Kingston Police officer cleared after building superintendent who obstructed police sustained ‘serious injury’

Ontario’s Special Investigations Unit (SIU) on scene of an incident in 2022. Photo via SIU website.

Ontario’s Special Investigations Unit (SIU) has cleared a Kingston Police officer after a building superintendent was injured during a Christmas Day investigation.

The SIU 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,” according to the organization. The SIU was called in by Kingston Police to investigate on Monday, Dec. 25, 2023, after a civilian was injured during the course of a police investigation. In this case, the SIU was investigating a “serious injury,” which the organization defines as follows.

“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,” SIU Director Joseph Martino explained in his report on the December 25, 2023, incident in Kingston.

“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.”

According to Martino’s report, the civilian — the 66-year-old superintendent of an apartment building in Kingston’s west end — was injured during a Kingston Police investigation which began “in the early morning” of Monday, Dec. 25, 2023, when police were called to that apartment building due to a domestic dispute. Police were contacted by a person referred to as the “Civilian Witness” in Martino’s report, which explains that the Civilian Witness was involved in the domestic dispute.

The report includes an ‘Incident Narrative,’ which is based on “evidence collected” by the SIU, including interviews with the superintendent — referred to as “the Complainant” — and the Kingston Police officer whose actions were being investigated — referred to as “the Subject Official” (and sometimes as “SO”). The following scenario is laid out based on the SIU’s Incident Narrative for this investigation.

According to the report, while the Kingston Police representative who took the Civilian Witness’s call was still on the phone with the caller, they heard a male screaming at the Civilian Witness and “threatening to smash her phone.” That male, the report explains, was the Complainant in this SIU investigation.

When Kingston Police officers (including the Subject Official) arrived at the west end apartment building, the superintendent/Complainant “let them in and escorted them to the apartment” where the domestic dispute had taken place. There, according the report, the Complainant opened the door to the apartment 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,” the report states.

It was then that the Subject Official “took hold of the Complainant to arrest him” and “the Complainant resisted.”

“A struggle ensued just inside the apartment door,” the report continues, noting that the Subject Official was “joined in the arrest” by two other Kingston Police officers.

“The Complainant was taken to the floor and handcuffed behind the back,” Martino writes in the report.

“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.”

Martino’s report explains that the SIU’s investigation into the incident involved reviewing collected evidence including police holding cell footage; police communications recordings; video footage from the apartment building where the incident occurred Kingston Police occurrence, arrest, and booking reports; the Complainant’s medical records from Kingston General Hospital (KGH); an interview with a civilian witness (the person who called police originally), which occurred on January 16, 2024; and an interview with the Subject Official, which occurred on January 30, 2024. The Subject Official declined to submit their notes, which Martino’s report notes “is the Subject Official’s legal right.” Further, the SIU interviewed three Kingston Police officers who witnessed the incident, all of whom submitted their notes from the incident.

The report also outlines the legislation relevant to the investigation: in this case, Section 25(1), Criminal Code – Protection of Persons Acting Under Authority, and Section 139 (1) and (2), Criminal Code – Obstructing Justice.

“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,” Director Martino writes in his analysis and decision within the report.

“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.”

Martino continues, outlining that the Kingston Police 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 Civilian Witness.

“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,” Martino states.

Martino notes that “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,” Martino details.

According to Martino’s analysis and decision, it was at that point that the Subject Official, who was situated near 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.”

Martino also notes that one of the other officers interviewed by the SIU, who was controlling the Complainant’s legs at the time of that knee strike, reported having only seen the Subject Official “deliver a single knee strike to the face.”

“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,” Martino concludes in the report, dated April 22, 2024.

“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.”

The full SIU report on this incident can be read on the SIU’s website.

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