Nunavut court: lawyer alleges police abuse, wants charges tossed

The trial of Michael Naglingniq, 25, is set to wrap up Aug. 6 at the Nunavut Court of Justice in Iqaluit. (FILE PHOTO)

After an Iqaluit man suffered “cruel and unusual punishment” at the hands of Iqaluit RCMP, the Nunavut Crown’s office allowed video evidence of the alleged act of police brutality to be destroyed, defence lawyer Tamara Fairchild said in court documents.

That’s the position that Fairchild, who represents Iqaluit resident Michael Naglingniq, 25, will take in a judge-alone trial that got underway at the Nunavut Court of Justice in Iqaluit Aug. 4.

Police arrested Naglingniq on two counts of uttering death threats and one count of breaching a probation order on June 17, 2013, according to court documents.

But in two applications made to the court under the Charter of Rights, Fairchild argued the court should stay those charges because her client’s basic rights and freedoms had been violated.

Specifically, the destruction of the surveillance video footage taken at the Iqaluit RCMP detachment on June 17, 2013, means Naglingniq’s right to a fair trial has been violated, Fairchild argues.

Before Justice Earl Johnson rules on those Charter applications, however, the trial, scheduled to run until Aug. 6, will go ahead.

“The rationale for that, your honour, is that the court would not be in a position to have the context to make a ruling with respect to the value of the videotaped evidence until the entire case is in,” Fairchild explained to Johnson Aug. 4.

Court documents show that what police say happened following Naglingniq’s arrest on June 17, 2013, differs significantly from what Fairchild alleges in court documents.

After arresting Naglingniq, police say they pepper-sprayed him in the face while Naglingniq sat in the back of an RCMP truck, court documents say.

Once at the local detachment, police placed Naglingniq in a restraint chair for more than two hours, according to prison guard log books, before releasing him later that same night.

But in Fairchild’s Charter application, Naglingniq alleges police pepper-sprayed him while he was restrained in the chair, “completely defenceless,” Fairchild says.

On July 18, 2013, Fairchild says she asked the Crown’s office for video surveillance footage from the night Naglingniq was arrested, “including… the booking of Mr. Naglingniq, the events that led to him being placed in the restraint chair, and his time in the restraint chair and in cells.”

“The Crown had a duty to preserve and disclose this highly relevant evidence,” Fairchild wrote in the application.

On Sept. 20, 2013 the Crown’s office replied to Fairchild that, as per Iqaluit RCMP policy, the video footage was destroyed 10 days to 14 days after the night in question.

But this violates the Crown’s duty to preserve any evidence that may be relevant at trial, as defined under the Canadian Charter, Fairchild writes.

One of the two death threats police filed against her client allegedly occurred while in view of the detachment’s surveillance camera, Fairchild argues, as does placing Naglingniq in the restraint chair.

“In the circumstances of this case, where the credibility of [Naglingniq] will be tested against three police officers, the destruction of the videotape is so prejudicial to the right to make a full answer and defence, that it impairs the right to a fair trial,” Fairchild wrote in her Charter application.

The Iqaluit RCMP have since installed new technology that allows surveillance video footage to be preserved for up to 60 days, a court document says.

But the Nunavut Crown’s office, in a document filed with the court in May 2014, said they anticipate the trial will show the video footage is not relevant to any of the charges laid against Naglingniq on June 17, 2013.

And because police assert Naglingniq was pepper-sprayed en route to the detachment, Iqaluit RCMP had no reason to keep the video footage instead of taping over it, as per policy.

“RCMP members were unaware the video would be requested. They had an honest belief there was no relevance in the video,” prosecutor Zachary Horricks wrote in the May 2014 document.

Fairchild points out in her Charter application, though, that the Crown prepared a sentencing position sheet seven days after Naglingniq’s arrest.

At that point, Fairchild says, the Crown should have realized the video footage could be relevant at trial.

But even if Johnson rules the video footage is relevant to Naglingiq’s defence, prosecutor Horricks argues, the loss of that footage is “not of such major importance to the defence case that a fair trial cannot be had without it.”

Prosecutor Barry McLaren called the Crown’s first witness to the stand in the late-morning of Aug. 4, an RCMP officer who arrested Naglingniq on the night in question.

McLaren told Johnson he expects to call two other RCMP officers involved in the incident, before calling a civilian prison guard to testify on Aug. 5.

The trial is scheduled to run until Aug.6.