Halifax police argue their officer made ‘unlawful arrest’ in submission to Nova Scotia Police Review Board

Halifax police argue their own officer abused her authority when she unlawfully arrested and tased a Black man on Quinpool Road in 2019.

Const. Nicole Green was found in disciplinary default after the arrest, which was captured on video, in December 2019. Halifax Regional Police found she’d breached all three subsections of s. 24(7) of the code of conduct for officers in the Nova Scotia Police Act regulations:

• Unlawful arrest without good or sufficient cause;
• Use of 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; and
• Unlawfully exercising authority as a member.

She was docked eight hours pay and ordered to take deescalation training. Last year, she appealed that finding to the provincial Police Review Board, which held a hearing in May.

Green and her partner at the time, then newly-minted Const. Josh Desmond, pulled Clinton Fraser over after they claimed to have seen him hit two vehicles with his truck. That day, and during his testimony, Fraser denied hitting any other vehicle. During the traffic stop, Fraser got out of his vehicle multiple times, and the officers said he was agitated and uncooperative. After writing him a ticket (which was later thrown out), Fraser stepped out of his vehicle a fourth time. When he didn’t follow officers’ orders to get back in the car, Green arrested him for breach of the peace, claiming he was holding a pen that she believed could be used as a weapon. There was no pen recovered from the scene, with Green claiming it “exploded.” In arresting Fraser, the officers tackled him to the ground and tased him seven times.

Lawyers for Green and Halifax Regional Police filed written closing arguments in late July, and the Halifax Examiner received copies this week.

Halifax Regional Police lawyer Andrew Gough asked the Police Review Board to uphold HRP’s internal disciplinary finding.

“Mr. Fraser should never have been subjected to a forceful arrest. He was committing no crime and violating no provincial statute when he exited his vehicle,” Gough wrote. “This was an unlawful arrest. Mr. Fraser posed no threat to the officers or to members of the public.”

Gough argued in his submission that Green had no right to arrest Fraser:

In the present case, the grounds for arrest for breach of peace simply are not made out. Cst. Green’s recollection of what happened when Mr. Fraser exited his truck for the fourth time diverges significantly from what is shown in the video.

Mr. Fraser did not behave in a threatening or violent manner towards the officers at any point throughout the interaction. Video #75 shows that when Mr. Fraser exited his truck the fourth time, his hands were down, and his palms were facing out. He did not raise the pen up at the officers.

Cst. Green described Mr. Fraser as “disruptive, argumentative, unruly and upset”. She testified that Mr. Fraser’s cumulative behaviour was the basis for effecting the arrest for breach of the peace. [Supreme Court of Canada case] Fleming [v. Ontario] clearly states that merely being disruptive or unruly does not rise to the level of behaviour necessary to justify an arrest for breaching the peace.

…

Mr. Fraser was not known to the officers prior to the traffic stop, nor was he behaving in an unpredictable manner. Based on both Cst. Green’s and Cst. Desmond’s evidence there was no imminent and substantial risk that Mr. Fraser would breach the peace if he were not detained. Cst. Desmond said that he did not view Mr. Fraser as posing any imminent threat even in the seconds prior to Cst. Green effecting the arrest. Cst. Green said that it was even typical for someone who had been in a motor vehicle accident to get out to take photos and inspect for damage and that she had no issue with this.

Gough argued any use of force involved in the arrest was unlawful because the arrested itself was unlawful. He argued Green unlawfully exercised her authority because after issuing the ticket, she had no authority to tell Fraser to get back in his vehicle. He noted the Motor Vehicle Act requires drivers to follow officers’ orders during a traffic stop, but not once it’s over, citing a Nova Scotia case, R v. MacLennan.

“Following the ticket being issued, at which point the traffic stop was concluded as per MacLennan, Mr. Fraser was free to go. He was told as much. This being the case, he was also free to get out of his vehicle,” Gough wrote.

“The MVA does not actually give officers the authority to give orders once the traffic stop has ended and the execution of their duties is complete. Nor is it prohibited to get out of one’s vehicle after being issued a ticket.”

Green’s lawyer, Brian Bailey, has a different interpretation of the Motor Vehicle Act, arguing without using case law that the same section Gough cited “clearly shows that the officers had the authority to direct Mr. Fraser to return and to remain in his motor vehicle and Mr. Fraser had an obligation to comply with those directions.

“Furthermore, Cst. Green stated in her evidence, that she asked Mr. Fraser to remain in his vehicle for safety reasons,” Bailey wrote.

Bailey argued Fraser was warned multiple times he could be arrested, and that he was “upset and confrontational that he had been pulled over.”

“Indeed, it is respectfully submitted that Cst. Green could have arrested Mr. Fraser long before she finally decided to do so, and only made the decision to arrest him, when she perceived, reasonably, that Mr. Fraser presented a danger to the officers,” Bailey wrote.

Bailey rejected HRM’s argument that any use of force was unlawful because “Green was left with no other choice but to arrest Mr. Fraser.”

“It is further submitted that even absent the concession from counsel for HRM, the officers’ use of force was made necessary by the actions of Mr. Fraser. It is submitted the force applied to effect the arrest of Mr. Fraser was lawful, necessary proportional and reasonable,” Bailey wrote.

Bailey’s arguments focused mostly on proving Fraser’s behaviour constituted breach of the peace, citing case law that states, “A breach of the peace takes place when either an actual assault is committed on an individual or public alarm or excitement is caused. Mere annoyance or insult to an individual stopping short of actual personal violence is not a breach of the peace.”

“Fraser’s behaviour was sufficiently egregious” to meet that threshold, Bailey argued:

It is respectfully submitted that Cst. Green’s conduct at all material times was shown to be tolerant of Mr. Fraser’s behaviour up until she believed him to be a threat to the officers. She did not present herself as aggressive or confrontational to Mr. Fraser. In fact, she considered her interactions with Mr. Fraser to be concluded, and advised Mr. Fraser he was free to depart. It was then that Mr. Fraser elected to exit his vehicle for the 4th time and again confront the officers.

It was on the 4th occasion when Mr. Fraser confronted the officers that Cst. Green attempted to control Mr. Fraser’s hand to ensure the pen would not be used by him as a weapon. Mr. Fraser immediately and actively resisted her efforts. Contemporaneously, Cst. Green made her decision that Mr. Fraser ought to be arrested for breach of the peace. The officers had no choice but to use the force they did at that very moment they did to control Mr. Fraser and to effect the arrest.

The three-member board — John Withrow, Jean McKenna, Peter Mancini — will provide a written decision in the case. That typically happens a few months after submissions.

Subscribe to the Halifax Examiner

We have many other subscription options available, or drop us a donation. Thanks!