SIU Director’s Report - Case # 24-OCI-183

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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.

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 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.

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 45-year-old man (the “Complainant”).

The Investigation

Notification of the SIU[1]

On April 26, 2024, at 11:10 a.m., the Peel Regional Police (PRP) contacted the SIU with the following information.

On April 25, 2024, in the evening, Windsor Police Service (WPS) officers arrested the Complainant on the strength of PRP warrants. PRP were contacted to attend WPS and take custody of the Complainant. On April 26, 2024, sometime after midnight, two PRP officers drove to WPS and took custody of the Complainant. There was no information at the time related to any injury. Around 4:00 a.m., the Complainant arrived at PRP 22 Division. He complained of breathing difficulties though he declined paramedic services. At 5:00 a.m., during shift change, the incoming lock-up supervisor spoke with the Complainant and noted bruising to one of his eyes. The Complainant was transported to the Brampton Civic Hospital (BCH) and diagnosed with a fractured orbital bone.

The Team

Date and time team dispatched: 26/04/2024 at 11:20 a.m.

Date and time SIU arrived on scene: 26/04/2024 at 12:54 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 1

Affected Person (aka “Complainant”):

45-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on April 26, 2024.

Civilian Witness

CW Interviewed

The civilian witness was interviewed on April 26, 2024.

Subject Officials

SO #1 Declined interview and to provide notes, as is the subject official’s legal right

SO #2 Declined interview and to provide notes, as is the subject official’s legal right

Witness Officials

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

The witness officials were interviewed on May 9, 2024

Evidence

The Scene

The events in question transpired in a basement bedroom of a house situated near the area of Wyandotte Street East and Lauzon Road, Windsor

Scene Diagram

Physical Evidence

The residence was a two-floor detached home. The front door entry led directly into a hallway which travelled east towards the kitchen and dining room. There was a side entrance to the residence which entered into the kitchen. There was a staircase near the side entrance which led to the basement. The stairs to the basement led down five steps and turned right at a 90-degree angle with three angled steps down. The SIU received information that blood had been cleaned off the basement stairs wall after the incident. A visual examination revealed nothing of evidentiary value. There was a small area of paneling which had been freshly damaged.

At the base of the stairs was a hallway. There were adjoining rooms from the hallway which led to an office and a laundry room. The Complainant’s bedroom was in the northeast corner of the basement. The bedroom had a cloth curtain as a door.

The bedroom was furnished with a bed, television, shelves of CDs and DVDs, and a chest of drawers. The SIU received information that blood had been cleaned from an area of the floor after the incident. A visual examination of the floor revealed no blood. One intact and one broken ejector part from a conducted energy weapon (CEW) were located underneath the bed and on the shelving on the west wall.

There was a bathroom along the south wall of the bedroom which contained a toilet, a sink, and a shower stall. Nothing of evidentiary value was located in the bathroom.

The SIU was provided a CEW probe along with some blood-stained clothing. There was a blue bandana and an Adidas sleeveless sports shirt with suspected blood stains. There was a blood-stained Windsor Police Victim Assistance pamphlet.

The CEW probe and ejector pieces were collected from the scene along with the bloodstained clothing and pamphlet.

Forensic Evidence

CEW Deployment Data - SO #1

SO #1 was assigned a Taser 7 model CEW

On April 25, 2024, at 12:59:24 a.m.,[2] the CEW was armed with two cartridges in their respective bays.

At 12:59:32 a.m., there was an arc discharge for 0.291 seconds.

At 12:59:53 a.m., Cartridge #1 was deployed. There was an electrical discharge of 4.913 seconds.

Video/Audio/Photographic Evidence[3]

Photographs

On April 26, 2024, the SIU received four photographs. The metadata of the photographs indicated they were documented on April 25, 2024, between 1:30:47 a.m., and 1:31:12 a.m.. Three of the photographs showed blood on the right wall of the basement stairs. The fourth photograph showed blood on the tiled basement floor. There was a blue bandana next to the blood stain.

WPS Communications Recordings

On April 25, 2024, at 12:29 a.m.,[4] the CW called WPS. She requested WPS attend a house situated near the area of Wyandotte Street East and Lauzon Road, Windsor, because the Complainant was being difficult with her. She said she wanted the Complainant out of the residence. He had threatened her. The Complainant swore in the background of the phone call. He said he had a warrant for his arrest. The CW advised there were no weapons in the residence. The dispatcher advised she would call the Complainant.

A dispatcher requested additional police officers attend the residence. SO #2 advised he would attend.

At approximately 12:40 a.m., a WPS dispatcher placed a phone call to the Complainant. The Complainant said police had called him and told him there was a warrant for his arrest in Brampton. He said he had yelled at the CW and was remorseful for this. He was upset by his living circumstances. He asked the dispatcher for assistance. WPS officers arrived. At the end of the call, the dispatcher had de-escalated the Complainant. The dispatcher told him to continue to be calm with the WPS officers.

The dispatcher advised the Complainant had a warrant for his arrest with PRP. The Complainant had a caution for violence and a weapons prohibition. He was also a wanted person in Alberta.

At approximately 1:02 a.m., SO #1 advised the Complainant was in custody. Paramedic services were requested.

At approximately 1:05 a.m., SO #2 requested an additional unit attend the residence. He needed assistance to get the Complainant up the stairs. The dispatcher advised WO #1 and WO #2 were en route.

At approximately 1:10 a.m., WO #1 and WO #2 arrived.

At approximately 1:13 a.m., SO #1 advised the Complainant would be brought in on WPS charges.

At approximately 4:04 a.m., the CW called WPS to complain about the WPS interaction with the Complainant.

PRP Body-worn Camera (BWC) Footage

On April 25, 2024, at 11:26:49 p.m., PRP Constables #1 and #2 were at a WPS station with the Complainant. PRP Constables #1 and #2 arrested the Complainant on a warrant for criminal harassment charges. They said they would transport him to PRP 22 Division to be held for a bail hearing. The Complainant had a bruise around his right eye.

At 11:32:51 p.m., the Complainant requested to be handcuffed with his hands in front of him because his ribs hurt. PRP Constable #1 said he was aware there had been a fight. The Complainant said, "I’m being a lot better with you guys...last night...I apologized to them."

The remainder of the transport from WPS to PRP 22 Division was not relevant.

On April 26, 2024, at 5:14 a.m., PRP Constables #1 and #2 transported the Complainant from PRP 22 Division to BCH. The Complainant had complained to an officer in the cells area about his ribs.

At 5:29:42 a.m., they arrived at the hospital.

Materials Obtained from Police Service

Upon request, the SIU obtained the following records from WPS between May 2, 2024, and May 7, 2024:

  • Police communications recordings;
  • General Occurrence Report – Supervisory Report;
  • General Occurrence Report – Supplementary Report;
  • Scene and injury photographs;
  • WPS Use of Force Policy;
  • WPS CEW Policy;
  • CEW deployment data – SO #1;
  • CAD Report;
  • Mobile Data Terminal messages;
  • Training Records – SO #1;
  • Training Records – SO #2; and
  • WPS Audio Statement – CW.

The SIU obtained the following records from the PRP on May 8, 2024:

  • BWC recordings.

Materials Obtained from Other Sources

The SIU obtained the following records from the following other sources between April 26, 2024, and May 2, 2024:

  • Photos of the residence;
  • CBC news article; and
  • The Complainant’s medical records from BCH.

Incident Narrative

In the early morning of April 25, 2024, SO #1 and SO #2 made their way to a house situated near the area of Wyandotte Street East and Lauzon Road, Windsor. The home’s proprietor, the CW, had called police. An intoxicated Complainant had been belligerent with her, and she wanted him removed from the residence.

SO #1 and SO #2 arrived on scene, spoke with the CW and confirmed she wanted the Complainant removed. The officers spoke with the Complainant in the kitchen and advised him he had to leave. At his request, the Complainant was allowed to attend the basement to collect his things.

Dissatisfied with how long the Complainant was taking, SO #1 and SO #2 followed him to the basement. The officers became embroiled in a physical engagement with the Complainant before handcuffing him behind the back. The Complainant was taken upstairs and outside onto the porch where he was sat.

The Complainant refused medical treatment at the scene and was transported to the police

station. He was eventually taken into custody by PRP officers on the strength of an outstanding warrant and transported to Brampton. In Brampton, the Complainant was seen at hospital and diagnosed with left-sided orbital fractures.

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 2(1), Trespass to Property Act - Trespass an Offence

2 (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

(i) enters on premises when entry is prohibited under this Act, or

(ii) engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,

is guilty of an offence and on conviction is liable to a fine of not more than $10,000.

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.

Analysis and Director’s Decision

The Complainant was seriously injured by WPS officers on April 25, 2024. The SIU was notified of the incident and initiated an investigation naming SO #1 and SO #2 subject officials. 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 injuries.

The evidence collected by the SIU, including an interview with the Complainant, gives rise to the following scenario. As was their legal right, neither subject official agreed an interview with the SIU or the release of their notes.

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 is conflicting evidence with respect to whether the officers had lawful authority when they moved to arrest the Complainant in the basement. One source of evidence suggests the officers acted precipitously. Having been allowed to attend the basement to gather some things, it is said that the Complainant had only just turned a bathroom faucet on (having been told by the officers he could not brush his teeth) when he was grabbed by SO #1 and SO #2, forced onto his bed, and eventually handcuffed behind the back. On the other hand, in evidence gathered from WO #1, who spoke to the officers post-arrest at the scene, it seems SO #1 and SO #2 believed the Complainant was delaying his exit from the home. The Complainant was described by another witness as a slow-moving person. And, the Complainant did, in fact, turn on the faucet after he had been told he could not brush his teeth. On this record, I am unable to reasonably conclude that SO #1 and SO #2 were without cause when they decided to arrest the Complainant for trespass under sections 2 and 9 of the Trespass to Property Act in order to compel his exit from the home.

Similarly, given the conflict in the evidence, I am unable to reasonably conclude with any confidence that SO #1 and SO #2 used other than justified force in taking the Complainant into custody. One source of evidence suggests the Complainant fell from the bed and struck his face and nose on the floor. While offering no resistance, SO #1 is said to have pinned the Complainant’s head against the floor with a foot and then discharged a CEW into his back. SO #2, for his part, is said to have punched the Complaintn’s left ribs up to ten times. On the other hand, the subject officials told WO #1 that the Complainant pulled away from them as they took hold of him, and that he struggled against the officers’ efforts to handcuff him on the bed and floor. SO #2 punched the Complainant in the ribs twice on the bed. He then punched him in the face once as the tussle continued on the floor before SO #1 deployed his CEW twice. Following the second discharge, the officers were able to wrestle control of the Complainant’s arms and handcuff them. The more incriminating account describes excessive force. In contrast, the officers’ evidence suggests force that fell within a range of what was reasonable in the circumstances to subdue the Complainant. The more incriminating account of what happened must be taken with a grain of salt. The source was very intoxicated at the time and failed to mention the Complainant receiving two punches to the face. The officers’ evidence must also be approached with caution given it was conveyed second-hand via WO #1. In the final analysis, given the frailties and conflict in the evidence, I am not satisfied the incriminating evidence is sufficiently cogent to warrant being put to the test by a court.

In the result, while I accept that the Complainant’s injuries were incurred in the physical engagement that marked his arrest, I am unable to conclude they were attributable to unlawful conduct on the part of either subject official. As such, there is no basis for proceeding with criminal charges in this case. The file is closed.

Date: August 23, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit

Endnotes

  • 1) Unless otherwise specified, 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 times are derived from the internal clock of the weapon, and are not necessarily synchronous with actual time. [Back to text]
  • 3) 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]
  • 4) The times are derived from the Computer-aided Dispatch (CAD) Report and, therefore, are approximations. [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.