SIU Director’s Report - Case # 22-OCI-250
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Contents:
Mandate of the SIU
The Special Investigations Unit is a civilian law enforcement agency that investigates incidents involving an official where there has been death, serious injury, the discharge of a firearm at a person or an allegation of sexual assault. Under the Special Investigations Unit Act, 2019 (SIU Act), officials are defined as police officers, special constables of the Niagara Parks Commission and peace officers under the Legislative Assembly Act. The SIU’s jurisdiction covers more than 50 municipal, regional and provincial police services across Ontario.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Under the SIU Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether there are reasonable grounds to believe that a criminal offence was committed. If such grounds exist, the Director has the authority to lay a criminal charge against the official. Alternatively, in cases where no reasonable grounds exist, the Director cannot lay charges. Where no charges are laid, a report of the investigation is prepared and released publicly, except in the case of reports dealing with allegations of sexual assault, in which case the SIU Director may consult with the affected person and exercise a discretion to not publicly release the report having regard to the affected person’s privacy interests.
Information Restrictions
Special Investigations Unit Act, 2019
Pursuant to section 34, certain information may not be included in this report. This information may include, but is not limited to, the following:- The name of, and any information identifying, a subject official, witness official, civilian witness or affected person.
- Information that may result in the identity of a person who reported that they were sexually assaulted being revealed in connection with the sexual assault.
- Information that, in the opinion of the SIU Director, could lead to a risk of serious harm to a person.
- Information that discloses investigative techniques or procedures.
- Information, the release of which is prohibited or restricted by law.
- Information in which a person’s privacy interest in not having the information published clearly outweighs the public interest in having the information published.
Freedom of Information and Protection of Privacy Act
Pursuant to section14 (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 that could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- The names of persons, including civilian witnesses, and subject and witness officials;
- 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
Pursuant to this legislation, any information related to the personal health of identifiable individuals is not included.Other proceedings, processes, and investigations
Information may also have 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
Pursuant to section 15 of the SIU Act, the SIU may investigate the conduct of officials, be they police officers, special constables of the Niagara Parks Commission or peace officers under the Legislative Assembly Act, that may have resulted in death, serious injury, sexual assault or the discharge of a firearm at a person.
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into a serious injury sustained by a 57-year-old man (the “Complainant”).
A person sustains a “serious injury” for purposes of the SIU’s jurisdiction if they: sustain an injury as a result of which they are admitted to hospital; suffer a fracture to the skull, or to a limb, rib or vertebra; suffer burns to a significant proportion of their body; lose any portion of their body; or, as a result of an injury, experience a loss of vision or hearing.
In addition, a “serious injury” means any other injury sustained by a person that is likely to interfere with the person’s health or comfort and is not transient or trifling in nature.
This report relates to the SIU’s investigation into a serious injury sustained by a 57-year-old man (the “Complainant”).
The Investigation
Notification of the SIU
On September 21, 2022, the Complainant contacted the SIU via its online inquiry/complaint system. Subsequently, on September 26, 2022, the Complainant reported the following information to the SIU about an interaction he had had with the Kingston Police (KP).On September 13, 2022, the Complainant was residing with his mother at an address on Highway 15, Kingston. At 11:55 p.m., KP officers attended at his address after he was refused entry into his apartment because of his intoxication and belligerent behaviour. The Complainant was arrested, in the course of which he was struck several times on the left side of his torso. He was transported to KP station at 705 Division Street. Several hours elapsed, and the Complainant indicated that he was suffering from discomfort on his left side. He was transported to the Kingston General Hospital (KGH), and later released having been issued a Provincial Offences Notice for being intoxicated in a public place. The Complainant was diagnosed with a fractured rib on his left side.
The Team
Date and time team dispatched: 09/26/2022 at 3:06 p.m.Date and time SIU arrived on scene: 09/27/2022 at 12:15 p.m.
Number of SIU Investigators assigned: 2
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
Interviewed; medical records obtained and reviewedThe Complainant was interviewed on September 28, 2022.
Civilian Witnesses
CW Interviewed The CW was interviewed on October 4, 2022.
Subject Officials
SO #1 Declined interview and to provide notes, as is the subject official’s legal rightSO #2 Declined interview and to provide notes, as is the subject official’s legal right
Evidence
The Scene
On September 13, 2022, the scene presented itself on the grounds of an apartment building on Highway 15, Kingston. There were cameras at the apartment building; however, they were not operational.
Video/Audio/Photographic Evidence [1]
Police Communications Recordings
The following is a summary of the pertinent recordings.911 Call
A caller from an apartment building on Highway 15, Kingston, called 911 and requested that police attend at the building. The Complainant was in the building lobby trying to force himself in, and he was making a scene. The Complainant had been drinking, and his mother, the CW, a resident of the building, had refused to let him in. The Complainant had harassed the CW on the phone and through the buzzer. The caller advised that she had had two police officers attend the building in the last month because of similar behaviour by the Complainant.
The 911 dispatcher informed the caller that the police would attend the building.
Second 911 Call
The caller reported that the Complainant was harassing and shouting at her, and he was about to break the window of the building. The dispatcher informed her that officers would be at the building as soon as possible.
Radio Transmissions
There was no evidentiary value in the radio transmissions, which were limited to the dispatch of officers and a subsequent communication that a male – the Complainant - was in custody.
Computer-assisted Dispatch (CAD) Report
At 11:02 p.m., it was noted that someone had called the KP communications centre to report an incident involving the Complainant. The caller reported that the Complainant had been drinking, and was yelling outside the building.
At 11:18 p.m., it was noted that the caller had called back, at which time she reported that the Complainant was yelling, and threatening to smash the windows and pull the fire alarm.
SO #1 and SO #2 were dispatched at 11:18 p.m. to attend to the incident. It was noted that they reached the location at 11:33 p.m.
At 11:55 p.m., it was noted that the Complainant was in custody.
Cell Video Footage
The following is a summary of the relevant footage.SO #1 and SO #2 arrived at the KP station sallyport with the Complainant in their police vehicle. They led the Complainant inside the police facilities. The Complainant’s hands were handcuffed behind his back. He sat down on a bench. Shortly thereafter, the Complainant was searched. He had some conversations with the police officers.
After the search, the Complainant was uncuffed. He appeared agitated and intoxicated. The Complainant was informed that he had been arrested for public intoxication. The Complainant continued to speak, but he was incoherent and could not be understood.
Police officers escorted the Complainant to a cell. He proceeded to sit down on the concrete bench in the cell. While in the cell, he got up and went to the door of the cell. He banged on the door for several moments, and appeared to speak through the glass window, but what he said could not be ascertained.
The Complainant held the left side of his waist and pulled up his shirt. He inspected the side and appeared to be in pain. The Complainant returned to the door. He vigorously banged on the door and appeared to speak through the window while holding his left side.
A police officers opened the door of the cell. He and the Complainant appeared to have a conversation. The Complainant pulled up his shirt and turned his back to the police officer to show him the left side that appeared to be hurting him.
The Complainant was escorted to the booking office after it appeared he had complained of being hurt on his left side. The Complainant was informed that he would be taken to the hospital.
While being led out of the booking office, the Complainant said that the pain was sudden.
The Complainant was taken to a police vehicle in the sally port and then to the KGH.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the KP between October 12 and 25, 2022:- CAD Report;
- Communications recordings;
- Cell video footage;
- Policy - Use of Force;
- Policy - Arrest;
- Policy - Prisoner Care and Control; and
- Policy - Prisoner Transport.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources:- Medical Records – KGH.
Incident Narrative
The evidence collected by the SIU, including an interview with the Complainant, gives rise to the following scenario. As was their legal right, neither SO #1 nor SO #2 agreed an interview with the SIU or the release of their notes.
In the late evening of September 13, 2022, police officers were dispatched to an apartment in the area of Highway 15, Kingston, following a call to police. The caller had called to report that an intoxicated Complainant was causing a disturbance outside the front door of the building – he was yelling and threatening to break windows – after being denied entry by his mother.
The Complainant lived with his mother in the building. He had forgotten his key to the building and was refused entry through the front access door because of his intoxication and belligerent behaviour.
SO #1 and SO #2 arrived on scene at about 11:18 p.m. Following an altercation with the Complainant, he was arrested for public intoxication and transported in handcuffs to the station.
Back at the station, the Complainant began to feel pain in his left side. He alerted police officials and arrangements were made to take him to hospital.
The Complainant was diagnosed at hospital with a left-sided lateral rib fracture.
In the late evening of September 13, 2022, police officers were dispatched to an apartment in the area of Highway 15, Kingston, following a call to police. The caller had called to report that an intoxicated Complainant was causing a disturbance outside the front door of the building – he was yelling and threatening to break windows – after being denied entry by his mother.
The Complainant lived with his mother in the building. He had forgotten his key to the building and was refused entry through the front access door because of his intoxication and belligerent behaviour.
SO #1 and SO #2 arrived on scene at about 11:18 p.m. Following an altercation with the Complainant, he was arrested for public intoxication and transported in handcuffs to the station.
Back at the station, the Complainant began to feel pain in his left side. He alerted police officials and arrangements were made to take him to hospital.
The Complainant was diagnosed at hospital with a left-sided lateral rib fracture.
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 31, Liquor Licence Act -- Intoxication
31 (1) No person shall be in an intoxicated condition in,
(a) a place to which the general public is invited or permitted access; or(b) any part of a residence that is used in common by persons occupyingmore than one dwelling in the residence.
(2) A police officer or conservation officer may arrest without warrant any person who is contravening subsection (1) if, in the opinion of the officer, it is necessary to do so for the safety of any person.
Analysis and Director's Decision
The Complainant was seriously injured in the course of his arrest by KP officers on September 13, 2022. The officers – SO #1 and SO #2 – were identified as subject officials for purposes of the ensuing SIU investigation. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that either subject official committed a criminal offence in connection with the Complainant’s arrest and 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 was reasonably necessary in the execution of an act that they were required or authorized to do by law.
The weight of the evidence establishes that the Complainant was in an intoxicated condition, refusing to leave the front entrance area of the apartment building, and attempting to force his way inside. In the circumstances, it would appear there was a legitimate basis for arresting the Complainant pursuant to section 31(2) of the Liquor Licence and Control Act, 2019.
With respect to the force that may have been used by one or both of the officers in effecting the Complainant’s arrest, the evidence is not sufficiently cogent to justify proceeding with criminal charges. While there is some evidence that the Complainant was punched three times by one of the officers, there is no evidence that describes which officer would have been responsible for the blows. The source of this allegation also states the Complainant was only “a bit intoxicated” at the time, but that evidence is belied by the Complainant’s behaviour at the scene and the evidence of his inebriation by other witnesses. The source of the allegation also confirms the Complainant resisted arrest, albeit characterizes the resistance as minimal. On this record, I am unable to reasonably conclude with any confidence that one or both of the subject officials used excessive force in taking the Complainant into custody.
In the result, while it seems likely that the Complainant’s injury was incurred in the course of his arrest by SO #1 and SO #2, there are no reasonable grounds to believe that either officer comported himself other than lawfully throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case.
Date: January 19, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
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 weight of the evidence establishes that the Complainant was in an intoxicated condition, refusing to leave the front entrance area of the apartment building, and attempting to force his way inside. In the circumstances, it would appear there was a legitimate basis for arresting the Complainant pursuant to section 31(2) of the Liquor Licence and Control Act, 2019.
With respect to the force that may have been used by one or both of the officers in effecting the Complainant’s arrest, the evidence is not sufficiently cogent to justify proceeding with criminal charges. While there is some evidence that the Complainant was punched three times by one of the officers, there is no evidence that describes which officer would have been responsible for the blows. The source of this allegation also states the Complainant was only “a bit intoxicated” at the time, but that evidence is belied by the Complainant’s behaviour at the scene and the evidence of his inebriation by other witnesses. The source of the allegation also confirms the Complainant resisted arrest, albeit characterizes the resistance as minimal. On this record, I am unable to reasonably conclude with any confidence that one or both of the subject officials used excessive force in taking the Complainant into custody.
In the result, while it seems likely that the Complainant’s injury was incurred in the course of his arrest by SO #1 and SO #2, there are no reasonable grounds to believe that either officer comported himself other than lawfully throughout their engagement. As such, there is no basis for proceeding with criminal charges in this case.
Date: January 19, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The following records contain sensitive personal information and are not being released pursuant to section 34(2) of the Special Investigations Unit Act, 2019. The material portions of the records are summarized below. [Back to text]
Note:
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.