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SIU Director’s Report - Case # 19-OCI-221

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 to a 25-year-old man (the “Complainant”).

The Investigation

Notification of the SIU

On September 11, 2019, at 2:50 p.m., the Windsor Police Service (WPS) notified the SIU of the following.

The WPS reported that on September 11, 2019, at 11:20 a.m., members of the Provincial Repeat Offender Parole Enforcement (ROPE) squad (Ontario Provincial Police (OPP), London Police Service (LPS) and WPS police officers) were in the area of Park Street West and Janette Avenue in Windsor on an unrelated matter.

They happened upon a domestic argument and intervened. The plainclothes police officers identified themselves as police officers and moved in to arrest the man [now known to be the Complainant] involved in the domestic, as they observed him assault the woman [now known to be Civilian Witness (CW) #1]. The Complainant resisted and was injured in the process. He was arrested for domestic assault, assault police and resisting arrest.

The Complainant was transported to the Windsor Regional Hospital - Ouellette Campus (WRH - OC), where he was diagnosed with a broken nose. Upon release from the hospital, the Complainant was to be lodged at the WPS lock-up and held for a bail hearing.

The Team

Number of SIU Investigators assigned: 3
Number of SIU Forensic Investigators assigned: 1

Complainant:

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


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed 

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 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
SO #3 Declined interview and to provide notes, as is the subject officer’s legal right



Evidence

The Scene

The altercation between the Complainant and the police officers occurred on the lawn adjacent to a building located at Park Street West and Janette Avenue.

There were five video cameras mounted on the exterior of this building. One camera was on the west side overlooking the grass area, one camera was on the north side, and one on the front of the building (south side). The other two cameras were on the east side where the parking lot was located.

Forensic Evidence


SO #1’s Conducted Energy Weapon (CEW) Discharge Data


SO #1’s CEW was discharged three times at 11:22 a.m. on September 11, 2019 for one second each cycle.

Video/Audio/Photographic Evidence


Summary of the Closed-Circuit Television (CCTV) from Park Street West


The recording did not capture the initial interaction between police officers and the Complainant. There were four police officers on the grass and a fifth police officer approaching the grass area from the sidewalk of Janette Avenue. The Complainant was on the grass, face down, with a police officer straddling his back; he had a knee on either side of the Complainant. All the police officers appeared to be in plainclothes with windbreaker-style jackets on. When one police officer took off his outer jacket, a police vest was visible with the word “police” across the chest. Prior to this, all the police officers had their jackets on, some with the zipper undone. CW #1 was standing close to her husband, and a police officer was trying to keep her away from the area, where it appeared the other police officers were trying to handcuff the Complainant. A police officer escorted CW #1 away from the scene.

Two paramedics got the stretcher ready for loading the Complainant, who was stood up, handcuffed behind his back, and placed on the stretcher. A police officer was in the process of removing the handcuffs from behind the Complainant’s back. The paramedics took the Complainant out of the range of the camera on the stretcher.

Communications Recordings

CW #3 contacted the 911 WPS communications operator and reported a disturbance at Park Street West and Janette Avenue.

SO #1 contacted communications operators and requested additional police officers to attend Park Street West and Janette Avenue. He also requested an ambulance attend, and said everything was [okay] and he and the men were bleeding.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the LPS, OPP and/or WPS:
  • LPS Arrest Procedure;
  • LPS Email regarding WO #3’s Use of Force Requalification;
  • LPS Use of Force Procedure;
  • LPS Will State-WO #3;
  • Notes of witness officers;
  • Procedure (Directive) - Use of Force;
  • Procedure (Directive) - Arrest;
  • Training Records for subject officers;
  • WPS Booking Sheet;
  • WPS Call Summary;
  • WPS communication recordings;
  • WPS General Occurrence Report;
  • WPS Person Hardcopy-Witnesses;
  • WPS Photos – the Complainant;
  • WPS CEW Download;
  • WPS Witness Statement - CW #1;
  • WPS Witness Statement - CW #2; and
  • WPS Witness Statement – CW #3.

Materials obtained from Other Sources

Upon request, the SIU obtained and reviewed the following documents from the Essex Emergency Medical Services (EMS) and WRH:
  • Ambulance Call Report - Essex EMS; and
  • Medical Record – WRH - OC.

The SIU also obtained and reviewed CCTV from Park Street West.

Incident Narrative

On September 11, 2019, members of the ROPE squad were in the area of Park Street West and Janette Avenue, Windsor, doing surveillance on an unrelated matter. The officers were in a number of unmarked police vehicles and were wearing vests with the word POLICE printed on them. Some of the officers were wearing windbreakers over their vests in order to do discreet surveillance.

Shortly after 11:00 a.m., SO #2 came upon an incident which he believed to be one of domestic violence, and he intervened. He radioed his colleagues for assistance, and the Complainant was arrested. During the course of the arrest, the Complainant sustained a broken nose. Two sources of evidence indicate that the police, without provocation, beat the Complainant, causing his injury.

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 266, Criminal Code -- Assault

266 Every one who commits an assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.

Analysis and Director's Decision

The SIU’s investigation into the circumstances surrounding the Complainant’s injury consisted of interviews with the Complainant; his wife, CW #1; two independent civilian witnesses; and, three witness officers. The SIU also reviewed CCTV footage obtained from a nearby commercial premises. SO #1, SO #2 and SO #3 were designated as subject officers; all three declined to provide a statement or a copy of their notes, as was their legal right. From a review of this evidence and for the reasons that follow, I am unable to find that the force used against the Complainant was excessive and therefore have no reasonable grounds to believe that any police officer committed a criminal offence in relation to the Complainant’s injury.

On September 11, 2019, at approximately 11:20 a.m., SO #2 radioed to his colleagues that he had observed a woman run across the front of his unmarked vehicle, while a male followed, grabbed and pulled her. When the man became assaultive toward the woman, SO #2 radioed that he was going to jump out and intervene. SO #2 and the Complainant began to struggle and ended up on the ground fighting. Three other ROPE squad members attended the area of Park Street West and Janette Avenue to assist SO #2, including SO #3, SO #1 and later, WO #4.

An independent witness to this interaction, CW #3, called 911. The 911 recording revealed CW #3 reporting that he had seen a woman running away from a man and that the woman was now on the ground. According to CW #3, a guy then went after the man and there were now three of them fighting and arguing.

When WO #3 arrived on the scene, he observed SO #2 attempting to lead CW #1 away, while SO #1 and SO #3 were attempting to arrest the Complainant and handcuff him. SO #3 was on the left of the Complainant and SO #1 was on his right; the Complainant was face down on a patch of lawn and was resisting being handcuffed and continuously trying to pull away. The two officers repeatedly told the Complainant that he was under arrest and to stop resisting, while the Complainant was striking out at the police officers. WO #3 then went to the Complainant’s right leg and waist area to assist in controlling him so that he could be handcuffed. SO #1 used his CEW in drive-stun mode (meaning the CEW made direct contact with the Complainant). The data from SO #1’s CEW revealed that it had been discharged three times, for a duration of one second on each occasion. WO #3 and SO #3 were then able to handcuff the Complainant, who appeared to be bleeding from the nose.

The communications recording reveals that at 11:20:30 a.m., a police officer is heard to request a unit at Park and Janette along with an ambulance; the officer is clearly heard to be out of breath. At 11:21:30 a.m., the same out of breath police officer is then heard to indicate that they had pulled up on a “pretty bad domestic” and that the man and the officer were both now bleeding.

While SO #2 opted not to provide a statement, utterances he made to WO #3, shortly after the incident, shed some light on what occurred. SO #2 indicated that he had intervened between the Complainant and CW #1, separating them. As he did so, CW #1 became almost assaultive in her manner, and while SO #2 was defending himself against CW #1, the Complainant approached him. SO #2 feared that the Complainant was also going to become assaultive, so he separated himself from the Complainant. At that point, SO #3 arrived and knocked the Complainant to the ground. Both of SO #1 and SO #3 then used compliance strikes in order to gain control over the Complainant.

The investigation revealed two sources of evidence indicating that the Complainant was beaten; however, I am unable to find either source sufficiently trustworthy to warrant resting criminal charges on the strength of their evidence. Both sources proved to be poor historians and indicated details that were contrary to other reliable evidence. For example, both sources indicated that the Complainant did not assault CW #1, while the evidence of the independent civilian witnesses, the communications recording, and the utterances from SO #2 to WO #3, all contradict those claims. Finally, I note that the one of these sources also indicated the man who initially intervened in the assault pointed a gun at the Complainant, and that the men beat him, which is contrary to the evidence of all reliable evidence. These frailties significantly detract from the reliability and credibility of their evidence.

In contrast, the information proffered by the civilian witnesses and the witness officers is consistent and uncontradicted by independent evidence, and I therefore accept it where it is at odds with the evidence that the Complainant was beaten. On this account of what transpired, the Complainant assaulted CW #1; SO #2 saw the assault and intervened; and, other ROPE squad officers then attended and assisted in the arrest of the Complainant, who was actively resisting his arrest and fighting back, resulting in his being taken to the ground. When the Complainant continued to violently resist, the officers then delivered compliance strikes, pepper spray was deployed, and the CEW was discharged by SO #1 against the Complainant in drive-stun mode. On this record, I am unable to reasonably conclude that the Complainant’s injury was the result of being beaten by the officers; rather, I believe that the Complainant sustained his injury when the officers attempted to restrain and control him in order that he could be handcuffed.

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. The officers were proceeding to arrest the Complainant after SO #2 observed him to assault his wife, and I am satisfied that there were reasonable grounds to proceed with the Complainant’s arrest for domestic assault contrary to section 266 of the Criminal Code.

The issue turns to the propriety of the force used in the course of the Complainant’s arrest. Here too I am satisfied that SO #1, SO #2 and SO #3 comported themselves lawfully. The force in question – that required to subdue and control the Complainant – occurred only after the Complainant had made it clear he would not be arrested willingly and continued to violently resist. While it is regrettable that the arrest appears to have caused the Complainant’s nasal injury, I am unable to reasonably conclude on the evidence that the actions of the officers were excessive in the circumstances.

In conclusion, while I accept that the Complainant’s nose was fractured while being arrested by SO #1 and SO #3, I am satisfied that there are no reasonable grounds to believe the officers transgressed the limits of the criminal law at any point. Accordingly, there is no basis to proceed with criminal charges against SO #1 and SO #3, or SO #2, and the file is closed.


Date: May 25, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit