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Riot Investigation: The Legal Traps of Rushing to Justice – Q&A

Many people are unhappy that several months have passed without a rioter being charged. The VPD recognizes these frustrations and we are assuring the public that we are gathering evidence against rioters as fast as possible. However, doing it right is more important than doing it fast. The VPD and our partners in the Crown counsel office prosecute offenders in court every day. We are the experts on what legal traps we must avoid and we have reached agreement on the best way to prosecute the hundreds of rioters who damaged our city and private property to ensure that the criminal charges result in convictions and serious sentences. Here are some relevant legal principles:

Double Jeopardy

The VPD has referred to double jeopardy as one of the factors contributing to the delay in laying charges against the rioters.

In general, double jeopardy is a term used to refer to a long and well established legal principle in Canada, which restricts our judicial system from charging a person with a crime based on facts for which that person has been previously convicted or acquitted. Put another way: you can’t be convicted on the same evidence twice.  It is recognized as a right which every person charged with an offence has under s.11(h) of the Charter of Rights and Freedoms.

For example, if someone committed robbery and we thought they only stole $5 but discovered after they were convicted that they actually stole $5000, we couldn’t go back and charge them with robbery again. We have “one shot” on the known set of facts, and that’s it. If additional facts come to light after conviction, the person cannot be tried again for the same offence based on those additional facts.  The lesson here is not to charge before you know for certain the full extent of the robbery.

Q. Okay, but how does the principle of double jeopardy delay charging someone who’s caught on video and admits to looting?

A. If we charge a person with taking part in a riot based on evidence that he/she looted London Drugs, the sentence upon conviction would reflect a single incident of looting (like the $5 versus the $5000).

If through the course of our continuing investigation we determine that the same person also looted Sears, helped torch a police car and smashed windows at Blenz, we can’t go forward after the initial conviction and ask to have a second charge of taking part in a riot laid against the offender. That would be double jeopardy.

We need to be sure that we have identified all of the person’s riotous behaviour before we lay a charge of taking part in a riot, so that he or she will be convicted of all the looting and damage they engaged in throughout the entire riot. This will result in a sentence that truly reflects the actions of the offender and brings justice to the greatest number of victims.

Q. Okay, I get it. You need to gather evidence all of the crimes the person committed in order to present the full picture to the court of how the person participated in the riot, but why does that take so long?

A. The biggest hurdle we are dealing with is the unprecedented quantity of video evidence that is in a multitude of different video formats. These are mainly short video clips captured on a variety of cell phones and other recoding devices. They total 1,600 hours in aggregate length.

We are taking this huge volume of digital evidence to a special lab at the University of Indianapolis, the world’s leader in processing digital evidence. There, investigators from around the world will take the thousands of pieces of video and process them all into a single format stitched together in such a way that the video material can be electronically searched for each riot participant. By doing so, we will locate each case of vandalism and looting that the person committed throughout the entire riot, and that’s what we’ll present to the court.

We have been allocated time at this lab and will be there in late September. We wish that we could have got into the lab sooner but it’s in huge demand from all over the world. In fact, the British police are planning to attend the lab after us to process their riot video. We plan to be back from the lab by mid-October with the video evidence processed so that our investigators can click on suspects and quickly search the full scope the of video for additional offences.

Q. I see, so if you lay a charge of taking part in a riot now based on limited evidence, you can’t charge again after you get all the video evidence processed and it’s searched for all of the actions of each rioter?

A. Yes, that’s it. We do it right the first time, and there’s no double jeopardy concerns. Rush through before we know the extent of everyone’s offending and we’re bound to miss serious criminal acts that we can’t proceed with later under the charge of taking part in a riot because that would be double jeopardy. Just think of the many victims that would not get justice if we failed to identify all of the rioters that burned their cars or looted their shops.

Abuse of Process and Disclosure

Q.  What if, instead of laying a charge of taking part in a riot, you lay different charges at a later date related to a person’s behaviour at the riot, like mischief or break and enter?
A.  If the police and the Crown were to attempt to prosecute the same offender at different times on different Indictments or Informations (the charging documents) for that person’s involvement in the riot, or for other criminal misconduct arising out of the same incident (being the riot), the legal principle of “abuse of process” could potentially be argued. This also would be inefficient, ineffective, expensive, and would not serve justice.

Q. Ok, but why can’t you just add evidence to the charge package as the investigation goes on?

A. The VPD must provide “full disclosure” and also demonstrate reasonableness and fairness in preparing charge packages for the courts.  A Supreme Court of Canada decision (the Stinchcombe case) requires the police to provide Crown counsel with all relevant evidence and material – for and against the accused – that it has in its possession in order that Crown can make a fully informed charged approval decision and also disclose the full extent of the prosecution’s case to the accused and his/her counsel as soon as the charge is laid.  This includes all documents or other material that may be useful for the defence, and would include video or photo images.  Failure to properly disclose such evidence can result in unnecessary delays in trials and potentially the judge imposing remedies for the accused, including a stay of proceedings (charges are dropped).  

Regarding the specific evidentiary requirements of the riot investigation, it is important that the investigative team gathers all of the relevant evidence, before they submit reports to Crown counsel.  At this time, evidence is being discovered implicating already identified people with additional potential charges.  Rushing to charge these people with lesser offences would start the disclosure process before the evidence has been analyzed.  Further, if the individual pleads guilty based upon incomplete evidence, and thus incomplete disclosure, there is no opportunity to add new evidence to the charge already before the court as the case, for the purposes of sentencing, would be over.

Statute of Limitations

Q. You are waiting a long time to get the video processed and it will be at least four months since the date of the riot before a charge is laid. Are you concerned about a statute of limitations?

A. There is no statute of limitations rule that applies to an active police investigation where an indictable offence (like rioting) is involved. However, when a charge is formally laid, the police and prosecution must proceed in a timely manner. If an unreasonable delay occurs (for example, because of an inability to meet the full disclosure rules), the accused and his/her lawyer could argue that the delay has been unreasonable. A Supreme Court decision (the Askov case) sets out  whether an accused’s right under the Canadian Charter of Rights and Freedoms, Section 11(b) “to be tried within a reasonable time” has been infringed. In this decision, the Supreme Court agreed with a lower court decision to stay (drop) a charge because of the unreasonable delay. Since then, literally thousands of cases have been stayed because of findings of an unreasonable delay.

Therefore, rushing and laying a charge before the investigation is complete would “start the clock” and if the prosecution isn’t prepared to proceed at the time set for trial, then potentially the charges could be stayed by the judge. Again, that is why we are waiting for all of the evidence to be analyzed by the video lab before laying a formal charge. 

While it is said that justice delayed is justice denied, a rush to justice can have even worse results.  The VPD is committed to conducting an excellent investigation that respects the rule of law and provides the best evidence possible to the Crown and courts.