Trial puts spotlight on Edmonton police's failure to record suspect and witness interviews

A defence lawyer representing a former shisha bar owner says Edmonton police should record all interviews with suspects and witnesses.

Moe Tesfay has pleaded not guilty to making a false statement to police after a gun was pulled on someone at Nyala Lounge last year.

Two police officers testified that they did not record any of their conversations with Tesfay when they investigated the incident in January 2018.

"This trial is an example of a long time being spent on trying to determine what was said," said criminal defence lawyer Tom Engel, in an interview outside the courtroom.

"This seems to be standard practice for Edmonton Police Service — not to record interviews of suspects and witnesses — and that's of great concern for the integrity of the administration of justice."

Edmonton police have not yet responded to a request for comment from CBC News.

Recording contradicts officer testimony

Last week, Const. Erik Loch testified about interactions between Tesfay and members of the Public Safety Compliance Team (PSCT), a policing hospitality unit, on the night of the investigation.

Loch said Tesfay refused to allow police to look at surveillance video and kept changing his story. He also provided testimony on Tesfay's interaction with other officers. "I heard Mr. Tesfay say he had no recollection of a handgun and he had just gotten to the lounge," testified Loch, who said he believed Tesfay was lying. Under cross-examination, Engel asked Loch if Tesfay said anything else about the surveillance video. "Not that I recall," Loch said.

A cellphone video taken by a bystander and entered as evidence showed otherwise. "So he clearly did say let me talk to my lawyer first and then I'll show it to you," said Engel after playing the 29-second clip.

"Yes," agreed Loch, adding there was a lot more to the conversation than the short clip showed. None of his superiors suggested he record his conversations with Tesfay, Loch said. Under cross-examination, Loch said he did not make notes at the time, nor did any of the officers questioning Tesfay. Prior to the investigation, Loch testified that he was aware Tesfay had formally complained about his treatment by police in the past.

Engel questioned why Tesfay wasn't informed of his rights if Loch believed he was obstructing the investigation. Loch said he was focused on an attempted murder investigation and only considered Tesfay a witness at the time.

Afterwards, Crown prosecutor Vern Eichhorn withdrew Loch's testimony, telling the court the statements were "not reliable," because there was no evidence as to what the other police officers said during their interaction with Tesfay.

The submissions were made in a voir dire, which is a trial within a trial, to rule on the admissibility of evidence.

Recording equipment

In January 2016, EPS shelved plans to introduce 60 body cameras to be used by the traffic division citing a lack of funding.

Outside the courtroom, Engel said an acting detective also testified that he had never been advised to use voice pens recorders available at the downtown division.

A member of the Criminal Trial Lawyer's Association, Engel said he has long called for the recording of witnesses and suspects but the police service argued it would be too expensive.

"When you compare that to what the justice system has to spend to have trials going on and on, while police officer after police officer and then the accused testifies about what was said — the cost of buying and using this equipment is just dwarfed by the overall costs," Engel said.

Inspections

In February, an appeal committee ruled there was no risk to public safety and Nyala could reopen after the city tried to cancel its business licence for a third time based on submissions by the policing unit.

Tesfay has complained under the Police Act that he and his customers were the target of unnecessary and heavy-handed inspections, which bystanders have recorded in series of videos. The bar is now under new ownership.

At the outset of the trial, Engel argued that Judge Donna Valgardson should recuse herself because two of her sons are Edmonton police officers but she declined.

The trial will continue in July.

andrea.huncar@cbc.ca

@andreahuncar