SIU Director’s Report - Case # 22-OCI-002
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into a serious injury sustained by a 38-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into a serious injury sustained by a 38-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On January 5, 2022, at 9:25 a.m., the Greater Sudbury Police Service (GSPS) notified the SIU of an injury to the Complainant.The GSPS advised that on January 4, 2022, at 3:17 p.m., GSPS officers attended a transit depot regarding a reported altercation involving the Complainant and transit security guards. According to the GSPS, at the time of the arrest, the Complainant appeared to be intoxicated. He was arrested for Breach of Peace and taken to the GSPS Headquarters. The Complainant was combative during the booking process.
The Complainant complained of a sore knee, and believed his leg was broken. Emergency Medical Services attended, and he was taken to the Health Sciences North (HSN) where he was diagnosed with a broken knee cap.
The Complainant had reportedly said his injury took place while fighting with transit security.
The Team
Date and time team dispatched: 01/05/2022 at 10:51 a.m.Date and time SIU arrived on scene: 01/05/2022 at 11:20 p.m.
Number of SIU Investigators assigned: 6
Affected Person (aka “Complainant”):
38-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on January 14, 2022.
Civilian Witnesses
CW Interviewed The civilian witness was interviewed on January 19, 2022.
Subject Officials
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed between January 20, 2022, and January 24, 2022.
Evidence
The Scene
The scene was located at the GOVA Sudbury transit station, 9 Elm Street, Sudbury. Video/Audio/Photographic Evidence [1]
The SIU searched for and obtained audio, video and/or photographic records of relevance, as set out below.
Police Radio Communications
On January 7, 2022, at 9:08 a.m., SIU requested from the GSPS the radio communications recordings of their interaction with the Complainant. On January 12, 2022, at 9:55 a.m., GSPS provided the SIU with the recordings. The relevant portions of the recordings started at 1:18:43 p.m., and ended at 1:38:09 p.m. The following is a summary of the recordings. At 1:18:43 p.m., GSPS dispatch radioed, “Clear for a disturbance.” GSPS dispatch provided details of the incident, including that “security is currently fighting with a man at transit Platform 3”.
At 1:19:30 p.m., the SO was in the vicinity of the station. [2]
At 1:20:41 p.m., GSPS dispatch updated police officers on the description of the suspect. [fn]3[/fn]
At 1:24:42 p.m., the SO had the Complainant in custody and requested a transport police vehicle.
Between about 1:36:06 p.m. and 1:36:41 p.m., WO #4 radioed that the Complainant was on board in his police vehicle.
Police Telephone Communications
On January 7, 2022, at 9:08 a.m., the SIU requested that the GSPS provide all recordings of their interaction with the Complainant. On January 12, 2022, at 11:03 a.m., GSPS provided the SIU with the two telephone communications. The following is a summary of the communications.The first telephone communication
At 1:17 p.m., a man reported that the Complainant was assaultive towards the CW. The man told the 911 call-taker that the Complainant was on the ground, taken down by the CW. The man requested police assistance and provided the Complainant’s description.
The second telephone communication
A woman called 911 requesting police attendance in dealing with the Complainant. The Complainant was being verbally and physically aggressive. The Complainant was on the ground with the CW.
GOVA Bus Video
On January 7, 2022, at 9:08 a.m., SIU requested that the GSPS provide videos of their interaction with the Complainant. On January 31, 2022, at 11:06 a.m., GSPS provided the SIU with four Sudbury GOVA transit bus videos. [4] The following is a summary of the relevant footage. The Complainant appeared in the rear view of a bus. He appeared to point a finger at a passenger on the bus. The Complainant hit a man on the head. The Complainant exited the bus, and then got into a confrontation with a man standing at the platform. A physical fight [5] was observed in the video. The Complainant and the man were heard making derogatory remarks. The Complainant got into another bus from the front step. The CW directed him to get out of the bus.
Transit Station Video
On January 7, 2022, at 9:08 a.m., the SIU requested that the GSPS provide all recordings of their interaction with the Complainant. On January 12, 2022, at 10:42 a.m., the GSPS provided the SIU with the transit station videos. There were seven videos. The following is a summary of the relevant footage.The Complainant spoke with the CW on Cedar Street at Sudbury Transit Lane.
The Complainant became aggressive by flailing his arms towards the CW. He hit the CW with his shoulder, and walked away from him in an eastward direction of travel, on Cedar Street towards platform A of the Sudbury GOVA transit station.
The Complainant walked backwards on Cedar Street, flailed his arms, made gestures with his hands, and raised the middle finger towards the CW. At platform A, the Complainant boarded a GOVA bus. He was directed to get out of the bus.
The Complainant got out of the bus and, moments later, charged towards the CW. The CW stepped backwards, and the Complainant continued to charge towards the CW.
The CW took the Complainant down in a controlled take-down, his back to the ground. The Complainant was seen on the video struggling. He was subsequently arrested, and handcuffed with his hands behind his back.
GSPS police officers arrived and took custody of the Complainant. He continued to be aggressive, made kicking actions and repeatedly pulled away from police officers. He was taken down to the ground towards the rear of a police vehicle.
The Complainant was taken to WO #4’s marked police vehicle. It took all three police officers to take the Complainant to the police vehicle; he continued to resist and pull away from the police officers and was aggressive. WO #4 drove away in a marked police vehicle with the Complainant seated in the rear seat.
Custody Cell Video
On January 7, 2022, at 9:08 a.m., the SIU requested that the GSPS provide all recordings of their interaction with the Complainant. On January 12, 2022, at 10:20 a.m., GSPS provided the SIU with the custody cell footage. The following is a summary of the video.The first video recording started at 1:36 p.m. - the Complainant’s arrival at the GSPS facilities. The last recording was at 6:29 p.m. - the Complainant’s departure from the GSPS facilities to the HSN, transported by the paramedics.
A marked police vehicle parked behind a cube van in the sally port. The Complainant was inside the rear passenger seat of the marked police vehicle.
The SO and WO #4 took the Complainant from the marked police vehicle to the booking area of the GSPS facilities through the door marked ‘P22’. The Complainant was handcuffed with hands behind his back. Shortly thereafter, the SO talked to the Complainant. The SO held his right arm, and WO #1 was also present next to them.
The Complainant charged towards WO #1 in an aggressive manner, and he used his right hand to push the Complainant away from him by placing his hand on the Complainant’s chest. The Complainant did not get closer and could not charge into WO #1 any further.
The SO used both of his hands to control the Complainant’s aggressive behaviour. The Complainant again charged towards WO #1 in an aggressive manner. The SO took the Complainant down towards a bench next to the hallway.
The Complainant continued to kick his legs towards the police officers. The Complainant was then taken to the floor of the booking-in area where he was searched by the police officers.
WO #1 and the SO took the Complainant through a door marked ‘P40’ towards a cell. He dragged his feet and was not walking at all. He was placed on a bench inside a cell.
WO #3 removed the Complainant’s handcuffs. The Complainant tried to get up from the bench and walk in the cell. He could not walk, and was unable to put weight on his left leg and fell down.
The Complainant limped and held his left leg up. He spoke to police officer outside his cell.
Shortly thereafter, the Complainant was placed on a stretcher by police officers.
Paramedics straightened the legs of the Complainant, who was in pain.
Materials Obtained from Police Service
The SIU obtained, and reviewed the following records from the GSPS:- Arrest Report;
- Communications recordings;
- Custody video footage;
- Security camera video footage from GOVA transit authority;
- Event Details;
- Prisoner Log;
- Supplementary Report;
- Notes of witness officials;
- Officer list; and
- Witness list.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included a review of video footage that essentially captured the events in question in their entirety. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.
In the early afternoon of January 4, 2022, GSPS officers were dispatched to the GOVA transit terminal at 9 Elm Street. Reports had been received of a male – the Complainant – fighting with a transit security officer – the CW.
The CW had moments prior confronted the Complainant about an assault he had reportedly perpetrated on another transit user on the bus from which he had disembarked at the terminal. The CW attacked the security guard when the CW attempted to prevent him from boarding a bus. The CW defended himself, taking hold of the Complainant, bringing him to the ground, and handcuffing him behind the back pending the arrival of the police.
The SO, in the company of his partner, WO #1, arrived at the station and took custody of the Complainant. They exchanged their handcuffs for the CW’s and escorted the Complainant to their vehicle. The Complainant struggled with the officers, and kicked at their vehicle. The SO responded by grounding the Complainant and keeping him floored for a period of time.
The Complainant was eventually brought to his feet and placed in the rear of another cruiser arriving at the scene. He was taken in that cruiser to the police station.
The Complainant’s hostility returned at the police station, prompting the police officers to again take him to the ground. In that position, the officers searched his person before lifting him to his feet and lodging him in a cell.
At hospital later that evening, the Complainant having been taken there by paramedics after he complained of pain, he was diagnosed with a fractured left knee.
In the early afternoon of January 4, 2022, GSPS officers were dispatched to the GOVA transit terminal at 9 Elm Street. Reports had been received of a male – the Complainant – fighting with a transit security officer – the CW.
The CW had moments prior confronted the Complainant about an assault he had reportedly perpetrated on another transit user on the bus from which he had disembarked at the terminal. The CW attacked the security guard when the CW attempted to prevent him from boarding a bus. The CW defended himself, taking hold of the Complainant, bringing him to the ground, and handcuffing him behind the back pending the arrival of the police.
The SO, in the company of his partner, WO #1, arrived at the station and took custody of the Complainant. They exchanged their handcuffs for the CW’s and escorted the Complainant to their vehicle. The Complainant struggled with the officers, and kicked at their vehicle. The SO responded by grounding the Complainant and keeping him floored for a period of time.
The Complainant was eventually brought to his feet and placed in the rear of another cruiser arriving at the scene. He was taken in that cruiser to the police station.
The Complainant’s hostility returned at the police station, prompting the police officers to again take him to the ground. In that position, the officers searched his person before lifting him to his feet and lodging him in a cell.
At hospital later that evening, the Complainant having been taken there by paramedics after he complained of pain, he was diagnosed with a fractured left knee.
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, while in the custody of the GSPS on January 4, 2022, complained of pain, and was taken to hospital and diagnosed with a serious injury. The SIU identified the SO as the subject official for purposes of its ensuing investigation. The investigation is now concluded. 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 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.
Given what they understood of his assaultive behaviour at the bus terminal via the 911 calls that had come in, and what they personally gathered upon their arrival at the scene, I am satisfied that the SO and WO #1 had grounds to take the Complainant into custody for trespass and assault. Once in lawful custody, the officers were further entitled to control the Complainant’s movements and to take reasonable measures towards that end.
I am further satisfied that the SO used only legally justified force in his dealings with the Complainant. For whatever reason, the Complainant was violently disposed at the times in question. He had reportedly assaulted a transit user and the CW, and continued his belligerence in his dealings with the SO and WO #1. In the circumstances, the SO was entitled to apply a measure of force to subdue the Complainant and the tactic he chose, a takedown, was one reasonably available in the circumstances. In that position, the officer could expect the Complainant’s agitation to abate to some extent with the added restraint of movement and without need for any strikes by the officers. It should be noted that the takedown appears to have been performed in a relatively controlled manner without undue force having been brought to bear. The same may be said of the takedown at the station. It too seems a legitimate tactic given the Complainant’s hostility and the need to search him before lodging him in cells. Again, no strikes of any kind were delivered by the officers.
At the conclusion of the investigation, it remains unclear whether the Complainant’s knee injury was incurred by the police or in his altercation with the CW. Be that as it may, as I am satisfied that the SO comported himself lawfully throughout his engagement with the Complainant, there is no basis for proceeding with criminal charges against the officer. The file is closed.
Date: May 5, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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.
Given what they understood of his assaultive behaviour at the bus terminal via the 911 calls that had come in, and what they personally gathered upon their arrival at the scene, I am satisfied that the SO and WO #1 had grounds to take the Complainant into custody for trespass and assault. Once in lawful custody, the officers were further entitled to control the Complainant’s movements and to take reasonable measures towards that end.
I am further satisfied that the SO used only legally justified force in his dealings with the Complainant. For whatever reason, the Complainant was violently disposed at the times in question. He had reportedly assaulted a transit user and the CW, and continued his belligerence in his dealings with the SO and WO #1. In the circumstances, the SO was entitled to apply a measure of force to subdue the Complainant and the tactic he chose, a takedown, was one reasonably available in the circumstances. In that position, the officer could expect the Complainant’s agitation to abate to some extent with the added restraint of movement and without need for any strikes by the officers. It should be noted that the takedown appears to have been performed in a relatively controlled manner without undue force having been brought to bear. The same may be said of the takedown at the station. It too seems a legitimate tactic given the Complainant’s hostility and the need to search him before lodging him in cells. Again, no strikes of any kind were delivered by the officers.
At the conclusion of the investigation, it remains unclear whether the Complainant’s knee injury was incurred by the police or in his altercation with the CW. Be that as it may, as I am satisfied that the SO comported himself lawfully throughout his engagement with the Complainant, there is no basis for proceeding with criminal charges against the officer. The file is closed.
Date: May 5, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
- 2) The SO and WO #1 were in an unmarked police vehicle. Both police officers were working as a tactical unit. There was some disagreement between callers regarding whether the suspect was a male or female. Other descriptors included the fact that the suspect was wearing blue jeans, a black coat, and a red and black checker scarf. [Back to text]
- 4) Four videos were obtained from three GOVA Sudbury transit buses. [Back to text]
- 5) A series of kicks and punches were observed between the Complainant and the man. [Back to text]
Note:
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.