Halifax constables found guilty of criminal negligence causing death of inmate

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Michael Tutton, The Canadian Press


Published Sunday, November 10, 2019 2:38PM EST


Last Updated Sunday, November 10, 2019 3:01PM EST

HALIFAX — A jury has found two special constables charged in the 2016 death of an inmate in a Halifax police cell guilty of criminal negligence causing death.

Daniel Fraser and Cheryl Gardner were charged in 2017 by the Serious Incident Response Team — the province’s police watchdog agency — with criminal negligence causing the death of Corey Rogers.

His mother, Jeannette Rogers, let out an audible gasp when the verdict was read as family and friends of the accused quietly sobbed.

The jury deliberated for nearly three days until it reached a verdict.

In his opening statement, prosecutor Chris Vanderhooft told the jury in Nova Scotia Supreme Court that Fraser and Gardner failed to fulfil their duty to care for Rogers, who was highly intoxicated when he was brought to the Halifax police station on June 16, 2016.

The jury was shown video of Rogers, 41, heaving in a cell while wearing a spit hood, a mask that prevents prisoners from spitting on guards. An autopsy suggested the inmate had vomited into the mask and concluded he died from suffocation.

Court heard that in the hours before his death Rogers was arrested outside a Halifax children’s hospital where his wife had given birth to their child the day before.

There was evidence that he was extremely impaired after rapidly drinking half a bottle of whisky.

Arresting officers testified they placed the hood on Rogers’ face after he spit at them.

Vanderhooft, a Manitoba prosecutor brought in for the case, alleged Rogers died because paramedics weren’t called, and the inmate was left alone, intoxicated, face down in a cell with the spit hood still on.

He also argued the constables failed to follow provincial instructions for checking on inmates that had been introduced in 2012 following the death of Victoria Paul.

In 2009, Paul — an Indigenous woman from Indian Brook, N.S. — suffered a stroke in a Truro, N.S., police cell after being arrested for public intoxication, and died in hospital two weeks later, prompting calls for reforms in lockup procedures and an independent inquiry.

The new provincial standards — posted on the wall of the Halifax police lockup entry area — called for people overseeing police lockups to enter cells of highly impaired prisoners and gently shake them to ensure they are conscious.

The defence lawyers for the accused focused on the legal definition of criminal negligence causing death, which requires the accused show “wanton or reckless disregard” for the lives and safety of others.

Legal precedents have also been established that also call for jurors to decide if the actions of the accused were a “marked” departure from what a reasonably prudent person would do in the circumstances.

Fraser’s defence attorney, David Bright, presented evidence suggesting special constables seldom entered cells or touched prisoners to see if they were conscious.

“All of us who work for a living know there are written rules and there are rules. You can’t follow every rule blindly. You have to adapt the rules to your workplace,” the lawyer told jurors during his opening remarks.

“This was not, in my respectful submission to you, criminal negligence. There was no marked departure from a baseline.”

Special constables are employed by the police department and are appointed to specialized duties as peace officers, including the booking of prisoners, but they are not considered police officers.

Both constables testified in their defence.

Fraser said he had been told by a superior that the requirement to rouse inmates only applied in “high risk” cases, and he did not consider Rogers to be such a case.

“He seemed to be sleeping it off,” he testified. He also said an arresting officer told him Rogers was “playing possum.”

Gardner testified she didn’t notice anything unusual about the prisoner when she checked on him in his cell.

She said she looked in on Rogers several times while he was lying face down in a so-called “dry cell” and that on the first occasion he moaned and moved his shoulder in her direction.

Gardner said she never entered the cell to check on him and also assumed that he was just “sleeping it off.”

The prosecution said video evidence showed the last time Rogers moved was between 11:38 p.m. and 11:41 p.m. on June 15 but it was two hours later when Fraser called out to Rogers and finally decided to enter the cell and remove the spit hood.

“Unfortunately it was too late,” Vanderhooft said. “Corey had vomited long before and could not clear his own airway because the spit hood was covering his mouth.”

This report by The Canadian Press was first published on Nov. 10, 2019.