Sask. RCMP criticized for ‘routine destruction’ of evidence

[the_professor]

Sask. RCMP criticized for ‘routine destruction’ of evidence

“I can only conclude that the police do not understand their obligations to preserve and disclose evidence," Regina provincial court Judge Clifford Toth said.

Sunday, Aug. 29, 2010

REGINA — A Regina judge had stern words for the RCMP this month when he ordered a stay of proceedings against a man accused of drunk driving.

“I can only conclude that the police do not understand their obligations to preserve and disclose evidence. In these circumstances, any remedy short of a stay of proceedings would be inappropriate,” Regina provincial court Judge Clifford Toth remarked in a written decision dated Aug. 18.

Rhory Banford was charged with impaired driving after an RCMP officer in Lumsden, Sask., pulled him over on June 27, 2009. While he was at the detachment for a breath test, his movements were monitored and recorded by a series of video surveillance cameras.

Less than three weeks later, Mr. Banford’s defence lawyer made a routine request for disclosure of the evidence against him — including the detachment’s surveillance footage.

But the footage was never turned over.

The Crown prosecutor who handled the case later ascertained the videos had been kept by the Lumsden detachment for 55 days after Mr. Banford’s arrest, “and then purged in keeping with detachment policy,” Mr. Toth noted.

When the case reached the trial stage, Mr. Banford’s lawyer argued the destruction of that piece of evidence had severely compromised his client’s charter right to make a full answer and defence to the charge.

In his decision, Mr. Toth said he did not need to determine that issue, however.

“I am prepared to stay the charge on the basis that the police conduct in question represents a systemic disregard for the Crown’s disclosure obligations and that the integrity of the justice system would be prejudiced by allowing this matter to continue,” he wrote.

“For more than 10 years, this court has repeatedly commented on the video retention periods of detachments around the province; our comments appear to have gone unheeded.”

The judge cited multiple previous cases in which the value of police surveillance footage, and the need to retain and disclose it, had been discussed.

“Police detachments, including the Lumsden detachment, appear to be pursuing a policy of routine destruction of highly probative evidence,” he wrote.

Lumsden is about 30 kilometres northwest of Regina.

Police aren’t destroying evidence in order to avoid disclosing it to the defence — but their motives don’t matter, the judge noted.

“Recycling” surveillance footage may have been necessary in the days when police had to store it on bulky VHS tapes, but that no longer applies in the digital age of expandable hard drives, DVDs and memory sticks, he wrote.

“The police are carrying out a policy that is insensitive to their disclosure obligations and to the needs of the justice system. This policy has gone unexplained, and it is all the more inexplicable given the advances in technology to which I have referred.”

RCMP spokesman Sgt. Paul Dawson said the destruction of surveillance footage from detachments is “more of a technological issue” than a matter of policy for the national force.

“Right now with our current digital recording equipment, the maximum capability is to retain this media for up to 60 days. My understanding is it automatically overrides it or tapes over it,” he said.

“In this specific case, the issue is really one of disclosure in that we didn’t meet our disclosure requirements. We had notice [of the disclosure request] before those 55 days, but we didn’t fulfil that request.”

Rather than lengthening the retention period in light of decisions such as this one, detachments have been notified that the surveillance footage “must form part of the disclosure package [provided to the Crown], and we’re able to do that well in advance of those 60 days,” Mr. Dawson said.

“So it’s more of an emphasis to make sure that is done prior to that [destruction of the footage] occurring. A lot of times, we provide disclosure right after we’ve concluded our investigation.”

Regina Leader-Post



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