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 the serious injuries of a 57-year-old man (the “Complainant”).

Notification of the SIU

On November 1, 2022, at 4:13 a.m., the Windsor Police Service (WPS) contacted the SIU with the following information.

The Complainant had been arrested, lodged in cells at WPS Headquarters, and subsequently remanded to the Southwest Detention Centre (SWDC). The Complainant refused to leave his cell and an extraction was conducted in which officers with shields entered the cell, pushed the Complainant against a wall, and handcuffed him. During the interaction, the Complainant stood on the bunk and pushed back on the officers from an elevated position. Eventually, the Complainant was grounded, handcuffed, and fitted with a spit hood. The Complainant bled from the head after the extraction and was taken to Windsor Regional Hospital (WRH), Ouellette Campus, where he was diagnosed with a fractured rib.

The Scene

The scene was an individual holding cell in the detention unit of WPS, 150 Goyeau Street. The cell was in the male inmates’ section of the detention unit.

SIU investigators did not attend or examine the scene.

Video/Audio/Photographic Evidence [1]

Custody Video

On request, the WPS provided the SIU a copy of the video footage of the WPS Detention Unit in connection with the Complainant’s time in custody. The colour video did not have any audio component. The following is a summary of the footage.

At 6:00 p.m., the Complainant, dressed in a blue jumpsuit and booties, stood on a cell bench that ran across the entire length of the wall opposite the camera. The Complainant was agitated as he stood on the bench near the cell door; he moved his hands and shook his head. The Complainant filled a drink box with water from the cell toilet.

At 6:02:50 p.m., the Complainant stood and widened his feet, his right hand on the wall, while he held the drink box out with his left hand. A police officer entered the cell with a shield and pushed the Complainant back towards the wall along the bench as water spilled out of the drink box.

A sergeant entered the cell and assisted in holding the shield against the Complainant. The sergeant stepped up onto the cell bench with the Complainant, as three police officers and two special constables entered the cell. The Complainant resisted and pushed back on the shield.

The Complainant moved away from the corner towards the centre of the bench. A sergeant stood next to the Complainant and attempted to control him with the assistance of two police officers all pushing on the shield.

The Complainant was pushed back into the corner with the shield, as a third special constable entered the cell.

The Complainant turned to face the wall briefly as he continued to resist, his hands out from behind the shield; he moved his feet and punched out from behind the shield with his left hand.

The Complainant fell on the bench and landed on his left side, his back to the wall. The sergeant knelt beside him as police officers held the shield on the Complainant. The Complainant continued to resist. The sergeant and two police officers moved in on the Complainant, and a special constable was close by with the spit hood. The Complainant was no longer visible.

At 6:03:15 p.m., the sergeant (known to be SO #2) who remained knelt on the cell bench delivered a left knee strike to the Complainant. The sergeant’s movement was restricted - his feet were up against the wall at the end of the bench. The sergeant delivered a second left knee strike to the Complainant, and then a third left knee strike. By this time, the sergeant was backed into the corner as the four police officers and two special constables attempted to gain control of the Complainant. The sergeant, squatted on the bench and backed into the corner, delivered a right knee strike; the Complainant was not visible at the time. A special constable took out his handcuffs and attempts were made to handcuff the Complainant.

At 6:03:53 p.m., SO #2 had his right knee on the right side of the Complainant’s upper body as police officers attempted to handcuff him. The Complainant was handcuffed with his hands to the front. The shield was over the Complainant’s face as he moved his head from side to side. He appeared to be yelling, and moved his handcuffed hands as a special constable attempted to put a spit hood over his head. The Complainant fell to the floor as the special constable attempted to put the spit hood on his head.

At 6:04:37 p.m., the Complainant was removed from the cell on his back - the shield was held over his face until the spit hood could be secured. There was a small amount of blood visible near the middle of the cell bench

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the WPS between November 7 and November 22, 2022:

• List of Involved Officers;
• Notes-WO #3;
• Notes-WO #1;
• Notes-SEW #2;
• Notes-SEW #1;
• Notes-WO #2;
• Notes – SEW #3;
• Supplemental Report – SEW #3;
• Supplemental Report – SEW #2;
• Supplemental Report - SEW #1;
• Charge Summary Report;
• Custody video;
• Forensics Report;
• Occurrence Report;
• Property Reports;
• Supplementary Reports; and
• Witness Summary Report.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from other sources:

• WRH medical records of the Complainant.

The evidence collected by the SIU, including video footage that captured the incident in parts, gives rise to the following scenario. As was their legal right, the subject officials declined an interview with the SIU and to authorize the release of their notes.

In the afternoon of October 31, 2022, the Complainant was in police cells having been arrested for causing damage to a vehicle outside the police station. Following a video hearing, the Complainant was remanded into the custody of the SWDC. This upset the Complainant, who resolved not to leave his cell for transportation to the correctional facility. Special constables in charge of transporting prisoners to the SWDC brought the matter to the attention of WO #1.

WO #1 attended at the Complainant’s cell and tried to reason with him. The Complainant remained adamant that he would not willingly participate in his removal from the cell. In fact, he indicated that he would physically resist any such efforts.

WO #1 brought the matter to the attention of SO #2, who had arrived to relieve him. A plan was formulated for the Complainant’s extrication from the cell. A team of officers would enter the cell, led by SO #3 equipped with a shield. The shield would be used to pin the Complainant against a surface while the other officers worked to secure him in handcuffs.

Shortly after 6:00 p.m., the cell door was opened and SO #3 entered with his shield. The officer moved quickly to pin the Complainant, standing on the bench, against a corner of the cell. The Complainant spit at the officers, struck at the shield, and managed to move a distance along the cell wall. Other officers attempted to corral the Complainant’s movements. Within moments, the Complainant was taken down, landing on his back on the cell bench. He continued to struggle against the officers’ efforts, and was met with four knee-strikes by SO #2. The sergeant then placed a knee on the right side of the Complainant’s torso as other officers handcuffed him to the front.

Once handcuffed, the Complainant was dragged out of the cell to the hallway. There was some blood visible on his forehead.

Paramedics were called to the scene and transported the Complainant to hospital. He was eventually diagnosed with two right lateral rib fractures.

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,

The Complainant was seriously injured while in the custody of the WPS on October 31, 2022. In the ensuing SIU investigation, SO #1, SO #2 and SO #3 were identified as subject officials. 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 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.

The Complainant was in lawful custody at the time of the events in question and the officers were within their rights in seeking to transport him to a correctional facility. When the Complainant indicated he would resist those efforts, and then did so, the subject officials had cause to react with a measure of force to accomplish their task.

With respect to the force used by the officers, I am satisfied that it did not exceed what was reasonably necessary in the circumstances. The officers were entitled to enter the cell with a show of force given the Complainant’s warning of a fight to remove him. Indeed, the Complainant did put up a fight. He struck at the shield and the officers, spit in their direction, and refused to release his arms to be handcuffed. The officers reacted for the most part by grappling with the Complainant to control his movements. Aside from the four knee strikes captured by the cell camera, it does not appear that any other blows were delivered by the officers. With respect to the knee strikes, these were delivered at a time when the Complainant was still struggling against the officers. The subsequent placement of the knee on the Complainant’s torso to restrict his movements was also done to facilitate the process of securing the Complainant’s arms in handcuffs. On this record, I am unable to reasonably conclude that any of the officers, including the subject officials, acted with excess in their dealings with the Complainant.

In the result, while I accept that the Complainant’s fractured ribs were incurred in the altercation inside the cell involving the three subject officials, there are no reasonable grounds to believe that any of them comported themselves other than lawfully throughout the engagement. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: March 1, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit