Review board decision in Halifax police custody death 'too lenient', legal expert says

A recent decision involving the case of a man who died in Halifax police custody lacks accountability for what a Dalhousie law professor describes as "a preventable death."

Archie Kaiser, who has taught at the Schulich School of Law since 1979, was reacting to a November report by the Nova Scotia Police Review Board related to the death of Corey Rogers.

Rogers died in a Halifax jail cell in 2016 after he was arrested outside the IWK Health Centre for public intoxication. The 41-year-old father was on his way to see his newborn daughter.

The police review board ruled two of the arresting officers violated the provincial police code of conduct when handling Rogers.

"The behaviour of the officers was shocking and deplorable," Kaiser said in an interview with the CBC after reviewing the decision. "This was a preventable death. This should never have happened."

The arresting officers alleged Rogers spat at them so they placed a spit hood over his head before he was brought to the station.

The officers dragged Rogers into a holding cell and did not remove the spit hood. He was found dead in the cell less than two hours later. He choked on his vomit and the medical examiner ruled his death one of suffocation.

An internal investigation found constables Ryan Morris, Justin Murphy and Donna Lee Paris breached police policy when handling Rogers. The department did not say how the officers were disciplined, if at all.

Jeannette Rogers, Corey's mother, appealed that decision in hopes the officers would receive stronger punishment.

In June, the police review board heard several allegations made against Morris, Murphy and Paris.

'Standards here are far too low'

The board released its decision at the end of November. It upheld the results of the internal investigation and overturned one finding against Morris.

The three officers were accused of:

• breaching police regulations by acting in a disorderly manner that brought discredit to the police department.

• neglecting to perform a duty.

• lacking concern for the health and safety of a prisoner.

The board found none of the officers neglected to perform their duties when they decided not to call health services to assess Rogers.

The Halifax Regional Municipality booking policy says it is suggested that an intoxicated person receive medical attention if they're not alert or cannot be easily awakened. The policy says an intoxicated person only requires medical attention if they cannot carry on a conversation or they're disoriented, according to the review decision.

"Frankly, the standards here are far too low," Kaiser said. "In terms of the way in which the rules were set, and, in my view, in the manner in which the police review board looked at the evidence."

Police aren't trained to assess a prisoner's health, which is why a medical professional should always be consulted, Kaiser said.

Murphy was found to have committed disorderly conduct that brings discredit to the police department for throwing Rogers's shoes into the cell after the prisoner was placed inside.

The officers can be heard joking around in the booking area afterwards in audio recordings reviewed by the board. Morris is heard calling Rogers an "[expletive] dummy."

In the decision, the board called the conversation "unprofessional," but stated that it doesn't believe it is a cause for disciplining the officers.

"That's far too lenient," Kaiser said. Overall, he finds the board's decision is not "stringent or penetrating."

Kaiser says the board did hold two of the officers accountable in an important way.

According to the board, Murphy and Paris lacked concern for the safety and health of Rogers after leaving him in the cell without removing the spit hood.

"It's hard to imagine a more serious condemnation of the police," Kaiser said. "That is a condemnation of police conduct that goes to the very root of the police function."

Investigation into deaths in custody

A CBC News investigation found that 61 Canadians have died in police custody after being arrested related to intoxication since 2010.

The investigation found 17 cases where someone died after a medical condition was downplayed or ignored and 13 where someone died after they were not properly monitored.

Jeannette Rogers says her son's death will affect her for the rest of her life.

"The way they treated him was unconscionable," she said in an interview. "No one should be treated like that."

Rogers says she's disappointed that the decision against Morris was overturned by the Nova Scotia Police Review Board. She seems content with the rest of the report.

"I guess I'm satisfied with it," she said. "At least there will be some sort of discipline for two of the officers."

The board has not yet set a date for when it will hear arguments for potential penalties against Murphy and Paris.

Two special constables working at the Halifax police station when Rogers was arrested are expected to face a second trial in 2022. Daniel Fraser and Cheryl Gardner were convicted of criminal negligence causing death in November 2019, but the decision was overturned on appeal earlier this year.

In the meantime, Jeanette Rogers wants people like her son to stop being treated like criminals.

"Alcoholism is an illness that's not a crime," she said. "It certainly shouldn't be punishable by death."

In a statement, a spokesperson for the Halifax Regional Police said the department continues to make improvements to its practices and it won't comment on decisions by the Nova Scotia Police Review Board.

Alternatives to jail cell

Archie Kaiser agrees with Jeannette Rogers. He says provincial and municipal governments need to work together to treat public intoxication as a health issue and not a crime.

Section 87 of the Nova Scotia Liquor Control Act states that a person intoxicated in public can be taken into police custody. It also says that the person can be taken to other treatment services or put in the custody of someone who can care for them.

Kaiser says the act needs to be amended to put more emphasis on the alternatives to taking intoxicated people to a jail cell.

In order for there to be alternatives, Kaiser says the government must improve addictions and mental health services and invest in facilities like sobering centres that can also connect people experiencing addiction and homelessness with support programs.

"We would have more compassionate, respectful and safer services for everyone" he said. "Certainly we would avoid these completely preventable deaths like Corey Rogers."

According to a 2015 University of Calgary study, a sobering centre in Calgary had a dramatic effect in helping individuals who were intoxicated in public and reducing the burden on police and hospitals over a 12-month period.

The study says Alpha House clients had a 93 per cent drop in the average number of days they spent in jail compared to the year before. Interactions between clients and police reportedly dropped by more than 70 per cent.

Halifax Regional Municipality is currently considering the feasibility of building a sobering centre. A report is expected to go to council in March.

"These solutions are not elusive," Kaiser said. "This can be done now."