Nfld. & Labrador·CBC Investigates

Family wants RNC officers charged after arrests caught on video

An independent investigator hired by the provincial government recommended three Royal Newfoundland Constabulary officers be charged. However, the Crown decided not to proceed.

Independent investigator recommended criminal charges against police, though none were ever laid

Dennis Ball and his son Zackary spent a night in the St. John's lockup after being arrested on charges that were later dropped by the Crown. (Sherry Vivian/CBC)

A family in Paradise, N.L., is angry and seeking answers after an independent report calling for charges against three Royal Newfoundland Constabulary officers went unheeded.

An encounter with police in 2017 resulted in Zackary Ball being struck in the head and pepper-sprayed, and the window in the family's home being broken out.

Both Zackary Ball and his father Dennis ultimately spent a night in the St. John's lockup and were facing multiple charges — until home surveillance and dashcam video refuted the allegations they were facing.

"These cops were out of control. What they did was wrong and now they're trying to cover it up," Dennis Ball said in an interview at his Paradise home.

The Crown declined to proceed with criminal charges.

Now, nearly two years after the incident, the three officers are on administrative leave pending an internal investigation, and the chief of police is assuring the public that the RNC is committed to building trust in the community.

Dennis and Zackary Ball say three police officers should be criminally charged for an incident at their home on Nov. 8, 2017. 4:35

On Nov. 8, 2017, a male RNC officer followed Dennis Ball home and accused him of dangerously driving through an accident scene at nearby Topsail Road and McNamara Drive.

"He said I was under arrest for flying through the intersection like a mad person, screeching tires. I told him, I said, 'I wasn't, I never done that,'" Dennis Ball said. 

Dashcam footage provided to CBC News shows Ball's vehicle approaching the accident scene then doing a U-Turn around it, and increasing his speed while driving away. There is no audio, but Ball said he did roll down his window to tell the officers to "direct the f--king traffic."

The police officer followed Ball down Topsail Road to his home.

Outside, Ball said the officer told him to "get on the effing ground," but Ball backed up, insisting he didn't do anything wrong.

Video surveillance shows Zackary Ball leaving his house and running toward the officer and his father.

"[The officer] kept saying, 'Stop getting close, stop getting close,' when I wasn't close to him at all. I guess he felt threatened in some way because he ended up pepper-spraying me," Zackary Ball said.

Zackary Ball was pepper-sprayed during a confrontation with police outside his Paradise home in November 2017. (Submitted)
 

With his skin burning, Zackary Ball ran back inside his house, before two other officers arrived at the back door. He said he had no intention of letting them inside.

"I told them to get a warrant, because I didn't think they had any reason to come to my house and do what they were doing. And that's when the female officer smashed the window in our house," Zackary Ball said. 

Both Dennis and Zackary Ball would be arrested, but not before the younger Ball was struck in the back of the head with a closed fist by one of the arresting officers — something caught by the surveillance cameras.

Night in the lockup

The father and son spent the night in the St. John's lockup.

Dennis Ball was charged with resisting arrest, dangerous driving, obstruction of justice and unlawfully causing a disturbance. Zackary Ball was charged with resisting arrest and two counts of obstruction of justice

"My son was getting arrested. I was getting arrested. I was more concerned about him," the father said. 

"Zack has never been in trouble before; he's a good boy. I didn't want him to experience anything like that."

The bottom line is, the video tells the story, and the Balls are lucky they had a video.- Erin Breen

His wife, Kim Ball, said the situation escalated so quickly she could get few answers from police that night.

An officer told her that her son was pepper-sprayed for jumping on one of the officer's backs, Kim Ball said.

But she informed the officers the home's surveillance footage told a different story.

Zackary Ball said he was informed he'd be charged with assaulting a peace officer — but that charge was never laid. 

After the prosecution viewed the dashcam and home surveillance footage, all charges against the men were dropped. But the Ball family and their lawyer, Erin Breen, are not satisfied.

"That's great [that] charges went away, but in my opinion, charges never should have happened," said Breen, a St. John's-based defence lawyer. 

St. John's lawyer Erin Breen, right, says she disagrees with the Crown's decision not to lay charges against the three Royal Newfoundland Constabulary officers involved in an encounter with her clients. (Sherry Vivian/CBC)

"The bottom line is, the video tells the story, and the Balls are lucky they had a video. If not, I think this would have played out differently."

Joe Boland, chief of the Royal Newfoundland Constabulary, was shown the video in May 2018.

"When I looked at it, I decided that this needed to be investigated by SIRT (serious-incident response team)," Boland said in an interview.

Charges recommended by lawyer

The Department of Justice and Public Safety called in the Ontario Provincial Police to investigate. Local lawyer Gus Bruce provided oversight and wrote a report into the actions of the officers involved in the arrests. 

In March, the Ball family received a letter from Public Prosecutions, including a summary of Bruce's conclusions, which identified the officers only by their initials. 

The actions of [the police officer] in the circumstances were inexcusable.​​​​- Gus Bruce

Bruce determined 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 the officer to break a window in the home. 

The document said a multitude of evidence was gathered by the six-person team, including witness statements, video surveillance from the home, dashcam footage from Dennis Ball's car, RNC notes, court records, and audio/video recordings from the St. John's lockup.

Iain Hollett is Newfoundland and Labrador's director of public prosecutions. (Ariana Kelland/CBC)

Bruce determined the arrest of Dennis Ball was "not a legal or justifiable arrest and if that is the case, [the officer] could be subject to charges under the Criminal Code for assault, assault causing bodily harm, and unlawful confinement."

He believed that same police officer was likely "in an agitated and fearful state at the time of his attempts to subdue Dennis Ball without backup officers present" when he pepper-sprayed Zackary Ball.

"There is no objective evidence available to indicate that [Zackary Ball] was 'assaultive' toward [the officer] such as to justify the force used on [Zackary Ball]."

The strike to Zackary Ball by another officer constituted assault, Bruce said.

"The actions of [the police officer] in the circumstances were inexcusable."

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 suggested 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.

Bruce declined an interview with CBC News.

'They broke the law'

So why were charges never laid?

Iain Hollett, director of public prosecutions, said it was determined the Crown wouldn't be able to prove the case beyond a reasonable doubt. 

"In every case, it's important to look at the facts, and it is unfortunate that sometimes we don't proceed in cases where people really want us to proceed with charges, but we're not the lawyers for individual people," Hollett said.

We looked at the file and in our determination, there was no reasonable prospect for conviction.- Iain Hollett

"We represent the public interest and the public through the attorney general."

The role of an independent overseer differs from that of the prosecution, he said.

Bruce's role was to determine if there were reasonable or probable grounds to lay a charge, Hollett said, whereas the Crown had to evaluate whether there was a reasonable prospect of conviction and whether it was in the public interest to proceed.

"We looked at the file, and in our determination, there was no reasonable prospect for conviction," he said.

Joe Boland is chief of the Royal Newfoundland Constabulary. (Sherry Vivian/CBC)

Erin Breen and the Ball family disagree.

"I don't know why we even bother to spend the money in this province — because they're spending taxpayers' money to do all these inquiries — why are we paying the money for something that, when you get a recommendation, you brush it away?" said Kim Ball, Dennis Ball's wife. 

What troubles Breen the most, she said, is the timing of the arrests — five months after recommendations were made from the inquiry into the police shooting death of Donald Dunphy. 

"The theme of the Dunphy inquiry was de-escalation," Breen said.

"What I saw in that video, it was crisis invention — and that was escalation. I thought to myself, 'How is this happening?'"

Police training

Joe Boland declined comment on the level of the force used by the officers, citing an ongoing investigation by the RNC public complaints commission. Members of the Ball family said they have already been interviewed as part of that investigation.

Boland did say, however, that the officers have been on administrative duty since he became aware of the complaint.

The chief said the RNC has taken great strides in recent years to improve how officers respond to certain calls. 

"Sometimes you go into a situation where people aren't fond of police, there's the trust that's not there or they just don't like police," Boland said.

"It's important officers understand and can appropriately respond to those types of difficult calls."

The RNC has been able to learn from health-care professionals and the force has adopted a mental health crisis unit to shift the way police respond to people in distress, Boland said.

"Most likely [this story] is going to be controversial," Boland said. "People who put on this uniform, it's not a right; it's a privilege.

"I can tell you lots of wonderful stories about officers doing great work, but it's important that we maintain public confidence here because we need people to have confidence in our police service to come forward," Boland said.

'Justice is justice'

He said police officers work hard, and a bad incident can damage the reputation of the force.

Boland said the RNC will continue to work hard to build relationships within the community. 

For Dennis Ball, his relationship with police has always been rocky — something which he chalks up to past crimes fuelled by alcohol and bipolar disorder. He has a thick criminal record, but court documents show he hasn't had a conviction in eight years.

He served his time. Now, Dennis Ball says it's time for those officers to serve theirs.

"There was justice for me when I got in trouble, but there's no justice for them," he said. 

"Justice is justice, and the law is the law. As far as I'm concerned, they broke the law and they're hiding stuff."

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About the Author

Ariana Kelland is a reporter with the CBC Newfoundland and Labrador bureau in St. John's.

With files from Rob Antle and Jen White