Explanatory note

The Ontario Government is releasing past SIU Director Reports (submitted to the Attorney General prior to May 2017) that include fatalities involving a firearm, physical altercation, and/or use of conducted energy weapon, or other extensive police interaction that did not result in a criminal charge.

Justice Michael H. Tulloch made recommendations about the release of past SIU Director Reports in the Report of the Independent Police Oversight Review, released on April 6, 2017.

Justice Tulloch explained that since past reports were not originally drafted for public release they may have to be edited substantially to protect sensitive information. He took into account that confidentiality assurances were given to various witnesses during the course of SIU investigations, and recommended that some information be redacted in the interests of privacy, safety, and security.

As recommended by Justice Tulloch, this explanatory note is being provided to assist the reader’s understanding of why certain information is redacted in these reports. Notes have also been inserted throughout the reports to help describe the nature of the information that was redacted and why it was redacted.

Law enforcement and personal privacy information considerations

Consistent with Justice Tulloch’s recommendations and guided by section 14 of the Freedom of Information and Protection to Privacy Act (FIPPA) (relating to law enforcement information), portions of these reports have been removed to protect:

  • confidential investigative techniques and procedures used by the SIU
  • 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
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Consistent with Justice Tulloch’s recommendations and guided by section 21 of FIPPA (relating to personal privacy information), personal information, including sensitive personal information, has also been redacted, except that which is necessary to explain the rationale for the Director’s decision. 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
  • other identifiers which are likely to reveal personal information about individuals involved in the investigation, including in relation to children
  • witness statements and evidence gathered in the course of the investigation, provided to the SIU in confidence

Personal health information

Information related to the personal health of individuals that is unrelated to the Director’s decision (taking into consideration the Personal Health Information Protection Act, 2004) has been redacted.

Other proceedings, processes, and investigations

Information may have also been excluded from these reports 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.

Director’s report

Notification of the SIU

On February 13, 2011, at 2210 hrs, Hamilton Police Service (HPS) Notifying Officer notified the Special Investigations Unit (SIU) of the custody injury of Mr. James Kiteley. According to Notifying Officer, on February 13, 2011, at 2205 hrs, HPS officers responded to a ‘Break and Enter’ in progress. The home owner and his son who resided at a location, Hamilton, returned home to find the front door of their home kicked in and Mr. Kiteley leaving the house with their television. The home owner and his son arrested Mr. Kiteley on the sidewalk. A struggle ensued and the police were called. Subject Officer arrived and took over the arrest, and Mr. Kiteley became vital signs absent (VSA). Hamilton Emergency Medical Service (HEMS) paramedics arrived and transported Mr. Kiteley to the Hamilton General Hospital (HGH). Mr. Kiteley’s pulse returned and he was still in the emergency department at the time the SIU was notified. Mr. Kiteley’s condition deteriorated, and on February 14, 2011, Mr. Kiteley became deceased.

Overview

Mr. James Kiteley was born ----redacted, 1974. At the time of this incident, Mr. Kiteley was without a regular place of abode. Prior to February 13, 2011, Mr. Kiteley was unknown to the home owner, Civilian Witness #1, and his son, Civilian Witness #2, until February 12, 2011, when at about 0200 hrs, Mr. Kiteley encountered Civilian Witness #1 at a coffee shop in Hamilton and offered to sell him a new laptop computer for $50.00. The offer was never fulfilled and instead, Mr. Kiteley on February 13, 2011, broke into Civilian Witness #1’s home at 733 Brighton Ave. and stole his large flat screen television. The theft was interrupted by Civilian Witness #1 and his son, Civilian Witness #2, and Civilian Witness #3. A fight ensued between Civilian Witness #1 and Mr. Kiteley, and involved Civilian Witness #2 when he aided his father in restraining Mr. Kiteley until police responded to Civilian Witness #3’s telephone call for help.

Subject Officer was the first officer to arrive and took control of Mr. Kiteley, delivering several knee strikes to the left side of Mr. Kiteley’s torso to induce Mr. Kiteley to give Subject Officer his left hand from beneath his chest. At the same moment Subject Officer gained control of Mr. Kiteley’s left hand and handcuffed it to Mr. Kiteley’s right hand behind Mr. Kiteley’s back, Mr. Kiteley became unconscious and stopped breathing.

Other police and emergency services personnel arrived and took over the cardio pulmonary resuscitation (CPR) chest compressions that Subject Officer had immediately commenced on Mr. Kiteley after he rolled him onto his back when he discovered Mr. Kiteley was unresponsive and not breathing. Mr. Kiteley was transported by ambulance to the HGH where he was admitted to the Cardiac Care Unit. Mr. Kiteley unfortunately died in hospital on February 14, 2011, at 1640 hrs.

The investigation

On February 13, 2011, four SIU investigators and two forensic investigators (FI) were assigned to this investigation. The first investigator arrived at the scene at 2343 hrs, on February 13, 2011, and found the scene secured by uniformed officers of the HPS.

SIU investigators interviewed civilian and police witnesses, and conducted a canvass for additional witnesses relevant to the incident.

The SIU FI made a digital photographic record of the scene, collected physical evidence, and seized exhibits relevant to the incident.

Based on information developed in the course of this investigation and provided by the HPS, Witness Officer #5, Witness Officer #1, Witness Officer #3 and Witness Officer #2, and Witness Officer #6, Witness Officer #7, Witness Officer #8 and Witness Officer #4 were designated as witness officers.

Subject Officer was designated as the subject officer.

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

  • 911 calls and communications audio recordings
  • Computer Aided Dispatch (CAD) System Message Report
  • Drawings made by Witness Officer #3 and Witness Officer #4
  • Event Chronology ----redacted
  • Memorandum book notes made by the subject and witness officers
  • Person Details Niche Report
  • Policies regarding Special Investigations Unit and Use of Force
  • Sudden Death Report dated February 13, 2011
  • Supplementary Report made by Witness Officer #1
  • Supplementary Report made by Witness Officer #2
  • Supplementary Report made by Witness Officer #8
  • Training records for Subject Officer
  • Witness statements of civilians Civilian Witness #3, Civilian Witness #6, Civilian Witness #8, Civilian Witness #2 and Civilian Witness #1, and
  • Witness statements of police officers Witness Officer #5, Witness Officer #3 and Witness Officer #6

The SIU also obtained and reviewed the following documents:

  • Drawings made by Civilian Witness #3, Civilian Witness #5, Civilian Witness #6, Civilian Witness #2 and Civilian Witness #8
  • HEMS Ambulance Call Report dated February 13, 2011
  • Hamilton Fire Department (HFD) Incident Report, and
  • HGH medical records pertaining to Mr. Kiteley’s admission to hospital on February 13, 2011

Civilian witnesses

The following civilian witnesses were interviewed on the dates indicated:

  • Civilian Witness #1 (February 14, 2011)
  • Civilian Witness #2 (February 14, 2011)
  • Civilian Witness #3 (February 14, 2011)
  • Civilian Witness #4 (February 23, 2011)
  • Civilian Witness #5 (February 23, 2011)
  • Civilian Witness #6 (February 15, 2011)
  • Civilian Witness #7 (February 23, 2011)
  • Civilian Witness #8 (February 15, 2011)

Civilian witnesses – emergency services personnel

The following civilian emergency services personnel were interviewed on the dates indicated:

  • Emergency Personnel #1 (February 22, 2011)
  • Emergency Personnel #2 (February 22, 2011)
  • Emergency Personnel #3 (February 25, 2011)
  • Emergency Personnel #4 (February 25, 2011)

Police witnesses

The following witness officers were interviewed on the dates indicated:

  • Witness Officer #1 (February 17, 2011)
  • Witness Officer #2 (February 17, 2011)
  • Witness Officer #3 (February 17, 2011)
  • Witness Officer #4 (February 17, 2011)

Witness Officer #5, and Witness Officer #6, Witness Officer #7 and Witness Officer #8’s memorandum book notes and Supplementary Reports were reviewed. These officers were not interviewed by the SIU as their memorandum book notes and reports did not reveal any new information that would have advanced the investigation of this incident.

The subject officer, Subject Officer, was interviewed on February 17, 2011.

The scene

The scene of the incident was on the west sidewalk approximately 20 metres south of a location, Hamilton, at the road-end of the driveway at a location. There was a large flat screen television on the sidewalk in front of a location. There were eyeglasses and a hat in the snow near the television. Two, fully marked HPS Ford Crown Victoria police cruisers, now known to have been operated by Subject Officer and Witness Officer #4, were parked on the street facing north in front of a location. There was an electronic connecting cable trailing out the front door of a location.

Confidential witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence (Law Enforcement and Privacy Considerations)

Director’s decision under s. 113(7) of the Police Services Act

In my view, there are no reasonable grounds to believe that the named subject officer, Subject Officer, committed a criminal offence in relation to the death of Mr. Kiteley related to his arrest on February 13, 2011. Mr. Kiteley died the following day on February 14, 2011. On February 13th, Mr. Kiteley was attempting to steal a television from a residence at a location. (The decedent was temporarily staying at this residence.) He was confronted by the home owner and his son, and this led to a significant fight. The father took Mr. Kiteley to the ground and the son tackled him, causing him to fall forward, face down on the ground. The son held down his shoulders with his arm around Mr. Kiteley’s neck while the father took a position on top of the decedent’s lower body. The father then grabbed Mr. Kiteley’s right arm and brought it around his back. The father weighed around 210 lbs., and the son around 140 lbs. Mr. Kiteley stopped fighting. An associate of the father called the police, leading to the arrival of the subject officer. He ordered the father and son to stop holding down Mr. Kiteley, and placed a handcuff on the decedent’s right wrist. He ordered Mr. Kiteley to show him his left arm, but he did not respond. Subject Officer kneed him in the torso area three or four times in an attempt to gain compliance, but again Mr. Kiteley did not respond. Two other officers arrived and they rolled the decedent over. It was then that the officers began to realize that Mr. Kiteley was in medical distress. The officers began CPR, an ambulance was called, and he was transported to the

Hamilton General Hospital, where he passed away the next day. The post-mortem conclusion with respect to cause of death was restraint asphyxia due to compression of the torso and external neck compression.

On the basis of these facts and pathological conclusion, the subject officer was not the cause of Mr. Kiteley’s demise; his death was caused by the initial struggle with the two civilians. Further, he and the other officers who arrived at the scene took reasonable steps to attempt to revive Mr. Kiteley once they realized how dire his medical condition was. Accordingly, no criminal liability may attach to the actions or omissions of the subject officer in relation to the death of Mr. Kiteley.

I intend to add the following to the Chief’s letter:

I understand that a number of civilian witnesses were interviewed by the HPS after the SIU was notified and before they were interviewed by the SIU. Their names are: Civilian Witness #1, Civilian Witness #2, Civilian Witness #6 and Civilian Witness #8. This is an apparent breach of s. 5 of O.Reg 267/10 to the Police Services Act. Further, as reflected in the appendix, one lawyer acted for the subject officer and at least one of the witness officers and conferred with them before they wrote up their notes, an arguable breach of s. 6 of the same regulation, given the lawyer’s duty to share information among jointly retained clients. I would be grateful if you inquired into these alleged breaches and provided my office with a written response.

Date: June 27, 2011

Original signed by

Ian Scott
Director
Special Investigations Unit