Police officer's duty of care the focus of Ontario appeal in 2016 death of Indigenous woman in custody

Arguments in the appeal of a London, Ont., police officer's conviction in the death of an Indigenous woman in custody focused Wednesday on an officer's obligations and ability to assess when an intoxicated prisoner's condition becomes life threatening.

Const. Nicholas Doering was sentenced in September 2020 after being convicted of criminal negligence causing death and failing to provide the necessaries of life to Debralee Chrisjohn, 39, from Oneida of the Thames First Nation.

Doering arrested Chrisjohn, who was high on methamphetamines, on Sept. 7, 2016, before transferring her to the custody of Ontario Provincial Police, who had an outstanding warrant for her arrest. 

At Doering's trial, court heard Doering lied when he told two OPP officers that Chrisjohn had been cleared medically by paramedics. While in OPP custody, she was found to have suffered a cardiac arrest due to the methamphetamine use, and was taken to hospital and pronounced dead. 

On Wednesday, at the Ontario Court of Appeal in Toronto, lawyer Alan Gold argued there was no way for Doering to determine whether changes in Chrisjohn's condition were the signs of a fatal overdose or the normal effects of being high. 

Chrisjohn was walking and talking when arrested, but was slumped over and moaning by the time of the transfer to OPP. 

"In this case, the victim had taken a poison," said Gold. "The road to recovery and the road to fatality looked the same."

Gold argued the judge in Doering's trial had suffered from "confirmation bias," by concluding Doering should have known Chrisjohn's life was in peril because the outcome had turned tragic. 

Responding for the Crown, Jamie Klukach argued Doering's responsibility to Chrisjohn was no different than a parent's to provide care for a young child. Chrisjohn should have been taken to hospital when her condition changed, the lawyer said. 

It doesn't matter that getting Chrisjohn to hospital closer to the time of her arrest may not have been enough to save her life, Klukach said.

"If the medical treatment could have saved her life, it has to be provided," said Klukach. "It doesn't require certainty that the treatment could have saved Chrisjohn. She was dependent on him for her care, he owed her her care."

The case has the potential to be precedent setting, particularly when it comes to clarifying in law the responsibility of police to assess intoxicated prisoners' need for medical care. It's also being watched by Indigenous groups that have long pointed to the disproportionate number of Indigenous people who've died while in police custody in jurisdictions across Canada. 

Joseph Markson made a submission to the court, representing the Police Association of Ontario.

He said front-line officers lack clear standards and guidance to help them determine if what they're seeing is a prisoner's normal reaction to drugs or alcohol, or if they're dealing with a life-threatening overdose.