Charges tossed after video ‘lost’

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This article was published 12/02/2022 (1346 days ago), so information in it may no longer be current.

Charges against a semi-truck driver accused of drunk driving have been tossed out of court after a judge ruled “misrepresentations” by police and a failure by the Crown to provide key evidence to the defence before it was “lost” critically undermined his right to a fair trial.

“A judicial stay is an extraordinary remedy reserved for the clearest of cases,” provincial court Judge Shauna Hewitt-Michta said in a recently released written decision. “In the unusual circumstances of this case… the lost evidence not only prejudices the accused’s right to a fair trial, but also deprives the court of its ability to seek the truth and appropriately adjudicate the case on its merits.

“I am unable to identify any remedy short of a stay of proceedings that sufficiently redresses the prejudice occasioned by the loss of evidence arising from unsatisfactorily explained, unacceptable negligence on the part of the Crown.”

According to court records, Partap Waraich was arrested May 2, 2019, after a tow truck driver called RCMP to report a semi-truck and trailer being driven erratically on the Trans-Canada Highway near Virden.

When questioned on the roadside, Waraich admitted to having one drink at a stop two hours earlier. Taken to the Virden RCMP detachment office, Waraich provided a breath sample of 0.27, more than triple the legal limit for driving.

An officer who collected Waraich’s breath sample testified the driver had a flushed face, red, bloodshot eyes and used a wall to steady himself before sitting in a chair.

A week later, Waraich’s lawyer sent a disclosure request to the Crown for a copy of closed circuit video recordings at the detachment coinciding with Waraich’s arrest.

Court heard the detachment’s video system was in working order and would have captured Waraich entering the detachment and many of his movements inside. Video recordings, court heard, were routinely recorded over every 60 to 90 days.

The Crown misplaced the disclosure request and did not include any video evidence in disclosure packages sent to the defence May 28, and July 4, 2019.

Between June 7 and July 4, 2019, the Crown emailed the RCMP three times about the video evidence, with one of the arresting officers, Const. Blakely (first name was not provided in the written decision), replying in a July 12 fax letter: “there are no audio/video from the patrol vehicle nor police station.”

In a separate June 2020 email request for video disclosure from Waraich’s lawyer, Blakely replied: “No, we don’t have CCTV.”

At trial, Blakely testified the detachment did have working closed circuit video equipment at the time of Waraich’s arrest, but claimed she did not recall receiving any disclosure requests or requests to preserve video evidence from the Crown or defence.

Confronted with the email and fax letters on cross examination, Blakely “admitted she authored both communications,” Hewitt-Michta said.

The video evidence would have had significant value for both the Crown and defence in establishing Waraich’s state of sobriety, Hewitt-Michta said.

“Defence counsel diligently pursued preservation and disclosure of the detachment video,” the judge said.

“These actions clearly communicated to the Crown and police a perception the video evidence was valuable evidence from the defence perspective… and triggered at minimum a clear obligation to preserve the video evidence.”

The Crown failed to take reasonable steps to preserve the video evidence and offered no acceptable explanation, Hewitt-Michta said.

“The failure here is not attributable to momentary human frailty or error, but rather a sequence of errors by Crown and police, including misinformation from the investigating officer to counsel, at a time when it is unclear whether the video evidence still existed.”

Police officers provided contradictory testimony as to Waraich’s sobriety, relied on notes written long after Waraich was arrested and at times had only a “weak” recall of events, Hewitt-Michta said.

“The lost (video) evidence would not likely have cured all the reliability deficits in the Crown’s case, but it would have assisted the court in addressing contradictions in the evidence and better assessing the reliability and credibility of important witnesses.”

dean.pritchard@freepress.mb.ca