R. v. S.A. [Provincial Court of Alberta, Calgary, April 2019]

A member of the Calgary Police Service responded to a single motor vehicle crash where a vehicle had crashed into the center median in the City’s northeast due to icy conditions. The police arrived and spoke with S.A. about the crash. S.A. asked if he could sit in the police vehicle to stay warm, as it was -30’C. The police officer obliged and put him in the back of the police vehicle. While S.A. was seated there, the police ran his name through a computer database that showed he was on bail conditions in relation to his arrest on drug trafficking charges from a few months prior. The police proceeded to arrest S.A. for a (non-existent) breach of his bail condition, notwithstanding that S.A. explained that the particular bail condition in question had been deleted a few weeks prior. En route to arrest processing, S.A. became angry and began banging on the barrier between the back seat and the front where the officer was driving. The officer pulled his vehicle over to the side of the road and an audio recording captured a physical altercation between the two including when S.A. asked the officer: “Do you want to die”. Half a dozen other police officers were dispatched to the scene to assist. Eventually, S.A. was charged with assaulting a peace officer with a weapon, uttering threats, assaulting a peace officer causing bodily harm and breaching his bail conditions. Ms. Fagan scheduled a trial in Provincial Court. In her review of disclosure Ms. Fagan noticed that while some of the video footage was provided, there were critical parts missing that she believed would depict the police assaulting her client. Ms. Fagan filed a Charter notice alleging a violation of the right of her client to be free from cruel and unusual punishment and his right to the security of his person. She also alleged a violation of her client’s right to make full answer and defence, because she believed that the entirety of the video footage was not disclosed.

BOTTOM LINE: The videos which Ms. Fagan believed depicted the assault of her client were never disclosed and all a stay of proceedings entered on all charges (i.e. the prosecution against S.A. was terminated).

Patrick Fagan

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