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Judge says N.S. Police Complaints Commissioner must rehear Carrie Low case

Carrie Low speaks with reporters following an appearance in Nova Scotia Supreme Court where her legal team is seeking a judicial review into the police’s handling of her sexual assault case.
Carrie Low speaks with reporters following an appearance in Nova Scotia Supreme Court where her legal team is seeking a judicial review into the police’s handling of her sexual assault case. Jesse Thomas / Global News

A Nova Scotia judge says the province’s police complaints commissioner acted unreasonably and unfairly when she decided not to review a woman’s claims that police had mishandled her sexual assault investigation.

Judge Ann E. Smith of the Nova Scotia Supreme Court found that province’s Office of the Police Complaints Commissioner Judith McPhee was unreasonable when she decided that Carrie Low had waited too long to complain about the handling of her case.

The judge said the commissioner had started timing a six-month complaint period from the date Low reported the assault to police, and not on the date Low says she became aware that Halifax police may not have followed proper procedures.

“A civilian can only complain about police misconduct if she knows about it,” Judge Smith wrote.

READ MORE: Nova Scotians will soon have a year to file a complaint against police

Low’s case has already had an impact on the Nova Scotia justice system. The Nova Scotia government has said it will extend the complaint timeframe from six months to a year, in part because of Low’s case.

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Low has alleged that after she was taken in a car, driven to a site outside Halifax, and assaulted on May 19, 2018, police didn’t visit the scene where she alleges the crime occurred, missing an initial chance to secure evidence, according to the court ruling.

Judge Smith writes that Low said she underwent a forensic examination the day after the assault, spoke to a Const. Novakovic of the Halifax Regional Police (HRP) at the hospital, and had her clothing placed in an evidence bag, but her clothing wasn’t picked up as potential evidence for 10 days. (Const. Novakovic’s first name was not provided in the court decision.)

Low said she only found out in September 2018 that her clothing wasn’t sent for processing, and investigators told her that it could no longer be used as evidence due to the delays, the decision states.

But Smith says that Low did not know that her clothing had not been sent to a lab for analysis until April 10, 2019, or that HRP had allegedly not followed the Halifax police’s policy relating to sexual assault investigations until she received a copy of that policy on April 23, 2019.

On May 13, 2019, Low filed a complaint that police had mishandled her case.

Halifax woman seeks review of alleged police mishandling of her sex assault case
Halifax woman seeks review of alleged police mishandling of her sex assault case

In her ruling, Judge Smith found that Low’s complaint was timely and that the commissioner’s decision was unreasonable.

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The judge notes that Low’s affidavit filed in court states that a toxicology report had not been conducted “as of one year following the sexual assault.”

But on May 21, 2019, McPhee’s office notified Low that her case wouldn’t be reviewed because it wasn’t made within the six-month time limit for filing complaints against municipal police officers, according to the case. A follow-up asking for the commissioner to reconsider her decision was also rejected in a letter sent on July 9, 2019, the decision states.

Smith said in her decision, that it is “unclear” what the basis was for McPhee to start the six-month complaint period on the day that Low reported the sexual assault to police. The judge said that the commissioner should have considered when Low found out about the issues with the police investigation and taken that into account.

READ MORE: Sexual assault survivor files lawsuit against Halifax police and RCMP

Judge Smith also found that the commissioner ignored the broader aspects of Low’s complaint against the Halifax police department and focused instead only on her complaints about Const. Novakovic. The judge said each of Low’s complaints should have been considered by the commissioner.
“There is nothing in the Commissioner’s letter that would give Ms. Low any comfort that that was done; in fact, the opposite is the case,” Judge Smith writes in her decision.
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Judge Smith set aside McPhee’s decision and has sent Low’s complaint back to the commissioner for another ruling.

McPhee has since completed her three-year term and will not be in charge of reconsidering the decision.

Low has also launched a civil suit against the Halifax Regional Police and the RCMP, alleging officers falsely labelled her a liar and an alcoholic while mishandling her sexual assault case.