‘Problems … when police investigate themselves’: lawyer

A lawyer representing a former exotic dancer alleging Niagara Regional Police botched their investigation after she alleged she was sexually and physically assaulted called his client’s case “an example of problems that can arise when police investigate themselves.”

Toronto lawyer Daniel Lamberto Ambrosini represented the woman, whose identity is protected by a publication ban, during a judicial review Wednesday after the Office of the Independent Police Review Director (OIPRD) sided with the NRP’s professional standards unit and cleared several police officers of misconduct allegations against them related to their investigation.

Ambrosini said his client, identified as AZ during the hearing, is asking Divisional Court “to order that the OIPRD director’s decision be quashed and that it be returned to the OIPRD and/or another police force other than the Niagara Regional Police Service for a fulsome and thorough investigation.”

Justice Graeme Mew said the court will reserve its decision on the case, but provided no indication of when a decision will be reached.

The alleged incident occurred Aug. 22, 2020, when Ambrosini’s client said she was sexually assaulted by a customer as she was working as an exotic dancer at a Niagara Falls strip club. The woman said she was then injured while being forcibly removed from the premises by a security guard.

In February 2021, seven months after the incident, Ambrosini said NRP Const. Matthew Catherwood advised his client that no charges would be laid related to the sexual assault and the investigation would be suspended. Three months later, he said, Det. Sgt. Richard Gauthier informed her no charges would be laid related to the alleged physical assault by the security guard, either.

“AZ was entitled to a reasonable expectation that the complaint would be dealt with in a manner that was fair independent and without bias,” he said. “AZ respectfully submits that is not what happened.”

He said his client filed a misconduct complaint against the officers with OIPRD on June 9, 2021.

But rather than investigating the complaint themselves or referring it to another police service, Ambrosini said the police watchdog agency referred her complaint back to the NRP.

He said the OIPRD’s decision to refer the investigation to the NRP denied his client “of any semblance of procedural fairness.”

“I think it’s important to note here that AZ was a victim of sexual assault and she specifically requested that the investigation be referred to another police department,” Ambrosini said.

“In my submission, this case is an example of problems that can arise when police investigate themselves.”

OIPRD lawyer Heather Mackay said OIPRD’s senior manager of investigations believed the NRP “could apply their own sexual assault investigation policies and conduct an independent investigation.”

The NRP’s professional standards unit cleared three police officers of misconduct allegations against them related to their investigation, but determined there were reasonable grounds to believe two officers committed misconduct of a “less serious” nature by failing to inform the woman on how to secure forensic evidence or obtain a sexual assault evidence kit and did not refer her to victim services.

Mackay said AZ was “very much right to complain to the OIPRD, because neglect of duty is a very serious charge.”

Although the discipline imposed on the two officers charged with misconduct cannot be publicly disclosed, she said designating a matter as less serious “only takes termination and demotion off the table.”

OIPRD then sided with the NRP after reviewing the professional standards unit decision, in a report released on March 18, 2022.

Mackay said the director’s review was “reasonable here because he fulfilled his function by considering all of the investigative steps taken by the professional standards unit.”

“The reasons are comprehensive and demonstrate the director understood the reasons in the complaint and the actions of the five responding officers, and that’s evidenced by the director’s summary of the issues,” she said.

Ambrosini said OIPRD “did not have all the evidence before it to make a reasonable decision confirming the (police) chief’s decision.”

He said that evidence included a recording of a telephone call between his client and Gauthier that was not included within OIPRD’s records.

Ambrosini said police didn’t try to get a statement from the suspect in the alleged sexual assault until March 2, 2021 — a month after they told his client no charges would be laid against him.

He said they also dismissed the allegations as “a deal gone bad.”

“To me, there appears to be a sense of negative stereotyping. AZ was sexually assaulted and this officer appears to be suggesting that the only reason she complained was because the patron didn’t pay her,” he said.

She said the decision about laying charges in a sexual assault case are “highly discretionary.”

“Officers are not held to a standard of perfection, and to find that an officer committed misconduct pursuant to the code of conduct requires a serious departure from their duties,” Mackay said, adding the detective investigating the case found contradictory evidence.

“It was not because the detective did not believe the applicant or think her less worthy because she was an exotic dancer,” she said.

The judge, however, said he often sees “an alleged perpetrator arrested and brought in while the investigation is ongoing … and in this case the alleged perpetrator was allowed to leave the premises before the investigating officers arrived.”

“Subsequent to that, it doesn’t seem that any meaningful attempt was even made to make contact with the alleged perpetrator until after the determination to not lay charges had been made, and not surprisingly when he was contacted, he declined to co-operate.”

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