Two Royal Newfoundland Constabulary officers accused of wrongful arrest and excessive force should have their charges stayed, their lawyers argued before the police force's public complaints commission Thursday.
Const. Bernard Morgan and Const. Isabella Wagner were involved in a 2017 incident in which RNC officers arrested, charged and detained a father and son — actions that an independent investigation later deemed unlawful and said should, instead, result in charges for the officers.
Final submissions in the matter before the public complaints commission began Thursday, with lawyers for Morgan and Wagner arguing their clients' rights have been breached by an abuse of process.
The incident in question happened Nov. 8, 2017, at the scene of car accident scene near Topsail Road and McNamara Drive.
Silent dashcam video shows Dennis Ball pull a U-Turn around the accident and accelerate while driving away. In a 2019 interview with CBC News, Ball said he had rolled down his window to tell officers "someone should direct the f--king traffic before there's another accident."
One of the officers on scene, followed Ball to his Paradise home. They both got out of their vehicles.
Ball said the officer told him to "get on the effing ground," but he wouldn't.
"As I was going around my car he grabbed me, threw me up against the garage. I slid down the car," Ball said.
He said the officer told him he was under arrest for "flying through the intersection like a mad person, screeching tires," which Ball denied.
Home surveillance video shows the confrontation and Ball's son Zackary running out from the family's home.
The younger Ball said he asked the officer why his father was being arrested and said the officer told him to back away or he'd be arrested as well.
"That's when me and him had a few words," Zackary said in the same 2019 interview with CBC.
Zackary said he never touched the officer and came only within four or five feet of him, but that the officer "must've felt threatened in some way," because he pepper-sprayed him.
The video shows Zackary walking back into the house and two more officers — Morgan and Wagner — arriving on scene.
'Get a warrant'
They asked him to come outside.
"I told them to get a warrant because I didn't think they had any reason to come into my house, come to our home, and do what they were doing," he said.
Wagner broke the patio door glass, and the younger Ball says he then voluntarily came outside and the officers instructed him to lie in the broken glass so they could handcuff him. Lawyers for the officers say there's no evidence he was told to lie in the glass.
The surveillance video shows Morgan hitting Ball in the back of the head with his forearm while the officer is leading a handcuffed Zackary to a cruiser.
His lawyer said that's a tactic his client was trained to do when facing resistance.
Alleged abuse of process
In the abuse of process charter application Thursday, Ken Mahoney, Morgan's lawyer, said his client "did what he had to do" when he arrived.
Wagner's lawyer, Stephen Orr, said once force is administered — in this case pepper spray — it's fair for officers to assume a subject is already under arrest by the officer who administered it and to "proceed accordingly," calling it a "de facto arrest."
Abuse of process is "fundamentally about protecting people from the unfair treatment by administrative agencies," Orr said at the hearing on Thursday.
While "used in the rarest of circumstances," he said, abuse of process is a principle in which a party must prove the fairness of the hearing has been compromised and the abuse caused significant prejudice to the hearing, to the point that it would bring the justice system into repute.
It's a charter application, James Strickland, counsel for the RNC's complaints commission, disputes.
The outcome can result in discipline, but the primary objective of the hearing is the protection of the public and public confidence, he said.
Neither "life, liberty or security of person" were infringed or are at risk because of the hearing, he said.
These are not criminal proceedings. Morgan and Wagner are charged with wrongful arrest, excessive force, wrongful entry into a residence and discourteous behaviour for swearing while on the job, through the complaints commission.
The officers were placed on paid, administrative duties sometime in 2018 but Wagner and Morgan were reinstated to operational duties in late 2020, according to an RNC spokesperson.
Night in lockup
The father and son spent the night in the St. John's lockup.
Six months later, in May 2018, when RNC Chief Joe Boland saw video of the incident, he requested an independent investigation.
The Ontario Provincial Police were called in and overseen by Newfoundland lawyer Gus Bruce.
Bruce decided the arrests of Dennis and Zackary Ball were unlawful, that pepper-spraying and hitting Zackary Ball was not justified and that there were no reasonable grounds for Wagner to break the window of the home.
Bruce determined charges of assault, assault causing bodily harm and unlawful confinement should have been laid against the first officer on the scene.
Further, he said charges of mischief, unlawful confinement and assault be laid against another officer, and that the third officer could have also been charged with mischief for breaking the window.
But charges were never laid.
Iain Hollett, the former director of public prosecutions, said the Crown decided it wouldn't be able to prove the case beyond a reasonable doubt.