Jails lose crime investigation evidence

On Tuesday, I attended Dartmouth Provincial Court for the preliminary inquiry into the murder of Nadia Gonzalez. Samanda Ritch and Calvin Sparks are charged with first degree murder.

But before the inquiry could start, there were two issues. The first was that Sparks’ lawyer, James Giacomantonio, had to remove himself from the case due to an ethical conflict (which he specified had nothing to do with Sparks). The second, more disturbing issue, was that Sparks’ disclosure (the evidence to be used against him by the crown) had been lost.

Sparks was transferred from North East Nova Scotia Correctional Facility (Pictou) to Central Nova Scotia Correctional Facility (Burnside) on August 13 for a medical appointment, and returned to Pictou the next day. At some point in these movements, his disclosure disappeared.

Without a lawyer, and without having had the chance to read his disclosure, the defence moved for an adjournment. Despite Sparks not having counsel, and having no idea about the evidence to be used against him, the crown opposed the adjournment, arguing that Sparks could represent himself. The only problem they raised was that it would be inappropriate for him to cross-examine certain witnesses, and they proposed that a temporary lawyer could be brought in for that questioning.

Judge Daniel MacRury ordered the crown to subpoena the superintendents of both jails to find out what happened to the disclosure files, which include sensitive information on a computer drive.

Last year, MacRury stayed theft charges against a couple because of delays getting them to court due to staffing shortages in the sheriffs office.

On Wednesday, Captain Jason Smith from Pictou and Captain Brad Ross from Burnside appeared in court to answer questions about the lost disclosure.

What followed was Kafkaesque.

According to a former correctional officer who spoke to the Examiner last month, there are regular problems with prisoners receiving disclosure at Burnside. In that article I wrote:

Allegations are also made that prisoners at Burnside face difficulties in properly accessing legal counsel. According to staff, they witness problems with receiving disclosure (the evidence to be used at trial). Staff recount that judges have ordered the facility to make sure prisoners are receiving documents, but as no policy changes were made, the problems persist.

“Inmates are very lucky if they manage to get adequate legal representation while on remand,” says the former correctional officer.

In questioning, the supervisors represented the lost disclosure as unprecedented, with Captain Brad Ross telling the judge that he “can’t recall losing disclosure before.”

Personal effects are transported in clear bags. Prisoners do not have custody of their property during transport. The property is supposed to be logged in and out in admitting at each jail.

According to Captain Smith, the security risk management captain at North East, the “wrong button” was hit when Sparks returned to North East on August 14, resulting in his personal property being logged in the system. However, when they reviewed the tape, the bag only contained books, not his clothing or disclosure.

Despite the disclosure going missing since August 14, Smith claimed that it was only on September 20, when Giacomantonio contacted the facility, that they learned there was a problem.

Smith also informed the court that a policy change in September meant that all requests to access disclosure must be submitted in writing. He denied receiving any requests from Sparks.

However, in questioning, Giacomantonio produced a complaint form from Sparks in which Sparks wrote that this was his fifth request to see his disclosure, and his fourth complaint form. “I have not received any of them back,” he complained. Somehow, none of the forms made it into the system.

Sparks also alleged that he was advised by the deputy superintendent when he inquired about his disclosure that a security officer would come to see him, which never happened. Sparks made repeated attempts to speak to staff about his disclosure.

Under questioning from the judge, Smith admitted that when he found out about the lost disclosure, he didn’t contact the crown or the RCMP, and that there is no policy around lost disclosure requiring officials at the jail to take any active steps to recover the files or to notify anyone. Asked why the jail didn’t look into the issue of the missing disclosure, he responded that he assumed that Sparks just “didn’t want to see it.”

Smith also described the process for accessing electronic files in disclosure. Before they can have access to their files, prisoners must sit down with a security officer, and the files are reviewed to make sure there is no contraband such as pornography or movies in the files. After that, prisoners are supposed to have “liberal access” to their files. However, it turns out that in Burnside there are only “three or four” laptops available for viewing files, and prisoners must also get access to a room which depends on the availability of staff.

Giacomantonio pointed out that since the disclosure contains thousands of pages, dozens of hours of video, and hundreds of pictures, he questioned the effectiveness of this initial viewing as a security measure. Smith estimated this initial viewing takes “about an hour,” although Captain Ross from Burnside estimated it takes place “over a couple of days.” “Do you think you’re going to catch any contraband?” Giacomantonio wondered.

Prisoners must sign a waiver to view the files with a security officer before they can access them, which also raises further questions about confidentiality and privacy. While the supervisors claimed that staff only view the electronic files to check the contents, this process gives officers access to privileged files containing crucial information about prosecutions and defence. Given the obvious security lapses in the facilities, this seems like it should be a concern.

Giacomantonio also argued that despite the jail claiming it only became aware of the lost file on September 20, he called the facility on September 5 and personally drove up to Pictou to discuss the file. A new copy of the disclosure was issued to Sparks on September 24, and he hasn’t been able to view those files either.

While Captain Brad Ross at Burnside provided much of the same information about policies and processes at Burnside, we also learned that there was no way to view any video tape at Burnside to see if Sparks had the files when he was admitted, because due to renovations at the jail, they can’t go back and see any video from that time. To me, this raises questions about how much video in the facility has been affected by this construction, and whether the facility cannot access tape before September in any other areas of the jail.

Ross produced a form indicating that Sparks had signed in his property into the jail on August 13. Ross claimed it was usual that prisoners actually see their property from a transfer before they sign the form. However, Sparks claimed that in all of his transports, he has never seen any of his stuff. He is just told that it has been put away.

Ross admitted that it is possible the disclosure never made it to Burnside. Certainly, the files never left Burnside. Officers only began looking for the files two days ago when Ross returned to work after time off.

Giacomantonio asked Ross if there was any difference in security policy as applied to lawyers and non-lawyers. Giacomantonio pointed out that he came to the facility with the hard drive (on August 9) and handed it to his client in front of officers. He wondered if there would really be suspicions of contraband being in the files brought by a lawyer.

“Now that you’ve seen how this process inhibits access, would you change the policy?” he asked.

Ross responded that “security and safety are paramount. Stuff contained in the disclosure could inhibit that. For a day or two delay, it’s worth it to maintain security.”

This argument about “safety and security” is consistently invoked by facilities to justify everything from lockdowns to the use of solitary confinement.

There are two significant issues here. One is the right of the defendant to access disclosure, a fundamental right which goes to his ability to have a fair trial. The other is that the sensitive information has been missing for over a month, and no one has any idea where it is. The documents include crime scene photos, names of witnesses, video of statements to the police, and other evidence. The privacy of every person named in those files has been compromised.

I will note here that Samanda Ritch’s rights as a defendant are also impacted by this lost disclosure. Because she is a co-accused, her trial cannot move forward while there are delays for Sparks. She was never addressed or acknowledged during the hearing on Tuesday.

Beyond the immediate issue of what happened to this evidence, I think there’s an issue of broader importance here. As Tim reported on with the recent habeas applications by prisoners at Burnside, when prisoners make allegations against the institution, they are always at a disadvantage. Despite repeated evidence of failure to disclose reports, coverups in cases of deaths in custody, failure to follow procedures and file paperwork correctly, and a consistent lack of transparency, each new incident that is revealed is treated as surprising and as a singular mistake.

Prisoners allege that they receive privileged mail that has been opened. Defence lawyers have repeatedly complained that they are not given access to their clients when they call provincial jails. Prisoners who attempt to challenge the conditions of confinement in the courts find those conditions conveniently lifted so their applications become moot, then re-instated once the threat of legal action is past.

What is surprising is not that disclosure was lost, but that despite a glaring lack of accountability, jails will continue to receive benefit of the doubt.

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