Judge rejects excessive force bid, convicts Iqaluit man on 12 charges

Justice Sue Cooper rejected a bid by an Iqaluit man to have a variety of charges against him dropped, after she found that there is not enough evidence to support an allegation of excessive force by police. (FILE PHOTO)

(Updated April 20, 1:15 p.m.)

An Iqaluit man charged with assaulting an RCMP member and threatening other police officers lost an application at the Nunavut Court of Justice in Iqaluit April 17 to have those charges stayed.

Defence lawyer Tamara Fairchild filed the application on behalf of her client, Arnaitok Nuvaqiq, alleging police assaulted him at the Iqaluit RCMP detachment in August 2013.

She also alleged that RCMP were negligent when they destroyed video footage of the assault.

Arnaitok’s charges, Fairchild argued, should therefore be stayed.

A stay of proceedings means a charge is frozen, with no further legal process. The Crown may revive the charge within one year if new evidence comes to light. But most of the time it means a charge is effectively dropped.

But in her decision, read in court April 17, Justice Sue Cooper found insufficient evidence that police assaulted Nuvaqiq after they arrested him in Iqaluit on Aug. 26, 2013.

And Cooper found that police followed an internal policy that says surveillance video of detachment cells be kept for seven days and then taped over.

“There is nothing to suggest that there is bad faith on the part of the police in intentionally destroying the video tape… I find that the video tape was not destroyed due to unacceptable negligence,” Cooper said in her decision.

Instead, Cooper found Nuvaqiq guilty on 12 of the 15 charges he faced stemming from the 2013 incident, which include one conviction of assault, four convictions of threatening officers and a number of breaches of probation and court orders.

Cooper said that even if the video had been preserved, it is only in the clearest of cases alleging excessive force by police that charges would be stayed.

And the evidence that police assaulted Nuvaqiq, including testimony of the two witnesses called by the defence — Nuvaqiq and a neighbour — is too inconsistent to be relied upon, Cooper said.

Crown prosecutor Zachary Horricks told Nunatsiaq News that the video of the RCMP holding cell was irrelevant to the charges Nuvaqiq faced — which related to incidents at an Iqaluit residence upon Nuvaqiq’s arrest.

“There is no evidence whatsoever that the police did any assaultive behaviour… so if the police didn’t do anything wrong, why would they preserve the video?” Horricks said.

But Fairchild said the RCMP’s policy of retaining video footage of cells for seven days, a policy that has since been changed, does not provide a realistic time-frame to allow the defence to request video footage.

“Mr. Nuvaqiq’s case illustrates the importance of preserving cell videos for a reasonable period of time,” Fairchild told Nunatsiaq News.

“I’ve never heard of a retention period that short anywhere.”

Cooper said that since this case began, the Nunavut RCMP have changed their policy, retaining cell surveillance videos for longer than seven days before taping over it.

The Nunavut RCMP told Nunatsiaq News April 20 that recent technological improvements now allow police to keep cell block videos for 60 days.

Cooper said that Fairchild requested the video footage three weeks after Nuvaqiq’s arrest.

It takes time to become aware of potentially relevant video footage, though, and it takes time for charges to work their way through the court system, Fairchild said.

“So even three weeks, that was doing it very quickly. There was no delay on our part.”

After the RCMP changed their policy, lawyers have had enough time to obtain videos in some cases, Fairchild said.

“Video evidence is the best evidence. Everyone has an interest in knowing the truth,” Fairchild said.

Nuvaqiq, wearing a hooded sweatshirt and holding a ball cap in his lap, sat beside his lawyer as Cooper read her decision.

Nuvaqiq is scheduled to appear in court again on May 27, when lawyers will make sentencing submissions to Cooper.