The mother of a man who died in Halifax police custody doesn't know how much longer she can fight after two former special constables involved in her son's death were acquitted this week.
Jeannette Rogers says she walked out of the courtroom when Justice James Chipman of the Nova Scotia Supreme Court read his decision Thursday.
Chipman said the actions of former booking officers Dan Fraser and Cheryl Gardner did not result in criminal negligence despite missteps.
"I think the decision was wrong," Rogers said in an interview.
She said the decision has left her anxious and feeling unwell.
Corey Rogers, who was 41 when he died, was arrested for public intoxication in June 2016. He was brought to police headquarters to sleep it off.
Officers testified Rogers spat at them and they placed a spit-hood over his head. The hood was not removed after Rogers was placed in a cell. He subsequently choked on his own vomit and died.
Gardner and Fraser did not check on Rogers every 15 minutes as policy requires.
Special constables in Nova Scotia are not police officers. They are civilians appointed to specialized duties, including the booking of prisoners.
Fraser and Gardner were initially found guilty in November 2019.
The Nova Scotia Court of Appeal ordered a new trial in early 2021 after defence lawyers argued the justice in the first case erred in his instructions to the jury.
Rogers said she's sure the Crown will find a reason to appeal once the full decision is released, but said the experience has weighed on her.
"I don't know if I really want to go through another trial," she said. "I haven't really had a chance to breathe."
Dalhousie University law professor Wayne McKay says it's surprising the special constables were acquitted after a guilty verdict in the first trial, but there could be a couple of reasons for the change.
"I think it's not entirely irrelevant that the first ruling was by a jury and the second ruling was by a judge alone," McKay said.
The fact the special constables breached policy and were still let go can seem troubling to the public, he said, but the standard for proving criminal negligence causing death is much higher than that.
"The judge is not, in my opinion, in the Chipman decision saying these people behaved in a perfectly acceptable way," McKay said. "All he's saying is that they didn't behave so badly, given all the facts, that they met this high standard."
McKay says there would likely be a better chance of proving criminal negligence if the matter went to civil court.
Code of conduct violations
Rogers said she was optimistic for a guilty verdict in the retrial after a recent decision by the Nova Scotia Police Review Board.
The board decided in November the arresting officers did violate the Nova Scotia police code of conduct when handling Rogers.
The full decision was released this week and shows for the first time how the officers were disciplined.
Justin Murphy and Donna Lee Paris, both Halifax Regional Police constables, were suspended without pay for 29 days for neglecting or lacking concern for Rogers's well-being when he was in their custody, according to the decision.
Murphy was suspended without pay for an additional day for discreditable conduct for throwing Rogers's shoes at him after he was in his cell.
No comment from HRP
"I would have preferred to see them lose their jobs," Jeannette Rogers said.
HRP declined comment on the acquittals of Fraser and Gardner and the decision by the Nova Scotia Police Review Board.
The board's decision also recommended the police service educate officers about the signs of extreme intoxication, addiction and de-escalating situations involving people under the influence of alcohol or drugs.
"I wish people would realize that alcoholism is an illness." Rogers said. "It's not a crime and certainly shouldn't be punishable by death."
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