SIU Director’s Report - Case # 23-OCI-124
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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 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 62-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 62-year-old man (the “Complainant”).
The Investigation
Notification of the SIU [1]
On April 25, 2023, at 3:55 p.m., the Kingston Police (KP) contacted the SIU with the following information. The Complainant had called the KP and left a voicemail message on April 24, 2023, indicating he had been injured during an arrest on April 11, 2023. The KP proceeded to check the KP records management system, and located what appeared to be a relevant occurrence involving the Complainant on April 11, 2023. On that date, the Complainant was arrested at 1201 Division Street (Kingslake Plaza), Kingston, at 11:43 a.m.
The Team
Date and time team dispatched: 04/26/2023 at 11:44 a.m.Date and time SIU responded: 04/26/2023 at 11:50 a.m.
Number of SIU Investigators assigned: 5
Number of SIU Forensic Investigators assigned: 0
Affected Person (aka “Complainant”):
62-year-old male; interviewed; medical records obtained and reviewedThe Complainant was interviewed on April 26, 2023.
Civilian Witnesses (CW)
CW #1 Interviewed CW #2 Interviewed
CW #3 Interviewed
The civilian witnesses were interviewed between May 10, 2023 and May 12, 2023.
Subject Official (SO)
SO Interviewed; notes received and reviewed The subject official was interviewed on May 30, 2023.
Witness Officials (WO)
WO #1 Interviewed WO #2 Interviewed
WO #3 Interviewed
WO #4 Not interviewed; no notes
The witness officials were interviewed on May 3, 2023.
Service Employee Witness (SEW)
SEW Interviewed The service employee witness was interviewed on May 3, 2023.
Investigative Delay
The SO was not interviewed until May 30, 2023. Evidence
The Scene
The events in question transpired in the parking lot of the Kingslake Plaza, 1201 Division Street, Kingston, in front of Shoppers Drug Mart and Dollarama.
Figure 1 - The parking lot of the Kingslake Plaza.
Video/Audio/Photographic Evidence [2]
The SIU obtained audio, video and/or photographic records of relevance, as set out below.
Video Footage – Kingslake Plaza
On May 10, 2023, the SIU received video files from two cameras.On April 11, 2023, starting at about 8:38 a.m., a Toyota Yaris was captured entering the Kingslake Plaza parking lot. It parked five rows north of a Service Ontario storefront. CW #1 exited the front passenger door and walked away from the vehicle.
Between about 9:28 a.m. and 9:29 a.m., two marked KP vehicles entered the same parking lot and parked in front of the Complainant’s vehicle. WO #1 exited one of those vehicles and walked over to the Complainant’s open driver’s door. The SO exited the other police vehicle and joined WO #1 at the driver’s door of the Complainant’s vehicle.
Starting at about 9:31 a.m., both police officers leaned down towards the open driver’s door of the Complainant’s vehicle and appeared to be aggressively trying to pull the Complainant out of his vehicle. The vehicle rocked from side to side.
Starting at about 9:32 a.m., the Complainant was pulled out of the vehicle onto the pavement of the parking lot, just outside his driver’s door, with both police officers standing over him.
Between about 9:33 a.m. and 9:34 a.m., the Complainant, with his hands handcuffed behind his back, was assisted up from the pavement by both police officers and escorted to the SO’s vehicle. The Complainant was placed in the back seat of the SO’s vehicle. The SO and WO #1 returned to the area just outside the Complainant’s driver’s door.
Starting at about 9:48 a.m., both police officers opened the rear passenger door of the SO’s vehicle and appeared to be speak with the Complainant.
Between about 9:55 a.m. and 10:00 a.m., both police officers went to, and conducted a search of the Complainant’s vehicle. They returned to the SO’s police vehicle and appeared to speak to the Complainant.
Starting at about 10:08 a.m., both police officers returned to their police vehicles and travelled out of the plaza.
KP Custody Video Footage
On April 28, 2023, the KP provided the SIU a copy of video footage of the Complainant’s time in custody on April 11, 2023.On April 11, 2023, starting at about 11:21 a.m., the Complainant was walked through the garage pedestrian door, across the vestibule and into the booking area, by the SO. The Complainant was handcuffed with his hands behind his back. WO #2 was at his station waiting for the Complainant’s arrival. The Complainant took a seated position on a bench across from WO #2.
The SO spoke with WO #2 by his station, and on the other side of the room, while WO #1 and the cell monitor dealt with the Complainant.
While the handcuffs were removed by the cell monitor, the Complainant fell against the wall. He told the cell monitor and WO #1 his arm was damaged. He favoured his left arm and rubbed his left shoulder. As the Complainant tried to remove his jacket, he explained to the cell monitor that he had damaged his left shoulder.
During the booking process, WO #2 asked the Complainant if he had any injuries. The Complainant only spoke of being partially paralyzed to his left foot and leg because of a bus running him over last year. WO #2 asked about illnesses, contagious diseases, mental health issues, and medications. The Complainant replied that he took blood pressure pills, which he had taken earlier that day. The Complainant showed notable discomfort and was unable to move his left arm.
Between about 11:30 a.m. and 11:32 a.m., as the Complainant rubbed his left upper arm. He was asked to stand and put his hands on the wall. He placed his right hand on the wall. WO #1 asked him to put his left arm up. The Complainant explained he could not lift his left arm, which remained by his side during a search.
Starting at about 11:33 a.m., the SO and WO #4 walked the Complainant to his cell.
Starting at about 12:05 p.m., a police officer [believed to be the SO] came to the cell door and told the Complainant he had to read something to him. With difficulty, the Complainant got up, but stated, “You know what, I can hardly move my left arm.” There was a conversation at the door about two appearance notices.
At 12:42 p.m., WO #1 woke the Complainant up and spoke to him through the door about a Provincial Offence Notice (PON).
Between about 12:56 p.m. and 12:57 p.m., the Complainant yelled out twice to get somebody’s attention. The SEW appeared at the door. The Complainant spoke of his belief there was a broken blood vessel in his arm, and the left side was three times larger than the right side, as he pointed to his neck and shoulder area. The SEW said he would pass the information on.
Starting at about 1:01 p.m., WO #2 arrived at the cell door. The Complainant said his left arm was all “fucked up.” When asked, the Complainant said the injury occurred when he was arrested that day. WO #2 asked if he was resisting. The Complainant replied, “That’s what they say, but I was just trying to get out of the car, sitting (inaudible).” WO #2 said he specifically asked about injuries when the Complainant came in. The Complainant said the size of his arm had increased since. WO #2 said, “So it didn’t hurt then, but it does now.” The Complainant spoke of his arm being “smoking hot” and three times the size from when he came in. He said he had no feeling in it. The conversation turned to what the Complainant was arrested for. There appeared to be some confusion on WO #2’s part as to why the Complainant was in custody. The Complainant spoke of the OPP Peterborough warrant. WO #2 said he would speak to the police officer that arrested the Complainant because it was WO #2’s impression he was being released. WO #2 left to locate the SO, and told the Complainant he would return.
Starting at about 1:33 p.m., the SO retrieved the Complainant from his cell, and told him he was being released. The Complainant spoke of no feeling in his left arm as he held it across his chest.
Starting at about 1:35 p.m., WO #2 approached the Complainant, who mentioned his shoulder. WO #2 replied, “Yea, you’re good to go. Grab your stuff.” WO #2 gave the Complainant his release documents and the PON. WO #2 returned to his station as the SO gave the Complainant his walking stick, and the rest of his property. The Complainant sat on the bench and used his right hand to put on his boots. He could not tie the laces up.
Starting at about 1:37 p.m., the Complainant asked if there was a chance he could get a drive to the hospital. WO #2 said they did not have anyone available to take him because it had been a busy day. WO #2 said he would call a cab if the Complainant had the cash. Again, the Complainant mentioned to the SO the size of his arm. The SO said it was because he worked out. The Complainant said, “No, you twisted it and it’s a blood vessel that burst inside.” WO #2 walked back over as the Complainant spoke of his arm being numb. The Complainant squeezed his hand and spoke of the “scream” going to his shoulder from getting twisted or dislocated during his arrest. WO #2 told the Complainant to get himself to the hospital and spoke of the Complainant’s arms looking the same, which the Complainant immediately disagreed with. It was discovered that the Complainant’s knapsack was left in the car at the scene of the arrest, and the Complainant stated his wallet was inside. The SO reiterated nobody was available when the Complainant asked for a ride back to his car. The SO assisted the Complainant in tying his laces, and told the Complainant to get his arm checked out.
At 1:42 p.m., WO #2 and the SO walked the Complainant outside.
KP Communications Recordings
On April 28, 2023, the SIU obtained a copy of the pertinent police communications recordings from the KP.On April 11, 2023, the SO reported that he and WO #1 would check out 1201 Division Street. WO #1 informed the SO that she had located the vehicle.
The SO asked to confirm if there was a warrant for the Complainant. It was confirmed the OPP Peterborough had an outstanding warrant, and the SO would take the Complainant to the division where he would be released by the KP.
Kingston Emergency Medical Service (EMS) Communications Recordings
On May 4, 2023, the Kingston EMS provided the SIU their communications recordings related to a call assistance on April 11, 2023.April 11, 2023, at 1:54 p.m., an EMS was dispatched to the request for assistance.
At 2:01 p.m., EMS arrived at 705 Division Street.
At 2:13 p.m., EMS departed with the Complainant.
Materials Obtained from Police Service
Upon request, the SIU received the following materials from the KP between April 25, 2023 and May 30, 2023:- General Occurrence Report (April 26, 2023);
- Records of computer-assisted dispatch;
- WO #3’s notes;
- WO #1’s notes;
- SEW notes;
- The SO’s notes and Narrative Text Hardcopy;
- Daily Report-April 11, 2023;
- Detention Notes;
- Custody video;
- Communications recordings;
- Voice mail – the Complainant; and
- Executed bench warrant for the Complainant.
Materials Obtained from Other Sources
The SIU obtained and reviewed the following records from other sources between April 26, 2023 and May 10, 2023:- Kingston Paramedic Services communications recordings;
- EMS records;
- The Complainant’s medical records from Kingston General Hospital;
- Photos of injury from the Complainant; and
- Video footage from Kingslake Plaza.
Incident Narrative
The evidence collected by the SIU, including interviews with the Complainant and the SO, and video footage that captured the incident in parts, gives rise to the following scenario.
In the morning of April 11, 2023, KP officers were notified of a suspected impaired driver parked in his vehicle in the parking lot of the Kingslake Plaza, 1201 Division Street, Kingston. WO #1 was the first officer to arrive on scene. She spotted the vehicle in question – a Toyota Yaris – and stopped her cruiser at a 90-degree angle in front of it. The SO was next to arrive, bringing his vehicle to a stop at an angle in front of the Yaris’s front driver’s side. The officers exited their cruisers and approached the driver’s door of the vehicle.
The Complainant was the driver of the Yaris. Asked to produce his vehicle documentation, the Complainant was able to provide his insurance and ownership papers, but not his licence. Shortly thereafter, the Complainant was told he was under arrest and directed to exit his vehicle.
While dealing with the Complainant, the SO had come to learn via his radio that that there was an arrest warrant in effect for his arrest. When he did not promptly exit the vehicle, the SO and WO #1 opened the driver’s door and took physical hold of the Complainant, eventually pulling him from the Yaris onto the pavement and securing him in handcuffs.
Following his arrest, the Complainant was assisted to his feet and placed in the SO’s cruiser for transport to the station.
The Complainant complained of pain to his left arm and shoulder while in custody at the station, though he did not initially attribute it to his interaction with either of the SO and WO #1.
After his release from custody, a couple of hours after he had been lodged in a cell, the Complainant collapsed outside the station. A passing officer noticed the Complainant in distress and arranged for an ambulance.
At hospital, the Complainant was diagnosed with a fractured left shoulder socket.
In the morning of April 11, 2023, KP officers were notified of a suspected impaired driver parked in his vehicle in the parking lot of the Kingslake Plaza, 1201 Division Street, Kingston. WO #1 was the first officer to arrive on scene. She spotted the vehicle in question – a Toyota Yaris – and stopped her cruiser at a 90-degree angle in front of it. The SO was next to arrive, bringing his vehicle to a stop at an angle in front of the Yaris’s front driver’s side. The officers exited their cruisers and approached the driver’s door of the vehicle.
The Complainant was the driver of the Yaris. Asked to produce his vehicle documentation, the Complainant was able to provide his insurance and ownership papers, but not his licence. Shortly thereafter, the Complainant was told he was under arrest and directed to exit his vehicle.
While dealing with the Complainant, the SO had come to learn via his radio that that there was an arrest warrant in effect for his arrest. When he did not promptly exit the vehicle, the SO and WO #1 opened the driver’s door and took physical hold of the Complainant, eventually pulling him from the Yaris onto the pavement and securing him in handcuffs.
Following his arrest, the Complainant was assisted to his feet and placed in the SO’s cruiser for transport to the station.
The Complainant complained of pain to his left arm and shoulder while in custody at the station, though he did not initially attribute it to his interaction with either of the SO and WO #1.
After his release from custody, a couple of hours after he had been lodged in a cell, the Complainant collapsed outside the station. A passing officer noticed the Complainant in distress and arranged for an ambulance.
At hospital, the Complainant was diagnosed with a fractured left shoulder socket.
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 April 11, 2023. In the ensuing SIU investigation of the incident, one of the officers – the SO was identified as the subject official. The investigation is now concluded. On my assessment of the evidence, there are no reasonable grounds to believe that the SO 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 SO and WO #1 were within their rights in seeking to take the Complainant into custody. In effect at the time was a bench warrant authorizing the Complainant’s arrest, relating to impaired driving charges.
There is some suggestion the Complainant was handled with undue force by the police during his extrication from vehicle. It is alleged that the SO tugged on the Complainant’s left arm. Although, the source of the allegation also says that the officer might have mistakenly believed that the Complainant was resisting his arrest because his seatbelt was still on, making his exit from the vehicle difficult. The Complainant was finally removed after managing to release the seatbelt with his right hand.
It would be unwise and unsafe to rest criminal charges on the strength of the allegation alone. It is alleged the SO was the only officer who dealt with him. The video footage of the incident establishes, however, that WO #1 was also involved in the physical struggle at the driver’s door. It is also alleged that the SO acted precipitously and did not afford him an opportunity to comply with his request before opening the door and taking hold of him. That account is belied by the video footage as well, which indicates that WO #1 and the SO were by the door speaking with the Complainant for about two minutes before the driver’s door was opened. This rendition of events is also contested by the accounts of WO #1 and the SO, whose accounts are not inconsistent with the video footage. They describe an obstinate Complainant, refusing to exit the vehicle after repeatedly being advised of his arrest, and passively resisting the officers as they tried to pull him from the vehicle. On this record, I am unable to reasonably conclude that either officer used excessive force in their dealings with the Complainant.
In the result, as there are no reasonable grounds to believe that either the SO or WO #1 comported themselves other than within the limits of the criminal law in their dealings with the Complainant, there is no basis for proceeding with charges in this case.
Date: August 23, 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 SO and WO #1 were within their rights in seeking to take the Complainant into custody. In effect at the time was a bench warrant authorizing the Complainant’s arrest, relating to impaired driving charges.
There is some suggestion the Complainant was handled with undue force by the police during his extrication from vehicle. It is alleged that the SO tugged on the Complainant’s left arm. Although, the source of the allegation also says that the officer might have mistakenly believed that the Complainant was resisting his arrest because his seatbelt was still on, making his exit from the vehicle difficult. The Complainant was finally removed after managing to release the seatbelt with his right hand.
It would be unwise and unsafe to rest criminal charges on the strength of the allegation alone. It is alleged the SO was the only officer who dealt with him. The video footage of the incident establishes, however, that WO #1 was also involved in the physical struggle at the driver’s door. It is also alleged that the SO acted precipitously and did not afford him an opportunity to comply with his request before opening the door and taking hold of him. That account is belied by the video footage as well, which indicates that WO #1 and the SO were by the door speaking with the Complainant for about two minutes before the driver’s door was opened. This rendition of events is also contested by the accounts of WO #1 and the SO, whose accounts are not inconsistent with the video footage. They describe an obstinate Complainant, refusing to exit the vehicle after repeatedly being advised of his arrest, and passively resisting the officers as they tried to pull him from the vehicle. On this record, I am unable to reasonably conclude that either officer used excessive force in their dealings with the Complainant.
In the result, as there are no reasonable grounds to believe that either the SO or WO #1 comported themselves other than within the limits of the criminal law in their dealings with the Complainant, there is no basis for proceeding with charges in this case.
Date: August 23, 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.