A sexual assault charge has been dropped against a southern Alberta man after Blood Tribe police failed to hand over key evidence despite at least a dozen requests over the last three years.
Blood Tribe Police Service (BTPS) Chief Brice Iron Shirt told CBC News in a statement that his agency is "aware of the failures with this investigation" and has since disciplined the primary investigator.
Courtney Fox was charged with sexual assault in May 2019. For three years, his case wound its way through Lethbridge provincial court.
But by May 2022, the key piece of evidence — a rape kit — had still not been handed over to Fox's lawyer.
'Ignored or disregarded'
Defence lawyer Kirsten Lancee made more than 30 court appearances, demanding the disclosure. Most recently she argued at a hearing that her clients charges should be stayed.
"It was absurd that this evidence was not provided despite numerous requests for the disclosure," said Lancee in a written statement.
"The actions of the police were a clear violation of the client's protected rights."
The "exceptional" case saw Crown and defence stand "shoulder to shoulder" in their frustration after the evidence demands "were either ignored or disregarded" by the BTPS, wrote provincial court Judge Kristin Ailsby in her decision to stay the charges.
Defence to seek legal costs against government
The police service, wrote Ailsby, "failed to act in a manner consistent with the most basic and fundamental rules of fair play in criminal law."
That failure was so egregious, the judge suggested the rare remedy of Fox collecting legal costs from the Alberta government.
"Given the evidence disclosed in the hearing, the exceptional nature of this case … I am confident this may be an appropriate case to at least consider costs against the Crown," wrote Ailsby.
Lancee confirmed she will be making an application.
Complainant reports assault
At the disclosure hearing which led to Ailsby's stay, Sgt. Roper testified, giving the court a timeline of the case and details on the withheld disclosure.
In April 2019, the complainant attended a clinic in Lethbridge to be tested for an STI.
There, a doctor asked her questions that caused her to consider whether the sexual encounter she'd had the night before was consensual.
The woman attended the Chinook Regional Hospital where a forensic exam was conducted.
Evidence commonly described as a "rape kit" was collected and stored.
A week later, the woman decided she wanted to go to police.
In May 2019, Fox was charged.
Kit at BTPS the whole time
The prosecutor on the file sent 11 emailed evidence requests to Sky Lee Wolf Child, a woman who worked in the disclosure unit and was tasked with handling the Fox file.
But Roper testified Wolf Child only forwarded five or six of the prosecutor's emails to him. And according to Roper's testimony, she never once sent his replies to the Crown.
But the police chief says BTPS conducted an internal investigation after learning about the issues with the prosecution and concluded there was no evidence to believe Wolf Child neglected her duties.
At the time of his testimony, the prosecutor, defence and judge all learned that the rape kit was not missing or destroyed as previously believed.
The kit was actually sitting in a secure cool storage facility at the Blood Tribe Police Service.