Original Link: https://www.thestar.com/news/canada/2018/05/14/he-died-after-guards-beat-and-pepper-sprayed-him-according-to-video-the-province-refuses-to-release-the-footage-citing-labour-relations.html

Ontario’s Ministry of Community Safety and Correctional Services is keeping secret the video detailing the last moments of a man who died in solitary confinement at a Lindsay jail after a three-hour confrontation with guards.

The family of Soleiman Faqiri, a 30-year-old mentally ill man who died in the Central East Correctional Centre on Dec. 15, 2016, and the Star separately submitted freedom of information requests for video of the events leading to his death. Both requests were denied under Section 65 (6) of Ontario’s privacy law, which refers to labour relations.

Family and friends hold a vigil for Soleiman Faqiri at Nathan Phillips Square in a Feb. 8, 2018 file photo. Faqiri died during a 2016 altercation with guards in Lindsay, Ont., jail.
Family and friends hold a vigil for Soleiman Faqiri at Nathan Phillips Square in a Feb. 8, 2018 file photo. Faqiri died during a 2016 altercation with guards in Lindsay, Ont., jail.  (RICK MADONIK / TORONTO STAR)

Two privacy law experts told the Star the use of that section is unclear and may be a broad interpretation meant to protect the correctional officers who appear in the video.

Several other experts said the denial is part of a trend of secrecy at the ministry.

Faqiri, who had schizophrenia, died after guards at the provincial facility pepper-sprayed and beat him after he refused to get out of the shower, according to a 2017 internal report by the Kawartha Lakes Police Service that refers to surveillance video. The report, which was obtained by the Star in February, describes how officers forced handcuffs and leg shackles on Faqiri as they returned him to a segregation cell. Video then shows 20 to 30 officers entering his cell, the report says.

Faqiri was in jail awaiting a mental health assessment. A 2017 coroner’s report found the cause of his death to be “unascertained.”

The Kawartha Lakes police investigation found “no grounds exists to process criminal chargesagainst anyone who was involved with (Faqiri) prior to his death.”

“It feels like keeping us in the dark has become more important than finding out what happened to my brother,” Yusuf Faqiri, Soleiman’s older brother, told the Star on Monday. “It means more sleepless nights for my family.”

Section 65 (6) of the Freedom of Information and Protection of Privacy Act refers to records “collected, prepared, maintained or used by or on behalf of a ministry or agency in relation to” either:

  • “Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.”
  • “Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding.”
  • “Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.”

Last week, both the ministry and the Lindsay jail guards’ union refused to say if a labour relations matter was underway.

“It would be inappropriate for the ministry to provide comment due to the confidential human resources matters involved,” Brent Ross, a ministry spokesperson, wrote in an email to the Star.

“I will not be commenting,” said Chris Butsh, president of Local 368.

Ryder Gilliland, a Toronto litigation lawyer with an expertise in privacy law, said the denial is “a misuse” of Section 65 (6) because the video was created independent of any labour issue. “If you’re creating records for a labour relations matter then it would be properly invoked, but to say any record that exists ends up being part of the matter is an overly broad interpretation,” he said.

Mark Hayes, a privacy lawyer, told the Star that the lack of clarity in the letter is the red flag. “All we know is they’re claiming these three sections, which can be applied to a very wide variety of labour actions.”

“One has to wonder if there’s not a level of secrecy if red tape is being thrown up so easily,” Shane Martinez, a human rights lawyer, said. Martinez, who frequently sees his requests for records denied, said secrecy is “part of the ministry’s MO.”

“It makes it so difficult for families to get answers for loved ones who have died in jails.”

Andrew Langille, a Toronto employment lawyer familiar with privacy law, agrees. The use of labour relations exemptions “is concerning because of vast potential to cover up serious misconduct in Ontario jails,” he said.

Mustafa Sheikh, a Toronto criminal defence lawyer, has been denied access to video relating to altercations between officers and his clients at least five times in the past two years. Correctional centres are under 24-hour surveillance, he noted, with cameras posted in most areas of the jail. Video, Sheikh said, “provides an unbiased perspective of what actually happened.”

“No one ‘wants’ to see the violence likely contained within that footage,” Fathima Cader, a Toronto labour lawyer, said, “but Soleiman’s family loved him, and they are entitled to see how he was treated in the last minutes of his life.”

The Faqiri family and their lawyers, Nader Hasan and Edward Marrocco, say they are dismayed and angry they can’t get an answer to their only question: “Why?”

The family waited almost a year to see the results of the police investigation. Their previous request to see records of the investigation was also denied. They are still waiting on the findings of an ongoing coroner’s inquest.

“There has been enough waiting,” Hasan said. “All we’re asking for is for transparency and accountability.”

Marrocco added that the ministry’s response to the freedom of information request makes it clear that there is an inconsistency to what the police found seven months ago.

“It looks like the ministry has investigated for a few months and found enough to take action against the guards involved in Soleiman’s death,” he said. “The only thing remaining is to release the ministry’s investigative findings so the truth can finally come out.”

The family of Soleiman Faqiri, pose near his grave during an interview with the Toronto Star in a September 2017 file photo.
The family of Soleiman Faqiri, pose near his grave during an interview with the Toronto Star in a September 2017 file photo.  (ANDREW FRANCIS WALLACE/TORONTO STAR)

What happened to Soleiman Faqiri

Faqiri was arrested on Dec. 4, 2016, for charges of aggravated assault, assault and uttering threats. He did not have a criminal record, according to the Kawartha Lakes police internal investigation obtained by the Star in February, but had been apprehended by the Durham Regional Police Service approximately 10 times over the past 10 years using their authority under the Mental Health Act.

In the course of the five days Faqiri spent in segregation at the Central East Correctional Centre, according to the report, he refused to wear anything besides his underwear, and he repeatedly covered himself in his own urine and feces.

He was seeing a ministry psychiatrist, but refused to take his medication. (According to the report, Faqiri had a history of non-compliance with his prescribed medications.)

On Dec. 6, Faqiri was moved to a segregation cell “due to concerns for his safety, the safety of other inmates, and the safety of (jail) staff,” said the report.

On Dec. 12, Faqiri appeared in court via video. A mental health nurse told the court Faqiri wasn’t speaking to anyone, refusing his medicine, not eating properly, and lying on the floor, making no eye contact. A justice ruled that Faqiri be assessed by a mental health facility in Whitby.

At 1 p.m. on Dec. 15, Faqiri was taken out of his cell by three officers and a health-care manager; he was covered in his own urine and feces.

Faqiri was handcuffed, covered in blankets and escorted in a wheelchair to a shower down the hall from his cell. The wheelchair was used for hygienic reasons.

At 1:15 p.m., Faqiri entered the shower area; his handcuffs were removed. He was in the shower for an hour and a half, and, according to the report, he refused, on four occasions, to leave.

What happens next wasn’t entirely captured on video — for the privacy of the inmates, there are no cameras in the cells or showers. Faqiri’s final hours are based on investigators’ interviews with officers involved, witnesses and forensic evidence.

During his shower, the report notes Faqiri was squirting water and shampoo at the correctional officers through the window of the barred shower door.

Unable to make him stop, officers called their supervisors requesting the assistance of the Institutional Crisis Intervention Team — a group of officers that calm any disturbances caused by inmates

Requests for a crisis team to assist were denied and correctional officers were advised to manage Faqiri themselves.

At 1:45 p.m., a welding shield — a clear plastic free-standing shield — was placed just outside the shower door to protect the officers in the area where Faqiri was throwing water and shampoo.

The jail’s superintendent called Faqiri’s psychiatrist to assist, who came and offered him snacks — crackers and peanut butter. This calmed Faqiri down.

Around 2:50 p.m., the supervising officer was able to handcuff Faqiri through the shower door. Five officers walked Faqiri back to his cell. The report states he began to display aggressive behaviour when a sixth officer, who had no previous history with Faqiri, joined them.

Faqiri began to resist, said the report, spitting at the guards, while still in the hallway. A guard used pepper spray on him as they reached his cell.

Faqiri was pulled and pushed into the cell by all six officers. He continued to display “aggressive and assaultive behaviour,” said the report. An officer delivered a knee strike; another forced his right lower leg on his back.

The struggle lasted for over 10 minutes, said the report. Faqiri tried to hit the officers with his hands, which were still handcuffed, and also spat at and bit them. As Faqiri repeatedly tried to get up, officers delivered strikes to his body to keep him grounded, “where they can better gain control of him,” said the report.

Pepper spray was used again.

A “code blue” was called, indicating officers needed help, and 20 to 30 officers came to the cell area. According to corrections ministry policy, when a “code blue” is called, all officers who can attend are told to go and assist.

These new officers started to “tap out” the officers “who were exhausting themselves in the struggle,” the report says.

Faqiri’s mental health began to improve, the report says, and the officers slowly backed out of the cell. At this point, he was lying on his stomach with his hands up above his head, still handcuffed.

The supervising officer told Faqiri that his handcuffs were going to be removed and he would be re-handcuffed with his hands behind him. Faqiri, said the report, responded to this instruction.

A short time later officers looked into the cell window and observed Soleiman was “possibly not breathing,” the report says. The officers entered the cells and removed the handcuffs and began CPR. Nurses soon arrived with a defibrillator.

At 3:14 p.m., paramedics were called by a nurse, who said “there’s nurses everywhere, officers and vital signs absent.” According to the transcript of the 911 call, the nurse said they were still performing CPR on Faqiri.

According to a homicide/sudden death report, Faqiri was dead by the time paramedics arrived.

Members of the City of Kawartha Lakes Police Service were notified of the death “almost immediately,” at 3:45 p.m.

Faqiri’s family was informed that night.

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