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SIU Director’s Report - Case # 18-OCI-372

Contents:

News Releases for this Case:

French:

Mandate of the SIU

The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving police officers where there has been death, serious injury or allegations of sexual assault. The Unit’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.

Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.

Information Restrictions

Freedom of Information and Protection of Personal Privacy Act (“FIPPA”)

Pursuant to section 14 of FIPPA (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 whose release 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 of FIPPA (i.e., personal privacy), protected personal information is not included in this document. This information may include, but is not limited to, the following:
  • Subject Officer name(s);
  • Witness Officer name(s);
  • Civilian Witness name(s);
  • 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 (“PHIPA”)

Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.

Other proceedings, processes, and investigations

Information may have also 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

The Unit’s investigative jurisdiction is limited to those incidents where there is a serious injury (including sexual assault allegations) or death in cases involving the police.

“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.

This report relates to the SIU’s investigation into a serious injury sustained by a 42-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On December 22, 2018, at 11:20 p.m., the Windsor Police Service (WPS) reported an injury. The Complainant was apprehended under the Mental Health Act (MHA). During the apprehension, the Complainant sustained a broken collarbone.

The Team

Number of SIU Investigators assigned: 2
 

Complainant:

42-year-old male interviewed, medical records obtained and reviewed


Witness Officers

WO #1 Interviewed
WO #2 Interviewed


Subject Officers

SO #1 Declined interview, as is the subject officer’s legal right. Notes and will state received and reviewed.
SO #2 Declined interview, as is the subject officer’s legal right. Will state received and reviewed.


Evidence

The Scene

99 Chatham Street is a high-rise apartment building attached to several businesses. The businesses include a Provincial Offences Court. The entrance to the building is secured. There is a lobby inside the front door which leads to two elevators. Past the elevators a lengthy corridor leads to a back door which exits onto the loading docks at University Avenue near the corner of Goyeau Street. Directly opposite the loading dock of 99 Chatham Street is a Burger King Restaurant. University Avenue is a two-lane roadway. Video cameras are situated in the loading dock of the apartment building. The cameras do not record activity on University Avenue. It was dark at the time of the apprehension.

Video/Audio/Photographic Evidence

The SIU canvassed the area for video recordings but was not able to locate any.

Communications Recordings

On December 22, 2018, the Complainant’s wife called an ambulance to get the Complainant transported to hospital for a psychiatric crisis. The EMS Communicator contacted WPS Communications and requested WPS officers attend for assistance. A WPS Communicator had a conversation with the caller. The conversation and information corroborated the account of the Complainant and the involved police officers.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the WPS:
  • Computer Aided Dispatch (CAD) occurrence;
  • De-Escalation Training PowerPoint (WPS De-Escalation);
  • Directive - Mentally Ill Persons;
  • Lesson Plans (x3)
  • Mobile Data Terminal (MDT) Messages 18-108178 1S62;
  • SO #1 and SO #2’s Will States;
  • Notes of SO #1, WO #1 and WO #2;
  • WO #1 Will State;
  • Person Hardcopy-911 caller;
  • Person Hardcopy-the Complainant;
  • PowerPoint-Enhancing Our Training; and
  • Photos Seized Items-Knives, Bat.

Incident Narrative

The events in question are clear on the information collected by the SIU. At about 6:40 p.m. of the day in question, the Complainant’s wife contacted 911 to report that she was concerned with the Complainant’s behaviour. She indicated that the Complainant had a mental health disorder and had access to knives. SO #1 and SO #2, as well as WO #1 and WO #2, were dispatched to the address on Chatham Street to assist paramedics.

Upon arrival at the building, the officers met and spoke with the Complainant’s wife in the lobby. She explained that the Complainant was depressed, had threatened her and was in possession of knives. She further cautioned the officers that the Complainant might react aggressively if confronted by police officers. As they talked, the Complainant exited an elevator and turned to walk toward the rear exit of the building located on University Avenue. He had two knives concealed on his person and was carrying a baseball bat in his jacket.

SO #1 and SO #2 exited the building’s front doors and made their way down Goyeau Street toward the rear of the building to intercept the Complainant. They located him on the north sidewalk of University Avenue and attempted to get his attention. The Complainant did not respond and instead walked onto the roadway in the direction of a Burger King. SO #1 approached the Complainant from behind, grabbed hold of him in a bear hug and took him to the ground. With the help of SO #2, the officers handcuffed the Complainant and took him into custody. The Complainant immediately complained of pain in his right shoulder. He was taken to hospital where his injury – a fractured clavicle - was diagnosed.

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

In the evening of December 22, 2018, the Complainant was apprehended under the MHA by SO #1 and SO #2 of the WPS. The Complainant suffered a fracture to his clavicle in the course of his apprehension. For the reasons that follow, there are no reasonable grounds to believe that either of SO #1 and SO #2 committed a criminal offence in connection with the Complainant’s 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 is no more than is reasonably necessary in the execution of an act that they are required or authorized to do by law. Given the information the officers had received from the Complainant’s wife, they reasonably concluded that the Complainant was suffering from a mental disorder and a present threat to his own safety as well as that of those around him. Consequently, I accept that SO #1 and SO #2 were proceeding to lawfully apprehend the Complainant under the MHA when he was taken to the ground and secured in handcuffs. As for the force that was used, SO #1 indicated he believed immediate action to take the Complainant into custody was necessary given the fact that the Complainant could well be armed with knives and was headed in the direction of a group of people at a restaurant. As the Complainant had just threatened his wife and was clearly of unsound mind at the time, the officer’s apprehensions were well-founded. On this record, I am unable to reasonably conclude that the force used by the officers, consisting of the takedown and some manpower to bring the Complainant’s arms behind his back to be handcuffed, ran afoul of the limits prescribed by the criminal law.

It is unfortunate that the Complainant suffered a fracture to his clavicle while being apprehended by the police, whether the result of being grounded or handcuffed. However, as the force used by the officers was in my view legally justified, there are no grounds for proceeding with charges in this matter and the file is closed.


Date: September 13, 2019



Joseph Martino
Interim Director
Special Investigations Unit