Special constables convicted in Halifax jail cell death granted new trial

The Nova Scotia Court of Appeal has granted a new trial for two special constables convicted of criminal negligence in the death of an inmate in 2016.

The panel of three justices unanimously ruled Thursday that Nova Scotia Supreme Court Justice Kevin Coady had made a mistake in his directions for the jury during the trial of Cheryl Gardner and Daniel Fraser in August 2019.

On June 15, 2016, Corey Rogers was turned away from the IWK Health Centre where his girlfriend had given birth to his son the day before, because he was intoxicated, court documents show.  Rogers was arrested and taken to the Halifax Regional Police headquarters on Gottingen Street.

He later suffocated on his own vomit while wearing a spit hood, and lying on the floor of a cell. The two special constables at the holding facility were eventually charged and convicted of criminal negligence in Rogers’ death.

Defence attorneys Ron Pizzo and David Bright argued that the jurors were not properly instructed by Coady to treat the phrase “standard of care” with the nuance it deserved.

“Causation is an important aspect. Mr. Justice Coady did not refer to the ‘standard of care’ as perhaps being helpful, in that regard,” Bright said.

Court documents show that the arresting officers said they placed the spit hood on Rogers because of his belligerent behaviour.

Defence lawyers argued that Gardner and Fraser had not received proper training on the dangers of the device, and therefore could not be held liable for Rogers’ death.

The Crown attorney, Christian Vanderhooft, argued that while the case wasn’t “perfect,” it provided sufficient evidence to uphold the conviction.

He said the video evidence from the police jail cells presented at the trial was enough for the jurors to determine that the special constables were directly responsible.

Vanderhooft said that when the defendants accepted the intoxicated Rogers into their facility without medical assessment, they accepted responsibility for his well-being. He stressed that between not removing the spit hood, and failing to complete checks every 15 minutes, they had failed to provide the “baseline standard of care.”

“It’s a series of departures from the ‘standard of care’ that results in the cumulative effect of the officer’s not acting,” Vanderhooft said in court.

The Court of Appeal justices will provide written reasons for their decision at a later time.