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 reportedly sustained by a 36-year-old man during his arrest on September 21, 2017.

Notification of the SIU

At approximately 12:15 p.m. on September 21, 2017, the Greater Sudbury Police Service (GSPS) notified the SIU of the Complainant’s custody injury.

The GSPS reported that on September 21, 2017, at 12:09 a.m., the Complainant called the police to report he was a victim of a sexual assault. GSPS police officers responded to the call and found that the Complainant in front of a residence. The police officers noticed that the Complainant’s behaviour was odd. In due course, they checked his name on the police computer and discovered that the Complainant had an outstanding arrest warrant for fraud related offences.

At first, the Complainant was compliant, allowing the police officers to arrest him and place him in handcuffs. However, once the Complainant was escorted to a police cruiser to be searched, he resisted. The Complainant kicked one of the police officers, as a result of which he was forced to the ground. The Complainant continued to resist the police officers and received a cut to his forehead. He was taken to the hospital for treatment of the cut and received seven stitches. Shortly thereafter, he was discharged and returned into the custody of the police and transported to the police station.

In the morning, when the Complainant was being readied for court, he complained of a sore shoulder. He was returned to the hospital where he was diagnosed with a broken left shoulder. The Complainant was treated for his shoulder injury and was then returned to the custody of the police.

The Team

Number of SIU Investigators assigned: 2

Number of SIU Forensic Investigators assigned: 1

Complainant:

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

Civilian Witnesses

CW #1 Interviewed

Witness Officers

WO #1 Interviewed, notes received and reviewed

Subject Officers

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

SO #2 Declined interview and to provide notes, as is the subject officer’s legal right

On September 21, 2017 at about 12:06 a.m., a 911 call was received by the GSPS regarding a man [now determined to be the Complainant] who was apparently in the area of Keziak Court and Lloyd Street in the City of Sudbury claiming he had been sexually assaulted while walking down the street. Witness Officer (WO) #1, Subject Officer (SO) #1, and SO #2 were dispatched to investigate. The Complainant was subsequently arrested on an outstanding warrant for fraud charges and transported to the hospital where he received seven sutures for a cut above his left eye.

Thereafter, the Complainant was returned to the custody of the police and lodged in the cells. At 8:14 a.m., when the Complainant was about to be transported to court, he complained of pain in his left shoulder. He was then transported to the hospital a second time.

Nature of Injury/Treatment

As a result of X-rays, it was determined that the Complainant had sustained a left distal clavicle (collarbone) fracture. His left shoulder was placed in a sling and his injury was expected to heal naturally.

The Scene

The Complainant was arrested in front of a private residence in the City of Sudbury. The scene was held for SIU purposes.

Physical Evidence

Photos were taken of the injuries to the Complainant. These photos reveal an abrasion to the end of the Complainant’s nose, a large abrasion, which appears to be similar to “road-rash,” is directly above his left eye and there is a laceration, which appears to have been sutured, further above his left eye just below the hairline. The Complainant’s left arm is in a sling and he has some other small abrasions to his leg and arm.

Forensic Evidence

No submissions were made to the Centre of Forensic Sciences.

Video/Audio/Photographic Evidence

GSPS Booking Recording

The recording was made on September 21, 2017, beginning at 2:04:44 a.m. The recording had no audio and showed the following:

At 2:04:44 a.m., the Complainant stood handcuffed with his hands behind his back in front of the booking desk. He was wriggling his fingers on both hands;

At 2:05:32 a.m., the Complainant was searched by an unidentified uniform police officer. The Complainant showed no signs of having been injured;

At 2:08:40 a.m., the search was completed;

At 2:09:11 a.m., the Complainant’s handcuffs were removed;

At 2:09:24 a.m., the Complainant easily raised both arms to shoulder height and then stretched them out at his sides. After which he raised his arms above his head and held them there for a short period of time;

At 2:09:53 a.m., the Complainant held his arms straight out in front of him at eye level;

At 2:10:35 a.m., the Complainant entered a room off the booking area and walked off camera. He was monitored by an unidentified police officer who stood in the doorway;

At 2:13:18 a.m., the Complainant exited the room minus his shoes and jacket;

At 2:13:23 a.m., the Complainant was escorted off camera. He was holding up his belt-less pants with his left hand. He did not show any signs of discomfort or pain; and

At 2:13:29 a.m., the recording stopped.

GSPS Booking Area Recording

The recording was made on September 21^st, 2017, beginning at 8:13:51 a.m. The recording had no audio and showed the following:

At 8:13:51 a.m., the recording began;

At 08:14:06 a.m., the Complainant walked into camera view. He was holding his left shoulder with his right hand. The Complainant appeared to be in pain;

At 8:14:16 a.m., the Complainant turned towards the camera. He had a cut above his right eye. The Complainant grimaced in pain and was hunched over;

At 8:14:46 a.m., the Complainant took a seat on the bench in the booking area. He was dressed in a T-shirt and pants;

At 8:16:56 a.m., the Complainant was hunched over at the waist with his head down by his knees and he appeared to be in pain;

At 8:22:15 a.m., the Complainant got up off of the bench and exited the booking area via a door to the right of the camera;

At 8:41:51 a.m., the Complainant reappeared on a stretcher, wrapped in a blanket, and in the company of two paramedics. He was wheeled through the booking area and out through a side door on the left side of the camera angle; and

At 8:42:09 a.m., the recording stopped.

GSPS Cell Recording

The recording was made on September 21, 2017, beginning at 2:13:45 a.m. The recording had no audio and showed the following:

At 2:13:45 a.m., the Complainant entered the cell and sat on the bench. He held his head in both hands;

At 2:31:10 a.m., the Complainant was given a blanket which he spread out on the bench. The Complainant alternated between either lying or sitting on the bench. He showed no visible signs of injury;

At 4:46:49 a.m., the Complainant showed the first signs of being in pain. He held his left shoulder with his right hand. He was lying on the bench;

At 8:11:26 a.m., the Complainant was awake and favouring his left shoulder;

At 8:13:18 a.m., the Complainant exited the cell and at 08:22:20 a.m., he returned to the cell;

At 8:37:06 a.m., the Complainant was seen by a paramedic and a short time later he exited the cell; and

At 8:38:14 a.m., the recording stopped.

Communications Recordings

911 Recording

The 911 recording was made on September 21, 2017, beginning at 12:06:26 a.m. and depicts the following:

The 911 operator asked the caller if police, fire, or ambulance were needed;

The caller [now determined to be the Complainant] responded with “Hello I am trying to walk up the street”;

The 911 operator asked once more if the caller needed the police, fire, or ambulance;

An upset and agitated Complainant shouted “Who do I talk to about someone trying to rape a guy walking down the road?”;

The 911 operator asked the Complainant “Did you say someone tried to rape you?” and the Complainant replied “Ya”;

The 911 operator asked the Complainant where the incident happened and the Complainant responded with “I’m walking down a road right now”;

The 911 operator asked the Complainant where he was and the Complainant replied that he was on Kingsway Avenue. The operator then asked if the ‘person’ was still there and the Complainant began to rant that several vehicles had driven by him. After that, the Complainant screamed into the telephone and everything he said was inaudible; and

The 911 operator told the Complainant to stop screaming, stating she could not understand a word he was saying. Shortly thereafter, the telephone connection dropped and the recording stopped.

Materials obtained from Police Service

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

• Procedure: Arrest
• Procedure: Use of Force
• Procedure: Police Response to Emotionally Disturbed Persons
• GSPS Booking Video
• GSPS Cell Video
• Communications Recording and 911 Call Recording
• Background Event Chronology
• Notes for WO #1
• Person Caution Flags for the Complainant
• Person Occurrence for the Complainant, and
• Person Offences Charges for the Complainant

Materials and documents obtained and reviewed from other sources:

• Medical Records for the Complainant relating to this incident

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.

Section 265, Criminal Code - Assault

265 (1) A person commits an assault when

1. without the consent of another person, he applies force intentionally to that other person, directly or indirectly
2. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
3. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

1. the application of force to the complainant or to a person other than the complainant
2. threats or fear of the application of force to the complainant or to a person other than the complainant
3. fraud; or
4. the exercise of authority

Section 266, Criminal Code – Assault

266 Every one who commits an assault is guilty of

1. an indictable offence and is liable to imprisonment for a term not exceeding five years; or
2. an offence punishable on summary conviction

Section 267, Criminal Code - Assault with a weapon or causing bodily harm

267 Every one who, in committing an assault,

1. carries, uses or threatens to use a weapon or an imitation thereof, or
2. causes bodily harm to the complainant

is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.

On September 21, 2017, at 12:26:26 a.m., a 911 call was received by the Greater Sudbury Police Service (GSPS). When the call taker asked if the caller required police, fire, or ambulance assistance, the caller began to ramble on about walking down the street. When the call taker then interrupted the caller to again ask if he wished police, fire, or ambulance, the caller, who sounded both upset and intoxicated, said, “I don’t know. Who do I talk to when someone trying to rape a guy walking down the road?” The call taker then told him that he required the police, and she took down the details. The caller was extremely difficult to understand due to his yelling and slurred speech, as well as traffic noises in the background, and the caller finally disconnected the call.

At 12:07:42 a.m., the dispatcher sent out an unknown trouble call to the area and three police officers were dispatched, Subject Officer (SO) #1, SO #2, and Witness Officer (WO) #1.

The Complainant alleges that as he was walking home after having consumed some alcohol when he was approached by two police cruisers. The Complainant indicated that he was unaware as to why the police approached him and denied that he had made the 911 call. The police officers approached him and asked him what he was doing, following which they became embroiled in an argument. The Complainant alleges that one police officer held each of his arms and they told him he was being arrested but he had no idea why and he did not believe that they had cause. The police officers then tried to push him to the ground, but he resisted. At some point, the Complainant alleges that a Conducted Energy Weapon (CEW) was deployed by one of the police officers on his left leg below the knee, which caused him to jerk involuntarily and kick out at one of the police officers.

After he kicked out, the Complainant fell to the ground, face down, and both police officers knelt on him, with one of the police officers crushing his shoulder and fracturing his clavicle. The Complainant alleges that the police officers then pushed his face into the ground and that one of the police officers had a sharp blade and used it to slash his forehead.

While SO #2 and SO #1 declined to be interviewed or to provide their memorandum book notes for review, fortunately, there was an independent civilian witness to the incident, whose evidence fully confirms the evidence of the witness officer, WO #1, as to the events which lead to the Complainant’s injuries.

According to the civilian witness (CW), #1, she heard loud voices outside of her residence and went outside where she observed the Complainant standing on the lawn, yelling in the presence of at least two uniformed police officers. CW #1 stated that the police were not in physical contact with the Complainant at that time.

One of the police officers asked CW #1 if she knew the Complainant, and when she indicated that she did not, he asked her to return to her residence and she did so, but she continued to watch the interaction from her balcony overlooking the street.

CW #1 heard the Complainant swearing and yelling and he appeared to be behaving oddly, making random statements that seemed nonsensical, including calling the police officers “Niggers” despite the fact that they were Caucasian. CW #1 described the police officers as addressing the Complainant by name, and that they appeared to know him and spoke to him calmly for about five minutes. She then heard one of the police officers tell the Complainant that they had a warrant for his arrest, after which they walked him to their cruiser and held him against the car to place him in handcuffs. CW #1 described one police officer being on each side of the Complainant, while a third officer applied the handcuffs.

Once handcuffed, the police started to search the Complainant, at which point he became violent and began pushing against them and twisting his body away from them. CW #1 described the police as then gently guiding the Complainant to the ground, while telling him to calm down and stop resisting. CW #1 described the demeanour of the police officers as stern but not loud, while she described the Complainant as continuing to thrash about on the ground as a result of which he then hit his head against the curb. CW #1 described the Complainant as then quieting moments later, and she thought that he had fallen asleep.

Subsequently, CW #1 observed an ambulance arrive and the Complainant was wrapped in a blanket, to stop his thrashing movements, and brought to his feet, at which point CW #1 saw that his head was bleeding.

The evidence of CW #1 fully confirms the evidence of WO #1, with the following additional evidence that occurred prior to CW #1 making her observations. WO #1 stated that upon his arrival, he observed the Complainant to be running on the sidewalk. When SO #1 and SO #2 arrived, the Complainant stopped running and suddenly turned to run in the opposite direction, in response to which WO #1 parked his cruiser across his path in a driveway, blocking his route.

WO #1 described the Complainant as standing on the lawn, ranting and yelling incomprehensible words, and observed him to be sweating profusely with a cell phone in his hand. WO #1 surmised that it was obvious that the Complainant was under the influence of intoxicating substances.

While the Complainant denies having made the call to 911 alleging that he had been raped, he was heard by WO #1 to yell something about being raped. When WO #1 tried to get the Complainant to identify himself, he seemed incapable of doing so, but it appeared that he was known to SO #1 who identified him by name. SO #1 then queried the computer and learned that the Complainant was wanted on an outstanding warrant for his arrest on fraud-related charges. This evidence is corroborated by the communications recording, which reveals that at 12:12:50 a.m. an officer is heard to call in and request confirmation that there was an outstanding warrant for the arrest of the Complainant, and the dispatcher confirmed that there was.

WO #1 stated that one of the other two officers then told the Complainant that he was under arrest. This evidence is also confirmed by CW #1. WO #1 then took control of the Complainant’s right arm while one of the other officers took his left, and a third applied the handcuffs.

WO #1 stated that when he placed his hands on the Complainant’s lower torso with the intention of doing a pat down search of his waist band, the Complainant suddenly kicked out backwards, purposely and aggressively, and the three police officers took him to the ground. Once on the ground, the Complainant continued to struggle and twist his body and thrash his legs, while the officers tried to hold him down, with WO #1 kneeling on his lower legs to prevent him kicking again. When WO #1 saw that the Complainant was bleeding from his forehead, he called for an ambulance.

As observed by CW #1, WO #1 advised that at no time did he deploy his conducted energy weapon (CEW). A subsequent examination of the CEWs in the possession of all three police officers confirmed that none had been deployed during the interaction with the Complainant.

On all of the evidence, I do not accept the allegations made by the Complainant that an officer deployed his CEW, striking the Complainant in the leg, and that an officer had a sharp edged weapon which he used to slash the Complainant’s head, accepting instead the evidence of the independent witness, which corroborates the evidence of WO #1 in all material aspects, and dispels the Complainant’s allegations both with respect to the use of a CEW and a sharp edged weapon. It is clear on the evidence of CW #1 that the Complainant sustained the laceration to his head when he was thrashing about on the ground and struck his head on the curb.

With respect to the fracture of the Complainant’s collarbone, I also accept the evidence of CW #1 that the Complainant was taken to the ground gently and that she observed no use of force options, nor any excessive force, deployed against him.

Having said that, however, there still remains the question as to whether or not the force used against the Complainant, which in all likelihood caused his serious injury, was excessive in the circumstances and whether or not there are reasonable grounds to believe that any of the police officers involved in the arrest of the Complainant committed a criminal offence, specifically that of assault causing bodily harm contrary to s. 267 of the Criminal Code.

In assessing whether or not the actions of the three arresting police officers amount to an excessive use of force in these circumstances, I have considered that pursuant to s. 25(1) of the Criminal Code, police officers are protected from prosecution if they are acting pursuant to their lawful duties as long as they use only as much force as is necessary for that lawful purpose.

On the record before me, it is clear that based on the information provided to the police in the 911 call, that the police were duty bound to respond and investigate the allegation made in the call that the caller had been raped on the street by someone. After arriving at the scene, it is further clear, as confirmed by the independent CW, that the Complainant was acting irrationally and appeared either to be in a mental health crisis, or was intoxicated, or a combination of both. On this evidence, it is clear that the police could not simply leave the Complainant roaming the streets in his condition, while yelling and ranting and causing a disturbance.

Thereafter, when police confirmed that the Complainant had an outstanding warrant for his arrest, it appears that executing that warrant was a sensible option to achieve the goal of removing the Complainant from the street. Based on the confirmation by the dispatcher that the arrest warrant against the Complainant was valid and still current, the police were acting within their lawful duties at the time that they pursued and apprehended the Complainant and their actions are exempt from prosecution pursuant to s. 25 (1) of the Criminal Code, as long as they used no more force than was necessary and was justified in the circumstances.

Relying primarily on the evidence of CW #1, which confirms the evidence of WO #1, I accept that the three police officers were dealing calmly with the Complainant and that no use of force options were deployed. This evidence is further supported by an examination of the CEWs in the possession of the three officers. I further accept that the injury to the Complainant’s head was caused by his own actions when he was thrashing about on the ground and banged his head on the curb. I find support in this conclusion based on the photos of the Complainant’s injuries, which reveals a “Road-rash” type injury just below the sutured laceration on his forehead, which would also confirm CW #1’s evidence that the Complainant received this injury when he made contact with the curb.

With respect to the Complainant’s fractured collarbone, I note that the medical literature (www. Mayoclinic.org) indicates that the most common causes of a broken collarbone include falls, sports injuries, and trauma from traffic accidents, and that the clavicle is one of the most commonly broken bones in the human body (https://orthoinfor.aaos.org; www.thedacare.org).

I accept on all of the reliable evidence that the three police officers dealing with the Complainant were calm and gentle when taking him to the ground, and that the taking to the ground was directly brought about by the Complainant kicking at the police officers. I further accept that the Complainant’s injury was most likely caused by his own struggling and thrashing about once on the ground, and that the Complainant’s injury would not have occurred had he not acted out in the fashion which he did. On all of the evidence, it appears evident that the Complainant caused his own injuries, both to his head and to his collarbone, because of his thrashing about.

Even if the police officers caused his injury, however, which I find to be very unlikely based on the evidence of CW #1, I cannot find their actions to have been excessive in the circumstances. In coming to this conclusion, I have considered the decision of 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.

It appears clear on all of the reliable evidence that the police were as gentle with the Complainant as was possible, while still attempting to restrain him and preventing him causing further injury either to himself or to the police officers.

On the record before me, I can find no evidence that the actions of any of the three responding police officers amounted to an excessive use of force or that there is any evidence upon which I could be satisfied that their actions fell outside of the limits of the criminal law and no charges will issue.

Date: July 12, 2018

Original signed by

Tony Loparco
Director
Special Investigations Unit