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SIU Director’s Report - Case # 19-OCI-146

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 27-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On June 25, 2019, at 3:09 p.m., the Windsor Police Service (WPS) reported an injury to the Complainant. The WPS reported they received a complaint from the Office of the Independent Police Review Director (OIPRD) filed by the Complainant’s father.

The WPS advised that at 10:39 p.m. on May 7, 2019, WPS officers arrested the Complainant and charged him with numerous criminal offences, including dangerous driving and drug-related offences.

As a result of the OIPRD complaint, WPS Professional Standards police officers interviewed the Complainant at the South West Detention Centre (SWDC), at which time he alleged a WPS officer assaulted him during the arrest and in the “patrol wagon.”] [1]

The Complainant said he was treated at Windsor Regional Hospital (WRH), where he was diagnosed with minimally displaced fractures to the right 3, 4 and 5 ribs, and authorized a medical release to WPS. He said he was also treated at the SWDC.

The Team

Number of SIU Investigators assigned: 3

Complainant:

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


Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Interviewed

Additionally, the notes from one other officer were received and reviewed.


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 scene of the Complainant’s arrest was the grounds of the Petro Canada gas station at the southwest corner of Tecumseh Road East and Manning Road, Tecumseh.

Video/Audio/Photographic Evidence

The in-car camera system (ICCS) from the prisoner transport van consisted of four black and white video recordings with audio. The recordings, with “watermark” displayed prominently across the entire screen and a time stamp over the upper portion of the video, consisted of the following recordings:
  • Channel 1 – Mounted in the prisoner compartment;
  • Channel 2 – Mounted in the prisoner compartment opposite the door;
  • Channel 3 – Mounted in the prisoner compartment above the door; and
  • Channel 4 – Mounted on the rear vehicle exterior, viewing the area behind the vehicle.

The recordings revealed the prisoner transport van arrived at the scene at about 9:43 p.m. ] [2] on May 7, 2019. The Complainant was placed in the prisoner compartment at 9:44:37 p.m. and immediately sat on the bench on the left side, toward the front, far from the door.

The van started driving at about 9:50 p.m. and stopped in the sally port at about 10:10:30 p.m.

The continuous recordings revealed the door was closed and not reopened before 10:12:25 p.m., in the sally port.

WPS Headquarters closed-circuit television (CCTV) recordings captured the Complainant’s arrival in the prisoner transport van. The recording time stamp indicated the time was 11:16 p.m.

The Complainant was removed from the van at 11:19 p.m. by a lone male police officer. The Complainant moaned and appeared to be in discomfort, but his utterances were indecipherable as he walked to the elevator and booking area with his hands cuffed behind his back.

He arrived at the booking area at 11:21 p.m. In the booking process, the Complainant reported he could not put pressure on his left leg as he believed it was sprained. When asked about injury to his upper left brow, the Complainant said he could not open his eyes and could not see. When asked if he had any other injuries, the Complainant said his throat felt as though it was closed as he was swallowing blood. He also said he was injured during his arrest that day.

The Complainant reiterated he could not breathe while being arrested and said his left leg felt “really messed up.” He then said he believed it was his left ankle that was injured.

The Complainant was taken for lodging in a cell at 11:39 p.m. and held his left hip on lodging.

Paramedics arrived 12 minutes later. The Complainant was removed from the cell at 11:53 p.m. and left the building with the paramedics at 12:04 a.m.

Police Communications Recordings

Radio transmission recordings captured transmissions of police officers involved in pursuing the Complainant, first in a suspect apprehension pursuit and then on foot. In transmissions during the foot pursuit, police officers requested assistance of the OPP.

When a dispatcher requested the suspect description to relay to the OPP, a police officer immediately reported the suspect had already been apprehended.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the WPS:
  • Notes of all witness officers and one undesignated officer;
  • Officer Safety Bulletin;
  • Computer-Assisted Dispatch Event Chronology reports;
  • WO #2’s and WO #3’s Narrative Text Hardcopy;
  • Person Details Hardcopy;
  • WPS Directive re: Arrest;
  • Motor Vehicle Accident Report;
  • Call Details Hardcopy;
  • Ambulance Call Report;
  • ICCS video recording from prisoner transport vehicle; and
  • Narrative Text Hardcopy.

Materials obtained from Other Sources

The SIU also obtained the Complainant’s medical records from the WRH and the SWDC.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU in its investigation, which included statements from the Complainant, several witness officers who observed portions of the arrest, and police video recordings. On the evening of May 7, 2019, officers with the WPS Target Based Unit and Problem-Oriented Policing Unit were looking to locate and arrest the Complainant. They had information that the Complainant carried a firearm and had in the past rammed police vehicles while fleeing from apprehension.

Shortly after 10:30 p.m., the Complainant was located asleep in the driver’s seat of an SUV parked in the area of the Demarse Court cul-de-sac. WO #1, WO #3, WO #5 and WO #7 converged on the scene and planned their approach to the vehicle. WO #3 laid a tire deflation device in front of the SUV’s front tires. WO #1 attempted to open the driver’s door but found it locked, whereupon WO #5 used his baton to break the driver’s door glass. The Complainant was awakened and told he was under arrest by WO #1. The Complainant placed his vehicle in reverse and accelerated rearward in a circle, colliding with WO #3’s vehicle and almost striking WO #7 in the process. Following the collision, the Complainant raced forward northward away from the scene through residential yards.

A short time later, the Complainant was located on the premises of the gas station on the southwest corner of Tecumseh Road East and Manning Road, over a kilometre from the Demarse Court attempted arrest location. By the time witness officers began arriving at the scene, the Complainant was on the ground struggling with SO #1 and SO #2. SO #1 and SO #2 were seen to each deliver two to three punches to the Complainant’s mid-body area as they attempted to overcome his resistance and effect his arrest. WO #6 joined in the fray. Concerned that the Complainant might be trying to access a firearm with both of his arms tucked tightly underneath his chest while prone of the ground, WO #6 punched the Complainant twice to the left side of the face. Following WO #6’s blows, the Complainant’s arms were secured and restrained in handcuffs.

The Complainant was taken to the police station after his arrest, briefly lodged in a cell and then taken to hospital. He was diagnosed with minimally displaced right-sided rib 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.

Analysis and Director's Decision

The Complainant was arrested by WPS officers on May 7, 2019. He was taken to the police station and thereafter transported to hospital, where the Complainant was diagnosed with fractured right-sided ribs. SO #1 and SO #2 used force in the course of the Complainant’s arrest and were identified as subject officers. 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.

There is evidence suggesting a far more severe application of force by the police at the time of the Complainant’s arrest than the aforementioned-record discloses. Specifically, there is an indication that the Complainant was struck down by a police minivan in the parking lot. Additionally, this evidence indicates that an officer delivered a knee strike to the right side of the Complainant’s face and quickly handcuffed his hands behind his back. Once the Complainant’s hands were fastened, officers arriving at the scene punched and kicked him repeatedly. Thereafter, once the Complainant had been seated inside a prisoner transport van, it is suggested an officer opened the rear door and struck him in the face with a backhanded blow.

If this evidence was believed, there would certainly be grounds to believe that the Complainant was the victim of an unlawful assault. This evidence, however, is unreliable and it would be unwise and unsafe to rest criminal charges on it alone. For example, the Complainant’s alleged passivity at the scene of his arrest, moreover, is in conflict with the weight of the accounts proffered by the witness officers. Importantly, it is also belied by the Complainant’s violent and reckless behaviour in the hours preceding his arrest in which he amply demonstrated a wanton disregard for the health and safety of persons around him, including officers, as he endeavoured to elude officers with an “escape at all costs” mindset. In addition, the punch which allegedly occurred while the Complainant was seated in the prisoner transport van simply did not occur. A video recording of the Complainant’s time in the van captured no such misconduct. On the circumstances, I am satisfied that the incriminating evidence is simply insufficiently trustworthy to warrant being placed to the test by a trier-of-fact. Moreover, the injuries the Complainant suffered are incapable of tipping the balance in the Complainant’s favour as they, in my view, appear at least as consistent with having been caused by the force described by the witness officers and/or the Complainant’s motor vehicle collision with a police vehicle on Demarse Court.

Pursuant to section 25(1) of the Criminal Code, police officers are protected from criminal liability for force used in the course of their duties provided such force was no more than was reasonably necessary in the execution of an act they were required or authorized to do by law. By the time SO #1, SO #2 and WO #6 captured and arrested the Complainant, they had lawful grounds for arresting the Complainant for dangerous driving and other offences based on the reckless manner with which he had been operating his vehicle.

Turning to the propriety of the force used by the officers in arresting the Complainant, I am satisfied based on the weight of the reliable evidence that the officers did not cross the line. I accept that the Complainant was punched two to three times to the mid-body by each of SO #1 and SO #2, and twice to the face by WO #6, before he was handcuffed. However, I also accept that these strikes fell within the range of what was reasonably necessary to overcome the Complainant’s strenuous resistance on the ground and have him release his arms from underneath his body. In arriving at this determination, it is important to note that the officers had cause to fear the Complainant might be armed with a gun and, thus, good reason to want to arrest him quickly and resolutely.

It should be noted that one of the witness officers, WO #1, indicates that WO #6 punched the Complainant once in the face after he had been handcuffed. According to WO #1, the Complainant was still struggling on the ground at that time and stopped struggling after the blow was delivered. WO #6 denies having done so. The officer concedes he delivered two “hammer strike” punches to the left side of the Complainant’s face prior to his hands being handcuffed, but nothing more. None of the other witness officers report that they observed such a punch.

Any force used by police against a handcuffed person will always attract careful scrutiny. In this case, owing to the conflict in the evidence as to whether this blow was actually struck and, if it was, the context in which it occurred, suggesting it was a response to the Complainant’s continued resistance on the ground, I find the evidence falls just short of being sufficiently cogent to justify criminal charges.

In the final analysis, whether the Complainant’s injuries occurred during his arrest or were inflicted in the motor vehicle collision that preceded his apprehension, I am unable to reasonably conclude on the evidence that any officer used excessive force. Accordingly, there is no basis to proceed with charges in this case and the file is closed.


Date: May 11, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Endnotes

  • 1) This was likely an error on the SIU Intake Form, intended to refer to the prisoner transport vehicle. [Back to text]
  • 2) These times were behind by an hour. [Back to text]