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Deleted police video robs Saskatoon man of fair trial in daughter’s death: Supreme Court


Saskatoon Police obtained crucial evidence, but the police failed to disclose it, and then destroyed it before trial — so the charges were stayed

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The disastrous prosecution of Kaylon Dakota Stonne for allegedly killing his baby daughter by falling asleep in her crib ended in abject failure Thursday with the briefest judicial remarks.

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The appeal by the Saskatchewan Crown “is dismissed,” the Supreme Court ruled Thursday, as usual giving no reason.

But the reason is clear. Saskatoon Police obtained crucial evidence, so crucial that a judge thought it might have led a jury to acquit. It could also have been used to challenge the credibility of officers on the witness stand. But the police failed to disclose it to Stonne, and then destroyed it before trial.

It is a pattern that has played out in some of Canada’s worst and most notorious wrongful convictions, including Steven Truscott, Romeo Phillion, and Donald Marshall.

What makes this case so rare, as the Saskatchewan Court of Appeal found earlier this year, is that a trial judge recognized this failure of disclosure caused such “severe and irreparable” prejudice to Stonne’s defence that he properly spiked the trial before it even began.

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So now the Crown has lost its final appeal, Stonne is not guilty, and the charges are stayed.

It began one morning in January 2016 when police arrived to a chaotic scene at an apartment block in Saskatoon. Paramedics were rushing the child to hospital. She had died during the night.

It was the impression of officers that all the adults they interviewed at the scene had been drinking. They found Stonne asleep in a different apartment from where the baby had been sleeping, but they soon formed a theory. Stonne is a large man, 6’4” according to court records. Police had statements from people on scene that Stonne passed out in the crib and was later “pulled or lifted” off of the baby’s body, and moved to another apartment before emergency services were called.

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In effect, the police theory was that he had entered the crib in the night, which killed the baby, but then someone moved him to a bed.

Stonne learned his daughter was dead that morning as he sat in a patrol car. The trial judge described his “shock and disbelief” at this news. Police also told him he was detained as part of the investigation. At the police station, he spoke to a lawyer. An officer described him as “hammered.”

Stonne acknowledged drinking the night before, but denied being severely intoxicated when he was arrested, just temporarily groggy from being woken up by the police.

It was clear his sobriety was a key issue. There was also evidence about a large amount of urine in the baby’s crib, thought by police to be more than could have come from a baby, but there was no physical evidence about whether Stonne’s pants were wet when he was arrested, and no one made any written observation about whether he smelled of urine. The pants had not been seized.

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Video of his time in custody would have offered greater insight, whether by validating the officers’ impression of Stonne’s drunkenness or challenging it, or even offering an image of his pants, but an unfortunate revelation was on its way.

Stonne was interviewed later that night at 10 p.m., and released at 1:30 a.m. He was arrested four months later, in May 2016, charged with manslaughter by criminal negligence, and criminal negligence causing death. He chose to be tried by a jury.

In the end, it was a prosecutor who discovered the calamity. Police once had video of him from 10 a.m. to 10 p.m. that day in police custody, in booking, fully 12 hours of video evidence, relevant to whether he was drunk or urine-soaked, but it was gone. It was automatically erased after 400 days and overwritten in the police storage system.

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“I was not aware that the detention video was not disclosed prior to the preliminary hearing,” the prosecutor wrote to defence counsel. “I did not intend to use that evidence during the preliminary hearing and failed to check the ‘flash drive’ to confirm whether it was in a file folder on the drive.”

Whether this came about by hapless accident or malice hardly mattered to the man facing prison for the death of his child. The trial judge found the deletion was not intentional, and not a matter of bad faith. All the same, the result was that “strongly relevant evidence was destroyed due to the unacceptable negligence of the police,” as the Saskatchewan Court of Appeal ruled earlier this year.

By also declining to interfere with the trial judge’s decision to stay the charges, the Supreme Court Thursday brought the case to its conclusion.

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Legally, it was a tricky decision. Judges are not usually supposed to stay criminal proceedings at the pre-trial stage, because there is only partial evidence. The whole point of trials is to bring them to a proper conclusion. On the other hand, that imperative is balanced against the risk of wrongful conviction and the Charter right of an accused person to make full answer and defence in a fair trial. This was the rare case in which no judicial solution could put Humpty back together again.

Madam Justice Georgina Jackson of the Saskatchewan Court of Appeal looked back to the main precedent on disclosure of evidence, a 1991 case known as Stinchcombe about a lawyer charged with breach of trust and fraud.

“It is concerning that 30 years later, it is still possible to see cases such as this one where evidence gathered by the police on the day of the alleged offence is not disclosed and then is destroyed before being viewed by the defence,” she wrote on behalf of a three-judge panel.

The Saskatoon Police policy on retaining video has since been changed. Now it is overwritten after 1,000 days, not 400.

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