SIU Director’s Report - Case # 23-OCI-025
Warning:
This page contains graphic content that can shock, offend and upset.
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 section 14 (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 the serious injury of a 22-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 the serious injury of a 22-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On January 22, 2023, at 7:09 p.m., the Kingston Police (KP) contacted the SIU with the following information.On January 22, 2023, the KP had received a call in which it was reported that a man was passed out in a car on Division Street at Johnson Street, Kingston. Police officers arrived and arrested the Complainant following a struggle. A handgun located inside the vehicle was found to be loaded. The Complainant was taken to the police station and lodged into a cell. He later complained of a sore jaw and pain in his shoulder. The Complainant was taken to the Kingston General Hospital (KGH) by police officers and, at 7:00 p.m., diagnosed with a lower jaw fracture.
The Team
Date and time team dispatched: 01/23/2023 at 10:45 a.m.Date and time SIU arrived on scene: 01/23/2023 at 11:18 a.m.
Number of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
22-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on January 25, 2023.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
CW #4 Interviewed
CW #5 Interviewed
CW #6 Interviewed
The civilian witnesses were interviewed between February 2 and 22, 2023.
Subject Officials (SO)
SO #1 Interviewed; notes received and reviewed SO #2 Interviewed; notes received and reviewed
SO #3 Interviewed; notes received and reviewed
The subject officials were interviewed on March 8, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed; notes received and reviewed
WO #5 Not interviewed; notes received and reviewed
WO #6 Not interviewed; notes received and reviewed
WO #7 Not interviewed; notes received and reviewed
WO #8 Not interviewed; notes received and reviewed
WO #9 Not interviewed; notes received and reviewed
WO #10 Not interviewed; statement received and reviewed
The witness officials were interviewed on February 16, 2023.
Evidence
The Scene
The events in question transpired in the southbound driving lane of Division Street, on the north side of the intersection at Johnson Street, Kingston, Ontario. Video/Audio/Photographic Evidence [2]
Communications Recordings
On January 22, 2023, at 7:55 a.m., a woman contacted the KP to report that there was a man [now known to be the Complainant] in a Hyundai Elantra sleeping at the intersection of Division Street and Johnson Street. The engine of the Hyundai was running. Cars were driving by and honking, as the Elantra was blocking traffic. A police check of the licence plate number provided revealed that the Hyundai was registered to a woman in a different city.Several other callers to police also reported the matter.
SO #1 was dispatched at 7:55 a.m., along with SO #3. Both police officers were en route at 7:57 a.m., and were on scene at 7:59 a.m.
At 8:01 a.m., SO #3 advised that the involved man was the Complainant and provided his date of birth.
At 8:03 a.m., a radio transmission was made that the Complainant was being restrained and, at 8:05 a.m., SO #3 advised that they had the Complainant in custody.
At 8:06 a.m., WO #1 advised that a firearm had been recovered.
Conducted Energy Weapon (CEW) Deployment Data
At 8:05:51 a.m., around the time of the arrest of the Complainant, SO #3 armed his CEW. At 8:05:54 a.m., the officer depressed the trigger action for a charge duration of five seconds.Booking Video
On January 22, 2023, at 8:20 a.m., the Complainant was brought into the booking room by two uniformed police officers. He was handcuffed with his hands behind his back. The Complainant identified himself verbally to a police officer behind the counter.At 8:22 a.m., two paramedics entered and assessed the Complainant, who appeared to have trouble breathing. He told a paramedic he was an asthmatic, and his arm and jaw hurt. The paramedic removed two CEW probes from his upper right chest. The Complainant was given an electrocardiogram, his blood pressure was taken, and he was administered Ventolin for asthma.
At 8:42 a.m., the paramedics left, and the Complainant was searched and given a blue jump suit to wear. He was taken to a cell and, at 9:05 a.m., he was allowed to speak to his lawyer in private.
In the afternoon, at about 2:00 p.m., the Complainant was taken to the hospital and later brought back to the lock-up area.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the KP between January 27, 2023 and March 9, 2023:- Communications recordings;
- Policy - Use of Force;
- Policy - Arrest;
- Booking Report;
- Booking Timeline;
- Booking Video;
- Record of computer-assisted dispatch;
- Involved Officers and Civilian Witnesses List;
- Property Collected;
- Use of Force Report;
- General Occurrence Narrative-SO #3;
- Notes-WO #9;
- Notes-WO #3;
- Notes-WO #5;
- Notes-WO #6;
- Notes-WO #2;
- Notes-WO #7;
- Notes-SO #2;
- Notes-WO #4;
- Notes-WO #1;
- Notes-SO #1
- Notes-SO #3;
- Statement-WO #10;
- Civilian witness statements; and
- CEW – data download.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources: - The Complainant’s medical records from KGH; and
- Video footage and photographs from CW #2.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and each of the subject officials, gives rise to the following scenario.
Just before 8:00 a.m. of January 22, 2023, SO #1, SO #2 and SO #3 were dispatched to the intersection of Division Street and Johnson Street, Kingston. A number of individuals had called police to report the presence of a male inside a stationary vehicle stopped facing south in the southbound lane of Division Street, just north of Johnson Street. It appeared as if the male was sleeping in the driver’s seat.
The officers arrived on scene at about 8:00 a.m. They were joined by personnel from the fire department, on hand in the event the male was in medical distress.
The male was the Complainant. On hearing SO #3 knocking on the door window, the Complainant wakened. He opened the door window and then the door, exiting the vehicle at the direction of SO #3. Once outside, the Complainant objected when SO #3 grabbed hold of his left arm as they were walking towards a police cruiser stopped behind his vehicle. A struggle ensued.
The Complainant resisted as SO #3, SO #1 and SO #2 attempted to take him into custody. SO #2 delivered a punch to the upper body and SO #3 deployed his CEW, neither of which were effective in subduing the Complainant. SO #3 grabbed the Complainant by the hair and pulled him down while simultaneously delivering a knee to the head, after which the officers were able to take the Complainant to the ground. The Complainant continued to struggle – he refused to release his hands to be handcuffed, managed to raise his upper body momentarily, and reached for his waistband. The officers reacted with a series of knee strikes and punches. With the assistance of firefighters on scene and the arrival of a couple of other officers, the Complainant’s arms were controlled and handcuffed behind his back.
Following his arrest, the Complainant was searched and a loaded handgun recovered from his person.
The Complainant was taken to the station and then to hospital where he was diagnosed with a fractured jaw.
Just before 8:00 a.m. of January 22, 2023, SO #1, SO #2 and SO #3 were dispatched to the intersection of Division Street and Johnson Street, Kingston. A number of individuals had called police to report the presence of a male inside a stationary vehicle stopped facing south in the southbound lane of Division Street, just north of Johnson Street. It appeared as if the male was sleeping in the driver’s seat.
The officers arrived on scene at about 8:00 a.m. They were joined by personnel from the fire department, on hand in the event the male was in medical distress.
The male was the Complainant. On hearing SO #3 knocking on the door window, the Complainant wakened. He opened the door window and then the door, exiting the vehicle at the direction of SO #3. Once outside, the Complainant objected when SO #3 grabbed hold of his left arm as they were walking towards a police cruiser stopped behind his vehicle. A struggle ensued.
The Complainant resisted as SO #3, SO #1 and SO #2 attempted to take him into custody. SO #2 delivered a punch to the upper body and SO #3 deployed his CEW, neither of which were effective in subduing the Complainant. SO #3 grabbed the Complainant by the hair and pulled him down while simultaneously delivering a knee to the head, after which the officers were able to take the Complainant to the ground. The Complainant continued to struggle – he refused to release his hands to be handcuffed, managed to raise his upper body momentarily, and reached for his waistband. The officers reacted with a series of knee strikes and punches. With the assistance of firefighters on scene and the arrival of a couple of other officers, the Complainant’s arms were controlled and handcuffed behind his back.
Following his arrest, the Complainant was searched and a loaded handgun recovered from his person.
The Complainant was taken to the station and then to hospital where he was diagnosed with a fractured jaw.
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 seriously injured in the course of his arrest by KP officers on January 22, 2023. In the ensuing SIU investigation, SO #1, SO #2 and SO #3 were identified as subject officials. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that any of the subject officials 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 Complainant appeared confused and unsteady as he exited his vehicle, from which a strong odour of marijuana was coming. In the circumstances, I am satisfied that SO #3 was within his rights in doing what he purported to be doing, namely, arresting the Complainant for impaired driving.
I am also satisfied that the quantum of force brought to bear by the subject officials was legally justified. There is no doubt that the officers struck the Complainant multiple times with punches and knees. SO #3 further discharged his CEW. That said, there is also little doubt that the Complainant represented a formidable physical challenge and vigorously resisted his arrest while on his feet and on the ground. Of particular concern to the officers was the fact that he seemed to be reaching with his right hand towards his waistband. As it turns out, the officers’ concerns were well-founded – a loaded handgun was recovered from the right side of the Complainant’s waistband. It was imperative, therefore, that decisive force be brought to bear to take the Complainant into custody as soon as possible to mitigate the risks of a weapon being used. On this record, I am unable to reasonably conclude that the force used by the officers was a disproportionate or excessive response to the exigencies of the moment.
In the result, while I accept that the Complainant’s injury was incurred in the altercation that marked his arrest, there are no reasonable grounds to believe that it is attributable to unlawful conduct on the part of the subject officials. The file is closed.
Date: May 18, 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 Complainant appeared confused and unsteady as he exited his vehicle, from which a strong odour of marijuana was coming. In the circumstances, I am satisfied that SO #3 was within his rights in doing what he purported to be doing, namely, arresting the Complainant for impaired driving.
I am also satisfied that the quantum of force brought to bear by the subject officials was legally justified. There is no doubt that the officers struck the Complainant multiple times with punches and knees. SO #3 further discharged his CEW. That said, there is also little doubt that the Complainant represented a formidable physical challenge and vigorously resisted his arrest while on his feet and on the ground. Of particular concern to the officers was the fact that he seemed to be reaching with his right hand towards his waistband. As it turns out, the officers’ concerns were well-founded – a loaded handgun was recovered from the right side of the Complainant’s waistband. It was imperative, therefore, that decisive force be brought to bear to take the Complainant into custody as soon as possible to mitigate the risks of a weapon being used. On this record, I am unable to reasonably conclude that the force used by the officers was a disproportionate or excessive response to the exigencies of the moment.
In the result, while I accept that the Complainant’s injury was incurred in the altercation that marked his arrest, there are no reasonable grounds to believe that it is attributable to unlawful conduct on the part of the subject officials. The file is closed.
Date: May 18, 2023
Electronically approved by
Joseph Martino
Director
Special Investigations Unit
Endnotes
- 1) The information in this section reflects the information received by the SIU at the time of notification and does not necessarily reflect the SIU’s finding of facts following its investigation. [Back to text]
- 2) 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.