Jail guards violated use-of-force policies in fatal restraint of Soleiman Faqiri, court documents suggest

Shackled, pepper-sprayed,face down wearinga spit hood. Nearly four years to the day that Soleiman Faqiri died on the floor of a jail cell, newly filed court documents suggestthe guards who restrained him in the final moments of his lifeviolated the use-of-force rules set out in their training.

The 30-year-old struggled to takehis final breaths as he waited behind bars for a mental health assessment at Ontario's Lindsay jail, where he was sent after allegedly stabbing a neighbour with an edged weapon during what his family has said was a schizophrenic episode.

But new court documents obtained by CBC News feature an interview with a jail sergeant at the scene that day who acknowledges the combination of tactics used against Faqiriwas a "triple threat" for asphyxia in other words, cutting off his oxygen supply.

For his family, the revelations are a reminder of a painful realitythat's left them cycling through outrage, disappointment, shock and sadness since his death on Dec. 15, 2016.

"They failed to follow their own policy," said Faqiri's brother, Yusuf.

"Yet we are as far away from justice as we've been from before."

The rules for using a spit hood

Earlier this year, Ontario Provincial Police revealed the long-awaited outcome of their re-investigation ofFaqiri's death. The family's lawyers say they were told that despite more than50 signs of blunt-impact trauma deemed likely the result of restraining Faqiri, no chargeswould be laid becauseit was impossible to know which of the six or more guards involved delivered the fatal blow.

Now, a new motion filed last week as part of the family's $14.3-million lawsuit against Ontario's Ministry of Community Safety and Correctional Services and seven individual staff memberssuggests what happened that day breached Ontario's policies on the use of spit hoods a securable fabric covering used to prevent an inmate from spitting or biting.

"Staff must ensure that an inmate is not placed on his/her stomach or in any position that could result in positional asphyxia while wearing the spit hood," says a copy of Ontario's policy and procedures manual for jail staff contained in the documents.

It also says an inmate must be "properly decontaminated" when pepper spray is used, and staff must ensure an inmate "is never left unattended while wearing the spit hood."

At least two of those policies appear to have been violated in Faqiri's case.

The manual also saysany staff who might use or supervise the use of a spit hood must be trained to do so.

The filings also reveal the specific brand of spit hood used on Faqiri before his death, featuring the followingwarning label on the packaging:

"Warning: Improper use of TranZport Hood can cause injury or death," the label reads. "Improper use may cause asphyxiation, suffocation or drowning in one's own fluids."

Province previously denied 'unauthorized force' used

In response to the family's lawsuit, the province filed a statement of defence last year, denying any of its staff used "unauthorized force" against Faqiri or that its "servants or agents were aware that their actions would lead to Mr. Faqiri's injuries."

Asked last weekif the province stood by its claim that no unauthorized force was used or that staff were not aware of the possible consequences of their actions, the Ministry of the Solicitor General declined to comment, saying the case remains before the courts.

'A triple threat of asphyxia'

But in a formal examination under oathearlier this year,Dawn Roselle, one of two jail managers fired following Faqiri's death, suggests guards should have known they might be cutting off his air supply.

"You would never combine the use of pepper spray with a spit hood [while] on one's stomach, right?" the family's lawyer Edward Marrocco asks Roselle in the examination.

"I would never combine that," Roselle responds, indicating she wasn't aware Faqiri was in a spit hood or that he'd been pepper-sprayed.

"OK,and the reason you don't do that is because that would be basically a triple threat of asphyxia," Marrocco continues.

"Absolutely," replies Roselle.

Rosellesaysshe arrived at Faqiri's cell while the altercation with a group ofguards was in progress, and two acting managers were already on scene at the time. Despite being a full-time manager, she says she "took on a secondary role because there was a lot of response."

Rosellesays she was among the last to leave Faqiri's cell, after he'd been positioned face down on the cell floor and cuffed behind his back. She says shestayedby the door and keptan eye onFaqiri.

After about aminute, Roselle says, she noticed he wasn't moving. Guards went back into the cell and removedFaqiri's restraints andturnedhim over onto his back.

It was then that Roselle says she noticed for the first time the spit hood, which appeared to be filled with fluid, possibly vomit. By that point, she says, she had radioed for medical helpand called for a crash cart with emergency supplies.

Fired managers 'scapegoated,' lawyer says

The specifics aroundRoselle's firing have not been publicly disclosed. The family's lawyers have asked for details of hertermination, but nearly nine months after her interview,have still not received them.

"The most substantial allegationis that she did not attend the inmate Faqiri after she had placed him in handcuffs behind his back," Roselle's lawyer, Andrew Camman, says in the interview transcript.

The province has claimed in court documents that Roselle and another managerfired after Faqiri'sdeath did not act "in the course and scope of their duties."

In an email to CBC News, Camman said:"We will let the process determine where the real culpability in this matter lies. My clients have been scapegoated by [their] employer for their heroic efforts to avert the tragic results in this incident."

WATCH | Former inmate John Thibeault speaks to The Fifth Esatate about witnessing Faqiri's death:

A former inmate speaks out about a day that haunts him

6 years ago

Duration 0:56

John Thibeault says he saw jail guards beat Soleiman Faqiri

The combination of being face down, wearing a spit hood and potentially vomiting is something use-of-force expert and former Ontario Police College instructor Michael Burgess says could create "the perfect storm" of factors leading to death.

"There's a number of things that we've learned over the last 40 or 50 years about asphyxia. One of the major lessons initially learned is never to leave a prisoner face down on the ground in handcuffs any longer than you absolutely have to," he told CBC News.

"Any amount of weight that this person is carrying up front is going to end up inside the body cavity, compressing the diaphragm, the lungs, and restricting his ability to breathe," he said.

Add to that guards on top of someone and vomit accumulating in a spit hood, and the risk is that much greater, he said.

'A void that hasn't gone away'

Ahead of the four-year anniversaryof Faqiri's death, his brother says he's confounded by the fact that no one has ever been charged in his death.

"This was a Canadian, a vulnerable man who lost his life at the very institution that was supposed to take care of him," Yusufsaid. "They didn't just fail the Faqiri family, they failed every Canadian who's suffering from mental illness."

As time marches on, Yusuf said he finds his own oxygen in advocating for his brother and joining with other families who have lost loved ones with mental illness.

But the loss remains.

"It's a void that hasn't gone away. And I don't think it'll ever go away."