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SIU Director’s Report - Case # 19-OCI-185

Contents:

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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 serious injuries sustained by a 31-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On August 7, 2019, at 8:00 a.m., the Windsor Police Service (WPS) notified the SIU of the serious injury sustained by the 31-year-old Complainant, subsequent to his arrest the previous evening.

The WPS reported that on August 6, 2019, WPS police officers arrested the Complainant for outstanding warrants and trespassing after a lengthy foot pursuit in Windsor. The Complainant was taken to the WPS Detention Centre and shortly thereafter complained of pain in his left ring finger. He was taken to Windsor Regional Hospital where a fracture to that finger was diagnosed.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO Interviewed


Subject Officers

SO Declined interview, as is the subject officer’s legal right. Notes and will say received and reviewed.


Evidence

The Scene

The Complainant was arrested in a parking lot off the intersection of Caron Avenue and Riverside Drive in downtown Windsor. The area was not equipped with surveillance devices and a canvass for witnesses was unsuccessful.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the WPS:
  • Booking Sheet and Arrest Report for the Complainant;
  • Call Hardcopy;
  • General Occurrence Report (Narrative Text Hardcopy-Warrants Executed); and
  • Notes of the WO and SO.

Incident Narrative

The material events in question are apparent on the weight of the reliable evidence collected by the SIU. At approximately 7:45 p.m. on August 6, 2019, the SO and the WO, who were on routine patrol, observed the Complainant apparently about to urinate in a parking lot. As the officers neared the Complainant’s location, the SO recognized the Complainant from a prior bulletin posted at the police station as being wanted on several outstanding charges. The SO called out to the Complainant and told him that he was under arrest on an outstanding warrant. The Complainant ran off. The two officers pursued him in the police cruiser until such point as the path followed by the Complainant narrowed to prevent the police cruiser’s forward progress, at which point the SO exited and pursued the Complainant on foot, while the WO drove the cruiser back to the parking lot.

In his effort to flee from police, the Complainant came upon a 2.5-metre-high chain-link fence, which he tried to scale on three occasions. He failed each time, falling to the ground on his last attempt. The Complainant then again stood and attempted to flee, this time running east through the parking lot directly in front of the WO’s police cruiser. He continuously stumbled while running, eventually falling to the ground in the parking lot.

The WO exited his police cruiser, approached the Complainant and gave at least two commands ordering the Complainant to get onto his stomach and place his hands behind his back. The Complainant did not comply. The WO approached, grabbed the Complainant by the left shoulder and turned him onto his stomach, at which point the SO caught up on foot. The WO then took control of the Complainant’s right arm as the SO took control of his left, and the Complainant was handcuffed.

The Complainant was taken to the police station and lodged in cells. He was subsequently transported to hospital where he was diagnosed with a fractured left finger.

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 August 6, 2019, the Complainant was arrested by the SO and the WO of the WPS. Sometime after the arrest, the Complainant was taken to hospital and diagnosed with the fracture of a left finger. The SO was identified as the subject officer for purposes of the SIU investigation. 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.

I am cognizant there is some evidence the SO stomped on the Complainant’s finger causing the injury after he had been handcuffed. If true, the evidence would likely support grounds for proceeding with an assault-based charge against the officer. Standing alone, however, I am satisfied that this version of events is insufficient to ground criminal charges. This evidence, for example, also suggests that only one officer – the SO – was involved with the arrest and the other officer – the WO – was inside the police cruiser at the time. Each of the officers, however, assert that the WO was the first to physically engage the Complainant, and that both had a hand in affixing the handcuffs. I see no reason why either officer would lie about their respective involvement in this regard. In the circumstances, it would be unwise and unsafe to proceed with charges based on this evidence alone. The Complainant’s injury, which might have served as such corroboration, is incapable of doing so in this case as it could just as conceivably have been caused by one or more of his several falls in his flight from the police.

Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their lawful duties provided such force was no more than was reasonably necessary in the execution of an act that they were required or authorized to do by law. The Complainant was wanted on a number of outstanding arrest warrants. His arrest at the hands of the SO and the WO was clearly lawful. Thereafter, I am satisfied that the officers used only minimal force in effecting his arrest. This would have consisted of the WO rolling the Complainant onto his stomach, and the SO and WO grabbing hold of the Complainant’s arms to place them in handcuffs. On this record, there is no question of any excessive force used by the officers.

In the result, as there are no reasonable grounds to believe that the SO and the WO acted other than lawfully in effecting the Complainant’s arrest, there is no basis for proceeding with charges in this case and the file is closed.


Date: April 14, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit