Director's Report Details

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.

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: 

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 sexual assault reportedly perpetrated by a police officer against a 23-year-old man (the “Complainant”).

Notification of the SIU

On October 2, 2022, at 3:01 p.m., the Greater Sudbury Police Service (GSPS) notified the SIU of an injury to the Complainant.

According to the GSPS, on October 2, 2022, at 12:40 a.m., the GSPS conducted a traffic stop involving the Complainant in the area of Grandview Boulevard in Sudbury. He was arrested for numerous outstanding warrants. The Complainant was transported to GSPS headquarters at 190 Brady Street and lodged in cells pending a remand in the early morning. At 10:00 a.m., the Complainant was observed to have what looked like a ball of white substance in his hand. He was making attempts to conceal the substance in his anal region. When the Complainant was approached by the cell staff, he flushed the substance down the cell toilet. A strip search was authorized by Witness Official (WO) #1. The Complainant told the officers he would not comply with the search. The Complainant was grounded, and handcuffed. At the conclusion of the search, the Complainant admitted to consuming a quantity of fentanyl. Paramedics responded and transported the Complainant to Health Sciences North (HSN) for further examination and a Computerized Tomography scan. During the assessment, a physician revealed the Complainant had sustained a right metacarpal fracture. The Complainant indicated he was injured either during the arrest or the search. The Complainant also alleged sexual assault during the search.

The Scene

On October 2, 2022, the scene presented itself at GSPS cell block facilities, 190 Brady Street, Sudbury. It consisted of a private room at the cell facilities where a strip search was conducted by several male officers.

There were cameras at the cell facilities that recorded events leading up to the entrance in the private room. There were no cameras in the private room where the strip search took place.

Video/Audio/Photographic Evidence [1]

Police Communications Recordings

The following is a summary of the pertinent communications recording.

At 12:26 a.m., a police officer alerted the dispatcher of a vehicle stop at Grandview Boulevard and Rideau Street in Sudbury.

At 12:31 a.m., a police officer alerted the dispatcher, “One in custody.”

At 12:33 a.m., a police officer asked the dispatcher for a photograph of a person wanted for a ‘fail to remain’.

At 12:34 a.m., a police officer alerted the dispatcher he had the Complainant in custody.

Cell Video

A summary of the cell video footage follows.

At 10:01 a.m., the video footage opened with a view of the booking area. At 10:07 a.m., the Complainant was escorted to the booking area. A female police officer slid a white cover over the window of a door to the right of the booking desk.

At 10:09 a.m., the Complainant was led into the room to the right of the booking desk by three police officers. The door was shut by a female police officer and a special constable.

At 10:11 a.m., the special constable swung the door open suddenly and he, and a second special constable and a police officer, rushed into the room.

The female police officer closed the door slightly (obscuring any view of the room) and stood at the door looking in.

At 10:12 a.m., the female police officer entered the room.

At 10:15 a.m., a police officer exited the room holding something white in his upturned open right palm.

At 10:21 a.m., the Complainant was led from the room and made to sit on a bench to the right of the room. The Complainant was not responsive to the police officers, and the police officers rubbed his chest and tapped him.

At 10:30 a.m., paramedics arrived and escorted the Complainant from the booking area.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from GSPS between October 11 and November 18, 2022:

• Record of Computer-assisted Dispatch;
• Communications recordings;
• General Occurrence;
• Involved Officers List;
• Notes – SEW #2;
• Notes – SEW #1;
• Notes – WO #4;
• Notes – WO #2;
• Notes- WO #5;
• Notes- WO #3;
• Notes – WO #7;
• Notes – WO #6;
• Notes – WO #1;
• Supplementary Report;
• Arrest Report;
• Prisoner Care and Control Policy;
• Search of Persons Policy;
• Arrest Policy;
• Use of Force Policy; and
• Custody/Cell video.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from other sources:

• Medical records from HSN.

The evidence collected by the SIU, including an interview with the Complainant and several members of the GSPS present at the time of the events in question, gives rise to the following scenario. As was his legal right, the SO chose not to interview with the SIU or authorize the release of his notes.

The Complainant was arrested in the early morning hours of October 2, 2022, following a traffic stop. In the course of that stop, officers had confirmed that the Complainant, a passenger, was wanted on outstanding warrants. The Complainant was taken into custody and transported to the police station.

While lodged in cells, an officer observed drugs in the Complainant’s possession and alerted the officer-in-charge – WO #1. Confronted with what he was doing, the Complainant indicated that he had flushed the drugs down the toilet. Concerned that he might still have drugs on his person, WO #1 ordered the Complainant be strip searched.

The Complainant was removed from his cell and escorted to a private room to be strip searched. The SO, and WO #6 and WO #7, were directed to conduct the search. Upon request, the Complainant gave up the shirt he was wearing. It was searched with negative results, and then returned to him. Asked to take off his pants, however, the Complainant inserted his right hand down his pants, refused to remove it when asked, and was grounded by the officers. While on the ground, the officers, assisted by two special constables, wrestled to control the Complainant, who was thrashing about. The Complainant’s pants were removed and illegal substances confiscated from them. A packet with suspected illegal drugs fell from the area of the Complainant’s anus and scrotum when his boxer shorts were pulled below his buttocks.

Following the search, the Complainant informed the officers that he had ingested about two grams of fentanyl. Paramedics were summoned to the station, examined the Complainant and took him to hospital.

Section 271, Criminal Code -- Sexual assault

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

On October 2, 2022, the GSPS contacted the SIU to report that they were in receipt of information in which it was alleged that a male – the Complainant – had been sexually assaulted by a police officer after his arrest earlier that day. The SIU initiated an investigation, naming the SO as the subject official. 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 complaint of sexual assault.

A sexual assault consists of an assault within any of its definitions in the Criminal Code that is sexual in nature and violates the sexual integrity of the victim: R v Chase, [1987) 2 SCR 293. On the question of whether the impugned contact is sexual in nature, the case law prescribes an objective test, namely, whether a reasonable observer would characterize the contact as sexual based on all the circumstances.

It would appear that the Complainant’s arrest was lawful. At the time he was taken into custody, the Complainant was wanted on a couple of outstanding arrest warrants.

I am also satisfied that the decision to strip search the Complainant, once in custody, was a lawful one. In R v Golden, [2001] 3 SCR 679, the Supreme Court of Canada made clear that strip searches cannot automatically be condoned as a legitimate exercise of the police power of search incident to arrest. Rather, given the intrusive and inherently degrading nature of strips searches, they can only be justified, inter alia, where there are reasonable and probable grounds to believe that such a search is necessary. In the instant case, WO #1 (the officer-in-charge) authorized the strip search after learning that the Complainant had retrieved drugs from his person while in cells and flushed them down the toilet. In the circumstances, it would appear the officer had a legitimate concern that the Complainant was still in possession of drugs, and that something more than another pat-down search was required to find them in the interests of his safety and the preservation of evidence.

Golden, supra, also requires that a strip search be conducted in a reasonable manner with a view to such factors as the place at which the search is performed, the genders of the searchers and the person searched, whether the search was authorized by supervisory personnel, and the nature and extent of any force used during the search. On this score, there is a conflict in the evidence.

On the accounts of the police officers and special constables that observed and/or participated in the strip search, it is apparent that the search unfolded in a reasonable manner. The search procedure was explained to the Complainant and conducted in a private room by male police officers at the direction of WO #1. Force was only brought to bear when the Complainant refused to cooperate in the search and placed a hand inside his pants, refusing to remove it, in what appeared an attempt to secrete drugs within his person. That force consisted in taking the Complainant to the ground and then grappling with him to overcome his resistance and complete the search. No strikes of any kind were brought to bear. It appears that the SO used a hand or his hands at one point to attempt to spread the Complainant’s buttocks apart, but this was not surprising given that the Complainant had a container of drugs secreted in that area and was clenching his buttocks at the time.

There is some contrary evidence, which, if true, could conceivably amount to a sexual assault. According to this evidence, while the Complainant was being held prone on the ground, one of the officers (presumably, the SO) inserted his fingers in his rectum and removed a package of drugs.

This rendition of events, however, is insufficiently cogent to warrant being put to the test by a court of law. The source of this evidence was dishonest in other contexts, including with respect to their name and the source of the Complainant’s injured hand, which was alleged to have been caused by the police (this injury was initially diagnosed at hospital but ultimately determined to be an old injury). For these and other reasons, it would be unsafe and unwise to rest charges on the strength of the more incriminating evidence, particularly in light of the countervailing evidence by the officers.

In the result, as there are no reasonable grounds to believe that the SO comported himself other than lawfully in his dealings with the Complainant, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: January 30, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit