A Halifax Regional Police officer who arrested a Black man during an altercation on Quinpool Road caught on video in 2019 was docked pay and ordered to take de-escalation training.
Disagreeing with that discipline and hoping for a Police Review Board hearing, she’s taking her appeal to the Supreme Court of Nova Scotia next week.
Const. Nicole Green arrested the man, who the Examiner is identifying as CF, on Dec. 4, 2019 for breach of the peace. The Examiner is not identifying the man by his full name because he has not been convicted, and because we have not been able to contact him for comment.
A video showing a portion of the arrest, which reporter Julia-Simone Rutgers posted on Twitter that night, shows four officers holding a Black man to the ground and one of them, a woman, shooting him with a Taser. The man moans in agony as the officers flip him over and handcuff him.
WARNING: disturbing video.
Just days after the street check apology, @HfxRegPolice deployed a taser on an unarmed black man on Quinpool Rd.
Im told there was an altercation between him and construction workers before police arrived.
Video not mine, sent to me by a bystander pic.twitter.com/xP95ZTziGR
— Julia-Simone Rutgers (@jsrutgers) December 4, 2019
The police attempted the next morning to spin the event. In a news release, they wrote:
On December 4 at 3:35 p.m., officers were in the area and observed a vehicle being driven in an unsafe manner, which led to the vehicle being stopped for a collision investigation to be conducted. As a result of the investigation, a male driver was issued a summary offence ticket, upon which he proceeded to physically confront the responding officers.
Additional officers responded to provide assistance. This is when the man assaulted one of the officers. In order to carry out the arrest, one of the officers deployed a conducted energy weapon to restrain the individual. He was subsequently taken into custody and will be facing assault police charges. He has since been released on a promise to appear.
The only charged laid against CF following the incident was the summary offence ticket for changing lanes unsafely, and even that appears to have been thrown out. He was never charged with assaulting a police officer. Halifax Regional Police refused to answer questions about the charges or Green’s case on Monday.
Court documents obtained by the Halifax Examiner indicate that CF filed a complaint against Green, the arresting officer, on Dec. 9, 2019, triggering an internal investigation.
Halifax Regional Police Sgt. Ross Burt investigated the complaint, and then Inspector Derrick Boyd, the “Delegated Disciplinary Authority” for HRP, issued a decision on November 5, 2020. Boyd found Green had breached the code of conduct for officers contained in the Police Act regulations, amounting to three disciplinary defaults. Specifically, Boyd said Green breached all three parts of s.24(7):
(7) A member who abuses their authority in any of the following ways commits a disciplinary default:
(a) making an arrest without good or sufficient cause;
(b) using unnecessary force on or cruelly treating any prisoner or other person with whom the member may be brought into contact in the course of duty;
(c) unlawfully exercising authority as a member.
As a penalty, Green was ordered to take de-escalation training and she was deducted eight hours pay.
Green appealed that disciplinary decision in December 2020 to the provincial Police Complaints Commissioner, currently Patrick Curran, a former judge. The commissioner decides whether to forward an appeal to a hearing of the Police Review Board. In this case, Curran decided not to do so.
In a letter dated April 19, 2021, Curran summed up why he didn’t think there was merit in allowing the case to go before the review board:
A breach of the peace requires actual or threatened harm to someone. The reason Cst. Green offered for the arrest of [CF] was her belief that he was brandishing a pen as if to use it as a weapon against police officers present. Inspector Boyd found that the video of the event did not support Cst. Green’s belief. The video showed that [CF] did not raise the hand in which he held the knife; rather, both his hands remained lowered, with palms up, until the arrest.
Having reviewed and considered all the information available to me associated with this complaint and investigation, I am satisfied there is no evidence upon which the Police Review Board could find that Cst. Green had a reasonable basis for a belief that [CF] was breaching the peace or about to do so.
The facts of the case are unclear, and the Examiner was unable to access all of the evidence at Curran’s disposal, including the video to which he referred.
Lawyer Nasha Nijhawan, representing Green, filed a request for a judicial review of Curran’s decision in Nova Scotia Supreme Court on June 16.
“The Commissioner’s decision not to refer the Disciplinary Decision to a Review Board for a hearing was unreasonable,” Nijhawan wrote.
“In declining to refer the Request to the Review Board, the Commissioner relied on an unreasonable interpretation of s. 74(4) of the Police Act and the Regulations and committed a reviewable error.”
That section reads, “Where the Complaints Commissioner is unable to resolve the complaint, the complaint shall be referred to the Review Board in accordance with the regulations unless the Complaints Commissioner is satisfied that the complaint is frivolous, vexatious, without merit or an abuse of process, and the Review Board shall conduct a hearing in respect of the complaint.”
Nijhawan argued that while the commissioner may refuse to forward a complaint from the public that is without merit, a police officer should always get a hearing.
“Reasonably interpreted, where an officer who is the subject of a disciplinary decision files a request for review of that decision, the Police Act and Regulations require the Commissioner to refer the matter to the Review Board for a disciplinary hearing de novo,” Nijhawan wrote.
“The Commissioner accordingly acted without jurisdiction in dismissing the Request. The Police Act and Regulations confer no authority on the Commissioner to decline to forward a disciplinary decision to the Review Board when the request for review has been filed by a police officer subject to a disciplinary decision.”
Even if that argument isn’t accepted, Nijhawan argued that Curran’s assertion that the complaint was without merit is “unreasonable.”
She’s seeking an order from the court setting aside Curran’s decision and forwarding the matter to a review board hearing, or an order requiring the matter be sent back to Curran for “redetermination,” along with costs.
In an interview Monday, Nijhawan said the review board hearing in this case should be public if it happened because it stems from a public complaint. Nijhawan said the officer deserves a hearing “because below there is no hearing.”
“A decision that’s made by the police department is without the opportunity to test the evidence, and so we say that this is an integral part of the regulatory scheme that allows an officer who has been disciplined a chance to appeal the decision,” Nijhawan said.
Nijhawan is scheduled to make that argument at Nova Scotia Supreme Court at 11am on July 20.