Director's Report Details

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.

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: 

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 serious injuries sustained by a 32-year-old man (the “Complainant”).

Notification of the SIU

On November 26, 2021, at 4:33 p.m., the Windsor Police Service (WPS) notified the SIU of a serious injury. Reportedly, on November 25, 2021, at approximately 7:24 p.m., the WPS had responded to a ‘person in crisis’ call at Elsmere Avenue. The affected person, the Complainant, had consumed a quantity of drugs and was threatening to harm himself. Officers apprehended him under the Mental Health Act. The Complainant resisted and had to be physically grounded. He was subsequently transported to the hospital.

On November 27, 2021, the hospital notified the WPS that the Complainant had suffered two fractures to his leg. The Complainant would be in the hospital for the next couple of days.

The Team

Date and time team dispatched: 11/26/2021 at 5:19 p.m.

Date and time SIU responded: 11/27/2021 at 10:46 a.m.

Number of SIU Investigators assigned: 3

Affected Person (aka “Complainant”):

32-year-old male; medical records obtained and reviewed

The Complainant was interviewed on December 2, 2021.

Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

The civilian witnesses were interviewed between December 1, 2021, and December 3, 2021.

Subject Officials

SO #1 Interviewed, but declined to submit notes, as is the subject official’s legal right
SO #2 Interviewed, and notes received and reviewed

The subject officials were interviewed on January 28, 2021, and February 2, 2022.

Witness Officials

WO #1 Interviewed
WO #2 Interviewed

The witness officials were interviewed on December 7, 2021, and December 8, 2021.

The Scene

The Complainant’s injury occurred in his apartment at an address on Elsmere Avenue, Windsor.

Video/Audio/Photographic Evidence [1]

WPS Custody Video – Prisoner Transport Wagon

The WPS provided a copy of two cameras from the prisoner transport wagon on November 25, 2021. The footage was nine minutes in length.

The rear doors of the transport wagon opened and a man [known to be the Complainant] was standing with his hands handcuffed behind his back. The Complainant was assisted into the back of the transport wagon and sat on the bench near the door. He remained seated but did not move his legs until they arrived at their destination. The Complainant was assisted by two police officers as he went outside. It was evident the Complainant had a leg injury.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and both subject officials.

In the evening of November 25, 2021, SO #1 and SO #2 arrived at an address on Elsmere Road, Windsor, following complaints from tenants of the property about their neighbour – the Complainant. The Complainant had reportedly been screaming for hours from his apartment, repeatedly threatening to kill people in the area. The officers spoke with other tenants, who expressed fear about the Complainant’s behaviour.

The Complainant suffered from mental illness and was of unsound mind at the time. He allowed SO #1 and SO #2 entry into his apartment and denied that he had said anything inappropriate. Advised by the officers that he was to be apprehended and taken to hospital for a psychiatric examination, the Complainant demurred. The Complainant was handcuffed and taken into custody after a brief physical altercation.

Following his arrest, it was apparent that the Complainant had suffered an injury. He limped while being helped outside to a prisoner transport van by SO #1 and SO #2.

The Complainant was taken from the scene to hospital where he was diagnosed with a fractured right tibia and held for psychiatric examination.

Section 25(1), Criminal Code -- Protection of persons acting under authority

(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,

Section 17, Mental Health Act -- Action by police officer

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

The Complainant was seriously injured in the course of his arrest by two WPS officers on November 25, 2021. The officers – SO #1 and SO #2 – were identified as subject officials for purposes of the SIU investigation. The investigation is now concluded. 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 required or authorized to do by law.

Given what they had been told of the Complainant’s threatening and disruptive behaviour over a protracted length of time, and what they personally discerned of his mental condition in their dealings with him, I am satisfied that SO #1 and SO #2 were proceeding to lawfully apprehend the Complainant under section 17 of the Mental Health Act. The Complainant spoke of being controlled by an inner entity who was responsible for the threats that had been uttered.

The Complainant refused to go willingly with the officers and was subdued with a justifiable amount of force by the officers. He broke free from the officers’ attempts to take control of his arms, and then clenched his fists and adopted an aggressive posture toward SO #1 and SO #2. The officers reacted by wrestling the Complainant to the ground, with SO #1 and the Complainant falling forward onto their knees before the Complainant was placed into a prone position. This was a reasonable tactic, in my view, as the Complainant would be at a relative disadvantage in that position to continue to resist his arrest. Once on the ground, there was no further struggle, and the Complainant was quickly handcuffed behind his back without further incident.

It is alleged that the Complainant was kicked once to the right leg by each of the officers prior to going to the floor, but it would be unwise and unsafe to place much if any weight on this rendition of events. On the weight of the evidence, it is apparent that the Complainant had lost touch with reality to a significant degree during the events in question.

In the result, while I accept that the Complainant fractured his right tibia in the takedown that preceded his arrest, I am not satisfied that his injury is attributable to any unlawful conduct on the part of the subject officials. Accordingly, there is no basis for proceeding with criminal charges in this case, and the file is closed.


Date: March 24, 2022

Electronically approved by

Joseph Martino
Director
Special Investigations Unit