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SIU Director’s Report - Case # 19-OCI-069

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 44-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On April 4, 2019, at 5:15 p.m., the Greater Sudbury Police Service (GSPS) reported to the SIU an injury sustained by the Complainant. At 11:55 a.m., GSPS tactical police officers, acting on the authority of a Feeney warrant, [1] entered a residence in Sudbury to arrest the Complainant for assault and abduction. A struggle took place and the Complainant was subdued and arrested. The Complainant was taken to Health Sciences North where he was diagnosed with having sustained two fractured ribs and a fractured bone in the lumber region of his spine.

The Team

Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 1

Complainant:

44-year-old male interviewed, medical records obtained and reviewed


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Not interviewed, but notes received and reviewed
WO #6 Interviewed
WO #7 Not interviewed, but notes received and reviewed
WO #8 Interviewed


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

Forensic Evidence


Conducted Energy Weapon (CEW) Downloads


On April 17, 2019 at 11:00 a.m., an SIU investigator obtained two CEWs from the GSPS.
The data downloaded from the CEW used by WO #1 indicated that it was triggered twice around the time of the Complainant’s arrest: the trigger was pulled first at 12:02:55 p.m. and was associated with a five second discharge. The second trigger pull, at 12:03:19 p.m., was associated with a five second discharge.

The data downloaded from the CEW used by SO #2 indicated it was triggered twice as well: the first trigger pull occurred at 12:03:22 p.m. and was associated with a discharge of five seconds. The trigger was then pulled at 12:04:37 p.m. for a discharge of 13 seconds.

Communications Recordings

At 9:05 a.m., on April 4, 2019, a civilian called the GSPS to report an assault in which a 40-year-old man [now known to be the Complainant], who wore a grey-coloured jacket, repeatedly punched a 16-year-old woman. There were people with the woman and an ambulance was requested. The Complainant fled into a nearby residence.

WO #7 was dispatched and he received details of the assault and grounds for the arrest. WO #7 identified the location of the Complainant and he applied for and was granted a Feeney warrant. At 11:56 a.m., multiple door knocks were made by members of the GSPS tactical unit. Entry was made with a ram and the bedrooms were cleared. The Complainant had barricaded himself in a washroom. At 12:04 p.m., the entry police officers fought with the Complainant and a CEW was deployed. At 12:06 p.m., the communications centre was advised that they had one in custody and all the police officers were okay.

Materials Obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the GSPS:
  • Arrest Report;
  • Civilian Witness List;
  • Communications audio;
  • Event Details;
  • GSPS Officers Schedules;
  • Notes of witness officers;
  • Officer involvement;
  • Photo-brief of residence from warrant;
  • Photos from WO #4;
  • Procedure-Arrest;
  • Procedure-Use of Force;
  • Procedure-Tactical Unit;
  • Supplementary Occurrence Reports (x10);
  • Warrant-the Complainant;
  • Witness List from GSPS; and
  • Witness Statements (x4). 

Materials Obtained from Other Sources

The SIU also received the following records from other sources:
  • Ambulance Call Report (x2); and
  • The Complainant’s Medical Record.

Incident Narrative

There is little if any conflict in the evidence obtained by the SIU, which included statements from the Complainant and the witness officers who were present at the time of his arrest, as well as data downloaded from the CEWs deployed in the course of the incident. At about 9:00 a.m. on April 4, 2019, GSPS received a 911 call reporting that a male – the Complainant – had repeatedly punched a female in front of his residence before retreating into the home. Uniformed officers responded to the area where the Complainant resided.


GSPS tactical officers were also deployed and arrived at the scene at about 10:15 a.m. Led by WO #4, the officers set up containment around the building, attempted in vain to contact the Complainant, and waited while an application was brought before a Justice of the Peace to obtain a warrant authorizing their forcible entry into the Complainant’s residence to effect his arrest. The warrant was secured at about 11:30 a.m. and brought to the scene shortly before noon.

With the warrant in hand, tactical officers made their way to the Complainant’s unit door, announced their presence and knocked. When the Complainant refused to open the door, a ram was used to break into the apartment. The Complainant was alone in the unit and hiding in the bathroom located at the end of the hallway to the left as one entered the apartment. Again, the Complainant refused to open the locked bathroom door, and it too was breached with the use of a ram.

The Complainant was found sitting on the bathroom floor with his back to the door and his feet propped against the bathtub on the opposite side. He refused to release his arms to be handcuffed and struggled with the officers as they grappled with him to assert control. WO #1 deployed his CEW, but it failed to make sufficient contact with the Complainant and proved ineffective. WO #8 punched the Complainant’s right shoulder area, but that too failed to subdue the Complainant. The Complainant managed to lift himself from the ground and made his way into the hallway and then into the living room, at all times physically resisting the officers’ efforts to take him into custody. He punched and kicked at the officers, striking SO #1 and WO #4, and was met with a number of punches in return delivered by the officers. As the struggle continued, WO #8 delivered a further knee strike to the Complainant’s chest and kicked him two or three times, WO #3 punched him once to the head, and WO #1 discharged his CEW, again to no effect, as did SO #2, who also struck the Complainant with a kick. The Complainant was finally brought under control after being struck twice by WO #1’s baton, the first strike hitting him in the left upper arm, the second in the head. According to WO #1, he had seen the Complainant moving toward a table and reaching for a fondue fork with two sharp prongs at the time he delivered the baton blows. With the Complainant now on the ground, the officers were able to place him in handcuffs.

Following the Complainant’s arrest, he was taken to hospital where his injuries were diagnosed and treated.

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 was arrested by GSPS officers on April 4, 2019 and suffered injuries in the process, including a spine fracture and two broken ribs. SO #1 and SO #2 were among the arresting officers and identified as subject officers for purposes of the SIU investigation. On my assessment of the information collected by the SIU, there are no reasonable grounds to believe that either officer committed a criminal offence in connection with the Complainant’s arrest and injuries.


Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force is no more than is reasonably necessary in the execution of an act that they are required or authorized to do by law. Based on the information they had received from a witness reporting that he had observed the Complainant assaulting a female, I am satisfied that the officers had sufficient grounds to lawfully arrest the Complainant. I am further satisfied that the officers were lawfully inside the Complainant’s residence to effect his arrest based on the Feeney warrant they had obtained. The question turns to whether the force used by the officers was legally justified.

The cumulative force used by the officers against the Complainant was, to be sure, significant. However, I also have no doubt that the Complainant proved a formidable physical challenge. It is true that the tactical officers outnumbered the Complainant, but their greater manpower was to a large extent neutralized by the small and confined quarters in which the altercation took place. Bearing in mind that the law does not require police officers engaged in violent and dynamic situations to measure their responsive force to a nicety, I am unable to reasonably conclude that the knee strike, multiple punches and kicks, and CEW discharges delivered by the officers fell outside the range of what was reasonably necessary in the context of a subject who strenuously resisted his arrest and lashed out with kicks and punches of his own against the officers when the opportunities presented themselves.

Less clear is whether WO #1’s baton strikes were legally justified, in particular, the blow that impacted the Complainant’s head. While I have some reservations with the propriety of WO #1’s conduct in this regard, I am ultimately of the view that his use of force did not run afoul of the latitude prescribed by the criminal law. By the time these baton strikes were struck, the Complainant’s fight had been undeterred by the efforts of the officers and he was heading for a table that contained a fondue fork. While not a traditional weapon, I have no doubt that in the Complainant’s hands the officers had good reason to fear the fork might well have been used as a sharp-edged weapon to inflict serious bodily harm and even death. Moreover, it does not appear that WO #1 intended to strike the Complainant in the head with a baton blow; rather, the contact occurred inadvertently as the blow, aimed for the Complainant’s left shoulder, glanced off the shoulder and struck the head. In the circumstances, I am satisfied on reasonable grounds that WO #1 used his baton in the legitimate belief that it was necessary to protect himself and his colleagues from an imminent and potentially lethal threat.

In the result, while I accept that the Complainant’s injuries occurred in the course of the physical altercation with the officers, there are no grounds for proceeding with charges in this case as the officers’ force, in my view, was legally justified. Accordingly, the file is closed.



Date: January 21, 2020

Original signed by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) Named after the Supreme Court of Canada decision in R v Feeney, [1997] 2 SCR 13, a Feeney warrant, obtained pursuant to sections 529 and 529.1 of the Criminal Code, authorizes a police officer’s forcible entry into a dwelling-house for the purposes of effecting an otherwise lawful arrest. [Back to text]