HALIFAX—Sitting through the criminal negligence trial around her son’s death in Halifax police custody has “been hell,” but for Jeannette Rogers a guilty verdict carries an important message.

On Sunday, a jury ended its third day of deliberations by delivering a unanimous guilty verdict against special constables Dan Fraser and Cherly Gardner in Nova Scotia Supreme Court. Both were accused of criminal negligence causing death after 41-year-old Corey Rogers died in their care.

“I know nothing will bring Corey back, but I know he’s watching over me and saying, ‘Thank you, mom,’” Jeannette Rogers told reporters on Sunday outside court after the verdict.

“I’m just so relieved. It’s been long and it’s been hard, but it was worth it.”

An audible gasp came from Jeannette Rogers and her family and friends, most of whom had been with her throughout the two-week trial, as the verdict was read.

Fraser stared down at his hands clasped in front of him on the defence’s desk, while Gardner stared straight ahead. Some in the group of their supporters, which included various Halifax police members, were visibly crying. Special constables are peace officers appointed to specialized duties; they are not police officers.

The jury had been deliberating about 15 hours over three days, beginning around 11:25 a.m. on Friday. In his instructions, Justice Kevin Coady had told the jury they needed to find that the Crown had proven Fraser and Gardner’s omissions in Rogers’ case showed “wanton or reckless disregard” for his life and safety.

During the trial, the jury heard Rogers was left alone in a police station cell with a spit hood over his head for more than two hours, during which time he vomited and died of asphyxiation on June 16, 2016.

A spit hood is an impermeable cloth device placed over a prisoner’s face to stop them from spitting on officers.

Crown prosecutor Chris Vanderhooft said outside court on Sunday that the range of sentencing for criminal negligence causing death is quite large, since there is no minimum sentence but the maximum stretches to life in prison.

Vanderhooft said the Crown will not be seeking that sentence, but they will need time to decide what their recommendation will be.

When asked about whether this case had wider applications across Canada, Vanderhooft said “it’s certainly not the only one before the courts right now,” citing the case of Const. Nicholas Doering, an officer with the London, Ont., police service, who is set to be sentenced in January.

Earlier this month, a superior court judge in Ontario ruled Doering was guilty of failing to provide the necessaries of life and criminal negligence causing the death of Debra Chrisjohn, who died hours after being taken into his custody in September 2016.

The judge said Doering failed to act upon obvious signs that Chrisjohn’s medical condition was deteriorating quickly while she was in his care and did not seek the medical help she couldn’t obtain for herself.

“It’s not the only time this is happening, unfortunately, and we’ll keep an eye on that one and we’ll keep an eye on what the appropriate precedents are,” said Vanderhooft.

Fraser and Gardner will return for sentencing on Feb. 14, 2020.

The Crown had argued that both Fraser and Gardner failed in their duty of care by: not ensuring the spit hood was removed after Rogers was placed in the cell after being arrested for public intoxication, not doing a proper medical assessment and not carrying out the proper “four R” checks that are required for prisoners every 15 minutes.

These “arousability” checks became official policy in 2012 after a directive from the provincial justice minister and require four steps, starting with whether the prisoner can be roused or woken, and then respond to questions and commands.

Looking at the video footage of the cell, Rogers did not noticeably move after 11:41 p.m. on June 15. Fraser eventually entered the cell at 1:38 a.m. on June 16, when Rogers was found unresponsive and declared dead by paramedics soon after.

The court also heard Halifax Regional Police had no detailed policy around how and when to use spit hoods, but a warning label on every hood’s packaging reads improper use of the hood “may result in serious injury or death due to asphyxiation, suffocation or drowning in one’s own fluids.”

Both Fraser and Gardner, as well as the three arresting officers, said they had never read the instructions on the hoods.

When asked what impact she hoped the verdict might have on booking officers across Canada, Jeannette Rogers said they must learn “they need to do what they’re hired to do.

“They need to follow policy and not just slough it off,” she said.

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Rogers was arrested for being publicly intoxicated on June 15, 2016, after he quickly drank a half pint of Fireball liquor outside the IWK hospital soon after his child was born.

Jeannette Rogers said she had hoped the baby was a second chance for her son to move forward with his life, but that day “it just went wrong.”

Dr. Marnie Wood, a forensic pathologist with the Nova Scotia Medical Examiner Service, carried out Rogers’ autopsy. She testified his blood alcohol level was .367 ounces of alcohol in 100 millilitres of blood, which was four times the legal limit but not as high as other fatal alcohol cases where levels had ranged from .5 to .7 in 100 mL of blood.

However, Wood said it’s likely Rogers’ lowered state of consciousness due to intoxication prevented him from being able to remove the spit hood’s fatal blockage himself.

Although Fraser and Gardner completed various cell checks during this two-hour time frame where they walked by the cell or stood outside and called Rogers’ name, they never got a verbal response and they never went in the cell together. On a form detailing their checks, the constables wrote Rogers was breathing or sleeping when they looked in on him.

Defence lawyers for Fraser and Gardner, David Bright and Ron Pizzo, respectively, had argued that their clients were being held to an unreasonably high standard with the arousability checks, since the constables had already told their supervisors they couldn’t do them under current staffing levels.

One of Fraser’s superiors, Sgt. Steve Gillett, admitted that booking officers had already complained they couldn’t follow the policy to the letter.

Fraser testified that after waiting years for any reply from police management about the checks, he was told it was acceptable to only carry out the four R checks for high-risk prisoners. He and Gardner both said they didn’t think Rogers fell into that category the night he died, and his behaviour didn’t raise any red flags since they believed he was refusing to co-operate by “playing possum,” an opinion they accepted from the arresting officers.

The jury heard there was no criteria on which prisoners should be considered high-risk, and booking officers used their own judgment.

Although Jeannette Rogers said she could have understood if the booking officers found it difficult to complete the four R checks if June 15 was a busy night, but that was not the case. The court heard both people were able to take lunch breaks, and at one point in his shift Fraser played a harmonica, which was “absolutely ridiculous,” Jeannette Rogers said.

“You don’t do that. If you can’t do your job, or you don’t want to do your job, then find another one,” she said.

“I think it’s a good start on a road to cleaning up the police department. And I think two bad apples have been taken out of the barrel.”

Jeannette Rogers said she now intends to seek a meeting with the Halifax police chief to ask him to ban the use of spit hoods in the force. She will also be following the upcoming review board hearing into the conduct of the three arresting officers involved in her son’s death: constables Ryan Morris, Donna Lee Paris and Justin Murphy.

The review board hearing was adjourned in April pending the outcome of Fraser and Gardner’s criminal negligence trial.

With files from The Canadian Press

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