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Lessons from Waraich on Police Camera Footage as Video Evidence - Anna Evans-Boudreau

Introduction

George Floyd’s death in 2020 inspired increased calls for police cameras as a form of police accountability.[1] In the same year, Canada committed to spending $238.5 million on RCMP body cameras.[2] Outfitting police forces with camera technology has been touted as an effective way to address police misconduct, but there are reasons to be wary of over-relying on these tools to achieve their purported purpose. Police cameras can capture powerful video evidence, but what happens when police misconduct is so persistent that even the availability of that evidence is interfered with?


This situation is illustrated in a recent Manitoba case, R v Waraich (“Waraich”).[3]Waraich is important for two reasons. First, it demonstrates limits of relying on police cameras as a tool to achieve police accountability. Not only was the relevant video evidence lost, but the investigating officer (the Crown’s key witness) materially misrepresented this loss. Second, the drastic decision to order a stay of proceedings in this case signals an encouraging intolerance for police participating in this behaviour. Hopefully this severe remedy will act as a deterrent for police interfering with video evidence produced by their cameras.


Important to note is that the police camera debate typically revolves around the value of body-worn cameras and dashcams on police cars as a means to encourage police accountability. In Waraich, the relevant video evidence was CCTV footage from an RCMP detachment. While these types of police cameras are typically used for security purposes, rather than as an evidence-gathering tool,[4]Waraich still adds value to the debate. If we cannot reliably make use of existing police camera technology, then we should be hesitant about over-relying on the expected benefits that would come from investing in more body-worn cameras and dashcams. Ultimately, we should not treat police camera technology as a silver bullet solution.


Summary of Waraich

In Waraich, the accused was arrested by RCMP officers, Constables Blakey and Sadler, and charged with alcohol-related driving offences.[5] The accused was brought to an RCMP detachment that had a CCTV system, which would have recorded the accused and his movements.[6] Defence counsel made several requests to the Crown for copies of these video recordings, which the Crown failed to respond to.[7] Finally, in an email exchange, Constable Blakey responded to defense counsel’s requests for the footage by stating that the RCMP detachment does not have CCTV.[8] In court, Constable Blakey contradicted her statement, stating that the station does indeed have CCTV, but that she didn’t remember seeing any requests regarding the video evidence.[9] In the end, during cross-examination, Constable Blakey admitted to authoring both the email response and an additional letter to the Crown stating that there is no video at the police detachment.[10]


Relevant evidence must be preserved and disclosed by the Crown.[11] The footage was clearly relevant as it would have demonstrated the accused’s ability to walk, which is pertinent to an impaired driving charge. Defense counsel also made several requests for the footage, further flagging that this evidence was valuable. Ultimately, the Crown’s failure to preserve and disclose the relevant evidence amounted to unacceptable negligence.[12] This was then compounded by Constable Blakey’s denial of CCTV in the RCMP detachment. Without any further explanation, Constable Blakey’s actions were seen as an intention to mislead defense counsel, resulting in an abuse of process.[13] Finally, the lost evidence prejudiced the accused because without the video (1) Constable Blakey’s contradictory evidence about the accused’s ability to walk could not be clarified and (2) it could not be established whether Constable Blakey was actually present when making the observations she swore she made.[14] In the end, a stay of proceedings under section 24(1) of the Charter was ordered.[15]


How Waraich Contributes to the Police Camera Debate

Waraich illustrates one limit of police cameras as a tool for police accountability, and more specifically, for video evidence. The police’s total control over police cameras in this case highlights the difficulty that comes with trying to monitor the police with a tool controlled by police. In other words, “the fact that the “locus of control” over these tools (what to record and when) often remains in the hands of police, [which] lead[s] to inconsistent and unreliable use.”[16] This issue is then compounded by those like Constable Blakey who deliberately make evidence produced by those tools unavailable.


Proponents of police cameras may argue that this is an isolated case, that the benefits of adopting police cameras far outweigh the few ‘bad apples’ that may interfere with them. First, some encouraging research has found that the use of police cameras, such as body-worn cameras and dashcams, helps improve perceptions of police accountability and police legitimacy among the public.[17] Second, proponents of police cameras believe that their use correlates with lower rates of police use-of-force. For example, one 2018 study on police-citizen encounters in Las Vegas found that officers wearing body-worn cameras received fewer use-of-force complaints when compared to officers that did not wear them.[18] The same study also found that complaint allegations were more efficiently resolved when this form of video evidence was available.[19] This points to a third perceived benefit of police cameras: some research has found that police camera footage “can render prosecutions more efficient by providing incontrovertible offence-related evidence, bypassing the need for lengthy police examinations in the course of a trial on some issues.”[20]


However, other research on police cameras have produced results that contradict the above outcomes. While the appearance of a body camera may improve public perception during interaction, failure to release this video footage has further contributed to public unease surrounding police transparency.[21] Some studies have found that even with a camera present, police officers may still partake in police misconduct.[22] For example, a study from 2019 found that body cameras worn by police officers in Washington, DC did not contribute to a reduction in use of force or public complaints.[23] Further, several issues have been cited with regards to using police cameras as video evidence that suggests it actually complicates prosecutions. One of these issues is that it can be a challenge to obtain copies of video from police in disclosing them to defence counsel.[24] This last issue goes to the heart of what led to a stay of proceedings under section 24(1) in Waraich.

While the traditional remedy for abuse of process was a stay of proceedings, section 24(1) of the Charter expanded the remedies available to judges.[25] Today, a stay of proceedings may be warranted when an abuse of process either renders a trial unfair, or when the abuse of process would residually undermine the integrity of the justice system.[26] The decision for a stay of proceedings in Waraich provides reassurance that misrepresentation of police camera video evidence will not be tolerated. This serious remedy has also been used in other cases where police have tampered with police camera technology. In R v Santos (“Santos”), an RCMP officer deliberately muted a microphone on the police car’s audio/video system for 49 minutes, despite policy that mandated recording.[27] The RCMP officer’s actions in Santos also resulted in a stay of proceedings.[28]


Waraich and Santos represent cases where policies for police cameras did exist, yet the persistence of police misconduct overrode any benefits that came from having these policies and tools in place. Hopefully, the remedy of a judicial stay will prevent this abuse of process from taking place again. As stated in R v Regan, “A stay of proceedings does not merely redress a past wrong. It aims to prevent the perpetuation of a wrong that, if left alone, will continue to trouble the parties and the community as a whole, in the future.”[29]

[1] Robert Diab & Marshall Putnam, “Pathways to Police Adoption of Body and Dash Cameras in Canada: How and Why Parliament Should Intervene” (2022) 70:4 Crim LQ 433 at 434. [2] Department of Finance Canada, “Chapter 3—Building Back Better: A Plan to Conquer the COVID-19 Recession” (2020), online: Government of Canada <budget.gc.ca/fes-eea/2020/report-rapport/chap3-en.html>. [3]R v Waraich, 2021 MBPC 63. [4]R v Backe-Peters, 2012 MBPC 13. [5]Supra note 3 at para 49. [6]Ibid at para 20. [7]Ibid at paras 21-25. [8]Ibid at para 28. [9]Ibid at para 29. [10]Ibid at para 30. [11]R v Stinchcombe, [1991] 3 SCR 326 at 343-344; According to R v McNeil, 2009 SCC 3 at para 17, “relevant” means “any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.” [12]Supra note 3 at para 60. [13]Ibid at paras 55, 61. [14]Ibid at paras 65-68. [15]Ibid at para 72. [16]Supra note 1 at 437. [17] Mustafa Demir et al, “Body Worn Cameras, Procedural Justice, and Police Legitimacy: A Controlled Experimental Evaluation of Traffic Stops” (2020) 37:1 Justice Q 53. [18] Anthony A Braga et al, “The effects of body-worn cameras on police activity and police-citizen encounters: a randomized controlled trial” (2018) 108:3 J Crim L & Criminology 511 at 514. [19]Ibid at 535. [20]Supra note 1 at 436. [21] Christopher L Bush, “Public Perceptions of Delays in the Release of Police Body-Worn Camera Footage” (2020) 13:1 J Soc Change 1 at 2. [22] Nusret M Sahin & Suat Cubukcu, “In-Car Cameras and Police Accountability in Use of Force Incidents” (2022) 37:3 J Police & Crim Psychology 512 at 513. [23] David Yokum, Anita Ravishankar & Alexander Coppock, “A randomized control trial evaluating the effects of police body-worn cameras” (2019) 116:21 Proceedings National Academy Sciences 10329. [24]Supra note 1 at 451. [25]R v Caster, 2001 BCCA 633 at para 13. [26]Supra note 3 at para 62. [27]R v Santos, 2014 SKQB 5. [28]Ibid at para 162. [29]R v Regan, 2002 SCC 12 at para 54.

 

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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