http://www.cbc.ca/canada/calgary/story/2009/12/02/calgary-rape-charges-stayed-trial-delay.html
For my purposes here, I write not so much about the "striking" largely unexplained 38 month delay which led the court to conclude that the Crown had failed to prosecute the case in a reasonable time; Justice McIntyre has done a thorough job of that already.
http://www.albertacourts.ab.ca/jdb/2003-/qb/criminal/2009/2009abqb0674.cor1.pdf
I write to express disgust for the apparent lack of ability to read on the part of the Calgary Police Service and also to raise the question of why the Police Act bars professional discipline of a police officer that goes undiscovered for more than 12 months.
So, point #1 - Is the CPS as an organization metaphorically illiterate? I ask this because the official comment by the CPS Staff Sergeant responsible for the sex crimes unit is:
"We have dedicated some resources to identifying what did take place within our court decision...[We're] working with our Crown prosecutors as well to make sure
that whatever did transpire does not occur again."
Seriously? You need to dedicate some resources to try to figure out what happened? Why not just rely on the immense public resources that have already been devoted and memorialized in McIntyre J.'s detailed written reasons. If you need me to come by during morning parade and read it aloud to you, I will:
"On October 30, 2008 the Crown directed Detective Cunningham to get the Emergency Chart and Patient Care Records."
"In a letter dated November 10, 2008, defence counsel requested disclosure of the missing documentation."
"On November 19, 2008, defence counsel reiterated in an e-mail his concerns with the lack of disclosure and gave notice of his intention to apply to the Court for an adjournment and costs unless the disclosure obligations of the Crown were met."
"On December 8, 2008, the Crown asked Detective Cunningham to get the missing Patient Care Records and Emergency Chart."
"On May 22, 2009, the Crown made a third request to Detective Cunningham to get the Patient Care Records and the Emergency Chart. The Crown stated this was a priority."
"On June 3, 2009, the Crown e-mailed Detective Cunningham asking, for the fourth time, for the Emergency Chart and the Patient Care Records."
"On June 4, 2009, Detective Cunningham advised Crown counsel in an e-mail that production of records before trial was not likely. She stated that in the past police have waited 8 months or more for those records and that she would have to obtain the consent [of the complainant]."
"On the same day Detective Cunningham...obtained two consents, one for the Patient Care Records and one for the Emergency Chart. The patient care records were obtained within 3 days."
"On June 15, 2009, the trial was to begin. Crown counsel advised that the trial could not go ahead..."
"On June 16, 2009, Detective Cunningham provided the...consent to the Rockyview General Hospital for the Emergency Chart. On June 19, 2009...the records were ready to be picked up."
Now, in case all of the above leaves you in some sort of confusion, let me spell it out...Detective Cunningham was completely derelict in her Constitutional, statutory and common law duties to obtain and provide relevant evidence for disclosure. Detective Cunningham blew this prosecution. If she had any explanation, the time to give it was during the stay application...not during some pathetic after the fact internal review for CPS to try to figure out what might possibly have gone wrong here.
Detective Cunningham did absolutely nothing to secure vital evidence and as a result the trial could not proceed. When she finally got around to requesting the Patient Care Records...more than 7 months after she was first specifically tasked to do so by the Crown...it took all of 3 days to get them. Inexplicably, she waited until the day after the trial was adjourned to even ask for the Emergency Chart...another 12 days after getting the consent for same...and that item was also available for pick up within 3 days.
One can only conclude that 3 days appears to be the turnaround time for the Calgary Health personnel and that if CPS has waited 8 months to get such disclosure in the past it may well be because THEY SIMPLY FORGOT TO ASK!!!!
But don't take my word for it...again, the Court has already noted:
"...The PCR records were in existence for almost 5 years, but were only disclosed on June 11, 2009, a few days before the set date of trial. Similarly, the lab report was in existence since October 20, 2004, and disclosed on June 1, 2009."
"The missing reports were not only important for the defence but were essential for the Crown's case."
"...It is difficult to understand why Detective Cunningham acted lackadaisically, especially after the Crown had made four requests and considering that Detective Cunningham was under the impression that it could take eight months to get some of the documents."
The failure of the CPS to simply acknowledge their complete and utter responsibility in this matter is perhaps largely based on fear of civil liability. A fear that is not unreasonable in the circumstances, in my view.
Nobody is perfect and I truly hope that Detective Cunningham can find forgiveness for her mistakes in this matter...but for the CPS to act as though there is some difficulty discerning what went wrong here is offensive to the justice system and to the victim in this case.
Point #2 really is one that I raise for consideration...not one that arises directly on the facts of this case, but because this case demonstrates how it could truly be possible for police misconduct to not be discovered by a victim of that misconduct until numerous years after it occurs.
In order to sue for money (a personal remedy) for police wrongdoing, you have two years from the date that you knew or ought reasonably to have known that you had a valid claim. If the officer covers up the wrongdoing by fraud, your deadline could extend up to 10 years after the fact.
But, in order for the public to have recourse against a wrongdoing police officer (i.e. professional discipline under the Police Act) the complaint must be filed within 12 months of the date of the wrongdoing...and too bad if you couldn't possibly have known that it happened within that time period.
In my view, if any additional resources need to be allocated as a result of this case, it is toward the costs of re-drafting the Police Act and the Police Service Regulation so that officers who commit serious wrong can not avoid accountability for it if they can just keep it hidden for a calendar year.
If we truly want to avoid this situation from occurring again, then we must take steps to ensure that actual people who cause such situations are held to account.
Michael Bates
Calgary Criminal Defence Lawyer
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