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Corey Rogers is seen on the floor at the Halifax police station on the day he died, in this still image taken from surveillance video provided by Nova Scotia Courts.

The Canadian Press

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 lock-up.

The three judges ruled Thursday in favour of the constables, whose lawyers had argued that Supreme Court Justice Kevin Coady erred in his instructions to a jury.

“The court is unanimously of the view that the appeals from conviction must be allowed and a new trial ordered,” Justice Duncan Beveridge said, adding that full written reasons will be provided at a later date.

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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 trial in 2019 also heard that booking officers had told management they faced difficulties following a posted protocol that required frequent checks on the prisoner’s ability to be woken up and to respond to basic questions, among other precautions.

Bright said these factors might have been considered if the judge had asked the jurors to consider questions such as, “What would the reasonable booking officer do? What was the training of a reasonable booking officer?”

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“These are factors the trial judge should have brought forward and in my opinion failed to do.”

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.

In a telephone interview following the decision, Bright said he was pleased by the decision, noting it was somewhat unusual for Appeal Court judges to provide a ruling so quickly.

He said it will now be up to the Crown to decide whether to proceed with a new trial.

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In its decision, the Appeal Court said there will now be no need for the court to consider the Crown’s cross appeal of Fraser’s and Gardner’s sentences. They received suspended sentences with three years probation.

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