In 1991, Stinchcombe vs the Queen was before the Supreme Court of Canada; a case where a fraudster, who happened to be a lawyer, was the central figure of the case. The Court ruled in favour of Stinchcombe, who was arguing that a witness statement that was in the possession of the Crown, but never used at trial, hampered his defence. It was argued that the Crown held it back due to it being positive to the accused.
The Court favourably ruled that any accused did in fact have the right to see all “relevant” information gathered by the Crown; saying that “fruits of an investigation are not the property of the Crown …but the property of the public to be used to ensure that justice is done”. They said all information needed to be placed before the accused, and further stipulated that the investigational information had to be provided prior to a plea or prior to going to trial.
The Stinchcombe decision has been hailed as groundbreaking by many in the legal community, and a landmark decision for Canadian jurisprudence. The result is that now all police agencies have to be prepared to present full “disclosure” of a Crown’s case prior to any plea or trial.
It is difficult to argue the logic of the Court, that an accused be given the right to all the investigative information, the right to full and frank disclosure. And it is unlikely that the issue of the need to disclose will be contested to the Supreme Court level in the near future; so it is here to stay.
However, despite its apparent common sense rationale, Stinchcombe and its application has become the Moby Dick to the police’s Captain Ahab, an alarming thorn in the side of those concerned with investigational flow and quick action.
It is subverting trials; causing massive delays in cases going before the courts; using up untold numbers of officers in disclosure preparation; and costing extraordinary amounts of money. Cases are being dismissed because of police failures to disclose “all” the relevant information, and arrests are being delayed because the police haven’t got all the disclosure information fully available. Charges are being withheld as Crown refuses to move forward without an all encompassing police report on the evidence.
So what happened in the application of Stinchcombe, this seemingly altruistic ruling? What is going on? Why has the turning over of evidence to the courts become such a costly and lengthy nightmare? It is not discussed in polite police circles, or observable to the general public, who are ultimately the ones paying for excessive trial delays and grossly inflated costs. It is a dull subject when it comes to police reporting and therefore unlikely to grab many headlines but “disclosure” is a fundamental building block in the policing world, and it needs to be at the very least brought to the forefront of police managerial discussions.
The problem stems from the single fact that investigational files are getting larger. Processing these much larger files has become a central cog that will need to be addressed in each and every investigation, big or small, serious charge or minor charge. Technology and the current police approach to files, has turned what was once simple to now being complicated.
What used to take two people, now takes ten. Every investigation is grossly expanding in terms of documentation, and the larger multi-year investigations have almost become immobilized by the sheer level of the “disclosure” package. The often referred to investigational triangle of managing, now includes “File co-ordinator” as one of the central three roles. It is the result of the modern way of criminal and civil investigation information processing; more specifically electronic formatting, and the numerous investigative tools and formats that often are tied to technology, which are now being adopted and utilized by the police, sometimes without sufficient study and cost/benefit review.
This is of course contrary to what one would believe in that technology should by its very definition speed up the process. It has actually had the opposite effect in policing.
As an example, lets take a simple witness statement.
Now in the “older” days prior to the mid 1990’s for argument sake, a witness statement would be hand-written by the police officer as the witness dictated what they saw or heard. He/she would then make a photocopy and everyone gets a copy. Then along came the typewriter. No longer would the Crown take a statement that wasn’t typed. So the police, began then taking the statement in writing, then provided it to an administrative clerk, who then needed to type the statement, and then the copies would be turned over to the Crown etc. This of course is a built in time delay, and added more additional manpower, as the typing pools began gathering up reams of written statements that needed to be typed.
And then along came audio and video. Now officers routinely audio and video record all witness statements, whether big or small. The audio or video or both is then submitted to transcription. After being transcribed. (It is estimated that one hour of audio or video takes 8 hours to transcribe) then all audio and video statements are returned to the officer and reviewed for accuracy. They review the statement in real time and compare the audio to the transcribed statement. Any alterations are once again submitted back to the transcribers.
Of course as most people who use audio on a regular basis can attest, when someone is recording a statement it will run extensively longer as it is effortless, compared to writing it by hand, so the transcript is often filled with “uhmms” or “ahh’s”, pregnant pauses or long drawn out conversations with no relevance to the actual matter at hand. All now duly transcribed.
So now the one step process has become a four step process, and the 3 or 4 hour process of a hand written statement could now involve 27 or 30 hours. Some larger cases could involve numerous statements, even into the hundreds. Thousands of person hours are the immediate result, and the costs begin to bloom accordingly.
And of course the video, or audio simple statement and the transcriptions, and any alterations are all added to the now digital file.
In speaking with a Port Moody officer he described having a case, where a lone gunman attended a residence in Port Moody, with the intent of killing the girlfriend or father, ran away, and later that day ended up being tracked down after having committed a sexual assault in Coquitlam.
Now in the bad old days, that may have led to a long hand written Crown Counsel report, maybe 100 pages or so. After 48 hours, Port Moody using the electronic system and falling the modern guidelines to a tee, submitted a 5,000 page electronic document to Crown. Maybe not a fair comparison, but “War and Peace” by Leo Tolstoy, rated as one of the longest books ever is 1440 pages. Clearly, a day of police investigation had a much longer and greater story to tell than that of the Bolkonsky family and Russia in the 1800’s.
In the Willy Pickton case, according to various police sources, there was 17 persons fully assigned to the disclosure group; and that at one point they were disclosing up to 45,000 electronic pages per month, which needed over 6 Crown Counsel to review. Hundreds of investigators were used, but the case boiled down to a single crime location, and about 20 key witnesses, a few key pieces of physical evidence, and a key statement made in the presence of an undercover operator.
However, the investigative team, seized 600,000 exhibits, 200,000 DNA samples, and they sifted through 383,000 cubic yards of soil. (it should be noted that no evidence was found below ground). The vast majority of the information turned over in this case would not be used in court, some not deemed to be “relevant” to the case, and therefore of no real probative value. The problem was that hundreds of investigators generated hundreds of notes and reports, they seized and processed, everything regardless of investigative potential. Everything was forwarded to allow for “full disclosure” and to eliminate the risk of defence calling foul. There is very little likelihood the defence even read all of the material, as this mountain of paper would have been a logistical nightmare.
A preliminary inquiry for Pickton was held in 2003, and then four years later it finally made it to trial in 2007, with the major delay being the full “disclosure” of the reams and reams of investigational material. In December of 2007 he was found guilty of six counts of second degree murder, and the remaining 20 charges were stayed.
The cost of this investigation is estimated at $70 million. Roughly $12 million per conviction. By normal homicide investigative standards, that is an exorbitant amount. The specific cost of just conducting the disclosure and the efforts of Crown to deal with the massive information has never been articulated.
Of course the police were in a very difficult situation with a large pig farm being the scene of the crime, and the political pressure was mounting in relation to the missing women, so investigators spared no expense; brought in more investigators; seized more exhibits than the Lab was able to initially process. Maybe it was impossible under the circumstances to use a smaller investigational team, that they be more scrutinizing in terms of exhibits, but it is a question which never got asked. It is a good example of the exponential growth that these files generate when monies and resources are not an issue and spending oversight is put to the side.
These investigational files grow for two reasons; the first one being the “piling on” of investigators, regardless of the actual operational need. This is basic math. The more investigators, the more information is generated.
Fifteen years ago, as an example, when a body was found and called into the police as being suspicious, two officers from the Serious Crime Section (of which I was once part) would attend the scene. To assist them if needed they would draw on the local uniform officers that had answered the original call.
Today, the uniform officers in Surrey call IST (a plainclothes team attached to the Watch, usually consisting of 4 or 5 officers), they in turn would call the Serious Crime Section in Surrey (who insist on being the ones to make the judgement of whether it is a homicide or not) who will also send 3 or 4 officers. The Serious Crime Section then would call IHIT who are actually responsible for the investigation (Integrated Homicide Investigative Team) who would send their usual team of eight officers. All those attending would have to supply notes. So the two persons of the old style homicide team, just on the initial call, has now grown to 10-15 persons. As a result, the current first step in any of the homicide investigations has become a “briefing”, with the initial few hours of the crucial 48 hours, being largely taken up by having to sort through the initial investigative maze of the parties attending.
The second reason is the electronic formatting, which is now the tool that allows for larger and larger files. Video files, audio files, electronic statements, photos can all become part of the file. Technology in the policing world is now often equated with sophistication, the more technology employed, the greater their believed investigational worth. Size matters in policing, and there is a misguided belief that the bigger the file the more skilled the lead investigators. (if you don’t believe this, check any press conference held by the police on a file, and see if they don’t talk about how many investigators have been assigned to the file)
So as these enlarged investigational groups accumulate all this information, but as Stinchcombe stated, supposedly that they only need to provide the “relevant” information.
The police by their very makeup are conservative organizations, not known for thinking or stepping outside the box. So when they are left with the original review of what is relevant, and what is not, in a criminal case, especially a serious criminal case, they err on the side of caution. Rather than deem something irrelevant, and run the risk of having to defend their decision, it is much easier so the thinking goes, to just give them everything. Can’t make a mistake if you don’t make a decision would appear to be the logic.
So is the Canadian system doomed, is their no answer to this Canadian system of ridiculous amounts of time to get a case into the court system? Has Stinchcombe bound the police to the point of no return? One of the biggest misconceptions out there is at policing has become more complicated, more advanced. Not true to a large extent, but then again we can not return to the times of pen and paper.
Technology can be good and lead to innovative investigational strategies, or be used for the filtering and dissemination of investigations, sometimes leading to the quicker identification of suspects. The Boston Marathon bombing would be one of the best most recent examples.
But disclosing everything is resulting in ridiculous sized files, warrants of stupendous length, overblown lengthy statements and reports. Another Pickton case could effectively bankrupt a police agency like the Vancouver Police Department if it happened to fall in their jurisdiction.
I think part of the solution if not the entire solution is to minimize the investigative “teams”. There needs to be greater control of the nucleus of investigators. The smaller the team, the less the resulting fallout from the team. Stop the sometimes ridiculous staffing levels of those files that are deemed to be highly political. Get seasoned investigators who can make decisions on cases on the go; less referencing to “expert” groups. “Interview teams” and “warrant teams” for example should not be used on files as a matter of course. Original investigation teams should look at getting smaller rather than larger. And before anyone says that they are better at solving files now, the statistics say otherwise, solvency rates are going down over the last several years.
Police estimate that over 1100 investigators were involved in the Surrey 6 case. Over 400 statements were taken. To demonstrate that they had expended all police effort, millions of dollars were spent, which resulted in four people being charged with the six murders and the conspiracies to commit those murders. The case by the way is still before the courts with the last suspect, Jamie Bacon; a decade, after it all started.
And of course one of the latest defence motions is the lengthy delay in getting to trial.
Now I am not saying that 5 or 6 people could have done the Surrey 6 file, but 1100 investigators was ridiculous by any measurement. I can assure you that 400 statements did not end up in court.
The police need to spend their technological dollars on hardware and software that further the investigation, and they need to employ file management tools that smooth out the process and are intuitive, not just on programs that compile and accumulate information. The current system being used by IHIT is called E&R (Evidence and Reports) a file management system developed by Ottawa in 1998 for the Swissair plane crash off the coast of Nova Scotia. Really, this is the most advanced case management tool? Maybe they should be exploring greater technologies in the fields of artificial intelligence, advanced imaging, tools, and machine learning that could speed up the process, not slow it down.
Finally the police need to take a stance on relevancy, that is accepted by the Crown. These files need to be skinned down into their bare necessities in terms of meeting the goal of full disclosure, so that a trial can begin in months, not years.
The current Supreme Court has now dictated that these trials need to be sped up, and have put up time restrictions for cases to get to Court. The very same court that gave us Stinchcombe is now saying that the process has to be less complicated, less onerous, and it needs to speed up. Hopefully this now imposed deadline will force all involved to take a hard look at how files are being managed, processed and readied for Court. They have to, or more people are going to be walking out of the Courts, free because of stifling bureaucracy. It is not the fault of investigators who are under daily pressure trying to cope with this ridiculous system, it is the fault of our modernized police managers who ferociously stick their head in the sand, refusing to rock the proverbial boat. These delays are not going to be cured by more judges, more Crown, or more Sheriffs; not if the investigational file can not make it through and into the court system in a more timely and cost effective manner. Twenty-six years after Stinchcombe, maybe they have had enough time to begin to address the problem.