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SIU Director’s Report - Case # 20-OCI-136

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 the injury that a 28-year-old man (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On June 12, 2020, at 1:56 p.m., the Greater Sudbury Police Service (GSPS) reported an injury to the Complainant.

On June 12, 2020 at 9:13 a.m., the GSPS advised that two plainclothed police officers arrested the Complainant on outstanding warrants at an address on Bruce Avenue in Sudbury. The Complainant was taken to the ground during the arrest which was captured on a police cruiser’s dashcam. The Complainant was taken to the police station and during his booking indicated his left hand was injured after a police officer stepped on it.

The Complainant was taken to Health Sciences North Hospital (HSNH) where he was diagnosed with a fractured left hand. He was released from hospital and returned to the police station at 2:00 p.m. to await a video bail hearing that afternoon. 

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 28-year-old male not interviewed [1]


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed


Subject Officers

SO Declined to be interviewed and declined to submit notes, as is the subject officer’s legal right.


Evidence

The Scene

The scene was in the parking lot of the address on Bruce Avenue in Sudbury, Ontario. Forensic investigators were not dispatched to the scene and, therefore, no scene examination was conducted.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, and was able to locate the following sources:
  • Closed-circuit Television (CCTV) video from the address on Bruce Avenue;


CCTV Video from the address on Bruce Avenue


CCTV video of the parking lot at the address on Bruce Avenue was reviewed. The video was of poor quality and had no date or time stamp. It depicted the following.

At 00:05:20 minutes into the video, a person was seen between row one and two of the vehicles. [It is assumed this was the Complainant from the fact he was described as wearing a red hoodie and the person in the video had a red top on.] The Complainant appeared to wander between the two rows of vehicles.

At 00:09:15 minutes into the video, the Complainant went between two vehicles left of camera view. The quality was so poor that it was not clear if he fell to the ground and got up several times or he was just not visible on the recording.

At 00:18:00 minutes into the video, the Complainant came out from between parked vehicles and wandered around between the two rows of parked vehicles. A taxi drove through the parking lot. The quality of the video made it difficult to keep track of the Complainant’s movements.

At 00:28:40 minutes into the video, the Complainant went between a red pickup truck and another vehicle parked beside it. He disappeared. After a few minutes, the Complainant stood at the front driver’s side corner of the red pickup. He then again wandered between the two rows of vehicles.

At 00:55:00 minutes into the video, the Complainant appeared to go to the ground in front of a dark-coloured vehicle in the front of the second row. A blue vehicle entered the parking lot and parked in the third row and the Complainant remained lying on the ground. Moments later, the Complainant stood up and walked beside the red pickup. He disappeared from camera view. He stood up but disappeared from camera view after a couple of minutes.

At 01:12:03 hours into the video, the Complainant stood at the front driver’s side of the red pickup. And at 01:15:13 hours into the video, a dark-coloured van pulled out of the parking spot two spaces from the Complainant. The Complainant continued to stand near the front of the red pickup. At 01:21:33 hours into the video, the Complainant disappeared from camera view.

At 02:56:45 hours into the video, a dark-coloured vehicle pulled into the first row of the parking lot and parked opposite the red pickup. A person got out and walked to the front of the red pickup. The person walked back to the dark-coloured vehicle. [This person was presumed to be WO #1.] At 02:59:33 hours into the video, a second person walked into the first row of the parking lot from the left side camera view. [This party was presumed to be the SO]. The SO and WO #1 went beside the red pickup. The Complainant was brought out to the front of the red pickup. One of the two police officers went over to the second row of parked vehicles. The other police officer stood beside the Complainant. This police officer was bent at the waist over the Complainant. The first police officer came back from the second row of parked vehicles and stood a couple of feet from the Complainant. The other police officer then went to the second row of parked vehicles. The video quality was so poor no physical actions by either police officer could be discerned.

At 03:01:46 hours into the video, the Complainant stood up. The Complainant and the SO were close to one another and walked in front of the red pickup. Again, no physical interaction could be seen because of the poor quality of the video. At 03:02:55 hours into the video, the Complainant and the SO went to the ground in front of the parked vehicle beside the red pickup. WO #1 came over to where the Complainant and the SO were on the ground. Both police officers were crouched near the Complainant. One police officer went back to the second row of parked vehicles. The other police officer stood bent over at the waist by the Complainant. He then knelt on the ground near the Complainant.

At 03:05:52 hours into the video, two other persons came into the parking lot. [It is believed these persons were WO #2 and WO #3.] All four police officers were around the Complainant, but no physical interaction can be discerned. At one point, two police officers moved away from the Complainant and two police officers remained kneeling beside the Complainant.

At 03:09:07 hours into the video, the Complainant was stood up. He was walked out of the parking lot and into the housing complex. It appeared the Complainant walked on his own with police officers on each side of him. The SO walked out of the parking lot. Two persons walked to the red pickup. WO #1 spoke to them. WO #1 walked to his cruiser and drove out of the parking lot. Afterwards, nothing more of significance occurred.


Dashcam video from WO #1’s police cruiser


The video was taken on June 12, 2020 and depicted the following.

The camera view was through the front windshield of the police cruiser WO #1 was operating. WO #1 drove through city streets to reach the complex at the address on Bruce Avenue where the incident occurred. Once on scene he drove through the parking lots in the complex until he met up with the housing authority person who had called in the complaint. The Complainant was pointed out to WO #1.

WO #1 pulled into the parking lot and backed into a spot opposite a red pickup truck. The Complainant was lying on his back on the ground at the front driver’s side corner of the red pickup. WO #1 walked up to the Complainant. WO #1 used his right foot to tap the Complainant on the left shoulder. The Complainant and WO #1 had a conversation. The Complainant remained on the ground but moved his legs so that his left foot was crossed over his right knee. WO #1 walked back to his cruiser and radioed for a check on the Complainant. The Complainant remained lying on the ground. WO #1 located an email indicating there were arrest warrants for the Complainant. WO #1 then requested an additional unit to arrest the Complainant. The dispatcher confirmed the outstanding warrants. WO #1 spoke with another officer over the radio. WO #1 said that he had just woken the Complainant and he was still lying on the ground sleeping and should be no problem. WO #1 sat in his cruiser waiting for his backup. The Complainant remained in the same position on the ground.

WO #1 spoke with the SO over the radio giving him directions to the correct parking lot. WO #1 indicated he was glad for the SO’s assistance because the Complainant could get up at any minute and attempt to walk out of the lot. WO #1 did not want that to happen. The SO walked into the camera view from the left. WO #1 got out of the cruiser. He was wearing black gloves. The SO grabbed ahold of the Complainant’s left shoulder and pulled him into a sitting position. The SO pulled the shoulder strap of a backpack the Complainant was wearing off his left shoulder. WO #1 took off the right shoulder strap. The SO held the Complainant’s left hand behind his back. WO #1 put the Complainant’s right arm behind his back and he was handcuffed to the rear. The Complainant was passive and compliant. The SO did a pat-down search of the Complainant. The SO looked in the Complainant’s backpack. Both police officers were standing on either side of the Complainant.

Both police officers appeared to be speaking with the Complainant. The SO brought the backpack to the hood of WO #1’s police cruiser and looked through it. WO #1 continued to stand beside the Complainant. What was later found out to be a folding knife could be seen on the ground directly in front of the centre of WO #1’s cruiser’s hood. It appeared that neither police officer noticed the knife. As the SO removed articles from the backpack, the view of the Complainant became blocked by a reusable shopping bag. The SO walked back to where the Complainant was sitting on the ground. There was a slight breeze and the shopping bag back moved back and forth allowing the Complainant to be seen. He remained seated on the ground. WO #1 walked to the hood of his police cruiser and searched through the Complainant’s backpack. WO #1’s search moved the shopping bag allowing the Complainant to be seen.

The Complainant got to his feet and stumbled to the side. The SO used his left hand to grab ahold of the Complainant’s right forearm. The Complainant walked in a circle around the SO as he continued to hold onto the Complainant’s right arm. The Complainant continued to walk around the SO raising his feet up in the air as if his legs had gone to sleep and he was trying to restore the feeling in them. The SO continued to hold the Complainant’s right bicep. WO #1 continued to search the backpack. The Complainant pushed back into the SO and then pulled away from the SO. The SO did not lose his grip upon the Complainant. WO #1 turned and said something toward the SO and the Complainant. WO #1 returned the articles into the backpack.

The Complainant turned to a 90-degree position to the SO and then kicked out with his left leg. The SO took his right arm and came across the Complainant’s upper chest and grabbed a hold of the Complainant’s left shoulder. The SO still held the Complainant’s right arm with his left hand. The SO then swung the Complainant backwards twisting his body to the ground. The Complainant struck the ground first with his left knee then his left shoulder. The Complainant was on his left side and the SO put his left knee on the Complainant’s right shoulder. The SO’s right knee slid down. The SO’s right knee was blocked by the Complainant’s body and its resting position could not be determined. The SO’s hands grabbed the Complainant’s right arm. WO #1 used his hands to grab a hold of the Complainant’s legs at the ankles. WO #1 then raised the Complainant’s right leg in the air and kicked the Complainant’s left leg out so it was straight out. WO #1 lowered the Complainant’s right leg and then kneeled on WO #1’s right knee. WO #1 used both of his hands to hold the Complainant down by pushing on the Complainant’s right hip. The SO stood, still bent at the waist, holding the Complainant’s right arm with both of his hands. The SO then moved so only his right hand was holding the Complainant down. WO #1 stood up and had no contact with the Complainant.

WO #1 returned to the backpack on the hood of his cruiser. The SO continued to hold the Complainant down with his right hand while bent at the waist. WO #1 walked back toward the SO and the Complainant. WO #1’s attention was drawn to the knife on the ground. He picked it up. WO #1 and the SO spoke to each other. WO #1 returned to the hood of his police cruiser and placed the knife into the Complainant’s backpack. The SO was now crouched down beside the Complainant, still holding onto his right arm. The Complainant lay still on the ground.

WO #2 and WO #3 came into camera view from the right-hand side. The SO was still crouched holding the Complainant down by his right arm. WO #2, WO #3 and WO #1 went and stood beside where the Complainant was lying. All the police officers had a conversation. WO #1 picked up a yogurt container from the ground near the pickup truck. He took it to the Complainant’s backpack. He examined the knife. This was the clearest picture of the knife. At the same time, WO #2 and WO #3 took over physical control of the Complainant from the SO. WO #2 pulled back on the Complainant’s right arm as WO #3 conducted a pat-down search of the Complainant. The Complainant appeared to cry out about something. The Complainant then screamed out as though he was in pain. WO #2 and WO #3 rolled the Complainant from his left side to his right side and he yelled out as though he was in pain. Nothing of what the Complainant was saying could be understood. WO #2 and WO #3 continued the pat-down search. The Complainant was rolled to a sitting position and he cried out, “Ouch”. He was then helped to a standing position by WO #2 and WO #3 standing on either side of the Complainant. The SO was standing just at the left edge of camera view. The Complainant was then walked out of camera view with WO #2 and WO #1 on either side of him holding one of the Complainant’s arms.


Booking Video


The video was taken on June 12, 2020. The recording had a date and time stamp but no audio.

From 9:43:12 a.m. to 9:44:35 a.m., WO #1 came into the booking area and held open the door. The Complainant came in the door escorted by WO #3. The Complainant stood in a designated area but was unsteady on his feet. WO #3 held onto the Complainant’s left arm. WO #1 showed the Complainant some paper. WO #1 left the booking area.

From 9:44:35 a.m. to 9:50:27 a.m., the Complainant stood passively but continued to shuffle his feet or move his legs. WO #3 conducted a search of the Complainant.

From 9:50:27 a.m. to 9:56:10 a.m., the Complainant attempted several times to pull away from WO #3. WO #2 walked from behind the booking desk to stand in front of the Complainant. WO #2 held onto the Complainant’s left arm while WO #3 held onto the Complainant’s right arm. WO #3 continued to search the Complainant. The Complainant kicked his shoes off banging them against the booking desk. The handcuffs were removed from the Complainant. WO #3 took a photograph of the Complainant holding his hands out in front of him.

From 9:56:10 a.m. to 10:01:04 a.m., the Complainant continued to shuffle his feet and move his legs around. WO #3 and the Complainant walked into a side room and were out of camera view. WO #2 stood outside the open door to the room. WO #2 entered the room and was in and out of camera view. WO #2 and WO #3 came out of the room and stood in the doorway. The Complainant then threw out his shorts. The Complainant came out of the room and stood in front of the booking desk.

From 10:01:04 a.m. to 10:11:15 a.m., the Complainant continued to shuffle his feet and move his legs around. The Complainant moved to sit down on a bench. He appeared to fall asleep, lose his balance, wake up, and then to just fall asleep again over and over while he sat on the bench.

From 10:11:15 a.m. to 10:18:54 a.m., paramedics arrived, treated the Complainant and left the booking area.

From 10:18:54 a.m. to 10:28:44 a.m., the Complainant continued to sit on the bench. The female paramedic returned and spoke with the booking supervisor. She then left the booking area. WO #3 handcuffed the Complainant to the front. The Complainant was then walked to the sally port by WO #3.

Communications Recordings


911 Call


On June 12, 2020 at 8:20 a.m., a man called the GSPS to advise that a suspicious man [now determined to be the Complainant] was sleeping in the parking lot of a building at an address on Bruce Avenue in Sudbury. The civilian reported the Complainant was conscious but sleeping. He gave a description of the Complainant as being in his twenties, and wearing a red sweater, jeans and white running shoes. The civilian had not seen any weapons.


Communications Recordings


The recordings were reviewed and it was determined they had no bearing on the case since they did not speak to how the Complainant received his left-hand injury or from whom.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the GSPS:
  • Arrest Report-the Complainant;
  • Booking Video;
  • Canadian Police Information Centre (from GSPS)-the Complainant;
  • Communications Recordings;
  • Event Details;
  • General Report;
  • Notes-all WOs;
  • Occurrence Involvements;
  • Policy-Use of Force;
  • Policy-Arrest;
  • Prisoner Log-the Complainant;
  • Property Record-the Complainant;
  • Release Order-the Complainant;
  • Dashcam video recording;
  • Warrant for Arrest-the Complainant; and
  • Warrant Request-Supplementary Report.

Materials obtained from Other Sources

In addition to the materials received from the GSPS, the SIU obtained and reviewed the following materials from other sources:
  • A CCTV video recording from an address on Bruce Avenue.

Incident Narrative

The following scenario emerges from the weight of the evidence, which included interviews with several witness officers and video recordings of the Complainant’s arrest. As was his legal right, the SO declined to interview with the SIU and refused to authorize the release of his incident notes. The SIU was also unable to secure a statement from the Complainant.

In the morning of June 12, 2020, WO #1 arrived at the parking lot of a townhouse complex at an address on Bruce Avenue. He was there in response to a call to police from the groundskeeper of the complex reporting a male sleeping on the ground in the lot. The Complainant was that man.

WO #1 roused the Complainant, who had been sleeping alongside the driver’s side of a parked red pickup truck. Returning to his vehicle, WO #1 checked with the dispatcher to ascertain if the Complainant was wanted by police. In fact, he was; there was a warrant for his arrest on a charge of uttering threats. WO #1, intending to arrest the Complainant, asked for the assistance of another officer. The SO radioed that he would attend.

Upon the SO’s arrival, the Complainant, while still on the ground, was handcuffed by the officers without incident. Shortly thereafter, the Complainant stood himself up. The SO was by his side holding his right arm, the two still beside the driver’s side of the pickup truck. WO #1 had returned to his vehicle, a short distance away, where he searched the Complainant’s backpack on the vehicle’s hood.

A couple of minutes after standing to his feet, the Complainant was thrown to the ground by the SO, landing on his left side. During that interval of time, the Complainant appeared groggy and unsteady on his feet, regularly bending and lifting his legs as if to wake them up. Just prior to the takedown, with the SO still holding his right arm, the Complainant kicked his left leg out in the area of the pickup truck’s front driver’s side tire.

WO #1 arrived immediately after the grounding and pinned the Complainant’s right leg to the ground with his right knee as the SO held onto the Complainant’s upper body. A short time later, WO #2 and WO #3 arrived to take custody of the Complainant.

Following his arrest, the Complainant was taken to the police station and lodged in cells. Later that morning, after he was seen to have a swollen left hand, the Complainant was taken to hospital and diagnosed with a fractured left hand.

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

On June 12, 2020, the Complainant was arrested by GSPS officers, lodged in police cells and subsequently taken to hospital, where he was diagnosed with a fractured left hand. The SO was one of the arresting officers and identified as the subject officer for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that the SO committed a criminal offence in connection with the Complainant’s arrest and injury.

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 was reasonably necessary in the execution of an act that they were required or authorized to do by law. I am satisfied that WO #1 and the SO had grounds to lawfully arrest the Complainant based on the warrant that was in effect at the time. Having assumed custody over the Complainant, the officers were entitled to restrict his movements in the interests of their safety. The real issue is whether the SO resorted to unnecessary force in so doing.

There is an argument to be made that the takedown of the Complainant was excessive in the circumstances. The Complainant was handcuffed at the time and certainly no significant threat to the SO, particularly as WO #1 was in the immediate vicinity. It is true that the Complainant’s kicking motion appears to have prompted his grounding by the SO, but the kick itself was not directed at the officer.

While perhaps precipitous and heavy-handed, however, I am unable to form a reasonable belief that the SO’s conduct crossed into the unlawful. The case law makes clear that officers are not expected to measure their responsive force with precision; as long as the force in question was reasonable, it need not be exacting: R v Nasogaluak, [2010] 1 SCR 206; R v Baxter (1975), 27 CCC (2d) 96 (Ont. C.A.). In the instant case, it is clear that the SO spoke with the Complainant just before the takedown. Though what was said is indiscernible on the video recordings, WO #1’s interjection – “[Complainant], don’t be an asshole or you’re going to end up on the ground … Fucking stop it” – leaves one with the distinct impression that the SO was cautioning the Complainant with respect to his movements. Against this backdrop, and in light of the Complainant’s kicking motion, which was of a quality more pronounced than his previous leg movements, I am unable to exclude the possibility that the force used by the SO fell within the latitude of permissible force as a reasonable reaction to potentially threatening behaviour. With the Complainant on the ground, whatever threat he represented in the moment was effectively neutralized.

In the result, if the Complainant did in fact fracture his left hand in the course of his arrest by WO #1 and the SO, I am not satisfied with a reasonable level of confidence that the injury was the result of excessive force by the officers. Accordingly, there is no basis to proceed with criminal charges in this case and the file is closed.


Date: September 14, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) The Complainant could not be contacted by the SIU, despite repeated efforts. [Back to text]
  • 2) As the SIU was unable to secure an interview with the Complainant or view his medical records, the source of his injury is not entirely clear. [Back to text]