The Special Investigations Unit (SIU) has concluded its investigation into an April 2023 incident that left an arrested person with a fractured shoulder.
The SIU — which investigates any incident in Ontario involving law enforcement officials in which there is serious injury, death, allegation of sexual assault, or discharge of a firearm by an official at a person — has determined that, while the 62-year-old civilian involved in the case suffered a shoulder injury during or after arrest, “there were no reasonable grounds to believe that an officer committed a criminal offence in connection with the man’s arrest and injury.”
The officers in this case are Kingston Police officers, and the above statement comes from the findings of SIU Director Joseph Martino in his report on the incident, which was published on Wednesday, Aug. 23, 2023. The civilian arrested during the incident — which occurred the morning of April 11, 2023 — will be referred to as the “Complainant” throughout this article, as is done in the SIU’s report.
This incident took place in the parking lot of the Kingslake Plaza at the corner of Division Street and Dalton Avenue, after officers were notified of a suspected impaired driver sitting in his vehicle in the parking lot. According to the report from the SIU, the first officer on scene spotted the vehicle in question – a Toyota Yaris – and stopped her cruiser at a 90-degree angle in front of it. The second officer brought his vehicle to a stop at an angle in front of the Yaris’s front driver’s side. The officers reportedly exited their cruisers and approached the driver’s door of the vehicle.
At the scene, the Complainant — the driver of the Yaris — was able to provide officers with proof of insurance, but not his driver’s licence. While dealing with the complainant, the second officer had come to learn, via his radio, that there was an arrest warrant in effect for the complainant’s arrest, according to the SIU.
“When he did not promptly exit the vehicle, the [officers] 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,” reads the SIU report.
Later, while in custody at the police station, the Complainant repeatedly made mention of pain and numbness in his arm and shoulder, though when he arrived at the station initially he did not mention any injuries during the booking process — despite being specifically asked about any physical injuries or conditions. After his release, and more than five hours after his arrest, the Complainant collapsed outside the station and was taken to hospital by paramedics, as stated in the SIU report. He was diagnosed with a fractured left shoulder socket.
Director Martino cited Section 25(1) of the Criminal Code of Canada – Protection of Persons Acting Under Authority, which states, “Everyone who is required or authorized by law to do anything in the administration or enforcement of the law… 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.”
“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 wrote in his analysis and decision on the case.
Noting that there was some suggestion the Complainant was handled with undue force by the police during his extrication from the vehicle, Martino stated that it is “unwise and unsafe to rest criminal charges on the strength of the allegation alone.” Martino also noted that the Complainant had only accused one of the involved officers of “act[ing] percipitously,” and not allowing him “an opportunity to comply with his request before opening the door and taking hold of him.” This allegation, Martino wrote, was “belied by the video footage” obtained by the SIU, which showed both officers approaching the Complainant’s vehicle at the same time.
“[The responding officers] were by the door speaking with the Complainant for about two minutes before the driver’s door was opened. 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,” Martino explained, adding that this account is supported by video footage provided by Kingslake Plaza.
“In the result, as there are no reasonable grounds to believe that either [officer] 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.”