N.S. police board didn't have authority to close disciplinary appeal to public, lawyers say

The Nova Scotia Police Review Board overstepped its authority by trying to close a disciplinary hearing to the public, according to lawyers for Halifax's police department and the mother of a man who died in a jail cell.

A judicial review of the board's decision last year to hold an appeal by a former special constable behind closed doors occurred in Nova Scotia Supreme Court in Halifax on Thursday.

"In a lot of ways this judicial review is extraordinary," lawyer Jason Cook said at the hearing.

The review will determine whether the board had the authority to close the appeal hearing to the public and if it had jurisdiction to receive a public complaint over other bodies such as the Office of the Police Complaints Commissioner.

The disciplinary appeal was made by Dan Fraser, one of two special constables who were terminated in relation to the death of Corey Rogers in June 2016 while in the custody of Halifax Regional Police.

Rogers, 41, was arrested for public intoxication and had a spit hood placed around his head after he spit at officers. He was still wearing it when he was placed in a cell at the Halifax police station and later died when he choked on his own vomit. 

Fraser and Cheryl Gardner faced disciplinary proceedings from the police review board, one resulting from an internal complaint by a superior officer and a second from a public complaint lodged by Rogers's mother, Jeannette Rogers.

Those hearings resulted in the constables being fired. Fraser appealed that decision. 

His appeal was temporarily halted by a Nova Scotia judge last year, however, because the review board was accused of "significant procedural abnormalities" for trying to hold the hearing behind closed doors.

Cook, who is representing Jeannette Rogers, argued at Thursday's hearing the board's decision has undermined public confidence and made Rogers skeptical she'll get justice for her son's death.

"It's most unfortunate that we ended up here," Cook said. 

Participation of review board limited

Thursday's hearing started with arguments over to what extent the review board should be able to participate in the judicial review.

Myles Thompson, the lawyer representing the review board, said it wasn't unprecedented for a tribunal to make submissions in a judicial review.

Mark Bailey, the lawyer representing Fraser, said he supported the board being able to make submissions. He said their contributions would be insightful. 

Cook and Edward Murphy, the lawyer representing Halifax Regional Police, both argued against the board's participation in the judicial review. 

Both lawyers said the appeal hearing still has to go in front of the review board and therefore it's important to preserve the board's impartiality.

Justice John Bodurtha ultimately agreed with Cook and Murphy, and ruled Thompson would not be able to make submissions but could provide context on regulations. 

'Opportunistic remarks'

Thompson said the review board's decision to close Fraser's appeal is justified under Nova Scotia's Police Act.

All parties involved knew how the appeal was going to go ahead and no one should be acting surprised, Bailey said during his arguments. 

"I think a lot of remarks by my friends are opportunistic," he said. 

Bailey said his client has not been given a fair opportunity to plead his case and his livelihood has suffered because of it.

Bodurtha reserved his decision for a later date.