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 injury of a 28-year-old woman (the “Complainant”).

Notification of the SIU [1]

On March 2, 2023, at 4:31 a.m., the Windsor Police Service (WPS) notified the SIU of an injury to the Complainant.

According to the WPS, the Civilian Witness (CW) contacted the WPS on the evening of March 1, 2023, to have the Complainant removed from her home in the area of Little River Road and Lauzon Road, Windsor, because she was consuming drugs in the basement. WPS officers attended the residence that evening and, after talking to the Complainant, she left without incident. On March 2, 2023, at approximately 2:00 a.m., the CW called the WPS again to report that the Complainant had returned and attempted to re-enter the home. The same two WPS officer returned and located the Complainant on the property. She was again asked to leave. The Complainant refused, and she was arrested. During the interaction, the Complainant’s right arm was injured. She was taken to the Windsor Regional Hospital Metropolitan Campus (WRHMC) for medical assessment, where she was diagnosed with a fractured right arm.

The Team

Date and time team dispatched: 03/02/2023 at 5:19 a.m.

Date and time SIU arrived on scene: 03/02/2023 at 3:30 p.m.

Number of SIU Investigators assigned: 4

The Scene

The events in question transpired in the backyard of a home in the area of Little River Road and Lauzon Road, Windsor.

This scene was not examined by SIU investigators as it was determined that there would be little, if any, evidentiary value in doing so.

Video/Audio/Photographic Evidence [2]

Police Communications Recordings

On March 1, 2023, at 8:16 p.m., the CW contacted police and advised she wanted the Complainant removed from the house because she had consumed a recreational drug in the basement.

At 11:05 p.m., WO #1 and the SO were dispatched to the home in Windsor. A dispatcher advised that the Complainant had been trespassed from the property.

At 11:20 p.m., WO #1 and the SO arrived on scene. They stood by while the Complainant left the house.

On March 2, 2023, at 2:01 a.m., the CW made another phone call to the WPS and advised the Complainant had returned. The Complainant did not have a key to get into the house and had banged on the door to get in.

At 2:36 a.m., a dispatcher called the CW and advised police officers were checking around the exterior of the house.

WO #1 or the SO subsequently advised that the Complainant was in custody and an ambulance was required for an arm injury. She had resisted arrest while being handcuffed.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the WPS between March 3, 2023, and April 20, 2023:

• Arrest policy;
• Use of Force policy;
• Mobile Data Terminal messages;
• Record of computer-assisted dispatch;
• Communications recordings;
• The Complainant - Local Contact Information;
• Investigative Actions-SO;
• Notes-SO;
• Notes-WO #1;
• Notes-WO #2;
• Training records for WO #1 and the SO;
• Statement of the CW as taken by WO #1;
• Supervisory Report-WO #2; and
• Supplementary Reports.

Materials Obtained from Other Sources

The SIU obtained and reviewed the following records from other sources on March 14, 2023:

• Medical records of the Complainant from WRHMC.

The material events in question are clear on the weight of the evidence collected by the SIU and may briefly be summarized.

In the early morning hours of March 2, 2023, the SO was dispatched with WO #1 to a residence in the area of Little River Road and Lauzon Road, Windsor. The homeowner – the CW – had called police to have the Complainant removed from the property. The same two officers had hours earlier removed the Complainant from inside the home at the request of the CW, who was distressed with the Complainant’s drug use. She had left without incident at the time, but had now returned to sleep in the backyard shed.

Upon being located in the shed, the Complainant argued for a period with the officers but ultimately stood from the chair she was sitting on and exited the structure. The officers advised her she was under arrest for trespassing and escorted her towards a deck to secure her in handcuffs. As her right arm was being placed behind her back, a “pop” was heard. The Complainant had suffered a spiral fracture of the upper right arm.

The SO had control of the Complainant’s right arm as WO #1 held her left. Having affixed a cuff on her right arm, the Complainant’s pulled her arm forward and free of the officer’s grasp. The officer struggled to re-assert control of the right arm for a brief period before he pulled it back behind the Complainant’s back, at which time he too heard the “pop”.

Following her arrest, the Complainant was taken to hospital where her injury was diagnosed.

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,

Section 9, 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.

The Complainant was seriously injured in the course of her arrest by WPS officers on March 2, 2023. In the ensuing SIU investigation of the incident, one of the officers – 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.

There are no questions raised in the evidence with the lawfulness of the Complainant’s arrest. Given her prior interaction with the officers that same night, the Complainant would have clearly understood that she was not wanted on the property. Accordingly, when she returned, the officers were within their rights in taking her into custody under section 9 of the Trespass to Property Act.

The injury to the Complainant’s arm was unfortunate, but I am unable to attribute it to excessive force on the part of the SO. The Complainant had pulled her right arm away and was swinging it, giving the appearance of resisting arrest. There was a need in the moment to re-assert control of the arm, particularly as the cuffs dangling from the Complainant’s right wrist might have struck the officers if left unchecked. The SO did just that by wrestling control of the arm and forcing it behind the back. Whether the officer measured his force with precision is unclear; perhaps lesser force might have accomplished the same objective. Be that as it may, the test is one of ‘reasonable’ force, not exacting force. In the circumstances, I am satisfied that the officer did not overstep what was reasonable in the circumstances to overcome the Complainant’s resistance.

In the result, while I accept that the force used by the SO broke the Complainant’s arm, there are no reasonable grounds to conclude that the injury was attributable to unlawful conduct on the part of the officer. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.


Date: June 29, 2023

Electronically approved by

Joseph Martino
Director
Special Investigations Unit