SIU Director’s Report - Case # 22-OCI-157
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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 43-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 43-year-old man (the “Complainant”) suffered.
The Investigation
Notification of the SIU
On June 22, 2022, at 11:56 a.m., the Windsor Police Service (WPS) contacted the SIU with the following information.On June 21, 2022, at 3:50 p.m., police officers responded to a break and enter in progress at a residence in Amherstburg. The homeowners were engaged in a struggle with the Complainant prior to him fleeing the residence. The Complainant was intercepted by police officers near the residence. He was arrested without incident and did not complain of any injuries. The Complainant was taken to the police station and lodged in a cell. He again did not complain of any injuries during the booking process. Sometime later, the Complainant complained of a sore arm and numbness in his fingers. The Complainant was taken to the Windsor Regional Hospital (WRH), where he was diagnosed with a broken humerus and a dislocated shoulder. The Complainant told officers his injury occurred during the arrest.
The Team
Date and time team dispatched: 06/22/2022 at 12:41 p.m.Date and time SIU arrived on scene: 06/22/2022 at 1:30 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
43-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on June 23, 2022.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
The civilian witnesses were interviewed between June 24 and 27, 2022.
Subject Official (SO)
SO Declined interview, as is the subject official’s legal right; notes received and reviewedWitness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
The witness officials were interviewed between July 4 and 8, 2022.
Evidence
The Scene
The scene was the rear walkway behind a townhouse complex at 200 Victoria Street, Amherstburg.SIU investigators attended the scene on June 23, 2022.
Video/Audio/Photographic Evidence [1]
WPS Communications
On June 21, 2022, at 3:59 p.m., the WPS received a 911 call classified as a “break and enter in progress” - a priority one call at an address in Amherstburg. A woman reported that a man [now known to be CW #1] caught another man [now known to be the Complainant] breaking into his house and they were wrestling in the front yard of the residence. At 4:00:07 p.m., WO #4, WO #3 and WO #1 were dispatched.
The 911 caller provided further details to the operator, including a description of the Complainant, and that he was riding a bicycle. CW #1 had been in his backyard swimming pool when the Complainant entered his home and stole property.
At 4:01:54 p.m., the SO was dispatched.
The 911 caller advised that the Complainant was starting to move more quickly along the street, that he had begun running and she believed he was getting away. The Complainant had left his bicycle behind. The 911 caller believed whatever items the Complainant had stolen were left behind with his bicycle, including a paper bag full of property.
At 4:04:17 p.m., the SO was on scene.
At 4:05:32 p.m., WO #4 was on scene.
At 4:06:30 p.m., WO #1 observed the Complainant near Centennial Park moving towards the housing unit. He provided an update from a neighbour of the Complainant’s physical description.
At 4:07:22 p.m., WO #1 advised that the Complainant was behind the housing unit.
At 4:07:42 p.m., the SO advised he was out with the Complainant.
At 4:08:45 p.m., WO #1 conducted a police record check of the Complainant.
At 4:09 p.m., a second 911 call was received from a woman reporting she and her husband had just returned home when their son informed them that the Complainant had attempted to break into her home. A description of the Complainant was provided. He carried a backpack and rode a peddle bicycle. The Complainant had attempted to get into the home several times via two locked doors. The 911 operator advised that police officers were out with the Complainant now as he had attempted to break into other homes. The 911 operator advised she would send a police officer to take a report when available.
At 4:47:16 p.m., the SO advised he was en route to WPS headquarters with the Complainant.
WPS Detention Unit Video Footage
The Complainant entered the Detention Unit, handcuffed with his hands behind his back, followed by a police officer – the SO. The SO and the Complainant exhibited a calm demeanour. The Complainant had a light limp, and was calm and cooperative. The SO used his right hand to guide the Complainant by the right elbow to the registration desk. The Complainant mumbled in a low voice while answering the booking questions. When asked if he had suffered any injury during the arrest, the Complainant responded he had pain in his shoulder. When asked if the pain was the result of the arrest, the Complainant responded, “Not.” The rest of the statement was inaudible.
The Complainant removed his zippered sweater and shoes. The Complainant touched his left upper arm after removing his zippered sweater. The Complainant moaned in pain. A special constable asked the Complainant if his shoulder was stiff. The Complainant used his right hand to lift his left elbow, as he placed his left hand onto the counter, “It’s out of place.”
A sergeant asked the Complainant what caused his shoulder pain. The Complainant responded, “He, he, the guy that threw me, him, the guy that threw me down, the homeowner.”
There was no blood, signs of discolouration or deformity visible on the Complainant.
On two occasions when the Complainant lay down, he experienced some discomfort. A special constable provided the Complainant a blue jumpsuit through the cell bars and then left. The Complainant showed some discomfort in his left shoulder.
Regular cell checks were conducted. The Complainant remained quiet except for three very brief verbal interactions with the special constables. He had not expressed any pain or asked for medical attention.
On June 22, 2022, at 12:13 a.m., during a cell check, the Complainant told a special constable, “I think my shoulder is broken.” The special constable responded, “It hurts?” The Complainant replied, “I can’t move it at all…I can’t move my arm.” The special constable told the Complainant he would notify the sergeant (now known to be WO #2) and, “We are aware okay, just hang in there.”
At 1:58 a.m., a special constable and WO #2 attended the Complainant’s cell. WO #2 unlocked the cell door. Most of the ensuing conversation was inaudible. WO #2 asked the Complainant to exit the cell and follow him.
At 2:35 a.m., emergency medical services (EMS) attended and were briefed by WO #2. WO #2 told EMS that the Complainant had a physical altercation with a homeowner after a break-in. The Complainant had no complaint of injury when arrested; however, while in custody, the Complainant complained of soreness in the left shoulder area not caused by the arrest.
The Complainant arrived while WO #2 briefed EMS. The Complainant was directed onto the EMS stretcher for assessment. The Complainant told EMS his left shoulder was sore. The Complainant sat down on the EMS stretcher. The Complainant expressed pain in his left arm. The Complainant was loaded into the ambulance.
A police officer accompanied EMS in the ambulance to hospital.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the WPS between June 28, 2022, and July 4, 2022:- Detention Registration and Notice of Cell Block Footage Compilation;
- Booking Sheet;
- Call Summary;
- Communications recordings;
- Initial Officers Report- the SO;
- Notes- WO #2;
- Notes- the SO;
- Notes- Officer #1;
- Notes- WO #3;
- Notes- WO #1;
- Notes- WO #4;
- Notes- Officer #2;
- Platoon 3 Duty Roster;
- Property Report- the SO;
- Supplemental Report- Officer #3;
- Supplemental Report- WO #2;
- Supplemental Report- WO #1;
- Supplemental Report- Officer #2;
- Lodging and cell block video footage; and
- Witness Statement- CW #2.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - WRH medical records of the Complainant; and
- Photograph and video footage provided by a civilian witness.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant, two civilian witnesses, and several police officers with knowledge of the incident in parts, gives rise to the following scenario. As was his legal right, the SO declined an interview with the SIU. He did authorize the release of his notes.
In the afternoon of June 21, 2022, the Complainant was confronted by the SO in the vicinity of the townhome complex at 200 Victoria Street South, Amherstburg. The SO and other WPS officers were arriving in the area following a report of a break and enter at a nearby residence. The suspect in the break and enter was said to be fighting with the homeowner in the front yard of an adjacent property.
The Complainant was the suspect in the break and enter. He and the homeowner – CW #1 – had been engaged in a physical altercation before he managed to break free and leave the area on foot. The Complainant fled west on Simcoe Street and turned right onto Fryer Street, after which he continued westward across a field towards Victoria Street South and the townhome complex.
At the direction of the SO, the Complainant assumed a prone position on the ground and was handcuffed behind the back by the officer without incident. With the arrival of additional officers, the Complainant was assisted into a seated position on the ground, and then stood up and placed in the SO’s cruiser for transportation to the WPS Detention Unit.
The Complainant complained of pain in his left upper arm. Asked by a sergeant about the cause of his pain, the Complainant replied that “the guy that threw me down, the homeowner” was responsible.
At about 2:35 a.m. of June 22, 2022, paramedics attended at the Detention Unit and took the Complainant to hospital. He was diagnosed with a fracture of the left humerus.
In the afternoon of June 21, 2022, the Complainant was confronted by the SO in the vicinity of the townhome complex at 200 Victoria Street South, Amherstburg. The SO and other WPS officers were arriving in the area following a report of a break and enter at a nearby residence. The suspect in the break and enter was said to be fighting with the homeowner in the front yard of an adjacent property.
The Complainant was the suspect in the break and enter. He and the homeowner – CW #1 – had been engaged in a physical altercation before he managed to break free and leave the area on foot. The Complainant fled west on Simcoe Street and turned right onto Fryer Street, after which he continued westward across a field towards Victoria Street South and the townhome complex.
At the direction of the SO, the Complainant assumed a prone position on the ground and was handcuffed behind the back by the officer without incident. With the arrival of additional officers, the Complainant was assisted into a seated position on the ground, and then stood up and placed in the SO’s cruiser for transportation to the WPS Detention Unit.
The Complainant complained of pain in his left upper arm. Asked by a sergeant about the cause of his pain, the Complainant replied that “the guy that threw me down, the homeowner” was responsible.
At about 2:35 a.m. of June 22, 2022, paramedics attended at the Detention Unit and took the Complainant to hospital. He was diagnosed with a fracture of the left humerus.
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 diagnosed with a serious injury while in the custody of the WPS on June 22, 2022. In the ensuing SIU investigation, the officer who had arrested the Complainant on June 21, 2022 – the SO – was identified as 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 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.
Based on the information at his disposal regarding the break and enter that had been reported to the police, including a description of the suspect, the SO had lawful grounds to seek the Complainant’s arrest.
As for the force that was used by the SO, there was none other than what would have been necessary to apply the handcuffs to the Complainant in what was a non-contentious arrest. The same may be said of the force used by other officers arriving after the arrest, who assisted in placing a handcuffed the Complainant in a seated position and, thereafter, on his feet. There is a version of events proffered in the evidence that the Complainant was injured in the process of one of these manipulations. While I doubt that is the case - the overwhelming weight of the evidence indicating his injury was inflicted in the altercation with CW #1 – even the evidence on this point falls short of suggesting criminal conduct on the part of the officers, whether by way of undue force or a marked want of care.
There remains, finally, the question of the Complainant’s care while in police custody. It was not until about 2:35 a.m., some nine hours after he had arrived at the Detention Unit, that medical attention was secured for the Complainant. During much of that time, however, the sergeant with overall responsibility for the care of prisoners – WO #2 – had no particular reason to suspect that the Complainant’s arm was broken. That changed at about 1:20 a.m., when a special constable informed him that the Complainant was now complaining of numbness in his left hand. After personally examining the Complainant, and satisfied that his condition was more serious than simple soreness, the sergeant, with years of experience in teaching first-aid, proceeded to make arrangements for the attendance of EMS within a reasonable time. On this record, I am unable to reasonably conclude that WO #2 transgressed the limits of care prescribed by the criminal law throughout the Complainant’s time in custody.
In the result, there are no reasonable grounds to believe that any of the officers who had dealings with the Complainant comported themselves other than lawfully. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: October 20, 2022
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.
Based on the information at his disposal regarding the break and enter that had been reported to the police, including a description of the suspect, the SO had lawful grounds to seek the Complainant’s arrest.
As for the force that was used by the SO, there was none other than what would have been necessary to apply the handcuffs to the Complainant in what was a non-contentious arrest. The same may be said of the force used by other officers arriving after the arrest, who assisted in placing a handcuffed the Complainant in a seated position and, thereafter, on his feet. There is a version of events proffered in the evidence that the Complainant was injured in the process of one of these manipulations. While I doubt that is the case - the overwhelming weight of the evidence indicating his injury was inflicted in the altercation with CW #1 – even the evidence on this point falls short of suggesting criminal conduct on the part of the officers, whether by way of undue force or a marked want of care.
There remains, finally, the question of the Complainant’s care while in police custody. It was not until about 2:35 a.m., some nine hours after he had arrived at the Detention Unit, that medical attention was secured for the Complainant. During much of that time, however, the sergeant with overall responsibility for the care of prisoners – WO #2 – had no particular reason to suspect that the Complainant’s arm was broken. That changed at about 1:20 a.m., when a special constable informed him that the Complainant was now complaining of numbness in his left hand. After personally examining the Complainant, and satisfied that his condition was more serious than simple soreness, the sergeant, with years of experience in teaching first-aid, proceeded to make arrangements for the attendance of EMS within a reasonable time. On this record, I am unable to reasonably conclude that WO #2 transgressed the limits of care prescribed by the criminal law throughout the Complainant’s time in custody.
In the result, there are no reasonable grounds to believe that any of the officers who had dealings with the Complainant comported themselves other than lawfully. Accordingly, there is no basis for proceeding with criminal charges in this case. The file is closed.
Date: October 20, 2022
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.