Nova Scotia court says arrest of couple in park was 'cookie-cutter' policing

HALIFAX — The Nova Scotia Supreme Court has upheld a Police Review Board ruling that said an officer went too far when he arrested a couple who had stopped in a city park after hours in 2018.

Adam LeRue and Kerry Morris originally filed a complaint against two Halifax officers, alleging race played a role when LeRue — who is Black — was arrested and jailed after the couple parked their vehicle to eat pizza and make a phone call.

In the original June 18, 2021, decision, the board found that Const. Kenneth O'Brien wasn’t motivated by race but failed to exercise discretion and de-escalate the situation when he demanded ID, arrested the couple and conducted a full vehicle search.

LeRue was held overnight in the Halifax police lockup, facing a criminal charge for obstruction of justice — a charge later resolved through restorative justice.

Supreme Court Justice Mona Lynch backed the board’s conclusion that O’Brien did not adhere to the police code of conduct, writing that the board's "reasoning process was clear" and its findings were well grounded in the evidence.

She said the constable failed to appreciate that the initial infraction was minor. Lynch said the Supreme Court of Canada has been clear that police discretion should be adjusted to the circumstances of each case, adding that more discretion should be used when the offence is very minor.

"However, Const. O'Brien, and to some extent Sgt. (Brian) Palmeter (the supervisor on duty), suggested more of a cookie-cutter approach to police discretion, where in every case of a suspected bylaw infraction that the person must be identified, a check must be made for outstanding warrants, a check for any release conditions, and that for every arrest a search of a vehicle must be carried out for 'officer safety' regardless of the circumstances," wrote Lynch.

The board's original finding said O'Brien violated several articles of the police code, including one that refers to "acting … in a manner that is reasonably likely to bring discredit on the reputation of the police department." It also said he breached a section that said arrests must be made with "good or sufficient cause."

The board dismissed the allegations against the second officer, Const. Brent Woodworth, concluding he acted largely on O'Brien's instructions and according to police training.

Lawyers for Woodworth and O'Brien had originally argued that the case was about LeRue's and Morris's failure to answer simple questions and obey police commands rather than about alleged systemic racism in the police department.

However, the couple's lawyers successfully argued before the board that the offence would not generally even warrant a ticket. The board found that O'Brien had likely been angered by the couple's refusal to show ID, which the board said led the officer to "stubbornly and unnecessarily'' exercise what he saw as his authority.

James Giacomantonio, O'Brien's lawyer, had no comment about the decision, adding that his client was reviewing it.

If there is no appeal, then the next step would be for the Police Review Board to receive submissions from the lawyers on what potential disciplinary measures should be carried out against O'Brien for the code of conduct infractions, Giacomantonio said.

Jason Cooke and Ashley Hamp-Gonsalves, the lawyers representing the couple, said in an interview that the case reinforces that police must reasonably exercise discretion, rather than rapidly escalating a situation.

"There was absolutely zero public safety concerns on its face or otherwise in terms of Adam LeRue and Kerry Morris," Cooke said.

"The easiest way this could have been handled would have been for Const. O'Brien to say to them, 'Hey, the park is closed. Would you mind going home?' And that would have been the end of it."

This report by The Canadian Press was first published Jan. 3, 2023.

Michael Tutton, The Canadian Press