Evidence in an assault investigation against Kelfert Watetch, who was involved in the deadly 2016 riot at the Saskatchewan Penitentiary, was thrown out of provincial court earlier this month.
Kelfert Watetch was charged in June 2018 with second-degree murder and other offences for his role in the 2016 riot.
On Dec. 30, 2018 — in a seperate incident — Watetch allegedly assaulted and injured another inmate with a weapon. The matter was referred to RCMP by an investigator at the penitentiary.
In early 2019, while negotiating a plea agreement with the Crown around his involvement in the riot, Watetch told his lawyer to inquire about potential outstanding charges for the December incident.
Court documents said Watetch feared the Crown would seek dangerous offender status against him in the assault case if he accepted a plea agreement in the riot case.
His lawyer checked and found charges were not yet pending against Watetch in the assault case.
Under the impression he wouldn't be charged for assaulting his fellow inmate, Watetch took the plea agreement and was given a 10-year sentence in June 2019 for his role in the riot.
The court found charges weren't formally pending against Watetch for the alleged 2018 assault because of an extensive delay in communication between RCMP and investigators within the Sask. Penitentiary.
Missing file leads to months-long delay
When the RCMP received the file from the penitentiary's investigators, a part of it was missing: the officer recognition report, a signed document that identified Watetch in recorded footage of the alleged assault.
The investigating police officer contacted staff at the penitentiary for a copy of the document, but didn't receive an immediate response.
A drive-by shooting in La Ronge later that month pulled the officer and his peers away from the jail assault investigation, court heard.
"The La Ronge investigation took priority over investigations arising from the penitentiary because the suspects were at large and posed a danger to the community," court documents said.
"Even if he could have delegated the [assault] investigation, he said, nothing could be done on the file until the officer recognition report was received."
The investigating RCMP officer found time to revisit the investigation on May 27, 2018, and again requested the officer recognition report from staff at the Saskatchewan Penitentiary.
The RCMP officer received the missing report one month later. The investigating officer from the Saskatchewan Penitentiary did not testify and there was no explanation as to why it took so long to provide the RCMP with the report.
In court, the police officer testified he would have been unable to lay charges against Watetch without the report.
Three people, including Watetch, were jointly charged in the December 2018 assault in a document sworn on July 22, 2019.
Delay was unreasonable: judge
Watetch applied for a stay of proceedings, arguing his Charter of Rights and Freedoms right to be informed of the assault charges against him without unreasonable delay was violated.
Court documents said Watetch's plea for his involvement in the riot was entered on May 2, 2018, 25 days before the RCMP officer even revisited the assault investigation.
The court found that even though the charge had not been formally brought against Watetch, it was forthcoming, given the open penitentiary and RCMP investigation into the matter, but Watetch wasn't made aware of it.
"[The RCMP officer] did not seek a warrant or a summons from the justice when he swore the information, as he would when charging a non-inmate," the court documents said.
Not seeking a warrant or summons is "customary" when RCMP charges inmates inside the penitentiary, the court documents said, and inmates often learn of the charges brought against them when they first appear in court. Watetch didn't learn of the assault charge until August 14, 2019, eight-and-a-half months after the incident, two months after the manslaughter case was finalized and 23 days after the officer formalized the charges.
The RCMP's process in charging those within the penitentiary and other federal facilities came under fire in the judge's decision.
"In my experience, all too frequently an accused in Penitentiary Court hears his charges for the first time from the judge who reads them when he appears in court without notice and without counsel," the documents said.
The judge ruled the delay was unreasonable and violated Watetch's charter rights.
The judge was also critical of the priority-level placed on the investigation by both the RCMP and the investigators at the penitentiary.
"The prosecution is driven by state actors only," the judge wrote.
"Under these circumstances, when none of the players has seemed particularly diligent in moving the matter forward, it is difficult to find that society's interest in a trial on the merits outweighs the accused's interest — and society's interest — in having a justice system committed to fair dealing."
While the judge could not grant a stay of proceedings, as the Watetch's request didn't meet that bar, the judge ruled the evidence gathered while his charter rights were being violated should be thrown out.