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PROCEDURE - Trial judge’s duties - Charge or directions

Thursday, July 22, 2021 @ 5:44 AM  


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Appeal by two police officers from conviction for criminal negligence causing death. The appellants were the Booking Officers on duty when Rogers came into police custody for intoxication. Rogers had been a frequent detainee at the facility for public intoxication and other offences. Rogers was brought in with a spit hood that was not removed when he was placed in his cell. None of the officers were trained in the use or danger associated with leaving a spit hood on a prisoner. There was also no policy on their use. When Rogers vomited, the spit hood caused him to suffocate on his vomit. While the appellants checked the cells, they did not do so to the level set by policy. The Crown argued that because of Rogers’ intoxication, the appellants failed in their duty when they admitted him into the facility without a medical examination, left a spit hood on him, and failed to conduct mandated checks on his well-being. The trial judge never instructed the jury on the issue of the standard of care a reasonable Booking Officer owed or how to determine if the identified omissions by the appellants not only amounted to a failure to meet that standard of care but amounted to a marked and substantial departure from it. At no time did the trial judge instruct the jury to consider the appellants’ respective perceptions, were they reasonably held, and, whether a reasonable Booking Officer would have appreciated the risks associated with the acts or omissions said to have caused Rogers’ death. The trial judge never referred to the evidence that could inform the jury about the standard of care of a reasonable Booking Officer and the appropriate role for the policies relied upon by the Crown. 

HELD: Appeals allowed. New trial ordered. The re-charge did not correct the deficiencies with the initial charge. The trial judge did nothing to enlighten the jury about what evidence was relevant for their determination about the standard of care and whether the appellants’ omissions were a marked and substantial departure from that standard. Despite the Crown’s strong suggestion of a need for the trial judge to charge the jury about the modified objective test, that did not happen. In this case, for the re-charge to be clear, correct, and comprehensive, it was necessary to review the evidence and relate it to the issues the jury had to decide. The judge gave no instruction to the jury on the requisite standard of care which was fatal non-direction amounting to misdirection. It was also fatal non-direction to have not clearly instructed the jury to consider all the circumstances, including those reasonably perceived by the appellants, on the issue whether their conduct amounted to a marked and substantial departure from that of a reasonably prudent Booking Officer.

R. v. Gardner, [2021] N.S.J. No. 271, Nova Scotia Court of Appeal, D.R. Beveridge, D.P.S. Farrar and A.S. Derrick JJ.A., June 24, 2021. Digest No. TLD-July192021007