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SIU Director’s Report - Case # 18-OCI-269

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 sustained by a 38-year-old man on September 7, 2018.

The Investigation

Notification of the SIU

On September 8, 2018, at 3:15 a.m., the Kingston Police (KP) reported the following:

On September 8, 2018, shortly after midnight, KP police officers tried to box in a vehicle on the Division Street off-ramp from Highway 401. The occupants were wanted for drug-related offences. As the plainclothes police officers approached the suspect vehicle on foot, the driver began ramming the unmarked police vehicles. He was eventually arrested. He was taken to Kingston General Hospital (KGH) and had a fractured scapula.

The scene was not held. The KP advised that photos were taken at the scene of the vehicles involved.

The Team

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

Complainant:

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

Civilian Witnesses

CW Interviewed

Witness Officers

WO #1 Interviewed
WO #2 Interviewed
WO #3 Interviewed
WO #4 Interviewed
WO #5 Interviewed
WO #6 Interviewed
WO #7 Interviewed
WO #8 Designated for notes only

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


Incident Narrative

The Complainant came to the attention of the KP Drug Unit [2] when the KP learned that the Complainant was trafficking fentanyl in the Kingston area. As a result, the KP Drug Unit conducted surveillance on the Complainant and, on September 7, 2018, followed him and the CW to a plaza in Toronto where the Complainant met with a man believed to be his distributor. A white vehicle parked beside the Complainant’s truck, and a man walked to his passenger window. The man returned to the white vehicle, and the Complainant exited the truck and also got into the white vehicle. The Complainant exited the white vehicle a short while later with a white bag.

The Drug Unit continued to follow the Complainant and the CW as they returned to Kingston on Highway 401. At this point, the CW was driving the truck and the Complainant sat in the passenger seat. The Drug Unit thought they had reasonable grounds to believe that the Complainant and the CW were in possession of illicit substances for the purpose of trafficking and, as a result, a plan was formed to stop and arrest them when they exited the highway. WO #6, a uniformed officer driving a marked police vehicle, was enlisted to initiate the traffic stop. The Drug Unit officers were to surround the truck with their vehicles to prevent its flight.

At around 11:57 p.m., the Complainant and the CW’s truck exited Highway 401 at the Division Street off-ramp. WO #6 activated his emergency lights and initiated the traffic stop. The events that followed are in dispute.

In some of the evidence collected by the SIU, the CW is said to have pulled the truck over to the right, but then had to swerve to avoid hitting a vehicle directly in front of her. At this moment, multiple police vehicles rammed the truck. The Complainant was pulled from the truck’s window and he landed hard on the ground, following which unknown police officers beat the Complainant while he was on the ground, kicking him in the head, face and back – causing his injury - and potentially hitting him with a gun. The Complainant was handcuffed with his hands behind his back and the officers continued to hit and kit him.

On the other hand, the KP officers described the traffic stop and arrest dramatically differently. WO #6 said he activated his emergency lights when he entered the off-ramp and the CW pulled the truck over to the right shoulder. WO #5 parked his vehicle about one car length in front of the truck to block its path. At this moment, the CW attempted to flee from police. WO #2, WO #4 and WO #5 all report hearing the truck’s engine revving loudly. The truck’s tires spun, kicking up gravel on the shoulder, as it attempted to pass WO #5’s vehicle. [3] WO #5 attempted to block the truck and the truck collided with his vehicle, pushing it forward. The truck collided with two other unmarked police vehicles and came to a rest facing northbound. WO #1, WO #2, WO #4, WO #5 and WO #6 all report that the truck’s engine continued to rev even after it stopped, suggesting the CW’s continued attempt to flee.

WO #1, WO #2, WO #4, and WO #6 attended to the CW. WO #1 said he pointed his firearm at the CW and ordered her to turn off the vehicle. WO #2 attempted to open the driver’s door but it was locked. He yelled at the CW to open the door. The door became unlocked and WO #2, WO #4, and WO #6 said they physically removed the CW from the vehicle. WO #2 observed multiple bags of purple fentanyl inside the truck.

The subject officers did not speak with the SIU and only WO #5 saw who removed the Complainant from the truck. [4] According to him, SO #1 and SO #2 pulled the Complainant through the open window and to the pavement, although he did not see how the Complainant landed or how he was pulled or grabbed.

WO #4 and WO #5 also assisted with the Complainant’s arrest. Both officers reported that the Complainant was already on the ground when they arrived and that he had pulled both arms underneath himself. WO #1 also arrived and saw the Complainant lying on the ground on his left side, with an officer holding his feet and legs and another officer trying to handcuff him. WO #5 placed a handcuff on the Complainant’s right wrist and WO #1 handcuffed his left wrist with his hands behind his back. The Complainant was stood up and walked to the shoulder of the off-ramp. WO #5 said the Complainant complained of a sore shoulder so his handcuffs were removed and reapplied in front of him.

The Complainant was eventually transported to KGH where he was diagnosed with a fracture to his right shoulder. It is alleged that the Complainant sustained his injury when he was “stomped” by a police officer and that the Complainant also had seizures that day.

Evidence

The Scene

The collision and arrest scene was located off the eastbound Highway 401 about halfway down the Division Street off-ramp.

There was no evidence collected and the scene was photographed by an SIU forensic investigator.

Expert Evidence

An SIU collision reconstructionist attended the area of the traffic stop/collision along with an SIU forensic investigator. Although a reconstruction report was not required nor submitted as part of the investigation, the reconstructionist made some observations in relation to the chain of events that occurred when the collision occurred.

The speed limit on the Division Street off-ramp was posted at 40 km/h. There was one lane for eastbound vehicular traffic with a white fog line to the right and a yellow painted line to the left portion of the roadway. The off-ramp has a slight right hand curve followed by a sharper left curve leading to a stop sign at the bottom of the off-ramp at Division Street. The off-ramp is illuminated on the right side with street lamps.

Just prior to the left hand curve there were tire marks on the right side shoulder of the roadway leading into the gravel and into a deep ditch. The tire mark on the shoulder of the roadway contained striations evident of a change of direction of a vehicle towards the ditch area. There were deep furrows in the gravel leading into the ditch made by a rotating tire with acceleration marks. The vehicle left the roadway onto the gravel, rotated counter-clockwise into the ditch and accelerated back up onto the pavement.

Photographs of the scene were taken by an SIU forensic investigator and depict the scene and tire marks on the pavement, gravel, and ditch area.

Video/Audio/Photographic Evidence

A canvass for CCTV was conducted in the area of the eastbound Division Street off-ramp from Highway 401 and the only CCTV camera located was a COMPASS Traffic Camera. COMPASS is a high-tech Freeway Traffic Management System developed by the Ontario Ministry of Transportation (MTO).

This investigator has viewed the MTO website for the CCTV camera, which was located on the south side of Highway 401 east of Division Street. The view was looking west showing Highway 401 and the overpass at Division Street. A very small portion of the Division Street off-ramp was visible but does not depict the area where the traffic stop and subsequent collision occurred.

Communications Recordings

Communications were provided by KP and reviewed. There were no concerns and nothing contained of evidentiary value.

Materials obtained from Police Service

Upon request the SIU obtained and reviewed the following materials and documents from the KP:

  • Booking Report- the Complainant
  • Booking Report- the CW;
  • Detailed Call Summary;
  • General Occurrence Report (x2); [1]
  • MDT Log-Unit #1 2018-09-07 11:45 p.m. to 11:59 p.m.;
  • MDT Log-Unit #1 2018-09-08 12:00 a.m. to 2:00 a.m.;
  • MDT Log-Unit #2 2018-09-07 11:45 p.m. to 11:59 p.m.;
  • MDT Log-Unit #2 2018-09-08 12:00 a.m. to 2:00 a.m.;
  • Notes of WO #1, WO #2, WO #3, WO #4, WO #5, WO #6, and WO #7;
  • Procedure – Use of Force;
  • Procedure – Suspect Apprehension Pursuits;
  • Procedure – Arrest; and
  • Will State of WO #6.

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 495(1), Criminal Code - Arrest without warrant by peace officer

495 (1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Analysis and Director's Decision

On September 7, 2018, just before midnight, the Complainant sustained a fractured scapula when he was arrested by KP officers. Earlier that day, the KP Drug Unit had conducted surveillance on the Complainant and the CW and believed they were trafficking fentanyl. WO #6 initiated a traffic stop but the CW, who was driving, tried to flee and their truck collided with three unmarked police vehicles. SO #1 and SO #2 pulled the Complainant out of the truck’s passenger window and he fell to the ground, whereupon he was arrested.

The SIU’s investigation into the circumstances surrounding the Complainant’s injury included interviews with the Complainant, the CW and seven witness officers. SO #1 and SO #2 both declined to provide a statement or a copy of their notes. 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.

While there are discrepancies in the evidence, I am reasonably satisfied based on the weight of the reliable evidence that the Complainant was pulled from the open passenger door window by the subject officers – SO #1 and SO #2 – and taken to the ground. While on the ground, the Complainant resisted his arrest but was handcuffed in short order by WO #1 and WO #5. The evidence in its totality does not establish that the officers struck the Complainant at any time before or after he was handcuffed. In the result, 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 SO #1 and SO #2 pulled him from the truck and he fell to the ground.

There is no doubt that some force was used to pull the Complainant from the truck and handcuff him with his hands behind his back; however there is no evidence that this force was excessive. Pursuant to s. 25(1) of the Criminal Code, a police officer, if he or she acts on reasonable grounds, is justified in using as much force as is necessary in the execution of a lawful duty. I believe the KP officers were acting in accordance with their lawful duty when they arrested the Complainant for possession of fentanyl for the purpose of trafficking. Upon seeing the Complainant engage in behaviour indicative of a drug deal, the officers had reasonable grounds to believe that the Complainant was in possession of the narcotics for the purpose of trafficking and were lawfully able to arrest the Complainant pursuant to s. 495(1)(a) if the Criminal Code. To effect the arrest, SO #1 and SO #2 used some force to pull the Complainant from the window and hold him to the ground while he was arrested. I am satisfied that this level of force was reasonably necessary in the circumstances, which involved an arrest for drug trafficking and the Complainant and the CW taking extreme measures in an attempt to flee.

In summary, I do not believe that the Complainant was kicked, punched, stomped or hit with a firearm and instead believe he sustained his injury when he was pulled from the truck and fell to the ground. This level of force falls within the scope of that permitted by law, and I am accordingly unable to form reasonable grounds to believe SO #1 or SO #2, or any officer,

committed a criminal offence in connection with the Complainant’s injury. No charges will issue and the file will be closed.


Date: April 16, 2019


Joseph Martino
Interim Director
Special Investigations Unit

Footnotes

  • 1) The general occurrence report indicates that the Drug Unit conducted surveillance on the Complainant for multiple days and on September 7, 2018 followed him and the CW to a plaza in Toronto where it was believed that he met with his distributor. A white vehicle pulled into the plaza and parked next to the truck and a man exited the vehicle and went to the truck’s passenger window. The man returned to his vehicle and the Complainant exited his truck and also entered the white vehicle. He exited a short while later holding a white bag. [Back to text]
  • 2) The Drug Unit consisted of WO #1, WO #2, WO #3, WO #4, WO #5, SO #1 and SO #2. [Back to text]
  • 3) An SIU collision reconstructionist attended the scene of the incident and found tire marks consistent with the truck leaving the roadway onto the gravel shoulder, rotating in a counter-clockwise direction into the ditch and accelerating back up onto the pavement. [Back to text]
  • 4) However, WO #6 also said that SO #1 told him he pulled the Complainant through the passenger window of the truck. [Back to text]