SIU Director’s Report - Case # 21-OCI-084
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Contents:
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.
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 Privacy Act
Pursuant to section14 (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 a serious injury sustained by a 25-year-old man (the “Complainant”).
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 serious injury sustained by a 25-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On March 18, 2021, at approximately 5:30 a.m., the Windsor Police Service (WPS) received a 911 call in which a witness reported hearing glass being smashed at an address on Lauzon Road, Windsor. Police officers were dispatched, arrived, and located and arrested a male for a breach of recognizance. The male was handcuffed and then spit on a police officer. The male was grounded, and his face hit the ground. The male was taken to the WPS police station and cell staff re-directed officers to take him to the Windsor Regional Hospital (WRH). The male was diagnosed with a fractured nose. The Team
Date and time team dispatched: 03/18/2021 at 2:10 p.m.Date and time SIU responded: 03/19/2021 at 2:06 p.m.
Number of SIU Investigators assigned: 3
Affected Person (aka “Complainant”):
The Complainant was interviewed on March 19, 2021.
Civilian Witnesses
CW #1 Interviewed
CW #2 Interviewed
The civilian witnesses were interviewed on March 22, 2021 and March 23, 2021.
Subject Officials
SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right.
SO #2 Interviewed, but declined to submit notes, as is the subject official’s legal right.
The subject officials were interviewed on April 8, 2021.
Witness Officials
WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Not interviewed, but notes received and reviewed
The witness officials were interviewed between March 26, 2021, and March 31, 2021.
Service Employee Witnesses
SEW #1 Not interviewed, but report received and reviewed
SEW #2 Not interviewed, but report received and reviewed
Evidence
Video/Audio/Photographic Evidence [1]
911 Call
At 5:19:27 a.m., a woman [now known to be CW #2] called 911 requesting police attend an address on Lauzon Road. CW #2 told the call-taker (CT) she had heard a whole bunch of glass smashing at her neighbour’s unit. CW #2 was out of breath from running down the stairs; she had been woken up by the smashing glass and was scared. The noise came from outside of a unit. CW #2 had not heard any voices or seen anything. CW #2 did not want to go over to the unit. CW #2 knew the woman who lived in the unit only by her first name [now known to be CW #1]. CW #1 was in her 20s. The CT instructed CW #2 to call police back if she heard or saw anything else.Radio Communications
At 5:23 a.m., the police dispatcher (PD) announced to all units that there was a call of unknown trouble at an address on Lauzon Road. Information was called-in by a neighbour who had heard glass breaking.WO #1 and WO #5 acknowledged the call.
The PD advised the police officers that a male neighbour had heard lots of glass being smashed, and that the woman who resided at the unit was [CW #1.] The PD advised that WPS had a history for CW #1 and her boyfriend.
The PD advised that a search of CW #1’s boyfriend had revealed a caution for him regarding family violence. The PD advised that he was charged with two counts of unlawfully in a dwelling, two counts of possession of weapons dangerous to public peace, mischief, assault, and assault with a weapon.
The PD advised that CW#1’s boyfriend had been released on a recognizance with the following conditions: to reside with his surety, to remain in his residence at all times, not to associate with CW #1, and, not to have any weapons.
The PD advised that CW #1 was charged with fail to attend court and theft under, and had been released on condition that she not attend an address on University Avenue. The PD advised that her boyfriend had local cautions, and was known to carry weapons, including a switchblade.
The PD advised SO #1 and WO #5 that the conditions for CW #1’s boyfriend had been confirmed, and both officers acknowledged.
WO #1 advised he was in the back with “[CW #1] and a male”. SO #1 and WO #5 acknowledged.
WO #5 advised that WO #1 had the man in custody. WO #5 requested the transport wagon (TW) be sent and he was going to call the cells. [Investigation later revealed the proper identity of CW #1’s boyfriend was the Complainant.]
WO #5 advised officers would bring the Complainant to the front for the TW.
WO #5 asked the PD to reconfirm the origin of CW #1’s boyfriend’s conditions.
SO #1 and SO #2 advised they were returning to WPS headquarters.
At 6:22 a.m., the WPS TW departed with the Complainant.
Materials Obtained from Police Service
The SIU obtained the following records from the WPS between March 23, 2021 and April 26, 2021:
• Document about Lauzon Address (x3);
• Communication recordings;
• CW #1-WPS file photograph;
• The Complainant-WPS file photograph;
• Notes of WOs;
• Person Details – CW #1’s former boyfriend;
• Person History - Lauzon Road;
• WPS file photograph – CW #1’s former boyfriend;
• WPS Initial Officer's Report- WO #1;
• WPS Supervisory Report-Detention Unit-WO #4;
• WPS Supervisory Report-WO #3; and
• WPS Supplementary Report by the SEWS and another special constable.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from the following other sources:
• Medical records – WRH; and
• Medical Records – Southwest Detention Centre.
Incident Narrative
The events in question are clear on the evidence collected by the SIU, and may be briefly summarized.
At about 5:20 a.m. of March 18, 2021, the WPS received a 911 call from CW #2. CW #2 was calling to report a domestic disturbance at her neighbour’s residence on Lauzon Road. Specifically, CW #2 had heard the sound of a lot of glass breaking outside of the residence. Police were dispatched to investigate.
WO #1 and WO #5 were the first officers to arrive at the scene, followed shortly by SO #1 and SO #2. WO #1 located the Complainant in the backyard of the unit and placed him in handcuffs. Thinking that the Complainant was another male, the former boyfriend of the unit occupant – CW #1, the officers arrested the Complainant for being in breach of a condition of a recognizance.
As SO #1, who had hold of the Complainant, prepared to escort him to the front of the unit, the Complainant reared his head and spit in the direction of the officer. SO #1 recoiled his head to avoid being struck and simultaneously took the Complainant to the ground. The spit landed on the officer’s shirt in the area of the right shoulder.
With the Complainant on the ground in a prone position, SO #2, who was standing in the area with SO #1, took up a position by the Complainant’s left side. The officer delivered a punch to the Complainant’s left forearm when he observed the Complainant’s handcuffed hands reaching inside the waistband of his pants. Following the strike, the Complainant removed his hands from his waistband.
A spit hood was placed on the Complainant and he was escorted to the front of the residence to await a prisoner transport wagon.
Once at the police station, an ambulance was called, and the Complainant was taken to hospital where he was diagnosed with fractures of the nose.
At about 5:20 a.m. of March 18, 2021, the WPS received a 911 call from CW #2. CW #2 was calling to report a domestic disturbance at her neighbour’s residence on Lauzon Road. Specifically, CW #2 had heard the sound of a lot of glass breaking outside of the residence. Police were dispatched to investigate.
WO #1 and WO #5 were the first officers to arrive at the scene, followed shortly by SO #1 and SO #2. WO #1 located the Complainant in the backyard of the unit and placed him in handcuffs. Thinking that the Complainant was another male, the former boyfriend of the unit occupant – CW #1, the officers arrested the Complainant for being in breach of a condition of a recognizance.
As SO #1, who had hold of the Complainant, prepared to escort him to the front of the unit, the Complainant reared his head and spit in the direction of the officer. SO #1 recoiled his head to avoid being struck and simultaneously took the Complainant to the ground. The spit landed on the officer’s shirt in the area of the right shoulder.
With the Complainant on the ground in a prone position, SO #2, who was standing in the area with SO #1, took up a position by the Complainant’s left side. The officer delivered a punch to the Complainant’s left forearm when he observed the Complainant’s handcuffed hands reaching inside the waistband of his pants. Following the strike, the Complainant removed his hands from his waistband.
A spit hood was placed on the Complainant and he was escorted to the front of the residence to await a prisoner transport wagon.
Once at the police station, an ambulance was called, and the Complainant was taken to hospital where he was diagnosed with fractures of the nose.
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
On March 18, 2021, the Complainant was diagnosed with a serious injury following his arrest by WPS officers. Two officers – SO #1 and SO #2 – were identified as subject officials for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the Complainant’s arrest and 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 authorized or required to do by law. The Complainant was first detained for a brief period before he was arrested. In light of the nature of the call, involving a domestic disturbance which the police had cause to believe involved CW #1 and her former boyfriend, the latter facing weapons charges at the time, I am satisfied the officers had a lawful basis to detain the Complainant on reasonable suspicion that he was implicated in a criminal offence. Shortly thereafter, when they learned that CW #1’s former boyfriend was on condition that he not associate with CW #1, the officers also had grounds to arrest the Complainant. Though they had the wrong person, their mistake was reasonable in the circumstances, particularly as it appears that the Complainant identified himself as the former boyfriend at various points during his interaction with police that day.
Having arrested the Complainant, the officers were entitled to ensure that he and they were safe during his period of custody. I am satisfied that SO #1 and SO #2 acted reasonably in that vein when they resorted to a measure of force after the Complainant spit at SO #1. The takedown, which appears to have been executed in a controlled fashion, was a reasonable tactic in the circumstances to deter any further assault on SO #1 by the Complainant. Once on the ground, the Complainant reached with his hands into his waistband and continued to do so after SO #2 had told him to stop. In the circumstances, SO #2’s fear that the Complainant might be reaching for a weapon was a legitimate concern given the officers thought they were dealing with someone who was facing weapons charges. A single strike to the forearm, which proved successful in having the Complainant remove his hands from his waistband, seems a proportionate use of force to the situation at hand.
In the result, while it may well be that the Complainant’s broken nose was the result of the takedown, [2] there is no basis to proceed with criminal charges in this case against either subject official as I am satisfied they comported themselves lawfully throughout the incident.
Date: July 14, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 authorized or required to do by law. The Complainant was first detained for a brief period before he was arrested. In light of the nature of the call, involving a domestic disturbance which the police had cause to believe involved CW #1 and her former boyfriend, the latter facing weapons charges at the time, I am satisfied the officers had a lawful basis to detain the Complainant on reasonable suspicion that he was implicated in a criminal offence. Shortly thereafter, when they learned that CW #1’s former boyfriend was on condition that he not associate with CW #1, the officers also had grounds to arrest the Complainant. Though they had the wrong person, their mistake was reasonable in the circumstances, particularly as it appears that the Complainant identified himself as the former boyfriend at various points during his interaction with police that day.
Having arrested the Complainant, the officers were entitled to ensure that he and they were safe during his period of custody. I am satisfied that SO #1 and SO #2 acted reasonably in that vein when they resorted to a measure of force after the Complainant spit at SO #1. The takedown, which appears to have been executed in a controlled fashion, was a reasonable tactic in the circumstances to deter any further assault on SO #1 by the Complainant. Once on the ground, the Complainant reached with his hands into his waistband and continued to do so after SO #2 had told him to stop. In the circumstances, SO #2’s fear that the Complainant might be reaching for a weapon was a legitimate concern given the officers thought they were dealing with someone who was facing weapons charges. A single strike to the forearm, which proved successful in having the Complainant remove his hands from his waistband, seems a proportionate use of force to the situation at hand.
In the result, while it may well be that the Complainant’s broken nose was the result of the takedown, [2] there is no basis to proceed with criminal charges in this case against either subject official as I am satisfied they comported themselves lawfully throughout the incident.
Date: July 14, 2021
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) 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]
- 2) There is a possibility raised in the evidence that the Complainant broke his nose before the arrival of police. [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.