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:

• 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 Personal 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.

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

• 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.

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 19-year-old man (“Complainant #1”) and an 18-year-old man (“Complainant #2”).

Notification of the SIU[1]

On January 5, 2024, at 10:56 a.m., the Windsor Police Service (WPS) contacted the SIU with the following information.

At 10:00 a.m., Complainant #1 and his father attended the WPS Professional Standards Branch and filed a complaint against the Subject Official (SO). The SO was working a paid duty at Caesars Casino, 377 Riverside Drive East, on New Year’s Eve. At about 1:20 a.m., Complainant #1 and two friends were asked to leave a bar inside the casino (Ariius nightclub[2]) due to intoxicated behaviour. A physical altercation ensued, and the three males were arrested and transported to the nearby WPS headquarters where they were temporarily lodged until sober. They were released in the morning. Between January 1 and 5, 2024, Complainant #1 attended the Lakeshore Heath Centre in Belle River where he was diagnosed with a concussion. Complainant #1 later attended the Windsor Regional Hospital Metropolitan Campus for a computed tomography scan to confirm the concussion diagnosis. It was later determined that his friend, Complainant #2, was also diagnosed with a concussion.

The Team

Date and time team dispatched: 2024/01/05 at 12:06 p.m.

Date and time SIU arrived on scene: 2024/01/05 at 1:37 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

Complainant #1 19-year-old male; interviewed; medical records obtained and reviewed

Complainant #2 18-year-old male; interviewed; medical records obtained and reviewed

The Complainants were interviewed between January 8 and 12, 2024.

Civilian Witnesses (CW)

CW #1 Interviewed

CW #2 Interviewed

CW #3 Interviewed

CW #4 Interviewed

The civilian witnesses were interviewed between January 12 and 17, 2024.

Subject Official

SO Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Interviewed; notes received and reviewed

The witness officials were interviewed between January 12 and 15, 2024.

The Scene

The events in question transpired by an elevator bay on the ground floor of Caesars Casino, 377 Riverside Drive East, Windsor.

Video/Audio/Photographic Evidence[3]

Video Footage - Caesars Casino

A group of seven males were outside the entrance to the Ariius nightclub. Complainant #1 could be seen speaking and making movements consistent with jabbing and throwing punches. He then motioned to the right side of his head and imitated a punch being thrown, followed by him rubbing his forehead. CW #1 went closer to look at his head. Complainant #1 continued mimicking actions consistent with a fight, such as throwing punches.

Starting at about 1:24 a.m., January 1, 2024, the SO and WO #2 approached the group of males and spoke primarily with Complainant #1 and CW #1. The group of males then walked away towards the skybridge. After a short time, the SO and WO #2 addressed the males again. Complainant #1 continued imitating a fight as Complainant #2 was primarily engaged with the police officers. Starting at about 1:27 a.m., the SO unholstered his CEW and walked towards the group of males. The group continued walking away, and the officer re-holstered the CEW. Casino security staff were present at the time. Complainant #1, Complainant #2 and CW #1 separated from the group of seven, and they, the police officers and the casino security entered a stairwell.

At 1:29 a.m., the SO pushed the three males through a stairwell door into a lobby. Complainant #1 proceeded backward out the door while CW #1 came out facing forward. Complainant #2 was pushed into his friends and fell onto the floor, but did not land on his head. Complainant #1 began to take a video on his cellular telephone. The SO grabbed Complainant #2’s right arm as WO #2 came to the threshold of the door. There was a minor struggle and Complainant #2 went towards the ground and the SO came down with his knees on top of Complainant #2. WO #2 walked towards the SO and Complainant #2 as CW #2 walked into the lobby. CW #1 walked away.

The remainder of the arrest of Complainant #2 was blocked as there were people hovering about in the vicinity. CW #3 approached Complainant #1 while he was video-recording and appeared to ask him to move away from the arrest. Shortly thereafter, the SO stood up and approached Complainant #1, who was walking slowly backward, grabbed his right wrist and placed a handcuff on it. CW #2 grabbed the left arm and Complainant #1 went down onto his knees and then forward onto the floor. Starting at about 1:30 a.m., CW #3 held his legs as the SO placed Complainant #1 in handcuffs behind his back. WO #2 and CW #4 still held Complainant #2 on the ground. The SO removed Complainant #1’s telephone from his hands, and he remained lying on the floor. The telephone was blocked by the SO’s body as he appeared to be looking at it.

Starting at about 1:32 a.m., CW #1 returned as numerous police officers began to arrive. CW #1 backed through the double doors and was arrested without incident. The lobby became busy between patrons, staff, and police officers.

Starting at about 1:40 a.m., Complainant #2 was taken outside to Chatham Street exit, followed by Complainant #1 and then CW #1.

Video Footage - WPS Transport Vehicle

Complainant #1, Complainant #2 and CW #1 were all placed in separate compartments. Complainant #2 told his friends not to say anything until they got their lawyers. Complainant #2 indicated to a police officer he was arrested for no reason, and this was amazing because he would get one million dollars tomorrow. He would call the situation “awesome” and thanked the police for the lawsuit because he knew his rights. CW #1 told the other two to shut up, cooperate, and they would not be getting anything. After 16 minutes, they were removed at the WPS detention unit.

Communications Recordings & Computer-assisted Dispatch (CAD) Report

The first transmission involved WO #2 requesting a prisoner transport vehicle, after which he said, “Can we just get a couple of units out here please, ASAP to step it up. We got a few people causing a disturbance on G level Chatham Street exit, north side, casino.” As units acknowledged they would assist, WO #2 broadcast, “We’ve got two in custody.”

There were further radio transmissions about getting a transport vehicle and checking the males on CPIC.[4] Radio transmissions had to be repeated due to the background noise level.

Eventually, a WPS transport vehicle attended to take three males to the WPS detention unit.

Materials Obtained from Police Service

Upon request, the SIU obtained the following materials from the WPS between January 5, 2024, and January 10, 2024:

• Communications recordings;
• CAD Report;
• Notes - WO #1;
• Notes - WO #3;
• Notes - WO #2;
• Video from prisoner transport vehicle;
• Call Summary Report; and
• Occurrence Report.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between January 12, 2024, and February 15, 2024:

• Copies of text messages from Complainant #1;
• Photographs of Complainant #1’s injuries;
• Two cellular telephone video clips provided by Complainant #2;
• Video Footage from the Caesars Windsor Casino; and
• Medical records from Lakeshore Health Centre, Belle River, for Complainant #2 and Complainant #1.

The evidence collected by the SIU, including interviews with Complainant #1 and Complainant #2, and other police and non-police eyewitnesses, as well as video footage that captured the incident in parts, gives rise to the following scenario. As was his legal right, the SO did not agree an interview with the SIU or the release of his notes.

Complainant #1 and Complainant #2, together with other friends, attended the Ariius Nightclub at the Windsor Casino on New Year’s Eve. Some of them became embroiled in a fight inside the club and the group was asked to leave. They lingered outside the nightclub’s doors for a period before being approached by WPS officers and directed to leave the premises.

The officers – the SO and WO #2 – were working a paid-duty at the casino. Accompanied by casino security staff, the officers escorted the group of males across the skybridge to a bay of elevators where they were to make their way to ground level and depart. It was a busy time and the officers decided they would take the stairwell instead.

With Complainant #1 and Complainant #2, and another friend (CW #1) leading the way, the party descended the stairs. Words were exchanged between the police and the clubgoers. The latter, intoxicated and upset, were vulgar with the officers. The SO repeatedly reminded them to keep moving or they would be considered trespassers. On the ground floor landing, the stairwell doorway opened and the SO shoved the threesome through it. Complainant #2 fell onto the floor in the process. Moments later, the SO exited through the door, took hold of Complainant #2 as he had righted himself, and placed him on the floor again. With the assistance of WO #2 and casino security personnel, the SO handcuffed Complainant #2 behind the back.

Complainant #1, who had stuck around to video-record what was happening to Complainant #2, was next to be arrested. When he was done with Complainant #2, the SO moved towards Complainant #1, took hold of him, guided him to the floor, and handcuffed him as well.

Complainant #1, Complainant #2 and CW #1, CW #1 having initially left the area but then also arrested when he returned, were transported from the scene to the police station. They were issued trespassing notices and eventually released.

Complainant #1 and Complainant #2 sought medical treatment and were each diagnosed with a concussion.

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, 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.

Complainant #1 and Complainant #2 were diagnosed with serious injuries following their arrests by WPS officers on January 1, 2024. The SIU was notified of the incident and initiated an investigation naming the SO 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 matter.

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.

Complainant #1 and Complainant #2 did not immediately leave the premises when asked to do so. They initially lingered outside the nightclub’s doors and then took their time making their way down the stairs under escort. The SO repeatedly told them they were trespassing and had to keep moving, even nudging CW #1 forward on one occasion to keep him going. As the threesome arrived at the ground-floor stairwell door, there is evidence that they delayed moving through the doorway. Complainant #1 had his back facing the door and was turned towards the officers, video-recording with his phone. During their trip down the stairs, the threesome goaded the officers – one of them asking whether the police “wanted to go”. On this record, I am unable to reasonably conclude that the SO was without cause when he moved to arrest Complainant #2 under section 9 of the Trespass to Property Act. The same may be said with greater force in the case of Complainant #1, who remained on the premises to video-record his friend’s arrest.

With respect to the force brought to bear by the SO, the evidence falls short of any reasonable suggestion that it was excessive. Much if not all of what transpired during the arrests was captured by casino security cameras. By the time of the shove through the door, there is evidence that one or more of the threesome had come to a stop at the bottom of the stairwell landing. Having repeatedly warned the young males to continue their exit, even nudging one of them along at one point, it would not appear that the escalation in force was disproportionate to the situation at hand. With respect to the takedowns, Complainant #1 and Complainant #2 were each taken to the floor with minimal force. Thereafter, though it appears the SO used a knee to the upper bodies of both males to keep them pinned prone on the ground as he secured them in restraints, there is no indication in the footage that this was done with undue force. Nor is there evidence of strikes of any kind having been used against either Complainant #1 or Complainant #2.

In the result, whether Complainant #1’s or Complainant #2’s concussions were incurred in the course of their arrests,[5] I am satisfied that the SO comported himself within the confines of the criminal law in his dealings with both individuals. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: May 3, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit