SIU Director’s Report - Case # 23-OCI-004
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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 42-year-old woman (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 42-year-old woman (the “Complainant”).
The Investigation
Notification of the SIU [1]
On January 4, 2023, at 11:44 a.m., the Windsor Police Service (WPS) contacted the SIU with the following information.On January 2, 2023, at about 7:00 p.m., the Subject Official (SO) was off-duty and in his personal vehicle, stopped at the intersection of Banwell Road and McNorton Street, when he observed a woman spraying a substance on the church doors by the intersection. He rolled down his window and yelled for her to stop but she did not comply. He got out of his vehicle to confront her, and she fled. The SO chased and apprehended her, grounding her in the process. He identified himself as a police officer and told her she was under arrest. WPS officers responded and commenced an investigation. It turned out that the substance that was sprayed was believed to be tanning spray that could be easily washed off. The church was not interested in pursuing charges. The woman was identified as the Complainant. She complained of having some pain in her leg. She was offered medical assistance but declined. The Complainant was released unconditionally at the scene. Later that evening, the Complainant called an ambulance. She was taken to the Windsor Regional Hospital (WRH) Metropolitan Campus, and had since reported that she was diagnosed with a fractured hip.
The Team
Date and time team dispatched: 01/04/2023 at 1:32 p.m.Date and time SIU arrived on scene: 01/04/2023 at 2:04 p.m.
Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
42-year-old female; interviewed; medical records obtained and reviewedThe Complainant was interviewed on January 5, 2023.
Subject Official
SO Interviewed; notes received and reviewed The subject official was interviewed on January 26, 2023.
Witness Officials
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
The witness officials were interviewed on January 11, 2023.
Evidence
The Scene
The scene was the exterior of a church located at 2400 Banwell Road, Windsor. Video/Audio/Photographic Evidence [2]
Video Canvass
On January 5, 2023, SIU investigators attended the arrest scene, which was the northeast corner of the church located at 2400 Banwell Road, Windsor. There were no cameras located at the church, nor were any located at Heron Terrace (situated a 11550 McNorton Street) or at residences that backed onto the church property. Two traffic cameras were located at the intersection of Banwell Road and McHugh Street/McNorton Street. The Executive Director of Operations, City of Windsor, advised the traffic cameras were used for traffic detection only because of the lack of bandwidth in the area; there was no ability to record.
Calls to WPS Professional Standards Branch (PSB)
At 3:28 p.m., on January 9, 2023, the SIU received a copy of six telephone messages the Complainant had left on the WPS PSB answering machine. On January 6, 2023, the Complainant left a message that she wanted a follow-up telephone call after being assaulted on January 4, 2023. She mentioned she spoke to the SIU on January 5, 2023. All of the messages were reviewed and, on the fifth call, the Complainant went into detail about the event, saying she was almost murdered by the SO. She said the WPS officer did not identify himself, and then tackled her from behind and dropped kicked her so hard it felt she was hit by a train. She thought she had whiplash. The SO punched her twice in the head, which caused ringing in her ears, and she could presently not hear out of her left ear. The SO then jumped on her so hard that he broke the Complainant’s hip, after which the SO crashed his body into hers. Her arm was ripped and twisted so that at any second it could have been snapped. She was unable to breathe. As the event unfolded, the Complainant said that she administered her last rights three times in her head.
Communications Recordings
At 3:28 p.m., on January 9, 2023, the SIU received a copy of the WPS communications recordings and computer-assisted dispatch (CAD) report pertinent to the incident under investigation. The CAD reported was used to cross-reference transmissions with times.At 7:13 p.m., on January 2, 2023, the CAD report indicated, “Broke doors, spray-painted, has toilet cleaner with her and tried to run.”
At 7:14 p.m., WPS dispatch sent WO #1 and WO #3 to assist an off-duty officer (the SO). The SO was holding a woman for vandalism behind the church.
At 7:27 p.m., a records check was done on the Complainant.
At about 7:56 p.m., the Complainant was transported to an unreported location [3] one kilometre from the church.
Photographs Submitted by the Complainant
On January 5, 2023, the Complainant told SIU investigators she had sustained bruises all over her body. The Complainant was told medical records would be relied upon to substantiate her reported injury in line with the SIU mandate. On January 6, 2023, at 11:15 a.m., the Complainant shared photographs taken with her cellular phone. The photographs were forwarded via text message to a SIU investigator. The series of 14 pictures received included an ear, several photographs depicting bruises to both arms, beneath her shoulder blade, upper outer thigh, and small bruises down the front of one leg.
On January 7, 2023, at 3:15 p.m., the Complainant contacted a SIU investigator via text message indicating she noticed that day her left ear was still ringing; she could barely hear from it, and the skin around her ear was extremely irritated with visible sores and red blotches. The two pictures received showed slight redness to the ear.
The 16 photographs were submitted to file as evidence. None of the photographs depicted an injury to the hip.
On January 9, 2023, at 6:36 p.m., the Complainant contacted a SIU investigator via text message with three photographs of the clothing she wore at the time of the incident. The white winter hooded jacket and black pants had dirt/mud on the front and back. The three photographs were submitted to file as evidence.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the WPS between January 9 and January 26, 2023:- The Complainant’s WPS History;
- Photograph taken of church doors by WO #1;
- CAD;
- Communications recordings;
- Dispatch Log;
- Notes - SO;
- Notes – WO #1;
- Notes - WO #3;
- Notes - WO #2; and
- WO #1 - Initial Officer’s Report.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - The Complainant’s medical records from WRH, Metropolitan Campus;
- Text message screen prints between SIU and the Complainant; and
- Pictures taken by the Complainant of bruising to various parts of her body.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.
In the evening of January 2, 2023, the Complainant attended the Banwell Community Church located at the southeast corner of the intersection of Banwell Road and McHugh Street / McNorton Street. She sprayed a message on the church doors and poured the liquid contents of a jar onto the grounds outside the doors.
The SO was off-duty at the time and in his pick-up truck on Banwell Road. He observed the Complainant spraying the doors and contacted the WPS seeking the attendance of uniformed officers. When the Complainant began to walk away from the doors, the SO followed her, telling her to stop. The Complainant picked up her pace and ran along the church exterior with the officer in foot pursuit. He eventually caught up to, and made contact with, her, whereupon the two went to ground.
The Complainant attempted to free herself on the ground but was unsuccessful; the SO kept her pinned until the arrival of other officers.
The Complainant was released unconditionally at the scene when the church indicated it did not wish to pursue charges.
The following day, the Complainant went to hospital and was eventually diagnosed with a fractured right hip.
In the evening of January 2, 2023, the Complainant attended the Banwell Community Church located at the southeast corner of the intersection of Banwell Road and McHugh Street / McNorton Street. She sprayed a message on the church doors and poured the liquid contents of a jar onto the grounds outside the doors.
The SO was off-duty at the time and in his pick-up truck on Banwell Road. He observed the Complainant spraying the doors and contacted the WPS seeking the attendance of uniformed officers. When the Complainant began to walk away from the doors, the SO followed her, telling her to stop. The Complainant picked up her pace and ran along the church exterior with the officer in foot pursuit. He eventually caught up to, and made contact with, her, whereupon the two went to ground.
The Complainant attempted to free herself on the ground but was unsuccessful; the SO kept her pinned until the arrival of other officers.
The Complainant was released unconditionally at the scene when the church indicated it did not wish to pursue charges.
The following day, the Complainant went to hospital and was eventually diagnosed with a fractured right hip.
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 seriously injured in the course of her arrest in Windsor on January 2, 2023. In the ensuing SIU investigation, the arresting officer – 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.
The evidence establishes that the Complainant used a spray of some sort to write a message on the front doors of the Banwell Community Church and then broke a jar on the church’s property, releasing another liquid onto the grounds. In the circumstances, I am satisfied that the SO, having observed her do so, was within his rights in seeking to arrest the Complainant for mischief.
With respect to the force used by the SO in aid of the Complainant’s arrest, I am unable to reasonably conclude that it was excessive. The officer acknowledges that he intentionally made contact with the Complainant’s right shoulder as he chased her around the church in an effort to bring her flight to an end. Contact of one form or another was going to be required if the Complainant was to be stopped, and there is no indication on the officer’s account that the force he used was overly aggressive. Rather, it appears that the contact simply caused them, each running at the time, to lose balance and fall, a risk that would have followed contact of any nature in that circumstances. Thereafter, the SO says he used his manpower to keep the Complainant pinned to the ground as she attempted to free herself. No strikes of any kind were delivered.
There is some evidence that paints a greater use of force by the SO, but it would be unwise and unsafe to rest charges on the strength of this evidence. The source of the evidence provided different accounts of the nature and extent of the force used against the Complainant. And there were other problems of reliability associated with the evidence. These considerations lead me to conclude that her evidence, stacked against the evidence of the subject official, is insufficiently cogent to warrant being put to the test by a court.
In the result, while I accept that the Complainant’s injury was incurred in her encounter with the SO, there are no reasonable grounds to believe that it was attributable to any unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges in this case.
Date: May 3, 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.
The evidence establishes that the Complainant used a spray of some sort to write a message on the front doors of the Banwell Community Church and then broke a jar on the church’s property, releasing another liquid onto the grounds. In the circumstances, I am satisfied that the SO, having observed her do so, was within his rights in seeking to arrest the Complainant for mischief.
With respect to the force used by the SO in aid of the Complainant’s arrest, I am unable to reasonably conclude that it was excessive. The officer acknowledges that he intentionally made contact with the Complainant’s right shoulder as he chased her around the church in an effort to bring her flight to an end. Contact of one form or another was going to be required if the Complainant was to be stopped, and there is no indication on the officer’s account that the force he used was overly aggressive. Rather, it appears that the contact simply caused them, each running at the time, to lose balance and fall, a risk that would have followed contact of any nature in that circumstances. Thereafter, the SO says he used his manpower to keep the Complainant pinned to the ground as she attempted to free herself. No strikes of any kind were delivered.
There is some evidence that paints a greater use of force by the SO, but it would be unwise and unsafe to rest charges on the strength of this evidence. The source of the evidence provided different accounts of the nature and extent of the force used against the Complainant. And there were other problems of reliability associated with the evidence. These considerations lead me to conclude that her evidence, stacked against the evidence of the subject official, is insufficiently cogent to warrant being put to the test by a court.
In the result, while I accept that the Complainant’s injury was incurred in her encounter with the SO, there are no reasonable grounds to believe that it was attributable to any unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges in this case.
Date: May 3, 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) Believed to be the home of the Complainant. [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.