SIU Director’s Report - Case # 22-OCI-323
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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 section 14 (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 of a 58-year-old man (the “Complainant”).
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 of a 58-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On December 22, 2022, at 8:42 a.m., the Windsor Police Service (WPS) contacted the SIU with the following information.On December 21, 2022, at 10:31 p.m., police officers responded to an address in Riverside at the request of a homeowner, Civilian Witness (CW) #1. CW #1 had become involved in a verbal and physical altercation with his tenant, the Complainant, and was requesting he be removed from the home. When the Complainant declined police requests to leave the premise, he was arrested under the Trespass to Property Act. The Complainant resisted and a struggle ensued in which he kicked three individual police officers, resulting in one of the officers suffering a fractured hand. Once the Complainant was brought under control, it was revealed that he was bleeding from his left ear. The Complainant was transported by Emergency Medical Services (EMS) to the Windsor Regional Hospital-Ouellette Campus (WRH-OC). There, he was diagnosed with a fractured nose and received three stitches to his left ear. The Complainant remained at hospital and was awaiting a MRI. Once released from hospital, the Complainant was returned to the WPS, where he was to be held for a bail hearing on charges of Assault Police and Assault Causing Bodily Harm.
The Team
Date and time team dispatched: 12/22/2022 at 9:10 a.m.Date and time SIU arrived on scene: 12/22/2022 at 3:12 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
58-year-old male; interviewed; medical records received and reviewedThe Complainant was interviewed on December 22, 2022.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
The civilian witnesses were interviewed between December 22, 2022, and January 18, 2023.
Subject Officials (SO)
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO Declined interview and to provide notes, as is the subject official’s legal right
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on December 30, 2022.
Evidence
The Scene
The events in question transpired in the living room of an apartment in Riverside, Windsor.The SIU did not attend the scene.
Video/Audio/Photographic Evidence [2]
WPS Communication Recordings
On January 4, 2023, the WPS provided the SIU copies of all pertinent audio communications - radio and telephone - in relation to the events of December 21, 2022.911 Call
Starting at about 10:21:15 p.m., CW #1 requested police assistance at an apartment in Riverside. He could be heard yelling, “You attacked me in my house.” CW #1 told the 911 operator he had been assaulted by the Complainant and wanted him removed from the apartment. When asked, CW #1 said they both had consumed alcohol. The Complainant was aware CW #1 had called the WPS. CW #1 said no ambulance was required, as it had been a “little scuffle” and there were no injuries. The Complainant had raised his hand to strike CW #1, and CW #1 had defended himself by taking the Complainant to the ground.
Radio Transmissions [3]
Starting at about 10:34:49 p.m., SO #1 was captured confirming there was an arrest warrant in existence for the Complainant. The WPS dispatcher confirmed the Complainant was wanted by the Middlesex Ontario Provincial Police (OPP), and indicated that two police officers should respond when dealing with the Complainant because of a history of violence.
Starting at about 10:58:47 p.m., WO #1 was dispatched to assist SO #1 as CW #1 had requested assistance in having the Complainant removed from the home.
Starting at about 10:59:01 p.m., the dispatcher notified WO #1 that the Complainant was resisting arrest. There was a note to send a minimum of two police officers to respond to the Complainant.
Starting at about 11:04:02 p.m., SO #2 was dispatched to assist SO #1 and WO #1.
Starting at about 11:07:31 p.m., WO #1 and SO #2 were told by the dispatcher that the Complainant was still there and refusing to leave.
Starting at about 11:11:00 p.m., WO #1 asked the dispatcher if the warrants were “confirmed” and if the OPP would attend to return the Complainant to their detachment.
Starting at about 11:14:37 p.m., WO #1 reported the Complainant was in custody.
Starting at about 11:31:40 p.m., SO #1 requested the police transport vehicle attend quickly, as the Complainant was beginning to get assaultive with police officers. SO #1 then requested that EMS attend at the scene.
Starting at about 11:32:06 p.m., WO #1 also requested that EMS attend for a cut on the Complainant’s ear.
Starting at about 11:35:17 p.m., WO #1 requested that another police unit attend the residence to assist. WO #3 and WO #2 were dispatched.
Starting at about 11:43:38 p.m., SO #2 asked if any of the police officers had a “spit hood”.
On December 22, 2022, starting at about 12:09:36 a.m., the Complainant was transported to the WRH-OC.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the WPS between December 23, 2022, and January 4, 2023:- Communications recordings;
- Notes-WO #3;
- Notes-WO #1;
- Notes-WO #2;
- Contacts with WPS;
- Supplementary Report-WO #3;
- Supplementary Report-WO #1;
- Supplementary Report-WO #2;
- Record of CAD;
- Policy-Use of Force;
- Policy-Arrest; and
- Policy-Search of Persons.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Ambulance Call Report from Essex EMS; and
- The Complainant’s medical records from WRH.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and civilians present for portions of the incident under investigation, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU or to authorize the release of their notes.
In the evening of December 21, 2022, police officers were called to an apartment building in Riverside following a 911 call. The proprietor of a unit – CW #1 – had called police to seek their assistance in removing the Complainant from the residence. The Complainant, who had been staying with CW #1, had refused to leave the premises when directed and fought with CW #1.
SO #1 and SO #2 arrived at the residence. They were joined by WO #1. Told that he had to leave the premises, the Complainant refused and was arrested by the officers. When SO #2 attempted to search him inside the unit, the Complainant began to flail and kick out, striking the officer in the groin. SO #2 and SO #1 reacted by delivering several strikes at the Complainant and forcing him onto the living room sofa. The Complainant was able to right himself off the sofa and attack SO #1. Again, the officers struck the Complainant several times and forced him down, this time onto the floor. There, they kept him pending the arrival of paramedics, who had been called to the scene by WO #1 when he noticed the Complainant bleeding from a cut to the ear.
Two paramedics arrived at the scene and asked that the Complainant be seated so he could be assessed. SO #1, with the help of WO #2 – the latter arriving at the unit after the takedown on the floor – lifted the Complainant to a standing position. Once on his feet, the Complainant was asked by SO #1 to step off his foot. When he failed to do so, the officer pushed the Complainant onto the sofa. From the sofa, the Complainant again lashed out with his feet, this time striking WO #2 in the groin area. SO #1 struck the Complainant’s face, after which the officers forced him onto the floor in a prone position.
The Complainant was fitted with a spit hood, chemically sedated by one of the paramedics, and taken to hospital. He was diagnosed with a broken nose.
In the evening of December 21, 2022, police officers were called to an apartment building in Riverside following a 911 call. The proprietor of a unit – CW #1 – had called police to seek their assistance in removing the Complainant from the residence. The Complainant, who had been staying with CW #1, had refused to leave the premises when directed and fought with CW #1.
SO #1 and SO #2 arrived at the residence. They were joined by WO #1. Told that he had to leave the premises, the Complainant refused and was arrested by the officers. When SO #2 attempted to search him inside the unit, the Complainant began to flail and kick out, striking the officer in the groin. SO #2 and SO #1 reacted by delivering several strikes at the Complainant and forcing him onto the living room sofa. The Complainant was able to right himself off the sofa and attack SO #1. Again, the officers struck the Complainant several times and forced him down, this time onto the floor. There, they kept him pending the arrival of paramedics, who had been called to the scene by WO #1 when he noticed the Complainant bleeding from a cut to the ear.
Two paramedics arrived at the scene and asked that the Complainant be seated so he could be assessed. SO #1, with the help of WO #2 – the latter arriving at the unit after the takedown on the floor – lifted the Complainant to a standing position. Once on his feet, the Complainant was asked by SO #1 to step off his foot. When he failed to do so, the officer pushed the Complainant onto the sofa. From the sofa, the Complainant again lashed out with his feet, this time striking WO #2 in the groin area. SO #1 struck the Complainant’s face, after which the officers forced him onto the floor in a prone position.
The Complainant was fitted with a spit hood, chemically sedated by one of the paramedics, and taken to hospital. He was diagnosed with a broken nose.
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.
Section 9 (1), Trespass to Property Act – Arrest Without Warrant on Premises
9 (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer.
(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by WPS officers on December 21, 2022. The officers – SO #1 and SO #2 – were identified as the subject officials in the ensuing 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 the officers had learned from CW #1, and the Complainant’s refusal to vacate the property when directed, I am unable to reasonably conclude that SO #1 and SO #2 acted without lawful authority when they moved in to arrest the Complainant for trespass under section 9 of the Trespass to Property Act.
With respect to the force used by the officers, namely, multiple strikes and takedowns of the Complainant, I am satisfied that it constituted legally justified force. When the Complainant vigorously resisted arrest and struck out at the officers, the officers were within their rights in attempting to overcome his resistance by delivering strikes of their own and taking him to the floor where any additional resistance could be better managed. And they appear to have done so in a measured and proportionate manner, the overall quantum of force divvied into two segments, each precipitated by the Complainant’s combativeness and violence.
In the result, while I accept that the Complainant’s nose was broken in the altercation with police that marked his arrest, there are no reasonable grounds to believe that either SO #1 or SO #2 comported themselves other than lawfully throughout their engagement. The file is closed.
Date: April 14, 2023
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.
Given what the officers had learned from CW #1, and the Complainant’s refusal to vacate the property when directed, I am unable to reasonably conclude that SO #1 and SO #2 acted without lawful authority when they moved in to arrest the Complainant for trespass under section 9 of the Trespass to Property Act.
With respect to the force used by the officers, namely, multiple strikes and takedowns of the Complainant, I am satisfied that it constituted legally justified force. When the Complainant vigorously resisted arrest and struck out at the officers, the officers were within their rights in attempting to overcome his resistance by delivering strikes of their own and taking him to the floor where any additional resistance could be better managed. And they appear to have done so in a measured and proportionate manner, the overall quantum of force divvied into two segments, each precipitated by the Complainant’s combativeness and violence.
In the result, while I accept that the Complainant’s nose was broken in the altercation with police that marked his arrest, there are no reasonable grounds to believe that either SO #1 or SO #2 comported themselves other than lawfully throughout their engagement. The file is closed.
Date: April 14, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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]
- 3) The times were derived by cross-referencing the transmissions with the record of the computer-assisted dispatch (CAD). [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.