HALIFAX — The Nova Scotia Court of Appeal has ordered a new trial for two special constables convicted of criminal negligence in the suffocation death of an inmate at a Halifax police lockup.
The three judges unanimously ruled Thursday that Supreme Court Justice Kevin Coady erred in his instruction to a jury, adding that their full written reasons will be provided at a later date.
The decision came after the Appeal Court judges heard arguments from lawyers for Daniel Fraser and Cheryl Gardner, who were found guilty in November 2019 in the jail cell death of Corey Rogers.
A medical examiner determined Rogers died of suffocation on June 15, 2016 while lying in a cell with a spit hood covering his mouth as he appeared to be vomiting.
Lawyers Ron Pizzo and David Bright argued the trial judge should have instructed jurors to consider what the “standard of care” was for booking officers regarding issues such as when to remove a spit hood.
They noted prior law has established that criminal negligence requires proof of “a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances.”
Pizzo and Bright argued this is central in this case, because there was evidence at trial the officers didn’t have proper training or knowledge about the potential dangers of spit hoods.
The Crown lawyer in the case, Christian Vanderhooft, replied that a charge to the jury doesn’t require “perfection.”
He said the jurors heard compelling video evidence showing it would have been common sense for the guards to remove the spit hood after it was left on Rogers by police officers, given that he was highly intoxicated.
“Could the standard of care have been reasonably determined by those (jurors) watching the video? Of course,” said Vanderhooft.
Fraser and Gardner were sentenced last year to suspended sentences with three years probation