SIU Director’s Report - Case # 22-OCI-139
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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.
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 the serious injury a 41-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On May 29, 2022, at 1:46 a.m., the Greater Sudbury Police Service (GSPS) contacted the SIU and reported the following. On May 28, 2022, at approximately 6:53 p.m., members of the GSPS responded to a residence in Worthington for a wellness check. They were there to check on the well-being of the Complainant at the request of his father. When the officers decided that they were going to apprehend the Complainant under the Mental Health Act (MHA), he became combative and fought with the officers. A conducted energy weapon (CEW) was deployed, and the Complainant was grounded.
The Complainant was transported to Health Sciences North (HSN) where he was held under the MHA. While at the hospital it was determined that the Complainant had a fractured nasal bone.
The involved officer was the Subject Official (SO).
The Team
Date and time team dispatched: 05/29/2022 at 9:09 a.m.Date and time SIU arrived on scene: 06/01/2022 at 7:10 a.m.
Number of SIU Investigators assigned: 2
Affected Person (aka “Complainant”):
41-year-old male; interviewed and medical records obtainedThe Complainant was interviewed on June 1, 2022.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Not interviewed (declined)
CW #3 Interviewed
The civilian witnesses were interviewed between June 2 and 8, 2022.
Subject Official
SO Declined interview and to provide notes, as is the subject official’s legal rightWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
The witness officials were interviewed on June 14, 2022.
Evidence
The Scene
The scene was a private residence in Worthington.SIU investigators attended the scene on June 14, 2022. No physical evidence was obtained.
Physical Evidence
CEW Analysis
The CEWs used by GSPS were Taser 7s. The data downloaded from the CEWs were obtained from GSPS.CEW #1 – WO #1
On May 28, 2022, at 7:41:07 p.m., [1] a trigger pull was detected and probes from Bay 1 were discharged. There was an electrical discharge totaling 5.04 seconds.
At 7:41:29 p.m., a trigger pull was detected and probes from Bay 2 were discharged. There was an electrical discharge totaling 4.95 seconds.
CEW #2 – SO
On May 28, 2022, at 7:40:58 p.m., a trigger pull was detected and probes from Bay 1 were discharged. There was an electrical discharge for a total of 4.91 seconds.
Video/Audio/Photographic Evidence [2]
Police Communication Recordings
The following is a summary of the police communications recordings, as captured on the Computer-assisted Dispatch Report (CAD).At about 5:57 p.m., CW #1 contacted police to report that his son, the Complainant, was at their house and acting erratically.
At 6:12 p.m., CW #1 reported that he and his wife were overwhelmed with the Complainant’s behaviour. He had broken their dishes, pulled the stove out of the wall, and ripped down their paintings.
At 7:42 p.m., the Complainant was reported to be in police custody.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from GSPS between May 31, 2022, and June 9, 2022:- Policy - Prisoner Care and Control;
- Policy - Arrest;
- Arrest Report;
- Supplementary Occurrence Report (x2);
- Officer and Witness List;
- Communications recordings;
- CAD Report;
- Notes – WO #4;
- Notes – WO #3;
- Notes – WO #5;
- Notes – WO #2;
- Notes – WO #1;
- Policy - Police Response to Persons in Crisis; and
- CEW data downloads.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - Medical records of the Complainant from HSN.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant, several officers involved in his arrest, and civilians who witnessed the incident in parts, gives rise to the following scenario. As was his legal right, the SO declined an interview with the SIU or to authorize the release of his notes.
In the evening of May 28, 2022, GSPS officers were called to a residence in Worthington. The call came from the Complainant’s stepfather – CW #1. The Complainant was in mental health distress at the time. He had attended at his parents’ residence and began to behave erratically, at one point engaging in a minor physical scuffle with CW #1. Unable to calm the Complainant and concerned for his well-being, CW #1 contacted police.
The SO, in the company of WO #2, arrived at the address at about 6:40 p.m. The officers spoke with the Complainant’s mother and learned of his mental health challenges. The Complainant was outside beside his van, upset and yelling incoherently. He variously accused the officers of being aliens and the devil. The SO and WO #2 attempted to speak with the Complainant to de-escalate his behaviour, but to no avail. The Complainant climbed onto the roof of the van and threatened to jump into the windshield of an adjacent vehicle. The officers decided to call for help.
At about 7:40 p.m., WO #1 (a tactical officer) and WO #3 arrived on scene. By this time, the Complainant had climbed down the roof of his van and entered the vehicle. WO #1 approached the driver’s side of the van with a shield in hand. With him was WO #2. WO #3 and the SO approached the passenger side. The sliding doors on the van were opened on both sides. The WO #1 was the first to make contact. He spoke to the Complainant, who was at the back of the vehicle with his back against the rear door, and appeared to be making some progress. The Complainant approached WO #1’s position as if to give himself up, but then started kicking at the officer’s shield. WO #1 reacted by discharging his CEW. The SO did the same from the other side of the van. The Complainant screamed in pain but was not completely incapacitated by the shocks. WO #1 entered the van, positioned himself behind the Complainant and fired his CEW again, this time at the Complainant’s back. From the passenger side, WO #3 and the SO were able to pull the Complainant out of the van onto the ground. Just before doing so, the Complainant spit at the SO, and the officer reacted by punching him in the face.
Once on the ground by the vehicle, the officers were able to overcome the Complainant’s resistance and handcuff him behind his back.
Following his arrest, the Complainant was taken from the scene to hospital by the police. He was held for examination under the MHA and diagnosed with fractures of the nose.
Relevant Legislation
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,
Section 17, Mental Health Act -- Action by police officer
(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or(c) has shown or is showing a lack of competence to care for himself or herself,
(d) serious bodily harm to the person;(e) serious bodily harm to another person; or(f) serious physical impairment of the person,
Analysis and Director's Decision
The Complainant suffered a fractured nose in the course of his apprehension by GSPS officers on May 28, 2022. One of the officers – the SO – was identified as the subject official in the ensuing SIU 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.
Based on the information the officers had received of CW #1’s 911 call, what they learned directly from speaking with the Complainant’s mother, and what they observed of the Complainant’s behaviour at the scene, the officers were within their rights in seeking to arrest the Complainant under section 17 of the MHA.
With respect to the force used by the officers in the Complainant’s arrest, in particular, the punch delivered by the SO that likely broke the Complainant’s nose, I am unable to reasonably conclude that it was excessive. The CEW discharges inside the van by WO #1 and the SO appear to have been a measured and proportionate response in the circumstances. As the officers were operating in a confined space with a belligerent individual kicking in their direction, there was a need to neutralize the Complainant’s resistance from a distance as quickly as possible in the interests of their mutual safety. The same may be said of the punch struck by the SO. Having just been spit at, the officer was entitled to quickly deter the prospect of further assault by the Complainant.
In the result, while I accept that the SO is likely to have broken the Complainant’s nose, I am not satisfied that the injury is attributable to any unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: September 26, 2022
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The times are derived from the internal clocks of the weapons, and are not necessarily synchronous between weapons and with actual time. [Back to text]
- 2) 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]
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.