Director's Report Details

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.

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.

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 serious injury sustained by a 44-year-old man (Complainant) during his arrest on November 16, 2017.

Notification of the SIU

At approximately 5:51 a.m. on November 16, 2017, the Greater Sudbury Police Service (GSPS) reported that on that same date at 2:39 a.m., the Complainant was involved in a motor vehicle collision following a short pursuit. The Complainant then ran from the vehicle and was chased on foot by the SO. The Complainant was taken to the ground in the area of 1199 Marcus Drive in the City of Sudbury. The Complainant complained of shoulder pain and was taken to a hospital where he was diagnosed with a fractured collar bone. The Complainant was treated and returned to police custody.

The Team

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Complainant:

44-year-old male interviewed, medical records obtained and reviewed

Civilian Witnesses

No civilian witnesses were located or came forward to be interviewed.

Witness Officers

WO #1 Interviewed, notes received and reviewed

WO #2 Interviewed, notes received and reviewed

WO #3 Interviewed, notes received and reviewed

WO #4 Interviewed, notes received and reviewed

Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right

The Scene

The incident took place in the parking lot of the Lowe’s Store in the City of Sudbury. The ground was snow covered at the time.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

Lowe’s Security Video:

There were two external security camera videos obtained from Lowe’s. The camera at the rear of the building showed a small SUV driving in reverse, and a police car with emergency lights activated driving towards the SUV. There appeared to be approximately two to three car lengths between the two vehicles. Both vehicles turned at a corner of the building and proceeded out of view.

The second camera, at the front of the building, showed both vehicles moving across the front of the building and out of view. The position and separation of both vehicles had not changed. An ambulance arrived ten minutes later.

The SUV collision with a storage shed and subsequent foot pursuit and arrest of the Complainant were not captured by the security cameras.

Communications Recordings

The Police Transmission Communications Recordings were obtained and reviewed.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the GSPS

• Arrest Report
• Cell Video
• Police Transmission Communications Recordings
• Event Details Report
• Traffic Report
• Officer Lists
• Photos of Car at Lowe’s (3)
• Photo of the Complainant
• Traffic Report, and
• Notes and Written Statements of WOs #1-4

The SIU obtained and reviewed the following materials and documents from other sources:

• Medical records of the Complainant relating to this incident, and
• Surveillance video from Lowe’s Store

Nature of Injury/Treatment

The Complainant was diagnosed with a three-part fracture of the right clavicle (collarbone) for which he was placed in a shoulder immobilizing sling. He was also observed to have a laceration above his left eyebrow which was sutured.

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

1. as a private person
2. as a peace officer or public officer
3. in aid of a peace officer or public officer, or
4. 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.

On November 16, 2017, at approximately 2:40 a.m., the SO and WO #1 of the Greater Sudbury Police Service (GSPS) were on general patrol in a marked police vehicle when they observed a motor vehicle parked in the Lowe’s parking lot in the City of Sudbury. The officers approached the motor vehicle and observed that a male was sleeping in the car. The police officers shone a light into the car and were able to rouse the sleeping male, the Complainant, who awoke and appeared disoriented. The Complainant panicked at the sight of the officers, put his vehicle into reverse, and backed away from the police vehicle at slow speed. The officers followed at slow speed some two to three car lengths behind with their emergency lighting system activated. The Complainant was unable to see properly as he was reversing because the rear window was snow covered, and he backed into a storage shed in the Lowe’s parking lot. The Complainant then exited his vehicle and ran.

As a result of the fact that the Complainant had just caused damage to Lowe’s property, the SO and WO #1 pursued the Complainant on foot. The Complainant ignored the SO’s direction to stop running and, on varying accounts in the evidence, was either tackled from behind by the SO or had his jacket grabbed by the SO, resulting in both falling to the ground with the SO landing on top of the Complainant. As both men fell, the Complainant’s torso made contact with the ground, fracturing his collarbone.[1]

The Complainant was then picked up and escorted to the police cruiser. The Complainant was not handcuffed, due to his injury, but was seated on the curb while police requested an ambulance attend. Additional police officers and an ambulance then arrived and the Complainant was transported to hospital where he was diagnosed with a broken collarbone.

The question for determination is whether the SO resorted to an excessive use of force when he either tackled, or grabbed onto, the Complainant and they both went to the ground with the SO landing on top of the Complainant, resulting in the fractured collarbone and the laceration to the Complainant’s forehead. Pursuant to s. 25(1) of the Criminal Code, police officers are immune from criminal liability when they use force if they are acting in furtherance of their lawful duties, and if they use only as much force as is reasonably necessary to effect their lawful purpose. On this record, I have no hesitation in finding that both the SO and WO #1 were carrying out their lawful duties first, in investigating why a motor vehicle was parked in the Lowe’s parking lot overnight with the Complainant sleeping inside, and then later, in apprehending the Complainant after he had caused damage to the storage sheds on display in the lot. As such, the actions of the SO in both pursuing and arresting the Complainant were lawful, based on reasonable grounds, and in accordance with his duties.

I further have no hesitation in finding that when the Complainant exited his vehicle and ran, after causing damage to the Lowe’s property, he left the SO with few options other than to pursue him and to stop him fleeing. The grounding, in my view, was a reasonable option available to the SO to stop a fleeing suspect who had given every indication that he was intent on escaping apprehension. In the circumstances, while the Complainant’s injuries were unfortunate, I cannot find on these facts that the SO resorted to any more than reasonably necessary force required to achieve his lawful purpose.

In coming to this conclusion, I am mindful of the state of the law as set out by the Supreme Court of Canada in R. v. Nasogaluak [2010] 1 S.C.R. 206, as follows:

Police actions should not be judged against a standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell(1981), 60 C.C.C. (2d) 211 (B.C.C.A.):

In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [p. 218]

Additionally, I have considered the decision of the Ontario Court of Appeal in R. v. Baxter (1975) 27 C.C.C. (2d) 96 (Ont. C.A.), that officers are not expected to measure the degree of their responsive force to a nicety.

In conclusion, on this record, I find that the evidence does not provide me with the necessary grounds for the laying of criminal charges, and none shall issue.

Date: August 8, 2018

Original signed by

Joseph Martino
Acting Director
Special Investigations Unit

Endnotes

• 1) [1] There is a suggestion that the SO, once down with the Complainant, pushed the Complainant’s head into the ground causing him to strike his forehead and resulting in a laceration above his left eyebrow. However, I discount that scenario based on the weight of the reliable evidence. For example, WO #1, who was about three metres from the SO and the Complainant when they made contact and fell to the ground, did not indicate that she saw her partner pushing the Complainant’s head into the ground or any untoward conduct of any kind. In the circumstances, I believe it far more likely that the Complainant’s cut was an incidental injury occurring when he was grounded by the SO, and not the product of a separate and intentional push following the fall. [Back to text]