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 of a 32-year-old man identified following his arrest on December 23, 2016.

Notification of the SIU

On December 23, 2016 at 12:14 p.m., the Greater Sudbury Police Service (GSPS) notified the SIU of a custody injury to the Complainant.

GSPS reported that on December 23, 2016, at 1:14 a.m., GSPS police officers went to an apartment in Sudbury regarding a disturbance. The Complainant was threatening people and the police officers arrested and grounded him. The Complainant was taken to the police station and lodged in a cell. Upon release later that morning, the Complainant complained of injury to his right hand and was taken to the hospital where he was diagnosed with a fracture.

The Team

Number of SIU Investigators assigned: 3

Complainant:

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

Civilian Witnesses

CW #1  Interviewed

CW #2  Interviewed

CW #3  Interviewed

Witness Officers

WO #1  Interviewed

WO #2  Interviewed

WO #3  Interviewed

WO #4  Interviewed

WO #5  Interviewed

WO #6  Interviewed

WO #7  Interviewed

WO #8  Interviewed

WO #9  Interviewed

WO #10  Interviewed

WO #11  Interviewed

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

SO #3  Declined interview and to provide notes, as is the subject officer’s legal right

The Scene

The Complainant was arrested outside his residence in Sudbury. This was a multi-unit building.

Communications Recordings

911 Call

On December 23, 2016, at 1:02 a.m., an acquaintance of the Complainant[1] made a 911 call and said:

• “The situation is life-threatening.”
• “[The Complainant] is threatening to stab me.”
• “He has scissors in his hand and he wants to stab people.”
• “He is [the Complainant].”
• “My name is [name of witness].”
• “[The Complainant] is 32. And he’s on mushrooms.”
• “He is [name of the Complainant].”
• “He is outside right now with scissors in his hand.”
• “He has to be subdued. He has to be restrained by cops.”
• “I’m in the parking lot right now. My door is locked.”
• “His girlfriend was afraid for her life. I don’t even know where she went. She ran off.”

Communications Recording

The police officers were told that the Complainant was threatening to stab the 911 caller with scissors and that the Complainant was on a release with conditions to abstain from the consumption of alcohol and other intoxicating substances.

Materials obtained from Police Service

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

• Civilian Witness List
• Communications Recording – 911 call
• Communications Recording – Police Communications
• Crown Brief
• Duty Roster - Day (Dec 23, 2016)
• Duty Roster - Nights (Dec 22, 2016)
• Event Chronology
• General Occurrence Report
• Witness Statement from the non-designated civilian witness
• Involved Officer List
• Notes of WO #1, WO #2, WO #3, WO #4, WO #6, WO #7, WO #8, WO #9, WO #10 and WO #11
• Photos of the Complainant’s hand and shoulder
• Prisoner Log (Part 1)
• Prisoner Log (Part 2)
• Prisoner Property Record
• Procedure - Prisoner Care and Control
• Procedure - Arrest
• Address of arrest location
• Video of GSPS cell block
• Prepared statements of WO #2, WO #3, WO #8 and WO #9, and
• Witness Statement of the Complainant (original and summary)

During the early morning hours of December 23, 2016, the Complainant was at his apartment celebrating his birthday with CW #1, CW #2, CW #3 and the 911 caller (who would not be interviewed by the SIU). The Complainant had ingested alcohol and magic mushrooms.

The Complainant got into a dispute with CW #1 and the 911 caller and pushed them out of the apartment. The Complainant punched CW #1 in the head, and the two men began to wrestle. The civilian witness who called 911 alleged that the Complainant had scissors and was trying to stab him. SO #1, SO #2 and SO #3 were the first officers to respond to the call, followed by WO #2, WO #3 and WO #11. The Complainant resisted SO #1 and SO #2’s efforts to arrest and handcuff him, and the Complainant was grounded. Once handcuffed, the Complainant was transported to the GSPS station.

When in the cells, the Complainant advised that his right hand was broken and his right shoulder was dislocated. He was transported to the hospital, where an x-ray of his right hand showed an undisplaced fracture at the base of the 5^th (smallest) finger. An x-ray of his right elbow showed there was no fracture or dislocation.

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 December 23, 2016, at approximately 1:02 a.m., a 911 call was received by the GSPS requesting assistance at an apartment in the City of Sudbury. The caller advised that the Complainant was “on mushrooms” and had scissors in his hand and wanted to stab people. He went on to describe the situation as “life threatening” and that the Complainant was threatening to stab him and needed to be subdued and “restrained by cops”. He further indicated that he was locked in his car in the parking lot and that the Complainant was “outside right now with scissors in his hand” and that the Complainant’s girlfriend was “afraid for her life” and had run off. As a result, SO #1, SO #2 and SO #3, as well as WO #2, WO #3 and WO #11, were dispatched to the scene.

According to witness statements, the Complainant was celebrating his birthday with a party at his home; present at the party were CW #1, CW #2, CW #3 and the eventual 911 caller.[2] Over the course of the evening, the Complainant does not dispute that he had consumed alcohol and ingested psilocybin in the form of magic mushrooms.

The Complainant advised that he suspected that CW #1 and the 911 caller may have drugged him. The Complainant punched CW #1 in the face. The Complainant and CW #1 wrestled in the hallway. It is not in dispute that the Complainant punched CW #1.

The 911 caller, in his statement to police, described the Complainant as going “ape-shit” after he ingested the magic mushrooms.

Upon police arrival, SO #1 and SO #3 were speaking to the Complainant inside the foyer of the building, while the 911 caller and CW #1 were outside. WO #11 observed the Complainant attempt to push past SO #1 and SO #3, who then began to wrestle with the Complainant. The 911 caller described the Complainant as resisting and kicking at the police officers, while screaming. While neither SO #1, SO #2 nor SO #3 agreed to be interviewed by SIU investigators, as is their legal right, based on the information provided by both civilian and police witnesses present, it appears clear that the Complainant was actively resisting the police officers and being assaultive towards them. WO #11 advised that while he was dealing with the non-designated civilian witness and CW #1, he had his back turned to the Complainant and the police officers trying to arrest him, but he continued to hear commands to “stop resisting”. WO #11 then turned and observed the Complainant refusing to put his hands behind his back. At some point, the Complainant was put to the ground, but none of the civilian witnesses nor WO #11 was in a position to see how that occurred; WO #11 advised that even after the Complainant was on the ground, he still continued to hear the commands to stop resisting.

The Complainant advised investigators that when he went outside, a police officer grabbed his right hand and squeezed and twisted it. In the statement of the Complainant provided to police officers on the night of the incident, the Complainant indicated that he believed that he was jumped by nine unknown people outside of his building and he thought they were police officers. The following morning, the Complainant advised WO #9, the police officer detailed to take the Complainant to hospital, that he had sustained the injury to his hand as a result of wrestling with CW #1; while he told WO #6 (the police officer responsible for monitoring persons in the cell area) that he believed his right hand was broken and his right shoulder was dislocated and this occurred when he and CW #3 were assaulted by a man the night before and he fought with that man. It is presumed that the man he referred to as fighting with him was CW #1.

When the Complainant was taken to hospital, an x-ray confirmed that he had “an undisplaced longitudinal fracture at the base of the 5^th metacarpal (the long bone in the hand which connects to the pinky finger) with satisfactory alignment”. This type of injury is commonly referred to as a “boxer’s fracture” as it is most commonly caused by hitting a hard object with your fist[3].

According to The Hand and Wrist Institute website:

The Complainant’s belief that he had also suffered a dislocated shoulder was not substantiated. According to the medical records, the Complainant also had abrasions and swelling to his left shoulder, elbow and thigh which he advised medical staff was as a result of his “being assaulted last night”. There is no indication in the medical records that the Complainant, at any time, attributed his injuries as having been caused by police officers.

On all of the evidence, it appears clear that the Complainant was intoxicated by drugs and alcohol and consequently became paranoid, irrational and assaultive. Witnesses described him as being assaultive towards police officers, and actively resisting. None of the witnesses present substantiate the Complainant’s allegation that a police officer squeezed and twisted his right hand. Even if this were true, however, it appears unlikely that this could have been the source of his hand being broken, it being far more likely that it was broken when he punched CW #1 in the head, as the Complainant indicated to several police officers on the night in question. Furthermore, while it appears clear that due to the Complainant’s active resistance and assaultive behaviour he was taken to the ground by police officers, there is no evidence that this grounding was the source of the Complainant’s injury.

Pursuant to section 25(1) of the Criminal Code, police officers are restricted in their use of force to that which is reasonably necessary in the execution of a lawful duty. Turning first to the lawfulness of the Complainant’s apprehension, it is clear from the 911 call as well as the statements of all civilian witnesses, including the Complainant himself, that the Complainant had assaulted CW #1 and was armed with a pair of scissors which he was using to threaten his party guests. Additionally, the Complainant was intoxicated and thereby in breach of court ordered conditions not to consume alcohol. As such, the apprehension and arrest of the Complainant was legally justified in the circumstances.

With respect to the amount of force used by police officers in their attempts to subdue the Complainant, unfortunately, I can put little credence, if any, in the allegations of the Complainant that a police officer grabbed his right hand and twisted and squeezed it. I find that the Complainant’s credibility, and even more so the reliability of his account, is severely damaged due to his state of intoxication and his drug induced paranoia, as well as the unreliability of allegations he made in his statement on the night of the incident that he was jumped by nine unknown persons who he believed might have been police officers. It is clear from the evidence of witnesses who observed the arrest of the Complainant, that no more than three police officers were involved in his arrest. Additionally, although the Complainant conceded a loss of memory during his interview with SIU investigators, on the night of the incident, when his memory was still fresh, he attributed his injury to his violent interaction with CW #1, not his interaction with police.

On this evidence, I find that the behavior of the arresting police officers was justified in the circumstances and that they used no more force than necessary to subdue the Complainant who was clearly out of control, kicking at police officers, resisting and screaming (according to the 911 caller), and trying to push past the officers (according to CW #11). Although it is possible that the Complainant suffered the injury to his hand when he was taken to the ground by police officers, I find that it is more than likely that the Complainant suffered the fracture to his hand when he punched CW #1 in the head; however, even if it were caused by the police officers’ taking the Complainant to the ground in their efforts to subdue him, I cannot find that to have been an excessive use of force. On this record, it is clear that the force used by SO #1, SO #2 and SO #3 progressed in a measured and proportionate fashion to meet and overcome the Complainant’s resistance and assaultive behaviour, and fell within the range of what was reasonably necessary in the circumstances to effect his lawful detention. 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:

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

In the final analysis, I am satisfied for the foregoing reasons that the Complainant’s detention and the manner in which it was carried out were lawful notwithstanding the injury which he suffered, even were I to find that the officers caused the injury, which I am not inclined to do. I am, therefore, satisfied on reasonable grounds on this record that the actions exercised by the police officers fell within the limits prescribed by the criminal law and thus no charges will issue.

Date: October 13, 2017

Original signed by

Tony Loparco
Director
Special Investigations Unit

Endnotes

• 1) [1] That individual did not respond to SIU attempts to arrange an interview. [Back to text]
• 2) [2] Who did not respond to SIU requests for an interview and was thus not given a designation in this report. His information is distilled from the 911 call and a statement that he provided to the GSPS. [Back to text]
• 3) [3] Wheeless’ Textbook of Orthopedics: www.Wheelessonline.com; www.orthosports.com; https://radiopaedia.org/articles/boxer-fracture-1; www.handandwristinstitute.com/boxers-fracture-doctor/etc. [Back to text]