Two ex-Halifax special constables acquitted of criminal negligence in 2016 death
The fact the pair didn't get Corey Rogers required medical attention does not equate guilt, judge rules
Two former special constables with Halifax Regional Police have been acquitted during a retrial after the pair was initially convicted of criminal negligence causing death in the case of Corey Rogers, a man who died in a police station cell in 2016.
Justice James Chipman of the Nova Scotia Supreme Court read his decision Thursday, saying though Rogers's death was "sad and tragic," it did not come as a result of criminal negligence on the part of Dan Fraser and Cheryl Gardner, despite missteps made by both of the booking officers.
"Undoubtedly, both accused persons exhibited imperfect behaviour and at times demonstrated poor judgment. With the benefit of hindsight, we now know that Mr. Rogers ought to have received prompt medical attention," Chipman said. "These actions may have saved Mr. Rogers's life."
"Nevertheless, the fact that the accused did not enter the cell, remove the spit hood and get Mr. Rogers required medical attention, does not in these circumstances equate with guilt of the criminal charge," he concluded, adding he felt the actions of Fraser and Gardner did not amount to a "marked departure" from the standard of care to be given by booking officers.
Special constables in Nova Scotia are not police officers. They are civilians appointed to specialized duties, including the booking of prisoners.
The pair was previously found guilty in November 2019 of the criminal charge of negligence following a two-week trial and three days of deliberation by a Halifax jury.
Arrested for public intoxication
Rogers, who was 41 when he died, was arrested for public intoxication the night of June 15, 2016, and was brought to a jail cell at police headquarters to sleep it off. The jury heard that during the drive to the station, Rogers spat on the arresting officers, so they placed a spit hood on him.
The spit hood was not removed, and Rogers died of asphyxiation, choking on his own vomit in the jail cell.
During the initial trial, Gardner and Fraser testified they never received training on the use of spit hoods and lacked the resources in the booking area to carry out the requirement to rouse an intoxicated person every 15 minutes to make sure they are OK. But the Crown argued the pair failed to fulfil their duty of care to Rogers and entered cell checks into a logbook that never happened.
Chipman found, however, based on the expert evidence, Rogers had already died before the first false check, absolving Fraser for the false reporting.
The retrial was first ordered by the Nova Scotia Court of Appeal in early 2021 after three judges ruled in favour of the defendants, whose lawyers argued Justice Kevin Coady of the province's Supreme Court erred in his instructions to a jury.
Lawyers Ron Pizzo and David Bright argued the trial judge should have instructed jurors to consider what the "standard of care" was for booking officers regarding issues such as when to remove a spit hood. Pizzo and Bright said this was central to the case, considering evidence the officers didn't have proper training in the potential dangers of spits hoods.
- An earlier version of this story described Dan Fraser and Cheryl Gardner as special constables with the Halifax Regional Police. In fact, Fraser and Gardner are former special constables with the force.Jun 02, 2022 4:15 PM AT
with files from The Canadian Press