SIU Director’s Report - Case # 24-OCI-217

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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 Personal Privacy Act

Pursuant to section 14 (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.

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

  • 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 of a 37-year-old man (the “Complainant”).

The Investigation

Notification of the SIU[1]

On May 23, 2024, at 12:14 a.m., the Greater Sudbury Police Service (GSPS) notified the SIU of an injury to the Complainant.

According to the GSPS, on May 22, 2024, at around 4:00 p.m., the Complainant was found in the driver’s seat of a vehicle at Cedar Street and Paris Street, Sudbury, by Witness Officer (WO) #1. The Complainant was subject two outstanding arrest warrants. WO #1 advised the Complainant that he was under arrest. The Complainant attempted to start the car, but WO #1 grabbed his arm to stop him. The Complainant pulled away to the passenger seat, then into the back seats. While he was in the back seat, WO #1 used his conducted energy weapon (CEW). The Complainant locked-up but was able to rip away a wire from a prong. The CEW was deployed a second time and he ripped out the prong. WO #1 proceeded to drive-stun the Complainant without success, after which the officer struck him several times. The Complainant was handcuffed, and his legs were hobbled. He was placed in the back seat of a cruiser and, while en route to the station, kicked out a window and bent the door frame. At the station, the staff sergeant had Emergency Medical Services (EMS) examine the Complainant and they determined that no serious injuries were evident. At 4:25 p.m., the Complainant was placed in cells awaiting a bail hearing. At 6:10 p.m., a new staff sergeant was advised that the Complainant was complaining of a sore neck. He was transported to Health Sciences North (HSN) and diagnosed with a fractured C6, and possibly C5, vertebra. HSN advised that it would be best for him not to return to custody and GSPS released the Complainant at the hospital.

The Team

Date and time team dispatched: 2024/05/23 at 7:14 a.m.

Date and time SIU arrived on scene: 2024/05/23 at 8:00 a.m.

Number of SIU Investigators assigned: 4

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

37-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on May 25, 2024.

Civilian Witnesses (CW)

CW #1 Interviewed

CW #2 Interviewed

The civilian witnesses were interviewed on May 25, 2024.

Subject Official (SO)

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

Witness Officials (WO)

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

WO #5 Not interviewed; notes reviewed and interview deemed unnecessary

WO #6 Not interviewed; notes reviewed and interview deemed unnecessary

WO #7 Not interviewed; notes reviewed and interview deemed unnecessary

WO #8 Not interviewed; notes reviewed and interview deemed unnecessary

WO #9 Not interviewed; notes reviewed and interview deemed unnecessary

WO #10 Not interviewed; notes reviewed and interview deemed unnecessary

The witness officials were interviewed between May 31, 2024, and June 10, 2024.

Evidence

The Scene

The events in question transpired at three locations.

The first scene was in and around a pick-up truck stopped on Cedar Street, a one-way street, west of its intersection with Paris Street, Sudbury.

The second scene was in and around a stopped police cruiser in the underground car park of the GSPS station.

The third scene was the booking area of the GSPS station.

Forensic Evidence

CEW Deployment Data – WO #1

GSPS provided the SIU with the download report of the CEW issued to WO #1. There were four recorded trigger deployments on May 22, 2024. The first trigger deployment was at 3:56:31 p.m., from bay one; electricity was discharged for about five seconds. The second deployment was at 3:56:39 p.m., from bay two; electricity was discharged for about five seconds. The right arc button was pressed at 3:57:06 p.m., activating the third deployment; electricity was discharged for about five seconds. The fourth activation was a trigger deployment at 3:57:16 p.m.; electricity was discharged for about five seconds.

Video/Audio/Photographic Evidence[2]

GSPS Communications Recordings

The dispatch radio communications recordings commenced at 3:40 p.m., May 22, 2024, and went for 17 minutes and 33 seconds.

WO #1 requested the radio dispatcher check the name of the Complainant. The dispatcher advised WO #1 that the Complainant was wanted on a bench warrant and was in breach of probation. The radio dispatcher warned that the Complainant had cautions for violence, including assault with weapon offences and firearm offences. The dispatcher arranged for back-up units to assist WO #1.

At 3:56:49 p.m., an unidentified male officer advised that the Complainant was trying to run, and a physical altercation could be heard. One minute later, a male officer advised that a CEW had been deployed. For the next minute, sounds of a struggle were heard and then a male officer advised the Complainant was in custody.

At 4:00 p.m., a male officer advised hobble restraints had been applied on the Complainant. Four minutes later, WO #3 advised that the Complainant had kicked-out the window of his cruiser and freed himself of the hobble ties.

At 4:11:06 p.m., the Complainant was in the booking area.

Video Recording - GSPS Station

At 4:05:30 p.m., May 22, 2024, WO #3’s cruiser stopped in front of the sally port roller door. WO #8 and the SO opened the rear door of WO #3’s cruiser. The Complainant wriggled out and placed his feet outside the door. He was grounded by WO #8 and the SO. WO #7, the SO and WO #8 initially had the Complainant controlled; however, when WO #3 attempted to apply hobble ties, the Complainant wriggled and kicked his legs. The Complainant grabbed at the hands of WO #7 and WO #8. WO #7 delivered five strikes to the Complainant’s hip area. The Complainant wriggled and kicked at the three officers who were holding his torso, moving them around. The Complainant grabbed at WO #8’s hands, and the officer delivered a knee strike to his lower back. The Complainant again grabbed WO #8’s hand, and WO #8 delivered a fist strike to his hip and ripped his hand out of the Complainant’s grip. WO #9 arrived and assisted WO #8 around the upper chest area. WO #3 was eventually able to apply the hobble ties.

At 4:07:15 p.m., the Complainant was carried into the booking area by six officers. The Complainant was placed on his right side on the floor of the booking area. WO #8, WO #7 and WO #2 held his body and legs, and the SO placed a knee on the Complainant’s neck area. WO #1 arrived and placed a rolled blanket under the Complainant’s neck, and the SO stood up.

At 4:17:15 p.m., two paramedics arrived and provided medical assistance to the Complainant. Seven minutes later, the paramedics left, and the Complainant was escorted to a cell.

At 6:16:50 p.m., two more paramedics arrived and escorted the Complainant from the cells on a stretcher.

Photographs – Police Vehicle

GSPS provided SIU with three photographs taken of the damage caused to the window and door frame of WO #3’s cruiser, as shown in Figure 1.

Figure 1 – GSPS cruiser with a damaged rear driver side window

Video Recording – Sudbury

GSPS provided SIU with two recordings from the City of Greater Sudbury. There was no time or date-stamp on these videos.

The first recording was from a camera that faced north and captured the intersection of Paris and Cedar Streets. Twenty-one seconds into the recording, the Complainant’s vehicle travelled slowly south on Brian McKee Lane [which ran parallel and east of Paris Street] closely followed by WO #1’s cruiser. Both vehicles turned west onto Cedar Street and crossed over Paris Street, out of view.

The second recording from a camera positioned at the intersection of Paris and Louis Streets was reviewed and found to be of no evidentiary value.

Video Recording - Facebook

On May 25, 2024, SIU investigators located a video recording from an open-source social media search. A 16-second video recording, posted on a Facebook page, captured WO #1 and WO #5 kneeling on the roadway struggling with the Complainant, who was face down with his knees under him and his buttocks in the air. WO #5 sat on the Complainant’s back and WO #1 knelt next to the Complainant’s right arm, trying to pull his arm out. Eight seconds into the video, the SO arrived. As he ran to the struggle, he lowered his body, bent his knees and slid into the right side of the Complainant’s upper body area. The SO delivered three knee strikes in close succession into the Complainant’s body. The video then ended.

The Facebook page and video have since been deleted from Facebook. The individual who posted the video was not identified and did not come forward following a media release for witnesses.

Video Recording – Business #1

On June 28, 2024, the SIU obtained two video recordings that totaled 143 minutes from a business in the area of Cedar Street and Paris Street. The footage was neither date nor time-stamped. Due to the camera’s distance, individuals involved in the interaction could not be positively identified, nor could the officers’ interaction with the Complainant be deciphered.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from the GSPS between May 24, 2024, and August 26, 2024:

  • Communications recordings;
  • Computer-assisted Dispatch Report;
  • CEW deployment data;
  • Video recording - GSPS station;
  • Prisoner Log - the Complainant;
  • Arrest Report;
  • Video recording – City of Sudbury;
  • Policies for Use of Force and Arrest;
  • Notebook entries of WO #1, WO #3, WO #2, WO #5, WO #6, WO #7, WO #8, WO #9, and WO #10, and WO #4;
  • Photographs of police vehicle; and
  • Arrest Warrants for the Complainant.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between May 25, 2024, and June 28, 2024:

  • The Complainant medical records – HSN;
  • Paramedic report – Sudbury Paramedic Services;
  • Photographs – the Complainant;
  • Video recording – Facebook; and
  • Video recording – Business #1.

Incident Narrative

The evidence collected by the SIU, including interviews with the Complainant and police and non-police witnesses, and video footage that captured the incident in parts, 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.

In the afternoon of May 22, 2024, on Cedar Street west of Paris Street, WO #1 conducted a traffic stop of a vehicle operated by the Complainant. Running a check on the Complainant and learning that he was subject to two arrest warrants, WO #1 advised him he was under arrest. The Complainant refused to submit to arrest and attempted to place his vehicle in gear. Unable to do so, he climbed into the rear seats of the vehicle and tried to exit through the passenger back door. WO #5, however, had arrived to assist WO #1 with the traffic stop and prevented the Complainant’s escape via that route. WO #1 fired his CEW twice at the Complainant but, on each occasion, he was able to remove a probe from the back of his body. The Complainant kicked the rear passenger door open and was taken to the ground by the officers.

The struggle continued on the ground as additional officers arrived on scene. The Complainant was punched, kneed and stunned with a CEW several times before his arms and legs were restrained. He was placed in the rear of WO #3’s cruiser for transport to the police station. En route, the Complainant kicked at the rear driver’s door, causing damage to the vehicle, and freed himself from the leg hobbles.

Arriving at the station, in the underground parking, the Complainant was removed from the cruiser and taken to the ground by officers. He struggled as WO #3 attempted to re-secure the hobbles on his legs, at points grabbing hold of officers’ hands, and was met with several punches and a knee strike to the legs and torso. The hobble restraint was eventually affixed, and the Complainant was carried into the booking area.

The Complainant was placed on the floor on his right side in the booking area with officers nearby holding him down. The SO, positioned by the Complainant’s head, placed his right knee in the area of his head and neck.

The Complainant was processed and placed in a cell. He would eventually be taken to hospital and diagnosed with a fracture of a neck vertebra.

Relevant Legislation

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

(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,

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.

Analysis and Director’s Decision

The Complainant was seriously injured in the course of, or shortly after, his arrest by GSPS officers on May 22, 2024. The SIU was notified of the incident and initiated an investigation naming the SO 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 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.

There were two warrants in effect authorizing the Complainant’s arrest, and the officers were within their rights in moving to take him into custody. Once under arrest, the officers were further entitled to control his movements to ensure his safety and theirs as the Complainant was processed according to law.

I am satisfied that the quantum of force used by the officers, including the SO, was lawful. The Complainant strenuously resisted arrest, first inside the vehicle where two CEW discharges had failed to subdue him, and then on the ground on the roadway. He refused to release his arms to be handcuffed and flailed his legs. The officers responded with force, including the use of a CEW and multiple hand and knee strikes, that was significant but made necessary by the extent of the Complainant’s fight and the need to arrest him as soon as possible given their position on a live road. Once his arms and legs were restrained, no further strikes were delivered. The force used by the officers at the station was similarly justified. The Complainant was still combative. He had freed himself from the leg hobbles, done damage to the police cruiser and was again struggling against the officers’ efforts to keep him under control. As at the scene of the arrest, once the hobbles were refixed on his legs, no further strikes were delivered. Lastly, with respect to the use by the SO of his knee in the booking area, I am unable to reasonably conclude the officer acted with excessive force. The video footage seems to depict only a modicum of force used by the officer.

In the result, while I accept that the Complainant’s injury was incurred at some point during his physical engagement with the GSPS officers, including the SO, I am unable to reasonably conclude it was attributable to any unlawful conduct on their part. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: September 20, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit

Endnotes

  • 1) Unless otherwise specified, the information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s findings of fact following its investigation. [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.