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SIU Director’s Report - Case # 19-OCI-256

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 40-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On October 29, 2019, the Windsor Police Service (WPS) notified the SIU of the serious injury sustained by the 40-year-old Complainant during his arrest earlier that day. The WPS reported that at 2:45 p.m. on that date, WPS police officers attempted to stop a stolen vehicle driven by the Complainant. The Complainant refused to stop, and in so doing, rammed police vehicles. He was eventually arrested and suffered a fractured orbital bone in the process.

The Team

Number of SIU Investigators assigned: 3
 

Complainant:

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


Civilian Witnesses

CW Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed


Subject Officers

SO #1 Declined interview and to provide notes, as is the subject officer’s legal right
SO #2 Declined interview and to provide notes, as is the subject officer’s legal right


Evidence

The Scene

The Complainant was arrested in the parking lot of the Home Depot store at 6630 Tecumseh Road East in Windsor.

Video/Audio/Photographic Evidence

The SIU received a series of closed-circuit television (CCTV) recordings related to October 29, 2019, from 2:24:39 p.m. to 3:27:48 p.m. The colour video had no audio component.
At 2:24 p.m., a black Mazda SUV was located northbound in the parking lot near a cart corral. The vehicle turned east into the parking area. It then drove straight through and accessed the next driving lane in the parking lot. The Mazda parked in the second parking spot north of the cart corral.

The SUV was facing east. One vehicle was parked between the cart corral and the SUV. There was a vacant parking space directly behind the SUV. Three civilian vehicles were parked between the SUV and the Home Depot; the space closest to the store was empty.

The view of the SUV was blocked with the camera unable to see into the interior of the vehicle. The front end of the SUV was visible, the headlights on. At 2:26 p.m., a vehicle that had been parked on the north side of the SUV exited the parking lot.

At 2:28 p.m., a man exited the front passenger side of the SUV and walked north in the driving lane then west toward the Home Depot store entrance. At 2:34 p.m., a dark-coloured van pulled into the parking space directly north of the SUV, which blocked the view of the SUV.

At 2:40 p.m., a dark grey unmarked WPS Ford Explorer, driven by WO #4, travelled westbound in the driving lane closest to the Home Depot and then turned southbound. The WPS Target Based Unit (TBU) vehicle stopped at the top of the driving lane closest to the vehicles parked in the lane on the west side. A person leaving the store approached this lane.

WO #4 approached slowly, as the person made his way through the parking lot. At 2:41 p.m., a light grey unmarked sedan, driven by SO #1, pulled into the parking space directly behind the SUV. A marked WPS Ford pickup occupied by SO #2 and WO #3 of the WPS Emergency Services Unit (ESU), travelled northbound in the same lane as WO #4. WO #4 blocked the front end of the SUV at the driver’s side on an angle, with his WPS TBU vehicle, while WO #3 blocked the front end of the SUV on an angle from the passenger side.

A marked WPS Ford pickup truck, driven by WO #1 and WO #2 of the WPS ESU, pulled in directly behind WO #3. The police officers exited their vehicles and converged on the SUV. The view of the SUV was limited to the driver’s side top half of the taillight, the top half of the back compartment of the SUV storage area, and the roofline.

The SUV reversed, striking SO #1’s WPS TBU vehicle. The WPS TBU vehicle was pushed back. The SUV drove slightly forward, then reversed again, striking SO #1’s WPS TBU vehicle. Again, the WPS TBU vehicle was pushed back. The SUV drove slightly forward, and then reversed again, striking and pushing back SO #1’s WPS TBU vehicle.

Police officers approached the SUV. The SUV drove forward quickly. WO #2 jumped into the driver’s seat of WO #3’s WPS ESU vehicle and shut the door. The SUV struck the WPS ESU vehicle just as WO #2 shut the driver’s door. The WPS ESUvehicle was struck on the driver’s side front quarter panel and bumper area. The force pushed the WPS ESU pickup back.

Police officers moved in on the SUV. The front end and hood area of the SUV were visible. Police officers surrounded the passenger compartment of the SUV. WO #2 exited the WPS ESU pickup and SO #1 ran from the SUV toward the Home Depot store. WO #2 also headed toward the Home Depot store.

A police officer escorted the Complainant away from the SUV to the hood of SO #1’s WPS TBU vehicle. The Complainant leaned over the hood of the police vehicle. The police officer appeared to perform a pat down search of the Complainant. The police officer stood calmly as the Complainant remained over the hood of the WPS TBU vehicle. The situation appeared under control. The police officers stood around the vehicles and, at 2:56 p.m., the Complainant was treated by a paramedic.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the WPS:
  • Computer-Assisted Dispatch Report;
  • Mobile Data Terminal Transmissions;
  • Narrative Text (Arrest Report) by WO #4;
  • Notes of WO #3;
  • Notes of WO #2;
  • Notes of WO #1;
  • Notes of WO #4;
  • Person Hardcopy detailing charges against two civilians; and
  • WPS photo-brief of vehicle damage.

Incident Narrative

The material events in question are apparent on the evidence collected by the SIU, which included interviews with the Complainant, and a civilian and police witnesses who were present at the time of the arrest. The investigation also benefited from a review of CCTV footage of parts of the incident captured by a security camera. As was their legal right, the subject officers declined to interview with the SIU or authorize the release of their notes.

In the afternoon of October 29, 2019, the Complainant was operating a reportedly stolen SUV with two passengers and the vehicle was under surveillance by officers with the WPS TBU. When the Complainant parked the SUV in the parking lot of the Home Depot at 6630 Tecumseh Road East, a plan was developed to take the vehicle’s occupants into custody. With the assistance of WPS ESU members, the SUV would be boxed-in by police vehicles to prevent its escape while officers approached to effect the arrests.

At about 2:40 p.m., SO #1 parked his unmarked sedan directly behind the SUV as WO #3 and WO #4 positioned their vehicles in front of the SUV at angles with the driver and passenger side. At the sight of the officers – six in total – approaching the SUV, the Complainant put the vehicle in motion in an attempt to escape. He maneuvered the SUV back and forth several times, striking police vehicles behind and in front of him, as officers yelled at him to stop and show his hands. SO #1 managed to break the driver’s door window and reached in through the shattered glass to engage the Complainant, delivering a number of punches to the Complainant’s head. The Complainant released his hold of the steering wheel following the strikes, whereupon he was removed from the vehicle and handcuffed. One passenger was also removed from the vehicle and arrested, as was the other, who was in the Home Depot at the time of the takedown.

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 afternoon of October 29, 2019, the Complainant was arrested by members of the WPS and suffered injuries in the process, including a fractured orbital bone. SO #1 and SO #2 were among the arresting officers and identified as subject officers for purposes of the SIU investigation. On my assessment of the evidence, there are no reasonable grounds to believe that either subject officer committed a criminal offence in connection with the Complainant’s arrest and injuries.

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 authorized or required to do by law. The officers had grounds to believe that the Mazda SUV was stolen, and I am unable to reasonably conclude on the evidence that the Complainant’s arrest was unlawful. The real issue revolves around the propriety of the force used by the officers in effecting his arrest.

When the Complainant placed the SUV in gear and began to ram the vehicles in front and behind in an effort to escape, he created a dangerous situation not only for the officers surrounding the vehicle, but for other third-party pedestrians and motorists in the vicinity. In the circumstances, the officers were within their rights in resorting to a measure of force to bring the situation to an end as quickly as possible. SO #1 did so, breaking the driver’s door window and punching the Complainant in the head a number of times until he let go of the steering wheel and was removed from the SUV. On this record, I am unable to reasonably conclude that SO #1 acted excessively, even if one or more of the blows he struck caused or contributed to the Complainant’s broken orbital bone.

With respect to SO #2, while the investigation turned up some evidence to suggest he too used force against the Complainant, the nature and extent of that force remains unknown. SO #2 exercised his right to silence and refused to provide a statement, and none of the police and civilian witnesses were able to attest to any force the officer may have used. In the circumstances, there is no evidence upon which it would be reasonable to conclude that SO #2 crossed the line in his dealings with the Complainant.

In the result, as I am satisfied that there are no grounds in the evidence to believe that SO #1 and SO #2 acted other than lawfully in their dealings with the Complainant, there is no basis for charges in this case and the file is closed.


Date: April 20, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit