Judge orders temporary halt to police disciplinary appeal

A Nova Scotia judge has called a temporary halt to a hearing in a seven-year-old police discipline case after receiving an urgent request from the Halifax police chief, who cited "significant procedural abnormalities" in the case.

Donald MacLean, the chief of Halifax Regional Police, asked the court to intervene in a hearing by the Nova Scotia Police Review Board, arguing the board was not following procedure.

"The emergency exists because the Police Review Board is ordering what should be a proceeding that is open to the public to proceed as a private internal hearing not subject to public scrutiny," reads an emergency motion for an interim stay filed Thursday by lawyers for Halifax Regional Police.

"This poses the risk of an irreparable harm to the administration of justice as well as the bringing the administration of justice into disrepute."

The board was set to hear the appeal of its decision to fire former special constable Dan Gardner. Gardner was one of two special constables whose employment was terminated in connection withthe death of Corey Rogers, 41, in 2016.

Rogers had been arrested for intoxication and had spit at police officers who arrested him. They placed a spit hood around his head and he was still wearing it when he was placed in the cell. Rogers vomited and then died when he asphyxiated.

Appeal related to death of Corey Rogers in police custody

Fraser and Gardner were chargedwith criminal negligence in Rogers' death. They were initially convicted, but appealed and won a new trial. Fraser and Gardner wereacquitted in that trial.

In addition to the criminal charges, the special constables faced disciplinary proceedings from the Police Review Board, one resulting from an internal complaint by a superior officer and a second from a public complaint lodged by Rogers' mother, Jeannette Rogers.

The outcome of both complaints was that they were fired.

Don MacLean is acting chief of Halifax Regional Police (CBC)

Fraser appealed the internal complaint and decision, and the police board opened a hearing into that process earlier this week.

But lawyers for Jeannette Rogers and Halifax Regional Police objected to the board's hearing. In particular, they objected to the board's decision to blend Fraser's appeal of the internal disciplinary process with Rogers' complaint, which had not been appealed.

"At the first day of the hearing HRP raised the issue that because the decision and discipline in Mrs. Rogers' public complaint had never been appealed by Mr. Fraser, his termination from HRP would stand in any event of the disposition of his appeal of the internal complaint," reads a letter from HRP lawyers submitted to the court.

Board was set to hear appeal

The lawyers also objected to the board's subsequent decision to hold the hearing behind closed doors, despite arguments by HRP lawyers that doing so violated Nova Scotia's Police Act.

"The proceedings are tainted by very significant procedural abnormalities and denials of procedural fairness," reads the notice of motion from HRP's lawyers.

"The board here is refusing to subject its proceedings to public scrutiny on a matter as grave as the death of a member of the public in police custody. Because of the board's unreasonable and unexplained intention … the Police Review Board is insulating itself [from] public scrutiny and depriving the public of its 'silent seat' at the table."

Judge grants partial stay after emergency hearing

The lawyers had asked the board to reconsider, but it refused and indicated it was going ahead with its hearing.

That prompted lawyers for HRP and Jeanette Rogers to make the emergency appeal Thursday night to the Nova Scotia Supreme Court to get an interim injunction to halt the Police Review Board hearing.

Justice John Keith heard partial arguments on Friday.

Jeannette Rogers holds a book with photos of her son, Corey Rogers, who died in a Halifax jail cell in 2016 after being detained for public intoxication. (Josh Hoffman/CBC)

Keith agreed there were important issues that had to be resolved before the hearing should proceed. He cautioned that granting the temporary stay is not an indication that he or another judge accepts the arguments put forward by the lawyers.

Keith said that ruling will have to await more complete arguments and evidence which will be heard on Feb. 29.

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