Director's Report Details

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.

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 Personal 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.

Pursuant to section 21 (i.e., personal privacy), protected personal information is not included in this report. This information may include, but is not limited to, the following:

• 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.

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 66-year-old man (the “Complainant”).

Notification of the SIU[1]

On December 25, 2023, at 2:50 p.m., the Kingston Police (KP) notified the SIU of an injury to the Complainant.

According to the KP, on December 25, 2023, at 1:28 a.m., KP received a 911 call for a domestic disturbance at a residence in the west end of Kingston. KP officers arrived at 1:34 a.m. The Civilian Witness (CW) fled and the Complainant resisted arrest. Following a struggle, the Complainant was taken into custody and lodged in the KP cells where he complained of pain to his eye. The watch commander noticed swelling and the Complainant was transported to the Kingston General Hospital (KGH) where he was diagnosed with a fractured orbital bone.

The Team

Date and time team dispatched: 2023/12/27 at 10:52 a.m.

Date and time SIU arrived on scene: 2023/12/27 at 12:30 p.m.

Number of SIU Investigators assigned: 3

Number of SIU Forensic Investigators assigned: 0

Affected Person (aka “Complainant”):

66-year-old male; interviewed; medical records obtained and reviewed

The Complainant was interviewed on January 5, 2024.

Civilian Witness

CW Interviewed

The civilian witness was interviewed on January 16, 2024.

Subject Official (SO)

SO Interviewed, but declined to submit notes, as is the subject official’s legal right

The subject official was interviewed on January 30, 2024.

Witness Officials (WO)

WO #1 Interviewed; notes received and reviewed

WO #2 Interviewed; notes received and reviewed

WO #3 Interviewed; notes received and reviewed

The witness officials were interviewed between January 5 and 12, 2024.

The Scene

The events in question transpired in the foyer of an apartment in Kingston.

Video/Audio/Photographic Evidence[2]

Police Holding Cell Footage

Upon review of the footage, it was evident the Complainant had an injury to his right eye at the time he arrived at the KP holding cells. The Complainant was brought into the booking area. The booking sergeant asked if he had any injuries. The Complainant complained of an injury to his right eye, stating that he was punched in the eye and that he did not fight. He did not request medical assistance.

The Complainant was lodged in a cell and, at 4:11 a.m., December 25, 2023, he asked for medical attention for a headache, pain in his right eye and what he believed to be a concussion.

At 4:40 a.m., the Complainant was removed from the KP holding cells for medical treatment at the KGH.

Police Communications Recordings

The dispatcher assigned KP units to attend a residence. The dispatcher advised the attending officers that it sounded as though an assault was taking place. A male was heard in the background saying he was going to smash the phone.

At 12:38 minutes into the recording, an officer reported that the building superintendent was allowing them entry to the building.

At 13:38 minutes, an officer reported that a male was fighting. A struggle could be heard in the background. Two minutes later, an officer reported a male was in custody.

Video Footage – The Apartment Building

Recordings from the apartment building where the Complainant was arrested held little value in relation to the investigation. The camera only captured the Complainant being escorted from the building.

Materials Obtained from Police Service

Upon request, the SIU received the following materials from the KP between December 29, 2023, and January 8, 2024:

• Occurrence, Arrest and Booking Reports;
• Holding cell booking sheet for the Complainant;
• Computer-aided Dispatch Report;
• Communications recordings;
• Cell video footage;
• Notes - WO #1;
• Notes - WO #2;
• Notes - WO #3; and
• Policies for ‘arrest’ and ‘use of force’.

Materials Obtained from Other Sources

The SIU obtained the following records from other sources between January 12 and 16, 2024:

• The Complainant’s medical records from KGH; and
• Video footage from the apartment building.

The evidence collected by the SIU, including interviews with the Complainant and the SO, gives rise to the following scenario.

In the early morning of December 25, 2023, KP officers were dispatched to an apartment building in the west end of Kingston. The CW had contacted police to report a domestic dispute in progress. In the course of the call, the KP call-taker heard a male – the Complainant – screaming at the CW and threatening to smash her phone.

Officers, including the SO, arrived at the building. The Complainant (the building superintendent) let them in and escorted them to the apartment. He opened the apartment door but obstructed their entry into the unit. Cautioned that he would be arrested if he did not desist, the Complainant continued to block the officers’ entry. When the SO took hold of the Complainant to arrest him, the Complainant resisted.

A struggle ensued just inside the apartment door. WO #2 and WO #3, present with the SO, joined in the arrest. The Complainant was taken to the floor and handcuffed behind the back.

Following his arrest and a period in police cells, the Complainant complained of pain and sought medical care. He was taken to hospital and diagnosed with a fractured right orbital bone.

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 139 (1) and (2), Criminal Code – Obstructing Justice

139 (1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding,

(a) by indemnifying or agreeing to indemnify a surety, in any way and either in whole or in part, or

(b) where he is a surety, by accepting or agreeing to accept a fee or any form of indemnity whether in whole or in part from or in respect of a person who is released or is to be released from custody,

is guilty of

(c) an indictable offence and is liable to imprisonment for a term not exceeding two years, or

(d) an offence punishable on summary conviction.

(2) Every person who intentionally attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or

(b) an offence punishable on summary conviction.

The Complainant was seriously injured in the course of his arrest by KP officers on December 25, 2023. The SIU was notified of the incident and initiated an investigation naming the SO 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 the other officers on scene were in the middle of a domestic disturbance investigation and it was imperative that they enter the apartment as soon as possible to check on the welfare of the CW. When the Complainant, having opened the door, continued to interfere with their entrance, despite having been warned to step aside, he rendered himself subject to arrest for obstruction of justice contrary to section 139(2) of the Criminal Code.

There is a version of events proffered in the evidence that the Complainant was immediately dragged into the apartment, grounded and repeatedly punched in the face by an officer though he never physically resisted arrest. If true, this account would give rise to a charge of assault. However, it would be unwise and unsafe to rest charges on the strength of this evidence because it is at odds with other witness accounts that depict the Complainant pushing officers away after they initially took hold of him.

Thereafter, in the evidence proffered by the police, the parties are said to have struggled with each other on their feet by the doorway before they fell down. The Complainant pulled his arms underneath his chest on the floor and refused to release them. The SO, who was by the Complainant’s head, directed a knee strike to the head, following which the Complainant surrendered his arms and was handcuffed behind the back. According to the officer, the strike was delivered at less than full power. WO #3, who was controlling the Complainant’s legs at the time, saw the SO deliver a single knee strike to the face. None of the officers observed any other strikes.

On the aforementioned-record, I am unable to reasonably conclude that the account of excessive force by the SO is sufficiently reliable or probable to warrant being put to the test by a court. Conversely, the countervailing evidence suggests that the force used by the SO – a single knee strike following a period of struggle – was reasonably necessary to overcome the Complainant’s resistance and effect his arrest. In the result, while I accept that the Complainant’s injury was caused by the SO’s knee strike, I do not accept that it was attributable to any unlawful conduct on the part of the officer. The file is closed.

Date: April 22, 2024

Electronically approved by

Joseph Martino

Director

Special Investigations Unit