Nunavut Crown asks for time to prepare reply in Naglingniq case

Michael Naglingniq’s trial will resume Sept. 18 at the Nunavut Court of Justice in Iqaluit. (PHOTO BY THOMAS ROHNER)

Justice Earl Johnson has adjourned the trial of Michael Naglingniq at the Nunavut Court of Justice in Iqaluit Aug. 5 until Sept. 18.

The move came after a “thorough” argument from defence lawyer Tamara Fairchild that her client’s basic rights were violated by both the Nunavut RCMP and the Crown prosecution office.

Prosecutor Barry McLaren asked for the adjournment to “structure a proper reply” to Fairchild’s two-hour argument.

“I’m not going to stand here and say that the practice [of Nunavut RCMP and prosecutors] here was pristine. There are some things that were not followed… that ought to have been,” McLaren said to Johnson.

Fairchild had told Johnson that “unacceptable negligence” and a “systemic disregard for the importance of preserving evidence” in this case “goes to the heart of trial fairness.”

“There was no satisfactory explanation that the Crown offered… as to why evidence was not preserved,” Fairchild said.

The evidence in question: footage from the Iqaluit RCMP detachment on the night of June 17, 2013.

And police and public prosecutors in Canada have a constitutional obligation to disclose any evidence that may be relevant to either the Crown or the defence.

Police arrested Naglingniq, 25, on June 17, 2013 for breaching probation, the court heard on Aug. 4 — the first day of Naglingniq’s judge-alone trial.

But police laid two more charges against Naglingniq before they released him later that night: two counts of uttering death threats to the two arresting officers.

During the first two days of trial, Johnson heard conflicting testimony from three RCMP members and Naglingniq.

The arresting officers — Cst. Garrett Moore and Cst. James Mearns — told Johnson that because of Naglingiq’s highly intoxicated and agitated state, they pepper-sprayed him en route to the detachment.

At the detachment, Naglingniq continued his aggressive behaviour, so the officers put him in a restraint chair, the court heard.

But during the accused’s testimony, Naglingniq was “adamant,” Fairchild said, that police pepper-sprayed Naglingniq while he was strapped into the restraint chair.

Fairchild urged Johnson to find her client’s testimony credible, even though he was highly intoxicated and upset at the time.

And, Fairchild said, the testimony of the arresting officers and of the acting commander, Cst. Alex Benoit, “raises tremendous questions about reliability.”

That’s because none of the RCMP members recorded thorough notes about the events that night, as their job requires them to do, and the constables couldn’t agree on the sequence of events of the night in question, Fairchild said.

Benoit, who was called after Naglingniq was arrested as the on-duty RCMP supervisor and as the acting commander, not only failed to make any notes, Fairchild continued, but also failed to ensure policies about the use of the restraint chair were followed.

For example, Fairchild said according to the prison guard log book, police left Naglingniq in the restraint chair for two hours and 41 minutes.

“The policy very clearly states that if after two hours the person is not removed from the chair, medical attention should be sought,” the defence lawyer said.

“It appears there was absolutely no thought put to that.”

Even if police pepper-sprayed Naglingniq while en route to the detachment, her client still could have been suffering the effects when he was put in the chair, Fairchild said.

“To put someone who is actively under the effects of pepper spray in a restraint chair, it’s a form of torture.”

And, she continued, as the acting commander, Benoit had a responsibility to preserve the video footage taken in the RCMP detachment showing the use of the restraint chair.

“It makes absolute perfect sense that the RCMP would have a policy that, whenever a person is placed in one of those chairs, the should be preserved,” the lawyer said, referring to the RCMP policy.

Johnson seemed to agree with Fairchild: “[Benoit] didn’t do anything to indicate a red flag that anything unusual had happened that night,” the judge said.

“[Benoit] had a duty that night as an RCMP member, a supervisor, and the acting commander to follow all policies of the restraint chair, and he didn’t do that,” Fairchild told Johnson.

Failing to take notes, ensure proper procedure and red-flag the surveillance footage adds up to a “flagrant disregard for the obligation to preserve evidence,” she added.

“And that’s something that takes this case and… puts it squarely in the context of unacceptable negligence on the part of the Crown and the police to preserve evidence.”

That’s why, under the Charter of Rights, the charges against her client should be stayed by the court, Fairchild argued.

Specifically, Fairchild said her client’s right not to be subjected to “cruel and unusual punishment” was violated when he was pepper-sprayed in the restraint chair, and his right to a fair trial was violated when police and prosecutors failed to preserve the video evidence.

In requesting an adjournment, prosecutor Barry McLaren requested a transcript of Fairchild’s argument for review purposes.

“There are some very strong allegations that have been made, and I would like that opportunity,” McLaren told Johnson.

Because of scheduling conflicts, Johnson scheduled McLaren’s arguments for Sept. 18 — shortly before the judge retires from the Nunavut bench.

Naglingniq, who shaved his shoulder-length hair to a short buzz-cut between the first and second day of trial, appeared bored during the afternoon court proceedings, yawning out loud twice while his lawyer argued on his behalf.