New regulation means Ontario's police watchdog won't probe certain naloxone cases

Ontario's police watchdog will be prevented from investigating cases of death or injury involving officers who administered the anti-opioid drug naloxone under certain circumstances when a new regulation comes into effect on June 30.

But at least one police association says the regulation does not go far enough.

The regulation will ensure the Special Investigations Unit (SIU) does not engage in any "unnecessary investigations" when it comes to police officers providing emergency first aid, Ontario Attorney General Yasir Naqvi told CBC Toronto.

"We believe that it is not in anyone's interest — the police, public or the [SIU] — for there to be lengthy or needless investigations when a police officer is simply trying to save a life," Naqvi said in a statement.

"But let me be clear, this regulation will still require police to notify the [SIU] of incidents where officers are present and there is a death or serious injury ..." 

The SIU investigates cases where there has been a death, serious injury or allegations of sexual assault involving police.

According to the "immediate medical care" regulation, under the Ontario Special Investigations Act, 2018, the SIU director will not investigate naloxone cases when the SIU director determines that:

• Police have not used force against the person before or after he or she received immediate medical care.
• The person was not under arrest, detained or in custody before or after he or she received immediate medical care.
• The officer did not cause or contribute to the need for immediate medical care.
• The need for immediate medical care did not arise due to an accident, a vehicle crash or police chase.

Immediate medical care is defined in the regulation as emergency first aid provided by an official and it includes the administration of naloxone. 

Michael McCormack, president of the Toronto Police Association, which represents 7,500 uniform and civilian members, said Tuesday the association wants to see police exempt from SIU investigations whenever they administer naloxone.

Such an exemption would mean the police service would not have to notify the SIU about unsuccessful attempts to save lives.

Regulation 'appeases both sides' of debate

"I don't think the regulation really accomplishes anything," McCormack said on Tuesday. "The only thing is it appears to try to accomplish is to appease both sides of the debate.

"My concern is that, when you have people who are in crisis and you are administering medical aid, there should be a very clear exemption. You don't want people to hesitate. You don't want them to have any second thoughts."

The Toronto police association would like to see the Ontario attorney general adopt the same exemption given to B.C. police officers. 

That province's Independent Investigations Office has decided that overdose deaths, where naloxone is either administered or attempted by a police officer and no other part of his or her behaviour caused a medical crisis or death, are not subject to an investigation.

Regulation won't change how officers respond

Some Toronto police officers are expected to be equipped with naloxone by the end of June, while Peel police officers have been carrying the drug in nasal spray form since June 2017. 

Sgt. Matt Bertram, spokesperson for the Peel Regional Police, said on Tuesday the regulation will not change how officers perform their duties.

"Our service will continue to adhere to the legislation as it is updated, and we will follow protocol as set out," he said.

"This seems to be more of a change in how the SIU is going to conduct their business."

Monica Hudon, spokesperson for the SIU, said in an email this week that the oversight agency will follow the new regulation but it does not alter how the SIU deals with naloxone cases.

"The SIU always follows regulations pertaining to our jurisdiction, and we will do the same with regard to the new regulation," she said.

"You should know that the new regulation is in line with how the SIU currently deals with cases where someone was seriously injured or died, and naloxone was administered by police."

2 SIU probes into naloxone cases terminated

So far this year, the SIU has been notified of four cases that ended in death where police administered naloxone in the form of a nasal spray Three of the cases involved Peel Regional Police.

The police watchdog terminated two of those investigations, because the SIU director determined that police actions did not contribute to either death.

Hudon said the third case is ongoing, and the SIU decided not to "invoke its mandate" in the fourth case. The SIU did not name the police force involved in that incident.

"For any case in which it becomes clear there is patently nothing to investigate — not only cases in which a life-saving measure was administered or performed — the SIU terminates those investigations as soon as we have enough information," she added.

Regulation 'not good public policy,' Marin says

Andre Marin, now a criminal defence lawyer in Ottawa but formerly an Ontario ombudsman, said he thinks the regulation is "regressive" and "bad law" because it limits civilian oversight of police. 

"The SIU is an impartial, neutral, independent, investigative body that was created because of the lack of confidence in police investigating police. Now in naloxone cases, it will be police investigating police. It's going the wrong way and I think it's not good public policy."

Marin said the regulation could the start of a "slippery slope" and raises many questions.

"It's an issue of control," he said.