SIU Director’s Report - Case # 21-OCI-277
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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.
- 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 a 40-year-old man (the “Complainant”) suffered.
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 a 40-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On August 29, 2021, at 12:50 p.m., the Windsor Police Service (WPS) notified the SIU of the Complainant’s injury.WPS advised that on August 29, 2021, at 6:05 a.m., WPS police officers responded to an address on Lillian Avenue in Windsor for a disconnected 911 call about a domestic dispute. When police officers arrived, they met the female resident, the Civilian Witness (CW). The CW reported she had been assaulted and threatened by an acquaintance identified as the Complainant. The CW told police the Complainant was hiding in her house. The police officers entered and found the Complainant hiding under a bed. They lifted the bed and arrested the Complainant.
The Complainant was taken to Windsor Regional Hospital (WRH) and diagnosed with a fractured rib.
The Team
Date and time team dispatched: 08/30/2021 at 7:51 a.m.Date and time SIU arrived on scene: 08/30/2021 at 8:31 a.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
40-year-old male interviewed; medical records obtained and reviewedThe Complainant was interviewed on August 31, 2021.
Civilian Witness
CW InterviewedThe civilian witness was interviewed on August 30, 2021.
Subject Officials (SO)
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Interviewed, and notes received and reviewed
SO #3 Interviewed, but declined to submit notes, as is the subject official’s legal right
SO #2 and SO #3 were interviewed on November 10, 2021 and October 8, 2021,
respectively.
Witness Officials (WO)
WO #1 InterviewedWO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed between September 2 and 3, 2021.
Evidence
The Scene
The scene was a second-floor bedroom in a residence on Lillian Avenue. SIU Forensic Investigators did not attend the scene and, therefore, no scene examination was done, and no diagram was produced.
Video/Audio/Photographic Evidence [1]
911 Call
At 6:03:47 a.m., the CW called 911 crying. The Complainant could be heard in the background. The CW was calling from a residence on Lillian Avenue in Windsor.At 6:05:00 a.m., the line was disconnected.
At 6:05:40 a.m., police called back, and the Complainant answered saying there was nothing going on.
At 6:06:00 a.m., police called back and spoke to the CW. When prompted, the CW refused to provide any information to the call-taker and hung-up.
At 6:07:13 a.m., police called back, and this time the CW said there were dogs in the house, and she would not answer the door because she was afraid.
At 6:07:18 a.m., police called back once more, and the line was hung-up.
WPS Communications Recordings
At 6:05:04 a.m., SO #1 was dispatched to Lillian Avenue.At 6:11:39 a.m., WO #1 advised the dispatcher that the CW was not cooperating with police.
At 6:14:46 a.m., WO #1 advised there were dogs in the home.
At 6:15:07 a.m., WO #1 reported over his police radio that the Complainant had come out of the back door. WO #1 then advised the dispatcher that the Complainant ran back inside the house.
At 6:18:22 a.m., WO #1 requested an ambulance for the CW. WO #1 advised the dispatcher that the CW was bruised and hyperventilating, and her medication was inside the house. WO #1 advised that the CW had been choked.
At 6:19:43 a.m., SO #1 advised of hearing the Complainant in the attic of the home.
At 6:19:45 a.m., the dispatcher advised that the ambulance was en route.
At 6:30:52 a.m., SO #1 advised the CW was getting her dogs out of the house.
At 6:31:52 a.m., the dispatcher reported that the Complainant was on conditions not to associate with the CW.
At 6:34:33 a.m., SO #1 reported the dogs were out of the house.
At 6:34:45 a.m., WO #3 asked for a closed channel.
At 6:37:04 a.m., SO #1 reported the Complainant was in custody.
At 6:51:23 a.m., SO #2 advised the Complainant was being transported to hospital.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from WPS between August 31, 2021 and November 22, 2021:- Notes-WO #3;
- Notes-WO #2;
- Notes-SO #2;
- Notes-WO #1;
- Supervisor Report-WO #3;
- Intergraph Computer-assisted Dispatch;
- Communications Recordings;
- Supplemental Report-WO #3;
- Supplementary Arrest Narrative-SO #2;
- Use of Force Directive;
- Arrest Directive;
- Search of Persons Directive; and
- Call Hardcopy.
Materials Obtained from Other Sources
The SIU received the following records from other sources on August 31, 2021: - Medical Record-WRH.
Incident Narrative
The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and two of the subject officials. As was his right, the third subject official – SO #1 – chose not to interview with the SIU or authorize the release of his notes.
At about 6:10 a.m., SO #1 was among the first officers to arrive at an address on Lillian Avenue, Windsor, following a 911 call from the home. He was soon joined by SO #2 and SO #3. The call for service was in connection with an apparent domestic disturbance involving a male and female inside the residence.
The male and female were the Complainant and his estranged partner, the CW. In contravention of a judicial order prohibiting him from associating with her, the Complainant had joined the CW at her place following a get-together the evening before at the home of a mutual acquaintance. The two had been embroiled in an argument when the CW contacted police.
Aware that police were at the residence, the Complainant fled upstairs and hid underneath the bed in one of the bedrooms. He ignored repeated calls by the police from outside the residence that he exit and submit to arrest.
SO #1, SO #2 and SO #3 entered the home at about 6:30 a.m. to search for the Complainant. They quickly located him hiding underneath the bed on the second floor. When the Complainant refused to come out from under the bed, SO #1 grabbed him by the ankles to pull him out. The Complainant kicked at the officer and maintained his position under the bed. He continued to resist as the bed was flipped off of him, but was subdued in short order and handcuffed behind his back.
Following his arrest, the Complainant complained of pain and was transported to hospital. He was diagnosed with a minimally displaced 12th rib fracture.
At about 6:10 a.m., SO #1 was among the first officers to arrive at an address on Lillian Avenue, Windsor, following a 911 call from the home. He was soon joined by SO #2 and SO #3. The call for service was in connection with an apparent domestic disturbance involving a male and female inside the residence.
The male and female were the Complainant and his estranged partner, the CW. In contravention of a judicial order prohibiting him from associating with her, the Complainant had joined the CW at her place following a get-together the evening before at the home of a mutual acquaintance. The two had been embroiled in an argument when the CW contacted police.
Aware that police were at the residence, the Complainant fled upstairs and hid underneath the bed in one of the bedrooms. He ignored repeated calls by the police from outside the residence that he exit and submit to arrest.
SO #1, SO #2 and SO #3 entered the home at about 6:30 a.m. to search for the Complainant. They quickly located him hiding underneath the bed on the second floor. When the Complainant refused to come out from under the bed, SO #1 grabbed him by the ankles to pull him out. The Complainant kicked at the officer and maintained his position under the bed. He continued to resist as the bed was flipped off of him, but was subdued in short order and handcuffed behind his back.
Following his arrest, the Complainant complained of pain and was transported to hospital. He was diagnosed with a minimally displaced 12th rib fracture.
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
Following his arrest by WPS officers on August 29, 2021, the Complainant was taken to hospital and diagnosed with a serious injury. The arresting officers – SO #1, SO #2 and SO #3 – were identified a subject officials for purposes of the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials 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 required or authorized to do by law. Having spoken to the CW at the scene outside the home and observed injuries to her face and neck, and knowing that the Complainant was in breach of a term of his release, I am satisfied that the officers were within their rights in seeking to arrest the Complainant.
I am also satisfied that the force used by the officers did not exceed what was legally authorized. This consisted of the officers’ greater manpower to wrestle the Complainant under control and two right-handed punches to the Complainant’s face delivered by SO #1. As the strikes were administered in the course of a physical struggle in which the Complainant had been kicking out at the officers and refusing to release his arms from under his torso to be handcuffed, I am unable to reasonably conclude they were excessive in the circumstances. Shortly after the strikes, the officers were able to overcome the Complainant’s resistance and secure him in handcuffs, after which no further force was used.
For the foregoing reasons, there are no reasonable grounds to believe that any of the subject officials comported themselves other than lawfully throughout their engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: December 23, 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 required or authorized to do by law. Having spoken to the CW at the scene outside the home and observed injuries to her face and neck, and knowing that the Complainant was in breach of a term of his release, I am satisfied that the officers were within their rights in seeking to arrest the Complainant.
I am also satisfied that the force used by the officers did not exceed what was legally authorized. This consisted of the officers’ greater manpower to wrestle the Complainant under control and two right-handed punches to the Complainant’s face delivered by SO #1. As the strikes were administered in the course of a physical struggle in which the Complainant had been kicking out at the officers and refusing to release his arms from under his torso to be handcuffed, I am unable to reasonably conclude they were excessive in the circumstances. Shortly after the strikes, the officers were able to overcome the Complainant’s resistance and secure him in handcuffs, after which no further force was used.
For the foregoing reasons, there are no reasonable grounds to believe that any of the subject officials comported themselves other than lawfully throughout their engagement with the Complainant. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.
Date: December 23, 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]
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.