EDITORIALS

WPS WHIPPING BOY SHOULDN’T FACE MUSIC ALONE IN RAPE CASE COLLAPSE

Protester with Placard

When I made the decision to start writing I committed to two (2) critical principals;

  • Tell the truth
  • Have the courage to confront controversial issues

The recent collapse of a rape case is one of those stories that need to be confronted.

The allegations against the accused offender, Marcus Baird (28), were extremely serious and involved home invasion sexual assaults of two (2) female victims on April 4th & 5th, 2011.  Baird was arrested in mid April 2011 and investigated for two other alleged sexual assaults on sex trade workers.  His car was seized as part of the investigation and subsequently searched by Police.  The central figure in the maelstrom is WPS Sex Crimes Detective Richard Arndt.

While I don’t personally know Arndt my research tells me he’s a hard-working, committed Police Officer who is respected by his colleagues.  Arndt holds the rank of Constable and has been employed by the WPS for around eleven (11) years.  While he’s no rookie, I’d stop short of calling him a veteran.

I would also stop short of making excuses for him regarding the role he played in the colossal collapse of a serious rape case.  A failure that could have significant consequences for public safety.  To be sure, Arndt made plenty of mistakes and must shoulder a certain degree of responsibility for those errors.

While mainstream media might be comfortable putting the noose around his neck, I respectfully suggest there is much more to the story.

The controversy arose when Provincial Court Judge Robert Heinrichs declared that the ITO (Information to Obtain) for a search warrant prepared by Detective Arndt was tainted by, “inaccuracies, embellishments and exaggerations.”  As a result, Heinrichs made a ruling the search warrant was invalid and anything seized as a result of the search would be excluded as evidence against Baird.

Once the evidence was excluded the Crown had no case against the alleged rapist.

The Crown Prosecutors who argued the case were two (2) highly competent and experienced individuals who suggested the errors in the ITO were “honest mistakes” that should not render the search warrant invalid.

Unfortunately, the Judge disagreed and suggested Arndt exhibited a, “reckless disregard for the truth.”

So what is the truth?

Is Detective Arndt the reckless liar Judge Heinrichs suggests he is, or is he an honest cop who made factual errors?  The answer to these questions can be found in Judge Heinrichs written decision.

When questioned about the content of the ITO Detective Arndt replied, “I phrased the entire document as I believe this is what I’ve seen and this is what I’ve learned and this is what I’ve done.  If I was to say “I believe” at every paragraph, that would become quite redundant, wouldn’t it?”

Much can be gleaned from Detective Arndt’s response.

During the course of my Police career warrant writing evolved into a highly complex and technical undertaking.  As one of the primary warrant writers in the Homicide Unit (2000 – 2005), I experienced that evolution first hand.

Not every Police Officer possesses the skill set required to be an efficient warrant writer.  This task requires the Officer to be highly skilled and adept in several key areas of criminal investigation.  These areas include, but are not limited to;

  • Highly developed analytical abilities
  • Investigative experience
  • Understanding of legal terminology
  • Ability to pay attention to detail
  • Ability to deduce and support investigative conclusions
  • Ability to discern important information
  • Ability to edit or exclude inconsequential information
  • Ability to communicate the written word

The WPS recognized the evolution of warrant writing and developed a search warrant drafting course for Police Officers who possessed the drive and determination to participate in complex criminal investigations.  At some point, Detective Arndt added the course to his resume.

Participation in the course does not an expert make.

As a Supervisor in charge of criminal investigations, I frequently performed the critical task of reviewing search warrant applications written by the Detectives under my command.  The review of these documents presented an opportunity to coach, mentor and evaluate the ability of the warrant writers.  Finding errors, or omissions within the warrant applications was never a challenge, in fact, rarely did an ITO cross my desk without being significantly edited.

Although the investigators may have dreaded my red pen, they treated my feedback as a learning opportunity and clearly appreciated the investment I made in their development.

It’s because of the complex nature of search warrant writing that WPS policy dictated that all search warrant applications were to be reviewed and approved by a Supervisor.  The question that needs to be asked in this case is what level of supervision, if any, was employed when Detective Arndt prepared his search warrant application?

It seems logical to me that supervisory involvement in this case may have been lacking.

Could lack of supervisory experience also be a contributing factor?

As one experienced former colleague of mine put it, “Most Supervisors wouldn’t know the difference between an ITO and a traffic ticket.”

The issue regarding the value Police Executives place on experience has been an Achilles heel for the WPS for decades.  The WPS still adheres to one of the most restrictive, counterproductive transfer policies in the entire Police Universe.  The policy ensures that criminal investigators and supervisors are in a constant state of flux, a factor that makes it difficult to develop expertise in any of the specialty units.

In 2011, that policy forced two (2) Detectives out of the Homicide Unit after serving only two (2) years in the high stakes squad.  That same year Police Executives transferred a newly promoted Sergeant into the Unit who had no previous Homicide or supervisory experience.  I understand the Sergeant in question is transferring out of the Unit this spring after a brief two (2) year assignment.

Alas, change in the WPS continues to be the only true constant.

On the upside, the incoming Sergeant has significant Homicide, Supervisory and warrant writing experience.  All desperately needed skill sets in a unit tasked with solving the ultimate crime.  The move gives me confidence that Chief Clunis recognizes the value of experience and has learned from the mistakes of past administrations.

Back to Detective Arndt’s testimony….

“I phrased the entire document as I believe this is what I’ve seen and this is what I’ve learned and this is what I’ve done.  If I was to say “I believe” at every paragraph, that would become quite redundant, wouldn’t it?”

Herein lies smoking gun.

Although Judge Heinrichs rejected the Officers testimony and essentially called him a liar, another conclusion could be drawn.  Having worked in criminal investigations for over eighteen (18) years it’s obvious that Detective Arndt  failed to recognize the need to clarify the distinction between fact and theory in his ITO.  That distinction is extremely important and is a common mistake inexperienced warrant writers make.

Arndt’s ITO contained unsubstantiated theory that was mistakenly presented as fact.  The document also contained inexcusable factual errors that are indicative of a lack of attention to detail.

While Judge Heinrichs and the media are quick to condemn the Officer, I say not so fast.

Judge Heinrichs always had the option to edit, excise or amplify the errors in the ITO and rule the evidence admissible as the Crown requested.  He chose not to and ruled the Police actions constituted an unreasonable search and seizure.  That was his decision to make.

The Supreme Court of Canada says that evidence obtained in breach of the Charter is not automatically excluded, in fact, such evidence remains presumptively admissible unless three prerequisites for the exclusion of the evidence exists;

  1. The accused rights or freedoms guaranteed by the Charter must have been infringed or denied
  2. The evidence in question must have been obtained in a manner that infringed or denied that right or freedom
  3. The circumstances must be such that the admission of the evidence could bring the administration of justice into disrepute

While I’m not trying to blame Judge Heinrichs, I fail to see how the inclusion of the evidence would bring the administration of justice into disrepute.  Conversely, it seems to me the release of a potentially dangerous sexual predator on legal technicalities might.

In the world of criminal justice things are never black and white.

I suspect Detective Arndt learned some valuable lessons in this case.  There’s no doubt the sensational headlines have been a source of professional and public embarrassment for him and his family.

It’s unfortunate that his integrity and character have been attacked in such a profound way when responsibility for the tragic outcome of the case can be directly linked to inexperience, lack of supervisory control and the realities of an offender driven criminal justice system.

I, for one, will not sit in judgement of Detective Richard Arndt.

So you want to be a big City Detective……

EDITORS NOTE:

Media reports indicate the Crown has no intention of referring the matter for criminal investigation regarding Arndt’s involvement in the case.

The Crown continues to maintain that Arndt made “honest mistakes” when he prepared his ITO.  A courageous decision in light of the Judge’s inflammatory comments.

RELATED LINKS:

R v Baird – Judge Heinrichs Decision

Supreme Court of Canada – Excluding Evidence Under S.24(2) of the Charter

2 Comments

  1. Not sure what story you read….

    I certainly didn’t absolve the Police or the Detective from responsibility in this case. I can’t see how you came to that conclusion…

    In assessing the judges involvement, I merely pointed out he also played a role in the unfortunate drama, he had options as indicated by the Crown but took a different approach…

    I cut and past a few quotes from the story to clarify for you….

    “While I’m not trying to blame Judge Heinrichs, I fail to see how the inclusion of the evidence would bring the administration of justice into disrepute. Conversely, it seems to me the release of a potentially dangerous sexual predator on legal technicalities might.”

    “I would also stop short of making excuses for him regarding the role he played in the colossal collapse of a serious rape case.”

    “To be sure, Arndt made plenty of mistakes and must shoulder a certain degree of responsibility for those errors.”

    “It seems logical to me that supervisory involvement in this case may have been lacking.”

    “Arndt’s ITO contained unsubstantiated theory that was mistakenly presented as fact. The document also contained inexcusable factual errors that are indicative of a lack of attention to detail.”

  2. I am concerned by your approach. You do not sit in judgement of your fellow officers, but you are quick to judge the judge (your reference to his ‘inflammatory language’ shows your bias.) I was under the impression that police officers are sworn to uphold the law. If a judge does not represent the law, then who does?

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