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Continuity errors 

The Halifax Regional Police department has high rates of missing evidence and numerous security risks inside its drug and money vaults, casting doubt on years of criminal cases.

click image THE COAST
  • The Coast

An internal audit by Halifax Regional Police has uncovered the department's shocking habit of losing track of drugs and money seized as evidence.

Conducted last summer and released to The Coast under the Freedom of Information Act, the audit found a nearly 90 percent failure rate within the Criminal Investigation Division (CID) for evidence continuity.

Drug exhibits are often stored in unsealed Ziplock bags, with incomplete paperwork, which makes them impossible to locate. The initial audit sample found 90 percent of the exhibits in CID's drug vault couldn't be located, along with close to a quarter of the evidence exhibits that were supposed to be inside police headquarters. Over half (55 percent) of the items in the department's seized money vault also couldn't be located.

A follow-up search conducted in May dropped some of those numbers, but the results remain significant. The department still can't locate 52 percent of the sample exhibits in CID, 12 percent in HQ and 32 percent of the money vault. Two full-time employees are currently working to track those 67 exhibits down, according to police public relations manager Theresa Rath.

The department claims the high number of missing items is the result of poor file management and probably not theft, but that might not matter to defense lawyers wondering if their client received a fair defense on drug charges.

The audit was conducted a year ago, and apparently finalized in the fall of 2015. (The version received by The Coast is a "draft" not yet signed off on by chief Jean-Michel Blais.) There's evidence of other widespread problems with the drug exhibit system stretching back to at least 2007.

If a sloppy system that created gaps in exhibit continuity goes back that long, it could cause years of drug convictions to be re-examined and may have opened the door to legal action against the police, the Crown and the municipality.

The results are concerning, says Criminal Investigation Division superintendent Jim Perrin.

The audit was conducted by HRP's Office of Oversight and Risk Management. It was triggered last year after an investigation by the Serious Incident Response Team into allegations of theft from inside police headquarters by detective Gary Basso. Charges laid from that investigation were stayed by the Crown back in May.

But Perrin says most of the blame for the missing evidence should go on poor record-keeping. Exhibits got moved, and the logs weren't updated, he says. In a public response released after this story's initial publication, HRP claim they haven't had a court case affected due to the exhibits unable to be located by this audit.

"I think the public would see this as administrative errors. There's no reason to believe there's anything more nefarious than that," says Perrin

That doesn't mean the initial results were inaccurate, he clarifies.

"The system says these exhibits should be here. Well, they're not here."

click to enlarge Incomplete Evidence Continuity is one of the stand-out problems the audit found.
  • Incomplete Evidence Continuity is one of the stand-out problems the audit found.

Someone gets stopped by a cop on the street and searched. A baggie of white powder or green herbs is found on their person. They're arrested, and that evidence is seized by the officer. Ideally, it's then tagged, logged into the department's Versadex tracking system (with as many details as possible about the exhibit) and placed in temporary storage inside the drug vault in the Criminal Investigation Division building on Brunswick Street.

Drug exhibits from both HRP and the Halifax-area RCMP end up inside the CID's vault (also known as DV1). Exhibits can be moved over to permanent storage in Drug Vault 2 (DV2)—located inside police headquarters—weeks, or months later. It depends on the case, says Perrin. Inside DV2 is a separate caged-off "burn box" area specifically for items marked for destruction. Cash is kept separately, in a combination-locked money vault located in the department's Gottingen Street headquarters.

The evidence from other cases, such as homicides and sexual assaults, is stored in a different system. Perrin couldn't recall the last time that system had been audited.

But all the drugs and money first flow through DV1. The Brunswick Street lock-up is also where the drug audit found the highest levels of missing exhibits and incomplete continuity.

"Evidence continuity reports" filled out by department personnel are supposed to provide a chronological list of the who, what, when, where and why of evidence storage. In practice, the audit found the reports are often missing key details and are "rarely accurate."

The audit says "several" sections of HRP's own Drug Enforcement Policy aren't being followed by the department. Drug exhibits are stored in unsecured or opened Ziplock bags 42 percent of the time in DV1. In one case, crack cocaine was found stored in an unsealed box of Excel mints.

Notes from interviews with department personnel mention cases of exhibits that were accidentally destroyed before court cases were finished. Drug exhibits that need to be mailed out for testing "are currently left in the outgoing mail" at the front desk instead of using registered mail or delivered by a courier.

The vaults themselves, the audit notes, weren't designed for storing illegal drugs and therefore pose a health risk to officers who go inside from improper ventilation. They also display some surprising security flaws for a drug vault inside a police building.

There are no security cameras, for instance. An electronic key card is needed to access DV1 and DV2, but the contracted security firm that monitors those swipe-ins doesn't record times spent in the vaults, nor could it determine if more than one person is entering on the same key card because, again, there are no security cameras.

The audit also found the door to DV1 was on HRM's key system. That means—and this is underlined in the audit—any one of the HRM core or grand master keys used by HRM employees across the municipality can access CID's drug vault. In fact, the keys open every door in the department's Brunswick Street offices.

A combination lock is used on the walk-in money vault, but the audit determined that the combo isn't regularly changed and could still potentially be accessed by numerous past employees.

Much of the confusion around exhibit storage seems to stem from incorrect locations input by officers using Versadex. As Perrin said, the items could just be lost somewhere in the pile. But the tracking system is so overwhelmed that if any of the 10,000 exhibits in police custody last summer had been stolen from the evidence vaults, it would be difficult to tell.

"I think that anytime you put a magnifying glass on a process you're going to find errors," says Perrin. "You do an audit expecting to find things that can be improved. That's part of our ongoing process. We want to improve as an organization."

The system has had some improvements over the years. Back when Perrin was a drug investigator in 1999, every officer had their own individually assigned exhibit locker. Everything in that officer's locker stayed there from seizure until disposal, even if the investigator transferred elsewhere. Some of those exhibits are still sitting on shelves, unclaimed and not processed by Versadex.

"The Jim Perrin locker stayed there for years with no Jim Perrin," says Perrin.

The audit expressed concerns about all of these potential security threats. On November 6, 2015, narcotics detective sergeant Darrell Gaudet sent an email to several HRP members, CCing Jim Perrin, writing that the money vault is "insecure" and there was no clear record of "who is going in at what time and for what." He asked that a manual sign-in sheet for the money vault and DV2 be used, to be input monthly into a spreadsheet.

"We are all aware of the importance of continuity, but we are continually scrambling with wasted man hours to find exhibits," Gaudet wrote in the email. "The past is the past so let's move ahead with accurate records and proper accountability."

Perrin says a limited number of officers have access to DV1, and individual investigators don't have access at all to DV2 (exhibits are signed out from one of two narcotics control officers). Not that he's dismissing any of the audit's recommendations.

"We're learning as we're going, and this is about constant improvement," says Perrin. "We take this very seriously. We're going to work forward over the next several months in really dissecting the audit and putting an action plan in place to make sure we put the necessary improvements in place."

Another issue is disposal. Exhibits in the "burn box" vault were found by the audit to be disposed of with "incomplete authority" 84 percent of the time. Exhibits are often listed as destroyed when they remain on the shelf—a high-risk practice that the International Association of Property and Evidence (of which HRP is a member) stresses should be avoided.

"All efforts need to be made to remove and destroy narcotics as quickly as possible after the case has been adjudicated," the IAPE warns. "The longer the package remains on the shelf after the case has been adjudicated, the greater the likelihood of a mysterious disappearance."

Approximately 60 percent of all drug exhibits in the system lack a disposal review date, though, which has resulted in a massive backlog of items awaiting destruction. There were 1,000 exhibits stored in the "burn box" during June and July last year, and another 2,000 drug exhibits earmarked for purging beyond that. Some of those files stretch back to 2004.

The audit recommends HRP evidence custodians take over managing drug storage from the narcotics control officers who currently handle it, but to do so an additional full-time position will need to be created, and even then "it is estimated that it would take the best part of a year to clean up the present backlog."

Then there's the cash. No one seems to know how much money the police should have in their possession, or how much money is in the vaults right now. That's in violation of IAPE best practices. The control mechanisms are so inaccurate, the department can't really say how much money it's "supposed" to have when asked.

"It'd be like saying, 'How many exhibits do you have right now,'" says Perrin.

Cash that's supposed to be in HRP's possession from forfeitures couldn't be located by the audit, and money counts entered in Versadex often didn't include a denomination breakdown. The department's "two-person rule" for counting money and weighing drugs often isn't enforced. "High-risk" amounts of cash (over $100,000) are stored inside the money vault instead of being deposited into the department's interest-bearing bank account, which itself also needs to be audited.

That bank account has collected "tens of thousands of dollars" in interest built on seized currency over the years. Who owns that money and what can be done with it is a matter Perrin says the department will now have to work with HRM's Office of the Auditor General to determine.

Perrin also says the police are looking at procedural changes to the way they seized money from drug traffickers before this audit—which was basically taking any cash, whatever the amount.

"Let's seize what we need to seize, not just seize it because," says Perrin. "That's what we're trying to move forward towards, and not have money lying around."

click to enlarge “We want to improve as an organization,” says Criminal Investigation Division superintendent Jim Perrin.
  • “We want to improve as an organization,” says Criminal Investigation Division superintendent Jim Perrin.

There are three things that solve any crime: Witnesses, evidence and confessions," says Tom Martin. "The strongest and most reliable and most sought after is evidence."

Martin's a former detective, retired senior investigator with HRP and one of the city's most experienced voices on police procedure. He was unsure of the drug exhibit audit until The Coast informed him of its findings, but he wasn't very surprised.

"I was on the receiving end of this," says Martin. He remembers being accused of stealing evidence after two sergeants had mistakenly destroyed exhibits without authorization. After a one-month investigation, he says, he was cleared of any wrongdoing.

"That was in 1989."

To his recollection, there was only one other time he encountered missing evidence. Back in 2004, while investigating the murder of Kimberly McAndrew for HRP's cold case unit, a vital exhibit vanished. That said, he has a hard time believing he was the only cop who saw or knew of exhibits getting lost.

In 2007, the Integrated Drug Unit completed a management report (included in the files released to The Coast) that found similar issues to what would crop up nine years later in the drug exhibit audit: Evidence stored improperly, a "common place" use of Ziplock bags and large exhibits ("cocaine weighing more than 28 grams and a seizure of ecstasy") not stored in tamper-proof bags or with appropriate labels.

"The circumstances and practices that were observed have a higher than acceptable risk to cause damage to the integrity of exhibits and to cause embarrassment to the organization," reads the 2007 report (emphasis: HRP).

Ironically, the more recent drug exhibit audit also shed some light on issues with the department's auditing process. According to the files released to us, the audit was conducted in June and July of last year. A report on its findings by sergeants Steve Gillett and Randy Stoddard, which includes dozens of recommendations based on the audit's findings, is dated September 30. The chart showing a 90 percent failure rate of evidence continuity in DV1 was shared in an email from Stoddard to Gillett on August 28. But it was only seen by Perrin in February, 2016. Chief Jean-Michel Blais was briefed on its findings in late May.

"We recognize that there's clarity needed in our audit process," says spokesperson Theresa Rath.

Outside of HRP, the RCMP, The Coast and one other unknown Freedom of Information Request, no one else has viewed the audit's findings. It was never brought up at any meetings of HRM's Board of Police Commissioners. Internal audits aren't normally presented to the civilian oversight board, deputy chief Bill Moore explained to The Coast last year. Not unless "there's something major or over the top."

As for the Crown lawyers who actually deal with drug cases, Perrin says he personally had a conversation with senior managers at the Public Prosecution Service about the audit's findings. The Atlantic region's chief federal prosecutor, Barry Nordin, wouldn't comment on the report. He says he's seen "parts of it," but hasn't reviewed a full version himself.

The police, and the Crown didn't feel the audit needed to be disclosed to anyone else—including defense counsels.

Last year, Halifax-area RCMP and the HRP laid just over 1,000 drug charges. [Update: That ended up as 361 individuals facing 286 charges in the courts, according to HRP. That information wasn't available to us before we went to print.] There were 225 charges alone laid from October to the end of December when all of the information in the audit was working its way up the chain of command. That could be thousands of convictions won since 2007, during the years when the evidence chain was riddled with problems.

———

We're not aware that this has had any effect on any ongoing or previous court cases," Perrin says. "If issues were brought forward that could affect or have potentially affected court cases, yeah, there would be an obligation there. At this point we don't have that. We don't have that information."

In 1991, the Supreme Court of Canada ruled in R vs. Stinchcombe that the Crown has a duty to disclose all possibly relevant evidence so the accused is allowed a full and fair defense. In 2009, it ruled in R. vs. McNeil that the Crown's duty of disclosure extends to police records relating to findings of misconduct.

click to enlarge cop_feature5.jpg

It's one of the fundamental aspects of prosecuting a drug charge. An integrity of process has to be maintained to prove that little bag of white powder found by a cop in someone's pocket is, was and continues to be illegal drugs.

So if a police department knows its drug exhibit system has widespread continuity problems, does it have a duty to disclose that information to the Crown and defense counsels right away?

"Yes, absolutely," says local lawyer Stan MacDonald. "That's huge, really. If there are problems with continuity and the police know it, then how come that's not being made known to defendants through their counsel? That's a big issue."

MacDonald is a criminal trial lawyer who represents many clients brought up on drug charges. He heard mention of the police audit in legal circles, but received no "official word" about its findings. In his opinion, he should have.

"The disclosure obligation is to provide the defense with any materials that are potentially relevant," says MacDonald. "Continuity, in a drug case, is one of the things the Crown has to prove. So in my view there's no question that that is a disclosure issue."

The mistakes were "electronic gaps" though, says Perrin. While he can't be certain any of the still-missing exhibits (or the audit's other findings) didn't affect a court case, he says those errors alone don't display a worrisome lack of continuity.

No one actually facing a drug charge knew that, though. Police rarely testify in court about the integrity of their evidence. It's presumed. So people will accept plea deals, or cop to the charges to avoid harsher sentences—not knowing there was a very good chance they could have avoided a conviction completely because most of the time the police couldn't find the bag of white powder they said they arrested you with.

Roger Burrill, counsel with the Nova Scotia Legal Aid Commission, claims he can count on one hand the number of times over the last 30 years he's challenged evidence continuity on behalf of a client.

"But that's because I had no reason to," he says. "There's a presumption the police are doing their job properly. If that's a problem, then I surely would like to know that."

From his perspective as a defense lawyer, Burrill says the police should report any continuity concerns immediately to protect the Crown—whether a report is "finalized" or not. The alternative can be costly. Every defense lawyer in town might now apply for a disclosure of evidence about their cases because of this audit's findings, he says, costing the courts money and time.

It's what happened with RCMP officer Daniel Ryan, says Burrill. Nova Scotia's Court of Appeal ended up overturning a dozen convictions from the Mountie after it was discovered he was trafficking drugs. "We are 'one step away' from serious continuity issues," the Crown said in interviews with HRP's auditors.

"Is there any suggestion that the continuity of a specific exhibit was in question?" hypothesizes Crown prosecutor Barry Nordin. "Is there something out there that identifies there might be an issue with continuity? And if so, then clearly that should be disclosed."

Perrin still isn't convinced the audit's findings meet that threshold.

"I would agree with you that there is an ethical obligation, as part of full and frank disclosure, if there's an issue around a file," he says. "The fact that a keystroke wasn't done on the electronic file doesn't mean there wasn't good continuity on the exhibit from start to finish."

Evidence is a "sacred artifact," says retired detective Tom Martin. That doesn't stop it from going missing. Any control system is only as perfect as the people running it.

When shit happens, the department and the Crown will drop charges. It's procedure. They're not out to win at all costs. That's why evidence is tracked—why there's a continuity. It's the critical element to preserving any chance of a conviction.

"Continuity; security; always knowing where it is; always knowing who had access to it—that's crucial," says Martin. "That's absolutely crucial."

Stan MacDonald says he's waiting to review the audit himself, but expects to go back to the Crown looking for proper disclosure on cases—some of which may go back years. Roger Burrill expects other defense lawyers may follow suit.

"The state has the obligation to provide full disclosure, and any information with respect to the continuity process should be disclosed," he says, "and there's not a defense lawyer with his salt who wouldn't be interested in knowing about it."

Jim Perrin still downplays the findings, though. The audit detailed some improvements that could be taken, but he doesn't believe the department's drug exhibit system is broken or the lack of security measures like cameras was a mistake.

"An audit was done, and recommendations were made based on that," he says. "The fact that there wasn't a camera before, I wouldn't say that's necessarily a problem."

While he's had requests made over the years for new equipment to make the job of the narcotics control officers easier, Perrin couldn't recall any concerns lodged with him about the way evidence control works.

The CID superintendent's "utmost hope" is that coming reports will find no drugs or cash were stolen by police officers. If it turns out they did, he promises the department will take "whatever steps necessary" to hold them accountable.

"Any employee in any business, there's mistakes made," says Perrin. "It's not about the mistakes that are made. What's most important is, what do you do to ensure the mistakes aren't made again? That's how I hope that we're judged."

———

Jacob Boon is city editor with The Coast.

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