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 43-year-old man (the “Complainant”).

Notification of the SIU

On February 26, 2022, at 10:17 p.m., the Windsor Police Service (WPS) notified the SIU of an injury to the Complainant.

According to the WPS, on February 26, 2022, the Complainant was involved in an incident at a Walmart in Windsor. The Subject Official (SO) spotted the Complainant a short distance away at 3090 Dougall Avenue. The SO attempted to arrest the Complainant and a struggle ensued. The SO deployed a Conducted Energy Weapon (CEW), which was unsuccessful. He hit the Complainant in the face with the CEW and gained control of him at 2:56 p.m. The Complainant was taken to Windsor Regional Hospital and, at 9:26 p.m., was diagnosed with a nasal bone fracture. He was being detained under the Mental Health Act.

The Scene

The scene presented in the parking lot on the north side of Baskin-Robbins, 3090 Dougall Avenue, Windsor.




Figure 1 - Still image from surveillance footage which depicts the interaction between the Complainant and the SO in the parking lot of the Baskin-Robbins.

Forensic Evidence

CEW Data Download

On March 1, 2022, a SIU forensic investigator received a model X2 Taser CEW from WPS. The SIU forensic investigator photographed the weapon, and downloaded the data. The date indicated that the CEW had been deployed three times – each time for a duration of one second - at 3:12:09 p.m., 3:12:10 p.m., and 3:12:12 p.m.




Figure 2 - The X2 Taser CEW.

Computer-aided Dispatch (CAD) Report

On February 28, 2022, SIU requested that the WPS provide the CAD of their interaction with the Complainant. On March 1, 2022, WPS provided the SIU with the CAD information. The following is a summary of the information.

The WPS received two separate calls for service, which resulted in the following charges against the Complainant: possession of weapon dangerous to the public peace, assault with a weapon, utter threats to cause death, resist a peace officer, fail to comply with a release order, and fail to comply with probation contrary to the Criminal Code of Canada.

First Call for Service

On February 26, 2022, at 2:22 p.m., a WPS communicator received a non-urgent call from a person at Walmart. The caller reported the Complainant was yelling at customers and was removed from the store. When the caller approached the Complainant outside the store, the Complainant displayed a torch light and told the caller to stay away from him.

The call for service was classified as ‘Disorderly’ for area check only.

At 2:26:55 p.m., the SO was dispatched to the call and, at 2:38:00 p.m., the SO cleared the call.

Second Call for Service

On February 26, 2022, 2:58:35 p.m., a WPS communicator received a 911 call from a woman. The woman reported the Complainant was looking at a display. She believed the Complainant had a gun in his hand. She could not confirm, but felt something was not right.

The call for service was classified as ‘Firearms - Person with Gun’. The dispatcher indicated the description matched the call from earlier involving a man with a barbeque lighter in their hands. The woman indicated the Complainant had left.

At 3:01:20 p.m., the WO and an officer, who was not designated as a subject or witness official in this investigation, were dispatched.

At 3:03 p.m., the woman advised the Complainant was headed eastbound in the parking lot. She was going to speak with the SO.

At 3:04 p.m., in front of TELUS, a request was made for another unit. Several police officers were dispatched.

At 3:07 p.m., the Complainant was reported in custody.

At 3:07:14 p.m., the WO arrived on scene.

At 3:08 p.m., checks were conducted on the Complainant.

At 3:13 p.m., a second undesignated officer arrived on scene.

Video/Audio/Photographic Evidence [1]

Police Radio Communications

On February 28, 2022, SIU requested that the WPS provide the radio communications recordings in connection with their interaction with the Complainant. The recordings, received March 2, 2022, were five minutes and 14 seconds in duration. The following is a summary of the communications.

The SO told WPS dispatcher, “Show me clear, I am going to be going back to Dougall … I see that priority on Dougall, I can redirect there.” The WPS dispatcher told the SO that the two calls were related; they involved the Complainant and a woman who believed the Complainant had a firearm.

The WPS dispatcher told the SO, “From the previous call, it was just a lighter.” Several other police officers were also dispatched to attend to the priority call. The SO arrived and radioed, “He is in front of the TELUS now, I will be out with him.”

The SO was in pursuit of the Complainant. He radioed for another unit, and the WPS dispatcher asked the WO, “Can you step it up, he is requesting another unit.”

The WO was the second police officer to arrive at 3090 Dougall Avenue. She told the dispatcher, “Male is in custody.” The WPS dispatcher told other police officers en route to slow down. - the Complainant was in custody. The WO told the dispatcher, as it related to the SO, “Yea he is [police code believed to indicate ‘okay’].” The WO conducted checks on the Complainant.

The first undesignated officer, who had been dispatched to the scene with the WO, requested an ambulance. The WPS dispatcher advised an ambulance was on the way, and there were also two sergeants on the way.

The first undesignated officer accompanied the Complainant to the hospital with the paramedics.

A police officer requested a police wagon to transport the Complainant from the hospital to the WPS facility.

Video Footage – Baskin-Robbins - 3090 Dougall Avenue

On February 28, 2022, SIU requested that WPS provide video footage of their interaction with the Complainant. On March 1, 2022, WPS provided the SIU with relevant video footage captured of the interaction between the SO and the Complainant. The following is a summary of the footage.

At 3:04:21 p.m., a marked police vehicle drove through a parking lot. The police vehicle’s emergency equipment was not activated. The Complainant was running away from the SO holding onto a cart. The Complainant said, “Stay away from me," and continued to run away from the SO.

At 3:04:41 p.m., the Complainant released the cart and ran away from the SO. The Complainant fell to the ground, his back towards the pavement. The SO went on the ground to apprehend the Complainant. At 3:04:46 p.m., a struggle ensued. The SO was on top of the Complainant on the ground. At 3:04:37 p.m. the SO said, “Stop, don’t move.”

At 3:04:49 p.m., the SO threw multiple strikes (using his hand to punch) at the Complainant. The SO told the Complainant, “Put your hands behind.”

At 3:05:57 p.m., the SO retrieved a CEW, and deployed it. The SO then struck the Complainant with the CEW three or four times in the head area, after which he re-holstered the CEW and punched at the Complainant twice more.

The SO repositioned himself, and turned the Complainant onto his stomach. The SO was positioned on the Complainant’s back. The Complainant continued to shout, “I didn’t do anything wrong bro, help me up bro.”

The WO arrived. She was the second police officer to arrive - her emergency equipment was activated. The WO ran towards the SO and got on the ground to assist. Several other police officers arrived, and they were all in marked police vehicles. Police officers were observed talking to each other and the SO.

At 3:18 p.m., an ambulance arrived and paramedics attended to the Complainant. He was held by a police officer from his left arm and the paramedic held his right arm. They walked the Complainant to the ambulance.

Materials Obtained from Police Service

The SIU obtained and reviewed the following records from the WPS:

• Booking Sheet – the Complainant;
• CAD Records;
• Charge Summary;
• Communications Recordings;
• Forensics Report – Injury Photos;
• Property Report – Seizure of Blow Torch and Lighter;
• Walmart Video Request;
• Walmart Video – Supplementary Report;
• Hospital – Supplementary Report;
• Officer Needs Assistance – Supplementary Report;
• Hospital Discharge, Transport, Notification of Charges Report;
• Scene Attendance - Supplementary Report;
• Walmart Property Returned - Supplementary Report;
• Hospital - Supplementary Report;
• Hospital Escort - Supplementary Report;
• Seizure of Blow Torch and Lighter;
• Supervisory Report;
• SIU Notification - Supplementary Report;
• Detention Unit - Supplementary Report;
• Release Notification - Supplementary Report;
• Narrative – the WO;
• Narrative Text Hardcopy;
• Notes of the WO and SO;
• Witness Audio Video Summary; and
• Witness Statement.

Materials Obtained from Other Sources

On February 26, 2022, the Complainant signed an authorization for release of medical information form. On March 4, 2022, SIU received the medical records. The Complainant had been diagnosed with a nasal fracture and orbital hematoma.

The following scenario emerges from the evidence collected by the SIU, which included interviews with the Complainant and two civilian eyewitnesses. The investigation was also assisted by video footage of the incident captured by a camera in the area. As was his legal right, the SO chose not to interview with the SIU. He did authorize the release of his notes.

The Complainant was of unsound mind in the afternoon of February 26, 2022. He had travelled to the Walmart on Dougall Avenue where he reportedly yelled at customers and was asked to leave the store. A security office who dealt with the Complainant contacted police after he pointed a pocket blow torch in his direction. A short time later, the Complainant entered the Baskin-Robbins in the plaza north of the Walmart, after which a woman called 911 to report that the Complainant had what appeared to be a gun in his hands.

The SO heard the radio dispatches regarding both incidents and made his way to the plaza parking lot north of the Walmart. There, he located the Complainant. He had just stepped out of the TELUS store at the east end of the plaza and was pushing a shopping cart. The officer attempted to arrest the Complainant. The Complainant fled from the officer westward in the parking lot, all the while pushing the cart. The SO gave chase on foot.

As the pair neared the parking lot north of the Baskin-Robbins, the Complainant relinquished the cart just before he fell by the rear driver’s side of a parked vehicle. The SO was quickly on him.

There ensued a struggle in which the SO repeatedly punched the Complainant in the head area (upwards of a dozen times), including with the use of his CEW, and attempted to stun him with the CEW. The Complainant flailed his arms at the officer for much of this engagement. In time, the SO positioned the Complainant on his front, controlled his arms behind his back, and, with the help of another officer arriving at the scene, handcuffed him.

Following his arrest, the Complainant was taken to hospital and diagnosed with a broken nose and orbital hematoma.

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,

On February 26, 2022, the Complainant suffered a serious injury in the course of his arrest by a WPS officer. The officer – the SO – was identified as the subject official in the ensuing SIU investigation. 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 arrest and injury.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal lability 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.

I take no issue with the legality of the SO’s decision to arrest the Complainant. Based on what the officer knew of the calls for service that had been received by the police, and what he was able to ascertain directly by briefly speaking with a person from Baskin-Robbins as he arrived at the plaza parking lot, who pointed the Complainant out to the officer, I am satisfied that the Complainant was subject to lawful arrest on a weapons charge.

I am also satisfied that the quantum of force used by the SO, though significant, fell within the bounds of legally justified force. The officer had cause to believe that the Complainant was in possession of a firearm and that, therefore, it was imperative to arrest the Complainant as quickly as possible. In the circumstances, when he flailed his arms while on his backside in the direction of the officer, the SO was entitled to respond with a measure of force to weaken and subdue the Complainant. Most problematic was the use of the CEW to strike the Complainant in the head, which the officer did on three or four occasions. The CEW, however, was in his hand after he had retrieved it to attempt to stun the Complainant into submission, which efforts had failed. And its use to strike the Complainant appears to have occurred right after the Complainant’s left arm seems to have been in proximity to the weapon, suggesting the officer was concerned he was reaching for it. On this record, I am unable to reasonably conclude that the use of the CEW in this manner was excessive, particularly as the Complainant continued to struggle against the officer’s efforts after the SO re-holstered the weapon. In arriving at this conclusion, I am mindful that officers caught up in volatile and dangerous situations are not expected to measure their responsive force with precision; what is required is a reasonable response, not an exacting one: R. v. Nasogaluak, [2010] 1 SCR 206; R. v. Baxter (1975), 27 CCC (2nd) 96 (Ont. CA).

For the foregoing reasons, while I accept that the Complainant’s broken nose was the result of the force used by the SO, there are no reasonable grounds to believe that the injury is attributable to unlawful conduct on the part of the officer. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: June 24, 2022
Electronically approved by

Joseph Martino
Director
Special Investigations Unit