. Chrisjohn remained in Cst. Doering’s custody for another 45 minutes, during which time her condition deteriorated. By the time they reached the meeting place, Ms. Chrisjohn was unable to speak, unable to sit up for any period of time, and unable to respond to commands. She was, as described by Cst. Billing, lying on the rear seat of the cruiser, moaning and shaking. She could not get out of the cruiser on her own, though she was able to assist in efforts to move her. She was no longer in the alert, albeit highly agitated, state that she had been in at the gas station.

[105] Policies, in place at the time, directed police to obtain medical assistance for persons severely intoxicated by alcohol or drug. Policies are not the sine qua non of a duty of care. They do not have the force of law. They can, however, assist in determining what a reasonably prudent officer would do in like circumstances. The relevant LPS policy (Part 9, Chapter A 2(B)(7)) provided that: “where a medical condition is in doubt (e.g. severe intoxication by alcohol or drug) ...” the detainee should be taken to hospital. Cst. Doering was not aware of this specific policy, though he knew he had probably read it during his time as a police officer.

[106] The Crown’s expert witness, Inspector Price, testified that police officers are unlikely to have intimate knowledge of all 1500 to 2000 pages of policy in place at any given time. However, this policy is different. It does not deal with purely administrative matters; it is concerned with the health and safety of persons detained in custody. One would expect that a reasonably prudent police officer, on patrol, regularly engaging with detainees, would be aware of this policy’s requirements.

[107] Even if this particular policy was not top of mind, judgment and common sense would lead a reasonably prudent police officer to the same place. It is common knowledge that, at certain levels, ingestion of drugs can be dangerous, if not fatal. Overdose can lead to death. Police officers are not medically trained and are not themselves equipped to diagnose or treat the toxic effects of drugs. It follows that, when someone presents as severely intoxicated, their health is in doubt and medical attention is required. Even paramedics are told to take persons to hospital if their vital signs are irregular, as can occur in the case of drug use.

[108] This is not to say that all persons intoxicated by drugs must be taken to the hospital. There will be cases – perhaps many – in which persons affected by drugs will not need medical attention. Just as a parent is not required to run to a doctor whenever illness or the prospect of illness arises (see S.J. at paras. 53-54), a police officer is not required to take a detainee to hospital at the slightest indication of intoxication or other health concerns. However, Cst. Doering acknowledged that Ms. Chrisjohn was very high on methamphetamine, as evidenced by her highly erratic behaviour at the Petro Canada station. Cst. Doering insisted in his testimony that her level of intoxication was “average,” in that it was not unlike the levels of intoxication that he saw on a daily basis. Even if that is the case, the risks of severe intoxication are not reduced merely because one has encountered those risks before.

[109] Nor is it an answer that Cst. Doering had never taken a person intoxicated by methamphetamine to the hospital for that reason alone. In her submissions for the Crown, Ms. Beaudoin cited the example of a motorist who routinely drives 50 kilometres per hour above the speed limit and justifies his conduct by saying that it has never resulted in harm. The issue is not actual harm, but risk of harm. The fact that the risk was undertaken in the past, without incident, is quite beside the point.

[110] Cst. Doering placed considerable reliance on the information and advice he received from Mr. Hill. Cst. Doering was reasonably entitled to rely on what Mr. Hill had to say at the time he said it. But this was not a permanent medical edict. It was a full 45 minutes later that Cst. Doering reached the transfer point, by which time Ms. Chrisjohn’s condition had deteriorated. She was no longer upright in her seat and aggressively moving and yelling. She was prone on the seat, moaning and shaking, and unable to get out of the car on her own. Her condition had changed and it was obvious that she was getting worse, not better.

[111] Moreover, it is not clear that Cst. Doering actually monitored Ms. Chrisjohn’s condition during this 45-minute interval. He could not recall if he spoke to her while she was in the back of the cruiser. He testified that he saw her sliding down in her seat on three occasions. He directed her to sit up, and she did. He stopped the car at one point, but not because he wanted to check on Ms. Chrisjohn’s wellbeing. He was concerned that she might have slipped out of her handcuffs and he did not want her punching the cruiser’s window. Finally, Cst. Doering testified that, while on route to the transfer point, Ms. Chrisjohn said something he could not hear because the windows were down and the wind was loud. This did not trouble him and he took no steps to find out what she had said.

[112] Cst. Doering was focused on getting Ms. Chrisjohn to the OPP and on making sure that her detention remained secure. It seems that he was far less concerned, if he was concerned at all, with her medical condition.

[113] Police officers perform a critically important function in our communities. Their jobs are immensely challenging. Police are often faced with volatility and uncertainty. They are often called upon to make split-second decisions only to have those decisions minutely scrutinized in the antiseptic calm of the courtroom. Police on the street do not enjoy the luxury of the leisurely reflection available at a criminal trial.

[114] In this case, however, Cst. Doering did have time to reflect on the situation at hand. There was no temporal or tactical urgency. Ms. Chrisjohn was not at large: she was secured in the back of a police cruiser. Cst. Doering was not distracted by other duties while he was with Ms. Chrisjohn. Presumably, he had time to consider his options and, if necessary, reach out for advice. Calling for medical assistance would have, at worst, delayed the transfer to the OPP. Yet the OPP was not in a rush, as they had declined to return on the warrant the day before. In short, there were no operational contingencies that counterbalanced or displaced the duty to seek medical assistance.

[115] Why, then, was medical assistance not obtained? It is difficult to answer this question. Although it may not have been legally required at that point, it would have been a simple matter to have Mr. Hill, or one of the attending paramedics, examine Ms. Chrisjohn while at the Petro Canada station. Thereafter, it was a simple matter to contact EMS.

[116] Mr. Nichol, for the Crown, posited that Cst. Doering was anxious to divest himself of responsibility for Ms. Chrisjohn. The Crown alleges that, had there been medical intervention, it might have discouraged the OPP from returning on the warrant, as it had done the day before. The Crown alleges that Cst. Doering ignored the risks, in part, because he wanted to complete the transfer of custody without interruption.

[117] There is some evidence to support this theory. Cst. Doering was aware of the following:

a. Ms. Chrisjohn was a drug addict;

b. she was high on methamphetamine;

c. she was creating difficulties for motorists and pedestrians in a high-traffic area;

d. she had been high on methamphetamine the day before;

e. she had created similar difficulties the day before;

f. her conduct had engaged police resources the day before;

g. she was wanted by the OPP; and

h. once transferred to the OPP, she would be less likely to cause difficulties for the LPS.

[118] Cst. Doering’s exchange with Cst. Park over the mobile terminal suggested that Ms. Chrisjohn was seen as something of a nuisance and would become less of a problem once she was in OPP custody. Cst. Doering did not waste time in travelling to the transfer point. Once the warrant was confirmed, he left quickly and travelled to a location closer to the OPP detachment than was originally planned.

[119] Finally, the statements made by Cst. Doering to the OPP officers at the transfer point seemed calculated to prevent EMS from being summoned until well after Cst. Doering had departed the scene. Those statements are the crux of the Crown’s case on criminal negligence, to which I will now turn.

Criminal Negligence

[120] The Crown alleges that Cst. Doering deliberately misled the OPP officers about Ms. Chrisjohn’s condition. The Crown says that he lied to them when he intimated that Ms. Chrisjohn had been assessed by EMS and, further, that he lied to them when he told them that she had been in the same condition throughout his time with her. These statements led the OPP to believe that there was no immediate need of medical attention and delayed the eventual call to EMS. The Crown alleges that this conduct demonstrated a wanton and reckless disregard for Ms. Chrisjohn’s life, that it was a contributing cause of her death, and that it represented a marked and substantial departure from the standard of care.

[121] Cst. Doering had a duty to convey accurate information about Ms. Chrisjohn’s medical condition to the officers assuming responsibility for her custody. He did not do so. The question is whether he deliberately misled the OPP officers.

[122] Having carefully considered the issue, I must conclude that Cst. Doering knowingly misled the OPP. There is no other rational interpretation of the evidence. Cst. Doering admitted telling the OPP that EMS had “looked at” Ms. Chrisjohn. When confronted with that statement in cross-examination, Cst. Doering insisted that what he meant was that Mr. Hill had, in the literal sense, viewed Ms. Chrisjohn through the police cruiser’s front windshield and Plexiglass divider. That assertion stretches the bounds of credulity. Cst. Doering had to know that, by saying that Ms. Chrisjohn had been looked at by EMS, he was conveying that she had been, in some fashion or another, assessed by EMS. This is particularly so given the follow-up assurance that she did not need medical assistance. Cst. Doering struck me as an intelligent individual, with some years of experience as a police officer. It is fanciful to suggest that he either meant to convey a pure visual observation or that he believed that his remark could be interpreted in that fashion.

[123] The statement that Ms. Chrisjohn had been in the same condition throughout her detention was also manifestly untrue. Cst. Billing could not recall the precise words used by Cst. Doering. He might have said her demeanour was the same, or that her behaviour was the same. In either event, the statement misrepresented a critical fact. As already noted, Ms. Chrisjohn’s condition had changed quite dramatically since the time Mr. Hill had “seen” her.

[124] Cst. Doering’s statements created the risk that the OPP would not appreciate the gravity of Ms. Chrisjohn’s condition, and that medical assistance would be even further delayed. This increased the risk to Ms. Chrisjohn’s life and represented a wanton and reckless disregard for her wellbeing. I am satisfied that this conduct was a marked and substantial departure from the standard of care of a reasonably prudent police officer.

A Final Observation

[125] The evidence in this case suggests that stereotypes and generalized assumptions played a role in the events leading to Ms. Chrisjohn’s death. Cst. Doering had definite opinions about how persons on drugs, and persons addicted to drugs, were likely to behave. He had a definite opinion that drug use alone would not be a factor calling for medical intervention. These opinions formed the lens through which he perceived the events in this case. He viewed everything, including signs of medical distress, as nothing more than the stereotypical conduct of a drug user. If Ms. Chrisjohn was aggressive, it was because she on was high on methamphetamine. If she was silent and apparently non-compliant, it was because she was high on methamphetamine. If she was lying on the seat, moaning and shaking, she was just “riding out her high.” It is not clear what, if any, observations would have prompted Cst. Doering to call EMS. When asked that question in cross-examination, Cst. Doering found it difficult to answer, though he acknowledged that EMS should be called if a drug user is limp and/or unconscious.

[126] In short, Cst. Doering had pre-conceived notions about drug users and he held fast to those notions when dealing with Ms. Chrisjohn. Rather than moulding his theory to fit the facts, he seems to have moulded the facts to fit his theory.

[127] These assumptions may also have impacted the OPP officers who dealt with Ms. Chrisjohn. It is striking that, when police arrived at the Elgin detachment with Ms. Chrisjohn, they perceived her non-responsiveness to be indicative of non-compliance. She was told to get out of the cruiser. She did not react. Officers believed that she was being obstructionist, not wanting to go into custody. She had been identified as a drug user who was known to London Police. This informed the officers’ interpretation of her conduct.

[128] This interpretation, questionable on its face, becomes inexplicable when one sees the video footage of Ms. Chrisjohn being dragged along the floor into the cell area. She is limp and unmoving. She is unconscious. The evidence is that she was making very little sound. Even the moaning had abated. The EMS paramedics’ evidence leads one to believe that her eyes had been open, unblinking, for some time. In this condition, it is hard to imagine that she could be conscious of a command, let alone capable of defying it. The OPP called for EMS, but this was close to 17 minutes after Ms. Chrisjohn arrived at the detachment. Even at that stage, the OPP identified the situation as a non-emergency “no lights and sirens” call. This illustrates the power of the stereotype and its resistance to correction.

[129] Finally, Ms. Chrisjohn was of indigenous heritage. There is no suggestion that this played any role in decisions made by the police in this case. Nonetheless, it has been observed that indigenous women and girls are particularly vulnerable to stereotyping. This includes stereotypes relating to alcohol and drug abuse. (see the Report of the National Inquiry into Missing and Murdered Indigenous Woman and Girls (Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls).. On this point, see also R. v. Barton, 2019 SCC 33.

CONCLUSION

[130] Ms. Chrisjohn was a suspect wanted on an outstanding warrant for failure to comply with a recognizance. She was a person who was creating a disturbance in a public area of London while intoxicated by drugs, and who had done the same the day before. However, she was also a vulnerable woman of indigenous heritage who was in dire need of medical attention and who, by reason of her physical condition and her placement in custody, could not secure it on her own.

[131] I am satisfied that a reasonably prudent police officer would have appreciated the need for medical assistance at the time of the transfer to the OPP, if not before, and would have been aware of the risk that failure to obtain such medical assistance would endanger Ms. Chrisjohn’s life. I find in relation to s. 215 of the Code that Cst. Doering failed to provide Ms. Chrisjohn with the necessaries of life and demonstrated a marked departure from the standard of care of a reasonably prudent police officer.

[132] I am further satisfied that, in providing the OPP with erroneous and incomplete information about Ms. Chrisjohn’s condition, Cst. Doering demonstrated a wanton and reckless disregard for Ms. Chrisjohn’s life. His conduct created a risk that medical assistance would be even further delayed. It represented a marked and substantial departure from the standard of care. It was a contributing cause of Ms. Chrisjohn’s death and grounds culpability, under s.219 of the Code, for criminal negligence causing death.

[133] For these reasons, I find that the Crown has proved the essential elements of both offences beyond a reasonable doubt. Cst. Doering shall be found guilty on counts #1 and #2 on the indictment.

(Original signed by Justice Renee Pomerance)

Justice R. Pomerance

Released: November 1, 2019