A Halifax Regional Police officer wants a judge to review a decision that found he breached the code of conduct for cops when he arrested a Black man for being in a park after dark.
Constables Kenneth O’Brien and Brent Woodworth arrested Adam LeRue and his partner Kerry Morris at Sir Sandford Fleming Park in Halifax in February 2018. The couple said they stopped in the park, better known as the Dingle, to make a phone call on the way home from picking up a pizza.
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, and the situation spiralled from there. LeRue and Morris were both arrested, with Morris eventually allowed to drive their vehicle home, and LeRue spending the night in jail facing a criminal charge of obstruction.
LeRue and Morris complained about the interaction, and eventually escalated the case to the Nova Scotia Police Review Board, which heard their appeal over a series of scattered dates between July and December 2020.
In a decision released last month, a three-member panel of the Nova Scotia Police Review Board ruled that Const. Kenneth O’Brien abused his authority under the Police Act. Board chair Jean McKenna and members Simon MacDonald and Stephen Johnson found O’Brien 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,” as the Halifax Examiner reported following the decision. The board found Woodworth did not breach the code of conduct.
The board argued O’Brien could’ve deescalated the situation when LeRue questioned the need for identification, but he decided to go the other way:
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”.
On Monday, lawyer James Giacomantonio filed a request for judicial review with the Supreme Court of Nova Scotia on O’Brien’s behalf, arguing the board’s decision was unreasonable.
Giacomantonio made a series of statements in support of that claim. First, he brought back an argument that almost derailed the hearing last summer, insisting that the board had no jurisdiction to hear the complaint in the first place.
As the Examiner reported last July, it’s an argument that LeRue and Morris first brought themselves:
LeRue and Morris opened the hearing arguing that HRP took too long to make a decision following the conclusion of the investigation into their complaint, based on the Police Act Regulations. Because the police did so, LeRue and Morris argued they accepted their complaint and effectively agreed with them.
“As far as we are concerned the [Disciplinary] Authority is in agreement [with] our claims and the complaint is already decided,” LeRue and Morris wrote in a letter to police dated July 15, 2019.
[Lawyer for Woodworth, Nasha] Nijhawan agreed that HRP took too long to investigate the complaint, but argued in favour of a different result. She argued that the missed deadline meant the police review board had lost jurisdiction to hear the complaint — meaning it should be thrown out altogether.
[Lawyer for HRM, Katherine] Salsman argued the wording of the regulations — “must” rather than “shall” — means the timelines are directive, not mandatory, and the police review board still has the jurisdiction to hear the complaint.
The board later decided to hear the complaint, and Giacomantonio argued in the filing this week that in doing so, the board “adopted an unreasonable interpretation” of the Police Act and its regulations.
Giacomantonio also argued the board drew “speculative conclusions about the applicant’s exercise of his professional discretion” and “failed to intelligibly justify or explain how the facts met the legal standard required to sustain each disciplinary default against the applicant.”
O’Brien is seeking an order setting aside the decision and prohibiting future hearings into the complaint, or a new hearing with different board members, Giacomantonio wrote.
Giacomantonio is expected to appear before a judge to make the case for a judicial review on Aug. 23.
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There doesn’t appear to be any discussion about consequences for the police officer. Is such a finding by the police board grounds for suspension or dismissal? Otherwise what is the motivation to fight this in supreme court?
Penalties under the Police Act include dismissal, suspension, fines and training. The Police Review Board was going to schedule submissions from lawyers on the penalties. I suspect that will be on hold pending the request for judicial review.