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SIU Director’s Report - Case # 18-OCI-238

Contents:

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Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
  • Confidential investigative techniques and procedures used by law enforcement agencies; and
  • 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. 
Pursuant to section 21 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. 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; 
  • Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and 
  • Other identifiers which are likely to reveal personal information about individuals involved in the investigation.


Personal Health Information Protection Act, 2004 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also been excluded from this report 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.

Mandate Engaged

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into a serious injury sustained by a 37-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 8, 2018, at 2:05 a.m., the Greater Sudbury Police Service (GSPS) notified the SIU of the Complainant’s injury.

The GSPS reported that on August 7, 2018, at about 6:00 p.m., Police Bicycle Unit police officers located the Complainant in Hnatyshyn Park for breaching his release conditions. As the Complainant was being arrested, he became combative and was taken to the ground, where a police officer delivered an open hand strike to his head. The Complainant was restrained and taken into custody.

The Complainant was later taken to the Health Sciences North because his eye was swollen. He had since been diagnosed as having suffered a fractured orbital bone. The Complainant was released from hospital and held for a bail hearing.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

37-year-old male, medical records obtained and reviewed


Witness Officers

WO #1 Notes reviewed, interview deemed not necessary
WO #2 Interviewed
WO #3 Interviewed


Subject Officers

SO Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

Video/Audio/Photographic Evidence


Summary of the Hnatyshyn Park and Cell Closed Circuit Television


The Complainant was seen walking with the Subject Officer (SO) and Witness Officer (WO) #3 as he was escorted from Hnatyshyn Park. The Complainant’s hands were handcuffed behind his back. The Complainant was not struggling and appeared to be compliant.

……….

A police cruiser drove into the sally port, followed by the SO, WO #2 and WO #3 on bicycles. The police officers conferred with WO #1.

……….

The Complainant was led into the booking room, and paraded before WO #1. The Complainant was escorted back into the sally port. An undesignated officer took a photo of the Complainant. Then, the Complainant was placed into the police cruiser again, and left the police station.

Summary of the video taken by an undesignated officer


The Complainant is yelling profanities, and WO #3 told him he would need to be quiet and calmed down, otherwise, medical staff would not be able to do their job.

Communications Recordings

There was communication in regards to the Complainant’s arrest and request for transportation from Hnatyshyn Park to the GSPS headquarters (HQ).

……….

An undesignated officer confirmed that he was transporting the Complainant to the GSPS HQ and bicycle unit police officers were following him. The officer told the dispatcher that the Complainant was hitting the partition. The Complainant was heard screaming in the background.

……….

The officer reported that the Complainant was spitting blood all over the prisoner area.

……….

The officer and WO #3 were en route to the hospital. WO #3 told the dispatcher that the Complainant was kicking the partition. The undesignated officer, WO #3 and the Complainant returned to the GSPS.

Materials obtained from Police Service

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

  • Arrest Report;
  • Event Chronology;
  • List of Involved Officers;
  • Notes of all witness officers;
  • Occurrence Summary;
  • Offence Details;
  • Photos of Injuries to the Complainant taken by the GSPS;
  • Procedure- Arrest;
  • Procedure-Use of Force;
  • Training Record-the SO; and
  • Will State of all witness officers.

Incident Narrative

The material events are clear on the weight of the reliable evidence collected by the SIU. In the early evening of the day in question, the Complainant was with several acquaintances in Hnatyshyn Park in Sudbury when he was approached by the SO and WO #3 on bicycle patrol. The Complainant was inebriated and consuming alcohol in breach of a condition of his probation. The SO moved in to arrest the Complainant and handcuffed his hands behind his back without incident. He and WO #3 escorted the Complainant to the entrance of the park at the intersection of Lloyd Street and Notre Dame Avenue to wait for a cruiser that would take him to the police station. The Complainant became antsy and attempted to pull away from the officers. He was asked to sit down on the cement ledge of a flower planter in the area, and was then made to sit when he refused. Once on the cement ledge of the planter, the Complainant laid down, raised his legs and kicked the SO’s right knee, pushing the officer back. WO #3 grabbed hold of the Complainant’s legs as it appeared he was still trying to kick the officers. The Complainant struggled to get up from the ledge and was punched once in the face by the SO. A police cruiser arrived and the Complainant was taken in it to the police station. He was subsequently transported to the hospital where he was diagnosed with a fractured orbital bone.

Relevant Legislation

Section 25(1), Criminal Code -- Protection of persons acting under authority

25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Analysis and Director's Decision

The Complainant suffered a facial fracture in the course of his arrest by the subject officer on August 7, 2018. For the reasons that follow, there are no reasonable grounds to believe the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

Under section 25(1) of the Criminal Code, police officers are restricted in the force they may use to that which is reasonably necessary in the execution of an act that they are required or authorized to do by law. The Complainant was in obvious violation of a condition of his probation and the SO and WO #3 were within their rights in arresting him. They were further authorized to maintain custody over him and to ensure their safety in so doing. The Complainant, despite being handcuffed, kicked the SO forcefully and then struggled with the officers in what appeared to be an effort to get away. The officers were entitled to respond with force to quell the Complainant’s violence and overcome his resistance. In my view, the force they used, consisting of WO #3 grabbing hold of the Complainant’s legs and a singular punch to the face by the SO, fell within the range of what was reasonably necessary in the circumstances. The SO was entitled in my view to seek to reassert control over the Complainant as quickly as possible and he did not act excessively in so doing. In arriving at this conclusion, it is important to bear in mind that police officers confronted with violence are not expected to measure their responsive force to a nicety; what is required is a reasonable response, not an exacting one: R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.).

In the result, while I accept that the punch delivered by the SO was the likely cause of the Complainant’s injury, I am satisfied on reasonable grounds that the force used by the officer was legally justified. Accordingly, there is no basis to proceed with criminal charges in this case and the file is closed.


Date: August 2, 2019



Joseph Martino
Interim Director
Special Investigations Unit