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A Day in Court — what happens when two Hfx cops are charged with negligence causing death…

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Police surround Corey Rogers, whom they put on the floor in the booking area of the police station in Halifax.  Note white spit hood covering Rogers’ face.

The courtroom was packed, so I had to squeeze onto a wooden bench next to a local criminal lawyer who was watching the trial. There was a gaggle of grade niners plus one father chaperone.  They were participating in “take your kids to work” day.  Half a dozen supporters of Corey Rogers’ mother were there.   On the other side of the aisle, there was a small lake of men and women in blue police uniforms and a man dressed in a sport jacket with a HRPA (Halifax Regional Police Association) lapel pin.

It was one of the last days of the trial of two special constables (a step down from police officers) who worked as booking officers at the Halifax lockup.  Both Dan Fraser, 62,  and Cheryl Gardner, 47, stood accused of negligence in the June 2016 death of Corey Rogers, a 41 year old man whose crime had been drunkenness in a public place.

Rogers died in cell #5 at the Gottingen St police station about two hours after he went into the cell.  From the evidence, it was called a “dry cell.”  It had no bench, no chair, no toilet, or sink.  In her testimony,  special constable Cheryl Gardner said that drunk prisoners who the police thought could harm themselves or others were tossed onto the cold floor of cell #5 to sleep off their intoxication.  One of the arresting cops had remarked (twice) that night how amazed he was by the volume of liquor he saw Rogers consume, minutes before he was handcuffed at the hospital doors.  Cheryl Gardner was not surprised.  She admitted she had booked Rogers for intoxication several times before – was she exasperated with him and cell #5 was some kind of punishment?

Rogers had been dragged into cell #5 as its lone occupant after having been arrested by police at the entrance of the IWK Hospital in Halifax.  His girlfriend had given birth to their baby girl barely two days previously; mother and baby were staying at the hospital.rogers3Corey Rogers

Rogers was drunk, and creating a disturbance, but was no credible danger or threat.   After watching him down more alcohol, police cuffed him and laid him down on the back seat of the police cruiser.  Rogers managed to sit up and started to bang his forehead on the plastic divide between himself and the front seat.

When the car arrived at the police station, one officer ran into the station to get a “spit hood” to put on Rogers’ head.  A spit hood is a paper and plastic hood that is placed over a prisoner’s head to prevent him spitting.  The top half is mesh, and the bottom half is opaque material and is impermeable.  The cops put the spit hood on Rogers and then half dragged and half carried him into the police station where they first deposited him on the floor of the booking area.  His hands were still cuffed behind him.

A photo circulated in the courtroom which showed Rogers’ prone body on the floor in the bright light of the booking area; he was surrounded by at least 4 uniformed cops.

This is when things got messy.  Gardner, who testified in her own defence, explained that she knew  and “trusted” the three constables who had brought Rogers in.   When one officer told Gardner that Rogers was at the IWK because his partner had just had a baby, Gardner said sarcastically, “Father of the year.” rogers2Cheryl Gardner in hallway of NS Supreme Court 

Gardner was supposed to fill in a medical form for the prisoner, but didn’t bother because one of the cops said Rogers was non compliant and “playing possum.”  This meant he simply went limp and refused to talk or cooperate with the police.  When Gardner heard this she didn’t direct any questions on the medical intake form to the prisoner – she simply assigned him cell #5.

The crown, Chris Vanderhooft, asked her why she did not call EHS (paramedics), or call the watch commander who was in charge, or call for any help when she saw how intoxicated Rogers was. Gardner kept saying she observed he was drunk, but not dangerously so. “No one was forcing you to take the prisoner into custody,” said Vanderhoooft in his cross-examination.  He reminded Gardner she could have sent Rogers to the hospital or called for the paramedics.  The Crown showed Gardner the medical form which she had filled in which only said that Rogers was “too intoxicated.”

Regulations stipulate that all prisoners in cells have to be checked on every 15 minutes.  While Gardner and her partner Dan Fraser did this – she agreed she stayed well outside Rogers’ cell.  She claimed she could see him him breathing.  Though the handcuffs had been removed, Rogers still wore the spit hood. Gardner admitted most prisoners remove the spit hood the instant their hands were freed.  Video evidence played in the courtroom showed Rogers wearing the spit hood, lying on his side in the same position he was in at 11.15 pm when he was first put into cell #5.

Video surveillance showed Gardner walked by Rogers’ cell but doing little more than call his name.  She did not rouse or try to engage him. This despite a big poster in the booking area of the police station which  reminded all staff to pay attention to the “Four Rs Checklist.”

The first “R” stands for “rousability,” and exhorts staff to: “Go into the cell. Call their name. Shake gently.”   Gardner called Rogers’ name from outside the cell.  She testified she thought she saw him move his shoulder.  The second “R” stands for “response to questions,” and suggests asking, “What is your name? Where do you live? Where do you think you are?”  Gardner never did that.

The third “R” stands for response to commands, assessing whether the inmate can open their eyes or lift their arms.  The final “R” stands for remember, and suggests booking officers take into account the possibility the prisoner may have other illnesses.

Gardner agreed with the Crown’s point that Rogers’ body movement never changed, that he defecated, and that she merely left him there.  Under oath, she volunteered that when the prisoner woke, he would have been given a cloth to clean himself and a clean pair of pants.  The fact that he never moved was “not unusual” to Gardner.  She insisted she wanted to let him sleep.

The Crown persisted – especially with regard to the spit hood which remained on his head.   In fact Rogers had vomited into the hood, and died of asphyxiation – he couldn’t breathe with the clogged mask on.  And clearly, he was too intoxicated or ill to know to remove it.  The Crown showed Gardner a photocopy of the warning printed on the plastic which wrapped the spit hood –anyone wearing it should be checked every 15 minutes.  She said she did not recall ever reading it.  Further that she said she was told “there was no danger in using it.”

Vanderhooft told the court that it the warning on the wrapper also said “Danger” and asked her if leaving something over the face is itself dangerous.  Gardner replied, “Potentially, yes.”

It was more than two hours later that special constable Dan Fraser went into Rogers’  cell.  At that time, Rogers was dead.

The jury of 8 men and 4 women listened intently.  Will they convict Gardner and Fraser?  The crown has painted a clear picture of lack of concern, neglect and even hostility shown by at least one of the booking officers.

 

 

 

 

 

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Remembrance Day: the Punitive Holiday

first published in NSAdvocate.org

poppiesKJIPUKTUK (Halifax) – In Nova Scotia Remembrance Day has its own act, because it is not a “general paid holiday” under Labour Standards and it’s not a “designated closing day.”

Then what is it – apart from the remembrance of World War I and II? It is a punitive holiday day because many Nova Scotians must forego pay. That week your pay cheque will be 20% lighter than it was for a 5-day week.  Also the Act stipulates that no bar can open before 12 noon on Remembrance Day.

If you work in retail or in the service sector, Monday, Nov. 11 will be a day off for you. That is because the law requires shops in malls, big box stores, major grocery stores, liquor stores and other retail venues to be closed. You get the day off – but without pay!

However if you work at a bar or a restaurant which does open, or you work in a gas station, a shop with fewer than 3 staff, or a pharmacy – you may have to work that day. If you do work, you get paid (straight time) for the day of work plus you get an extra day off with pay. That is only if you work Remembrance Day AND you worked for pay 15 of the last 30 days.

Confused? You are meant to be!

Like Labour Standards in Nova Scotia, the Remembrance Day Act is also full of exceptions.

Farm workers are exempt, so are those who work in bakeries, fish and meat processing plants, dairy production, logging, aquaculture and even newspaper publishing. Of course hospital workers, police and those who work in fire services are exempt too. But they have unions which often negotiate premium pay for their members who works Remembrance Day.

If you’re lucky enough to be in a union or covered by a collective agreement, most collective agreements designate November 11 as a holiday like other statutory holidays. For example, if you work as a clerk at Saint Mary’s University, since November 11 falls on a Monday, the university is closed that day. Thank your union for providing you the day off with pay.

There is a small reprieve for everyone who does have to work on November 11—such as those who work in coffee shops like Tim Hortons. The act calls for your boss to “suspend operations for 3 minutes starting at 10:59 am on November 11”—that means you do get a 3 minute break. Still, it’s probably not long enough for you to drink a coffee.

Judy Haiven is on the steering committee of Equity Watch, an organization that fights discrimination, bullying and racism in the workplace.  Contact her at equitywatchns@gmail.com

What to Read… What to Watch

Autumn 1969 — All Fiat’s Italian plant workers struck, for days, for weeks and  more.  This wonderful and optimistic novel We Want Everything by Nanni Balestrini balestrini2tells the story from the eyes of a semi-skilled worker from Salerno in southern Italy, who travels north to Turin for a soulless, dangerous, and repetitive job at Fiat. fiat500 Balestrini is a great novelist who paints with a broad brush, fiat-strike

and hides nothing in his contempt for the trade union bureaucrats who so often sided with the company.  The fascinating ways the workers struck was delightful.   In one plant, Fiat (with the union’s agreement) was paying workers who drove the finished cars off the production line into a big yard, less than other production workers.  Rather than a typical picket, the “drivers” decided to physically push all the finished FIATs  to the yard.  It took 4 “drivers” much more time to push the cars off, than it would have taken to drive the cars.  Ingenious.fiat-power

photo from ’69 Fiat strike reads: Worker Power

The book is a window on the 60s and early 70s — and the changes to family, to education and to work that was taking Italy into the 20th century.  If you compare We Want Everything to — for instance — Bertolucci’s drama 1900 —bertol you can see how different turn of the century Italy was to 1960s Italy.

Balestrini was a famous socialist poet, novelist and activist in Italy.  And his death in May 2019 must be mourned. balestriniCan’t wait to read another novel by him, in English translation: unseenI want to note that American novelist Rachel Kushner wrote an amazing and insightful (and inciteful) introduction to the recently published version of We Want Everything so don’t skip the intro. .

I also just finished the delightful mystery — The Witch Elm.  I heard the author, Tana French in a CBC Radio interview.  She is American and spends half the year in Dublin. The interview showed her to be a witty and thoughtful person and this New Yorker profile of her shows how she gets it “right” with detectives and police matters. I decided to get the book as an E-book from the library– and I couldn’t put it down.  The Witch Elm is about three 30- something year old cousins who live in upper middle class Dublin.  The book is narrated by one cousin, a young man who admits to having had an easy go of it, a good education, a comfortable love life and a great job. witchBut a break-in at his flat puts an end to the “charmed” part of his life — and events quickly connect him to some very unsavoury events and worse characters.  I couldn’t put the book down. I read it compulsively in supermarket lineups and on the bus.  The mystery part is second only to excellent and believable portrayals of the cousins and the extended families, as well as contemporary culture in the heart of the economic miracle of the “Irish Tiger”.  I highly recommend it.

If you haven’t watched it yet, you should see the feature length documentary American Factory.  It’s on Netflix.  GM pulls out of its former windshield and parts factory — leaving hundreds of workers out of jobs.  In comes a China-based company to save the factory with 200 Chinese workers and managers recruited from head office. factorySeveral hundred US workers drift back to work, only to face the culture clash, and the expectations of a new corporation.  Both the Americans and the Chinese show their racism and inability to accept one another.  The best American workers are given a free trip to China to get a taste of the company’s actual practices and its indoctrination scheme.  An attempt to unionize the factory is unsettling and unwanted as far as  the Chinese managers are concerned as well as others  on the factory floor.  The film seems a bit long, but it is the one film about real workers facing the reality of factory work today —  that I’ve seen in years.  It’s fascinating.  Here’s the trailer: https://www.youtube.com/watch?v=m36QeKOJ2Fc

If you want to see a delightful Swedish series, watch Bonus Family. bonus-family4Here in Canada we call it a “blended family” but the ups and downs of life in this family, and the larger extended family are both funny and poignant.  Somehow the Swedes are able to put together a surprisingly good series which is neither maudlin nor pedantic– and with no “teachable moments”.  Here’s a trailer: https://www.youtube.com/watch?v=GuLcbyo7hsE  

This and That…

NDP-letterNDP Mistake, in today’s published in The Coast — a letter:  here’s what I wrote:

“In last week’s City article “Pushing behind the glass ceilings of BIPOC political representation,”writer Julia-Simone Rutgers raises the good point: in all four Metro ridings, there has only every been a “smattering” of racialised candidates, and none ran for the major parties in Monday’s federal election.  But one recent incident was left out.

Rana Zaman emigrated from Pakistan when she was a child.  A community activist who supports many worthwhile causes, Zaman won the federal NDP nomination in Dartmouth Cole Harbour.  However, after her nomination the national headquarters of the NDP in Ottawa told her she had to resign.  Her “crime” was she tweeted in favour of Palestinians’ human rights and condemned Israel for killing thousands of Palestinians in Israel’s recent deadly attacks on Gaza.  Though she apologized publicly, it was not good enough for the NDP.

What happened to Rana Zaman has been the subject of much negative commentary and has left some NDP supporters with a bad taste in their mouths.  The treatment Zaman received must be examined and criticized and never repeated.”

Your friendly scribe, hand-bling injured but typing with bandage and bling.

Crown Attorneys on Illegal Strike Fight for All Nova Scotians

By Judy and Larry Haiven  first published today in NSAdvocate.org

KJIPUKTUK (Halifax) – One hundred Crown attorneys are on strike and are picketing at the Nova Scotia legislature. We have seen this before. In 1998, denied even the right to join a union, the prosecutors went on an illegal strike. Their nervy challenge won them right to arbitration, which prevented strikes for over twenty years.

In 2016, in return for Crowns agreeing to a modest three per cent wage increase over four years, the government agreed to continue arbitration for thirty years

But now the government has ripped up the arbitration agreement and unilaterally replaced that with a bogus “right to strike,” which declares Crowns an “essential service,” and renders any work stoppage ineffective.crown2

The government is now seeking an injunction which would declare current picketing illegal and make any defiance by prosecutors a contempt of court. Then fines and even jail terms could follow. We hope that the Crowns continue to engage in civil disobedience, defy any injunction and challenge the government’s grim tactics.

The irony of the government using the brute force of the law on professionals who enforce the law cannot be lost on anyone.

crown3This is all part of the provincial Liberal government’s cynical and malevolent strategy to deal with labour in general, a strategy they have been employing since the day they assumed office. That strategy is illegal and arguably immoral. But it is temporarily effective. And it revolves around the adage “Justice delayed is justice denied.”

As in all jurisdictions in Canada, Nova Scotia’s government has a dilemma when it comes to workers on the public payroll.

The Supreme Court of Canada has ruled that for workers the right to strike is a fundamental freedom protected under the Charter. Governments can remove the right to strike but only if they replace it with a reasonable alternative dispute resolution process which approaches what could be achieved in free collective bargaining. That alternative is arbitration.

Given the Charter, here’s the dilemma: The government hates both options. They don’t want strikes. And they don’t want arbitration. They want the ability to dictate the terms and conditions of employment, full stop.crown4

And here’s how Nova Scotia’s government is trying to solve that dilemma: They have made it impossible for public sector workers to go on strike effectively. Unions must provide “essential services” at a rate so high that striking is meaningless. That is not a reasonable substitute for the right to strike.

The government’s solution will very likely not withstand a Charter challenge. As we have seen in several provinces so far, including a teacher’s dispute in British Columbia, the eventual court ruling will cost the government and taxpayers more than it was hoping to save by outlawing strikes. But here’s the rub: By the time the court challenges wend their way up the system, years will pass and a different government will have to sort out the mess

Why should we be concerned with a small group of 100 lawyers whose salary starts at $65,000 a year and who are the agents of a legal system that is often so brutal to the lives of the poor, the indigenous, and other marginalized people?

Because if the government can act so high handedly to them, if it can act with impunity toward a relatively privileged group, then it can do it to everyone else.

It’s good to see some group drawing a line in the sand.Crown

Halifax woman firefighter loses her discrimination case — let’s see what’s really going on

 

Last week a NS Human Rights Commission Board of Inquiry decided that former firefighter Kathy Symington did not suffer discrimination while working at the Halifax Fire Service.  HRM had fought Symington for years about the discrimination she encountered, while she was a Halifax firefighter. kathy-2

Symington started her career at the Halifax Fire Service in 1997, one of a handful of  women. As a full time firefighter, she was also a member of Local 268 of the International Association of Firefighters (IAFF).

Symington’s case needs to be seen in light of the case of former firefighter Liane Tessier.  That case was resolved in Dec. 2017 — 12 years after it began. Tessier had to take the Commission to the NS Supreme Court, which ordered the Human Rights Commission to re-consider her case.

Tessier and the Fire Service settled the case in advance of a public Board of Inquiry. Tessier not only demanded and received a public apology from the Fire Service, she also received a public apology from the Human Rights Commission for its original denial and delay of her case.liane-chief

left:  Fire Chief Stuebing, and Liane Tessier

Tessier forced the Fire Service and Halifax Regional Municipality to agree to numerous changes inside the Fire Service to promote women’s equality and eliminate sex discrimination.

However, by far the most important victory won in the Tessier case was the Fire Service’s and HRM’s admission that there was systemic gender discrimination in the Fire Service.

Systemic means the discrimination runs through the whole system. Given this admission, why was the systemic discrimination never addressed in Symington’s human rights case? Why was systemic discrimination — a pattern of behaviour, policies or practices in the Fire Service which created serious disadvantage for women–. NOT also applied to the Symington case?

In 2002, Symington launched her first human rights complaint at the NS Human Rights Commission against the Halifax Fire Service and the union.  kathy-3She said they discriminated against her on the grounds of her sex.  Throughout her time in the Fire Service, she says she faced taunting, bullying, harassment, retaliation and limits on her career because she was a woman in a “man’s job.” She was verbally and physically attacked on the job.  Among the incidents she described were these:

  • In 2002, her vehicle was vandalized three times.  Management knew the culprit (another firefighter) and refused to take any action
  • A high ranking member of the Fire Service sexually harassed her.
  • She did not get paid for 8 weeks when she was off sick due to an “oversight.”
  • She worried about how safe she was on the job because of these and other incidents.

The Human Rights Commission dismissed all of these accusations at the administrative stage and did not refer her first complaint to a Board of Inquiry.

Ten years later, after Tessier had forced the Commission to re-consider her case, Symington filed another complaint. It was only after Equity Watch held a demonstration in April 2018 in front of the Commission’s office and a media conference in September to demand a public Board of Inquiry, that the Commission finally agreed to it.liane-judy-kathySept. 2018 Media Conference, at NS Legislature: Left: Kathy Symington, centre: Liane Tessier, right: Judy Haiven

At the Board of Inquiry into the second complaint, Symington’s case hinged on disability discrimination.  Years before, Symington had suffered a serious injury in a car crash and, after surgery and sick leave, required accommodation by her employer.  In 2012, a functional ability test revealed she could no longer work as a firefighter.  However HRM took more than three years to accommodate her with a job she could do either within the Fire Service or in HRM.

HRM’s failures in accommodating female firefighter Symington are in stark contrast to HRM’s accommodation of the ex-police officer Chris Mosher.  Over several years,  Mosher had been charged with sexual assault, administering a “noxious thing” to a woman, impaired driving and more than 9 counts of breaching conditions.  Halifax Police finally fired him in 2017, but within a year, on apppeal of the firing, a settlement was reached with the police union and HRM. In addition to a cash payout, HRM found him a new job either in the city’s Parks and Recreation Dept., or in the Transportation and Public Works Dept.

But somehow for Symington – who broke no laws – HRM took its own sweet time to find her an alternative position.  By that time, her condition had deteriorated and she could not do that job.  She claimed the delay in accommodating her was due in part to retaliation because of her first complaint to the Commission; she also gave evidence that gender was a factor.kathyKathy Symington

The real issue is this: here we have a career firefighter, a woman who spent nearly 20 years in faithful service to the Halifax Fire Service.  Because she spoke out, because she is a woman, she faced taunts, ridicule and harassment. The Human Rights Commission dismissed her initial complaint in 2006.

Now too, her second complaint has been dismissed.

The sorry history of discrimination in HRM did not begin yesterday and will not stop tomorrow.  In 2013, Black Firefighters in Halifax won their Human Rights complaint of racial discrimination. In May 2018, black HRM workers in Municipal Operations Programs (MOPS) picketed City Hall to demand action on a two-year-old confidential report that found anti-Black racism. That same month, mechanic YZ won his complaint of racial discrimination in Metro Transit and was awarded over $600,000 in damages the following year.

Amid all the forms of discrimination in HRM, discrimination against women may be the most intractable, due to the paucity of women in most “business units”.  According to an HRM report, in 2017-18, 92.9% of Halifax firefighters were men; women accounted for only 7%.

Looking at the bigger picture, in 2017-18 nearly 71% of all employees in HRM were men, and only 29% were women.  In 2013-14, men were 70.6% of the HRM workforce and women were 29.3%.  So HRM is going backward.

In fact the Tessier case shows that for a woman to complain about a male-dominated workplace, such as the Fire Service, the woman has to be willing to fight for more than a dozen years, has to have an airtight complaint, witnesses, and certainly not criticize her superiors.  Short of this, women are simply not believed. They are considered troublemakers and out of line.

Can we dare to expect fairness and an end to discrimination for women in non-traditional jobs in HRM or, for that matter, anywhere?  Somehow I doubt it.

 

 

 

 

Thanksgiving – a day off with no pay

KJIPUKTUK (Halifax) – In Nova Scotia, Thanksgiving is a retail closing day.  That means large supermarkets, big drug stores and many stores in malls have to be closed.

But that doesn’t mean retail staff get paid! No – it’s not a paid holiday, even though you can’t work as the store must be closed.

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If there is a silver lining it’s that if your boss wants you to work on Thanksgiving – perhaps stocking shelves — and the store or business is closed, you have the right to refuse to work that day—if you tell the boss 7 days ahead of the Thanksgiving.

However if the business is allowed to be open and this includes small grocery stores, gas bars, hotels, tourism venues, newspapers, theatres, buses and trains, laundromats,  used clothing stores, and confectionery stores—you cannot refuse to work, even though your family is having a big dinner or celebration.

If you are among the nearly 30% of Nova Scotians who is unionized, you most likely get the day off with pay.  Thank your union if you get a paid holiday.

 

Judy Haiven is on the steering committee of Equity Watch.  See their Facebook page or contact Judy at equitywatchns@gmail.com.