A Halifax Regional Police officer who arrested a Black man for being in a city park after dark “was stubbornly and unnecessarily exercising what he saw was his authority,” the Nova Scotia Police Review board ruled in a decision released Monday.
Constables Kenneth O’Brien and Brent Woodworth arrested Adam LeRue and his partner Kerry Morris in February 2018.
LeRue and Morris filed a complaint to police about their arrests. Police found the officers did nothing wrong, and LeRue and Morris appealed that decision to the Nova Scotia Police Review Board. The board heard their appeal over a series of scattered dates between July and December 2020.
The hearing started in July and was adjourned to address the board’s jurisdiction, and then LeRue, Morris, O’Brien, and a Halifax Regional Police supervisor, Sgt. Brian Palmeter, testified in October. Woodworth testified in December, and then lawyers for the parties made final submissions in writing in early 2021. The board also saw a video of the beginning of the interaction, recorded by Morris, and a video of LeRue’s booking at police headquarters on Gottingen Street.
Board chair Jean McKenna and members Simon MacDonald and Stephen Johnson ruled in a decision rendered Friday and released on Monday that O’Brien abused his authority under the Police Act because he made the arrests “without good or sufficient cause” and acted “in a disorderly manner or in a manner that is reasonably likely to bring discredit on the reputation of the police department.”
After picking up a pizza, LeRue and Morris stopped at Sir Sandford Fleming Park in Armdale to make a phone call. O’Brien pulled up behind their vehicle, told LeRue he was in the park illegally and asked for identification. LeRue questioned why he should provide identification and asked to speak with a supervisor. O’Brien then said he would write him a ticket for being in the park after 10pm. The review board’s decision said that’s when the interaction started to go south:
This is the first point where Cst. O’Brien could have exercised discretion NOT to ticket, as he did with the previous vehicle [he pulled over in the park that night]. (Even Sgt. Palmeter testified that he had never written a ticket.) But as soon as Mr. LeRue questioned his reason for requiring identification, Cst. O’Brien made the decision to issue a ticket, as is clear from the comment he made on the video. This is also the point where Cst. O’Brien began to escalate the situation. He saw his “authority” as being challenged, and so he firmly made the decision to exercise his “authority”, and his powers as a police officer. It was a poor exercise of discretion, but perhaps not so far from the standard, at that point, to be considered as misconduct. Unfortunately, all of what followed was as a result of his blind, inflexible insistence on his authority. Mr. LeRue was to be “taught a lesson”.
… with the arrival of Cst. Woodworth, Cst. O’Brien had another opportunity to exercise his discretion and de-escalate the situation; Mr. LeRue told Cst. Woodworth that he would provide his identification if the ticket was dropped. This was a reasonable request by Mr. LeRue. It would provide Cst. O’Brien with the identification he felt that he needed to comply with Supt. Cecchetto’s direction and allow him to gracefully bow out of what was an obviousIy escalating situation. It would send Mr. LeRue on his way, with a new understanding of the municipal rules regarding this parking lot, and the park area. But Cst. O’Brien testified that he felt that they were “past that point”. This is not the conduct that the public would expect from a trained, experienced, police officer, who, after all, is dealing with a technical, very minor breach of a municipal bylaw. He was stubbornly and unnecessarily exercising what he saw was his authority.
He then further inflames the situation by arresting Mr. LeRue for a charge of obstruction of justice, a very serious criminal charge, that would have both an immediate and potentially lifelong impact on Mr. LeRue. Even if he had the lawful authority to charge, it can hardly be seen as a reasonable exercise of discretion to apply such a charge in a situation where the “evil” done by Mr. LeRue was sitting in a parking lot, talking on the phone, while his wife ate pizza.
He then further escalates the situation by making the decision to search the vehicle, and he testified that was his decision, according to his own testimony. That in turn led to the decision to demand that Ms. Morris exit the vehicle, and when she refused, forcibly remove her, arrest her for obstruction of justice, and engage in a full search of the vehicle.
Her arrest, and full search of the vehicle, is hardly consistent with a professional exercise of discretion.
The board considered Woodworth’s conduct, but ultimately dismissed the complaints against the second officer. Particularly, the board examined his comment during LeRue’s booking at Halifax Regional Police headquarters, where after LeRue accused him of racial profiling, he said, “I get tired of hearing that.”
The board wrote:
The conduct of Cst. Woodworth at the lockup was for the most part, neutral. He did express frustration at having racism frequently raised in the course of his duties. However, as a trained, professional officer, that is something that he should expect to encounter. Halifax has a large black population, and it cannot be denied that unfortunately, racist attitudes are all too common. Police officers should recognize that non-caucasians have good reason to be sensitive to what can be at least perceived as racist conduct. It is a sensitivity that is particularly highlighted in civilian / police confrontations, where police officers exercise authority well beyond that of the ordinary citizen.
We are satisfied however that while Cst. Woodworth’s comment at the lockup may have been insensitive, it is a comment that he regrets making, and was essentially a remark made to indicate that what he was doing was not, from his perspective, in any way racist.
The board also found Woodworth’s conduct in arresting Morris was acceptable:
Insofar as Cst, Woodworth is concerned, we accept the evidence he was acting on the instructions of Cst O’Brien. He attended the scene when Cst. O’Brien was asked if he needed backup and he arrived there. Cst O’Brien was the officer in charge at the scene and he was following his instructions. We accept that Cst. Woodworth, in carrying out his duties as requested by Cst. O’Brien, was doing them as he said he was trained to. To be clear, we find the manner in which he removed Ms. Morris was how he was trained. Any injuries sustained by Ms. Morris when he was removing her from the vehicle, we attribute to her resisting him in his attempting to remove her from the vehicle. We find as we review the totality of the evidence that the allegations against Cst. Woodworth by both Mr. LeRue and Ms. Morris are dismissed.
LeRue and Morris alleged that this was a case of racial profiling, that O’Brien chose to target LeRue because he’s Black. The board didn’t come to that conclusion:
While it is possible that Cst. O’Brien’s conduct was triggered by race, it is more likely that it was triggered by the questioning of his authority to request ID, and the request to speak to a supervisor. Most people do not happily welcome an “I want to speak to your boss” comment, whatever their job. It was immediately following that brief discussion that Cst. O’Brien announced that he was going to issue a ticket. We do not believe that was his initial intent. Rather he would have simply explained the situation and sent Mr. LeRue and Ms. Morris on their way.
It is more probable that the initial discussion was what triggered the escalating and unprofessional response of Cst. O’Brien.
The board found O’Brien was in breach of the Code of Conduct contained in the Nova Scotia Police Act regulations in sections 24(1)(a), 24(7)(a), and 24(7)(c). Those are as follows:
24 (1) A member who engages in discreditable conduct in any of the following ways commits a disciplinary default:
(a) acting in a disorderly manner or in a manner that is reasonably likely to bring discredit on the reputation of the police department;
(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;
(c) unlawfully exercising authority as a member.
James Giacomantonio, lawyer for O’Brien, had no comment when asked at a different Police Review Board hearing on Monday.
Jason Cooke and Ashley Hamp-Gonsalves, lawyers for LeRue and Morris, told reporters after that hearing that they had yet to speak with their clients. But the lawyers said they were happy with the decision even though the board didn’t conclusively say race was a factor in the case.
“We’re still of the view that race was a factor. And I don’t think the board dismissed that I think it’s just hard in the end to have evidence,” Cooke said. “Someone is not going to say that [they’re racist] and then they may not even believe it. I mean I think if you think about some of the ongoing challenges of African Nova Scotians and police, it’s often not because of overt racism or intentional racism. It’s because a lot of these things are just kind of baked into the culture.”
Cooke and Hamp-Gonsalves said, as they have before, that O’Brien could have just knocked on the window and told LeRue and Morris the park was closed and it was time to head out.
“We said that the discretion of these officers was used as a sword in the circumstances rather than a shield to protect Adam and Kerry from actually having to engage or be criminalized by this process,” Hamp-Gonsalves said.
Without first speaking to their clients, Cooke and Hamp-Gonsalves had no comment on the type of penalties they’d seek.
The board wrote that it will schedule submissions on the penalty for O’Brien at a later date. Possible penalties under the Police Act include dismissal, suspension, fines and training.
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