SIU: Broken jaw during arrest by Kingston Police involved no ‘unlawful conduct’

The Special Investigations Unit (SIU) has concluded its investigation into a January 2023 incident that left an arrested person with a broken jaw.

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 22-year-old civilian involved in the case suffered a broken jaw during an arrest, “there are no reasonable grounds to believe that any of the subject officials committed a criminal offence.”

The “subject officials” 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 January incident, which was published on Thursday, May 18, 2023. The civilian arrested during the incident — which occurred the morning of Sunday, Jan. 22, 2023 — will be referred to as the “complainant” throughout this article, as is done in the SIU’s report.

According to Martino’s report, through the course of this SIU investigation:

• Three SIU investigators were assigned to the case
• Six civilian witnesses were interviewed between February 2 and 22, 2023
• Three subject officials (Kingston Police officers involved in the arrest) were interviewed, and their notes were received and reviewed by the SIU on March 8, 2023
• Three witness officials (Kingston Police officers who witnessed the arrest and/or subsequent detainment of the complainant) were interviewed on February 16, 2023
• Seven additional witness officials were not interviewed; however, their notes were received and reviewed by the SIU
• The complainant was interviewed by the SIU on January 25, 2023, and his medical records were received and reviewed
• The SIU reviewed the following evidence from Kingston Police:
• — communications recordings
• — policy documents around use of force and arrests
• — the booking report, timeline, and video of the booking of the complainant
• — property collected during the arrest and search of the complainant
• — the relevant Kingston Police Use of Force report
• — the data of the conductive energy weapon (commonly referred to as a taser) which was employed during the arrest

Because Kingstonist was not aware of the incident until the SIU published its findings, the following is the narrative of the incident, as per Martino’s report.

Kingston Police received a call at approximately 7:55 a.m. on Sunday, Jan. 22, 2023, regarding a vehicle that was parked and idling at the intersection of Johnson and Division Streets in downtown Kingston. The caller indicated that the man in the driver’s seat of the vehicle appeared to be asleep, and that the vehicle, which was facing southbound in the southbound-only lanes, was blocking traffic, causing other drivers to move around it and honk. Officers who received the call checked the licence plate number the caller provided and found that the vehicle in question was registered to a female owner in another city.

Police were dispatched immediately at 7:55 a.m. and arrived on scene at 7:59 a.m., according to Martino’s report. The complainant, awakened by an officer knocking on the driver’s side window, exited the vehicle. By 8:03 a.m., an officer on the scene advised over the police radio that the complainant was being restrained. A struggle ensued, and the complainant resisted as the three officers on scene attempted to take him into custody. One of the officers “delivered a punch to the upper body” of the complainant, and at 8:05 a.m. another officer deployed his conductive energy weapon. Neither of these actions were “effective in subduing the complainant,” the report states.

At that point, one of the officers “grabbed the complainant by the hair and pulled him down while simultaneously delivering a knee to the head, after which the officers were able to take the complainant to the ground.”

This did not stop the man from continuing to resist. According to the report, the complainant refused to release his hands to be handcuffed. When he managed to “raise his upper body momentarily,” the complainant reached for his waistband. The officers “reacted with a series of knee strikes and punches.”

Firefighters, who had attended the scene in case the man was in medical distress, moved in to assist the officers — who now numbered five, as two more Kingston Police officers had arrived on scene — and the complainant’s arms were “controlled and handcuffed behind his back.”

The complainant was placed under arrest and then searched, at which point a loaded handgun was recovered from his person.

“The Complainant was taken to the station and then to hospital where he was diagnosed with a fractured jaw,” Martino’s report states.

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 “the Complainant appeared confused and unsteady as he exited his vehicle, from which a strong odour of marijuana was coming,” Martino stated he is satisfied that “the quantum of force brought to bear by the subject officials was legally justified.”

“There is no doubt that the officers struck the Complainant multiple times with punches and knee,” he wrote, noting that the conductive energy weapon was also used, and that the complainant “represented a formidable physical challenge and vigorously resisted his arrest.”

“Of particular concern to the officers was the fact that he seemed to be reaching with his right hand towards his waistband. As it turns out, the officers’ concerns were well-founded — a loaded handgun was recovered from the right side of the Complainant’s waistband. It was imperative, therefore, that decisive force be brought to bear to take the Complainant into custody as soon as possible to mitigate the risks of a weapon being used,” Martino concluded.

“While I accept that the Complainant’s injury was incurred in the altercation that marked his arrest, there are no reasonable grounds to believe that it is attributable to unlawful conduct on the part of the subject officials. The file is closed.”

The full content of Director Martino’s report can be read on the SIU website.