SIU Director’s Report - Case # 18-OCI-238
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Mandate of the SIU
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.
Freedom of Information and Protection of 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.
- 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.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation 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.
“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”).
Notification of the SIUOn 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 TeamNumber of SIU Investigators assigned: 3
Complainant:37-year-old male, medical records obtained and reviewed
Witness OfficersWO #1 Notes reviewed, interview deemed not necessary
WO #2 Interviewed
WO #3 Interviewed
Subject OfficersSO Declined interview and to provide notes, as is the subject officer’s legal right
Summary of the Hnatyshyn Park and Cell Closed Circuit Television
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
Communications RecordingsThere 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 ServiceUpon 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.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(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,
Analysis and Director's Decision
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,  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
Special Investigations Unit
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.