A doctor wrongly accused of child pornography offences after a cross-border name mix-up is suing several Halifax Regional Police officers seeking more than $3 million in damages, citing the “highhanded, shocking, contemptuous conduct of the defendants.”
Dr. David Barnett, a family physician in Dartmouth, was arrested in December 2020 on suspicion of possession and distribution of child pornography. The Nova Scotia College of Physicians and Surgeons suspended Barnett’s licence, and he was released under conditions, including that he stay away from schools and computers.
Charges were never actually sworn because it turned out to be a case of mistaken identity based on a clear error.
In January 2021, the Crown threw out the charges, the college restored Barnett’s licence, and the police blamed the screw up on American counterparts who referred the case to them.
As Jack Julian reported for CBC, police in North Dakota searched a man’s phone, leading them to a conversation with a Dustin Barnett on a New Zealand file sharing site called MEGA.NZ:
The online conversation included a video, uploaded by Dustin Barnett, that depicted a girl between eight and 10 years old in a sexual context, according to the search warrant allegations.
The MEGA.NZ account belonging to Dustin Barnett was linked by a gmail address with the name dsbarnett followed by numbers.
Inexplicably, police asked Google for information about a different email address. The new email shares elements with Dustin Barnett’s email, but is clearly different.
The new, incorrect Gmail account belonged to David Barnett, the Halifax family doctor. The source of the new email address is not explained. It had no connection to the child pornography investigation, but police in the U.S. and Canada continued to operate like it did.
Even though a justice of the peace flagged the error when HRP applied for a search warrant, they forged on and got a warrant from a different justice of the peace, and arrested Barnett.
‘Negligent investigation, false arrest, and false imprisonment’
On Tuesday, Barnett filed a notice of action in Nova Scotia Supreme Court, naming Detective Constable Jennifer Murray, Constable Scott Fairbairn, Constable Shaun Carvery, Constable Angela Balcom, Officer(s) Jane/John Doe of Halifax Regional Police, Halifax Board of Police Commissioners, Constable Ericka Giguere, Officer(s) Jane/John Doe of Royal Canadian Mounted Police, and Her Majesty The Queen in Right of the Attorney General of Canada (The Royal Canadian Mounted Police).
“The identification of Dr. Barnett as a criminal suspect was an absolute error committed by the police, based on an obvious typographical error contained in the investigation materials. The error was recognized by the officers as well as by a Justice of the Peace during a failed first attempt at obtaining a search warrant,” Barnett’s lawyers, Julian Falconer and Asha James, wrote in the notice.
“The error was negligently ignored and diminished by the officers throughout their investigation.”
Barnett’s lawyers argue the officers committed “negligent investigation, false arrest, and false imprisonment,” and they violated Barnett’s Charter rights.
The allegations contained in the notice of action have not been tested in court.
The notice of action explains, in line with Julian’s CBC article, that police in North Dakota left two numbers out of the gmail address of the accused. They then forwarded the incorrect information to the RCMP’s National Child Exploitation Crime Centre, which forwarded it to HRP.
Murray, the HRP detective constable named in the notice, reviewed the material, ordered officers to surveil Barnett, and then applied for a warrant to search Barnett’s home. The justice of the peace flagged the error.
“Instead of conducting a thorough and proper investigation into the issue raised by the Justice of the Peace, Officer Murray simply modified the initial [Information to Obtain] indicating that the second email address was Dr. Barnett’s recovery email for another email account and the search warrant was granted,” Falconer and James wrote.
Barnett was then arrested, released on conditions, and suspended from practicing medicine, and then in January, police were notified of their error and Barnett was cleared.
“The plaintiff states that the defendants Murray, Fairbairn, Carvery, Balcom and Officers Jane and John Doe of the HRP and Giguere and Officers Jane and John Doe of the RCMP, individually and/or collectively falsely imprisoned Dr. Barnett by intentionally confining him in the police station, without lawful justification for the detention,” Falconer and James wrote.
The defendants “wilfully ignored” the differences in the emails, “failing to carry out even the most rudimentary investigation before effecting arrest,” Barnett’s lawyers claim.
“These defendants were incompetent to carry out the duties of police officers and lacked the reasonable care, skill, ability and training necessary to perform the duties of a police officer, and ought not to have been assuming the responsibilities and obligations of their positions.”
Due to alleged negligent supervision and training, Barnett claims Halifax Regional Municipality, the chief of HRP, and the commissioner of the RCMP are all liable too, as they “knew or ought to have known that the defendant police officers were insufficiently trained to be dealing with the public.”
“The plaintiff states that as a direct result of the actions of the defendants, Dr. Barnett suffered a severe and profound impact to his personal and professional reputation in the City of Halifax, the province of Nova Scotia, and throughout the entire country, and was deprived of numerous opportunities to gain further employment and referrals from other doctors,” Barnett’s lawyers wrote.
“By reason of the facts set out herein and in particular the highhanded, shocking, contemptuous conduct of the defendants, the plaintiff claims exemplary, aggravated and/or punitive damages.”
Specifically, Barnett is seeking $1 million in general damages, “special damages in a sum to be disclosed before trial,” punitive damages of $1 million, aggravated damages of $1 million, damages related to the alleged Charter violations, and interest and costs.
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My personal experience with JPs is limited to one incident in the 1980s, when a JP assaulted me in his office after I stood my ground that he was free to dismiss my filing an Information , but only after it had been recorded. He had been instructed by “upstairs”, the AG, not to do so. He was an ex-cop and a JP that new constables were told to go to, when it was feared their requests would be rejected by JPs more interested in serving justice than in serving the police. New constables are still instructed to judge-shop with care – poor Murray mustn’t have got that memo….
On this level of detail I know nothing about the law and the warrant process. Yet I am surprised that investigators can shop the same warrant requests to different and multiple JPs until they get the positive response. And thus I wonder what the mechanism could be to prevent this.
OMFG. What a shit show. I hope Dr. Barnett gets a giant payday.
Based on Halifax Legal’s aversion to going to court for any reason, it’s safe to assume this will be settled out of court and with a NDA. I have yet to see any lawsuit against the city to ever land in a court. Please correct me if I’m missing something, but if indeed they have not gone to court to defend a case in the past, where in the city budget do they bury all the settlements?