A Nova Scotia judge on Thursday acquitted two former special constables of criminal negligence in the jail cell death of an intoxicated man whose mouth was covered with a spit hood.
Justice James Chipman delivered his ruling in the Nova Scotia Supreme Court retrial of Daniel Fraser and Cheryl Gardner, who were originally convicted in relation to the June 15, 2016, death of Corey Rogers in a Halifax police lockup cell.
The heavily intoxicated man was carried into the police building that night after he was arrested outside the IWK hospital, where his daughter had been born the day before.
Three municipal police officers were involved in the arrest, and a spit hood was placed over Rogers’ mouth after he became agitated outside the police station. Once inside, two of the officers dragged the prisoner to a “dry cell,” where he was left with the covering over his face.
Fraser and Gardner – who no longer work for the Halifax police – were the booking officers who admitted Rogers to the cell, and they were responsible for keeping watch over him.
They were convicted of criminal negligence in November 2019, but the Court of Appeal overturned that decision last year and ordered a new trial, saying the judge erred in his instructions to the jury.
During the retrial, the Crown argued the two showed reckless and wanton disregard for Rogers’ well-being in failing to follow policies for monitoring the health of detainees and in failing to remove the spit hood from the man’s head.
However, Chipman accepted arguments from the defence, who said there were doubts about the original medical reports that concluded Rogers suffocated to death. The judge also said that the policies on monitoring detainees were “aspirational.”
The judge noted that Dr. Marnie Wood, who completed the June 16, 2016, autopsy, originally concluded Rogers’ blood-alcohol content of .367 grams per 100 millilitres “was lower than the reported fatal range,” but the judge said that at trial, she testified it “is possible” for a person to die when the blood-alcohol level “is around .4.”
He used this testimony, along with evidence of two other medical experts, to conclude, “given all of the evidence, it cannot be said that the spit hood was a contributing factor on a criminal standard.”
The judge said that in hindsight, both of the accused made poor calls in not sending Rogers to hospital, but he said this didn’t meet the legal test for criminal negligence.
“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,” the judge wrote.
“Nevertheless, the fact that the accused didn’t enter the cell, remove the spit hood and get Mr. Rogers required medical attention does not in the circumstances equate with guilt of the criminal charge.”
Chipman noted that while it was true Fraser had falsely claimed he had carried out three required cell checks, these checks occurred after Rogers’ death, adding that this rendered “all three false entries irrelevant from a criminal negligence standpoint.”
He said that despite the existence of clear policies guiding the supervision of detainees, “the realities” demonstrated that the policies weren’t always followed.
“Indeed, booking officers were told to do the best that they could in an environment that involved not enough on shift at one time,” he wrote.
Rogers’ mother, Jeannette Rogers, told reporters on Thursday the ruling disgusted her, adding that she has become weary after the six-year legal battle.
“I don’t see how they could be acquitted,” she said. “All the evidence pointed to the fact they (the booking officers) didn’t do what they were supposed to do.”
Crown lawyer Christian Vanderhooft told reporters he would review the decision to see whether there are grounds for appeal.
Gardner’s lawyer, Joel Pink, said both she and Fraser have new employment and “hope to get on with their lives.”
The Nova Scotia Police Review Board recently ordered the suspension of constables Donna Lee Paris and Justin Murphy – two of the arresting officers in the case – for 29 days without pay.
The May 16 ruling said both constables should have read the warning label on the spit hood. It also said they didn’t inform the booking officers that Rogers was still wearing the spit hood when the constables left him in the cell. The review board described these actions as serious faults.
The three-member board recommended that the Halifax police force better train its officers on how to recognize signs of extreme intoxication and on how to engage with highly intoxicated people. It also recommended that police be trained in de-escalation tactics involving people under the influence of drugs or alcohol.
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