Joe Boland to retire as RNC chief
Their lawyers will argue an application alleging a breach of rights when complaint hearing resumes
Lawyers representing two Royal Newfoundland Constabulary officers at the heart of a public complaint intend to argue their clients’ rights have been breached by an abuse of legal process when the Public Complaints Commission hearing resumes in July.
Const. Bernard Morgan and Const. Isabella Wagner were the last to testify before the commission before evidence wrapped up on Tuesday. Closing arguments are scheduled to be presented July 15 and 16.
The officers’ lawyers, Ken Mahoney and Steve Orr, will also at that time argue a Charter application they filed with the commission on Monday, alleging their clients’ rights were breached by an abuse of process.
Morgan and Wagner are the subject of a complaint to the commission by Zackary Ball and his father, Dennis, who alleged they were unlawfully arrested more than three years ago after an altercation with police that also saw Zackary pepper-sprayed and a window of their home deliberately smashed.
Police say Dennis had driven dangerously through an accident scene at the intersection of Topsail Road and Mcnamara Drive one evening in November 2017, yelling obscenities at RNC officers at the scene and pulling a U-turn around it, increasing speed while driving away.
One officer pursued Dennis in a police vehicle, following him to his Paradise home. Morgan and Wagner arrived after that officer used his “officer down” button to request backup.
Surveillance footage presented during the hearing shows the first officer in an altercation with Dennis in the driveway before Zackary comes out of the house. A neighbour testified to hearing the young man yelling and the officer shouting, “Go back in the house.” In the video the officer appears to spray Zackary, who retreats inside the home, stopping to hold his face in his hands.
Morgan testified he had told Zackary he was under arrest and asked him three times to come out of the house before instructing Wagner to break a pane in the patio door of the home. He told the hearing he had concerns the man might try to arm himself or needed medical attention. Zackary alleges he was made to lie face-down on the broken glass while Morgan handcuffed him.
The video footage shows Morgan striking Zackary in the head as he and Wagner escort him, handcuffed, to a police vehicle. Morgan testified it was a trained move, initiated after the young man had attempted to pull away.
The Balls spent the night in custody before being released with a court date to appear on charges of resisting arrest, obstructing justice and, in Dennis’s case, unlawfully causing a disturbance. The Crown later withdrew the charges.
The Ball family hired a lawyer and filed a complaint with RNC Chief Joe Boland, and the Ontario Provincial Police were called in to investigate. Local lawyer Gus Bruce provided independent oversight and prepared a report based on the actions of the officers, and concluded they had acted unlawfully in arresting the two men, and that striking and pepper-spraying Zackary and breaking the window of the home had been unjustified.
Bruce recommended charges of assault, assault causing bodily harm, unlawful confinement and mischief against Morgan, Wagner and the third officer, but the Crown opted not to proceed with those charges on the grounds that the offences couldn’t be proven beyond a reasonable doubt.