A Nova Scotia jury has viewed video of a man heaving in a jail cell while wearing a spit hood, in a case where the Crown alleges two special constables failed to properly look after their dying prisoner.
Daniel Fraser and Cheryl Gardner are charged with criminal negligence causing death in the June 16, 2016, death of 41-year-old Corey Rogers.
A video shown to the jury captures a visibly intoxicated Rogers wearing the hood as he is dragged and carried by police officers into the station.
He mumbles and groans incoherently in the entry area, then is left in a narrow lockup cell at about 11:07 p.m. on June 15.
About 25 minutes after Rogers is placed in the cell, he is still wearing the impermeable device on his mouth as he begins retching.
The video indicates Rogers’ last movements in his cell occurred at 11:41 p.m. on June 15, yet Fraser is only seen entering the cell and attempting to rouse Rogers just under two hours later.
An autopsy provided to the jury by the medical examiner, Dr. Marnie Wood, says Rogers’ heaving was “suggestive of vomiting,” and Wood concluded he’d died from asphyxiation.
“The liquid vomit inside the fluid resistant hood (spit hood) around the mouth and nose blocked air from entering. The resultant inability to breath was fatal,” Wood wrote in her Oct. 13, 2016, report.
A number of instances in the video show either Gardner or Fraser looking into the cell, and Gardner does say Rogers’ name during two of her stops.
However, the Crown argues those checks failed to meet the standard for a highly intoxicated inmate, where procedures expect the special constables to enter the cells and “shake them gently,” as one of a series of checks occurring at 15-minute intervals.
In addition, prosecutor Chris Vanderhooft has told the jury the special constables should have removed the spit hood.
Keith Stothart, an investigator with the Serious Incident Response Team, Nova Scotia’s police watchdog, testified Wednesday there were log entries that a special constable had checked Rogers, but the video doesn’t show this occurring.
Asked whether Fraser carried out a 1:11 a.m. check that was entered in the log, Stothart responded, “not at that time.” The investigator also testified another check logged in the records 14 minutes later didn’t happen.
In his testimony on Wednesday, Stothart testified spit hoods come with instructions that say “improper use of the … hood can cause injury or death.”
The instructions say the hood shouldn’t be used if the person isn’t under “constant visual supervision,” is vomiting or having difficulty breathing.
Stothart also testified that the intake form filled out by the booking officers indicated Rogers was “too intoxicated to answer.”
In his opening statement, Vanderhooft argued Rogers had four times the legal driving limit of alcohol in his blood, and thus should have been medically checked before being admitted – and “appropriately” checked every 15 minutes while in his cell.
The jury has also been shown a document referred to as the “Four Rs Observation Checklist,” which was posted in the entry room of the Halifax police station’s cells.
The first “R” stands for rousability, and says: “Go into the cell. Call their name. Shake gently.” The second “R” stands for “response to questions,” and suggests asking, “What is your name? Where do you live? Where do you think you are?”
The third “R” stands for “response,” and whether the inmate can open their eyes or lift their arms. The final “R” is remember, and suggests booking officers take into account the possibility of other illnesses.
Vanderhooft has alleged the peace officers failed to follow those steps.
Charges of criminal negligence causing death were laid against the special constables by the Serious Incident Response Team in November 2017.
Special constables are appointed to specialized duties as peace officers, including the booking of prisoners, but are not police officers.
Under the Criminal Code of Canada, criminal negligence is defined as completing or omitting any duty in a way that shows “wanton or reckless disregard” for the lives or safety of others.
Court heard that in the hours before his death, Rogers was arrested under the Liquor Control Act around 10:30 p.m. outside the IWK Health Centre, a children’s hospital in the city’s south end.
According to the Crown’s opening statement, Rogers was there because his wife, Emilie Spindler, had given birth to their child the day before.
Spindler testified Monday that Rogers had left the hospital on the afternoon of June 15 to cash a welfare cheque, and when he returned he was extremely impaired from drinking a bottle of Fireball whiskey.
She said he later argued with officers, who handcuffed him, placed him in a police vehicle and took him into the station.
The trial is set to continue next week, with the defence planning to call evidence.