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SIU Director’s Report - Case # 20-OCI-105

Contents:

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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 the injury that a 16-year-old boy (the “Complainant”) suffered.

The Investigation

Notification of the SIU

On May 6, 2020, the Kingston Police (KP) reported an injury to the Complainant.

The KP advised that at 3:10 p.m., the Subject Officer (SO) attempted to arrest the Complainant on an outstanding warrant for escape custody. The Complainant attempted to run. The SO grabbed the Complainant and a struggle ensued. The SO and the Complainant exchanged strikes. The SO was struck in the face. The SO disengaged and used his Conducted Energy Weapon (CEW), which was not successful. The Complainant ran into a backyard on Parkland Drive [correct address now known to be on Portsmouth Avenue]. When the SO entered the backyard, the Complainant had a large rock over his head and called on the SO to shoot him. The SO at the time had his firearm drawn but did not fire. The Complainant jumped a fence into another backyard and was grounded and apprehended by three roofers. The Complainant was held until the police officers arrived and taken to Kingston General Hospital (KGH), where he was diagnosed with a fractured collarbone. 

The Team

Number of SIU Investigators assigned: 3

Complainants

Complainant: 16-year-old male interviewed


Civilian Witnesses

CW #1 Interviewed
CW #2 Interviewed
CW #3 Interviewed

Witness Officers

WO Interviewed


Subject Officers

SO Interviewed and notes reviewed


Evidence

The Scene

The initial interaction between the Complainant and the SO took place on the street outside an address on Portsmouth Avenue. The Complainant then ran into the backyard of the property and behind a garden shed. The SO and the Complainant had another confrontation in the area of the garden shed before the Complainant climbed the fence and dropped into the rear yard of the property behind the address on Portsmouth Avenue.

Video/Audio/Photographic Evidence

The SIU canvassed the area for any video or audio recordings, and photographic evidence, but was not able to locate any.

Materials obtained from Police Service

Upon request, the SIU obtained and reviewed the following materials and documents from the KP:
  • Arrest Report;
  • Copies of warrant – the Complainant;
  • KP Scenes of Crime Officer photographs;
  • Notes-the WO; and
  • Notes-the SO.

Incident Narrative

The following scenario emerges from the weight of the evidence collected by the SIU, including interviews with the Complainant, the SO, a WO and three CWs. The SO was on patrol in his cruiser when he located the Complainant in the area of Bath Road and Portsmouth Avenue. The Complainant was wanted on a warrant for being unlawfully at large from a youth detention facility in Kingston. The SO lost sight of the Complainant, but relocated him on Portsmouth Avenue some 15 minutes later, at which time he approached the Complainant and informed him that he was under arrest.

The Complainant resisted his arrest. Upon being advised that he was under arrest, the Complainant’s first reaction was to near the SO and punch him in the face. There ensued a physical altercation between the two in the area outside of an address on Portsmouth Avenue in which the SO and the Complainant exchanged blows. The Complainant appears to have gotten the better of the SO, and was able to disengage from him, undeterred by a CEW deployment, whereupon he attempted to enter the vehicles of passing motorists. When his efforts to carjack vehicles failed, he ran to the rear of the address on Portsmouth Avenue.

The SO followed the Complainant and confronted him in the rear yard of the premises. The Complainant had retrieved a large rock in the yard and held it above his head as he confronted the officer. With his firearm in hand, the SO retreated as the Complainant advanced, all the while yelling at the Complainant to desist and get on the ground. The Complainant did not do so; instead, he dropped the rock, ran toward the wooden fence at the rear of the property, and climbed over it into the yard of the adjacent property.

As the Complainant disappeared behind the fence, roofers, who had been working on the home at the address on Portsmouth Avenue and joined the SO in the yard to render assistance, followed the Complainant, one over, the other through, the fence. CW #1 and CW #2 quickly caught up with the Complainant and jointly tackled him to the ground in front of the adjacent home, whereupon they kept him pinned pending the arrival of the SO.

The SO made his way over the fence after the roofers and arrived to find the Complainant on the ground being held down by CW #1 and CW #2. The officer was quickly joined by the WO, who was responding to the SO’s earlier call for help. The Complainant refused to surrender his hands to be handcuffed and was met with a series of strikes from the SO’s un-extended ASP to the lower body. With the help of CW #1 and CW #2, the SO and the WO were soon able to sufficiently subdue the Complainant to restrain him in handcuffs.

Following his arrest, the Complainant was seen in hospital and diagnosed with a broken collarbone.

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 suffered a broken collarbone in and around the time of his arrest in Kingston in the early evening of May 6, 2020. The SO was identified as the subject officer for purposes of the SIU investigation. 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. On the day in question, there was a warrant out for the Complainant’s arrest for having escaped lawful custody. The SO, accordingly, was in the lawful execution of his duty when the SO sought to take the Complainant into custody.

The issue turns to the propriety of the force used by the officers to effect the Complainant’s arrest. An incriminating strand of evidence suggests that the SO struck the Complainant’s head with the ASP once the Complainant was already on the ground having been tackled by the roofers. This incriminating strand of evidence conflicts with the accounts of the officers and the civilian witnesses, and I lend it no credence as the incriminating strand of evidence was found wanting in other aspects. While the incriminating strand of evidence supports the idea that the Complainant physically attacked the SO when the SO first attempted to arrest him, the incriminating strand of evidence failed to support the reality that the Complainant tried to carjack the vehicles of passing motorists, a fairly significant omission in my view and one which casts doubt on the reliability of the incriminating strand of evidence. The incriminating strand of evidence was also unable to account definitively for the cause of the Complainant’s injury, instead supporting several scenarios as possibilities, calling into question the incriminating strand of evidence’s accuracy compared to other sources.

I fall back, therefore, on the accounts of the SO and the WO, and other evidence, which are united in indicating that the SO did repeatedly strike the Complainant on the ground with the SO’s ASP, but that he did so with the weapon in an un-extended position to the lower half of the Complainant’s body and in response to the Complainant’s refusal to release his arms to be handcuffed. In view of the Complainant’s strident and violent opposition to being handcuffed, amply on display in the punches he landed on the SO during their initial encounter and his attempt to commandeer passing vehicles, I am satisfied that the Complainant’s resistance on the ground was real and forceful. On this record, I am unable to reasonably conclude that the force used by the SO transgressed the limits of the criminal law. [1]

In the result, while it remains unclear precisely when and how the Complainant’s collarbone was fractured – whether it happened during the initial exchange with the SO, when he jumped over the fence or when he was tackled to the ground by the roofers – I am not satisfied on reasonable grounds that the Complainant’s arrest and the force used by the officers in its execution were unlawful. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.


Date: July 13, 2020

Electronically approved by

Joseph Martino
Director
Special Investigations Unit

Footnotes

  • 1) It remains to note that the force used by the SO in front of the residence at Portsmouth Avenue was clearly not excessive given the fact that the Complainant gave as well as the Complainant received during the fisticuffs. [Back to text]